Colson Task Force on Federal Corrections – Final Recommendations

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The Charles Colson Task Force on Federal Corrections came out with its Final Recommendations for reforming the federal prison system.  The Charles Colson Task Force on Federal Corrections was created by Congress in 2014 as a bi-partisan panel, which was tasked with “developing practical, data-driven recommendations to enhance public safety by creating a more just and efficient federal corrections system.” Transforming Prisons, Restoring Lives: Final Recommendations of the Charles Colson Task Force on Federal Corrections, January 2016 (Report).

The Report addresses the historical reasons for the hyper- incarceration of American citizens, primarily mandatory minimum sentencing for drug crimes, resulting in the United States becoming the nation with the greatest number of its citizens in prison on Earth.  The Task Force Report provides a detailed background of causes of the problem of mass incarceration and provides reasoned and practical recommendations for solving that problem.  Adoption of these recommendations would go a long way toward making this nation the what it should be: a country based on the principles of justice and liberty – truly the home of the free and the brave.

The Report was clear that the federal system should follow the states in providing alternatives to incarceration.  Extensive excerpts from the Report follow:

More surprising than what we found to explain prison growth, however, was what we did not find. Very few people convicted in federal court are sentenced to an alternative to prison. The vast majority of federal sentences (90 percent) incorporate a term of incarceration, and most judicial districts do not operate specialty courts or offer front-end diversion from prison. It is a one-size-fits-all model and it contrasts starkly with the states, where policymakers are reducing both costs and crime through heavier emphasis on evidence-guided correctional approaches tailored to the risk and need profiles of each individual.

These and other findings informed a set of principles that guided Task Force deliberations. Inherent in each of these principles is the overarching goal of enhancing public safety:

 Sentencing decisions and correctional interventions should be individualized

Correctional policy should improve public safety

 Incarceration, with its attendant costs to both those in prison and taxpayers, should be employed judiciously

 Data and research should guide practice

 Reforms should both address prison growth and improve public safety outcomes

Report, p. x-xi

The Report described the source of the problem that resulted from federal legislation in the 1980s:

The growth of the federal prison system is the result of significant changes in federal criminal justice policy and practice in the 1980s.  The centerpiece of today’s sentencing regime is the Sentencing Reform Act of 1984 (SRA), bipartisan legislation designed to eliminate indeterminate sentencing, structure judicial sentencing discretion through the creation of sentencing guidelines, reduce sentencing disparity, and increase uniformity and proportionality… Legislation establishing mandatory minimum penalties for drug offenses soon followed, beginning with the Anti-Drug Abuse Act (ADAA) in 1986.  The law and subsequent amendments prescribed long prison terms for many drug crimes based solely on the type and quantity of the drug …

The US Sentencing Commission chose to incorporate the mandatory penalties for drug crimes into its Guidelines to ensure consistency and avoid unwarranted sentencing disparities.  Because mandatory minimum sentences for drugs are tied to drug quantity, the advisory Guideline range for a drug sentence is also based on quantity, and is proportional to the mandatory minimums …

Perhaps not surprisingly, since the passage of SRA and ADAA in the 1980s, the probability of receiving a term of incarceration, rather than probation, has risen, as have the number of cases prosecuted federally.  These changes have fundamentally transformed federal prosecution and the resulting sentencing outcomes.   Between 1985 and 2014,

 convictions in US courts nearly doubled from 40,924 to 76,835,16 and

 the probability of receiving a term of incarceration at sentencing increased dramatically from 50 percent to 90 percent.

The Report, pp. 5-6.

The Report placed the largest blame for the rampant increase in incarceration of the Drug War:

The number of people in federal prison for drug offenses dwarfs that for any other offense type. The growth in weapon and drug offenses together makes up over 60 percent of all growth in the federal prison system for the past two decades. The number of people in prison for sex crimes and immigration offenses has also grown sharply since 1994, but drug and weapon offenses have had a greater impact on the overall BOP population.

… [T]he number of people entering federal prison for drug offenses has been relatively constant since the late 1990s, but the number of people in federal prison for these crimes continued to grow, largely because of the long sentences and resulting prison time served for such crimes. Every year, more than 20,000 people are admitted to federal prison for drug crimes, making it the most common type of admission.  Many of those convicted receive sentences in excess of five or ten years.  Because of these sentences, the population has continued to grow even as admissions have stayed constant.

… [M]andatory minimum penalties play a large role in determining the ultimate sentence for a drug trafficking offense.  Almost all are based solely on the quantity of the drug and do not take into account the role individuals play within drug trafficking organizations or the use of violence in the commission of a crime.  For example, a courier driving a truck with drugs in it may be subject to the same mandatory minimum penalty as the person who employs him or her—based solely on the quantity of the drug involved. The average expected time served for the 55,000 people in prison sentenced pursuant to a mandatory minimum for drug offenses (59 percent of those in federal prison for drugs) is more than 11 years. The effects of mandatory minimum penalties, however, can extend even further to those not convicted of an offense carrying such penalties (22 percent).  This is largely because the US Sentencing Commission structured its Guidelines for drug trafficking around the mandatory minimum penalties.  As a result … the average expected time served for those not convicted of a mandatory minimum penalty is still more than six years.  The same is true for the remaining 19 percent of those convicted of drug crimes who were relieved from the mandatory sentence; they have an average expected time served of 6 years.

Report, pp. 10-11.

