The federal prison population has ballooned 790 percent since 1980, and almost half of those now imprisoned are there for drugs. In the coming years, the Bureau of Prisons projects that prison overcrowding will get even worse. While federal prisons are now 35 to 40 percent over capacity, they are expected by 2023 to reach 55 percent over capacity without a policy change, according to a new report by the Urban Institute.
The prison population explosion was not driven primarily by a spike in crime, but by a change in punishment. Over a 25-year period, average drug sentences doubled from 38.5 months in 1984 to 74 months in 2011. And over a similar period, the percentage of convicted federal offenders sentenced to prison spiked from 50 percent in 1986 to 90 percent in 2011. Before the passage of several draconian laws that impose mandated harsh sentences and remove judicial discretion, many offenders received probation or a fine for the same violations.
Reflecting back on failed War on Drugs and tough-on-crime policies, public officials — most prominently Attorney General Eric Holder — are now acknowledging that “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” These draconian sentences did not stem the drug war, and among those serving 10 years, 20 years, or life, are medical marijuana distributors, co-conspirators who didn’t have enough snitching information to negotiate a deal, and low-level couriers who faced harsh mandatory minimums because the deals in which they played a nominal role involved a large quantity of drugs.
Now, public officials are among those looking for a solution. And the Urban Institute found that, while no one policy change will be enough to cure the inmate population explosion, the one single thing that could have the greatest impact is reforming mandatory minimum sentences. “Cutting mandatory minimums in half could save almost $2.5 billion in 10 years,” Urban Institute Senior Fellow Julie Samuels writes. “This measure alone would reduce overcrowding to the lowest it has been in decades.”
There are now several bipartisan mandatory minimum bills pending in both houses of Congress. And the bipartisan momentum has never been greater, with even the world’s largest association of corrections officials and the conservative American Legislative Exchange Council urging mandatory minimum reform.
Other measures to reform sentencing and early release would also be crucial, according to the report. Federal law known as “truth in sentencing” now mandates that prisoners serve 85 percent of their sentences. Lowering that percentage to just 75 percent would save $1 billion over ten years. The Fair Sentencing Act reduced the racist disparity between crack and powder cocaine sentences from 100 to 1 to 18 to 1. But the law is not fully retroactive. While courts grapple with what Congress intended, Congress could make clear that it intends the law to apply to those already sentenced. And a policy known as compassionate release gives prison officials the discretion to release those elderly and terminally ill inmates not likely to re-offend. Prisons rarely grant these requests, not just at a cost to inmates who were not sentenced to die in prison, but also imposing a tremendous drain on prison health care.