Sentencing Reform: Real Change Or Placebo?

Do you remember Willy Horton. the parolee who almost singlehandedly torpedoed the 1988 presidential candidacy of former Massachusetts government Michael Dukakis? (That and Dukakis’s ride in an M-1 Abrams tank while wearing an oversized army helmet and dopey grin.)

Horton was an African-American man serving a life sentence for murder. He was given a weekend furlough thanks to a government rehabilitation program, but never returned.  Ten months later, Horton was arrested for new crimes — armed robbery, rape, assault.  He became the poster child for how soft the Democrats were on crime and why prison reform was unworkable.

The incident caused all sorts of prison programs — education, drug rehab, even basketball — to be curtailed or defunded.  People were sentenced to longer sentences with little thought on how such incarceration would impact their children or the communities from which the inmates came.

Now, 30 years later, the pendulum swings in the opposite direction. Rather than the put-’em-in-jail-and-throwaway-the-key 80s, we’ve reached a new, more enlightened age.  Research organizations like the VERA Institute of Social Justice have documented what now seems obvious — prison makes no one better.  It costs more to incarcerate people than to educate them.  To stop recidivism, inmates need work training, drug rehabilitation, and transitional mental health services.  Instead of “tough on crime,” it’s time for “smart on crime.”  People from all ranges of the political spectrum agree that mass incarceration has cut a swath into the landscape of whole communities, mostly communities of color, and has created a residual negative impact on generations to follow.

A bipartisan group of senators last week pushed forward a bill that mandates much-needed prison reform and that, it appears, the president will sign.  But is it too little, too late?

The bill proposes cutting prison sentences, making changes in crack sentencing retroactive and reducing the three-strikes penalty from automatic life sentences to 25-year sentences.  But these changes, while good, are a small step and only apply to federal prisoners, not the hundreds of thousands in state prisons throughout the U.S.

Statistics reveal that federal prisoners make up only 10 percent of the national prison population.  The other 90 percent are in state prisons that, for the most part, are slow is getting on board the prison-reform train.

The three-strikes-and-you’re-out rule still exists in 28 states.  In most of those, if a defendant has two prior violent felonies, he’s mandated to life in prison if convicted of a third.  But the law is too broad.  Even people with two prior violent felonies are rarely so dangerous or so irredeemable that they must be caged for the rest of their lives.

In my history of representing literally thousands of defendants for crimes including murder, rape, carjacking, terrorism, and robbery, I would say only one was so far gone, tortured by mental illness, a history of abuse, low cognitive function and anger, that even I would have recommended parole not let him out.  All the others were men (and some women) who came from poor backgrounds, bad schools, and broken families. They were victims of drug abuse or mental illness, who once they “caught” their first felony, could never stop digging that hole.    They were not per se dangerous, they just couldn’t get work.  Once a felon, always a felon.

While prison reform, no matter how minor, is an important first step, what’s also needed is the following:

• State, not just federal, prison reform. Most people in jail are in state prisons, not federal.
• A way for ex-felons to clear their records so that a felony conviction won’t impose a life-long impediment to reintegration to society.
• Jail programs that teach skills like plumbing, carpentry, or car mechanics, to name a few. Also, university classes in subjects like business, economics, philosophy, math, literature, etc., not only to give prisoners something useful to do, but to open their minds to new possibilities when they are released.
• A curtailment of the power of the prosecution. Just because a guy is accused of his third violent felony doesn’t mean he needs to be jailed for life.  Only prosecutors have the discretion to determine how to indict an accused and whether compassion should play a role.  Many prosecutors, right out of law school with little world experience or shared background with defendants, have no context for the people they’re incarcerating.  This leads to coldness and an insensitivity to over-indicting and over-sentencing.
• While much reform has been focused on “de-carcerating” non-violent criminals, it’s time to start discussing how much punishment is fair even for those who commit violent crimes. First, not all violent crime is equal. Burglarizing an empty apartment is considered just as violent as knocking down a granny and taking her wallet.  The damage is a lot different. When is 15 years too much, and five more appropriate?

Although the U.S. is not the most populous nation in the world, we are home to 30 percent of the world’s prisoners.  That’s an embarrassment, not a cause for pride.  As crime rates drop, prison numbers haven’t. Why not?

Building, maintaining and staffing prisons has become big business – profitable for some, but cruel and counterproductive for most.   The bill proposed by the bipartisan committee is a step in the right direction — a beginning.   Maybe, like the #MeToo movement, it will start a wave of discussion among legislators in states as well as the federal government to implement policies that are smart on crime and not just tough on it.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.