Cross-posted from The Hill.
This week on Capitol Hill, lawmakers met to discuss a bill that would impose draconian mandatory minimum sentences on even minor crimes involving the synthetic opioid fentanyl. The hearing follows news that the Trump administration will seek the death penalty for drug dealers, part of his overall “war on opioids.”
“You just can’t pass a law increasing punishment and expect the opioid crisis to go away,” Sen. Lindsey Graham (R-S.C.) appeared to acknowledge at the outset. “But it’s a pretty good place to start.”
It’s not. It’s a bad place to start. This is the logic of mass incarceration, the instinct to always demand the harshest punishment possible. It animates the Trump administration and its Congressional allies on everything from drug policy to immigration. And it doesn’t work. Reform advocates can’t be lulled by the false promise of reform. We need to fight back before we repeat the mistakes of the 1970s.
The Trump administration’s embrace of severe punishment should come as no surprise. The president’s attorney general, Jeff Sessions, has always been one of the most extreme members of his own party, and he spent his first year at the Justice Department proving it. In May 2017, he broke with an Obama-era initiative and ordered federal prosecutors to seek harsh, mandatory minimum penalties in every case where they might apply. Now even individuals who commit low-level offenses will be subjected to lengthy sentences that a growing chorus of federal judges believes are unfair. He took the next step this past January, rescinding a memo that offered some protections to people using marijuana legally under the laws of their state.
Trump has also encouraged extending the logic of mass incarceration to a new area: immigration detention. While the president claims he’s targeting dangerous immigrants, like the Central American gang MS-13, federal immigration authorities are actually arresting fathers, mothers, model citizens, and people with minor criminal records. According to public data analyzed in a Brennan Center report, arrests of immigrants without a criminal record — that is, people who have been convicted of no offense other than violating immigration laws — more than doubled in 2017. More than 670,000 immigration now cases await adjudication, prompting an expected 24 percent growth in detention.
Add to that the administration’s embrace of the death penalty — a cruel, irreversible, and expensive sanction that doesn’t even work as deterrent to crime — and the message is clear. Under President Trump, mass incarceration is alive, well, and growing.
We’ve made this mistake before. Between 1980 and 2016, the nation’s incarceration rate grew by almost 230 percent, driven by a mistaken belief that prison and prolonged incarceration were the only ways to keep Americans safe from crime. We now know better. After 1990, still-rising levels of incarceration had only a marginal effect on the nation’s crime rate. But they wrought a devastating toll on communities of color nationwide, disrupting neighborhoods and depressing white and black employment rates by saddling thousands with a criminal record.
Most of the public has come to understand this. Indeed, while the original war on drugs was broadly popular, the public now overwhelmingly supports criminal justice reform. According to one poll by the ACLU, 57 percent of Republicans and 87 percent of Democrats support reducing mass incarceration. Radicals like Sessions and his allies on Capitol Hill might be tempted to dismiss that finding as a liberal fantasy. But the Charles Koch Institute — hardly a Democratic bastion — released similar results in its own poll.
Despite that, reform efforts are faltering. A recently released White House reform package would help people returning home from prison, but do nothing to end mass incarceration. Sen. Chuck Grassley (R-Iowa) continues to push a major sentencing reform bill but has met resistance from the White House and Justice Department. And, of course, President Trump seems to view the mass incarceration of immigrants as a virtue, not a sin. It’s what he campaigned on.
If we hope to build a fair justice system, then, we can’t leave it up to the administration. Instead, lawmakers must hold the line — and fight back. That can start with Sen. Grassley, and the five other Republicans who voted with him to advance sentencing reform last month, demanding a floor vote on their bill.
But Democrats need to speak up too. The progressive base has made clear that any 2020 candidate must take a stand for the DREAMers — no excuses. That’s not enough. The same toxic justice system that would deport a young college graduate is already working today to justify the incarceration of people using marijuana consistent with their own state’s laws.
Progressive leaders must take a stand against this logic of mass incarceration, wherever it exists. Rather than a “war on opioids,” they should insist on solutions to drug addiction that focus on treatment. And they should think about how to move beyond sentencing “reform” and toward bolder solutions — like passing the Reverse Mass Incarceration Act, which would pay states to reduce imprisonment, eliminating the use of prison for lower-level crimes, and slashing overly long sentences.
Of course, in this political environment, there’s no guarantee of success. But we deserve a fair, effective justice system premised on public safety rather than retribution.
Ames Grawert is senior counsel in the Brennan Center’s Justice Program, and James Cullen is a researcher in the Justice Program. They are co-authors of the report Criminal Justice One Year Into the Trump Administration.