In 2015, Barack Obama traveled to Oklahoma to meet with inmates at the El Reno prison—the first sitting president to actually walk into a federal prison. After meeting with men in the prison, he was struck by how much they have in common. He told reporters, “These are young people who made mistakes that aren’t that different than the mistakes I made.”
As President Obama prepares to leave office, the United States still holds the dubious honor of having the highest incarceration rate in the world, with 2.2 million people behind bars. In order to assess his impact on the criminal justice system, it’s necessary to examine the policy shifts that got us here in the first place.
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In 1980 there were 24,000 people in the federal prison system, about 25% of whom were serving time for a drug offense. By the time Obama was elected in 2008, that number had ballooned to 201,000 people, nearly half of whom were locked up for a drug offense.
There are two key reasons for the population explosion—both rooted in the war on drugs. First, President Reagan encouraged federal law enforcement agencies and prosecutors to emphasize drug arrests. Second, Congress adopted mandatory sentencing policies—frequently applied to drug offenses—that established a “one size fits all” approach to sentencing. Federal judges were obligated to impose prison terms of 5, 10, 20 years—or even life—largely based on the quantity of drugs involved. They were not permitted to take any individual factors, such as histories of abuse or parenting responsibilities, into account to mitigate those sentences.
The most egregious of these policies were tied to crack cocaine offenses. Someone possessing as little as five grams of the drug (about the weight of a sugar packet) would face a minimum of five years in prison. That threshold was significantly harsher than the mandatory penalty for powder cocaine, which required a sale of 500 grams of the drug (a little over a pound) to receive the same penalty. Since 80% of crack cocaine prosecutions were brought against African Americans, the racial disparities from these sentencing policies were particularly extreme.
Momentum for reforming the crack cocaine mandatory minimum laws predated the Obama administration, and had growing bipartisan support when the President took office. The President signed the Fair Sentencing Act into law in 2010, reducing sentencing severity in a substantial number of crack cases. Then in 2013, Attorney General Eric Holder issued a memorandum to federal prosecutors calling on them to avoid seeking mandatory prison terms in low-level drug cases, which has cut the number of cases with such charges by 25%.
While the changes in sentencing laws have helped to reduce the federal prison population, the highest profile of Obama’s reforms is his use of executive clemency to reduce excessively harsh drug sentences. That is a story of both politics and policy. During Obama’s first term he used his clemency power far less than his predecessors—a pattern that was sharply criticized by many reform groups and editorial boards. But after launching a “clemency initiative” in 2014, the President has commuted the drug sentences of more than 1,100 individuals (with promises of substantially more by the time he leaves office). Notably, in about a third of these cases, the individuals had been sentenced to life without parole due to mandatory sentencing policies.
The President’s efforts to make sure people can return to their lives after they have been incarcerated are noteworthy as well. A pilot program at the Department of Education is addressing the consequences of the ban on the use of Pell Grants for higher education in prison (a provision of President Clinton’s 1994 crime bill). The new initiative restores access to this funding on a limited basis, and will reach about 12,000 incarcerated students. The Equal Employment Opportunity Commission also made it easier for people with criminal records to find work, by cutting down on the rampant misuse of an individual’s criminal justice history during job application processes. For example, employers may no longer inquire about arrests that didn’t lead to a conviction, and an offense may only be considered if it is relevant to the job at hand. Additionally, employers need to take into account when a conviction occurred, so that people are not continuously punished for an offense committed long ago.
Perhaps the most significant aspect of President Obama’s work in regard to criminal justice reform has been his role in changing the way we talk about the issue. After a disappointing first term in which these issues received only modest attention, Obama’s last years in office framed criminal justice reform as a top priority. Among a series of high-profile events during his second term was the President’s address on mass incarceration at the NAACP national convention, at which he concluded that “mass incarceration makes our country worse off.”
Mass incarceration did not come about because there is a shortage of ideas for better approaches to public safety—it was the result of a toxic political environment where legislators favored political soundbites over evidence. By using the bully pulpit to frame justice reform as a major issue, Obama provided some coverage for mainstream legislators to support sound policy options.
It is difficult to be optimistic that the incoming administration will look favorably on criminal justice reform. Leading Republicans, such as House Speaker Paul Ryan, may be persuasive in making the conservative argument for reform. But President-elect Trump’s “tough on crime” rhetoric, which paints many incarcerated people as “bad dudes,” suggests progress at the federal level will be a challenge.
Realistically, opportunities for justice reform are more likely at the state level. Many local officials are already convinced of the need for sentencing reform and reentry initiatives, and they may be less influenced by the political climate in Washington. If so, such changes at the local level may ultimately gain traction in a Trump White House as well.
Editor’s note: TalkPoverty presents this series in collaboration with the Georgetown Center on Poverty and Inequality.