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Federal Prisoners Decline, but It’s Not a Trend Yet

Last year, former Attorney General Eric Holder announced that the federal prison population had dropped by nearly 5,000 individuals—the first such reduction since 1980. Since then, the number of federal prisoners has continued to fall.

This means that fewer individuals—disproportionately black and Latino—are caught up in the criminal justice system. It means fewer families and communities broken by incarceration.

After three decades of rapid growth in the federal prison system, there is reason for optimism that this downward trend will continue. Still, much work remains to be done by activists and policymakers alike.

Several factors have contributed to the recent decline. Most important was the 2011 decision by the U.S. Sentencing Commission to apply reduced crack cocaine penalties retroactively. As of late last year, nearly 7,000 individuals convicted of crack offenses had received sentence reductions.

In addition, the number of federal drug cases has declined in recent years. According to the commission, federal drug prosecutions fell from nearly 25,000 cases in 2009 to less than 22,000 in 2014. In the past half-decade, the number of individuals sentenced for federal crack offenses decreased by half.

Furthermore, Attorney General Holder’s Smart on Crime initiative has helped to reduce the proportion of federal drug cases carrying a mandatory minimum sentence to its lowest level in many years.

Other developments point to a continued reduction in the federal prison population in the future. The 2010 Fair Sentencing Act, which reduced the sentencing disparity between crack and powder cocaine, has resulted in shorter sentences for crack cocaine offenses.

More promising still is the Sentencing Commission’s “Drugs Minus Two” amendment, which could retroactively reduce drug sentences for more than 40,000 individuals.

As many as 8,000 of these prisoners may be released this fall, with another 8,500 individuals released over the next year.

The Open Society Foundations and the Sentencing Project have worked to reduce incarceration for more than two decades. While the debate is starting to turn from a prison-based approach to a system that, in Pope Francis’s words, emphasizes hope and rehabilitation, there’s much more work to be done.

Since 1980, the federal prison population has increased nearly 800 percent—from about 25,000 to over 200,000 today. To get back to where we started, the federal prison population would have to drop by an average of 10,000 individuals each of the next 18 years.

Despite a groundswell of bipartisan support for sentencing reform, there is little evidence that policymakers are ready to take the bold action necessary to achieve reduction at this scale. Nevertheless, both Congress and the president can take incremental steps now that would start us on the path toward real reform.

First, Congress could act to reduce, and ultimately eliminate, mandatory minimum penalties for drug offenses. Passed during a bygone era of “tough on crime” politics, mandatory minimums are the major driver of prison population growth and racial disparities in the federal system. Mandatory minimums themselves, coupled with their unfair application, help explain why nearly half of all federal prisoners are serving time on a drug charge—and why three-quarters of them are black or Latino, even though people of all races use and sell drugs at roughly the same rates.

Second, President Obama could substantially increase his use of executive clemency. Despite a well-intentioned initiative to commute sentences for people convicted of low-level offenses, relatively few federal prisoners can meet the Justice Department’s strict criteria. Instead, as a matter of fairness, the president should expand the criteria and establish a mechanism for resentencing individuals convicted of crack offences in accordance with the Fair Sentencing Act.

Finally, both Congress and the president should act to remove barriers—such as unfair background checks and bans on food and housing assistance—that keep people with criminal records from starting a new life.

Experience at the state level proves that such reforms can be achieved without jeopardizing public safety. Three states in particular—New York, California, and New Jersey—have proven [PDF] that prison populations and crime rates can be significantly reduced simultaneously. Even states that are known for using harsh criminal penalties to deter crime are changing their approaches.

When Attorney General Holder made his announcement a year ago, he said that we may be “witnessing a historic sea change” in the way our nation approaches issues of criminal justice and public safety. The recent reduction in the federal prison population offers an encouraging sign. But unless we want to wait decades to achieve a rational level of incarceration, we must accelerate the pace and scale of reform.

The Sentencing Project is a grantee of the Open Society Foundations.

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