THE FEDERAL PRISON INDUSTRIAL COMPLEX
In 1984, Congress enacted, in a bipartisan manner, the Sentencing Reform Act (SRA) following a decade of hearings, arguments and procedural wrangling. The SRA was supported by every U.S. Senator except one—Senator Charles Mathias (R-Md) who agreed that indeterminate sentencing was a problem but did not believe the SRA appropriately addressed the problem.
Mathias’ concern about this piece of legislation, that dramatically altered and changed federal criminal sentencing unlike any other in the nation’s history, proved prophetic.
Prior to the SRA, federal judges had wide discretion to set prison sentences. This produced huge disparities among similarly situated defendants depending on the particular judge that heard the case.
The primary purpose of the SRA was to eliminate unwarranted sentencing disparity produced by indeterminate sentencing and prevent crime by having federal sentences determined by an independent, expert sentencing commission through a system of mandatory sentencing guidelines. It failed in both respects.
Sentencing Guidelines Lead to Massive Prison Industrial Complex
What the SRA has accomplished over the last three decades is to firmly, and perhaps irretrievably, establish a massive federal prison industrial complex. According to the PEW Charitable Trusts (PEW), nine out of ten federal offenders today receive a prison sentence, up from the half who received prison sentences in 1984.
Seen through a real time lens, this means that federal courts sentenced 2,300 fewer offenders to probation in 2014 than they did in 1980, despite their caseload having nearly tripled since that time. This shift in harsh federal sentencing policies can be attributed to congressional action taken following the enactment of the SRA that created new mandatory minimums in federal sentencing while simultaneously decreasing the use of probation.
Federal Prison Population Explosion
The result is that the federal prison population has increased from 35,795 in 1984 to 214,149 in 2014. According to the Families Against Mandatory Minimums, the federal prison system today is overcrowded by 40 percent; and approximately 40 percent of those inmates are serving mandatory minimum sentences at a cost of almost $29,000 per inmate each year.
Length of Prison Sentences Increased
All six categories of major federal crimes—violent, property, drug, public order, weapon, and immigration offenses—have seen significant increases in sentences imposed for them. PEW reports that the average of amount of time served for these offense rose from 17.9 months in 1988 to 37.5 months in 2012.
Prisons Outspend Law Enforcement Agencies
PEW also reported last year that federal prison spending rose from $970 million in 1980 to more than $6.7 billion in 2013—a 595 percent increase. That means federal prison spending in 2013 equaled all spending for the U.S. Justice Department, including the FBI, DEA, and all U.S. Attorneys.
That makes the Federal Bureau of Prisons (BOP) an industrial complex because of the political influence it can and does exert, the increasing number of private prisons it has under contract, and the wide array of companies that provide goods and services to the bureau. It can best be described as a human misery industry.
Special Housing Units, Solitary Confinement
The federal prison system has become so vast that President Obama recently announced that he has ordered the BOP to stop placing juvenile offenders in long term lockdown in what is known as Special Housing Units. He also restricted SHUs for offenders who have committed low-level security infractions, and has instructed the BOP to implement policy changes that provide better mental health treatment in SHUs and increase the amount of time SHU inmates have out of their cells.
In many respects, too many federal judges have become tolerant, if not comfortable, in a sentencing scheme that treats all offenders are incorrigibles who must be sent into a prison system that treats them like waste disposal products.
But perhaps this vindictive tide is turning toward a more rational federal sentencing and corrections approach.
Sentencing Reform and Corrections Act of 2015
This past October the Senate Judiciary Committee produced a bipartisan Sentencing Reform and Corrections Act of 2015 (SRCA). If passed, the SRCA would retroactively reduce mandatory minimums for a number of drug and weapons offenses; expand the “safety valve” exception for other drug mandatory minimums; and increase the amount of good time federal inmates who complete rehabilitation programs.
States Lead Country in Prison Reforms
This follows the lead of an increasing number of states that have enacted in recent years legislation to reform sentencing policies: 16 states and the District of Columbia have passed laws to reduce penalties for certain crimes, e.g., changing some felonies to misdemeanors; three states have changed their probation and parole policies through sentencing alternatives; 14 states and the District of Columbia have passed laws reducing the collateral consequences of a criminal conviction, such as eliminating bans of certain kinds of employment opportunities; and at least 15 states have enacted significant juvenile justice reforms, such as eliminating life without parole of juveniles.
It is far too early, first, to expect passage of the SRCA, and, second, to gauge its potential impact on either the federal sentencing scheme or its prison industrial complex. What we do know is that the federal sentencing scheme is too harsh and vindictive and its prison industrial complex is too abusive and ineffective; and both are in need of serious reform. This nation can no longer afford to incarcerate all its social ills. Prisons should be reserved for the worst of the worst and for those incorrigibles who have demonstrated they cannot live by the rules of a free society.