A Time for Optimism About Federal Reform?

Marc Mauer is the executive director of The Sentencing Project, a national organization working for a fair and effective criminal justice system by promoting reforms in sentencing law and practice and alternatives to incarceration. Marc is one of the country’s leading experts on sentencing policy, race and the criminal justice system. He has directed programs on criminal justice policy reform for 30 years and is the author of some of the most widely cited reports and publications in the field. He talked with Justice Matters’ Editor Denise Welch about federal sentencing and criminal justice policy reform.

Justice Matters (JM): Are you feeling optimistic about a changing tide in regard to federal sentencing and criminal justice policy?

Marc Mauer (MM): In general, we’re cautiously optimistic about the prospects for reform. I think some of this predates the current administration; for example, the movement toward re-entry over the last ten years has very much been a bipartisan effort. The focus on evidence-based corrections has also been bipartisan and indicates a more rational approach to looking at criminal policy. So, many things have been in motion in a way that is counter to what we’ve seen for the last 20 years or so.

On top of that, I think the new administration has been very supportive of taking a fresh look at much of the approach to federal sentencing and corrections. Attorney General Holder has made several high profile speeches talking about the need to get “smart on crime.” The head of the criminal division at Department of Justice has testified in Congress on crack cocaine and has been very unequivocal that the crack cocaine disparity should be completely eliminated and that they would like to see that happen this year.

The attorney general has also established a task force to examine federal sentencing and corrections and it looks like it will be a fairly comprehensive review. They have invited commentary by a broad range of people, including The Sentencing Project, prosecutors, civil-rights advocates, and many others. It’s been a very open process, which is very encouraging.

While this is all encouraging news, at the same time, in the realm of criminal justice policy, it is important to get bipartisan support for any reforms because policymakers need a comfort level so that they feel that they’re not going to be out there on their own on what they think may be viewed as controversial. We can’t assume that either political party will be the one to step out and take the lead on any new initiative; it still requires a very sustained effort to make anything happen.

JM: Is this because criminal justice issues don’t seem as important to as many people as, say, health care reform? They are something many people don’t think much about until they have a personal encounter in some way with the system.

MM: That’s exactly right. The health care debate has done two things: One, it’s taken up an enormous amount of time, and so it just means there are fewer issues that get the priority that they need; secondly, it has caused the climate on Capitol Hill to become more divisive. As a result, this makes it more difficult to get bipartisan support for any kind of measure.

For example, earlier this year, there were greater prospects for bipartisan legislation on crack cocaine sentencing reform, but when the bill was introduced in the Senate all ten co-sponsors were Democrats. I think there are some ongoing discussions and negotiations between Democrats and Republicans, so it’s conceivable that bipartisanship can still happen…

Bipartisanship is critical. I think that it’s not necessarily true that Democrats in general are more likely to be more liberal on criminal justice policy. It is often true, and I don’t want to take anything away from people like Senator Durbin or Congressman Conyers who show strong leadership; but for many mainstream Democrats, there’s still this fear out there about being viewed as “soft on crime.”

JM: You mentioned the bill that would end the crack cocaine sentencing disparity. Do you think the bill will pass this year?

MM: There’s more momentum on the issue of crack cocaine than we’ve seen in the 23 years since the laws were enacted. There’s very broad support for reform around the country; you see newspaper editorials around the country supporting it. There have been hearings in both the Senate and House this year on the issue. A bill has been passed by the House Judiciary Committee already, so there’s no question the level of attention is at its highest ever and it’s very much moving along. Whether something happens this year or next year, it’s very difficult to predict, but it’s clearly an issue whose time has come, according to many people.

There’s definitely a shift toward a search for fairness in sentencing, but also a search for policies that actually will improve public safety rather than just sounding tough, but are not effective.

JM: So it’s becoming clear that “tough on crime” policies have not increased public safety?

