Sally Q. Yates served in the Justice Department from 1989 to 2017 as an assistant U.S. attorney, U.S. attorney, deputy attorney general and, briefly in 2017, acting attorney general.
The latest episode of the reality-show presidency had our president conferring with Kanye West in the Oval Office to get his advice on criminal-justice reform. The bizarre encounter may have been a ratings success, but no celebrity-studded shiny object should distract us from the fact that this administration has in actuality reverted to the failed “lock them up and throw away the key” practices of the past. We can’t lose sight of the reality that people’s lives, the fairness of our justice system and the safety of our communities hang in the balance.
Under President Trump, we have returned to the indiscriminate use of lengthy mandatory minimum sentences for lower-level, nonviolent drug offenders. His administration has erased significant strides in police reform across the country — not only refusing to move forward with previously negotiated consent decrees but also refusing to help police departments as they seek reform assistance from the Justice Department. It has revoked guidance on the potential legal consequences of excessive fines, fees and cash bail that criminalize poverty. It has reversed a mandate to reduce and ultimately end the use of private prisons that are less safe and do not rehabilitate inmates. It has abandoned the “clemency initiative” launched by President Barack Obama that commuted prison terms for more than 1,700 low-level drug offenders. And despite its professed interest in prison reform, it has ended Obama-era reforms to the Federal Bureau of Prisons designed to provide inmates with tools they need to successfully reenter society, including the creation of a “school district” that would for the first time offer high school diplomas and address learning disabilities and illiteracy in our federal prison system.
It would be easy to ascribe these decisions solely to Attorney General Jeff Sessions, who is decidedly anti-reform. But after conjuring the depiction of “American carnage” at his inauguration, the president himself has continually championed this draconian approach, erroneously claiming that we are in the midst of a violent crime epidemic. Last week, he urged a return to stop-and-frisk while paying lip service to supporting reform.
There are some in the administration who recognize the need for criminal-justice reform and are seeking to advance legislation. But it’s important that we ensure that any reform measure that advances will have a meaningful impact, or we risk checking a box and moving on without making a difference. If the president is serious about criminal-justice reform, there are three issues that enjoy bipartisan support and are essential to building a fairer and more effective justice system.
First, real reform requires that we restore proportionality to drug sentencing. Laws passed at the height of the crack epidemic have exploded the federal prison population by almost 700 percent, with drug offenders sentenced under a mandatory minimum regime that focuses almost exclusively on drug weight rather than the dangerousness of the offender. Not only is such a regime unfair, but it also makes us less safe by diverting public safety resources to keep some offenders in prison for longer than necessary.
Second, we need to reorient our prisons toward rehabilitation. We should adjust not only how much time inmates spend in prison but also how they spend that time. Research shows that inmates who participate in meaningful correctional education programs are 43 percent less likely to return to prison, and every dollar spent on prison education saves $4 to $5 on the costs of reincarceration. But to make real change, we can’t be satisfied with dabbling on the margins by merely instituting incentives for inmates to participate in programming when there isn’t sufficient programming available; thousands of inmates are already on a waiting list hoping for a chance to enroll in a GED prep program. Rather, we need a wholesale rethinking of the prison experience and smart investment to increase the likelihood that inmates successfully reenter society.
Finally, our country’s promise of equal justice remains unfulfilled in light of excessive fines, fees and cash bail imposed on low-income defendants. The Justice Department’s Ferguson report shone a harsh light on how these practices can result in an inescapable cycle of debt and unnecessary incarceration — a cycle that disproportionately falls on communities of color. Low-income defendants can languish in pretrial detention for months not because they pose a danger to the community but because they lack the resources to make even low-dollar bail payments. Poverty is not a crime, and we must ensure that we have one system of justice that applies to all.
I hope that President Trump’s newly professed support for criminal-justice reform is real — and not just a celebrity photo-op. The proof will be in what happens when the cameras are off.