To end mass incarceration, the US needs a series of prison reforms. (Rennett Stowe, Flickr)
The Preamble to the Constitution demands that we “establish justice.” Any honest look at the US prison system reveals how pitifully we are failing in that duty. We can do better in 2022 by uniting as voters and demanding specific reforms.
America’s moral standing has been tarnished by its pattern of mass incarceration. Between the War on Drugs and the 1994 Violent Crime Control and Law Enforcement Act, the US prison population has exploded to nearly 2 million. The country spends $80 billion per year on incarceration, five times the budget of the Department of Education. Rather than reducing crime, mass incarceration has perpetuated its underlying causes: poverty, addiction, and mental illness. US prison policy has devastated generations of Americans and disproportionately harmed Black communities. It has robbed men and women of their lives, their families, and handicapped their ability to reintegrate into society upon release.
It’s time the United States did better in living up to the mandate to “establish justice.” The Blueprint for a Better America (BBA), a legislative package [207-page PDF] backed by the American Union for the 2022 election, includes comprehensive prison reforms to do just that. Thorough broader criminal justice reforms, economic empowerment through universal basic income (UBI), and a shift away from American militarism, the BBA is the way toward a more just nation.
In 2016, 55% of the federal prison population had been sentenced under a mandatory minimum. Families were separated for years, judges were stripped of prosecutorial discretion, racial disparities were exacerbated. Longer sentences were shown to do nothing to improve community safety, but they were proven to increase human suffering and reduce the likelihood of rehabilitation. Today, every state and DC has mandatory minimum sentencing. President Joe Biden pledged to end the sentencing practice while on the campaign trail but there has been little action from his Justice Department.
The Blueprint for a Better America will resolve this by striking all mandatory minimum sentences (Sec. 153) from the United States Code, restoring the ability of judges to judge anywhere up to the maximum sentence.
Matthew Charles was sentenced to a 35-year life sentence in 1996 for selling 216 grams of crack cocaine and illegally possessing a gun. The judge at his sentencing described him as a “danger to society.” As Charles began serving his sentence, he made a concerted effort at rehabilitation. He studied the Bible, spent hours in the prison law library, and helped illiterate inmates understand the letters they were receiving from courts and their families. Despite being a model in rehabilitation, Matthew Charles did not receive a sentencing review until 2016. At that time, he was released and then reincarcerated due to an administrative error. Luckily, the 2018 First Step Act enabled his permanent release. But that’s not the case for many other people serving lengthy sentences. As a result, some members of society are condemned to lengthy sentences and unable to earn a second chance.
Section 162 of the BBA would enact the provisions of the Second Look Act and allow people to seek a sentence review after 10 years. Before a modification could take place, a judge would have to make a positive finding that the person was not a danger to the safety of any one or a community, that they’d demonstrated readiness for reentry, and that it was in the interest of justice to modify the sentence. A victim, or the victim’s family, would have the opportunity to weigh in as well.
Judges would also take into account a person’s age at the time of their offense, their behavior while incarcerated, and if they’d completed educational programs while serving their sentence. This would give people who transformed their lives an opportunity to demonstrate their rehabilitation. For individuals over the age of 50, who are the least likely to re-offend, there would be a rebuttable presumption that a sentence modification was in order.
In addition, because the Blueprint for a Better America would effectively end the federal drug war by repealing the Controlled Substances Act, anyone incarcerated for a drug crime would qualify for a sentencing review. Similarly, those sentenced to a mandatory minimum repealed by this legislation would be entitled to a review.
In the 1994 midterm elections, the Republicans’ Contract with America contained a proposal to restrict incarcerated people’s access to the judicial system. President Bill Clinton signed the Prison Litigation Reform Act (PLRA) into law, making it more difficult for incarcerated people to file civil rights cases or seek legal protections. The reform led to a sharp increase in dismissed prison lawsuits, including those related to misconduct and unconstitutional conditions. Incarcerated plaintiffs were forced to fully exhaust all internal grievance processes within the prison before bringing their case to court.
The law also limited the court’s ability to grant relief. Even in cases where plaintiffs succeeded, court orders to improve prison conditions were difficult to enforce and often ended prematurely. Not surprisingly, according to Prison Legal News, “prison and jail conditions did not improve with the termination of judicial relief.”
