Not another brick in the wall

While Texas still has a way to go, according to the Justice Action Network’s Harris, 30 other states have implemented Texas’ reforms and have seen similar successes –– and only eight years after Texas’ plan got underway.

The federal government also has begun to move in a similar direction.

“The first major change in the federal system involved the Inspector General of the Department of Justice placing the reduction of federal prison overcrowding on a short list of management challenges three or four years ago,” said FAMM’s Price.

“What was happening was that lawmakers realized we were spending money to lock people up that could be better spent on deterrents to those crimes. Every dollar spent on incarceration was a dollar that could not be spent on prosecuting really bad guys or keeping people out of jail. And we know now that it’s bad for public safety if everybody just gets locked up rather than dealing with drug offenders by getting them off drugs. We needed to spend our criminal justice dollars more wisely.”

The first major policy change in that direction occurred in 2014, when the Sentencing Commission, an independent agency in the judicial branch of government that sets sentencing guidelines and policies for federal courts, made a key alteration in drug sentencing policy. While the commission could not reduce mandatory minimum sentences below the 5-10-20-year structured plateaus, the group was able to eliminate some sentencing enhancements that gave someone with five years a seven- or eight-year sentence.

Marc Mauer, executive director of The Sentencing Project, a nonprofit working for reforms in sentencing law and alternatives to incarceration, explained: “Only the enhancement guidelines are affected. You cannot go below the mandatory minimum in your case. But if you had a 10-year mandatory minimum, and it was enhanced by two years, it can now be dropped back to the basic 10 years.”

Shortly after the commission made the change, the group made it retroactive. The result: Roughly 46,000 drug offenders in the federal prison system will be eligible to apply for early release — most will get one or two years, but some might get a four-year reduction — in the next several years. A little more than 6,000 of those offenders were released over the weekend of October 30 and November 2, with another 8,550 up for release by November 1, 2016.

In the first group of 6,000, roughly two-thirds were sent to halfway houses or placed under house arrest. The other 2,000 are foreigners, who will quickly be deported. Almost 600 of those prisoners were released in Texas, leading some people to bemoan the fact that our streets will be overrun with criminals. But Smith scoffs at that.

“I believe 578 of those released are returning to Texas,” he said, “but the Texas Department of Criminal Justice releases more than 70,000 per year, so the difference won’t be noticed.”

Smith does concede that with reentry resources extremely limited and with no new federal programs in place to help those released early, any additional influx will strain the community. “But the number is so relatively small,” he said, “I don’t think it will be a huge issue.”

Surprisingly, there has been little pushback against the reformed guidelines. New York City Police Commissioner Bill Bratton has voiced his concern that the mass release will put dangerous criminals on the streets. On a recent radio broadcast with John Catsimatidis, Bratton said, “One of the issues of concern is when people go to jail, oftentimes they go to jail with negotiated charges, if you will, so that somebody that is in jail [who] seems like they’re a nonviolent drug offender may in fact have crimes of violence in their record.”

Bratton pointed to the case of Tyrone Howard, a young man with a record of 28 arrests who shot and killed New York City Police Detective Randolph Holder on October 20. Howard had been arrested for a shooting in 2009 — he was not indicted for that — but he was sent to a drug diversion program rather than prison for a recent drug bust.

The Sentencing Commission is hoping such horror stories do not play out now. To avoid any potential problems, each prisoner will have to apply for his or her sentence reduction. Their histories will be evaluated.

“Every one of these prisoners has to be approved by a judge,” Mauer said. “And not everyone who is applying is getting approved. Thus far, about three out of four have been approved, but that other 25 percent has been denied. So they are getting some scrutiny.”

The early release of some drug offenders is a very good start, Mauer said, but it’s only a start: “It’s symbolically very significant because it’s the federal system, but it’s also only a start because it only affects the federal system. We need to do it in every state as well. And then the mandatory minimum issue needs to be addressed as well.”

Bob Libal of Grassroots Leadership, an organization working to eliminate private prisons, agreed with Mauer’s assessment: “It is a very good start toward drawing down the extremely punitive way we’ve treated people for drug offenses. Drug issues are representative of how we lock people up for so many things in our society, from addiction to mental health issues, to poverty. But we’re going to need changes on the state and local levels as well as the federal level.”

 ******

The biggest change in the federal approach to sentencing may arrive in early 2016. Authored by Senator Chuck Grassley, chairman of the Judiciary Committee, The Sentencing Reform and Corrections Act of 2015 recently made it out of committee and will likely be voted on early in the 2016 session of Congress. According to a press release by Texas Senator John Cornyn, the bill is “largely based on the Corrections Act [that] Sens. Cornyn and Sheldon Whitehouse (D-RI) introduced earlier this year that builds on successful reforms implemented in Texas that reduced crime and saved taxpayers more than $2 billion.”

