This op/ed by RBGG’s Jeff Bornstein was originally published in the American Bar Association’s Criminal Justice Section Newsletter, Vol. 29, No. 2, Winter 2021.

Coming Together to End Mass Incarceration and Achieve Racial Justice

With the swearing in of Joe Biden and Kamala Harris as President and Vice-President, we have a chance for renewal of the American spirit, and the opportunity to enact new laws, procedures, processes, and oversight to ensure that there is justice for all.  Then President-elect Biden set the tone in his remarks on the police response to the assault on the Capitol on January 6:  “No one can tell me that if it had been a group of Black Lives Matter protesting yesterday . . . they would have been treated very, very differently than the mob of thugs that stormed the Capitol. We all know that’s true. And it is unacceptable. Totally unacceptable.”

The COVID 19 pandemic, so badly managed by President Trump, has so far killed over 375,000 and sickened more than 22 million Americans.  Included are many incarcerated people, who are disproportionally people of color.  The violent and unnecessary police killings of black people continue, as do the protests they engender.   We may be at a turning point in history due to the confluence of these events.  What an amazing opportunity the Biden team has to make 2021 a transformative year for our broken federal criminal justice system.

We have the chance to unite both liberals and conservatives and fix a fundamental problem with our criminal justice system:  mass incarceration.  It is dangerous, ineffective, and is fundamentally unfair to working people and people of color.  Locking up people in cages is a vestige of our nation’s white supremacy roots  So too is its handmaiden, mandatory minimum sentences that eliminate judicial discretion at sentencing that became embedded in the criminal justice system during the Reagan, Bush and Clinton administrations.  I was a federal prosecutor in San Francisco during the 90s when much of the stiffer sentences, especially for drug and gun crimes, began.  What a blessing it was when Janet Reno loosened the yoke somewhat by allowing us to “do the right thing” in our charging and sentencing decisions.  But much more needs to be done now.

Mass incarceration gives little voice to victim advocates because even  perpetrators’ real remorse or rehabilitation rarely allows aggrieved people to stop grieving, or feel that justice has been done .  Surely retribution which is the real cost of mass incarceration does not relieve their pain.  For many, I suspect, it would be better to know that the person convicted, through genuine remorse and effective rehabilitation, has found a way to make amends and re-earn their place in our society. 

We know that people of color, especially Black and Brown men, are more likely to be convicted and sentenced to long terms in prison.  We need to change our policing practices and everything that follows, including prosecutors’ charging decisions; pretrial detention and legislated sentencing enhancements, especially mandatory minimums.  We need to also create real  rehabilitation opportunities; and eliminate the permanent underclass that is made up of convicted felons who are released, and denied their fundamental rights as citizens, including denied the right to vote and other indicia of citizenship.  In short, we need to find ways to give those who are convicted  meaningful opportunities to repay their debts to society. 

If the Biden administration wants to hit the ground running on the issue of racial justice, it needs a new federal criminal justice blueprint that starts to identify and then fix the profit driven prison industrial complex that continues to keep people under its collective thumb even after one is released from prison.  To start, as the Obama administration did, private companies that operate prisons and detention facilities must be put out of business.  We have to take the profit motive out of the equation.   

Data needs to be kept on the disparate impact of prosecutorial and detention decisions on people of color.  More conviction alternative programs even with respect to drug and gun crimes need to be created.  Mandatory minimum sentencing must be abolished.  A federal expungement statute needs to be enacted. Effective rehabilitation programs have to be created.   And we need to address and correct the racist underbelly of jury selection practices.

None of this is crazy.  In fact, it even makes economic sense.  It costs us upwards of $80,000 per year to house a person in federal prison.  Many are imprisoned for 10, 15, 20 years or more with little good time credits that can be earned and little opportunities or motivations to change one’s life or make amends.  And what about the next generation of kids who are raised with a parent in federal or state prison?  Does the cycle stop or does it continue to the next generation?  The truth is that all too often a parent’s incarceration starts a multigenerational problem particularly with poor and working class families. 

If we are serious about ending injustice, especially against black and brown people in our country, and if we believe that Black Lives Matter, or even that all lives matter, then let’s do something constructive together to end the caging of millions of our people.  Let’s change our fundamental approach to crime and punishment and truly work towards building a more perfect union with liberty and justice for all.