MM: Right. There’s a clear understanding that many people in prison for drug offenses are held too long and inappropriately. A shift in drug policy could produce much better results. The new drug czar, Gil Kerlikowske, the former Seattle police chief, said very early after taking office that he’s not going to promote a “war on drugs” anymore, that we should not declare war on our own people. He said that we have a problem with substance abuse and that’s what we need to address. That’s a strong statement.

JM: Earlier this year, Senator Jim Webb introduced legislation to create a commission to look at every aspect of our criminal justice system. Is that bill moving and will it be significant?

MM: It certainly has a lot of potential. There are more than 30 Senate co-sponsors, including Democrats and Republicans. Senator Webb views it as a very important initiative and is spending a lot of his time promoting it, and it has generated enormous enthusiasm around the country. I’m hearing from all sorts of activist groups and others that they view this as an opportunity to raise the profile on these issues; that if a national commission with real stature can be set up, it might help to change the dialog that we have around these issues. So, even though the commission would only issue a report, I think the very process of having it set up and functioning can help to promote that dialog; as did Senator Webb’s article on the cover of Parade magazine which was published the week that he introduced his legislation (Justice Matters, Spring 2009). So even without the bill in place, it’s already helping to generate some of that discussion.

At the same time, we need to be realistic. Plenty of commission reports on many issues over the years have hardly influenced policy. Even if the bill were passed and funded, it’s a minimum of two years before we’d see any final product. So I think it’s important that it also needs to be done in tandem with support for ongoing reform efforts in Congress.

JM: Are there other reform efforts that we should be watching or can be optimistic about?

MM: There’s other legislation that’s been introduced that’s not going to pass this year but is trying to raise some relevant issues. For one, there’s the “Democracy Restoration Act,” which addresses voting rights for people with felony convictions. It essentially would make it so that anyone with a felony conviction who is not incarcerated could vote in a federal election. Right now, for example, if you live in West Virginia and you have a felony conviction but you’re not in prison, you can vote. But if you live in Virginia, you can’t vote. Essentially the bill says we should all play by the same rules for federal elections. Senator Feingold in the Senate and Congressman Conyers in the House have introduced this legislation.

In the juvenile justice area, the “Youth Promise Act” that Representative Bobby Scott has introduced has about 230 co-sponsors. It’s a very broad bill that would address youth crime from a focus of prevention and treatment rather than increasing punishments. It’s very ambitious, it has a big price tag attached to it, but it’s basically promoting a very different approach to how we address juvenile justice issues.

The main area to watch is the attorney general’s review of federal sentencing and similar initiatives. Questions such as what their approach to drug policy will look like; how active federal prosecutors will be in going after those cases; what their charging decisions will look like; what funding recommendations the administration will make at the federal level; and how that funding will be divided between prevention efforts and law enforcement efforts. I think all of those decisions, which are not necessarily about legislation, could have significant impact on what kinds of cases come into federal court and prison, and what the overall priorities are. We’ll know more about that by the end of the year.

JM: What is your vision of what could (or should) happen in the next five years?

MM: I think what we want to do is shift the conversation about these issues. We ultimately want to get to the point where when we talk about public safety we don’t only think about the criminal justice system, that we have a much broader approach that puts an emphasis on strengthening families and communities and providing the resources that they need to deal with problems in a more holistic way. We’d like more people talking about the concept of justice reinvestment. We are spending enormous amounts of money on criminal justice in low-income communities, but most of that is going towards incarcerating people. If we shift resources so that we invest in those communities in more constructive ways, in more proactive ways, we could reduce reliance on incarceration by investing more in front end approaches, like education and family support for children, giving people options in life.

I think if we can shift the conversation in that direction, then we move towards a much more comprehensive approach – it’s a more effective approach and a more compassionate one, too.

You can learn more about The Sentencing Project at their website: www.sentencingproject.org.

This article originally appeared in the Fall 2009 issue of Justice Matters.