Unlocking Democracy

As someone who writes and organizes around issues of imprisonment and detention, my work is often met with a certain type of resignation. Though many politically-conscious people are quick to lament our nation’s chart-topping incarceration rates, they’re justifiably overwhelmed by the complexity and magnitude of our so-called justice system. Many simply don’t know where or how to begin tackling what amounts to the most salient, silent problem in the United States today. Although the following list is far from exhaustive, it reflects a straightforward set of strategies for reducing our 2,300,000+ prison population without compromising public safety.

1. Replace mandatory sentencing laws for drug-related offenses with more flexible and individualized sentencing guidelines.
Our nation’s so-called “war on drugs” over the last three decades, more than any other single factor, has fueled our historic incarceration fetish. It has also resulted in the conspicuous over-representation of bodies of color in prison. A staggering one in nine black men between the ages of 20 and 34 is currently incarcerated (Pew Center on the States). The number of individuals serving time for drug-related offenses has increased by more than 1,000 percent since 1983. Today, nearly half a million people are incarcerated for a drug-related infraction, compared to an estimated 44,000 thirty years ago (Prison Policy Institute). Why? By 1983, forty-nine state legislatures had enacted mandatory sentencing statutes, and in 1986, Congress passed the Anti-Drug Abuse Act which, though well-intentioned, established 5- and 10-year mandatory sentences for drug importation and distribution. Two years later, President Reagan signed the Omnibus Anti-Drug Abuse Act, granting the federal government authority to penalize all conspirators in drug-related crimes regardless of their role. Mandatory sentencing laws like these limit judicial jurisdiction by preventing sentencing judges from considering a full range of mitigating factors in a defendant’s profile, including the defendant’s role in the offense or likelihood of committing a future offense. And importantly, replacing mandatory sentencing laws for drug-related offenses with more flexible and individualized sentencing guidelines would disproportionately benefit women—the fastest-growing segment of the total prison population—who are predominantly incarcerated for drug-related, non-violent crimes (The Action Committee for Women in Prison).

2. Strategically reduce “three-strikes” laws for non-violent offenders.
Although twenty-six states have passed “three-strikes” laws for violent offenders since 1993, California’s 1994 “three strikes” ruling punishes minor, non-violent crimes with the penalty of twenty-five years to life. Nearly 4,000 prisoners in the state of California are now serving life sentences for a third strike offense that was neither violent nor serious. This figure represents more than 40 percent of California’s 8,500 third-strike offenders. This November, California voters will have a chance to amend the “three strikes” law through a ballot-measure—Proposition 36—which, if passed, will eliminate life sentences for offenders whose third strike is neither serious nor violent (Pew Center on the States).

3. Relax Truth in Sentencing thresholds.
Today, over thirty-five states require offenders to serve 85 percent of their prison sentence regardless of their potential fitness for early release (Bureau of Justice Statistics). This is excessive and arbitrary. Federal Truth in Sentencing guidelines emerged in the mid-nineties as a way to incentivize tougher crime policies on a state-by-state basis. States that resisted the 85 percent standard became ineligible from receiving federal block grants authorized by the Violent Crime and Law Enforcement Act of 1994.

4. Decriminalize homelessness and reduce barriers to securing stable housing upon re-entry.
Too many major U.S. cities attempt to alleviate “homelessness” through imprisonment. Members of the homeless community are often incarcerated for sleeping, sitting, and/or panhandling in public spaces. For instance, a 2009 report jointly published by the National Law Center on Homelessness and Poverty and the National Coalition for the Homeless found that over 33 percent of major U.S. cities prohibit “sleeping or camping” in public spaces. Another 49 percent disallow “aggressive” panhandling (verbal solicitation, mind you, constitutes “aggressive” panhandling).

Instead of criminalizing homeless populations, cities should allocate substantial resources for creating affordable housing, permanent supportive housing, and emergency shelters. In conjunction, public housing authorities must work with the formerly incarcerated to ensure appropriate and safe housing upon re-entry. Each year, more than 650,000 individuals are released from state prisons in the United States. Those who fail to secure stable housing within three months are 25 percent more likely to recidivate than those who do (Bureau of Justice Assistance, Re-Entry Policy Council). In addition, Housing and Urban Development (HUD) and state housing authorizes together could consider granting housing subsidies to the formerly incarcerated in exchange for community service work.

5. Make full employment a domestic policy priority.
In his 2009 book entitled Punishing the Poor, U.C. Berkeley sociologist Loic Wacquant demonstrates that over the last decade, fewer than half of inmates held a full-time job at the time of arraignment and nearly 70 percent came from households with an annual income at or below 50 percent of the poverty line ($9,500 annually for a family of three). The message is clear: Unemployment in the formal labor market substantially increases one’s risk of imprisonment.

