Not another brick in the wall

Hernandez was one of 21 people granted clemency by Obama in November 2013. Of those, 13 were full pardons for people who had already finished serving their sentences, mostly for minor drug crimes. The other eight, which included Hernandez, were all sentence commutations for people serving at least 20 years — mostly life without parole — all for crack. Hernandez, who was serving time at the medium security federal penitentiary in El Reno, Okla., was overjoyed.

“I had written to so many people about my case and about eight other inmates who were in prison with me,” Hernandez said, “almost all of whom were serving life without parole for nonviolent first-time drug offenses. Most people wouldn’t believe we were all serving those sentences for nonviolent drug crimes.”

One who did was Michelle Alexander, an associate professor of law at Ohio State University and the author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness.

Alexander connected Hernandez with the ACLU, with whom she had worked for several years with the Racial Justice Project in Northern California.

“The ACLU really led the charge for me,” Hernandez said. “And then I got the notice that my sentence was being commuted to 20 years, plus my parole and the $6,000 fine. I held that paper with President Obama’s signature on it for two days. I wouldn’t let it go. I was afraid it would disappear.”

Hernandez was moved to a halfway house in Hutchins, Texas, for a year and then released on August 11, 2015.

“I was the lucky one out of the El Reno group,” he said. “None of the other guys got their sentences reduced.”

Obama has since upped the ante on commuting sentences for nonviolent drug offenders. He commuted eight more in December 2014, and then 46 more in July 2015. All of them had served more than 10 years in prison. Many, like Hernandez, were due to die behind bars.

But before Obama began commuting a handful of the unduly harsh sentences levied against first-time non-violent drug offenders, several states had already begun making changes in incarceration policies for the same type of criminals. Surprisingly, the state that’s led the charge is Texas.

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“Texas has certainly led the way,” said Holly Harris, executive director of the Justice Action Network, a national nonprofit devoted to reforming the criminal justice system. “What has been found during the decades of mass incarceration is that being tough on crime does not make us safer. The opposite is true. And Texas is the gold standard on this. Since they began implementing reforms in about 2007, most of Texas has the lowest crime rate it’s had since 1968.”

Douglas Smith, a policy analyst with the Texas Criminal Justice Coalition, a nonprofit that promotes smart justice policies in Texas, knows that mass incarceration is not the answer.

“Incarceration has decimated entire communities in Texas,” he told the Weekly. “We’ve got over 700 people per 100,000 in our prisons in Texas, about seven times the incarceration rate of the U.K., which has the highest incarceration rate in Europe. But Texas recognized that it went too far.”

In 1993, a tough-on-crime penal code went into effect in Texas, which saw the number of people behind bars in the state skyrocket from 64,000 to 156,000 in 2007. That year, the Texas Department of Criminal Justice asked the legislature for $523 million to build three new prisons to account for the anticipated influx of new prisoners by 2012. It seemed like a no-brainer. The Chairman of the Senate Criminal Justice Committee, John Whitmire, a conservative Democrat from Houston, had helped usher in those tough-on-crime codes. In the House, Jerry Madden, a Republican from Plano, was chairman of the House Criminal Justice Committee.

“But they surprised everyone and didn’t do it,” Smith marveled. “They didn’t build the prisons.”

What they did, according to Governing.com, a website covering state and local governments, was team up and convince the legislature, Governor Rick Perry, and Lt. Governor David Dewhurst “to spend $241 million on treatment, mental health, and rehabilitation instead.”

Among the changes implemented with those funds, Smith said, was providing funding to county drug-diversion courts that try to steer people with nonviolent drug felonies toward rehabilitation rather than prison.

“Texas lawmakers also expanded the number of substance abuse and DWI treatment beds in the in-prison therapeutic communities, particularly for the longer treatment programs,” Smith said. “And then they also increased the number of halfway houses for those prisoners on release and increased after-care for them once they were released from the halfway houses.”

The result of those changes was a 30 percent reduction in parole revocations.

“We are still sitting on about 150,000 people in Texas prisons,” Smith said, “so we’ve got a very long way to go. But that might have been more than 170,000 by now if those changes hadn’t been implemented. Add to that vocational training, helping prisoners earn their GEDs, [and] helping them get jobs on the outside, and the result is less crime and fewer people in prison.”

What needs to happen next in Texas, Smith said, is to address the probation system in the state.

“Probation revocation is absolutely one of the drivers of mass incarceration in Texas,” he said. “Why? Because if you are poor, unemployed, a drug addict, or faced with overcoming mental illness, you don’t stand a chance on probation. The demands are simply too great. You have to pay for probation itself, pay a portion of your monitoring costs and a portion of your own classes. Too many probation departments in the state rely on those fees to pay the salaries of the people in those departments.”

Probation, Smith said, is supposed to be a time to partake in community service, address the reasons you committed your crime, and think about ways you can change your behavior.

“Unfortunately,” Smith said, “a major part of the probation meeting is ‘Did you bring the money?’ not ‘How is the job search going, and can I help you with anything?’ ”

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