The US locks up more of its citizens than any other country, so it’s no surprise that mass incarceration and criminal-justice reform have become prominent issues on the presidential campaign trail.
Democratic presidential nominee Hillary Clinton has treaded carefully on this front, denouncing some of the tough-on-crime laws from the 1980s and 1990s that contributed to mass incarceration and walking back her decades-old remark calling young offenders “super predators.”
It has been difficult territory to navigate; both Clinton and her husband, former President Bill Clinton, advocated harsh sentencing during his administration, particularly when the two were drumming up support for the 1994 crime bill.
The changes introduced by the law — which called for severe sentences, strict gun laws, and more police officers and prisons — have been widely derided in recent years as a key cause of mass incarceration. The data shows the law, in fact, has had minimal influence in reforming or influencing state policies.
Clinton has now proposed numerous policy changes geared at reducing the number of incarcerated people and facilitating prisoners’ reentry into society.
It’s worth noting that the federal government, headed by the president, has jurisdiction only over federal laws and prisons, which hold just 211,000 of the US’s estimated 2.2 million incarcerated people. The White House can try to influence state and local laws by offering or retracting funding, but the effects are often limited.
Here’s how Clinton says she’ll handle criminal-justice issues.
Even on this basic statistic that underlies most criminal-justice issues, Republicans and Democrats remain split on the data. The FBI has recorded a steady downward trend in violent crime rates over the past decade, and Democrats have used this to bolster their arguments to reduce incarceration.
Clinton has said crime is at “historic lows,” and chastised Trump for suggesting otherwise.
“It’s really unfortunate that he paints such a dire negative picture of black communities in our country,” she said during their debate on Sept. 26.
“In fact, violent crime is one-half of what it was in 1999. Property crime is down 40%. We just don’t want to see it creep back up … We cannot just say ‘Law and order.’ We have to come forward with a plan that is going to divert people from the criminal justice system.”
Clinton was referring to recently released FBI crime statistics for 2015, which showed that violent crime across the country remains near the bottom of a 30-year downward trend, even despite its 3.9% increase from the year before.
The Department of Justice appeased prison-reform advocates in August when it announced it would phase out the use of private prisons for federal inmates. An Inspector General’s report one week earlier had declared the facilities were less effective and more dangerous than their government-run counterparts.
Private prisons have received renewed scrutiny in recent years after reports revealed consistent problems with violence, squalid conditions, neglectful medical care, and overcrowding. The Department of Homeland Security has also said it will review its use of private facilities for immigrant detainees.
Clinton has pledged to “end” for-profit detention facilities, and she no longer accepts donations from private-prison lobbyists.
“I’m glad that we’re ending private prisons in the federal system; I want to see them ended in the state system,” she said during her debate with Trump — a statement which immediately caused a plunge in the stocks of the country’s largest publicly traded prison companies.
“You should have a profit motivation to fill prison cells with young Americans.”
Presidential clemency has received more attention than usual this year after Obama began to make unprecedented use of the power. As of September, he has commuted the sentences of 673 inmates, more than the previous 10 presidents combined, and pardoned 70.
Clemency can be used to pardon federal inmates or commute their sentences. It’s one of the few direct, relatively unchecked actions a president can take in the criminal-justice system, as it bypasses both Congress and the courts.
Clinton has not explicitly said whether she would continue Obama’s trend of granting commutations to hundreds of prisoners at a time. Her platform does include “allowing current nonviolent prisoners to seek fairer sentences,” but she typically discusses the need to overhaul federal mandatory-minimum laws in place of granting clemency.
Obama has concentrated his clemency efforts on inmates who were harshly sentenced for nonviolent drug offenses during the tough-on-crime era of the late 1980s and early 1990s. Were they convicted today, many of those inmates would have received substantially less severe sentences.
Sentencing and drug-law reforms
Federal efforts to reform the criminal justice system mostly revolve around sentencing reform — particularly reducing the use of mandatory minimums, which forces judges to impose sentences regardless of whether they agree with their length.
Clinton’s main focus in reducing mass incarceration has been to overhaul sentencing for drug offenders. She supports halving current mandatory minimum sentences for nonviolent drug offenders, retroactively applying equal sentencing to crack and powder cocaine offenses, and eliminating nonviolent drug offenses from the “strike” system.
Beyond criminal sentencing, drug-policy reform advocates have also looked to Clinton with the hope that she would adopt a progressive stance on federal marijuana laws and decriminalize the drug.
Clinton is in favor of reclassifying marijuana to a Schedule II substance under the Controlled Substances Act, which would acknowledge its medical use. It is currently classified as a Schedule I elicit substance, putting it alongside drugs including heroin.
Clinton has been more wary, however, on the issue of recreational marijuana and opted to review how the policies have fared in states that have already legalized, such as Colorado.
Reentry and integration
With the national conversation focused largely on preventive measures to mass incarceration, some advocates of criminal-justice reform have called on lawmakers to help lower recidivism rates and ease ex-felons’ transitions back into society.
Clinton believes ex-felons should be allowed to vote and has promised executive action to “ban the box,” which would prevent questions about criminal history being asked during the hiring of federal government employees and contractors. Clinton has also proposed a $5 billion investment in reentry jobs programs for ex-felons.
The federal use of the death penalty dramatically expanded in the 1990s, and its modern use has grown increasingly at odds with its dwindling use in the state systems. Recent reports show that states’ use of the death penalty is declining each year — in part because of widespread shortages of lethal-injection drugs — yet is propped up by a handful of counties that often demonstrate systemic failings, such as overzealous prosecutors, inadequate defense lawyers, and racial bias and exclusion.
These concerns have been projected onto the federal system as well, particularly in cases such as Dzhokhar Tsarnaev’s, when the convicted Boston Marathon bomber was sentenced to death by a federal jury in Massachusetts, a state that devoutly opposes capital punishment.
Both Clinton and Trump support the death penalty — Clinton even splits with her party on this issue, favoring a limited-use policy, while the Democratic platform endorses its abolishment.
Clinton gave a meandering response, saying she would “breathe a sigh of relief” if the Supreme Court or the states eliminated the death penalty, but she believed it should still be used for those who commit “really heinous crimes.”
“Where I end up is this — and maybe it’s a distinction that is hard to support — but at this point, given the challenges we face from terrorist activities, primarily in our country, that end up under federal jurisdiction, for very limited purposes I think it can still be held in reserve for those.”