Cory Booker has a plan to reform the criminal justice system — without Congress

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Sen. Cory Booker (D-NJ) campaigns for president in Iowa.

Booker’s plan would initially benefit 17,000-plus people in federal prison for drugs, and more could follow.

Sen. Cory Booker (D-NJ) announced a plan on Thursday to use the presidency’s expansive pardon and clemency powers to reform the criminal justice system and scale back the war on drugs — without Congress — if he were to become president.

Booker’s plan calls for granting an early release to as many as 17,000 to 20,000 people in federal prison for drug offenses, and establishing a panel within the White House that would make recommendations for more clemency applications in the longer term.

Since the plan relies solely on presidential powers, none of this would require Congress. As Rachel Barkow, a New York University law professor and expert on clemency, previously told me, “No matter where the Senate or House goes, clemency is a great area for a president to use for criminal justice reform.”

Sen. Amy Klobuchar (D-MN) outlined a similar clemency reform plan earlier this year as part of her own presidential bid. But Booker’s plan differs in a few ways, particularly by targeting specific categories of individuals in federal prison.

In total, up to 17,000 to 20,000 people in those categories would benefit, according to the Booker campaign. They would include people in for marijuana-related offenses, those who would benefit from the recent sentencing reforms in the First Step Act if they had been applied retroactively, and those incarcerated under crack cocaine sentencing penalties that remain harsher than those for powder cocaine.

These individuals would not be guaranteed an early release. They would be considered for it — either after they apply on their own or after federal agencies, under Booker’s executive order, identify them. They’d be released only if they’re deemed to not pose a public safety threat.

The goal, according to Booker’s proposal, is to scale back mass incarceration and the war on drugs, and reduce the vast racial disparities intertwined with both.

While Klobuchar’s plan helped her distance herself from her “tough on crime” past, Booker’s proposal reinforces his criminal justice reform record. He’s long supported reform efforts in marijuana policy and prison sentencing. And he played a key role in Congress’s passage last year of the First Step Act, which, while not as expansive as some advocates hoped, enacted the most sweeping changes to the federal criminal justice system in decades.

Other presidential candidates, like Sen. Kamala Harris (D-CA) and Andrew Yang, have also vowed to use the president’s pardon and clemency powers to help low-level drug offenders.

Previous presidents have used their pardon and clemency powers in various ways, from helping political allies to enabling systemic reforms. As president, Barack Obama, for instance, used his clemency powers to mitigate the effects of the federal war on drugs and mass incarceration by granting hundreds of drug offenders an early release. President Trump, meanwhile, has used his powers to commute the life sentence of Alice Johnson, a great-grandmother in prison for drug trafficking, after Kim Kardashian West asked him to do so, and he’s reportedly considered using them for staff caught up in the Russia investigation.

What Booker is proposing, though, is something much more expansive. Rather than leaving it to the whims of the president and Justice Department officials, Booker’s plan, like Klobuchar’s, would aim to turn the clemency process into an avenue for systemic, longer-lasting reform. According to the Booker campaign, that could benefit thousands — maybe tens of thousands — of people, all without Congress having to pass a new law.

The current clemency process is a mess

When I asked Mark Osler, a former federal prosecutor who’s now a legal scholar and law professor at the University of St. Thomas in St. Paul, Minnesota, about Klobuchar’s similar proposal, he described the current clemency process as a bit of a mess.

Today, a clemency application has to make it through seven major steps: a staffer at the Office of the Pardon Attorney (in the Justice Department), then the pardon attorney, then a staffer for the deputy attorney general, then the deputy attorney general, then a staffer at the White House Counsel’s Office, then the White House counsel, and then, finally, the president. A petition typically must clear all these steps for someone to get a pardon or commutation (although, as Trump has shown, the president can act unilaterally).

“The problem with the system we’ve got now is it’s vertical,” Osler told me earlier this year. “You got one person making a decision, passing it on to the next person who makes a decision, passing it on to another person who makes a decision. And there’s seven levels of review like that.”

