Editor’s Note: In the coming months, the Daily Appeal will occasionally examine the 2020 presidential contenders’ records, platforms, and rhetoric on issues relating to criminal justice. You can find past installments here.
Will Cory Booker continue talking about second chances for people convicted of violent crimes?
Matthew Charles of Nashville, Tennessee, was a guest of President Trump’s at the State of the Union last night. Charles’s story attracted widespread attention last year when he was sent back to prison, a year and a half after being released in 2016, because it was determined that the release had been in error. When he was released again in January, under the provisions of the narrow First Step Act, he had been in prison for over 20 years of his 35-year sentence for a federal drug conviction. [Matthew Charles / Washington Post]
In the Washington Post last week, Charles wrote that the First Step Act was “a great start,” but “we have to do more. I got a second chance—and so should so many others.” Specifically, he called for Congress to pass a law that would allow all people in federal prisons a chance at release after a specified period of time, perhaps 15 years. “Some might think this idea is too lenient,” Charles writes, “but 15 years is a long time. From what I saw during my years behind bars, anyone who wants and deserves a second chance would be able to demonstrate that within 15 years.” [Matthew Charles / Washington Post]
Charles’s recommendation takes aim at an issue at the heart of meaningful criminal justice reform in the United States. As the crisis of mass incarceration has become widely recognized, there is still a temptation to believe that it can be addressed simply by curbing long sentences for people convicted of nonviolent and drug offenses. Numerically, this is far from the case: Half of all people in state prisons have been sentenced for violent offenses, and the state prison population is 90 percent of the country’s total prison population. From a policy perspective, the “lock ’em up and throw away the key” mentality that birthed the longest sentences—and persists in the minds of many lawmakers—has shrunk our collective imagination about what victims of violent crime need and what repairing harm can look like. Morally, to argue that only those in prison on nonviolent and drug convictions deserve a chance at redemption is to miss what redemption is about.
These questions may be ever-present in debates among activists and academics but they have had little effect so far on policies at the state and, particularly, federal levels. For this reason, and because of his focus on criminal justice reform as a senator, some welcomed Cory Booker’s entry into the race for the Democratic nomination for president.
In a 2016 interview for Vox, Booker noted in response to a question about what to do with people convicted of violent crimes that “we are different than most places on the planet Earth in terms of the lengths of our sentences even for violent crimes.” Booker spoke specifically about the need to reconsider the continued incarceration of people “in their 50s, 60s, and 70s.” “There comes a point,” he said, “where you really have to ask yourself if we have achieved the societal end in keeping these people in prison for so long. Is the societal cost and expenditure worth it to keep somebody who’s older—higher medical costs and the like— in prison? This is a conversation this country really needs to have.”
Booker offered the example of someone who has spent 40 years in prison on a violent conviction to make a cautious proposal: “A system in which someone who serves 40 years on a sentence and is now a senior citizen, a system that says they should now be able to go through a process and the victims are notified, where prosecutors are there, where the chance for redemption is open to them, not given to them, I think we should have a system that allows a chance for redemption for people who are well past the point in their lives where they’re any statistical threat to this country.”
In that interview and others, Booker has also made the related, but distinct, point that much of what is considered “violent” in criminal law is not what most people consider violence. “I just think there’s a fear to have a candid conversation about proportionality when it comes to things that are labeled as violent crimes,” he told Vox. “There are people who do nothing violent, who might just be driving a car, who can get convicted for a violent offense,” he said when he interviewed John Legend in 2017.
Among criminal justice advocates, the push to address excessive sentences for people convicted of violent offenses is not new. The Sentencing Project and its founder Marc Mauer have, for several years, called for a 20-year cap on all sentences, to bring U.S. sentencing in line with European peer countries. The Sentencing Project’s focus on “life imprisonment” includes what it calls virtual life sentences, sentences of at least 50 years—like the cases of Cyntoia Brown and Bobby Bostic—that have the effect of incarcerating people for a lifespan. [The Sentencing Project]
Last year, the organization launched a Campaign to End Life Imprisonment. The campaign builds on the organization’s research into the impact of life and virtual life sentences.
Currently, 206,000 people are serving life sentences, 44,000 of them virtual life sentences, a number that has quadrupled since 1984 and makes up 1 out of every 7 people in prison. And while the rate of life sentences has increased sharply across the board, the number of women and girls serving life sentences—many of them with experiences of sexual assault, trauma, and abuse—has gone up even faster. An end to life imprisonment would also overwhelmingly affect Black and Latinx people, who make up two-thirds of those in prison sentenced to life. [The Sentencing Project]
Matthew Charles’s recommendation for a chance at release after 15 years is also similar to “second look” and “elder parole” proposals made in recent years. In 2017, the American Law Institute approved the first-ever revisions to the Model Penal Code. Writing about the revisions, Steve Zeidman of CUNY School of Law highlighted one recommendation in particular: the call “for state legislatures to enact a ‘second look’ provision; to create a mechanism to reexamine a person’s sentence after 15 years no matter the crime of conviction or how long the original sentence.” In New York, lawmakers have introduced an “elder parole” bill that would provide an opportunity for release to all people over the age of 55 if they had been incarcerated for at least 15 years. In Pennsylvania, a bill that would create the opportunity for release for people serving life sentences won the support of Philadelphia District Attorney Larry Krasner last year.
At the end of 2018, Daniel Nichanian of The Political Report lauded the “criminal justice reformers nationwide” who “redefined expectations for what is achievable through local and state politics” and transformed candidates’ tough-on-crime stances “from asset to liability.” As the race for the 2020 Democratic nomination gets underway, reformers will have to transform expectations at the national level as well.
It remains to be seen whether Booker’s rhetoric as a presidential candidate will match what he has said in recent years. And there is also the real question of whether his actions, if elected president, would reflect the recognition of criminal justice issues that he has demonstrated in interviews. A memo on criminal justice released during his 2013 Senate campaign did not speak to sentencing reform for people charged with violent crimes, and the most comprehensive reforms he pushed in the Senate were criticized as being inadequate to achieve their goals. He was a prime mover in the push to get the First Step Act passed, but its sentencing provisions do not help people convicted of violent crimes.
But because the number of federal lawmakers who emphasize that we treat people convicted of violent offenses too harshly is vanishingly small, Booker’s candidacy offers the hope that this issue can finally become impossible to ignore. In 2015, John Pfaff, a law professor, wrote about the insufficiency of President Barack Obama’s clemency grants. “At some point,” Pfaff wrote, “we are going to have to reduce the punishments that violent offenders face if we really want to cut our breathtaking prison population down to size. … But this idea is a political third rail, and no leading politician has been willing to risk touching it. Almost all the reform proposals we have seen focus exclusively on scaling back punishments for drug and other nonviolent crimes.”
Pfaff’s disappointment was based, in part, he said, on the reality that the federal government has little direct control over policies at the state and local level. “Incarceration is driven by so many local factors that neither federal sentencing reform nor presidential commutations can have much of an impact,” he wrote. “What the president may be able to do, however, is use his national pulpit to shape the debate. Obama missed a major opportunity to influence the current conversation on how to reduce incarceration.”
In the months to come, we will see if Cory Booker, the presidential candidate, uses his platform to enlarge our national debate. If we want to end mass incarceration, we cannot leave behind those charged with violent offenses. Will Booker send that message to his party and the country?