America's Shame: Can Jim Webb Fix the Prison Gulag?

By Katrina vanden Heuvel, The Nation. Posted February 16, 2009.

Our criminal justice system is broken. The U.S. represents 5 percent of the world's population but accounts for nearly 25 percent of its prison population. We are incarcerating at a record rate with one in 100 American adults now locked up -- 2.3 million people overall. As a New York Times editorial stated simply, "This country puts too many people behind bars for too long."

But people who have been fighting for reform for decades are seeing new openings for change. The fiscal crisis has state governors and legislators looking for more efficient and effective alternatives to spending $50 billion a year on incarceration. At the federal level, there is reason to believe that the Obama administration and a reinvigorated Department of Justice will take a hard look at the inequities of the criminal justice system and work for a smarter and more effective approach to public safety. Finally, there are Congressional leaders -- none more prominent than Senator Jim Webb -- who understand that the system isn't functioning as it should and there is an urgent need for reform.

Indeed advocates for reform couldn't ask for a better standard-bearer than Senator Webb. As a decorated former Marine and Reagan Administration official no one is going to slap him with the politically-dreaded "soft on crime" label that has stymied so many Democrats who have taken on this issue in the past. There is a "Nixon goes to China" quality to Webb's call for change -- a law and order man who described his reform effort as "an act not of weakness but of strength."

As a journalist Webb wrote on the need for reform after visiting Japanese prisons and seeing a fundamental fairness and effectiveness that he recognized as lacking in the U.S. criminal justice system. As a Senator he's held hearings which have highlighted racial disparities in sentencing, the staggering costs of incarceration and effective and cost-efficient alternatives, and a futile and racially biased drug policy.

Now Senator Webb is poised to establish a commission with a broad mandate to examine issues like drug treatment, effective parole policy, racial injustice, education for inmates, reentry programs -- the myriad of issues intertwined in wasteful, ineffective criminal justice policies. Look for him to lay out that mandate with specificity in the coming weeks, and make an aggressive push to bring this issue to the forefront in both Congress and the media, much as he was able to do with the GI Bill.

Webb sent me an e-mail saying, "I feel very strongly about the need to put the right people behind bars. But we're locking up the wrong people too often all across our country. Mental illness isn't a crime. Addiction isn't a crime. We need to make sharp distinctions between violent offenders and people who are incarcerated for non-violent crimes, drug abuse and mental illness. We must raise public awareness about the need for criminal justice reform and find viable solutions. My staff and I are finalizing proposed legislation that could be introduced in the next two weeks to establish a national commission that will take a comprehensive look at where our criminal justice system is broken and how we can fix it."

While it's critical that Senator Webb is raising these issues at the national level where they have received so little attention, Marc Mauer, Executive Director of The Sentencing Project, points out that 90 percent of the U.S. prison population is incarcerated in state prisons and only 10 percent in federal prisons. Mauer said there is a growing awareness at the state level that our drug and sentencing policies have "gotten out of hand" and that the fiscal crisis presents an opportunity to do something about it.

"The fiscal crisis gives governors and legislative leaders the opening to do what many of them have known should be done for some time, but [they] didn't have a political comfort level to do it," Mauer said. "Now they can talk about issues like excessive sentences for drug offenders, and too many people being sent back to prison for technical violations of parole."

One legislative reform effort is occurring in Senator Webb's own Virginia -- a state that abolished parole in 1995 and is second only to Texas in number of executions. This session, a bill will be taken up that would allow prison officials to release non-violent offenders 90 days before their sentences are up. This would primarily be achieved by offering drug treatment programs at the beginning of an individual's incarceration rather than only at the end. (Which begs the question -- if we are truly serious about rehabilitation of inmates why are we only offering addicts treatment for a disease at the end of a sentence?!) Upon successful completion of the treatment program these individuals would be eligible for early release. The legislation also provides for more non-violent offenders to be sent to community-based programs or be monitored electronically rather than incarcerated.

A similar program was undertaken in Washington state and a four-year study of 2,600 inmates released early showed significant cost savings and no negative consequences in terms of recidivism. Mauer said the coalition rallying around the Virginia proposal is diverse and particularly encouraging in what has traditionally been a "tough on crime state."

Other states taking action on criminal justice reform include: Michigan which is addressing re-entry issues and shifting resources to parole officers and community-based programs; Kansas cut parole revocations by 50 percent in a two-year period by increasing oversight of parole officers and using alternatives to incarceration such as increased drug testing and electronic monitoring; California issued a court ruling this week that the state must address its failure to provide adequate health and medical services in prisons by reducing the population by a third -- nearly 55,000 persons -- through "shortening sentences, diverting nonviolent felons to county programs, giving inmates good behavior credits toward early release, and reforming parole."

Now is also a hopeful, unique moment in New York state where the top three political leaders all support real reform and there is a chance to repeal the wasteful, ineffective, and unjust Rockefeller-era drug laws -- after thirty-five years! This week I moderated a panel -- cosponsored by The Nation, the Correctional Association of New York, and The New School's Center for New York City Public Affairs -- of government officials and reform leaders working to downsize prisons, reform probation and parole, and provide effective community-based prisoner reentry programs. The Correctional Association of New York is leading the "Drop the Rock" campaign that includes an Advocacy Day in Albany in March.

Greg Berman, Director of the Center for Court Innovation -- a non-profit think tank in New York -- said, "The question is: can we come up with meaningful, cost-effective responses to non-violent crime that do not rely on incarceration? Drug courts, mental health courts and community courts -- the so-called 'problem-solving courts' -- all show enormous potential. Most criminal cases are not complicated in a legal sense, but they are committed by people with complicated lives. Scratch the surface and you find addiction, mental illness, joblessness, etc. These problem-solving courts are linking offenders to drug treatment, counseling, job training in lieu of incarceration. But unlike some rehabilitation efforts in the past, they are requiring participants to return to court on a periodic basis to ensure accountability. There is a growing amount of evidence suggesting that this approach can change sentencing practice -- dramatically reducing the use of jail, for example -- while also reducing both substance abuse and recidivism."

Despite a fiscal crisis which has caused at least forty states to make or propose cuts in vital services like education and health care -- and ample evidence of the effectiveness of alternatives to incarceration -- the battle for reform on the state level is still a difficult one.

"It's far from a done deal that this will automatically lead to prison reductions," Mauer told me. "One option is to say let's reconsider sentencing policies, reduce the population, close prisons and save money. The other choice is to say let's cut out alternatives to incarceration, community-based drug treatment, and other programs, and you can see those cost savings very quickly. I think that would be a shortsighted way to go but it's going to be tempting for a lot of legislators to think about doing that. I think that's the battle that is going to be fought in different states."

That's why the effort of Senator Webb and his colleagues at the federal level is so critical. They can galvanize support for repealing unjust policies like those that treat a low-level user of crack the same as a major drug dealer, or five grams of crack the same as 500 grams of powder. They can ensure that we use needed federal dollars for public safety in smart and effective ways. For example, the Second Chance Act to provide job training, drug treatment, and other re-entry programs was passed with broad bipartisan support in 2008 but no funds have been appropriated. Finally, with Senator Webb's commission, we can begin the process of transforming our criminal justice system so that prisons are reserved for violent offenders and other vital resources are used to support alternatives like drug treatment, effective parole policies, education, and reentry programs.

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Katrina vanden Heuvel is editor of The Nation.

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