In The Arena A New Beginning for Criminal Justice Reform

Anthony Romero is executive director of the American Civil Liberties Union. Mark V. Holden is General Counsel and Senior Vice President, Koch Industries, Inc.

The U.S. criminal justice system is in a state of crisis — and Congress is finally moving to address it. On June 25, Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) introduced the bipartisan Safe, Accountable, Fair and Effective Justice Act. Known as the SAFE Justice Act, the legislation is an important step in addressing America’s ballooning, costly and ultimately unjust federal sentencing and corrections system, which needlessly throws away lives and decimates entire communities.

The criminal justice system’s problems are evident all around us.


Over the past three decades, Congress has steadily increased the size and scope of the federal criminal code, ensnaring people who have no business being behind bars, without a corresponding benefit to public safety. From 1980 to 2013, the federal criminal code increased from 3,000 crimes to approximately 5,000 crimes. Over the same period, our federal prison population skyrocketed from 24,000 to 215,000 — a 795 percent overall increase — while federal spending on prisons also soared from $970 million to more than $6.7 billion — a 595 percent increase.

While we have a good handle on how much taxpayers’ money we’ve wasted on over-criminalization and mass incarceration, the cost in human lives is incalculable. Almost every single federal prisoner serving life without parole for nonviolent offenses has one thing in common: a drug offense that resulted in a de facto death sentence. This excessive reliance on punitive sentencing destroys individual lives, families and communities. It is not clear it makes communities any safer. In addition, it is fiscally irresponsible and morally repugnant.

This points to a simple conclusion: The criminal justice system must be reformed. It must be dramatically altered to maximize public safety, minimize its cost to taxpayers and ensure that justice is served — for the victims of crimes, the individuals who commit them and for society at large.

That is why we, two unlikely allies — the American Civil Liberties Union and Koch Industries — support Reps. Sensenbrenner and Scott’s new bipartisan reform proposal. Both of our organizations are deeply concerned with helping the least fortunate and ensuring that justice is served equally and to all, regardless of their socioeconomic status or their station in life. The SAFE Justice Act contains numerous reforms that will begin turning this shared dream into a reality.

The SAFE Justice Act is the result of this two-year investigation which began in spring 2013 when the House Judiciary Committee unanimously charged the two congressmen to chair a comprehensive review of the problems in America’s criminal justice system, as well as an examination of potential solutions.

The congressmen started by looking at state reforms that have successfully lowered incarceration rates and the associated cost to taxpayers. Until recently, state prison trends mimicked federal trends, with the relevant statistics rising across the board. In the past decade, however, 27 states have enacted substantial reforms to their criminal justice systems.

The results they found are striking. The state imprisonment rate fell 4 percent over the past decade, compared with a 15 percent increase at the federal level. Taxpayers have seen the savings, with states saving at least $4.6 billion in lower prison-related costs. Importantly, 32 states saw a drop in both the percentage of people imprisoned and overall crime rates — a revelation that shows how criminal justice reform doesn’t compromise public safety.

The SAFE Justice Act would incorporate lessons learned in these states and apply many of them at the federal level. It seeks to address several specific issues with the current criminal justice system. Four areas of reform are particularly promising:

First, it begins the process of reversing over-criminalization and the over-federalization of the criminal code. The act forces the federal government to disclose the creation of new criminal offenses — a common-sense action that would clarify just how large the criminal code is and how fast it has grown. It also empowers the victims of federal over-criminalization to seek redress via the Office of the Inspector General. It also contains various reforms to protect against wrongful conviction, reduce pre-trial detentions, and eliminate federal criminal penalties in state jurisdictions, including penalties for actions such as drug possession.

Second, it would reform sentencing. Today, mandatory minimums force too many people to plea to lengthy prison sentences — punishments that may not fit the crime. The act seeks to undo this broken system by encouraging judges to offer probation to low-level offenders, while increasing pre-judgment probation. It also would restrict mandatory minimums to specific categories of people — such as high-level members of drug-trafficking organizations rather than street dealers — as originally intended by Congress.

Third, it would reduce recidivism. Too often, the criminal justice system’s flaws turn federal prisons into revolving doors for repeat offenders. The legislation proposes to address this problem with a number of reforms, including shorter sentences for people who participate in specific educational and vocational programs. These reforms can ensure that people who leave federal prison are better equipped to rejoin their communities and contribute to society.

Fourth, it would increase transparency. The bill would require that federal agencies issue regular reports on recidivism rates, prison populations and other key statistics. It also would require that cost analyses be presented to judges prior to sentencing to help them make prudent decisions.

This is only a partial list of the reforms proposed in the SAFE Justice Act. They are a good start — but they are not enough to reverse the damage, financially and in terms of human lives, caused by decades of misguided policies. In particular, members of Congress from both parties should continue to devote particular attention to ensuring that criminal laws penalize only the people who intend to commit crimes, an important distinction that many new federal criminal laws miss. More broadly, they must identify and pass targeted policies that are smarter on crime, rather than just tougher.

By partnering on this project, Democrats and Republicans can help remove barriers to opportunity for the disadvantaged and make our criminal justice system both fairer and more compassionate. The SAFE Justice Act is an important first step down that road — and hopefully the first of many.