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Federal Prisons at a Crossroads

June 14, 2017
Recently enacted policy changes at the Department of Justice and certain Congressional proposals may jeopardize federal sentencing progress.

The number of people incarcerated in federal prisons has declined substantially in recent years. In fact, while most states enacted reforms to reduce their prison populations over the past decade, the federal prison system has downsized at twice the nationwide rate. But recently enacted policy changes at the Department of Justice (DOJ) and certain Congressional proposals appear poised to reverse this progress.

Congress, the United States Sentencing Commission (USSC), and the DOJ reduced the federal prison population by reforming sentencing laws, revising sentencing guidelines, and modifying charging directives, respectively. But the DOJ’s budget proposal for 2018 forecasts a 2% increase in the federal prison population.1)Reinhard, B. (2017, June 8). Federal Prison Population Expected to Grow Under Trump. The Wall Street Journal. The policy changes contributing to this reversal include:

  • Attorney General Jeff Sessions’ directive instructing federal prosecutors to increase their reliance on mandatory minimum sentences for low-level drug convictions.2)Sessions, J. (2017). Attorney General Jeff Sessions Delivers Remarks at Sergeants Benevolent Association of New York City Award Presentation. The United States Department of Justice.
  • The Attorney General’s instruction to federal prosecutors to increasingly pursue criminal convictions for immigration law violations
    and his memorandum paving the way for greater use of private prisons.3)Sessions, J. (2017, April. 11). Memorandum for All Federal Prosecutors. Office of the Attorney General; Sessions, J. (2017, Feb. 21). Memorandum for the Acting Director, Federal Bureau of Prisons. Office of the Attorney General.
  • Congressional proposals to create new mandatory minimum sentences or increase existing ones for a range of drug, immigration, and violent crimes.4)Wheeler, L. (2017, May 30). GOP Pushes New Minimum Sentencing Laws. The Hill.

These policy shifts run counter to research and practice on effective crime policy. This brief explains why increasing the use and length of prison terms for people with drug convictions in particular–who account for half of the federal prison population–will produce little public safety benefit while carrying heavy fiscal, social, and human costs.5)On how escalating immigration enforcement contradicts decades of criminological research and disregards police leaders’ concerns, see Ghandnoosh, N. & Rovner, J. (2017). Immigration and Public Safety. The Sentencing Project. On the limited public safety benefit of increasing already severe penalties for violent crimes, see Ghandnoosh, N. (2017). Delaying a Second Chance: The Declining Prospects for Parole on Life Sentences. The Sentencing Project. Experience with criminal justice policy changes at the federal and state levels shows it is possible to substantially cut reliance on prisons without any adverse effects on public safety.

I. Overview of the Federal Prison Population

The federal prison system has grown to become the largest in the country. In 1980, federal prisons held 24,000 people.6)Bureau of Justice Statistics (1981). Prisoners in 1980. United States Department of Justice. By 2016, 192,000 men and women were incarcerated in federal prisons, comprising about 13% of the total U.S. prison population.7)Federal Bureau of Prisons. (n.d.). Retrieved May 30, 2017; Carson, E. A. & Anderson, E. (2016). Prisoners in 2015. United States Department of Justice, Bureau of Justice Statistics.

The federal system is unique, in comparison to states, for imprisoning a large number of people for non-violent convictions.8)The Sentencing Project (2017). Trends in U.S. Corrections. This is due in part to the jurisdictional focus of federal criminal courts, which has largely been on white-collar crime, bank robbery, large-scale drug and weapons distribution, and immigration law violations.

Federal Prison Population by Offense, 2015
fed prison pop by offense for website
Source: Carson, E. A. & Anderson, E. (2016). Prisoners in 2015. United States Department of Justice, Bureau of Justice Statistics.

Half of the federal prison population is serving time for a drug offense. In contrast, more than half of the population in state prisons is serving time for a violent crime.9)Carson & Anderson (2016), note 7.

