Hardly a day passes without news about reforming the prison system. Attorney General Eric Holder has announced that federal prosecutors should minimize charges for certain nonviolent drug offenders. Last Thursday he informed the governors of Colorado and Washington that new state laws legalizing marijuana would be honored as long as certain conditions were met. The issues of solitary confinement and mental illness have sparked public debate in California and elsewhere about prison policies—as has the hit Netflix series “Orange is the New Back,” which shows systemic flaws in the criminal justice system.
Nevertheless there is a danger to becoming too optimistic in the light of recent developments; changes have been modest and in some ways we are even going backward.
The U.S. remains the nation with the highest percentage of its citizens incarcerated . We have less than 5% of the world’s population and nearly 25% of its prisoners. Tweaking the enforcement of laws for the sliver of the prison population that fits Holder’s criteria will not radically change that ratio.
Our excessive use of solitary confinement remains a national embarrassment. According to research conducted by the watchdog organization Solitary Watch, there are currently 44,000 prisoners in solitary confinement nationwide. The United Nations has condemned solitary confinement lasting more than 14 days as torture , even for mentally stable inmates. Yet even as the California hunger strikes have brought attention to the inhumanity of our system, nothing has yet changed there.
Indeed, there have been instances in which changes have supposedly been made reduce the use of solitary confinement and the effects on the ground have been minimal. Consider, for instance, a law enacted in New York in 2011 that banned mentally ill patients from being confined alone; the well-intentioned reform has resulted in many inmates being diagnosed differently so they could still be thrown into solitary. "Even though there's a law that says you can't do this for people with serious mental illness, it hasn't stopped [Corrections] from using solitary," Jennifer Parish, director of criminal justice advocacy at the Urban Justice Center in New York told ProPublica. "I think they just replaced it with lower-level tickets instead of some of the most serious ones."
Holder was surely correct last month when he said that “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” But he failed to mention the power the executive government already has to pardon prisoners or commute their sentences—a power that President Obama is barely using. In fact, ProPublica has documented that Obama has granted clemency at a lower rate than any modern president, including the Texan George W. Bush. For those currently sitting behind bars, there is little indication that the new announcements will change anything for them.
This is not to say that progress should go unappreciated: advances like the ones that Holder has provided will do a lot to ease the political constraints that policymakers officials have often faced when championing criminal justice reform. And there are countless instances of small miracles in which individuals are advocating and achieving meaningful victories, whether through groups like the Fortune Society or programs like JusticeHome for women with kids. But the struggle continues. It’s up to activists to seize this moment as an opportunity to demand the transformative reforms that the United States desperately needs.
