US: Uncertain Future for Criminal Justice Reform

An election last week brought Barack Obama to the presidency and produced a flood of expectation among Americans and people watching from abroad. Participation at the ballot was of course denied to those 5.3 million Americans who cannot vote because of laws that disenfranchise felons. For some voters and many advocacy groups, the issue of criminal justice policy was a deciding factor in this election. One needs not look far to understand why: the United States has less than 5 percent of the world's population, but a quarter of the world's prisoners. There are 2.3 million people behind bars, many incarcerated on drug-related charges.

Now that Obama has been elected many are hopeful that change will come and quickly. On November 7, the 2009 Criminal Justice Transition Coalition, which includes The Sentencing Project and 20 other national organizations, released a collaborative report titled Smart on Crime: Recommendations for the Next Administration and Congress. The report contains comprehensive policy recommendations for the Obama administration and democratic-run Congress. The report includes the following statement:

"Americans of all political stripes, and especially professionals with experience in every aspect of the criminal justice system, recognize that the system is failing too many, costing too much, and helping too few." Included among the recommendations to overcome these challenges are: “Eliminate the crack cocaine sentencing disparity2; expand alternatives to incarceration; fund prisoner reentry through the Second Chance Act; extend federal voting rights to people released from prison; restore welfare and food stamp eligibility to individuals with drug felony convictions; and analyze and reduce unwarranted racial and ethnic disparity in the federal judicial system.”

Those who are invested in criminal justice reform are anxiously looking towards the new administration in anticipation of what early moves will be made. Surprisingly, the election period offered few clues. Issues related to criminal justice are usually a central feature in election debates and news coverage during election periods. Many past presidential candidates have claimed to be “tough on crime” and pinpointed the reverse onto their opponents as an attack strategy. The prime example of this kind of campaigning tactic is the 1988 presidential election, when Massachusetts Gov. Michael Dukakis, who had led Republican Vice President George Bush in early opinion polls, came under attack for his support of a furlough program that allowed a convicted murderer named William Horton - dubbed "Willie" in campaign ads – to leave prison in 1986 and subsequently rape a Maryland woman. Contrastingly, the Obama and McCain campaigns paid uncharacteristically little attention towards the issue.

A more liberal policy stance than George W. Bush or Bill Clinton

The Sentencing Project is optimistic about the future given Obama’s record.  The organization’s website claims that “Both President-elect Obama and Vice President-elect Biden have been supportive of criminal justice reforms while in the U.S. Senate and could aid efforts to address unfairness in the system.” The site cites bills introduced by Biden and cosponsored by Obama, such as the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007 (S. 1711), which aimed to “eliminate the 100 to 1 quantity-based sentencing disparity between crack and powder cocaine.”

When Obama did raise issues related to criminal justice during his campaign, his comments generally suggested a more liberal policy stance than George W. Bush or Bill Clinton. For example, On September 9, at the Third Annual Prisoner Reentry Summit held San Francisco, Obama commended San Francisco city leaders for their “innovative work to reduce recidivism” and pledged to create opportunities for former prisoners if elected. He vowed to “create a prison-to-work incentive program, modeled on the successful Welfare-to-Work Partnership, to create ties between employers and third-party agencies that provide training and support services to ex-offenders and to improve ex-offender employment and job retention rates.”

A new Attorney General could mean hot button issues in new directions

However, Obama’s unclear stance on Capital Punishment leaves many prison reform activists feeling unhopeful. "While the evidence tells me that the death penalty does little to deter crime, I believe there are some crimes — mass murder, the rape and murder of a child — so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment," he wrote in his memoire, "The Audacity of Hope." Generally, Obama presents a mixed bag when it comes to what policies he will and will not support.  While in the Senate, he opposed legislation making it easier to impose the death penalty for murders committed as part of gang activity, but he also publically supported imposing death sentences for those convicted of killing volunteers in community policing programs and for particularly violent homicides of elderly people.

In June 2008, Obama publically contested the Supreme Court's decision outlawing executions of people who rape children, claiming that states have the right to consider applying capital punishment for this crime. "I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes," Obama said at a news conference. "I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution." 

Depending on whom Obama selects as attorney general and in other top positions in the Justice Department, hot-button issues could move in new directions. Prior to November 4, Paul Charlton, one of the nine U.S. attorneys whom the Bush administration ousted, predicted that an Obama administration would take a different approach to the death penalty. Charlton clashed with Bush appointees who pushed prosecutors to seek the death penalty in a wide array of cases, including drug trafficking. "I expect there will be a more judicious use of the death penalty," he said.  
 

Read Further:

The Sentencing Project A Washington-based prison reform activist group.

Amnesty/Death Penalty A branch of Amnesty International currently campaigning for an immediate moratorium and abolishment of the death penalty.

The Age of Obama  A video debate titled “The Age of Obama” between public intellectuals Glenn Loury and John McWhorter.

*Nathaniel Wolfson was born and raised in Toronto, Canada. He is a junior at Brown University where he studies Comparative Literature and is involved in criminal justice reform projects. Currently, he is studying literature at PUC-Rio.