Obama’s Continuing Plot to Empty Prisons

The Obama administration’s decision last week to phase out the use of private prisons will not have an earth-shaking impact.

It does not apply to immigration detention facilities, and private facilities hold about 11 percent of the federal prison population. But critics of Obama’s criminal justice reform proposals warned the move to reduce prison space is just the first step in a broader effort to creature pressure to further shrink the prison population.

“The whole movement is premised on a lot of myths. Frankly, there isn’t any need for reform.”

“The question is where they’re [the inmates held in private prisons] going to go,” said William Otis, a former federal prosecutor who served in both Bush administrations. “The answer is the Obama administration is likely to … use it as leverage for additional early releases.”

The move follows a number of steps Obama has taken to cull the prison population. Former Attorney General Eric Holder in 2013 announced a number of changes to policies guiding federal prosecutors, including bringing fewer charges that would trigger mandatory-minimum punishments and refraining from automatically seeking enhanced sentences based on a defendant’s criminal record. The U.S. Sentencing Commission has also changed guidelines for some drug offenses — and made them retroactive, leading to the early release of thousands of prisoners.

And Obama just this month commuted the sentences of 214 prisoners, a record number for a single day.

Meanwhile, momentum is building in Congress for a bipartisan criminal justice reform bill that would shorten sentences for a host of offenses.

“It’s definitely part of a larger agenda,” said Rick Manning, president of Americans for Limited Government. “It plays into the notion that the criminal justice system itself is unfair based on racial boundaries.”

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With many Republicans and conservative activists jumping on the criminal justice reform bandwagon, Manning is among the lonely voices fighting back against what he calls a “two-pronged big lie.”

The first, he said, is that many people are languishing in prison for low-level drug offenses. In the federal system, at least, there are virtually no small-time offenders. Federal drug prisoners are mostly big-time drug dealers or participated in major conspiracies.

The second lie, Manning said, is that prisons are overcrowded. While that may be the case in some state prison systems, he said that in the federal system, “that’s simply not true.”

11-Percent Decline
Steve Cook, president of the National Association of Assistant U.S. Attorneys, noted that the federal prison population has already declined 11 percent from its peak.

“The whole movement is premised on a lot of myths,” he said. “Frankly, there isn’t any need for reform.”

The drive toward shortening prison terms and eliminating mandatory-minimum sentences is playing out against the backdrop of a massive, generation-long drop in crime. The crime rate decreased by almost half between 1991 and 2014; the reduction in the homicide rate has been even steeper.

Opponents of retreating on tough policing and incarceration policies said many people have forgotten — or are simply too young to have experienced — how dangerous many American cities used to be.

[lz_table title=”Prison System’s Revolving Door” source=”Bureau of Justice Statistics”]405K prisoners released in 2005
|Percentage Arrested
Within 6 months,37%
Within 1 year,57%
Within 3 years,68%
Within 5 years,77%
|Total Number of Arrests
1.2 million
|Type of Offense*
Public order offense,58%
Drug offense,39%
Property offense,38%
Violent offense,29%
|
*Totals exceed 100% because of multiple arrests
[/lz_table]

“The trend now is a product of our successes,” Cook said. “The problem is that the trend has now turned after years of sentencing reform.”

Otis, the former Bush administration official, said he understands concern over high incarceration rates.

“But it’s become an obsession. And it’s also blotting out the main reason why have a criminal justice system,” said Otis, who now serves as an adjunct law professor at Georgetown University and contributes to the “Crime and Consequences” blog. “Incapacitation is the main virtue of prisons. And it’s worked.”

Otis said “smart on crime” advocates ignore the last 50 years of history. Beginning in early 1960s, he said, lenient crime-and-punishment policies contributed to a long, steady rise in violent crime rates. By the mid-1980s, he said, “There was a crime wave. Crime snowballed.”

Crime Declined as Incarceration Rose 
The long period of falling crime rates occurred at the same time incarcerate rates exploded. Otis said locking up more people for longer is not the only explanation for the drop in crime — but he added that incarceration played a significant role.

Otis said reformers want to “turn away from what we know works and go back to what fails,” which he said includes giving judges greater leeway in determining which defendants are a good risk and which are not.

Manning pointed to the recent experience of Texas, which enacted sentencing reform at the state level. Many Republicans hold up the state as a model for reform, arguing that it closed prisons and saved millions of dollars without negative consequences. But Manning pointed to statistics from the Texas State Legislative Budget Board indicating that recidivism rates have not improved since 2004.

Meanwhile, crime rates have increased in the past few years. Drawing from data from the Major Cities Police Chiefs Association, he noted the violent crime rate in the state’s five largest cities was 14 percent higher during the first half of 2016 compared with the first half of 2015. The murder rate is up during that time in four of the five cities — after increasing in all five cities the year before.

Those increases mirror a spike in crime across the country that Republican presidential candidate Donald Trump has seized on. Cook, of the prosecutors’ group, said the increases are reason enough to reverse recent reforms.

“How many thousands of Americans have to die before we get a grip on reality?” he said. “Crime rates going up are as predictable as the sunrise.”

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Study after study has shown that prisoners generally do not fare well after they leave prison walls. The Bureau of Justice Statistics in 2014 examined 405,000 prisoners released in 30 states in 2005 and found that 68 percent had been arrested for a new crime within three years and 77 percent had been arrested within five. More than a third did not even last six months outside before a new arrest.

Because many were arrested multiple times, the total number of arrests during the five-year period was 1.2 million.

Otis said Obama and other reform advocates are right when they say that crime remains low compared with historical averages. He estimated that the crime rate since 2014 has drifted up to about 2010 levels, still far below its peak in the 1990s.

“Another way of putting that is we’ve lost six years of progress on crime,” he said. “President Obama wants to reverse the very policies that have brought about that decrease in crime.”