Last week’s announcement that the Justice Department will expand the criteria for offering clemency marks a new, and long overdue, chapter in the politics of crime. Under the new rules, low-level nonviolent offenders who have served at least 10 years of their sentence, have no history of violence either before they went to prison or while serving in prison, and have demonstrated good conduct in prison, will be eligible to seek clemency and be released from prison.
A person unfamiliar with the history of the crime might ask the logical question: What are these people doing in prison for more than 10 years in the first place? Why are we spending tens of thousands of dollars a year — yes, that’s what it costs, and more, as prisoners age and need expensive health care — to incarcerate nonviolent offenders who have already served at least 10 years. Or even, why were they in for more than 10 years in the first place?
The short answer is politics. At its worst.
It used to be, not so many years ago, that the politics of crime was all about how tough you were. It was a question of “values” — of who’s side you were on, and the right answer, which is to say the “politic” answer, was that you never wanted to look like you were “soft" on crime, or on the side of the criminal. In shorthand, this was the “Willie Horton” problem. Horton, for those who are lucky enough not to know or remember, was a convicted murderer from Massachusetts who committed a rape while out on furlough, and became a symbol, in the 1988 presidential campaign, of the dangers of not being tough enough on crime.
The late Lee Atwater, Republican Vice President George Bush’s campaign manager, once said he would make Horton into Democratic Massachusetts Gov. Michael Dukakis’ running mate. And if he was not that, it was certainly true that Dukakis’ defense of the furlough program, and his opposition to the death penalty, were seen as proof that not being tough enough on crime could cost you dearly (ironic for me, as the campaign manager, and longtime victim advocate, but that is another story).
In truth, the knee-jerk approach to crime policy predated 1988, with a rash of mandatory minimum drug laws, and then accelerated afterward; and the worst part was that so many politicians, even though they knew better, were afraid to vote against poorly drafted laws (various versions of three strikes, and two strikes and the rest, that crowded prisons with nonviolent offenders and resulted in the early release of violent ones) or to repeal clearly unfair laws.
So it was that until three years ago, the penalties for “crack” cocaine offenses were 100 times as severe as those for offenses involving the exact same amount of powdered cocaine, a disparity that was, rightly, attacked as racist (poor blacks were more likely to use the former, middle class whites the latter) and unfair, but that no one wanted to touch for fear of appearing soft on drug offenses. Three years ago, the disparity was reduced to 18 to 1 — and many of those who may be eligible for clemency are prisoners who would not be serving life sentences were it not for the old law.
Some of the stories that are coming out about the prisoners who may be eligible for clemency make clear just how harsh these policies were. I heard one today about a single mother, in prison for 14 years because she was a minor player in a drug conspiracy. Fourteen years? Sad and foolish. Prison beds are a precious, expensive, commodity. They should be reserved for those who present a danger to the rest of us and for those whose acts have harmed others.
It is high time we moved from asking not who is toughest on crime, but who is smartest about how to deal with it.
— Susan Estrich is a best-selling author, the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her or click here to read previous columns. The opinions expressed are her own.