Under Obama, America’s addiction to mass incarceration seemed to fade. But then came Trump and a hardline attorney general
Shauna Barry-Scott remembers the moment she felt the American fever for mass incarceration break. It was an August morning in 2013, and she was in a federal prison in the mountains of West Virginia. She remembers crowding into the TV room with the other women in their khaki uniforms. Everyone who could get out of their work shifts was there, waiting. Good news was on the way, advocates had told them. Watch for it.
Some of her fellow inmates were cynical: it seemed like millions of rumors of reform had swept through the federal prison system to only then dissolve. Barry-Scott did not blame them, but she was more hopeful.
At age 41, she had been sentenced to 20 years in prison for possession with the intent to distribute 4.5 ounces of crack cocaine. “Think of a 12oz can of Coke, cut that in a third,” she explains. “And that’s what I got 20 years for.” The sentence made no sense to her. Barry-Scott’s son had been murdered in 1998, and the men charged with shooting him to death had to serve less time than she did – six and seven years each, she says.
But the amount of drugs in her possession had triggered a mandatory minimum sentence, part of a now-infamous law passed in 1986 to impose punitive sentences for certain offenses amid a rising panic over drug abuse. In 1980, some 25,000 people were incarcerated in federal prisons. By 2013 after four decades of America’s war on drugs, there were 219,000. Yet this population was just a small fraction of the estimated 2.3 million Americans locked up not only in federal prisons, but also in state facilities and local jails.
Her story is one of many that show how “mandatory minimums” unleash draconian sentences on people caught selling small amounts of drugs.
For those with prior convictions, even relatively minor ones, mandatory minimum sentences can be doubled, adding decades of additional punishment. Third offenses for drug crimes can result in a mandatory minimum penalty of life imprisonment.
Barry-Scott had a prior conviction that had carried a penalty of only one year’s probation, she says. As a result, “what would have been a 10-year sentence was automatically doubled to 20”.
As she watched CNN that summer day, Barry-Scott scribbled down notes. Barack Obama’s attorney general, Eric Holder, was pushing through a set of “smart on crime” reforms that included directing federal prosecutors to avoid triggering mandatory minimum sentences when dealing with lower-level, nonviolent drug offenders.
For many years research and advocacy groups had opposed mandatory minimum sentences as cripplingly expensive, marked by racial disparities and of dubious value for crime prevention. But the laws were still on the books and the federal prison population continued to grow.
Holder was announcing that federal prosecutors were being instructed to use minimum sentences in fewer, and more serious, cases. Central to this push for change, said America’s first black attorney general, was the evidence that America’s harsh drug enforcement had fallen more heavily on African Americans.
Watching the announcement of Holder’s reforms back then, Barry-Scott says, she could feel a palpable change in the energy around her.
“Everything he said made sense,” she says. She and the other women would spend hours discussing what they had heard. “By the time we went to bed that night, everyone went to bed pretty happy.”
Over the next three years, America’s federal prison population would shrink, representing the first downward trend in 33 years. Today, Barry-Scott herself is free, part of a group of more than 1,900 inmates granted clemency by Barack Obama in the largest application of presidential mercy in half a century.
But she is no longer so hopeful. Less than two years after her family drove into the West Virginia mountains and brought her home, Barry-Scott watched with anger and disbelief as Donald Trump’s new attorney general, Jeff Sessions, tried to bring back the tough policies in effect during America’s war on drugs.
In May, Sessions reversed his predecessor’s initiative, claiming, without evidence, that Holder’s sentencing changes had led to America’s sudden 10.8% increase in murders in 2015.
Sessions, a former senator from Alabama known for his hardline views on crime and legal immigration, had been denied a federal judgeship in 1986 over alleged racist comments and attacks on the NAACP and the American Civil Liberties Union (he first admitted, and then disputed, calling these organizations “un-American”). Martin Luther King’s widow had written a letter opposing Sessions’ appointment, saying he had “used the awesome power of his office to chill the free exercise of the vote by black citizens” through “politically-motivated voting fraud prosecutions”.
Appointing Sessions as attorney general “was like hosting a Confederate flag above the Department of Justice,” says Eugene Jarecki, a filmmaker who directed The House I Live In, an award-winning 2012 documentary about mass incarceration.