Moreover, the Report states that almost half of the inmates serving time for drugs have little, if any, prior criminal history:

Almost half (45 percent) of the 95,305 people serving time for drug crimes in federal prison are in the lowest two criminal history categories, meaning they have few, if any, prior convictions. They also have a low risk of recidivism.  In fact, more than one-quarter of all people in prison for drug offenses have no prior criminal history.  And almost 80 percent of all individuals in federal prison for drug crimes had no serious history of violence before their current offense. Specifically, more than half have no violent history at all, and 22 percent have only minor histories of violence, such as simple assault and other crimes that do not typically lead to serious injury.

Similarly, people incarcerated for drug crimes were typically not convicted of playing a leadership or violent role in drug trafficking conspiracies:

 Only 14 percent were sentenced for being a manager, supervisor, leader, or organizer in the offense

 Fewer than 25 percent were sentenced for the use or presence of a weapon during the offense

 Only 14 percent were sentenced for using violence, making a credible threat to use violence, or directing the use of violence during the offense.

Report, p. 12

This rapid increase led to exponential federal prison cost increases – an increase of 687 percent over the last 35 years.  Report, p. 14.  

Even more significant than the financial costs, however, are the social costs:

The significant growth of incarceration in the federal system—and across the country at both state and local levels—has come at tremendous cost to individuals, families, and communities, and to society overall. Incarceration not only imposes an opportunity cost in the form of lost wages and livelihoods, but also takes a damaging toll on the mental health of those serving time, many of whom exhibit higher rates of depression, posttraumatic stress disorder, and other mental illnesses.  Absent effective rehabilitative programs, the experience of incarceration can be criminogenic, or likely to cause the very behavior it is punishing.  Moreover, the collateral consequences of having served time in prison can last for life.  Legal barriers to employment, housing, and voting, to name only a few obstacles, can have a profound impact on a person’s likelihood of success following release from prison.  In addition, the stigma associated with a criminal background presents a significant challenge for those seeking to resume life outside prison walls.

Incarceration also takes a toll on the children and families left behind.  Children of incarcerated parents have been found to exhibit more negative behavioral, academic, and emotional outcomes, and are more likely than their peers to end up in prison.  Families of the incarcerated typically experience financial hardship because of the loss of a key wage earner and the costs of prison visits and telephone calls. These economic challenges lead many families with loved ones behind bars to move frequently, resulting in an expensive, disruptive pattern of residential relocation that makes retaining jobs and succeeding in school more difficult.

Overall, the removal and return of community members through incarceration at both the federal and state levels weakens the social fabric and vibrancy of communities, particularly communities of color.  When large populations of adult men cycle in and out of their neighborhoods, community support systems are destabilized.

Report, p. 15.

The Report acknowledged some hopeful signs with recent policy changes, including the Fair Sentencing Act, the Smart on Crime initiative, and a modification by the US Sentencing Commission known as Drugs Minus Two, that have led to a slight drop in the number of incarcerated persons, but the Report asserted that any drop in the prison population

“is greatly overshadowed by the tremendous growth that preceded it. Fixing the widespread problems spawned by that growth is a complex task, one requiring a thorough overhaul of federal policies and practices to ensure the right people are sentenced to prison and more effective alternative sanctions are available for the rest.”

Report, pp. 18-19.

The Report then makes six recommendations for alleviating the problem.  This post focuses on the first:

Recommendation 1: Reserve Prison for Those Convicted of the Most Serious Federal Crimes

Incarceration is a highly punitive, costly, and potentially harmful intervention that should be used sparingly and judiciously.  The sanction of imprisonment is justified by the need to punish individuals, ensure accountability, and protect the public.  But any sentence longer than necessary is unjust, inconsistent with the goals of sentencing as codified in federal statute, and potentially at cross-purpose with the goal of keeping communities safe.  The Task Force analysis makes clear that lengthy terms of incarceration have become the norm in the federal prison system.  Less severe—and less costly—alternatives to incarceration are used infrequently.  And many federally prosecuted individuals receive lengthy mandatory minimum sentences that do not accurately reflect the true severity of their offenses.

To address these problems, the Task Force recommends the following actions:

Maintain drug mandatory minimum penalties for only the most serious offenses and revise the Sentencing Guidelines accordingly.

Report, p. 20

Under federal law, judges rarely have discretion to sentence an individual below the statutory minimum. As a result, even if “the nature and circumstances of the offense and the history and characteristics of the defendant” do not warrant a lengthy sentence, judges are often legally required to impose a much greater term than may be necessary.  This can result in tremendous cost for taxpayers, the correctional system, and the lives of those sentenced to prison.

… The Task Force has concluded … that the mandatory minimum framework for these offenses is fundamentally broken.  Rather than being allowed to tailor sentences to account for all facets of the crime and the defendant or to encourage rehabilitation and reentry, judges find their hands tied by an extraordinarily punitive one-size-fits-all structure.  Report, p. 21

The Task Force recommends that Congress repeal the mandatory minimum penalties for drug offenses, except for drug kingpins as defined in the “continuing criminal enterprise” statute.  This reform should be applied prospectively for all eligible drug offenses at sentencing.  In addition, retroactive application of this policy should be phased in starting 24 months after the changes are made prospectively. (Individuals eligible for a sentence reduction under the Fair Sentencing Act, instead, should be considered for resentencing immediately.)  The 24-month phase-in period will ensure individuals adequate time to prepare for release and will enable the system to prepare for the effect of this reform.

Report, p. 22.

While Drug War Stories questions the necessity, wisdom, and benefits of prohibition generally, there is no question that the recommendations in the Report should be carefully considered, and real reform implemented immediately.

Links:

Transforming Prisons, Restoring Lives: Final Recommendations of the Charles Colson Task Force on Federal Corrections, January 2016 (Report)