End of One-Size-Fits-All Sentencing

We, as a nation, work to lead the world in areas from education to innovation; yet, we do not fully realize that the cancerous growth within our criminal justice system has made us the global leader in incarceration. Though only 5 percent of the world’s population lives in the United States, we are home to 25 percent of the world’s imprisoned people. This is, among other things, a phenomenon driven by the drug war. In fact, there are more people incarcerated in America today for drug offenses then all the people incarcerated in 1970.

Some people need to be taken off the street for a long time. If you commit a crime, and particularly a violent crime, you must pay a price. But we are not focused on locking up violent, dangerous felons — far from it. Our prisons are filled not with violent criminals, but with nonviolent offenders — nearly one-third of federal prisoners have little or no prior criminal history.

And we are all paying the financial price for these troubling trends. Using the narrowest of measures (not including police costs, courts, and more) the average American contributed $30 a year to corrections expenditures in 1980; that number grew to over $230 by 2012. Factoring in other costs, each American annually spends hundreds of dollars from his or her tax bill to incarcerate nonviolent offenders while our expenditures on other critical aspects of our society — from infrastructure to life-saving medical research — have declined. It costs hundreds of thousands of dollars to incarcerate a nonviolent offenders for a few years, money that could be used to hire more police officers secure our nation from terrorist threats, or solve more serious violent crimes. Or we could spend this money to empower those who break the law — from the drug addicted to youthful offenders — to succeed.

Our criminal justice system is so broken that, once convicted of a nonviolent crime and time has been served or punishment completed, we place daunting obstacles in the path of people leaving prison that undermine their ability to successfully rejoin society. The American Bar Association has identified over 46,000 penalties, called collateral consequences, which can impact people long after they complete their criminal sentence. These consequences include roadblocks to voting and barriers to obtaining a job, business licenses, housing, education, and public benefits. That is why our state and federal prisons have become revolving doors, with two of every three former offenders getting rearrested within three years of release.

We use solitary confinement against juveniles, a practice that some nations consider torture. It also can have profound life-altering consequences on our youth. In fact, the majority of suicides by incarcerated youth are by ones that have been subjected to solitary confinement.

You may assume mass incarceration exists because people are committing more crimes. But that is not true. Violent crime has plunged in recent decades; the rate has declined roughly by half since 1993. In fact, numerous studies have shown that incarceration rates cannot be tied to crime rates. The incredibly costly reality is that prisons in our nation continue to grow irrespective of crime rates. It is a bureaucracy that has been expanding independent of our security or safety. One that costs each and every one of us more and more as it systematically deprives millions of Americans and their children of economic opportunity — the opportunity to contribute, succeed, and break cycles of poverty and hardship.

In fact, Americans are increasingly being detained in jails for simply being too poor to pay a fine or from conduct stemming from mental illness, homelessness, or addiction. Instead of empowering people to succeed or treating their addictions or mental health problems, our overuse of detention, jail, and incarceration aggravates their problems. Being poor should not be a crime. Incarcerating a person further undermines his or her ability to achieve economic stability because it often results in the individual having to miss work, lose a job, or have an arrest record that makes the person even less employable.

Some feel the brunt of this broken system more than others. More than 60 percent of the prison population is comprised of racial and ethnic minorities. This is driven by wide disparities in arrests and incarceration. Even though blacks and Latinos engage in drug offenses at a rate no different than whites, blacks are incarcerated at a rate six times greater than whites, and Latinos are incarcerated at nearly twice the rate of whites for the same offenses. The incarceration rate of Native Americans is 38 percent higher than the national rate. Latinos account for 17 percent of the U.S. population, but 22 percent of the U.S. incarcerated population. And, blacks make up only 13 percent of the total U.S. population, but 37 percent of the U.S. prison population. Today, we have more black men in prison or under state or federal supervision than were enslaved in 1850. Despite these realities, I have a deep and abiding faith in our nation’s ability to fix our justice system. We have shown time and time again that in the face of injustice, unfairness, and inequality we have the capacity to overcome, to reform, to change, and to grow. Correcting the problem of mass incarceration demands again a time of courage and action for our nation.