In 1978, Congress passed the Full Employment and Balanced Growth Act (Humphrey-Hawkins Act), which explicitly affirmed the goals of full employment, growth in production, and a balanced budget. Unfortunately, the plan was abandoned shortly after it was signed into law. Today, however, a similar legislative opportunity exists to work toward full employment. Senator John Conyers Jr. (D – MI) has recently drafted a piece of legislation—H.R. 870: Humphrey-Hawkins 21st Century Full Employment and Training Act—aimed at establishing the National Full Employment Trust Fund to create full employment opportunities for the unemployed and the marginally attached.

6. Eliminate the use of for-profit, private prison companies.
By definition, for-profit, private prison firms rely on steadily increasing incarceration rates for their long-term survival. For instance, Corrections Corporation of America (CCA), the nation’s largest for-profit, private prison owner and operator, admitted in its 2010 Annual Report that its “growth is generally dependent upon our ability to obtain new contracts to develop and manage new correctional and detention facilities. This possible growth depends on a number of factors we cannot control, including crime rates and sentencing patterns in various jurisdictions and acceptance of privatization. The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction or parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by [extant] criminal laws.” To circumvent these challenges, CCA spends over $1.2 million each year lobbying for more expansive crime laws (OpenSecrets). In addition, CCA’s performance as a company hinges on contractually guaranteed occupancy rates of up to 90 percent. This makes the goal of population reduction difficult.

7. Fund prison education programs and incentivize inmate participation.
Slashing funding for on-site educational programming is antithetical to reducing recidivism. The Washington State Institute for Public Policy recently released a study suggesting that adult prison education programs can reduce recidivism, that is, the rate at which previously released offenders will re-enter the criminal justice system, by 6 to 16 percent. Not only does educational programming help to save taxpayers money, it also allows inmates to develop skills they can take to the labor market upon release (Washington State Institute for Public Policy).
In order to increase participation rates in correctional educational programs, states should consider adopting legislation similar to California’s SB X3-18, which authorizes California’s Department of Corrections and Rehabilitation (CDCR) to grant low-risk offenders sentence reduction so long as they “actively participate in and complete components of in-prison rehabilitation programs.” Under this plan, inmates can earn up to six weeks of early-release credits each year (California Department of Corrections and Rehabilitation).

8. Provide incentives for employers to hire “ex-convicts.”
Post-release employment makes a big difference. An unemployed ex-offender is three times more likely to recidivate than one who has secured steady employment. Under the Work Opportunity Tax Credit Program, many small businesses may be eligible for up to $9,000 in credits and/or deductions for hiring formerly convicted employees. Congress should consider taking yet an additional step by passing legislation that temporarily reduces payroll tax liabilities for small businesses hiring ex-convicts (Department of Labor).

9. Suspend “Operation Streamline.”
In 2011, over 400,000 undocumented immigrants passed through the Department of Homeland Security’s (DHS) immigrant detention system. The number of detainees has doubled since 2005 when the Bush Administration implemented “Operation Streamline,” a zero-tolerance program that requires the federal criminal prosecution and imprisonment of all unlawful border crossers (ACLU, National Immigration Forum). The program, which primarily targets migrant workers of color with no criminal history, has resulted in burgeoning caseloads in many federal district courts along the border.

Prior to the enactment of “Operation Streamline,” DHS Border Patrol agents voluntarily returned first-time border crossers to their home countries or detained them and formally removed them from the United States through the civil immigration system. Historically, “the U.S. Attorney’s Office reserved criminal prosecution for migrants with criminal records and for those who made repeated attempts to cross the border. Operation Streamline removed such prosecutorial discretion, requiring the criminal prosecution of all undocumented border crossers, regardless of their history” (ACLU, National Immigration Forum). As a result, “Operation Streamline” mandatorily forces undocumented migrants through the federal criminal justice system and into U.S. prisons instead of routing non-violent individuals caught crossing the border into civil deportation proceedings. Today, the U.S. maintains a sprawling web of detention centers comprised of more than 240 federal facilities, state prisons and county jails, at an annual cost of $1.7 billion to taxpayers. Close to 50 percent of these facilities are now operated by private prison companies (Detention Watch Network).

10. Support community policing efforts.
Community policing involves building a collaborative relationship between local law enforcement officials and the community. With the police department no longer the sole arbiter of “law and order,” all members of a given community take an active role in promoting public safety and well-being. Community policing has proven successful in its implementation. A report recently released by the city of Detroit, for example, indicates that an initiative co-launched by the Detroit Police Department and local residents in June has yielded a dramatic drop in home invasions. In the first 120 days of the program, home invasions plummeted by 32 percent compared to the same period in 2011 (Police Department, City of Detroit).