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End of One-Size-Fits-All Sentencing

In his essay for Solutions: American Leaders Speak Out on Criminal Justice, Cory Booker urges broad-based reforms to sentencing, incarceration, and reentry policy.

April 28, 2015

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.

Click here to read the entire book, Solu­tions: Amer­ican Lead­ers Speak Out On Crim­inal Justice.