What is so striking about the move by Sessions and the Trump administration is that it is at odds with much thinking across the globe about the war on drugs, including among leaders in Latin America. Ever since 2011 when Juan Manuel Santos, as the president of Colombia, declared that the war on drugs had failed, a growing international consensus has been forming on the need for a new conversation to discuss the violence, bloodshed and ruined lives that followed in the wake of the war on drugs – whether in Colombia, Mexico or America.
The change in direction in the US has come at a time when America has been also seeing an increasing number of states liberalizing laws on the consumption and sale of marijuana. Into this evolving international and national context has stepped Sessions, with a very different approach.
The new attorney general and his initiatives represent a huge setback for advocates who have worked for decades to build bipartisan agreement that America’s war on drugs had been a failure and it was time to reverse the damage.
“To see Sessions now, under President Trump, try to reverse the major progress that Eric Holder and President Obama had made, it is just sickening,” Barry-Scott says. “Everything in us is screaming, ‘please don’t do this.’”
‘A new all-out offensive’
When Richard Nixon declared a national “war on drugs” in 1971, he announced, “America’s public enemy No 1 in the United States is drug abuse. In order to fight and defeat this enemy it is necessary to wage a new all-out offensive. This will be a worldwide offensive,” he promised. “If we’re going to have a successful offensive,” he added, “we need more money.”
By 1986, the year Ronald Reagan warned against the “new epidemic of smokable cocaine, otherwise known as crack,” Len Bias, a young black basketball star who had just been picked to join the NBA ranks, died of an overdose. That year Congress passed the Anti-Drug Abuse Act, which established mandatory minimum sentences for crimes involving specific amounts of drugs. The law created a remarkable 100 to 1 disparity in the length of sentences for possession of of crack cocaine (then associated with low-income, often African American drug users) compared with those for possession of the same amount of powder cocaine, the choice of wealthier white drug users.
Before 1986, the average federal drug sentence for a black American was 11% longer than one for a white American. After 1986, the disparity spiked: the average length of a federal drug sentence for a black American became 49% higher than one for a white person.
“The war on drugs has never been about the war on drugs; it’s always been about controlling and prosecuting and persecuting certain communities,” says Michael Collins, the deputy director for national affairs at the Drug Policy Alliance in Washington. “This is not a scientific judgment on drugs or what drugs do to you. This is about people governed by zealotry,” he adds. “The very foundation of the war on drugs is racism and xenophobia.”
America’s drug war seems increasingly “intended as a war on the poor”, Baltimore journalist David Simon told the Guardian in 2013. “It may have begun a long time ago as a war on dangerous drugs, but at some point it morphed, to the point where it was really about social control,’’ added Simon, who is also known as the creator of The Wire.
As the US murder and violent crime rate spiked during the crack epidemic in the late 1980s, and political and media coverage about violence reached a high pitch, drug abuse briefly became America’s No 1 issue: the New York Times reported in 1989 that 64% of Americans named drugs as most important issue in the country, one of the highest single-issue priorities recorded in any national poll.
For decades, reciting law and order slogans has been the path of least resistance for politicians – and the policymakers who sign such harsh legislation have not been held responsible for its consequences.
“I am unaware of any legislator who has gotten into political trouble for codifying a simple-minded slogan or soundbite that pushes up the incarceration rate with no effect on crime,” says Bobby Scott, an African American Democratic congressman from Virginia who has been fighting for a better approach to criminal justice since he was first elected in 1993. “I am aware of many politicians who voted for intelligent, research-based initiatives that reduce crime and save money, and because they’re labeled ‘soft on crime’ they get in political trouble.”
In recent years, driven by the enormous price tag of mass incarceration for taxpayers, reforming America’s criminal justice system has become a bipartisan effort, with the Republican mega-donor Koch brothers and the advocacy group Right on Crime supporting the cause, and conservative states like Texas leading the way on reducing their prison populations.
Rick Perry, the former Texas governor who now serves as Trump’s energy secretary, was one of the many Republicans who signed on to these reforms. “After 40 years of the war on drugs, I can’t change what happened in the past,” he said at the World Economic Forum in 2014. “What I can do as the governor of the second largest state in the nation is to implement policies that start us toward a decriminalization and keeps people from going to prison and destroying their lives, and that’s what we’ve done.”
