The Only Man Who Can Fix Mass Incarceration Is Barack Obama

Waiting for Congress or the courts or a popular movement to fix America's prison crisis is a waste of time.

Today, like any other day, there are around 2.4 million people incarcerated in America’s federal, state, and local prisons and jails. Together, the nation’s inmates would constitute the fourth biggest city in the United States, knocking Houston down a notch. Expand that grouping to everyone under correctional control, including probation and parole, and you’d have a metropolis of nearly 7 million, second only to New York. Finally, reunite the number of people that see the inside of a jail cell in a given year, and you’d have a prison city with a population as big as New York and Los Angeles combined (11.6 million).

This is not because society is struck by criminality. Incarceration has increased by 700 percent in 40 years despite crime rates dropping. It is a result of deliberate choices. As it spends more than $50 billion each year on the War on Drugs, America still hands down life sentences for non-violent drug crimes, incarcerates African-American males at six times the rate of white males (Latino men 2.5 at times the rate of white males), and has a justice system with proven racial disparities in sentencing,  death-penalty verdicts, the granting of probation or parole , and employment prospects after incarceration.

Mass incarceration cripples families and communities, perpetuates poverty, recreates conditions for crime, and institutionalizes a form of racial control. As a result about one in four American adults (65 million) now have a criminal record.

Consider that for a moment—even in the context of historically disastrous periods of American history. One quarter is also the proportion of Americans unemployed in 1933, at the height of the Great Depression, which included the “worst month for joblessness in the history of the United States.” It’s the same proportion as the casualty rate for Civil War soldiers. It’s almost three times the percent of Americans enlisted in World War II.

The issue has been slow to enter public discourse, perhaps because the most affected populations are also the most marginalized. From scenes of armored vehicles and snipers in Ferguson to the totalitarianism of the prison system as presented in Orange is the New Black, that may slowly be changing. Various advocacy groups are organizing movements, some in Congress see an opportunity for bipartisan reform, and litigators continue to seek incremental victories against practices like stop-and-frisk.

But these efforts will not be enough to significantly affect a problem of this scale—at least not alone. Like the critical junctures of past generations, the Civil War or the Great Depression, this is a problem that requires presidential leadership. As the executive, Obama wields straightforward and fundamental power to reduce the scale of mass incarceration; as president, and in particular as a black male president, his ability to address the racial dimension of the system is significantly less clear. Nonetheless, with Attorney General Eric Holder stepping down, the Democrats' loss of the Senate in the midterms, and and the end of Obama’s presidency looming ever closer, the time and space for action continue to shrink and all signs point in one direction.

It isn’t that presidential action is necessarily a great choice. It’s that other options are structurally impossible or temporarily unavailable. For most policy issues, change can come about three ways, besides from the executive: popular movement, Congress, or legal challenge in the courts. The nature of mass incarceration in the U.S., though, prevents serious change through these alternative routes—even despite some recent signs for hope.

The protest surrounding Michael Brown’s shooting might seem like a chance for reform, but social and legal structures make popular movements against mass incarceration difficult. The populations most disadvantaged by the current system are traditionally the most marginalized, poor, and minority communities. They have the lowest social capital, little wealth for advocacy, and least access to political elites. Felon disenfranchisement stifles an electoral threat and substantially affects political outcomes. Parole conditions prevent felons from associating (read: organizing) with one another. The risk of arrest dissuades civil disobedience. Moreover, discrimination in hiring, continued state bans on SNAP and TANF eligibility, and abusive civil forfeiture practices mean that those who have gone through the justice system tend to lack financial means for effective advocacy. To compound issues, there are opposing forces with money to spare—the Corrections Corporation of America for example, whose business model is increased incarceration, recently paid more than $250,000 just to participate in the Republican Governors Association proceedings and has spent almost $14 million on lobbying in the last eight years. By contrast, Families Against Mandatory Minimums, a leading reform advocacy organization, only spent $80,000 on federal lobbying in 2014.