To the extent that the federal criminal justice system historically prosecuted drug crimes, this was primarily focused on large-scale drug rings. But in recent decades it has shifted from this mission. Many people who receive federal drug sentences are in the lower levels of the drug trade, were not caught with weapons or have limited criminal histories.
Specifically:

  • Nearly half (48%) of individuals receiving a federal drug sentence in 2009 were at or below the level of “street-level dealers,” which is defined as selling less than one ounce of drugs.10)Others in this group were “couriers” and “mules” who transported drugs and “brokers” who arranged sales. United States Sentencing Commission (2011). 2011 Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System.  Figure D-2, pages 165-7.
  • No weapon was involved in 82% of the cases in which someone received a federal sentence for a drug offense in 2016.11)United States Sentencing Commission (2017). 2016 Sourcebook of Federal Sentencing Statistics. Table 39: Weapon Involvement of Drug Offenders in Each Drug Type, Fiscal Year 2016.
  • Half (50%) of those who received a federal sentence for a drug offense in 2016 had either no previous term of imprisonment or minimal criminal histories.12)These individuals were classified in USSC’s criminal history Category I. Among those serving federal prison sentences in 2012, 35% were in this category. United States Sentencing Commission (2017), note 11. Table 37: Criminal History Category Of Drug Offenders In Each Drug Type, Fiscal Year 2016. See also: Taxy, S., Samuels, J., & Adams, W. (2015). Offenders in Federal Prison: Estimates of Characteristics Based on Linked Data. United States Department of Justice, Bureau of Justice Statistics.

Federal courts have been obligated to impose stiff mandatory sentences on these defendants despite their low levels of engagement in the drug trade. This can be seen from both the average and extreme sentences being served by those in federal prisons:

  • People serving a federal prison term for a drug offense were serving an average of 11.3 years in 2012.13)In 2016, the average prison sentence imposed on those entering federal prisons for a  drug offense—in contrast to the average sentence being served by those already there—was 5.6 years. Taxy, Samuels, & Adams (2015), note 12; United States Sentencing Commission (2017), note 11.  Figure E: Length of Imprisonment in Each General Crime Category, Fiscal Years 2012-2016.
  • Almost half (49%) of the 3,861 individuals serving a federal life-without-parole sentence in 2016 were convicted of a drug crime.14)Nellis, A. (2017). Still Life: America’s Increasing Use of Life and Long-Term Sentences. The Sentencing Project.
Federal Prison Population, 1980-2016
fed prison pop 1980-2016 for website
Source: Federal Bureau of Prisons.

II. The Recent Downsizing of the Federal Prison Population

Several recent reforms have scaled back the federal prison population, without harming public safety. The population in the custody of the Bureau of Prisons reached a peak in 2013, with 219,000 people.15)Carson & Anderson (2016), note 7. By 2016, this figure had declined by 12.5%, reaching 192,000. This was about twice the average nationwide rate of decarceration.16)The Sentencing Project (2017). U.S. Prison Population Trends 1999-2015: Modest Reductions with Significant Variation. To present the most recent figures, we provide here the custody count from the Bureau of Prisons’ website, which ends in 2016. For comparability, the cited report relied on the sentenced prison population from the Bureau of Justice Statistics (BJS). By that measure, the federal prison population contracted by 9% between 2011 (its peak year) and 2015. In contrast, the nationwide prison population declined by 5% between 2009 (its peak year) and 2015.