Among the bill’s provisions, it reduces enhanced penalties for repeat drug offenders and eliminates the three-strike mandatory-life provision for all but offenders with serious violent priors. It also will allow low-level drug offenders, even ones facing a 10-year minimum, to be placed in treatment rather than prison.

Just as importantly, the bill will require the Department of Justice to “conduct risk assessments to classify all federal inmates and to use the results to assign inmates to appropriate recidivism reduction programs, including work and education programs, drug rehabilitation, job training, and faith-based programs.”

Those prisoners who complete those programs can see their sentences reduced and spend as much as the last quarter of their sentences in home confinement or a halfway house.

Libby Hambleton, Cornyn’s deputy press secretary, told the Weekly that the bill “will make it mandatory for federal prisoners to be offered vocational training, schooling, and a host of other programs that will make their transition to the world outside of prison a less turbulent experience and one which would arm those former prisoners with better tools to help succeed and lower recidivism.”

With the backing of a wide swath of conservatives and liberals in Congress, as well as the blessing of both the ACLU and the Koch brothers’ political arm, ALEC, the bill is expected to meet little resistance on its way to passage. If passed, it would be the first real chink in the mandatory minimum wall.

Matt Simpson, an ACLU attorney, sees the bill as an important step: “Pulling people from their community and incarcerating them creates reentry problems for them down the road. But if you can keep them on probation or in a treatment center and in their community, it will sidestep undermining their social support network. There are major benefits to avoid incarceration.”

One of the key elements to the bill that struck Smith deals with reintegration: “The bill says the prison has to work with someone for at least six months prior to their release to plan on their reentry into the non-prison world. That’s the most crucial time if you want to prevent the person from coming back to prison. You need to help them plan for the transition because they’re about to face major barriers with housing and employment while they’re trying to reintegrate.”

Jason Hernandez knows he’s one of the lucky ones. His mother and father were still alive when he got out in August, and they welcomed him home. “Having a place to stay is so important,” he said. “If I didn’t have them, I’d probably be living on the street. And if you don’t have a place to stay, well, they can revoke your parole.”

Hernandez doesn’t claim the world is perfect for him: “It’s not like life is going beautifully for me, because it’s not. I have my down times. But compared to waking up every day for the last 17 years thinking I was going to die in prison, it’s great. But there’s lots of jobs I can’t get, and some girls who won’t date me once they find out I’ve been in prison.”

Hernandez said that some of the people getting out of prison, even with good tools, are going to reoffend. “But what’s the solution? Just letting them die in prison? It’s hard to get back into life, and not everyone is going to make it.”

The absence of safety nets for former prisoners bothers Hernandez a great deal: while food stamps were federally banned for drug felons in 1996, most states have since loosened those laws, but the SNAP benefits generally come with strings. In Texas, first time drug felons regained the right to receive the benefits on Sept 1 of this year, though a parole violation gets them suspended for two years, and a second drug conviction reinstates the lifetime ban. Federal educational grants have become available for most drug offenders as well, but come with qualifiers that many cannot meet.

“Look, we’re all but banned from getting Section 8 housing. And if you don’t have a place to live, you’re in trouble,” said Hernandez. “And we often owe 10-15 years of back child support on top of whatever fines we have to pay. There are some churches that might help you out, but other than that there is basically nothing. You’re on your own.”

He was particularly happy to hear Obama say that he was banning the box on applications for federal employment that asks if a person has ever been convicted of a felony: “I didn’t get a single interview from any application where I checked that box. It was only when I got to meet someone face-to-face, and he said, ‘Hey, you look like a pretty good guy. I’ll give you a chance,’ that I got a job. Banning the box is fantastic. At least get to meet the person before you find out they have a prison record.”

Society, Hernandez said, should offer everyone coming out of prison the basics: food, housing, and a chance at a job. He has a full-time job as a welder and works part-time as a kitchen mentor at Café Momentum in Dallas, whose owners hire only formerly incarcerated youngsters and train them in all aspects of restaurant work during a year-long program. Hernandez also talks to at-risk kids about his life experience.

“I know how lucky I am,” he said. “And I know I’ve got to do well out here, so that other people get the chance.”

Others will get the chance, FAMM”s Price said: “I think the momentum from impossibly harsh sentencing for nonviolent drug crimes has changed. I don’t think we’ll go back to the way we did it again.”