At first glance, Congress seems to be a bright spot too, but a spree of lauded efforts offer less than meets the eye. Senators Cory Booker and Rand Paul’s REDEEM Act has some important goals, aiming to divert juveniles from the justice system, expunge or seal records for certain youth and adults, and restore benefits to some former non-violent drug offenders. Yet it would only address a miniscule portion of the mass-incarceration system, and would only change conditions of release for some offenders rather than changing the underlying system—and that’s assuming it will pass. “Tough-on-crime” conservatives like Chuck Grassley, John Cornyn, and Jeff Sessions hope to stand in the way of future reform, as they successfully did in taking the steam out of the Smarter Sentencing Act and denying Obama’s requests for new attorneys for pardon claims. Congressional Democrats, meanwhile, did not oppose an amendment to remove SNAP-benefit eligibility for ex-felons and show signs of fearing “soft-on-crime” attacks in November. As Josh Barro noted in The New York Times, the party’s standard bearers have been silent when it counts. “No national Democratic politician, nobody of the sort who is likely to mount a presidential run anytime soon, has risen to give voice to the anger we’re seeing in Ferguson,” Barro writes. “Nobody seems eager to make police abuses or racial injustice a key issue in a national campaign.” There’s a compelling if cold-blooded logic to this: It’s not an issue that’s going to win new voters or cash.

Despite lacking those political disincentives, the courts aren’t a more attractive option for comprehensive changes to justice and policing. The judiciary has, however, begun to be sensitive to problems of incarceration, particularly prison overcrowding. Last year, the Supreme Court denied a petition from the state of California to delay a required reduction in the state’s prison population. The state must continue to seek reductions mandated by Brown v. Plata, in which the Court found that prison crowding resulted in conditions that violated the Eighth Amendment. However, as Marie Gottschalk wrote in The New Republic, the case is likely to have a narrow impact because of the Prison Litigation Reform Act, a 1996 law that restricts prisoners’ access to the judicial system.

The door is at least ajar for challenges to prison conditions, unlike for suits based on racial discrimination. Michelle Alexander describes in The New Jim Crow how the Supreme Court “has now closed the courthouse doors to claims of racial bias at every stage of the criminal justice process, from stops and searches to plea bargaining and sentencing.” Through a series of decisions—on racial profiling, private racial profiling litigation, racial bias in sentencing, and discriminatory law enforcement practices—the judiciary has repeatedly sided with the government against claims of prejudicial wrongdoing. In a rare victory, in 2013, a federal district court held in Floyd v. City of New York that the NYPD’s profiling and stop-and-frisk practices were unconstitutional. Though important, that victory was rare and local. Addressing a national institution will require nationally binding decisions.

The President’s Role: Scale

Even if a movement found lasting momentum, Congress miraculously passed legislation, and the judiciary suddenly reconsidered decades of precedence, it still would not be enough to address the enormity of mass incarceration. The White House’s power over the Justice Department, influence over public opinion, and discretion to create commissions and reorient priorities make the executive uniquely situated to begin reforms to match the size and scope of the bloated system. Obama is historically unique, too, in his biographical connection to the crisis: Many advocates insist that, as a black male, he has a heightened responsibility to address race in a system that disproportionately oppresses his demographic. Yet while there are clear actions and strategies available for the president to directly reduce incarceration, discrete actions toward racial justice are less clear, and the plausibility of a larger movement definitively muddled.

The most pressing task is to address the enabler of incarceration: money. Policy experts from leading liberal and conservative justice-reform think tanks told me that spending is the single most important avenue for reform. Money determines outcomes; change that and you can change the whole system. In fact, as Inimai Chettiar, director of Justice Program at NYU Law School’s Brennan Center, explained to me, the current system arose out of expanded federal spending. “The federal government enacted several laws that basically gave states more money if they would increase their prison population,” she said. Truth-in-sentencing guidelines, for example, disbursed billions of dollars to “ensure that people would spend 85 percent of their sentences in prison even though those sentences were already … overly harsh.” That flow of cash, a product of the War on Drugs, also came with a series of designated metrics—like arrests or drug seizures—that incentivized states to gear performance towards what they saw to be lucrative outcomes. If the Justice Department revised its interpretation of many of these laws, it could reshape the system.

