National Blue-Ribbon Commission May Encourage Criminal Justice Reform

In the last few decades, America's criminal justice system has relied more and more on incarceration as a response to crime. The United States has five percent of the world's population, but has nearly a quarter of the world's reported prisoners. Over 2.3 million people are in jail or prison, and another 5 million are on parole, probation or other community sanctions. This means that about 1 in every 31 American adults is under some form of correctional supervision—by far the highest rate in the world.

All of this incarceration comes at great cost. The total of local, state, and federal spending on corrections is around $68 billion per year, which creates a heavy burden for taxpayers. The lives of the people who are sent to prison are also profoundly affected. Many of them are nonviolent offenders convicted of drug possession. Others, perhaps as many as 16 percent of the national inmate total, are mentally ill. Prison facilities are often overcrowded and dangerous, and the prospects offenders face upon release are daunting because our society allocates so few resources for re-entry programs.

The ill-focused drug war takes resources away from fighting gangs, and also undermines the integrity of the justice system because it contributes to racial disparity. A well-known example is the harsher response to crack cocaine offenders, who tend to be African American, compared to powder offenders, who tend to be white. This disparity implicates the overall fairness of the system.

Goals of the Proposed Reform Commission

Led by Sen. Jim Webb of Virginia, the Senate Judiciary Committee has passed out of committee a bill that would create a blue-ribbon commission to study the justice system from top to bottom and propose much-needed reforms. The commission would be tasked with finding ways to reduce the overall incarceration rate while promoting public safety, cost-effectiveness, and fairness. Specifically, these goals would include:

  • Decreasing prison violence
  • Improving prison administration
  • Establishing a system for reintegrating ex-offenders into society
  • Restructuring the approach to illicit drugs
  • Improving treatment of mental illness
  • Creating a strategy for dealing with gangs and cartels, particularly those involved in drug smuggling and distribution

As part of its goal of proposing a comprehensive set of solutions that would reduce the overall incarceration rate, the commission would surely examine alternatives to incarceration such as electronic monitoring, day reporting centers, work release, drug treatment, drug courts, and so on. None of these is especially new; the challenge is to integrate alternatives into a meaningful set of reforms that would reduce reliance on incarceration.

Drug Crimes

Addressing America's drug policies is a major challenge. In the last 25 years, with the "war on drugs," the percentage of drug offenders in the inmate population has gone from 10 percent to approximately a third. About half of the overall prison population increase is attributable to the increase in this percentage.

Another aspect of the drug policy issue is racial, with African Americans being prosecuted and imprisoned far more often for drug offenses than whites. In particular, President Obama and Attorney General Holder have called for equalization of federal sentences for crack and powder cocaine, as has the U.S. Sentencing Commission. Similar disparities play out on the state level, as well.

There is also the matter of unreasonably long sentences for possession of very small quantities of drugs. Many such sentences are mandatory minimum sentences, which do not allow the sentencing judge any discretion.

Sex Crimes

Any meaningful attempt at criminal justice reform must also address the penalties levied against those convicted of sex crimes, such as possession or distribution of child pornography. Over the past 30 years, Congress has created new offenses, enacted new mandatory minimum sentences, increased statutory maximums, and provided directives to the U.S. Sentencing Commission, consistently indicating the intent to punish these activities severely.

With time, though, these punishments have arguably outpaced the severity of crimes. Federal judges across the country have expressed concerns that the current sentencing structure for possessing and viewing child pornography is too severe. These penalties come at a cost, for both the individual facing punishment and the taxpaying public.

The U.S. Sentencing Commission is currently reviewing the child pornography guidelines, and perhaps reform in this arena will come before the proposed Blue Ribbon Commission can take effect. However, regardless of how it may ultimately arrive, it is clear that this is an area desperately in need of reform.

Next Steps in the Reform Effort

The Senate Judiciary Committee's passage of the reform commission bill is only the first step in a long and still very uncertain process. There are several more steps required to fully launch the process. First, the Senate leadership will need to bring the bill to a vote of the full Senate. Second, the House will need to take up a companion bill. And if there are any differences between the two bills, those will need to be reconciled. None of these steps is by any means assured. In fact, as the health reform effort has shown, achieving consensus on overhaul of a complex system is a very hard thing to do.

Even if Congress creates the blue-ribbon commission, one must be cautious in expecting real reform to emerge from it. After all, the U.S. Sentencing Commission already exists and has broad expertise. Yet Congress has repeatedly refused to pass its recommendation to eliminate the sentencing disparity between crack and powder cocaine. Another complication is that each state would be free to ignore whatever reforms the commission proposes.

Still, it may be that the sheer financial pressure of the long recession will drive reform, and this has already begun to happen in numerous states. The Pew Center on the States and other reform-minded organizations are actively promoting these efforts. It is entirely conceivable that the U.S. has reached a tipping point at which prison will again be used more judiciously, with a focus on violent offenders.

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