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A National Commission on Mass Incarceration

In his essay for Solutions: Americans Speak Out on Criminal Justice, James Webb, calls for a bipartisan National Commission to address the issue of mass incarceration.

April 28, 2015

In addition to my public service, I have spent much of my life as an author and a journalist. Thirty years ago, I became the first American journalist to report from inside the Japanese prison system. It was when I was investigating the Japanese criminal justice system that I became aware of the systemic difficulties and challenges we face here at home. In 1984, Japan had a population half the size of ours and was incarcerating 50,000 prisoners, compared with 580,000 in the United States. As shocking as that disparity was, the difference between the countries now is even more astounding — and profoundly disturbing. Japan’s total prison population has now increased to 67,000, while ours has quadrupled to 2.3 million.

The incarceration rate in the United States, the world’s greatest democracy, is five times higher than the average incarceration rate of the rest of the world. With so many of our citizens in prison compared with the rest of the world, there are only two possibilities: Either we are home to the most evil people on earth or we are doing something dramatically wrong in how we approach criminal justice. Obviously, the answer is the latter.

Despite burgeoning prisoner populations, our communities are not safer and we are still not bringing to justice many of the most hardened criminals who perpetuate violence and criminality as a way of life. It is in the interest of every American that we thoroughly reexamine our entire criminal justice system. I am convinced that the most appropriate way to conduct this examination is through a Presidential commission, tasked to bring forth specific findings and recommendations for Congress to consider and, where appropriate, enact. We need a holistic plan to identify and solve the entire range of problems plaguing our system, from point of apprehension to sentencing, prison administration, and reentry programs for those who wish to become full, participating members of our society.

The “elephant in the bedroom” in many discussions about the justice system is the sharp increase in drug-related incarceration over the past three decades. In 1980, we had 41,000 drug offenders in prison; today we have almost 300,000. This is an increase of over 600 percent and a significant proportion of this population is incarcerated for possession or nonviolent offenses stemming from drug addiction and related behavioral issues. Yet locking up more of these offenders has done nothing to break up the power of the multibillion-dollar illegal drug trade. Nor has it brought about a reduction in the amounts of the more dangerous drugs — such as cocaine, heroin, and methamphetamines — that are reaching our citizens. 

Justice statistics also show that about half of all the drug arrests in our country were for marijuana offenses. Additionally, nearly half of the people in state prisons are serving time for a nonviolent or drug offenses. And although experts have found little statistical difference among racial groups regarding actual drug use, African Americans — who make up about 13 percent of the total U.S. population — accounted for 30 percent of those arrested on drug charges, and 38 percent of all drug off sentenced to prison.

We need smarter ways of dealing with people at apprehension, and even whether you decide to arrest. We need to consider the types of courts drug offenders go into — drug courts, as opposed to regular courts — how long you sentence them, and how you get them ready to return home. It is a sickness and we have got to treat it that way. We must treat the people who need to be treated and incarcerate the people who need to be incarcerated.

At the same time we are putting too many of the wrong people in prison. This does not bring safety to our communities. While heavily focused on nonviolent offenders, law enforcement has been distracted from pursuing more serious and violent crimes.

While I was Senator, following more than two years of hearings, conferences, and meetings, I introduced the National Criminal Justice Commission Act of 2009 which would have paved the way toward systemic reform. The Act garnered wide support from across the political and philosophical spectrum. My staff and I engaged with more than 100 organizations and associations, representing the entire gamut of prosecutors, judges, defense lawyers, former offenders, advocacy groups, think tanks, victims’ rights organizations, academics, prisoners, and law enforcement on the street. Despite the energy behind this legislation, and despite gaining a strong, 57-vote majority, it was filibustered in the Senate, causing even the National Review to lament the “insanity” of the Republican failure to allow the bill to pass through Congress.

We lost the legislation, but we did win the war of bringing the issue of criminal justice reform out of the political shadows. Six years after the introduction of this bill, bipartisan support for criminal justice reform has only increased. Last year, Congress created the “Chuck Colson Task Force” to alleviate overcrowding in federal prisons. President Obama created the “Task Force on 21st Century Policing” to recommend ways to repair police community relations. These commissions are steps toward reforms, but they do not address our larger, systemic national criminal justice problems.

Now is the time to revive the push for a national commission to address the overall issue of mass incarceration. Policing and the growth of the federal prison population are only parts of our nation’s larger problem with prisons. A national commission is needed to conduct a top-to-bottom review of our nation’s entire justice system — federal and state — ultimately providing Congress and state governments with specific concrete recommendations to cut the national prison population. Only an independent, outside commission focusing on the larger national problem of mass incarceration can bring us complete findings necessary to restructure the criminal justice system in the United States.

The commission must be properly structured and charged. It must be shaped with bipartisan balance. The President would nominate the commission’s leader. The Majority Leaders and Minority Leaders of both houses of Congress would appoint two members each, in consultation with their respective congressional judiciary committees. The Republican and Democratic Governors Associations would each nominate one member.

The commission would bring together a group of federal, state, and local experts with credibility and with wide experience to examine specific findings and to come up with bold, systemic policy recommendations.

The  commission would review all areas of federal and state criminal justice practices and make specific findings including an examination of:

  • The reasons for the increase in the U.S. incarceration rate compared to historical standards.
  • Incarceration and other policies in similar democratic, Western  countries.
  • Prison administration policies, including the availability of pre-employment training programs and career progression for guards and prison administrators.
  • Costs of current incarceration policies at the federal, state, and local levels.
  • The impact of gang activities, including foreign syndicates.
  • Drug policy and its impact on incarceration, crime, and sentencing.
  • Policies as they relate to the mentally ill.
  • The historical role of the military in crime prevention and border security.

These issues need to be examined carefully and comprehensively by a group of people who are going to do more than sit around and simply remonstrate about the problem. The commission’s recommendations must result in action.

The first step for the commission would be to give us factual findings, and then from those findings, give us recommendations for policy changes. The recommendations would address the same issues above: how we can refocus our incarceration policies; how we can work toward properly reducing the incarceration rate in safe, fair, and cost-effective ways that still protect our communities; how we should address the issue of prison violence in all forms; how we can improve prison administration; how we can establish meaningful reentry programs. 

Though I leave it to the commission to decide what recommendations are best for this country, I believe they should include graduated sanctions for individuals on probation and parole, work-release programs, education opportunities, the introduction of risk assessment tools for prisoners preparing to reenter society, fewer arrests, and shorter sentences for nonviolent drug users. 

Without question, it is in the national interest that we bring violent offenders and career criminals to justice. I do not suggest that we let dangerous or incorrigible people go free, simply that we determine how best to structure our criminal justice system so that it is fair, appropriate and — above all — effective. No American neighborhood is completely safe from the intersection of these problems.

There are better ways to keep our communities safe than simply incarcerating people. Fixing our system will require us to reexamine who goes to prison, for how long, and how we address the long-term consequences of their incarceration. As a nation, we can spend our money more effectively, reduce crime and violence, reduce the prison population, and create a fairer system. Our failure to address these problems cuts against the notion that we are a society founded on fundamental fairness. It is time to take stock of what is broken and what works and modify our criminal justice policies accordingly. Th creation of a National Criminal Justice Commission is still the best way to do this.

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