Today, I am encouraged. Across our country, people from all backgrounds, from all parts of our political spectrum are standing up to change this awful reality of mass incarceration. Liberals and libertarians, Democrats and Republicans, Christian conservatives and left wing atheists, together with many others are forming unusual partnerships to roll back mandatory minimum penalties, enact bail reform, expand drug treatment, and push for countless other reforms to our justice system. As an elected Democrat, I am encouraged to see conservative groups like the Heritage Foundation, Right on Crime, and the National Rifle Association joining the call for change and pushing for substantive criminal justice reforms.

I am increasingly encouraged by the progress in our states, which often have been the laboratories of our democracy. So-called “red states” like Texas and Georgia — which have a widely-held reputation for prioritizing law and order — have made sweeping reforms in recent years to reduce their prison populations.

In addition, states like New Jersey, Texas, California, Virginia, Hawaii, Wyoming, Massachusetts, Kentucky, Connecticut, Rhode Island, Colorado, New York, South Carolina, Alaska, and Georgia have all enacted reforms and have seen drops in both their incarceration and crime rates. The reforms in these states prove that you do not have to lock up more people to create safer communities.

Now that we have made serious progress in many states, the question is what can policymakers do at the federal level? The answer: We must think big. We need broad-based reforms that will address all corners of the system — from sentencing, to incarceration, to reentry.

Since joining the Senate, I have taken steps toward introducing sensible reforms. Sen. Rand Paul (R-Ky.) and I came together to introduce the Record Expungement Designed to Enhance Employment (REDEEM) Act. It would keep more kids out of the adult system, protect their privacy so a youthful mistake does not follow them all of their lives, and help make it less likely that low-level adult off reoffend. While new to the Senate, I am so grateful to join enduring champions for sensible reforms. Senators like Patrick Leahy (D-Vt.), Richard Durbin (D-Ill.), Mike Lee (R-Utah), Rob Portman (R-Ohio), Sheldon Whitehouse (D-R.I.), and John Cornyn (R-Texas) have for years all pushed for legislation that would make our legal system become more just.

In February, I joined with Sens. Lee, Durbin, and Ted Cruz (R-Texas) to reintroduce the Smarter Sentencing Act of 2015, bipartisan legislation that would enact meaningful sentencing reforms that would make our federal sentencing policy fairer, smarter, and more cost-effective. It would reduce harsh mandatory minimums for nonviolent drug off which is the single largest factor in the growth of the federal prison population. If we want our prison population to decrease, we must reduce mandatory minimums. The bill would expand the federal “safety valve,” which returns discretion in sentencing for nonviolent drug off back to federal judges. It would allow persons convicted under the pre-2010 crack cocaine laws to receive reduced sentences, a change needed to make crack cocaine penalties more in line with powder cocaine penalties. Crack and powder cocaine are pharmacologically the same. The Smarter Sentencing Act would reduce these sentences and save our country $229 million over the next 10 years.

To truly end mass incarceration we need a comprehensive approach. We need to do away with harsh mandatory minimum penalties and the one-size-fits-all approach to sentencing. We should give judges — who are our sentencing experts — more discretion in sentencing. We need to adopt policies that push for the early release of those least likely to recidivate. And we need to do more to ensure that people who reenter society after serving time will contribute to society and not commit future crimes.

The road ahead will pose challenges and change will not be easy. It never has been. But nothing is more powerful than an idea whose time has come. We cannot afford to be deterred in this cause to end a cancer in our country that so aggressively eats away at our liberty and our justice. We must reject the lie of cynicism that tells us that we cannot come together to make criminal justice reform a reality now. We must reject the lie of contentment that tells us to be satisfied with small reforms amidst such giant problems. We must reject the lie of otherness that leads us to believe that this is someone else’s problem when we are an interdependent nation that knows “injustice anywhere is a threat to justice everywhere.” I have an unshakable faith that our nation will rise to meet, and will eventually overcome, this challenge. Let’s get to work.