Mr. President, Lead on Prisons: Obama Can Force More Criminal Justice Reform

President Obama recently took a few steps in the right direction on criminal justice reform, but he can't stop there.

July 28, 2015

Cross-posted from the New York Daily News

This has been a momentous month in President Obama’s evolution into a criminal justice reform advocate. He commuted the sentences of 46 prisoners, became the first sitting President to visit a federal prison, gave a major speech calling for an end to mass incarceration and urged Congress to pass sentencing reform.

This is arguably more than any other recent President has done to turn the tide against American mass incarceration. But the truth is, these actions are a far cry from the major changes the President can make as head of the executive branch.

It would be a massive missed opportunity if Obama stops here.

Commutations can rectify only a handful of individual convictions — and do so after a person has already been imprisoned. They do not change the system. We need systemic reform that prevents people from unnecessarily entering prison in the first place.

Obviously, Congress and the states must act to bring this type of change. But Obama can do a great deal to move it along.

There are 2.3 million Americans behind bars depending on him to act. With 5% of the world’s population, the United States has 25% of its prisoners. Correctional facilities and criminal justice agencies cost taxpayers $260 billion annually.

And a growing body of evidence indicates that increased incarceration has diminishing returns on bringing down crime. A reconsideration of which crimes deserve lengthy prison sentences is long overdue.

There are two huge steps the President can take now, without waiting for Congress, to alleviate our incarceration problem.

First, Obama should issue more commutations — many more. There are 100,000 people in prison for low-level drug crimes. If Obama issued 46 clemencies every month between now and the end of his presidency, he would grant relief to only 782 prisoners.

To date, Obama has granted fewer clemencies (153) than any other President in the past 100 years besides George H.W. Bush. Ronald Reagan granted 406, Richard Nixon 926, Bill Clinton 459 and George W. Bush 200.

Moreover, Obama has granted a smaller percentage of clemency applications than any of his predecessors. He has approved 1% of applications. The average for the past 10 Presidents was 17%.

This track record is especially troubling because there is now bipartisan agreement that sentences for many drug crimes are too harsh. The President should direct Attorney General Loretta Lynch to identify and bring to his desk commutation orders for the 5,000 federal prisoners serving sentences under outdated crack cocaine laws. In 2010, Congress reduced the unjust sentencing disparity between crack and powder cocaine crimes, but did not apply the change to people already in prison. With a stroke of his pen, Obama can fix that.

There is a second area where bolder action can make a huge difference. One of the strongest ways the federal government can influence state policy is by redirecting funding. Washington sends $3.8 billion each year in criminal justice grants to states and cities. Most of these dollars are on autopilot, creating incentives to increase the number of arrests, seizures, prosecutions and prison sentences, without ever ensuring these increases actually reduce crime.

The President can change this. In the mold of successful models in California and Illinois, which financially reward counties that reduced their prison populations while seeing crime drop, he can issue an executive order mandating that federal agencies tie grant dollars to whether states and cities show they are reducing both crime and imprisonment rates.

Citing that 86% of prisoners are under control of the states, some argue that the President’s ability to reduce overimprisonment is limited. But even if Obama cannot single-handedly rationalize our justice system, his ability to champion change ought not be underestimated.

The good news is that, unlike other areas where the President has taken strong executive action — such as climate change or immigration — there is substantive bipartisan agreement on the need for justice reform.

Earlier this year, nearly all the major presidential candidates joined together in a book to urge an end to mass incarceration. Sens. Ted Cruz and Rand Paul want to ease mandatory minimum sentences. Gov. Chris Christie is acting in New Jersey to send drug offenders to treatment instead of prison. Sen. Marco Rubio wants to reduce the number of federal crimes.

Leaders of Obama’s own party have also come to the table: Bill Clinton acknowledged that the 1994 crime bill he championed contributed to the problem, and Hillary Clinton is calling for more treatment instead of prison for offenders in need.

If he acts now, Obama can advance his legacy. What is he waiting for?

(Photo: AP)