Obama clemency moves needle on prison reform, but more needed.

President Obama’s historic action to issue sentence commutations to 214 federal prisoners represents a significant moment in redressing the excessively punitive policies growing out of the war on drugs. The President has now shortened prison terms in more than 500 such cases, more than any previous executive.

Obama’s action continues what has been a growing movement in the Administration to prioritize criminal justice reform. Over the course of the past year Obama has delivered a keynote speech to the NAACP convention on mass incarceration, became the first sitting president to visit a federal prison, and has spoken out on the critical need to improve relations between law enforcement and African American communities. The Administration has also provided resources and training for programs and policies that can achieve more effective outcomes in courts and prisons.

{mosads}These developments come after a decade of a rapidly changing political climate on criminal justice policy. Following the “tough on crime” era of the 1980s and 90s, growing bipartisan support has developed for reducing the nation’s world-record rate of incarceration. Both practitioners and policymakers now recognize that harsh sentencing policies do little to deter crime, yet cause great suffering to individuals and impose substantial costs on taxpayers.

While this week’s clemency grants are encouraging, their impact needs to be assessed in the context of mass incarceration. Nearly half of the federal prison population, 84,000 offenders, are currently serving time for a drug offense. Almost all are locked up for selling, not using, drugs, but most are hardly the “kingpins” of the drug trade. Rather, their roles have been as “mules,” couriers, or street corner sellers, not those who direct major drug trafficking operations. Yet because mandatory sentencing policies prohibit judges from considering individualized factors in the offense, many thousands of these individuals are serving prison terms of 10 or 20 years or more.

A broad body of research demonstrates that massive incarceration in drug cases in particular is of little value in crime control. This is due in large part to the fact that arresting individuals in the lower ranks of the drug trade doesn’t eliminate street corner sales, but just creates an opening for others to replace them. As long as there is demand, supply chains will arise to meet that demand. These dynamics should lead us instead to invest both in demand reduction and in creating economic opportunity so that fewer young men and women will seek out the drug trade.

Relying on the President’s power of commutation is made necessary by the failure of Congress to enact sentencing reform legislation that could provide a broader remedy for these problems. Legislation pending in both Houses of Congress could mark a strong beginning in that direction. In the Senate, the Sentencing Reform and Corrections Act (SRCA) would grant federal judges broader discretion in drug cases so as to avoid having to impose mandatory terms on lower level offenders. It would also make the provisions of the 2010 Fair Sentencing Act retroactive. That legislation reduced the notorious sentencing disparity between crack cocaine and powder cocaine offenses, but it did not apply to those already imprisoned. Thus, nearly 5,000 individuals today are serving prison terms that are now universally acknowledged to be unfair and ineffective.

The SRCA was voted out of the Senate Judiciary Committee last year, as was a similar measure in the House. But clearly, the clock is ticking, with little time left on the political calendar this year. Both Senator Grassley and House Speaker Ryan have indicated that they would like to bring legislation to the floor after Labor Day. With a Congress that has been widely disparaged as unable to address serious concerns, enacting sentencing reform would begin to help repair that image while bringing a measure of rationality and compassion to thousands of citizens behind bars.

Mauer is the Executive Director of The Sentencing Project and the author of Race to Incarcerate. Follow him on Twitter @SentencingProj

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