The reduction in the federal prison population was achieved through changes in sentencing law, sentencing guidelines, and prosecutorial charging policies.17)Haile, J. (2015). Federal Prisoners Decline, but It’s Not a Trend Yet. Open Society Foundation. In particular:

  • In 2007, the USSC reduced the sentencing guidelines used by judges for many crack cocaine convictions and applied this change retroactively, enabling sentence reductions for those already imprisoned.18)The United State Sentencing Commission (2007). U.S. Sentencing Commission Votes Unanimously To Apply Amendment Retroactively For Crack Cocaine Offenses.
  • Congress passed the Fair Sentencing Act (FSA) in 2010, which reduced the sentencing disparity between crack and powder cocaine by shortening sentences for certain crack cocaine offenses and eliminated the five-year mandatory-minimum sentence for simple possession of crack cocaine.19)Gotsch, K. (2011).  “After” the War on Drugs: The Fair Sentencing Act and the Unfinished Drug Policy Reform Agenda. The American Constitution Society. The USSC revised its sentencing guidelines following the FSA and in 2011 applied the reduced crack cocaine guidelines retroactively.20)Apuzzo, M. (2014, July 18). New Rule Permits Early Release for Thousands of Drug Offenders. The New York Times.
  • In 2014, the USSC voted to reduce the sentencing guidelines for most drug crimes and applied this amendment retroactively.
  • During the second term of the Obama administration federal prosecutors pursued fewer drug cases and Attorney General Eric Holder’s 2013 charging directive, part of the Smart on Crime Initiative, helped to reduce the proportion of federal drug cases carrying a mandatory minimum sentence.21)Holder, E. (2013). Memorandum to the United States Attorneys and Assistant Attorney General for the Criminal Division. Office of the Attorney General; United States Department of Justice (2013). In Milestone for Sentencing Reform, Attorney General Holder Announces Record Reduction in Mandatory Minimums Against Nonviolent Drug Offenders.
  • President Barack Obama also commuted federal drug sentences for 1,700 individuals.22)Eggleston, N. (2017). President Obama Has Now Granted More Commutations than Any President in this Nation’s History. The Barack Obama White House; Obama, B. (2017). The President’s Role in Advancing Criminal Justice Reform. Harvard Law Review. Notably, over 500 people who were serving life sentences received sentence commutations.
Property and Violent Crime Rates, 1960-2015
Prop and Violent Crime Rates, 1960-2015 for website
Source: FBI Uniform Crime Reports

These reforms reflect a changing political climate for criminal justice policy produced in part by the historic drop in crime rates. Nationwide rates of property and violent crimes have fallen by half since reaching their peak levels in 1991.

Researchers have shown that while this historic crime drop was not unique to the United States, the United States stands apart in its striking prison build-up during this period. Specifically:

  • Between 1988 and 2004, the United States was among 26 countries that experienced comparable reductions in crimes such as assault and personal theft.23)Tseloni, A., Mailley, J., & Garrell, G. (2010). Exploring the International Decline in Crime Rates. European Journal of Criminology, 7(5), 375–394. See also Tonry, M., & Farrington, D. P. (2005). Punishment and crime across space and time. Crime and Justice, 33, 1–39. But countries that implemented more punitive carceral or policing policies, such as the United States and, to a lesser scale the United Kingdom, did not experience sharper crime reductions than those that did not.
  • Though Canada has had a much lower homicide rate and incarceration rate than the United States, changes in the two countries’ homicide rates have “tracked each other very closely” since the 1960s.24)Thompson, S., & Gartner, R. (2014). The Spatial Distribution and Social Context of Homicide in Toronto’s Neighborhoods. Journal of Research in Crime and Delinquency 2014, 51(1), 88–118, page 92. Yet unlike the United States, the drop in Canada’s homicide rate has occurred alongside only modest growth in its incarceration rate.25)Doob, A., & Webster, C. (2006). Countering Punitiveness: Understanding Stability in Canada’s Imprisonment. Law & Society Review, 40(2), 325–367; Zimring, F. E. (2007). The Great American Crime Decline. Oxford: Oxford University Press.

