Economics or Morals: What’s Behind the DOJ’s New Prison Policies?

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National Journal
Reena Flores
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Reena Flores
Aug. 12, 2013, 12:57 p.m.

When U.S. At­tor­ney Gen­er­al Eric Hold­er out­lined a new plan to de­crease Amer­ica’s pris­on pop­u­la­tion at Monday’s an­nu­al Amer­ic­an Bar As­so­ci­ation meet­ing in San Fran­cisco, the an­nounce­ment was met with thun­der­ous ap­plause. Hold­er said such re­forms are ne­ces­sary be­cause of the im­possible-to-cal­cu­late “hu­man and mor­al costs” of the cur­rent ju­di­cial sys­tem, even call­ing it “dra­coni­an.”

But, with fed­er­al pris­ons op­er­at­ing at nearly 40 per­cent above ca­pa­city, he also made the case it was fisc­ally “prag­mat­ic.”

Hold­er’s plan has sev­er­al key com­pon­ents:

1. Low-level drug of­fend­ers (with no ties to large or­gan­iz­a­tions, car­tels, or gangs) will no longer be charged with of­fenses that in­clude man­dat­ory min­im­um sen­tences.

2. The Justice De­part­ment has up­dated its frame­work for eval­u­at­ing com­pas­sion­ate re­lease for in­mates fa­cing com­pel­ling cir­cum­stances — in­clud­ing old age.

3. DOJ will also ex­pand the use of “di­ver­sion” pro­grams such as drug treat­ment and com­munity ser­vice that could be used in­stead of in­car­cer­a­tion.

These changes to Justice De­part­ment pro­tocol are sig­ni­fic­ant and will af­fect a large num­ber of the pris­on pop­u­la­tion. Ac­cord­ing to the non­profit group the Sen­ten­cing Pro­ject, there are ap­prox­im­ately 25,000 drug con­vic­tions in fed­er­al court each year, with 45 per­cent of these for low-level of­fenses.

The driv­ing forces be­hind these new ini­ti­at­ives are prob­ably a con­ver­gence of the fisc­al real­ity with the Obama ad­min­is­tra­tion’s eth­ic­al con­sid­er­a­tions.

Hold­er ac­know­ledged the mor­al im­bal­ances of a ju­di­cial sys­tem that par­tic­u­larly dis­en­fran­chises people of col­or. He brought up a re­cent re­port by the U.S. Sen­ten­cing Com­mis­sion, which found that a ra­cial gap has been widen­ing in pris­on sen­ten­cing: Sen­tences for black men were nearly 20 per­cent longer than those of white men who had com­mit­ted sim­il­ar crimes. Hold­er said this stat­ist­ic is not “just un­ac­cept­able, it is shame­ful. It is un­worthy of our coun­try, it is un­worthy of our great leg­al tra­di­tions.”

But what’s per­haps more telling is Hold­er’s state­ment that the United States is “coldly ef­fi­cient in our in­car­cer­a­tion ef­forts.” He ex­plained that while the U.S. pop­u­la­tion has in­creased by about 30 per­cent since 1980, the fed­er­al pris­on pop­u­la­tion has grown by al­most 800 per­cent.

In fact, a dif­fer­ent sort of cold ef­fi­ciency may be the driv­ing force be­hind the latest re­form at­tempts.

In an era of se­quest­ra­tion scares and budget cuts, the Justice De­part­ment has not es­caped un­scathed. Earli­er this year, when the se­quester was still a loom­ing threat in the dis­tance, the de­part­ment was faced with the pos­sib­il­ity of $1.6 bil­lion in cuts.

A quick look at the DOJ’s fisc­al 2013 over­view is also re­veal­ing: Its budget called for “over $1 bil­lion in ef­fi­cien­cies, off­sets, re­dir­ec­tions of grant pro­gram fund­ing and res­cis­sions.” The De­part­ment of Pris­ons was primed as the agency to suf­fer the second highest of these cuts, after the FBI, with a nearly $133 mil­lion re­duc­tion.

Could the ex­pan­sion of com­pas­sion­ate-re­lease guidelines be more than an at­tempt to pass on the med­ic­al bills ac­crued by eld­erly in­mates? Ac­cord­ing to an Amer­ic­an Civil Liber­ties Uni­on re­port re­leased last year, ap­prox­im­ately 13.5 per­cent of fed­er­al pris­on­ers are age 50 or older.

But Hold­er’s eco­nom­ic ar­gu­ment was just as likely to res­on­ate with liber­tari­an-lean­ing Re­pub­lic­ans such as Sen. Rand Paul of Ken­tucky. The at­tor­ney gen­er­al poin­ted to le­gis­la­tion “aimed at giv­ing judges more dis­cre­tion in ap­ply­ing man­dat­ory min­im­ums to cer­tain drug of­fend­ers,” which he said “will ul­ti­mately save our coun­try bil­lions of dol­lars.” Paul said in a state­ment re­leased after Hold­er’s speech:

“I am en­cour­aged that the Pres­id­ent and At­tor­ney Gen­er­al agree with me that man­dat­ory min­im­um sen­tences for non-vi­ol­ent of­fend­ers pro­mote in­justice and do not serve pub­lic safety.”

There is an in­creas­ingly strong case for Paul’s per­spect­ive. Ac­cord­ing to The New York Times, nu­mer­ous states have tested pro­grams to re­duce their pris­ons’ non­vi­ol­ent drug of­fend­er pop­u­la­tions. Some, in­clud­ing those with more-con­ser­vat­ive gov­ern­ments like Texas and Arkan­sas, have ac­know­ledged that driv­ing down costs has been a ma­jor mo­tiv­at­ing factor. In his speech, Hold­er cited Ken­tucky’s latest at­tempts to lower re­cidiv­ism, res­ult­ing in a pris­on pop­u­la­tion re­duced by more than 3,000 over the next 10 years and sav­ing more than $400 mil­lion.

He con­cluded:

“We must nev­er stop be­ing tough on crime, but we must also be smart and ef­fi­cient when bat­tling crime and the con­di­tions and the in­di­vidu­al choices that breed it. Ul­ti­mately, this is about a lot more than fair­ness … it makes plain eco­nom­ic sense.”

Lib­er­al crit­ics of the Obama ad­min­is­tra­tion are tout­ing this as a step in the right dir­ec­tion. In a blog post by the dir­ect­or of their Wash­ing­ton le­gis­lat­ive of­fice, the ACLU wrote that “this is a big deal.” They noted:

“This is the first ma­jor ad­dress from the Obama ad­min­is­tra­tion call­ing for ac­tion to end the mass in­car­cer­a­tion crisis and re­duce the ra­cial dis­par­it­ies that plague our crim­in­al justice sys­tem.”

It’s a win-win for the Justice De­part­ment and, by ex­ten­sion, Pres­id­ent Obama. Pris­on-re­form mo­tiv­a­tion comes from sev­er­al things. Mor­als? Sure. Money-sav­ing? Def­in­itely.

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