Section 163 of the BBA would repeal the PLRA. People who are incarcerated should maintain certain basic freedoms, including the ability to seek relief from unconstitutional suffering. Legal advocates have attempted to overturn the law in court but failed repeatedly. Only an act of Congress can end the harms of the PLRA.
Also in 1994, Congress blocked incarcerated students from accessing Pell grants for higher education. The 23,000 people affected made up 0.2% of the recipients, demonstrating the capriciousness of Congress’ actions. Higher education is linked to improved chances of finding stable housing, long-term employment, and establishing family stability. Studies have shown that access to postsecondary education in prisons or jails can reduce recidivism by up to half and save over $365 million in state spending on detention.
Congress acknowledged these truths in 2020 with the passage of the Free Application for Federal Student Aid Simplification Act. The act restored incarcerated students eligibility for Pell Grants. However, the changes to the law aren’t scheduled to go into effect until July 2023, and it does not fully repeal the ban implemented in 1994. The BBA would cut the new bureaucracy and issue a clean and immediate repeal of the law in section 164, making up to 463,000 incarcerated people eligible for a higher education grant.
One of the most consequential drivers of mass incarceration was the federal incentivization of it through grants. As part of the 1994 crime bill, the Violent Offender Incarceration and Truth-in-Sentencing (VOI/TIS) Incentive Formula Grant Program ensured states had funds to build prisons and jails to incarcerate offenders “for substantial periods of time.” States were only considered eligible for the grants if they enacted truth-in-sentencing laws requiring violent offenders to serve at least 85% of their sentence, and Connecticut, Florida, Georgia, Kansas, Maine, Michigan, Mississippi, New York, North Dakota, Oregon, and Virginia adopted them within a year. Although the grant program has ended, the enabling law will be permanently struck with by section 165 of the BBA.
Thousands of people are released from prison every week and many of them are sent back into the world without a government-issued ID. Oftentimes, their photo ID expired during their sentence. Without a valid ID, people who served their time remain locked out of everyday life. Finding housing, getting a job, receiving medical care, banking, accessing government benefits, like Medicaid or food stamps are all impossible without an ID.
Building on the New Pathways Act of 2019, the Bureau of Prisons (BOP) would be required to help released individuals access appropriate identification. This would only apply to federal prisons, but action taken at the federal level would encourage states. For US citizens, BOP would have to help them access a Social Security card and proof of citizenship, either a photo ID or birth certificate before their release. Noncitizens would receive help getting documentation or a work visa, where applicable.
Additionally, the BOP would also be required to help Americans obtain a government debit card tied to their digital Treasury account where they, along with every citizen, will receive unconditional basic income of $1,300 each month. This will provide some financial stability for the formerly incarcerated as they reenter society.
The negative effects of solitary confinement have been known for centuries. It inflicts unnecessary suffering on people. It dramatically increases the risk of self-harm and suicide. It worsens mental health and makes it more difficult for people to reintegrate into society. Yet in the United States, tens of thousands of people are held in solitary confinement for months and years at a time.
Under the 2015 Nelson Mandela Rules adopted by the UN, solitary confinement — defined as 22 hours a day of isolation — is considered a form of torture after 15 days. While the federal government banned solitary confinement for juveniles in 2016, only a handful of states, including Colorado, New York, Connecticut, and New Jersey, have limited the practice for youth or adults.
The BBA legislation (Sec. 172) reforms the use of involuntary solitary confinement in federal prisons to align with the time frames of the Nelson Mandela Rules, with a maximum of 30 days in any 60. It also provides additional protections. An inmate would have legal counsel before they could be sentenced to the prison-within-the-prison. Vulnerable people, such a person with a serious mental illness, other mental impairment, or under 21 years of age could not be sentenced to solitary. Daily clinical evaluations would be required for any person so confined.
As a federal legislative package, this would not apply to state prisons, so section 173 would restrict states from receiving federal Byrne grants in the 2025 fiscal year, unless they had enacted a law meeting the Mandela Rules.
