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HRDC director Paul Wright quoted re current criminal justice reform efforts, Jan. 28, 2016.

What America's Creeping Criminal Justice Reform Looks Like From the Inside


By Seth Ferranti

As Robert Booker says now, he never should have been selling drugs.

He came from a loving middle-class family in Detroit, with parents who tried to instill their values and strong work ethic. But he also came of age in the mid-1980s, when crack was flooding America's inner cities, and the money to be made from selling cocaine proved too tempting. More than 30 years later, Booker is still paying the price.

In 1994, at age 27, Booker was found guilty of a crack conspiracy. The trial judge initially sentenced him to 20 years, but, after a series of appeals by federal prosecutors, another judge upped his sentence to life without parole. That was in turn later reduced to 38 years. The ACLU profiled him in a 2013 report titled "A Living Death," which chronicled the injustices of nonviolent offenders sentenced to die behind bars.

"I've been incarcerated for 22 years now," Booker told me recently in an email from FCI Milan in Michigan, "and I'm waiting on the president to give me clemency."

So far, President Barack Obama has granted clemency to 184 federal inmates, including 95 who had their sentences commuted this past December. Most of those freed were nonviolent drug offenders like Booker.

"I do believe we are moving into a new era, where both Democrats and Republicans, liberals and conservatives, are agreeing that our system of laws is over-criminalized and our prison systems are expensive and ineffective," said P.S. Ruckman Jr., a professor at Northern Illinois University and the editor of the blog Pardon Power. "Alternatives to incarceration, clemency, and reform of our laws are increasingly popular with lawmakers on both sides of the aisle."

Last year, the US Sentencing Commission changed its guidelines to eliminate the disparity between prison terms handed out for crack and powder cocaine. That change is reduced Booker's sentence from life to 38 years. It also allowed more than 4,000 federal drug offenders to be released early.

"This was the largest single-day release in federal system history," said Douglas W. Burris, the chief federal probation officer in the Eastern District of Missouri. The release prompted fears of a massive crime wave, which, Burris noted, proved to be unfounded.

"Chicken Little was wrong, the sky did not fall," he said. "The majority of those released are reconnecting with their families and working hard to be good citizens in their communities. 

Betsy Jividen, a deputy federal prosecutor in the Northern District of West Virginia, said her office's approach "will continue to evolve" in line with the the Smart on Crime Initiative, a comprehensive review of the criminal justice system launched by then-Attorney General Eric Holder in 2013. But Jividen said she and her colleagues still plan to go after drug dealers, along with a wide variety of other non-violent criminals.

"Prosecutors working closely with regional task forces will ensure that we are targeting mid-level and upper-level drug trafficking organizations," Jividen said. "We will continue to pursue narcotics, firearms, white collar, and public corruption offenses and to develop our multi-jurisdictional investigative partnerships to identify recognized federal interests and to make sure that charging decisions are appropriate to each defendant's conduct."

In other words, Jividen is saying that federal prosecutors plan on going after the criminals who count — not merely anyone caught with even a tiny amount of illegal drugs, as has largely been the practice over the last 25 years.

Jividen also noted that her office is expanding its use of "preventative and diversion programs," such as drug courts and outreach programs in which drug users are diverted to treatment instead of prison.

While some federal prosecutors say they are becoming more judicious about who they charge, one key aspect of the federal court system remains unchanged. Many defendants still face mandatory-minimum sentences, a policy enacted by Congress in the late 1980s that helped swell the US prison population to unprecedented levels. At the end of 2014, the most recent data available from the Bureau of Justice Statistics, more than 2 million Americans were incarcerated and 6.8 million were under some form of correctional supervision. Nearly half of all federal inmates are locked up for drug offenses.

The mandatory-minimum rules handcuff judges, requiring them to sentence defendants convicted of certain offenses to lengthy prison terms no matter the circumstances. It's a rigid structure that doesn't take into account the individual circumstances of a person's makeup and why they got involved in drugs or crime in the first place. According to the Pew Research Center, 63 percent of Americans say we should move away from mandatory-minimum sentences.

"I would ask prosecutors to look into a person's background sincerely because I… [had] never been in trouble," Booker said. "Because I refused to snitch, they sentenced me to life in prison."

Paul Wright, the director of the Human Rights Defense Center and a former prisoner himself, said that the recent wave of reforms by the Obama administration are essentially a drop in what is a very big bucket created by the prison-industrial complex.

"[The year] 2015 saw a lot of talk about criminal justice reform, but little in the way of actual change," said Wright, who is also the editor-in-chief of Prison Legal News. "The US opened a prison every two weeks for most of the 1990s and doubled its prison population between 1990 and 2000. No one is claiming the reverse will happen and the prison population will dwindle to even 2 million anytime soon, or that prisons will close in significant numbers."

Wright also noted that while the reforms have freed some inmates, virtually nothing has been done to improve conditions for the millions of others who are still incarcerated. He cited the exorbitantly high fees that prisoners are charged for phone calls to their families or items from prison commissaries, an extra burden for families of prisoners, who usually foot the bill for their loved ones serving time.

"No one is even talking about improving treatment and conditions for prisoners or bringing any degree of transparency or accountability to the criminal justice system or to even slow down, much less stop, the financial exploitation of prisoners and their families," Wright said.

For every prosecutor like Jividen who believes in the Smart on Crime initiative, there are others who call for locking up drug offenders and throwing away the key. Mendoor Smith knows this from experience: He served a 10-year sentence after being convicted in 2004 for possession with intent to distribute 36.1 grams of weed. Prior convictions led to his stiff sentence. He is out now and on federal probation.

"The federal criminal justice system is still in the terrible state of placing the burden of proof on the defendant in many instances to prove his innocence, as opposed to the prosecution proving his guilt," Smith said. "From the arrest, an offender has a very steep uphill battle, and many of the protections that the Constitution affords an offender are eroded in the federal system."

Smith noted that many defendants are denied the right to a fair trial because people accused of crimes are often pressured to plead guilty. Federal prosecutors have a 93 percent conviction rate when cases go trial, and those convicted after first claiming their innocence face substantially longer sentences. Under what's called "acceptance of responsibility," offenders get less time the faster they plead guilty.

"The Obama administration has made some strides, but in the end they have been very minimal," Smith said. He called for sweeping changes that would allow inmates to have their sentences reduced for good behavior, and for additional resources to be devoted to the post-conviction relief process so that prisoners can have a better chance of proving their innocence. "Until this system is cleaned up it will continue to be a black eye in America's criminal justice system," he said, referring to the appeals process.

Though the clemency initiative and relaxed laws have allowed several thousand deserving inmates to be released, thousands more are still serving unjust sentences, including Booker. He applauded the president for taking action, but pointed out that it will take more comprehensive reforms by Congress and officials through the criminal justice system to really make a difference.

"I feel that the Clemency Project was a good idea," he said. "I think that they should have had individuals place their time of incarceration into the computer and work on the guys like myself who've done more time for a 10-letter word (conspiracy) than a murderer or a child molester," he said. "I like the fact that Obama is trying to help the ones who he can help. I know society feels that he could do a lot more, but when you really think about the president, there's only so many things that one man can do."

Seth Ferranti has been writing about the injustices of the drug war for almost two decades. Follow him on Twitter: @sethferranti