UPDATE: Sen. Webb will introduce legislation today to overhaul the criminal justice system.


Our criminal justice system is broken. The US represents 5 percent ofthe world’s population but accounts for nearly 25 percent of its prisonpopulation. We are incarcerating at a record rate with one in 100American adults now locked up–2.3 million people overall. As a New York Times editorialstated simply, “This country puts too many people behind bars for toolong.”

But people who have been fighting for reform for decades are seeing newopenings for change. The fiscal crisis has state governors andlegislators looking for more efficient and effective alternatives tospending $50 billion a year on incarceration. At the federal level,there is reason to believe that the Obama administration and areinvigorated Department of Justice will take a hard look at theinequities of the criminal justice system and work for a smarter andmore effective approach to public safety. Finally, there areCongressional leaders–none more prominent than Senator Jim Webb–who understand that the system isn’t functioning as it should andthere is an urgent need for reform.

Indeed advocates for reform couldn’t ask for a better standard-bearerthan Senator Webb. As a decorated former Marine and ReaganAdministration official no one is going to slap him with thepolitically-dreaded “soft on crime” label that has stymied so manyDemocrats who have taken on this issue in the past. There is a “Nixongoes to China” quality to Webb’s call for change–a law and order manwho described his reform effort as “an act not of weakness but of strength.”

As a journalist Webb wrote on the need for reform after visitingJapanese prisons and seeing a fundamental fairness and effectivenessthat he recognized as lacking in the US criminal justice system. As aSenator he’s held hearings which have highlighted racial disparities in sentencing, the staggering costs of incarceration and effective and cost-efficient alternatives,and a futile and racially biased drug policy.

Now Senator Webb is poised to establish a commission with a broadmandate to examine issues like drug treatment, effective parole policy,racial injustice, education for inmates, reentry programs–the myriadof issues intertwined in wasteful, ineffective criminal justicepolicies. Look for him to lay out that mandate with specificity in thecoming weeks, and make an aggressive push to bring this issue to theforefront in both Congress and the media, much as he was able to do withthe GI Bill.

Webb sent me an e-mail saying, “I feel very strongly about the need toput the right people behind bars. But we’re locking up the wrong peopletoo often all across our country. Mental illness isn’t a crime. Addiction isn’t a crime. We need to make sharp distinctions betweenviolent offenders and people who are incarcerated for non-violentcrimes, drug abuse and mental illness. We must raise public awarenessabout the need for criminal justice reform and find viable solutions. My staff and I are finalizing proposed legislation that could beintroduced in the next two weeks to establish a national commission thatwill take a comprehensive look at where our criminal justice system isbroken and how we can fix it.”

While it’s critical that Senator Webb is raising these issues at thenational level where they have received so little attention, Marc Mauer,Executive Director of The Sentencing Project, points out that 90 percent of the US prison population is incarceratedin state prisons and only 10 percent in federal prisons. Mauer saidthere is a growing awareness at the state level that our drug andsentencing policies have “gotten out of hand” and that the fiscal crisispresents an opportunity to do something about it.

“The fiscal crisis gives governors and legislative leaders the openingto do what many of them have known should be done for some time, but[they] didn’t have a political comfort level to do it,” Mauer said. “Now they can talk about issues like excessive sentences for drugoffenders, and too many people being sent back to prison for technicalviolations of parole.”

One legislative reform effort is occurring in Senator Webb’s ownVirginia–a state that abolished parole in 1995 and is second only toTexas in number of executions. This session, a bill will be taken up that would allow prison officials to releasenon-violent offenders 90 days before their sentences are up. This wouldprimarily be achieved by offering drug treatment programs at thebeginning of an individual’s incarceration rather than only at the end. (Which begs the question–if we are truly serious about rehabilitationof inmates why are we only offering addicts treatment for a disease atthe end of a sentence?!) Upon successful completion of the treatmentprogram these individuals would be eligible for early release. Thelegislation also provides for more non-violent offenders to be sent tocommunity-based programs or be monitored electronically rather thanincarcerated.

A similar program was undertaken in Washington state and a four-year study of 2,600 inmates released early showed significant cost savings and no negative consequences in terms ofrecidivism. Mauer said the coalition rallying around the Virginiaproposal is diverse and particularly encouraging in what hastraditionally been a “tough on crime state.”

Other states taking action on criminal justice reform include: Michiganwhich is addressing re-entry issues and shifting resources to paroleofficers and community-based programs; Kansas cut parole revocations by50 percent in a two-year period by increasing oversight of parole officers andusing alternatives to incarceration such as increased drug testing andelectronic monitoring; California issued a court ruling this week thatthe state must address its failure to provide adequate health andmedical services in prisons by reducing the population by a third–nearly 55,000 persons–through “shortening sentences, divertingnonviolent felons to county programs, giving inmates good behaviorcredits toward early release, and reforming parole.”

Now is also a hopeful, unique moment in New York state where the topthree political leaders all support real reform and there is a chance torepeal the wasteful, ineffective, and unjust Rockefeller-era drug laws–after thirty-five years! This week I moderated a panel–cosponsored by The Nation, the Correctional Association of New York,and The New School’s Center for New York City Public Affairs–ofgovernment officials and reform leaders working to downsize prisons,reform probation and parole, and provide effective community-basedprisoner reentry programs. The Correctional Association of New York isleading the “Drop the Rock” campaign that includes an Advocacy Day in Albany in March.

Greg Berman, Director of the Center for Court Innovation–a non-profit think tank in New York–said, “The question is: can wecome up with meaningful, cost-effective responses to non-violent crimethat do not rely on incarceration? Drug courts, mental health courtsand community courts–the so-called ‘problem-solving courts‘–all show enormous potential. Most criminal cases are notcomplicated in a legal sense, but they are committed by people withcomplicated lives. Scratch the surface and you find addiction, mentalillness, joblessness, etc. These problem-solving courts are linkingoffenders to drug treatment, counseling, job training in lieu ofincarceration. But unlike some rehabilitation efforts in the past, theyare requiring participants to return to court on a periodic basis toensure accountability. There is a growing amount of evidence suggestingthat this approach can change sentencing practice–dramaticallyreducing the use of jail, for example–while also reducing bothsubstance abuse and recidivism.”

Despite a fiscal crisis which has caused at least forty states to make or propose cuts in vital services like education and health care–and ample evidence of the effectiveness of alternatives toincarceration–the battle for reform on the state level is still adifficult one.

“It’s far from a done deal that this will automatically lead to prisonreductions,” Mauer told me. “One option is to say let’s reconsidersentencing policies, reduce the population, close prisons and savemoney. The other choice is to say let’s cut out alternatives toincarceration, community-based drug treatment, and other programs, andyou can see those cost savings very quickly. I think that would be ashortsighted way to go but it’s going to be tempting for a lot oflegislators to think about doing that. I think that’s the battle thatis going to be fought in different states.”

That’s why the effort of Senator Webb and his colleagues at the federallevel is so critical. They can galvanize support for repealing unjustpolicies like those that treat a low-level user of crack the same as amajor drug dealer, or five grams of crack the same as 500 grams of powder. They can ensure that we use needed federal dollars for public safety insmart and effective ways. For example, the Second Chance Act to providejob training, drug treatment, and other re-entry programs was passedwith broad bipartisan support in 2008 but no funds have beenappropriated. Finally, with Senator Webb’s commission, we can begin theprocess of transforming our criminal justice system so that prisons arereserved for violent offenders and other vital resources are used tosupport alternatives like drug treatment, effective parole policies,education, and reentry programs.