Justice Department Can Be Smarter About Sequester

February 26, 2013

Originally posted on The Hill.

This Friday, the sequester is scheduled to kick in. The $85 billion in spending cuts includes $1.6 billion to the Department of Justice. While the budget crackup is not good for anyone, the Justice Department can use this opportunity to begin implementing a saner national criminal justice policy.

Last week, Attorney General Holder wrote to Senator Mikulski and the Appropriations Committee about the cuts. The letter left criminal justice advocates not knowing whether to laugh or to cry. The federal Bureau of Prisons would need to slash its staff by 5 percent plus suspend the opening of five new prisons. Holder says the consequences will be prison lockdowns and cuts to reentry programs. He goes on to say “[t]o be blunt, sequestration means less money, not fewer inmates” leading to a “dangerous situation” engendering violence in prisons. The sequester cuts would also require FBI and law enforcement to cut 1,000 agents and U.S. Attorney offices to prosecute 1,000 fewer cases.

On first glance, these cuts may seem like bad news. But on closer inspection, “sweet are the uses of adversity.” One unintended consequence of the sequester is to offer the Justice Department an opportunity to rethink outdated criminal justice policies that simply don’t work and waste money.

Last month, the Congressional Research Service issued a report concluding that the unprecedented federal prison population growth is due to the tough-on-crime laws of the 1980s and 1990s that overcriminalized and overpunished behavior. The prison population has increased by a whopping 790% since 1980. About half of all federal prisoners are incarcerated for drug crimes. These approximate 100,000 drug prisoners are twenty times the drug prisoner population of 1980.

But the Bureau of Prisons needs fewer inmates.

The Justice Department has some discretion in the sequester, particularly over how specific departments within agencies execute the cuts. For example, the U.S. Attorney’s office will likely not select which prosecutions to forgo by randomly throwing out every third case until it reaches 1,000 cases cut.

The Justice Department should use its authority to prioritize evidence-based programs and policies that actually protect public safety. Regardless of whether sequestration takes effect, this approach will help the Justice Department increase both the fiscal health and effectiveness of the eternally cash-strapped agency.

To start, the Justice Department should work to reduce the federal criminal justice population – meaning the number of people unnecessarily arrested, prosecuted, and sent to prison. This way, federal prisons will not become dangerously overcrowded and the five new prisons will not need to be operational. For example, the U.S. Attorney’s office should cut its caseload by choosing not to prosecute cases with limited public safety benefits. Only 10 percent of federal drug prosecutions are for high level trafficking. The focus on low-level drug crimes is why most federal drug prisoners are actually low-level offenders. This is clearly not the best use of limited federal prosecutor, law enforcement, or prison resources. Fewer unnecessary prosecutions will lead to fewer people unnecessarily in prison. Judges should also be cognizant of limited prison space when deciding who poses such a danger that they must be sent to prison instead of subject to an alternate punishment.

Similarly, law enforcement agencies should distribute cuts by choosing not to prosecute non-priority crimes – like small time drug sales or using unauthorized food stamps. The Bureau of Prisons should also grant early release to the thousands of prisoners currently eligible.

For added impact, the Justice Department should also overhaul its grant system to state criminal justice programs by making all grants performance-based. This will incentivize states to use the funds for legitimate public safety goals. For example, when sequester hits the notorious Byrne Grant program, the Justice Department should end grants to local police departments that do not tie funding to quality of arrests. These types of grants incentivize drug war policies that do not work. They instead shift resources toward easy-to-make low-level arrests and away from solving more serious crimes.

The Justice Department should then preserve grants for successful performance incentive funding programs that save money and protect public safety. One such program — like Adult Redeploy, which is scheduled for cuts — incentivizes probation officers to reduce the number of probationers returned to prison by safely keeping them in the community with jobs and without recidivating.

With a little logic, the Justice Department can issue sequester cuts without the predicted disastrous effects. Even if Congress agrees on a budget this Friday, the Justice Department should still implement this evidence-based funding approach. In a time of plethora or paucity, government should never spend money on programs or policies that don’t work — especially when it comes to the safety of the country and the lifetime effects on people ensnared by the criminal justice system.

Inimai Chettiar is the Director of the Brennan Center’s Justice Program at NYU Law School. Ethan Nadelmann is the Executive Director of the Drug Policy Alliance.

Photo by Images_of_Money.