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August 20, 2019

Senator Elizabeth Warren releases her plan for "comprehensive criminal justice reform"

Via this lengthy new Medium post, Senator Elizabeth Warren has joined the ranks of a number prominent candidates for the 2020 Democratic Presidential nomination, in particular Joe BidenCory Booker, Pete Buttigeig and Bernie Sanders, in releasing a details agenda for criminal justice reform.  As is always the case, the full discussion merits a full read, and in this space I can only flag a few notable sentencing elements (with lots of links to be found in the original):

The United States makes up 5% of the world’s population, but nearly 20% of the world’s prison population. We have the highest rate of incarceration in the world, with over 2 million people in prison and jail.

Our system is the result of the dozens of choices we’ve made — choices that together stack the deck against the poor and the disadvantaged.  Simply put, we have criminalized too many things. We send too many people to jail. We keep them there for too long.  We do little to rehabilitate them. We spend billions, propping up an entire industry that profits from mass incarceration. And we do all of this despite little evidence that our harshly punitive system makes our communities safer — and knowing that a majority of people currently in prison will eventually return to our communities and our neighborhoods.

To make matters worse, the evidence is clear that there are structural race problems in this system. Latinx adults are three times more likely to be incarcerated than whites. For the exact same crimes, Black Americans are more likely than whites to be arrested, charged, wrongfully convicted, and given harsher sentences. One in ten Black children has an incarcerated parent....

Address the legacy of the War on Drugs. For four decades, we’ve subscribed to a “War on Drugs” theory of crime, which has criminalized addiction, ripped apart families — and largely failed to curb drug use. This failure has been particularly harmful for communities of color, and we need a new approach. It starts with legalizing marijuana and erasing past convictions, and then eliminating the remaining disparity between crack and powder cocaine sentencing. And rather than incarcerating individuals with substance abuse disorders, we should expand options that divert them into programs that provide real treatment....

Prosecutorial and Judicial Reform. Our current criminal system is complex and places enormous power in the hands of the state. The government controls what leads to pursue, what charges are levied, whether a plea is offered, and how long someone spends behind bars. It has massive resources at its disposal, and enjoys few obligations to share information and limited oversight of its actions. All of this makes it challenging to ensure that the accused can go to trial, can get a fair trial, and can receive a just and reasonable sentence if convicted. To make matters worse, race permeates every aspect of the system — people of color are twice as likely to be charged with crimes that carry a mandatory minimum sentence. Reform requires a transparent system that emphasizes justice, that gives people a fighting chance — and truly treats everyone equally, regardless of color. Here’s how we can start.

Strengthen public defenders and expand access to counsel. The Sixth Amendment provides every American accused of a crime with the right to an attorney — but too many defendants cannot afford one, and too often, public defenders are under-resourced, overworked, and overwhelmed. If we expect fair adversarial trials, we need to balance resources on both sides of each case in every jurisdiction. I’ll fund federal public defenders and expand targeted grant funding for public defenders at the state level, to ensure that they have the tools to effectively defend their clients. I’ll also reopen and expand DOJ’s Office for Access to Justice, which worked with state and local governments to expand access to counsel. We should ensure that our public defenders are paid a fair salary for their work, and that their caseloads allow for the comprehensive defense of their clients. Finally, I’ll provide funding for language and cultural competency training, including on gender identity and treatment of individuals with disabilities, so that public defenders are best able to serve their clients....

Reforming Incarceration

The federal prison population has grown 650% since 1980, and costs have ballooned by 685%. This explosion has been driven in large part by rules requiring mandatory minimum sentences and other excessively long sentencing practices. These harsh sentencing practices are not only immoral, there’s little evidence that they are effective. As president I will fight change them.

Reduce mandatory minimums. The 1994 crime bill’s mandatory minimums and “truth-in-sentencing” provisions that require offenders to serve the vast majority of their sentences have not proven effective.  Congress should reduce or eliminate these provisions, giving judges more flexibility in sentencing decisions, with the goal of reducing incarceration to mid-1990s levels.  My administration will also reverse the Sessions memo that requires federal prosecutors to seek the most severe possible penalties, and allow federal prosecutors discretion to raise the charge standards for misdemeanors and seek shorter sentences for felony convictions...

