Obama’s golden opportunity for criminal justice reform

This week, Barack Obama took steps to become the president who oversaw the greatest shift in U.S. criminal justice policy in more than four decades.

On Tuesday, the President delivered a speech before the annual convention of the NAACP in Philadelphia, affirming his commitment to addressing the “long history of inequity in the criminal justice system in America.”

The day before, he commuted the sentences of 46 federal drug offenders. Thursday, he’ll become the first sitting president in history to visit a federal prison.

President Obama has not previously distinguished himself as a maverick on criminal justice reform. While his administration’s Drug Policy for the 21st Century program rightly calls for more evidence-based approaches to addiction treatment, Obama oversaw an aggressive crackdown on the medical marijuana industry during the run-up to the last election, and he’s frequently laughed off the idea of legalizing pot for recreational use — no laughing matter for the more than 700,000 Americans arrested every year for marijuana crimes. He has been called a "scrooge” for issuing fewer pardons than any president since James Garfield, who was assassinated in 1881 after less than a year in office.

The President has been more aggressive on sentencing reform, though. In 2010 he signed the Fair Sentencing Act, reducing racially biased disparities in sentencing for crack and powder cocaine. In 2013 he instructed his Department of Justice to curb the use of mandatory minimum sentences for some offenses.

Since then his cautious stance on justice matters has been tested by more than a dozen bipartisan Congressional efforts to tackle the problem of mass incarceration. And now, the House of Representatives has presented a sweeping proposal that targets some of the most critically flawed components of American jurisprudence.  

Hours before the President took the stage in Philadelphia the House Committee on Oversight and Government Reform concluded a hearing on the Safe, Accountable, Fair and Effective Justice Act, which was introduced last month by Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) with more than two-dozen co-sponsors from both parties.

The SAFE Justice Act is an amalgam of policy initiatives championed by both the right and left. It includes addressing fiscal accountability in the criminal justice system and reining in an unruly federal regulatory code (a favorite talking point of Republican presidential candidates Sens. Marco Rubio and Ted Cruz). It’s rounded out by reforms long championed by progressives: reducing austere sentencing policies, creating programs for the mentally ill and improving inmate reentry opportunities.

Unlike most of the reform bills that preceded it, the SAFE Justice Act takes an expansive approach towards lowering costs and reducing recidivism. Groups such as Families Against Mandatory Minimums have applauded it for doing more than “tinkering around the edges” of criminal justice reform.

Though it’s a pioneering document overall, certain proposals in the bill stand out for their potential to inaugurate particularly radical changes to the status quo.

The first is the bill’s efforts in expanding harm-reduction initiatives. According to a new report from the Centers for Disease Control and Prevention, overdose deaths from heroin have risen nearly fourfold over the past decade, suggesting that our current punitive approach to illicit drug use has not improved public safety. Prison and residential treatment programs fare no better. The SAFE Justice Act addresses this by instructing the Bureau of Prisons and the Office of U.S. Courts to report within 90 days how they plan to expand access to medication-assisted treatment (MAT) for opioid addictions using substitute therapies such as methadone and Suboxone. Together these two drugs represent the best practical therapeutic option for treating heroin addiction — and yet they’ve found begrudging acceptance in the current abstinence-obsessed treatment culture, and remain hobbled by regulatory restrictions that are too often counterproductive. 

Another key section of the bill addresses questionable policing practices by reducing incentives for law enforcement officers to use controversial entrapment techniques by giving judges the discretion to ignore the evidence they produce during sentencing. These include reverse stings — where, for instance, police pose as drug dealers to arrest buyers. The bill also goes to the extraordinary length of highlighting “the inherent unreliability of informant or cooperator testimony,”  and questions the practice of compensating witnesses for their help in getting a conviction — a staple of modern policing and a contributor to wrongful convictions. Finally, it would mandate research into the fallibility of investigatory methods once regarded as reliable — including eyewitness testimony and some questionable forensic practices. 

The SAFE Justice Act also recognizes that criminal justice policies that are gratuitously punitive are ineffective, costly and immoral. It seeks to expand the use of supervised release as an alternative to pre-trial detention and award more earned-time credits for incarcerated inmates.

In both cases, the goal is to concentrate resources on high-risk offenders with an eye towards public safety. Contrary to popular belief, that doesn’t mean simply singling out violent offenders for the harshest treatment. As a June report from the Congressional Research Service points out: “[T]he crime someone is convicted of is not always the best proxy for the risk that person might pose to the community.”

The offender’s age plays a big role in policy, which is why the SAFE Justice Act calls for expanding compassionate release for inmates who are too old or infirm to be a public threat. But even youthful offenders whose crimes are categorized as “violent” — such as serving as a lookout during an armed robbery — may pose no real public safety risk. The bill addresses this problem through so-called Risk and Needs Assessments that weigh a range of factors, excluding the offense itself, to gauge an offender’s prospects for success.

These predictive models have shown moderate success in determining who is most likely to commit a crime. They are not silver bullets, but any attempt at criminal justice reform must acknowledge that a few mistakes are an acceptable price for reversing decades of injustice.

While some of the initiatives in the SAFE Justice Act are bound to meet resistance (Congressional analysts have given it a less than 10 percent of enactment) it’s hard to imagine a more promising opportunity for government to do the right thing. President Obama has a chance to go down in history as the leader who helped correct decades of injustice. Unless he jumps on this bill, it’s hard to see how he’ll manage to make that happen before the clock runs down.