President Barack Obama recently granted clemency to nearly 100 men and women serving time in federal prisons nationwide, news delivered exactly a week before Christmas.
The Commander-in-Chief penned letters to 95 individuals receiving commutations and two getting pardons that were made official on Dec.18, noting: "I believe in your ability to prove the doubters wrong, and change your life for the better."
While one can only imagine that the promise of freedom was a holiday gift, beyond the symbolism, the presidential action wraps a year in which there's been renewed emphasis on criminal justice reform.
One Washington, D.C. advocate described it as "a new day, a new era."
"A new narrative is being written. It's historic," said attorney Nkechi Taifa, senior policy analyst for civil and criminal justice reform at the Open Society Foundations, founded by billionaire philanthropist George Soros. "There's momentum now, after many years in which those of us pushing for reform were on the fringes."
The groundswell around this issue has been building. In 2010, the president signed into law the Fair Sentencing Act, which reduced the sentencing disparities between crack and powder cocaine offenses. Other actions by the administration included creation of a task force on 21st Century policing and via the office of then-Attorney General Eric Holder, launching the Smart on Crime initiative, which continues under his successor, Loretta Lynch.
President Obama’s recent commutations are part of a "strong commitment to ensuring fairness in the criminal justice system," said Deputy Attorney General, Sally Quillian Yates in a statement released by the Justice Department.
The agency has "pursued that goal by changing charging policies through our Smart on Crime initiative, working cooperatively with the U.S. Sentencing Commission to reduce guidelines for certain drug offenders," she said, "urging Congress to enact meaningful and comprehensive sentencing reform legislation and identifying appropriate candidates for executive clemency."
That’s not to say there hasn’t been criticism of the clemency initiative. Critics have alleged that the bureaucratic process in which the Justice Department reviews petitions could be more transparent, efficient, etc.
"Over the last six months, there have been a handful of complaints voiced in the news and social media, by prison reform organizations and activists," says Jeffrey Ian Ross, Ph.D., a nationally known criminologist. "It has to do with the numbers of inmates that have been released [which] pales in comparison to how many were promised or thought to be," eligible for release.
“The president can’t undo all of the damage caused by more than thirty years of counterproductive mandatory minimum sentencing laws.”
Shifting attitudes about reform arrive after some three decades of draconian drug laws, when crack cocaine arrests in the 1980s dominated the headlines and TV news.
Being viewed by the public as "tough on crime" was the norm for many politicians, especially around election time, giving rise to an era of mandatory minimum sentences.
In the bestselling book, `The New Jim Crow: Mass Incarceration in the Age of Colorblindness,' legal scholar Michelle Alexander writes of "… a stunningly comprehensive and well disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow," which oppressed Blacks in the South for generations.
Today, the results speak for themselves: some 2.2 million people in America are incarcerated, up from half a million in 1980. The U.S. has the dubious distinction of being home to five percent of the world’s population, but 25 percent of its prisoners.
Moreover, African-Americans remain disproportionately affected.
Approximately one in every 35 Black men is behind bars, while the population of Black female inmates has risen. Moreover, about one in nine African-American children have a parent in prison.
Reading the list of people that president Obama commuted—most of whom were serving lengthy sentences for non-violent drug offenses— there are fathers, mothers, grandparents, from all across the country, individuals who were once members of a community.
“American presidents have had the power to show mercy since the founding of our Republic. President Obama is the first president in decades to use it as the founders intended,” said Julie Stewart, founder/president of Families Against Mandatory Minimums, which posted a response to the commutations on its website.
“For that reason, we commend him for showing more mercy than his predecessors. But his work is not done…. far too many others are still serving excessively long sentences that should be commuted as well.”
Stewart's post added, "The large number of commutations should also serve as a reminder to Congress that the responsibility for correcting disproportionately long sentences for nonviolent drug offenders ultimately lies with legislators, not the president.
“The president can’t undo all of the damage caused by more than thirty years of counterproductive mandatory minimum sentencing laws. And on his own he can’t prevent future offenders from being exposed to disproportionate sentences that do nothing to improve public safety. Only Congress can correct our broken sentencing laws. We hope the president’s action. …spurs Congress to move forward with meaningful sentencing reform.”
On Capitol Hill, it appears that many Democrats and Republicans finally agree that the current criminal justice model isn't working.
When Congress returns in 2016, insiders believe a rare opportunity will exist for lawmakers to pass smart legislation around the critical issue of reform, despite decades of stalled efforts.