One example of this phenomenon is the Edward Byrne Justice Assistance Grant program, which is both the biggest federal grant program for state and local criminal-justice authorities and emblematic of the way other programs function at the Departments of Justice, Defense, and Homeland Security. The Brennan Center found that

The program inadvertently creates incentives to increase arrests, prosecutions, and incarceration. For example, it evaluates [grant] recipients on the number of criminal cases opened, but not whether crime dropped. It asks them how many kilos of cocaine were seized, but not how many people were sent to drug treatment. It asks how many cases were prosecuted, but not how many petty offenders were diverted from prison… Measuring the wrong practices strengthens the wrong practices.

Even a one-time influx of money has multiplying effects. “As prisons cost more and more, both because of more inmates and increases in health-care costs for inmates and staff, they monopolize corrections budgets,” explained Marc Levin, policy director at the conservative reform group Right on Crime. “Prison spending crowds out spending on the very programs such as probation, drug courts, electronic monitoring, treatment, and policing that can safely supervise offenders in the community and deter crime.” The result is a spiral that turns incarceration into mass incarceration.

There is a simple, powerful executive solution. The Department of Justice can ask states to prove their progress on more constructive measures—reduced recidivism, lower violent crime, better re-entry options, lower prison density. Redesigning federal funding and reporting mechanisms toward these explicit goals is well within the purview of the president’s set of tools, even if he can’t control the total amount of money appropriated. (The Brennan Center calls this “Success Oriented Funding.”) It’s startling to realize these aren’t already the metrics for justice.

Brennan Center for Justice

Levin and other conservatives are eager to point out that similar strategies have already proved successful on the state level, in programs where state governments reward local jurisdictions that focus on violent and high-risk offenders instead of nonviolent arrests and seizures. After California passed the Community Corrections Performance Incentive Act in 2009, which encouraged probation offices to prioritize other methods over prison re-entry after supervision violations, the state saved almost $180 million in one year and cut the number of people sent back to prison by almost a quarter. Another program, in Illinois, gave more funds to counties that agreed to decrease new prisoner intake by 25 percent. Those funds go to incarceration alternatives like rehabilitation and supervision programs. Federal involvement could multiply the impact of these state-level programs by reaching the entire country.

Skeptics will protest that the president doesn’t have the right or power to so drastically change the outcomes of funds that originate from congressional appropriations. Not so: The authority to administer grants well within the rights, and practice, of the executive. William Howell, a professor of political science the University of Chicago, explains in his book Power Without Persuasion: The Politics of Direct Presidential Action: “The President issues a directive, and absent a congressional or judicial response, the directive assumes law-like status … an executive order retains the weight of law until and unless someone else overturns it.” If the president wishes to “revamp the reporting procedures of federal agencies …[or] require that industries receiving federal contracts comply with certain government hiring and firing practices, he does not depend on Congress for legislative endorsement.” Given the gridlocked state of Congress, legislative response to this type of reorganization seems unlikely, and these measures can all go forward without new appropriations.

There’s a handful of even easier, less politically freighted measures Obama could undertake. A presidential panel on mass incarceration, though mostly symbolic, would help to bring national attention to the problem. While the 2010 Fair Sentencing Act reduced disparities in crack and cocaine punishments, thousands of prisoners are still serving draconian sentences. To president could direct the Justice Department to proactively seek out candidates for commutation and pardon as a way to implement the guidelines passed in the 2010 Fair Sentencing Act that reduced disparities in crack and cocaine punishments to a further 5,000 individuals to whom the act currently does not apply. The government could also “ban the box” for federal hiring: Currently, the government lacks a system-wide policy on requiring applicants to disclose past criminal offenses. Employment, unsurprisingly, is a key determinant of reducing recidivism. These are simple and effective changes that require only Obama’s signature.

