RBGG’s Jeff Bornstein offered the following commentary in a recent post on Casetext.

What is the likely effect a Trump Administration will have on our criminal justice system?

Over the last several months, Attorney General Loretta Lynch, and then more recently Former Attorney General Eric Holder, rightly spoke about the need to reform our drug laws and stop the widespread mandatory incarceration of drug abusers and dealers for years, decades, and even life.  Both have talked about the need to treat and rehabilitate instead of mass incarcerate.  A bipartisan coalition in Congress seemed poised to pass a comprehensive sentencing reform bill.  And then Mr. Trump was elected President. 

As a former federal prosecutor, I fully support the sentiments of the current Attorney General and her immediate predecessor.  The key issue, though, especially for a conservative-led Congress and White House, will focus more on the issue of keeping our communities and citizens safe rather than on the injustice of draconian prison sentences.  Thus, the question is whether reforming our drug and sentencing laws and trying to emphasize treatment and rehabilitation over punishment is ultimately going to make us a safer nation.  I believe that it will but there is much work to be done to put this into practice. 

Mandatory Minimum Sentences

The problem today is that federal drug and gun sentencing laws are heavily weighted towards mandatory minimum sentencing that must be imposed.  Even as some states such as California try to cut back on longer prison sentences because of serious overcrowding, costs and burdens of keeping people warehoused in prison for years (and in many cases decades), the federal law enforcement system operates on its own track.  Even if marijuana is now legal in California and other states, it is still a Schedule 1 controlled substance.  Even if states are trying to ease prison populations by diverting drug abusers and sellers into local jails or, in some cases, rehabilitation programs, federal agents continue to prosecute street crime, street dealers, nuisance criminals, and low level gang affiliates.  Despite what appeared to be an emerging consensus in Washington, there is a huge gulf with those federal agencies charged with enforcing our nation’s drug laws and those local federal prosecutors charged with prosecuting those cases:  Put simply, mandatory minimum sentencing continues to be the cornerstone of our drug enforcement efforts. 

Why prosecute street level drug dealers in federal court?

Time and again smaller street level dealers are prosecuted federally and subjected to 5 or 10 year, or even greater, mandatory minimum sentences.  Usually these cases are based on a clever informant’s information, undercover stings, or a community-inspired effort to clean up a neighborhood.  But the results are the same – an exceedingly long federal prison sentence.  And once in the federal system there are usually post imprisonment violations for drug use or other failures to abide by required terms and conditions of supervised release.  That is due, in part, to a federal drug felon’s inability to ever be free:  he must register as a drug offender, lose federal benefits, and settle, at best, for minimum wage employment once he is freed from prison.  Caring for himself, his family and being a contributing member of society are daunting following a long prison stay.

Are we really safer locking up drug dealers for years or life? 

Are our communities safer by taking these people off the streets?  Do these convicted felons have a place in our society once they are released, and if so, what is that place?  Are we creating a permanent underclass of convicted felons, many of whom have substance problems that basically means that if they are not locked up they will be dangerous?  Is there really any way to effectively rehabilitate drug abusers and dealers? 

The new paradigm will likely be focused on knee jerk “lock them up” policies driven by soundbites and not statistics.  The broader questions posed by liberals and some conservatives about the wisdom and cost of our prison industrial complex will be overshadowed.  But overcrowded prisons do not make us safer; they just hide the danger.  When felons are released from custody without having been allowed to participate in education, substance abuse, anger management, problem solving and other programs because of lack of funding or space, how are they expected to make it when they are released back into our communities?  How are they going to be able to find or keep jobs,  stay off of drugs, and reintegrate into society without dedicated community and government backed resources?  And who is going to pay for these programs in the future?  Without support services, convicted felons are almost certain to reoffend.  Even worse, young African American and Latino youth already subjected to racism could face even more tests as the focus on reforming our police could change back to making sure we are safe and the so-called “hoodlums” are removed from our streets. 

What can we do?

A full frontal assault using our civil rights laws and the remedies that they provide are still our most potent weapons to fight for the reforms we know are so desperately needed.  But populism and compassion do not necessarily mix.  Communities need to come together and corporations need to help.  There needs to be more job training.  But why hire a felon and take that chance when there are so many formerly middle class workers who are also looking for good paying jobs?  It is the answer to that question which will likely decide our nation’s future. 

We cannot have the largest prison population in the world and not expect there to be substantial problems with our country and our political and social foundations if we cannot find a way to reintegrate people after they have paid their debts for their transgressions.  The chant of “no justice, no peace” extends far beyond the use of force.  There can be neither if we do not address the prison population problem and its aftermath, the release of felons who are not able to make it when they come home.  Our criminal justice system has to find ways to increase job training, and education and rehabilitation services.  We need to reconnect felons with their families and communities in positive ways to stop the ongoing problem of recidivism and multi-generational incarceration.  Emphasizing treatment and finding economic opportunities for young people, especially males, may even help stem criminal conduct.  The question is whether President-elect Trump’s Department of Justice will be limited to punishment and retribution, or will it be open to treatment and rehabilitation?