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Republicans and Democrats Agree: End Mass Incarceration

The second Republican presidential debate showcased the growing consensus around criminal justice reform.

  • Inimai M. Chettiar
September 28, 2015

Cross-posted from Al-Jazeera Amer­ica.

Last week’s second Repub­lican pres­id­en­tial debate demon­strated a remark­able shift in the polit­ics of crime and punish­ment.

At the Ronald Reagan Pres­id­en­tial Library, a build­ing named for one of the coun­try’s most staunch advoc­ates for the war on drugs, Former Flor­ida Gov. Jeb Bush — the son of another drug war backer — stated on national tele­vi­sion that he had smoked marijuana. He didn’t give any qual­i­fic­a­tions; he didn’t claim to have disliked it, done only it once or not inhaled (though he did apolo­gize to his mother).

More note­worthy, Bush and other lead­ing candid­ates for the Repub­lican pres­id­en­tial nomin­a­tion used the debate stage to call for crim­inal justice reform. Busi­ness­wo­man Carly Fior­ina was perhaps the most strident, noting that the United States has the highest incar­cer­a­tion rate in the world. Liber­tarian favor­ite Kentucky Sen. Rand Paul sharply but expec­tedly called for more rehab­il­it­a­tion and less incar­cer­a­tion for drug crimes, and other candid­ates, such as New Jersey Gov. Chris Christie and Bush, touted the bene­fits of drug courts and treat­ment as an altern­at­ive to incar­cer­a­tion. Christie called the war on drugs a “fail­ure.” Impli­cit in this discus­sion was not only agree­ment that we have too many people in prison but also a compet­i­tion for the most effect­ive solu­tion.

On the other side of the polit­ical spec­trum, former Secret­ary of State Hillary Clin­ton, Vermont Sen. Bernie Sanders and former Mary­land Gov. Martin O’Mal­ley are begin­ning to unveil their crim­inal justice plans. Clin­ton called for an end to mass incar­cer­a­tion in her first speech as a candid­ate. Just last week, Sanders unveiled a plan to ban private pris­ons and rein­state federal parole.

This is an encour­aging change from past pres­id­en­tial elec­tions. At least since Richard Nixon’s 1968 campaign, politi­cians have tried to outdo one another as to who could be harder on crime and crim­in­als. Perhaps most infam­ously, George H.W. Bush‘s Willie Horton ad helped secure his elec­tion by push­ing the narrat­ive that Massachu­setts Gov. Michael Duka­kis was to blame for the release of a viol­ent crim­inal into soci­ety. The ad sealed into conven­tional wisdom that politi­cians must be tough on crime to win elec­tions.

This logic wasn’t unique to conser­vat­ives. Bill Clin­ton prom­ised harsh responses to crime during his 1992 campaign and delivered two years later with his crime bill, a piece of legis­la­tion that contrib­uted to today’s mass incar­cer­a­tion prob­lem by giving states billions of dollars to increase their prison popu­la­tions and expand­ing federal three-strikes and mandat­ory minimum laws. By now, even Clin­ton has stated that the bill “made the [mass incar­cer­a­tion] prob­lem worse.”

Research has conclus­ively shown that mass incar­cer­a­tion is not neces­sary to keep down crime. While bipar­tisan agree­ment on this has grown in recent years, 2015 has seen a number of lead­ing politi­cians speak out on the justice system’s fail­ures. In April, 10 pres­id­en­tial candid­ates from across the polit­ical spec­trum wrote essays arguing for an end to mass incar­cer­a­tion in a Bren­nan Center book, “Solu­tions: Amer­ican Lead­ers Speak Out on Crim­inal Justice.” This summer Pres­id­ent Barack Obama became the first pres­id­ent to visit a federal prison — an oppor­tun­ity he used to urge justice reform — although there’s still more he could do even without Congress’ help, such as ending expand­ing clem­ency for nonvi­ol­ent drug offend­ers.

We’re still a long way from imple­ment­ing the large-scale reforms needed to mean­ing­fully roll back mass incar­cer­a­tion. Much of what the candid­ates have offered so far — more body cameras, police train­ing, drug courts, reform­ing civil asset forfeit­ure, legal­ized medical marijuana — won’t go nearly far enough. We need bigger, bolder solu­tions.

Treat­ment instead of incar­cer­a­tion for those with drug and mental health issues is a start. Laws should be changed to prior­it­ize treat­ment in such cases, along with other altern­at­ives to incar­cer­a­tion for nonvi­ol­ent crimes. Proba­tion, community service, elec­tronic monit­or­ing and psychi­at­ric or medical treat­ment have all been proved to reduce recidiv­ism while being less expens­ive than incar­cer­a­tion.

Also, the U.S. must reduce or elim­in­ate overly harsh mandat­ory minimum sentences. Bipar­tisan bills to do so have been intro­duced in Congress, and pres­id­en­tial candid­ates should register their support. Of partic­u­lar note, the Smarter Senten­cing Act would roll back mandat­ory minim­ums, decreas­ing the federal prison popu­la­tion and setting an example for states. At a time when nearly half of state pris­on­ers are behind bars for nonvi­ol­ent crimes and half of federal pris­on­ers are serving for drug crimes, it’s time for a broad recon­sid­er­a­tion of whether long prison terms should be the punish­ment of first resort.

Fore­most among any reforms should be elim­in­at­ing finan­cial incent­ives that fuel mass incar­cer­a­tion. As it stands, the way federal funds flow to states and cities encour­ages them to prior­it­ize more arrests and convic­tions even if there is no public safety rationale. A bill that provides federal dollars to states to reduce their prison popu­la­tions while keep­ing down crime would be valu­able and could appeal to both conser­vat­ives and progress­ives. It would likely have a far broader impact than Sanders’ plan to close private pris­ons, which hold only 8 percent of the nation’s pris­on­ers.

Mass incar­cer­a­tion is a press­ing national issue and should be given the atten­tion it deserves in this elec­tion. What is most import­ant is that polit­ical lead­ers — includ­ing pres­id­en­tial candid­ates — shift from broad rhet­or­ical support for change to public endorse­ment of clear policy solu­tions. And voters will have to hold them account­able for what they do in office.