End the death penalty. Studies show that capital punishment is often applied in a manner biased against people of color and those with a mental illness. I oppose the death penalty.  A Warren administration would reverse Attorney General Barr’s decision to move forward with federal executions, and Congress should abolish the death penalty.

Use the pardon and clemency powers broadly to right systemic injustices.  The president has significant powers to grant clemency and pardons, and historically presidents have used that power broadly. But today’s hierarchical process at DOJ results in relatively few and conservative clemency recommendations. I’ll remove the clemency process from DOJ, instead empowering a clemency board to make recommendations directly to the White House. I’ll direct the board to identify broad classes of potentially-deserving individuals for review, including those who would have benefited from retroactivity under the First Step Act, individuals who are jailed under outdated or discriminatory drug laws, or those serving mandatory minimums that should be abolished.

While I will leave it to others to assess this plan as a whole, I must initially express disappointment that plan calls only to "reduce mandatory minimums"  rather than eliminate them.  And, in context, it seems that Senator Warren is only focused on the 1994 Crime Bill mandatory minimums whereas a number of other ones are far more consequential and pernicious. 

Even more worrisome is Senator Warren setting a "goal of reducing incarceration to mid-1990s levels."  Incarceration levels were already crazy-high by the mid-1990s: as this BJS report notes, "prisons at yearend 1996 totaled 427 sentenced inmates per 100,000 residents -- up from 292 in 1990."  Meanwhile, at the end of 2017, as detailed in this BJS document, ten years of small reductions had us down to "440 sentenced prisoners per 100,000 U.S. residents."  In other words, our incarceration rates are already pretty close to "mid-1990s levels" and we might well be below those levels by the end of this year thanks in part to the FIRST STEP Act and its echoes.

A few of many prior recent related posts:

August 20, 2019 at 11:35 AM | Permalink


I disagree with the Senator's comments about truth in sentencing. Truth in sentencing should be a given in the criminal justice system. Judges, defense attorneys, prosecutors, defendants, and victims should know that a sentence that defendant will serve X years should mean that a defendant will serve something closely resembling X years. We should not be imposing fictional sentences that bear no rational relation to the actual time that a person will serve. My experience is that, when you impose fictional sentences, everybody tries to guess at the "real" sentence and impose the fictional sentence that limits the discretion of parole boards to depart from the real sentence. (In particular, under the old federal parole system, I saw a lot of sentences that appeared to consider parole guidelines and place the guideline range either near the parole eligibility or mandatory release date depending on the judge's desire as to how he wanted the parole commission to have discretion.)

The problem is not that the law in many states now mandate a particular relationship between the sentence and the time to be served. The problem is that legislatures refuse to adjust the sentencing ranges to accurately reflect the real sentences that the legislature wants. But even in the current reform era, politicians do not want to say that certain maximum sentences are too much. So they want to tinker with the system in other ways.

Posted by: tmm | Aug 20, 2019 3:00:12 PM

That about sums it up @tmm

Posted by: Daniel | Aug 20, 2019 6:11:17 PM

There were 826,000 total prison inmates in FY 1990 and 1,489,000 in FY 2017 so she is proposing to move 663,000 prison inmates to a county jail or community supervision. However, she is not telling us how that is to be accomplished and she is not telling us how we are to keep them from being returned to prison.

She should be given credit for not proposing to release violent prison inmates.

Posted by: John Neff | Aug 20, 2019 7:29:47 PM

John Neff: This document says Warren has the "goal of reducing incarceration to mid-1990s levels." Levels suggests to me a rate or incarceration, not an absolute number. Even if she means an absolute number, that number in 1996 was 1,182,169 according to BJS, so about 300,000 fewer prisoners than we have now.

Posted by: Doug B | Aug 21, 2019 9:26:58 AM

At the present time the total prison population is decreasing at about 17,000 per year. It may be possible to double that rate. However, it is not likely a decrease can be sustained. The historical record from 1840 to the present shows that there were brief intervals of prison population decrease during the Civil War, WW I, WW II and the Vietnam War. Other intervals of decrease were at low rates and short duration.

The historical record also shows that empty prison beds are promptly filled because there is no central control.

Posted by: John Neff | Aug 21, 2019 11:23:04 AM

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