Booker’s proposal would set up a panel that would talk through clemency petitions together. The board could make a recommendation to the president, who could accept or deny the proposal. (Booker’s spokesperson said he would likely accept the majority of the panel’s recommendations.)

The main goal would be to allow prison inmates, particularly those serving long sentences for nonviolent drug crimes, an early reprieve. At the state level, the majority of people held in prison are violent offenders. But at the federal level, where around 12 percent of the US prison population is, almost half of people in prison are in for drug crimes.

According to Booker’s campaign, the panel “would give a special presumption for release for those that are 50 years of age or older and have served lengthy sentences — as all evidence suggests that people typically age out of crime and are far less likely to recidivate.” That could eventually extend even to people who are in for violent offenses, as long as they’re deemed by the panel to not pose a public safety threat.

Currently, most of the steps for a clemency petition before it reaches the president involve the Department of Justice, whose prosecutors secured people’s sentences in the first place.

“It’s hard to imagine a stronger conflict of interest than leaving the idea of clemency to the people who had asked for the sentences in the first place,” Osler said. “And I say that as someone who was a prosecutor. … What does it feel like to me to have someone tell me that I put someone in prison for too long? I’m going to be defensive about that, probably.”

The new panel would be outside the Justice Department, and be structured to include around 10 to 15 people, Booker’s campaign said. It would seek to be diverse — to include people of different racial, ethnic, ideological, and geographic backgrounds. It would also try to include people from different parts of the justice system, including prosecutors, defense attorneys, social workers, and potentially someone who’s formerly incarcerated.

The board would also aim to be bipartisan. This would not just bring different views to the table but also give some political cover to what can be some fairly controversial decisions.

Osler pointed to a previous bipartisan advisory board as proof that this can work: After the Vietnam War, then-President Gerald Ford set up a board to grant clemency to thousands of people who dodged the draft. It was an intensive process, using computerized data — innovative at the time — and hundreds of attorneys.

“The funny thing is people don’t remember it,” Osler said. “And that’s because, politically, it was managed pretty well.”

One recommendation, made by Barkow in response to Klobuchar’s plan: A clemency panel should closely follow outcomes. Citing research that longer prison sentences lead to higher recidivism rates, she argued that people who receive clemency will likely have lower reoffending rates than those who don’t. That could provide a defense from bad media and publicity if someone given clemency gets out and commits another crime, but it’s only possible if the panel does a good job tracking data.

This is one thing the president can do unilaterally

Perhaps the biggest advantage to all of this is it’s something President Booker could do on his own.

For years, Congress has been working on criminal justice reform issues. That culminated in late 2018 with the First Step Act, which Congress approved and Trump signed into law. But it’s unclear if Congress will take a next step in the coming years. After all, the First Step Act, as mild as most of its reforms were, took years of activism and on-the-ground work by dozens of senators; a further-reaching second step will likely take even more.

A clemency panel could be set up entirely by Booker or any other president. (One hiccup may be what to do with the existing Office of the Pardon Attorney, because that could require congressional approval, but a clemency panel could work even if the Office of the Pardon Attorney remains in place.)

For all this, the panel could have a fairly broad impact, not just for people currently in prison but for future defendants as well.

“Clemency is a way that the president can signal to prosecutors where she is at,” Osler said. “When President Obama started to grant clemency to narcotics traffickers serving very long sentences, it sent a signal to prosecutors that this is not what we want to do.” He added, “While clemency doesn’t directly affect, for example, statutes, it is important signaling to how prosecutors use their discretion. And how prosecutors use their discretion is kind of the whole ballgame.”

But there are limits. Clemency reform wouldn’t totally end long prison sentences written into law, including mandatory minimums for drug offenses. It couldn’t improve conditions in prisons. It couldn’t put more spending on education and rehabilitation programs in prison. It also likely couldn’t fully overcome political constraints on releasing people from prison, especially since the president will make the final decision.

