Stanford Law’s Robert Weisberg on the New Prison Reform Bill and the U.S. Prison Problem

The United States has the highest rate of incarceration in the developed world. And, once again, politicians are proposing ways to reduce the number of people in prison. In the Q&A that follows, criminal law expert Robert Weisberg discusses the criminal justice bill waiting for a vote in the Senate.

What is the scope of the prison problem in the U.S.?

Our rate is several multiples greater than those of other industrialized democracies. Comparisons to non-democracies and less developed countries are tricky because the statistics are less reliable, but most studies say we are higher than all of them as well.

What are the key elements of this latest prison reform bill?

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Professor Robert Weisberg

There would be a modest reduction in mandatory sentences for certain federal drug crimes, though this is not retroactive.

On the other hand, the bill makes retroactive the 2010 law that readjusted the relative sentences for crack and powder cocaine—that earlier law somewhat mitigated the clear racially disparate effects of the crack/powder distinction.

There would be a modest increase in the rate at which certain felony prisoners can gain good behavior or rehab program credits that can shorten their sentences.

Who do you think will be most affected by the new law, if passed? Who will likely benefit most?

Nonviolent long-term drug inmates get out a bit earlier. Very long-term inmates convicted for crack cocaine who did not benefit from the old law can petition for a somewhat earlier release.

There was some opposition to the bill. What are the risks to public safety if the bill passes? And are there measures to reduce recidivism?

Most criminologists would say the risk is probably nil. The biggest opponent has been a senator from Arkansas, and I doubt even he believes what he says.

There have been lots of now very conventional verbiage about risk assessment to identify the safest risks for release; lots of encouragement (though not necessarily much funding) for rehab programs, job training, halfway houses, etc. All potentially positive but on both this matter and on shortening of sentences, the bill is a pretty weak change compared to what has already happened in many states.

This bill relies on the tired and unsound notion that the real problem about our prisons is the great number of “non-violent” inmates. The line between violent and non-violent is blurry and arbitrary. Many on the wrong side of that line are deemed violent because of gang associations in old drug crimes. Politicians need to stop using the “only lock up the violent” meme. There have to be better ways of addressing wasteful and unproductive sentences for criminals deemed “violent.” Also, be wary of complaints that under certain reform plans some prisoners are “getting out early.” “Early” as compared to what? Compared to the officially legislated maximum sentence? Legislators make up numbers for both minimum and maximum sentences. These numbers are not based on platonic measures of moral culpability or finely-tuned risk instruments. And legislators know perfectly well that the judicial system allows for lots of “early” release when they make up these numbers.

Robert Weisberg is the Edwin E. Huddleson, Jr. Professor of Law and Faculty Co-Director of the Stanford Criminal Justice Center. His scholarship focuses on criminal law, criminal procedure, white collar crime, and sentencing policy.