President’s Puzzle: Race

But the problem with mass incarceration is not just that it ensnares so many people, but how it does so: through the disproportionate arrest and incarceration of African-American and Latino people, particularly men. Dangerously, this creates a feedback loop, because criminalization of minorities leads to the public and media portrayal of minorities as criminals, which translates into more discriminatory enforcement. What makes these disproportionate racial impacts of mass incarceration so insidious, as The New Jim Crow argues, is that it is fundamentally “color-blind.” There are no laws that explicitly single out black men, but the system allows and facilitates discrimination. Traffic-stop policies have no explicit racial directions—they just set a broad list of “suspicious behaviors” that allows police to single out anyone they choose, often minorities.

Addressing this element of the system is a far more complicated puzzle for President Obama. Radically shrinking incarceration overall would be a major step, since minorities would disproportionately benefit. But that would be great disappointment to critics who complain that Obama has repeatedly avoided grappling with race head-on, even when it’s desperately needed. One school of thought holds that policy is an inadequate tool for purging the systemic racism in criminal justice, and a blunt discussion is needed. It would be impossible to ignore Obama, the president who can say that his son “would look like Trayvon,” they hold. But other than his comments on the shooting in Sanford, the President has deliberately avoided using events like Ferguson to engage racism in the justice system. Instead, he has left this role to Eric Holder, leading critics like journalist Steven Thrasher to worry that Holder’s departure forecloses any hopes for a national conversation on racial injustice. The attorney general, Thrasher wrote, “will at least address aloud your rage at the very institutional racism the president himself seems afraid to name.”

At the same time, Obama has been attacked by conservative critics who accuse him of injecting race where it has no place, but he’d come to this fight with an unusual set of allies, especially on the libertarian right. In addition to Rand Paul’s outspokenness about the racial impact of the justice system, the Charles Koch Institute—namesake of the major donor—whose conferences and advertising have approached the disparate racial effects head on. Obama could emphasize that as a black male who used marijuana, he had much greater odds of ending up in a prison cell than in the Oval Office. “The main role that the executive can play is call attention to the problem and increase public and political support for a solution,” says Chettiar. There are good reasons to believe the president should be the one to take up that role on racial injustice, too.

Act Now

Of course, these recommendations are all moot if they don’t square with political reality. Surprisingly—in the age of ultra-partisanship—the country seems more than ready to embrace leadership towards incarceration reform. From liberal bastions like Massachusetts to conservative strongholds like Texas, voters have expressed strong preferences for reform. “I think there is more bipartisanship on this issue than virtually any other,” Levin says. Presidential leadership could unite disparate, state-level progress, but Democratic fear of appearing soft on crime has blunted any political movement. “What should be a progressive issue is being lead mostly by conservatives,” Chettiar says. Nonetheless, conservative reformers like Levin would welcome them, even though they’re “a bit late to the party.”

Not everyone is convinced that the president holds such sway—or should. Many advocates would prefer to continue honing in on state successes and problems; some conservatives would surely call a presidential move just another case of “anti-constitutional” overreach; other political theorists, in the model of the pioneering scholar of presidential power Richard Neustadt, would insist that any reform starts with Obama persuading others, rather than going it alone.

The more compelling dissent comes not from skeptics of presidential power but from liberal populists. Michelle Alexander remains hopeful that collective, rather than executive, action will overturn the system. "I am much more interested in what the people of Ferguson are going to do and say, and what people of conscience everywhere are going to do and say,” she told me. “What the people in the streets, and in barber shops, and on college campuses, and in prison cells do and say right now is more important than what the Supreme Court or the president of the United States might do or say.” Any issue so tied up in basic human dignity has to be handled on an individual level, outside of hierarchical approaches, she says.

For the optimistic reformer, there are signs that society is on the verge of a fundamental reckoning with the system of mass incarceration, the failed War on Drugs, and their attendant forms of racial control. But it would be a political and moral mistake to ignore the power of the presidency to catalyze the transformation. “This is a rare opportunity,” Chettiar says. “There is so much more attention being paid to this issue than ever before…I think that’s why there’s even more responsibility on public and political leaders to be talking about this issue—because if they don’t, I don’t think any action will take place.”

Two years ago, Adam Gopnik wrote in The New Yorker that “mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today—perhaps the fundamental fact.” Barack Obama has a clear path to change that fact—he just has to take it.