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If You Blinked, You Missed When Obama Made Criminal Justice Reform History

There has never been a time when a president suggested at the State of the Union that we ought to incarcerate fewer people.

  • Inimai M. Chettiar
  • Abigail Finkelman
January 13, 2016

Cross-posted on The Guardian

Those who watched President Obama’s State of the Union on Tuesday might have missed a moment of historical importance in the first minute of his speech.

The president called on Congress to “work together this year on bipartisan priorities like criminal justice reform” – a reference to the Sentencing Reform and Corrections Act, which would reduce mandatory minimum sentences for some nonviolent and drug crimes, providing relief to tens of thousands of unnecessarily incarcerated people.

It was so noncontroversial, it merited barely 11 words, after which the president moved on.

But for decades in American political life, the parties and their leaders competed on who could be more punitive and draconian on criminal sentencing; for a president to stand before the American people and call on Congress to pass legislation to reduce imprisonment is unprecedented.

To determine just how unusual Obama’s call to action was, we need only to look at some of his predecessors.

In 1970, Richard Nixon proclaimed that the word “war” was more appropriate for crime than for poverty, disease, or hunger, helping coin the phrase war on crime. He noted that most Members of Congress “would not dare walk home at night.”

In 1989, George H. W. Bush advocated for $1bn “to escalate the war against drugs. A war that must be waged on all fronts.” He asked Congress to fund “beefed up prosecution” and “enforcement of tougher sentences.”

And in 1994, Bill Clinton called for both parties to come together to pass the 1994 Crime Bill, which gave $9bn to states to increase prison populations and instituted federal “three-strikes-you’re-out” laws.

These tough-on-crime calls weren’t mere bloodlust or pandering: crime was disproportionately high at the time and ravaging urban neighborhoods.

But those responses to crime overshot the mark and made the United States the largest incarcerator in the world. With just 5% of the world’s population, we have 25% of its prisoners. (Either Americans are a particularly dastardly group, or there are too many of us behind bars.)

It would have been even more powerful on Tuesday if President Obama had spent more time talking about the need to reduce the number of people incarcerated – or even just mentioned that crime today is at historic all-time lows.

The dawning awareness that crime has dropped dramatically is one of the most significant, if under-discussed, factors in the current movement to reduce mass incarceration – and it makes it more likely that Congress will act. Since 2008, crime and incarceration have both decreased, for the first time in 40 years. Crime in the United States hasn’t been this low since 1969 – when bell-bottoms were in, the Mets won the World Series and even the biggest techies were tethered to walls when they talked on their phones.

Violent crime dropped 20% during Obama’s tenure from 2009 to 2014. The average person in a large urban area is safer walking the streets today than they would have been at almost any time in the past 30 years. And while it is true that some cities have recently seen increases in their murder rates this year, the statistics show that these increases are localized and not a harbinger of a nationwide crime surge. In fact, crime overall dropped 6% in 2015.

Studies have conclusively shown that mass incarceration played a limited role in the crime drop: more police officers, smarter policing and economic factors did. In response, states as disparate as Texas, Georgia and New York have passed legislation to reduce crime and incarceration simultaneously. Last fall, a prominent national group of 160 law enforcement leaders – police chiefs, sheriffs, and district attorneys – from all 50 states affirmed that they too believe that we can reduce crime and reduce imprisonment.

The political consensus that criminal justice reform is needed may be starting to strain at the seams, but so far it’s holding: both parties have come to agree that it is time to end mass incarceration.

For a time, it looked as if a generational split might bifurcate Congress; young Senators Rand Paul of Kentucky and Cory Booker of New Jersey werepushing for reform, but their party bigwigs remained skeptical. But more recently, Senate Judiciary Chairman Chuck Grassley of Iowa and House SpeakerPaul Ryan of Wisconsin have spoken out to support reform.

The Sentencing Reform and Corrections Act is also supported by the conservative Koch brothers, the NAACP and law enforcement organizations; you could hardly find a more diverse coalition. (Thebill may be one of the few things Congress gets done in 2016. )

But a new sentencing bill can’t be the last word in the reform moment; it should merely begin to show that it is indeed possible for politicians to come together to achieve reform. There is more to be done: for instance, the current bill focuses on reducing the federal prison population, but 85% of inmates are housed in state-controlled prisons.

The federal government could make a large impact on state policy, by taking the$3.8 billion in federal grants that currently and all-but-automatically subsidize mass incarceration in the states – much of that because of the 1994 Crime Bill and similar efforts – and using those funds to encourage states to reduce imprisonment while keeping down crime.

But moving beyond one bill and making a concerted effort to end mass incarceration may ultimately be a task for a new president.

(Photo: AP)