The detention center in Guantánamo Bay is one of the world’s most infamous prisons. Following the 9/11 attacks in 2001, the prison became a stunning example of America’s willingness to suspend habeas corpus, commit torture, and indefinitely detain individuals without formal charges or a trial. After more than 20 years, 37 men remain in Gitmo, including 18 who have been approved for repatriation and resettlement by the prison review board. The cost of incarcerating these individuals is $500 million per year. The Supreme Court has upheld that many traditional legal protections do not apply to individuals held there because it is outside the territorial United States.
Despite previous presidents’ pledges to close the facility and reaffirm America’s commitment to justice, Congress has repeatedly blocked the attempts. Section 335 of Blueprint for a Better America overrides Congress’ previous restrictions and directs the President to close Guantánamo Bay Military Prison in 2023. Most of the remaining prisoners would be repatriated or transferred to another country, or serve their sentences in Fort Leavenworth, Kansas. Individuals who have not been charged or convicted must be released, so America can reestablish itself as a nation committed to the principles of habeas corpus.
The ability to vote is the most basic constitutive act of citizenship, by which people can secure the blessings of liberty. Basic constitutional principles of fairness and equal protection require an equal opportunity for all citizens of the United States to vote in Federal elections. Even Republican Congresswoman Lauren Boebert recently proclaimed her support for this concept, tweeting “One citizen. One vote. End of story.” Section 503 of the BBA would establish universal suffrage.
It’s the logical next step in our democracy; in the 18th century, only certain white men could vote, in the 19th, the franchise was extended to Black men as well. In the 20th century, women were included, but as the 21st century began, some 4 million people had been stripped of their ability to vote as a result of their encounters with the criminal justice system, a number which swelled to a high of 6 million before receding. It made us an an outlier among democracies, as the only one to permit permanently excluding individuals based a previous criminal conviction.
Many democracies allow felons to vote while in prison, helping them remain civically engaged with the communities they will almost certainly return to someday. Even among the 50 states, Maine and Vermont — perhaps coincidentally, the two whitest states in the nation — allow all incarcerated Americans to vote. We can build a better America by establishing that principle nationwide, which will address deeper issues such as prison gerrymandering, and permanently resolve the rallying cry from the birth of our nation: “No taxation without representation!”
The reforms in the Blueprint for a Better America are necessary in pursuit of our constitutional obligation to establish justice, but, just as importantly, to address the moral miscarriages imposed by our prison system. When human dignity is disrespected, when rehabilitation goes unrecognized, when a person is warehoused away, when life is squandered — it is an affront to all that silently consent.
How then, so we generate the political force to implement these reforms?
The American Union is a union of swing voters using the Blueprint for a Better America as their metric for voting, instead of party affiliation. If Congress meets our terms by putting the legislation on the president’s desk BEFORE the November 8 election, all incumbents can earn our endorsement, regardless of party. If they refuse, their challengers can earn our votes. As a national union of swing voters, it only takes a small percentage to control the balance of power in Washington, giving us oversized political influence.
Many of the prison reform portions of the legislation were drawn from the demands of the 2018 prison strike. From August 21 to September 9, incarcerated people appealed for recognition of their humanity, with prisons across 17 states engaging in work stoppages and hunger strikes. Willfully abstaining from food is an old tradition in nonviolence circles. MLK would fast his first two days in jail when he was arrested, a practice learned from his philosophical ancestor, Gandhi.
The American Union political campaign for 2022 includes a fast of moral pressure — a fast for peace — on the 15th of each month. Observed in the Gandhian tradition, it is a 24-hour period with no food, just water. Incarcerated Americans are invited to participate in this concerted campaign of principled pressure with members of the American Union outside of prison walls.
(Read more: Six reasons to #fastforpeace)
The millions of families with a loved one ensnared by the prison industrial complex have the have political power to change the system. Participating in the #fastforpeace and sharing it on Twitter creates public pressure on candidates for Congress across social media, and pressures our fellow Americans to join us in demanding that we end poverty, end mass incarceration, and end the endless wars.
When we fast in solidarity on the 15th, we remind imprisoned brothers and sisters that their suffering is not forgotten. Like Gandhi, King, and other civil rights advocates, we fast to address injustice and to do the soul-searching needed to reconcile America’s actions with its pledge to stand for “liberty and justice for all.”
Click to Tweet your pledge for the next #fastforpeace.