Catherine Heard, Director of ICPR’s World Prison Research Programme, discusses Barack Obama’s recent article in the Harvard Law Review.

In an article published in the closing weeks of his second term, President Barack Obama has published detailed reflections on his criminal justice reform achievements and the challenges still to be met. To highlight America’s shockingly high prisoner numbers, Obama uses World Prison Brief data published and compiled by the Institute for Criminal Policy Research at Birkbeck (ICPR). His article also refers to a recent report by the White House Council of Economic Advisors, which contained several references to ICPR’s World Prison Population List 2016.

In ‘The President’s Role in Advancing Criminal Justice Reform’ (Commentary, Harvard Law Review, 5 January 2017: 130 Harv L Rev 811), Barack Obama charts a lifetime commitment to criminal justice reform, from his early work as a community organizer through to promoting legislative reform to some of the sentencing laws underpinning America’s failed experiment with mass incarceration. Pointing to the capacity of criminal justice to exacerbate inequality and social divisions, Obama argues that by asking criminal justice to solve problems it cannot solve, we risk undermining public trust in law and jeopardising public safety.

The scale of the problem

The first sitting president to set foot inside a federal prison, Obama visited El Reno, Oklahoma in 2015, speaking with inmates about their personal journeys to incarceration. He describes being struck by the way the justice system traps young people in an endless cycle of marginalisation and punishment – including some who had ‘made mistakes no worse than my own’. Though proud to be the first president in decades to leave a federal prison population smaller than it was when he entered office, Obama stresses the scale of the problem still to be tackled. 2.2 million of America’s citizens are imprisoned today – compared to less than half a million in 1980. US citizens now bear the burden of a prison system costing US$ 80 billion a year. With crime now close to historic lows, Obama sees this as a vital opportunity to press on with reform.

Obama’s key milestones

Legislation to reduce overlong sentences was signed in 2010 (Fair Sentencing Act). This aimed at ending disparity in sentences for drug crime, which was disproportionately affecting African Americans. The ‘Smart on Crime’ initiative led to changes in federal charging policy and practice, designed to stop prosecutors having to bring charges that would result in the longest possible custodial terms.

Up to 100,000 of America’s prison inmates are held in solitary confinement, around a quarter of them on a long-term basis. Obama directed a reduction in the use of solitary confinement, introducing guiding principles for its use in federal prisons, which could also serve as a model for change in state and local institutions. The Department of Justice recently directed the Federal Bureau of Prisons to phase out the use of private for-profit prisons. These have been shown to produce worse conditions for inmates, while creating no meaningful cost savings.

Prison reforms have placed a new emphasis on education and rehabilitation, recognising the importance of investing properly in preparing people to return to society and get their lives back on track. Around three hundred companies have signed a pledge to ‘ban the box’, to ensure people with criminal records – a staggering one in three Americans – have a fair chance at employment.

Although thwarted by conservative Republicans in many other areas of reform, Obama succeeded in building a strong political consensus for much of his justice reform agenda. Even traditionally ‘red states’ like Texas managed to make lasting changes, reducing prison sentence lengths as part of ‘justice reinvestment’ schemes to plough savings made from shorter custodial terms back into substance abuse and family support programmes.

The road ahead

There was a limit, however, to the extent of Republican support that Obama’s administration could secure for sentencing reform; and more recent reform initiatives have been blocked or shelved. These proposals would have seen mandatory minimum sentences for some non-violent drug offences cut (Smarter Sentencing Act 2014 and subsequent more limited versions of it). In calling on the next administration not to shirk the task of further reform, Obama highlights the degree to which punitive drug sentencing policies have disproportionately impacted poorer communities and those struggling with racial inequality and drug dependency.

Calling for America’s ‘tragic opioid epidemic’ to be re-characterised as a public health problem rather than one requiring a criminal justice response, the President notes that four out of every five first-time heroin users in the USA transitioned from misuse of prescription drugs. Another key challenge Obama identifies is to confront the racial bias in the policies of harsher law enforcement and longer prison sentences still seen in America today. For example, while levels of drug use do not vary significantly by race or ethnicity, African American arrest and conviction rates for drug crimes are significantly higher.

Understanding and reducing the resort to imprisonment

ICPR is engaged in a new international research project looking at trends and patterns of imprisonment in the USA and nine other contrasting jurisdictions across all five continents. The project asks what transferable lessons for reducing resort to imprisonment can be learnt from the ten jurisdictions’ differing approaches to, and experiences of, criminal justice. America’s recent history surely offers lessons too important to ignore.

Further information:

• Read ‘The President’s Role in Advancing Criminal Justice Reform’ (Commentary, Harvard Law Review, 5 January 2017: 130 Harv L Rev 811)
• World Prison Brief – Hosted by the Institute for Criminal Policy Research at Birkbeck, regularly updated with the most recent prison population data available. Supplemented by thematic and country-based, research, analysis and news. Informs the work of:
  • journalists and academics researching or reporting on prison use and conditions of imprisonment
  • activists, NGOs and monitoring bodies working in penal reform and human rights protection
  • national governments and politicians responsible for sentencing and prisons policy, health, security and community safety
  • reformers in national prison administrations, and
  • economists and funders in the global development field (including those focusing on sustainable development targets and indicators relevant to access to justice, the rule of law, transparency and accountability).
• Institute for Criminal Policy Research, School of Law
• School of Law
• Courses in Law
• Catherine Heard