Sentencing Reform

On Criminal Justice Reform, Clinton Is Sanders Lite

Clinton, who was for mass incarceration before she was against it, fills in some blanks in her agenda.



Filling in some of the blanks in her criminal justice agenda, Hillary Clinton says she supports three major elements of the Smarter Sentencing Act: cutting the mandatory minimums for drug offenses in half, retroactively applying the lighter crack penalties that Congress approved in 2010, and expanding the "safety valve" that lets certain drug offenders escape mandatory minimums. In response to a Huffington Post questionnaire, the Democratic presidential candidate also says she wants to eliminate the sentencing disparity between the smoked and snorted forms of cocaine, which is consistent with a bill she cosponsored as a senator, and "reform the 'strike' system to focus on violent crime."

The federal "three strikes" provision, which was signed into law by Clinton's husband in 1994, prescribes a mandatory life sentence for someone convicted of a "serious violent felony" after two prior convictions, at least one of which involved a serious violent felony. The other can be a "serious drug offense." Clinton would change the law so that all three offenses must be serious violent felonies.

Another provision of federal law imposes a mandatory life sentence on someone convicted of three drug felonies when the amount of drugs involved in the third offense exceeds a specified level. The Smarter Sentencing Act, which is cosponsored by Republican presidential candidate Ted Cruz, would reduce that mandatory minimum to 25 years. It's not clear whether Clinton supports that change as well.

Clinton's rival for the Democratic nomination, Bernie Sanders, also responded to the questionnaire, and his agenda is more ambitious. Like former Republican presidential candidate Rand Paul, Sanders supports "getting rid of mandatory minimums." He also would bring back parole for federal prisoners and make rehabilitation rather than punishment "the primary focus of incarceration in America." 

In other respects the criminal justice reforms supported by Clinton and Sanders sound similar. Both think too many people are serving too much time in prison. Both think the steady decline in crime during the last few decades is due to a complex mixture of factors, only one of which is putting more people behind bars. Both candidates oppose putting minors in adult prisons or solitary confinement. Both favor treatment as an alternative or adjunct to jail for defendants with drug problems.

Like Paul, Clinton and Sanders want to re-enfranchise felons after they have served their sentences and make it easier for them to re-enter society. Clinton supports legislation barring federal agencies and contractors from asking about job applicants' criminal records in initial screening, while it sounds like Sanders wants a law that covers other employers as well, since he says "we need to ban the box on job applications."

Clinton and Sanders are both skeptical of the purported "Ferguson effect." Both support the universal use of body cameras by police and favor federal subsidies to help achieve that. Like Paul, both believe that racial disparities in criminal justice are a serious problem that needs to be addressed. Both support better collection of data on police shootings, and Sanders says "the Department of Justice should investigate every incident where an individual is killed in police custody."

On criminal justice reform, in short, Clinton offers a weaker version of what both Sanders and Paul recommend. It's not clear whether that will be enough to assuage concerns among Democrats who view her with suspicion because of her support for Bill Clinton's tough-on-crime agenda, which contributed in no small measure to "the era of mass incarceration" she now says "we need to end." Writing in The Nation, Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, argues that the former secretary of state "doesn't deserve the black vote" because her husband's policies, which she supported, "decimated black America."

Alexander is referring partly to welfare reform, but she also notes that "Bill Clinton presided over the largest increase in federal and state prison inmates of any president in American history." While Clinton was not directly responsible for all of that increase, most of which occurred at the state level, he set an example for the states and subsidized the expansion of their prison systems. "Clinton championed the idea of a federal 'three strikes' law in his 1994 State of the Union address," Alexander writes, and "signed a $30 billion crime bill that created dozens of new federal capital crimes, mandated life sentences for some three-time offenders, and authorized more than $16 billion for state prison grants and the expansion of police forces." 

Alexander also says Bill Clinton "supported the 100-to-1 sentencing disparity for crack versus powder cocaine, which produced staggering racial injustice in sentencing and boosted funding for drug-law enforcement." That disparity, which Congress shrank in 2010 and Hillary Clinton now wants to eliminate, arbitrarily treated one gram of crack as equivalent to 100 grams of cocaine powder. It had a disproportionate impact on blacks because the vast majority of federal crack offenders were black. But the policy was established during the Reagan administration, so I'm not sure Bill Clinton can be blamed for it, although it's true he did not publicly oppose it.

As I pointed out last year in a column about Hillary Clinton's sudden interest in criminal justice reform, she was a cheerleader for her husband's punitive policies and was not shy of engaging in the sort of fear mongering that would embarrass any current Democratic politician. Alexander cites a particularly damning quote in support of the 1994 crime bill. "They are not just gangs of kids anymore," the first lady said. "They are often the kinds of kids that are called 'super-predators.' No conscience, no empathy. We can talk about why they ended up that way, but first we have to bring them to heel."

Both Clintons have expressed regret about their role in promoting overincarceration, and Alexander notes that even Bernie Sanders voted for the 1994 crime bill. But Hillary Clinton's history in this area, which Paul highlighted after her criminal justice speech at Columbia last year, could suppress enthusiasm for her among Democrats. Unfortunately, with Paul out of the race, there is no one on the Republican side to remind voters that Clinton was for mass incarceration before she was against it. Cruz, an erstwhile ally of Paul's on criminal justice reform, seems to have turned against the cause because of concerns about how it would play with his own base.