Republicans have scuppered America’s opportunity to reform its prisons - and this time it is not Trump’s fault

The US, with around 5 per cent of the world’s population, accounts for 25 per cent of its prison inmates, many of them serving grotesquely long sentences for relatively minor drug and theft offences

Rupert Cornwell
Saturday 09 April 2016 12:58
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The majority of prisoners, 59 per cent, are currently in state prisons
The majority of prisoners, 59 per cent, are currently in state prisons

Is American’s dysfunctional political system about to snatch another defeat from the jaws of victory? Six months ago, a divided Congress seemed for once to rally in bipartisan support for a cause as worthy as it was urgent – a sweeping reform of the country’s criminal justice system.

Everyone knows the bleak facts: that the US, with around 5 per cent of the world’s population, accounts for some 25 per cent of its prison inmates, many of them serving grotesquely long sentences for relatively minor drug and theft offences. It goes virtually without saying that the heavy hand of the law strikes blacks and Hispanics especially hard.

The cost of keeping so many people behind bars is damaging enough to state budgets. Greater still is the social cost, measured by sundered families and broken local communities. The case for reform is unanswerable, and last October the Senate Judiciary Committee approved a Sentencing Reform and Corrections Act by 15 votes to five. Even when an election loomed, it seemed, a bickering Congress could nonetheless on occasion deliver the goods.

Pressure for reform had been growing for years, long before Barack Obama in summer 2015 became the first president to visit a federal prison and talk directly with inmates. Last month he commuted the sentences of 61 prisoners, bringing the grand total since he took office to 248 – more than the commutations issued by his six predecessors in the Oval Office combined.

But its backers range across the left-right spectrum, from the current administration to civil right groups and liberal Democrats, from church groups to law-and-order Republican Congressmen, even to the much-demonized Koch brothers, billionaire bankrollers of various Republican causes.

Some of the draconian provisions were originally passed in the 1990s, when the country was obsessed with rising crime rates, with the full backing of then President Bill Clinton and his Democratic administration. It could be argued that they worked, as crime rates went down as sharply as the prison population soared. Even so, Clinton himself has been running into heavy flak from the Black Lives Matter movement for what he did two decades ago. Even Hillary Clinton concedes her husband may have gone too far.

If passed, the Act would cut fixed minimum sentences and get rid of the infamous “three strikes and you’re out” clause, mandating that anyone convicted of a third drug offence or violent crime should be imprisoned for life, without possibility of parole. Instead, long terms would be reserved for truly violent and repeat offenders. The bill also seeks to reduce recidivism, and help released prisoners regain a place in society.

Now it’s important to understand that in the US, where extensive powers are devolved to individual states, laws passed by Congress apply only to federal entities. Thus the proposed law covers only those held in federal prisons, which contain less than one in 10 of the country’s incarcerated population of 2.3m. The majority – 59 per cent – were tried in state courts, sentenced by state judges and are currently in state prisons. A further 32 per cent are in local, county, jails.

In other words, whatever Congress does will directly affect only a fraction of inmates. But as a bipartisan measure, it would set a huge example that states would find it hard to ignore. Indeed many of them already are taking such steps, propelled by the very same motives as the proposed federal legislation. Alas, however, all the hard work may be about to unravel.

One reason of course is the approaching elections. Plain old ‘law-and-order’ may not have featured much in this bizarre, Donald Trump-driven campaign. Even so, some Senators who face the voters in November are getting cold feet about exposing themselves to accusations of being ‘soft on crime.’ One or two others genuinely feel the proposed changes go too far.

But now there’s another, and far greater, source of friction: the vacancy that has arisen on the Supreme Court following the death of conservative Justice Antonin Scalia in February, and Obama’s nomination of the federal appeals judge Merrick Garland to succeed him.

That matter too comes under the purview of the same Judiciary Committee that has been working with unusual shared purpose on sentencing reform. The Garland nomination has now shredded that comity. The Committee’s Republicans refuse even to meet him, saying that nothing should be done until after November’s election. Democrats accuse their colleagues of not doing their constitutional duty, of granting a nominee a hearing and a confirmation vote. Lost in the altercation is the fate of criminal justice reform.

Yes, the Garland affair is hugely important, portending perhaps an end to a quarter-century of conservative majorities on the court. But Obama has not picked a liberal crusader, but a moderate and centrist candidate, respected by all, even by many of the Republicans who refuse to go near him. And is the choice of a Justice more important than correcting injustices and judicial excesses that have needlessly wrecked lives?

Time is now starting to run out. Paradoxically though, the impasse over judge Garland might just be the salvation of the criminal reform bill. Two thirds of Americans, polls say, agree with the Democrats in contending that Senate Republicans should drop their obstructionism and “do their job.” What better way to prove these critics wrong than helping the criminal justice reform onto the statute book?

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