And just like a president can unilaterally set up a clemency panel, a future president could unilaterally dismantle it.

The panel also couldn’t address local and state criminal justice systems, since the president can only grant clemency for federal crimes. But the local and state levels are a huge part of the US prison system, with state facilities holding more than 87 percent of prison inmates. To put this into context: If President Booker pardoned every person in federal prison today, it would push down America’s overall incarcerated population from about 2.1 million to about 1.9 million — leaving the US with a higher prison population rate than every nation but El Salvador.

Booker, for his part, has called for broader legislative reforms, some of which would aim to incentivize states to change their criminal justice systems. But that would require Congress and the states to approve those incentives — and the latter in particular hasn’t worked well in the past.

Short of any of that, though, clemency reform could help chip away at mass incarceration and the war on drugs without the approval of any senator or representative at the federal or state level.

Longer prison sentences don’t work to prevent crime

So why is reversing mass incarceration necessary? Simply put: The research suggests it’s not making America any safer, while costing a lot both socially and economically.

For one, the research and experts suggest more incarceration only plays a small role in fighting crime. A 2015 research review by the Brennan Center for Justice estimated that more incarceration and its abilities to incapacitate or deter criminals explained about 0 to 7 percent of the crime drop since the 1990s, although other researchers estimate it drove 10 to 25 percent of the crime drop since the ’90s.

But there’s a case that longer prison sentences in particular — the kinds of sentences that would be targeted by Booker’s panel — are especially ineffective and even counterproductive.

The core point here is what’s known as the age-crime curve. It shows that people tend to age out of crime. In their mid- to late teens and early 20s, people are much, much likelier to commit a crime than they are in their 30s and especially 40s and on.

Here’s the age-crime curve for robbery in 2014, taken from Marc Mauer and Ashley Nellis’s The Meaning of Life: The Case for Abolishing Life Sentences:

A chart showing the age-crime curve.
Marc Mauer and Ashley Nellis/The Meaning of Life: The Case for Abolishing Life Sentences

As the chart makes clear, a person’s propensity to commit a crime — in this case, a robbery — is at its highest around 20 years old. But it drops quickly after that. In his 30s, a person’s chances of committing a robbery drop to 25 percent of what they were at 20. In his 40s, the chances drop to less than 12.5 percent. In his 60s, the risk nearly vanishes.

There are exceptions, like lifelong serial killers. But they’re few and far between.

Virtually no one in criminology disputes the age-crime curve. Nancy La Vigne, the vice president of justice policy at the Urban Institute, previously told me it’s “pretty well established in the literature.”

This shouldn’t come as a surprise to most people, particularly those already in their 30s, 40s, or above. Think about how likely you were as a teen to break the law, with underage drinking, using illegal drugs, shoplifting, getting into fights, and so on. Now think about how likely you are to do that today, assuming you’re older. Regardless of whether you got caught in your teen years, you are likely an embodiment of the age-crime curve.

Other evidence suggests long prison sentences are ineffective. In 2017, David Roodman of the Open Philanthropy Project conducted an extensive review of the research on longer prison sentences. He concluded that “tougher sentences hardly deter crime, and that while imprisoning people temporarily stops them from committing crime outside prison walls, it also tends to increase their criminality after release. As a result, ‘tough-on-crime’ initiatives can reduce crime in the short run but cause offsetting harm in the long run.”

In short, longer prison sentences can actually make people more likely to commit crimes in the long term.

At the same time, locking people up for long periods of time is very costly. There’s the actual financial cost of putting people in prison, which the Prison Policy Initiative estimated at $182 billion for the US in 2017. There’s also the social cost of people being ripped away from their families and communities; as one example, the New York Times calculated in 2015 that for every 100 black women not in jail or prison in America, there are only 83 black men — what amounts to 1.5 million “missing” men who can’t be there for their kids, family, or community while incarcerated.

Federal clemency reform can’t fix the entire problem. But it’s something that a president could do on day one — and now at least two candidates are vowing to take up that power.

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