Unpacking Criminal Justice Reform

Civil rights activists recognize mass incarceration as the most pressing issue of our time. With books like The New Jim Crow, progressives have accepted the idea that our criminal justice system acts as a means of racial control and oppression. “Law and order” talk reached a new peak during the 2016 election and continues to be deployed by populist conservatives. However, among progressives at least, comprehensive criminal justice reform and an end to the era of mass incarceration appears well-needed. Despite President Trump’s frequent zeal for punishment and incarceration, many conservatives and libertarians also now embrace criminal justice reform. Notably, even the Koch brothers advocate for reform. However, arguments from the right often emphasize the cost-saving potential of limiting incarceration. Even when those on the right emphasize the dignity of incarcerated persons as a reason for passing reform, distinctions are often made between “violent” and “non-violent” offenders. We should be skeptical of these distinctions and examine why we divide the incarcerated into these two buckets. By focusing on this dichotomy, we fail to treat those convicted of the most serious offenses with the basic human dignity that they deserve, allowing society’s thirst for punishment to strip away basic human rights.

In talking about reform, advocates often criticize the War on Drugs, emphasizing mandatory minimum sentences for drug offenses, and the failure of society to recognize the medical condition of addiction. But among mainstream liberal thought, how far does compassion in criminal justice reform go? Are we willing to criticize the mistreatment of nonviolent criminals, but accept it for those convicted for violent crimes? The answer to this question will be extremely important whenever we finally truly tackle comprehensive reform to end mass incarceration. Ending the War on Drugs does not go far enough. Incarceration rates dropped in 2010 due to sentencing reform for low level drug and property offenses. But a slight decrease in incarceration rates serves as a small victory; we cannot truly end the mass incarceration state without a more radical approach.

Perhaps the failure to truly decarcerate stems from our inability to empathize with those convicted of more serious, violent offenses, or from our general inability to provide a basic level of humane treatment to those incarcerated. For example, correctional departments often fail to offer hepatitis C treatment to incarcerated populations, despite the fact that Hep C can become a debilitating disease and is curable with treatment. Treatment strains tight prison budgets. The FDA recently approved a cheaper drug that cures Hep C, but it still costs a whopping $26,400, which actually pales in comparison to other Hep C drugs costing two to three times more. Health experts know that truly reducing Hep C involves treatment of the prison population, where as many as one in seven prisoners has the disease. However, the price tag deters prisons from actually providing treatment. Political support for providing costly treatment for those convicted of the most severe offenses, such as murder, would likely be low.

For another example of the limits of society’s empathy, we can turn to the lack of compassionate release. Officials use compassionate release for those with terminal illnesses or the elderly. Political support for this measure is stronger, as some feel sympathy for this population, while others view it as a rational cost-cutting measure. However, compassionate release is a discretionary program, which very few applicants actually benefit from. The justification for many of these denials lies in the severity of the crime itself. In theory, compassionate release appears practical, but prison officials are reluctant to release those convicted of murder, even if the seriousness of their disease or old age would incapacitate them from committing future violent offenses. This demonstrates our system’s taste for punishment and retribution, as keeping these individuals incarcerated appears to have little to do with public safety, even though prison officials cite public safety as a reason for denying applications.

Truly ending mass incarceration involves reforming the longest sentences. For example, Maryland’s former governor, Parris N. Glendening, declared during his term that “a life sentence means life.” This declaration lead him and his two predecessors to deny parole to many lifers. (Maryland is one of three states that requires its governor to approve parole for those with life sentences.) Advocates as well as mainstream politicians committed to the end of mass incarceration will need to face the challenge of what to do with lifers. Glendening now regrets his earlier position, but legislative efforts to reduce Maryland’s system of governor-approved parole have been stalled.

These are only a few examples of the tough issues reformers face. Ending mass incarceration and promoting the dignity and respect of those within the current system will involve tough political choices and making stronger statements than simply acknowledging smaller reform efforts aimed at non-violent offenders. Massachusetts, often known as one of the most liberal states in the country, currently has severely draconian criminal justice laws and policies on the books. For example, in Massachusetts, the Department of Corrections can place an incarcerated person in solitary confinement for up to 10 years for a disciplinary offense without much oversight and with a simple administrative hearing. However, Massachusetts is taking crucial steps to reform its criminal justice system. Lawmakers from both parties released a compromise bill that just came out of committee and will be voted on this upcoming week The bill takes important steps in reform, such as allowing compassionate release and limiting solitary confinement. The Massachusetts bill reflects a compromise between both parties. Examining reforms such as these and questioning the depth with which lawmakers hope to decrease mass incarceration provides important insights into how far our lawmakers are willing to go, the limits of their compassion for the incarcerated, and the way in which they view, or do not view, those incarcerated as human beings worthy of dignity and respect.

 

 

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Regina is a 2L at HLS from Owensboro, Kentucky. She is interested in racial justice, prisoners' rights, immigration, gender equality, and economic justice. She spent her 1L summer at MALDEF and will be at the NAACP LDF this upcoming summer.

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