In 2010, Congress acknowledged the troubling racial biases and revised the law, reducing the disparity in sentencing for crack offenses compared with those for powder cocaine from 100 to 1 to merely 18 to 1. Then-senator Sessions signed on to support the Fair Sentencing Act and had backed reducing this disparity for years. He conceded in 2009, “I definitely believe that the current system is not fair and that we are not able to defend the sentences that are required to be imposed under the law today.” But a former Obama staffer wrote that even as Sessions supported the law, he was holding back reform: while other Republicans supported reducing the disparity to 10 to 1, Sessions “insisted on reducing it to 18 to 1”.
“He is an outlier in terms of how he thinks about drug policy even with the Republican party,” Collins says. “He was an outlier and a loner when it came to policy-making in the Senate. The problem we now face is this outlier is the most powerful law enforcement officer in the country.”
“You are never going to win the war on drugs. Drugs won,” Koch Industries executive Mark Holden told reporters in Colorado in June, expressing frustration at Sessions’ return to war on drugs policies and rhetoric.
“Illegal drug usage is at the same or higher levels now than it was when we started the war on drugs,” Holden, who leads the Koch criminal justice reform efforts, told the Guardian. “We need to go to a different approach.”
Sessions’ rollback of Holder’s sentencing reforms has been hailed by some law enforcement groups, and the Justice Department has also defended Sessions’ changes by pointing to his backing from people “actually on the front lines dealing with violent criminals on a daily basis”.
Among Sessions’ supporters in law enforcement are the Fraternal Order of Police (the nation’s most prominent police union), the Federal Law Enforcement Officers Association, and the National Association of Assistant US Attorneys, which represents the frontline federal prosecutors whom Holder had tried to rein in.
Larry Leiser, the national association’s president, says that many federal prosecutors believe that tough mandatory minimum sentences are a crucial tool in convincing lower-level drug defendants to cooperate with the government when it’s prosecuting the higher-ups involved with the criminal activity.
“The tools we have [to tackle drugs and violence] are the tools that Congress has created for us, Leiser says. “We’re just trying to hold on to the ones we’ve got.”
“Some organizations and people like to make these drug traffickers the victims. What about the people whose lives they kill and the lives they destroy?” Leiser asks. “We’ve lost our way on this issue; we’ve failed to focus on the victims.”
One of Sessions’ suggestions, which he has made multiple times, is that the Obama administration’s modest changes in federal sentencing policy were responsible for the nearly 11% increase in total murders the country saw in 2015.
Leiser and Patrick O’Carroll, the executive director of the Federal Law Enforcement Officers Association, both say they believe the Obama administration’s modest criminal justice reforms are connected to 2015’s increase in murders.
“If you have less drugs in the marketplace, there are less people dying and fighting over the drugs, and you’re going to have less murders,” Leiser says.
Richard Rosenfeld, a leading criminologist who authored a Justice Department-funded study on the 2015 murder increase, says he knows of no research or data to support a link between federal sentencing changes and the uptick in murders. Because 2015’s murder increase does not represent a clear-cut nationwide trend – some big cities saw sharp spikes in the number of murders that year, others saw little or no change – it seems unlikely that a federal policy change could explain it, he says.
The idea that resuming longer sentences would reduce violence is also not supported by evidence, Rosenfeld says: “Returning to a period of lengthy mandatory sentences for drug offenders is not likely in my view to have much of an effect on street violence.”
In fact, one of the most comprehensive surveys of research examining the effects of tough drug law enforcement found that the tactic sometimes backfired and led to more violence, rather than less.
“By removing key players from the lucrative illegal drug market, drug law enforcement has the perverse effect of creating new financial opportunities for other individuals to fill this vacuum,” the researchers wrote, and this competition to fill the openings in the drug market sometimes fuels drug-related violence, rather than making streets safer.
‘It is both destructive and vapid’
Exactly what effect Sessions’ reversals will have on America’s prison population remains to be seen. But data released last month by the US Sentencing Commission suggested that Holder’s “smart on crime” policies were having a real, if modest, impact.