While hundreds of criminal justice-themed bills are introduced each session, one that is getting serious consideration in the Senate is the Sentencing Reform and Corrections Act of 2015.
Among other provisions, the measure would reduce mandatory sentences for non-violent offenses and make them retroactive, and allow federal inmates to earn time credits for completing prison rehab programs.
"Senator Chuck Grassley, a very conservative Republican from Iowa was the lead sponsor as head of Judiciary committee and a bi-partisan coalition introduced it," says Taifa, who noted that Grassley previously was a staunch opponent of mandatory minimum reform. "We're not only seeing the Obama administration behind this, but huge bi-partisan support."
The Senate Judiciary Committee approved the legislation in October; the House is working on its own version of the bill.
"But it's not a slam dunk," Taifa added, explaining that the bill has detractors, including some law enforcement groups.
There's also the matter of the president's "lame duck" status, says Ross, the criminologist. "Congress knows that president Obama will be out of power in 12 months time and the nation is more focused on other issues, like ISIS, police use of excessive force, and the upcoming election."
That said, Taifa noted that through her lobbying work on The Hill, she has met numerous policy influencers, some who have personal or family experience with prison. That insight can lead to a change of heart on the issue of reform. "They are looking at the humanity of this situation, and believe it's an injustice."
Beyond the human toll, supporters of reform say the industrial prison complex is costing the country's taxpayers plenty. When President Obama spoke at the NAACP annual convention in Philadelphia last summer, he stressed "There are some folks who need to be in jail. … We hold out the hope for redemption, but they’ve done some bad things."
Still, he lamented that every year, "we spend $80 billion to keep folks incarcerated — $80 billion," POTUS told the audience. "Now, just to put that in perspective, for $80 billion, we could have universal preschool for every three-year-old and four-year-old in America…. For $80 billion, we could double the salary of every high school teacher in America. For $80 billion, we could finance new roads and new bridges and new airports, job training programs, research and development."
The reform movement has various voices and supporters, ranging from The Sentencing Project and ACLU, to the NAACP Legal Defense Fund and The Leadership Conference on Civil and Human Rights, and the American Bar Association, among others.
On the Hill, those in favor of reform include a racially and politically diverse cross-section of representatives, including members of the Congressional Black Caucus, to at least one Tea Party-er.
Congressman Elijah Cummings of Maryland says the country must also look at ways to remove barriers to successful community re-entry, once someone pays their debt to society.
According to a 2014 report from the Vera Institute of Justice, “Research shows that recidivism is reduced and communities are made safer not by rendering the millions of people with criminal records second class citizens, but by supporting their transition and reintegration into the community.”
“All too often, a criminal record is like a life sentence,” Cummings said via a press spokesperson. “For formerly-incarcerated individuals trying to rebuild their lives, a criminal record can be a barrier to accessing employment, housing, professional licensure, transportation, and the ballot box.”
Cummings, an attorney, is the lead House sponsor of the bipartisan, bicameral Fair Chance Act, which would bring fair chance hiring policies to the federal government by preventing agencies and prime federal contractors from asking about applicants’ criminal histories until the end of the hiring process.
He is also an original cosponsor of the Second Chance Reauthorization Act, which provides grants to organizations doing reentry work in their communities; the Democracy Restoration Act, which would prohibit states from taking away federal voting rights due to criminal histories; and the REDEEM Act, which would provide a process for the sealing or expungement of some criminal records and loosen restrictions on benefits for ex-drug offenders.
The congressman recently sent a letter to Maryland Governor Larry Hogan whose administration has formed a working group to review the types of legal barriers that the formerly-incarcerated face when trying to reenter society. Across America, being barred from voting, barriers to finding a job, or obtaining student loans can be some of the consequences for ex-offenders.
Cummings urged the governor and those charged with examining the issue to do a thorough analysis. “I encourage the group to leave no stone unturned in determining where and how these policies can be safely modified so that those with criminal records can fully contribute to their communities. Maryland can no longer afford to tolerate unnecessary obstacles for so many of its citizens seeking to move beyond their pasts.”
Neither can the rest of the country, say reformers.
"What are our standards of decency? Why does the U.S. have the largest incarceration rate in the world? Do we just not care," asks Taifa, who noted that housing, education and employment policies were also part of the criminal justice equation. "These are very real people, human beings. We have to look at systemic change."
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