Studies have also demonstrated that recent efforts to reduce prison sentences and downsize the prison population have not harmed public safety. For example:

  • In 2014, the USSC determined that individuals who had served reduced federal drug sentences following a 2007 reform did not have higher recidivism rates than their counterparts who had served longer sentences.26)United States Sentencing Commission (2014). Recidivism Among Offenders Receiving Retroactive Sentence Reductions: The 2007 Crack Cocaine Amendment.
  • States have also shown that making dramatic cuts in incarceration levels is not at odds with the goal of improving public safety. New Jersey, New York, and California have been national leaders in decarceration—downsizing their prison populations by over 25%—while often outperforming the nationwide crime drop.27)The Sentencing Project (2017), note 16; Mauer, M. & Ghandnoosh, N. (2015). Fewer Prisoners, Less Crime: A Tale of Three States. The Sentencing Project.

III. Upending Reforms Despite Research and Evidence of Success

Amidst this context, violent crime rates have begun to increase in certain cities and a growing number of Americans have been dying from opioid-related overdoses, especially in suburban and rural areas.28)Park, H. & Katz, J. (2016, Sept. 9). Murder Rates Rose in a Quarter of the Nation’s 100 Largest Cities. The New York Times; Park, H. & Block, M. (2016, Jan. 19). How the Epidemic of Drug Overdose Deaths Ripples Across America. The New York Times. Yet increasing already harsh federal sentences runs counter to research on effective crime and substance abuse policy.

As criminologists and many policymakers have cautioned, ratcheting up already punitive policies, in this case largely for non-violent offenses, is ineffective and harmful.29)Lynch, J., Heimer, K., Peterson, R.D., Miller, J., DeJong, C., Armstrong, G.,…Zhang, S.X. (2017). Statement of the American Society of Criminology Executive Board Concerning the Trump Administration’s Policies Relevant to Crime and Justice. American Society of Criminology. See also: Lee, M., Durbin, R., Paul, R. & Booker, C. (2017). Letter to the Attorney General on DOJ Charging and Sentencing Policy. Given the United States’ excessively high rate of incarceration, many people now entering the system are in the lower- and middle-levels of a drug operation. Incarcerating these individuals often results in their being replaced by other sellers willing to fill their roles, and does nothing to address the substance abuse problems that users, and sometimes the sellers themselves, struggle with. Increasing prison terms for these individuals also has a limited deterrent effect since most people do not expect to be apprehended for a crime, are not familiar with relevant legal penalties, or criminally offend with their judgment compromised by substance abuse or mental health problems.

Reviewing decades of research, the authors of a comprehensive 2014 National Research Council report explain that the best available data suggest “the successive iterations of the war on drugs… are unlikely to have markedly or clearly reduced drug crime over the past three decades.”30)Travis, J., Western, B., & Redburn, S. (Eds.) (2014). The Growth of Incarceration in the United States: Exploring Causes and Consequences. National Research Council. Washington, D.C.: National Academies Press, page 154. Reflecting more broadly on current levels of incarceration and crime, they conclude:

Given the small crime prevention effects of long prison sentences and the possibly high financial, social, and human costs of incarceration, federal and state policy makers should revise current criminal justice policies to significantly reduce the rate of incarceration in the United States.31)Travis, Western, & Redburn (2014), note 30, page 9.

Crime rates remain near 40-year lows and areas with rising crime and substance abuse problems require more effective policies than tougher sentences that have limited effect while causing great harm. This would include expanding access to community-based drug treatment programs and mental health services, as well as prison-based rehabilitative programs and subsequent re-entry services.32)Ghandnoosh, N. (in press). Minimizing the Maximum: The Case for Shortening All Prison Sentences. In C. Pettus-Davis & M. Epperson (Eds.), Smart Decarceration: Achieving Criminal Justice Transformation in the 21st Century. New York: Oxford University Press.

IV. Conclusion

Federal prisons are overcrowded and disproportionately comprised of people of color serving sentences for low-level drug offenses. The federal system may now be drifting away from smarter criminal justice policies that sought to end the era of mass incarceration, reduce racial and ethnic disparities in the criminal justice system, and enable better investments in public safety. Rather than turn away from the recent reforms in federal sentencing, President Trump’s administration and Congress should rely on research and evidence of successful reforms to develop more fair and effective substance abuse and crime policies.

 

Footnotes   [ + ]

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