Obama and mass incarceration: How much power does the federal government have to solve this problem?

Obama Wants to End Mass Incarceration. But Does He Have the Power to Make a Difference?

Obama Wants to End Mass Incarceration. But Does He Have the Power to Make a Difference?

Murder, theft, and other wickedness.
July 15 2015 6:34 PM

Obama Wants to End Mass Incarceration

Can he?

US President Barack Obama
President Barack Obama delivers a speech regarding unfairness in the criminal justice system during the NAACP’s National Convention in Philadelphia on July 14, 2015.

Photo by Saul Loeb/AFP/Getty Images

It’s criminal justice reform week at the Obama White House. On Tuesday, the president gave a major speech outlining the moral and economic case for shrinking the prison population, rehabilitating inmates instead of merely locking them up, and

Leon Neyfakh Leon Neyfakh

Leon Neyfakh is a Slate staff writer.

addressing the disproportionate impact of policing and criminal prosecution on poor black communities. Earlier in the week, Obama ordered 46 nonviolent drug offenders to be freed from federal prison, saying that the long sentences they were given at the height of the war on drugs did not fit their crimes. On Thursday, Obama will become the first sitting president to visit a federal prison, when he makes a trip to Oklahoma to meet with inmates and talk about the squalid conditions in which they live.

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Meanwhile, Congress has been holding hearings on criminal justice reform, with the House Committee on Oversight and Government Reform hosting a parade of legislators—including Senate Democrat Cory Booker and House Republican Jim Sensenbrenner—who have put forth bills of varying ambition that would change the way the federal government punishes large categories of offenders. Predictions that Congress will pass some kind of legislation before the end of the current session are growing louder and more assured.

Taken together, it looks like momentum. And it undoubtedly is. But the political progress belies a troubling, substantive fact: The federal prison system, which is what all these national lawmakers are talking about when they talk about reform, is relatively small, and fixing it would not have any direct effect on the state and local systems in which the vast majority of American inmates are incarcerated. As Obama underscored in yesterday’s speech, there are more than 2.2 million people currently behind bars in the United States, including about 700,000 in local jails. According to the latest numbers from the Bureau of Justice Statistics, just 215,866 of them are serving in federal prison.

Obviously, that’s a lot of people whose lives stand to improve if the reform efforts in Washington succeed. But it would be a mistake to interpret the passage of even the most far-reaching federal legislation currently on the table—that would be Sensenbrenner and Virginia Congressman Bobby Scott’s SAFE Justice Act, introduced in June—as a decisive victory in the effort to end mass incarceration.     

“If you were to release every federal prisoner today, that still would leave about 1.3 million people in prison,” said John Pfaff, a professor at Fordham University School of Law and a skeptic of mainstream reform efforts. “We’d still have the highest number of people in prison in the world, and we’d still have the highest incarceration rate.”

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Making more than a dent in those numbers will require the continued enthusiasm of the states, which have so far been leading the way on justice reform: in 2014 alone, 16 states passed legislation addressing sentencing policy, three states revised probation and parole policies, and 14 states took steps to reduce the collateral consequences associated with incarceration. Despite these efforts, the overall state prison population has gone down only slightly since peaking at 1.4 million in 2009. (In 2013, the state prison population actually went up by 4,300.) Cities and counties, meanwhile, incarcerate three times as many people in local jails today as they did in 1980.

So what is the federal government’s role in ending mass incarceration, exactly, given that it only has jurisdiction over about 10 percent of the nation’s prisoners? To find out, I called a number of experts and asked them whether all the excitement we’re seeing around reform at the national level is warranted. They told me that while it’s true federal legislation would only directly affect a relatively small number of prisoners, there is nevertheless significant value, both real and symbolic, in Congress and the president joining forces on this issue.

“What happens in Washington further catalyzes state action, and sort of reifies the commitment for reform on the state level,” said Nicholas Turner, president of the Vera Institute of Justice. “It makes it safe for states that haven’t yet engaged in reform to go in the water, and for states that have to do even more.” He added, “It sends a signal that this is a national movement, and I think that gives cover to state actors who will venture further than they otherwise would.”

But the federal government’s more tangible power to influence state-level policy is through funding: Just as the 1994 Violent Crime Control Act created financial incentives for states to adopt harsh “truth in sentencing” laws that would keep criminals locked up longer, so could a reform effort in 2015 theoretically make it advantageous for states to take more of a “smart on crime” approach—for instance, by providing federal funding to states that ease their mandatory minimum laws, or pass legislation that would divert drug offenders into treatment programs.

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According to the people I spoke to, none of the bills working their way through Washington at the moment include funding provisions comparable to the “truth in sentencing” incentives that were baked into the 1994 law. But the federal government can and does use money as a carrot on this issue through non-legislative means: The Justice Department, for instance, provides grants to states that adopt policies that the Obama administration supports, through programs like the Justice Reinvestment Initiative.

“Over the years the Department of Justice has given literally billions of dollars to the states; all 50 states take money to help fund their criminal justice system every single year,” said Joseph Margulies, a professor at Cornell Law School. “There could be different conditions placed on that money. … That’s the 800-pound gorilla. It has the potential to dwarf the sentencing reforms that have gone on at the state level.”

There is one possible downside to the criminal justice reform ideas being discussed at the federal level, and it has to do with the lowering of expectations. All the legislation on the table right now in Washington is designed to benefit so-called nonviolent offenders—mainly people who have been arrested on drug crimes. There are many of those people in the federal prison system: According to statistics for 2013, just over half of federal prisoners are serving time for drug crimes.

The picture is very different in state prisons, in which 54 percent of inmates around the country have been convicted of violent crimes—including rape, armed robbery, and murder—and just 16 percent are drug offenders. Even if a lot of states do follow the federal government’s lead and pass laws that take a more lenient view of nonviolent drug offenders—while shying away from rethinking how the system treats violent criminals—the country will only ever achieve a modest reduction in the overall prison population.

If the federal government wants to set an ambitious decarceration agenda, it will need to do more than shorten sentences for drug offenders. It’s not clear, though, that the president has the stomach for that. In his speech on Tuesday, Obama stated that “nonviolent drug offenders” are the “the real reason our prison population is so high,” and suggested that finding a less punitive approach to dealing with those individuals will be key to ending mass incarceration. That’s simply not true—and the more often Obama and the people around him say it, the more circumscribed the debate over who should be in America’s prisons might become. As Margulies put it, there’s reason to fear that “if the federal government sets the bar only this high, no one will go higher.” At a moment when the American public really does seem ready to embrace a more intelligent and humane approach to crime, that would be a lost opportunity.