The commentary was originally published in Inside Sources.
A former federal judge from central Illinois, Michael P. McCuskey, says the extreme sentences he handed down “were just crushing lives.” He sentenced Edward Douglas to life without the possibility of parole for selling 140 grams of crack cocaine in 2003.
Douglas, a father, was employed by the Chicago Transit Authority and had never been incarcerated. He did have two prior convictions for drug possession, however, which subjected him to the federal three-strikes statute and a mandatory minimum sentence of life imprisonment. Hundreds of cases like Douglas’ pushed McCuskey to leave the federal bench, disillusioned after 16 years.
After President Trump signed criminal justice reform legislation in 2018 that includes a provision to apply crack cocaine sentencing changes previously enacted to people in prison, a measure of rationality has come to federal sentencing. That law, the First Step Act, has led to almost 1,700 people receiving sentence reductions, most of whom have been freed. Ninety-one percent are African American. Douglas and dozens of others sentenced to die in prison are among the beneficiaries.
After being represented by the Decarceration Collective in his petition for a sentence reduction, Douglas returned home to his family this year.
The U.S. Sentencing Commission reports that the resentencing provisions of the First Step Act reduced the average sentence of 20 years by an average of six years for those who qualified. The reductions, while modest, are profound for the people and families ensnared by long prison terms, and who have been generally left out of criminal justice reforms until now.
After Douglas’ release from prison he shared an emotional story about when he first learned he would be going home. He cried, yelled and jumped for joy with the men he lived with in prison. They all celebrated the news but urged Douglas not to forget them. Because of political compromises, the First Step Act left behind many thousands of people in federal prisons, including individuals with similar cases to Douglas whose offense involved a different type of drug.
Congress should take its next step to address a broader cohort of incarcerated people with lengthy sentences.
The federal prison system is the largest in the country and harsh mandatory minimum sentencing policies significantly contributed to its population increase of 600 percent since 1980. Half of the people in federal prisons are serving sentences longer than 10 years. Almost 20 percent of the population is more than 50 years old.
Criminal justice research has long confirmed that people generally age out of crime, so long sentences provide diminishing returns for public safety. Tax dollars that could be used to invest in youth, improve schools, expand drug treatment and medical and mental health care, are instead invested in prisons to incarcerate a growing elder population despite their limited likelihood of recidivism. Policy should reflect the research.
The Second Look Act, newly introduced sentencing reform legislation from Senator Cory Booker and Representative Karen Bass, follows the lead of experts on crime and punishment and offers a transformational approach. The bill seeks to curb long sentences by offering a sentencing review by a federal judge to people with sentences longer than 10 years. Individuals who have served at least 10 years must show they are rehabilitated and are not a threat to public safety to qualify for a sentence reduction. People who are 50 or older would have a presumption of release because of their substantially lower recidivism rates.
Across the country the number of people serving long sentences, including life sentences, has increased despite recent declines in the overall prison population. The decline has been modest because it results from criminal justice reforms that largely ignore the growing population of people serving long sentences. Indeed, at the current pace of reform it would take 72 years to reduce the national imprisonment level by 50 percent.
For the bipartisan lawmakers in Washington, and the 2020 presidential candidates who have pledged to address the problems in the criminal justice system, a broader approach to challenge mass incarceration and promote public safety is long overdue.
Kara Gotsch is director of Strategic Initiatives at The Sentencing Project, a national criminal justice research and advocacy organization. You can follow her on Twitter at @KGotsch.