The percentage of inmates subject to mandatory minimum sentences had decreased by five points since 2010. Most strikingly, gaps between black offenders and white offenders had narrowed. While black offenders were still the least likely to get relief from a mandatory minimum sentence, now only three points existed between the percentages of white and black offenders receiving relief. In 2010, the gap had been almost 12 percentage points.
Even after Holder’s changes, the number of prisoners serving mandatory minimum sentences still made up more than half of the total prison population.
But by the time the research was published suggesting that the “smart on crime” approach was working, Holder’s policy changes had already been revoked.
Since Trump’s appointment of a new chief of staff, the president’s public feud with his attorney general has cooled off. Yet even if the president eventually fires Sessions, it seems most likely that his sharp changes in sentencing and criminal justice policy will survive without him, says Vanita Gupta, who led the Justice Department’s civil rights division under Obama.
“He’s already, in very short order, reversed all of those things,” Gupta says. “It would require somebody coming in to actively and affirmatively undo those policies, and they have a lot of support in the president and his administration,” she adds. “It’s not that easy. I think it’s hard to bank on that.”
The Trump administration’s war on drugs, Jarecki says, is like its approach to so many issues: “It is both destructive and vapid.”
“We’re living in a time where speaking less bluntly about these monstrous public antagonists would be immoral,” he says.
“Whenever anyone says that they’re going to turn the clock back on the war on drugs, they are willingly putting the lives of hundreds of thousands of children, of innocent people, at risk,” Jarecki says. “The morality of it is all we should care about. Will the country actually unlearn the lessons that mass incarceration is hurtful?”
Sessions’ endorsement of failed 1980s crime policy has not gone unopposed. Police chiefs in some of America’s biggest cities have publicly pushed back against the attorney general’s claims about immigration, drugs and violence. Prominent conservatives in the Senate have publicly disagreed with his sentencing rollback and other criminal justice reversals.
The public and media response to the opioid and heroin epidemics, which are now devastating white communities, are very different from the reactions to the crack epidemic of the 1980s.
“You notice nobody’s talking about mandatory minimums,” Scott, the Virginia congressman, says, “because the mandatory minimums were so draconian that no one who represented an area where people were actually getting these kinds of sentences could possibly withstand the public revolt if they tried to respond to the opioid crisis with five-year mandatory minimums with possession of a weekend’s worth of pills.”
For some black Americans, that change is both a sign of progress and another troubling mark of how deeply racism warps US politics.
“It is hard to describe the bittersweet sting that many African-Americans feel witnessing this national embrace of addicts,” law professor Ekow N Yankah wrote in an op-ed last year. “It is heartening to see the eclipse of the generations-long failed war on drugs. But black Americans are also knowingly weary and embittered by the absence of such enlightened thinking when those in our own families were similarly wounded.”
In Youngstown, Ohio, Barry-Scott, who has just turned 55, is applying for grants to support renewed after-school and summer programs in the same community center she attended as a child. She is on track to complete an expedited program that will allow her to finish her 10 years of supervised release early, and she continues working as a criminal justice reform advocate.
What’s most devastating about the renewed push for more incarceration, she says, is how much damage the war on drugs has already caused. Even with the blessing of the clemency she received – and with her tremendous fortune to be returning home – her family is still processing the toll of her sentence.
Barry-Scott left behind five of her children when she went to prison for a decade. “My oldest daughter was left with the task of trying to raise the youngest ones,” she says. Without her around, her husband had to work twice as hard to support the family. “We are still feeling the impact of what that did to my kids, psychologically and emotionally,” she adds. “It’s something we work on daily.”
For some of the women in prison with her in West Virginia, the damage done by their being away from their families was even greater. Barry-Scott remembers one young woman who was up every morning, weeping on the phone. Then she learned that the young woman was a mother, and her daughter was describing being sexually abused in her mom’s absence. The child had been young, only about six years old. “You’re telling me you couldn’t let her do community service, pay a fine, do something other than take her away from her child?” asks Barry-Scott.
“How do you heal from that?” Barry-Scott asks. “Countless children were killed, harmed, lost to the system. How do we count that toll? Will we ever really know?”
guardian.co.uk © Guardian News & Media Limited 2010