As U.S. attorney general Eric Holder makes a serious push for prison and justice reform in the United States, he would do well to look at a similar push across the Atlantic — Kenneth Clarke’s attempt to reverse decades of tough criminal law policies in the United Kingdom provides a cautionary tale.
Holder announced yesterday in a speech to the American Bar Association that the U.S. justice department will seek to avoid mandatory sentences for non-violent, low-level drug-related offenses, and justice reform advocates largely cheered a welcome pivot from the ‘tough-on-crime’ approach to justice that’s marked U.S. policy for the past four decades throughout much of the ‘War on Drugs’ — drug-related offenses have largely fueled the explosion in the U.S. prison population. Holder will instruct prosecutors in federal cases not to list the amount of drugs in indictments for such non-violent drug offenses, thereby evading the mandatory sentences judges would otherwise be forced to administer under federal sentencing guidelines. That’s only a small number of prisoners because 86% of the U.S. prison population is incarcerated by state government and not by the federal government.
Holder called for ‘sweeping, systemic changes’ to the American justice system yesterday and attacked mandatory minimum sentences for non-violent offenders, which he said caused ‘too many Americans go to too many prisons for far too long and for no good law enforcement reason.’
That approach has left the United States with a prison population of nearly 2.5 million people (though the absolute number has declined slightly after peaking in 2008) and the world’s highest incarceration rate of 716 prisoners per 100,000 . That’s more than Russia (484), Brazil (274) the People’s Republic of China (170) or England and Wales (148) and as Holder noted yesterday, the United States has 5% of the world’s population but 25% of the world’s prisoners.
Particularly damning to the United States is that 39.4% of all U.S. inmates are black and 20.6% are Latino, despite the fact that black Americans comprise just 13% of the U.S. population and Latinos comprise just 16%. Holder yesterday cited a report showing that black convicts receive prison sentences that are around 20% longer than white convicts who commit the same crime. Holder denounced mandatory minimums as ‘draconian,’ and made an eloquent case that U.S. enforcement priorities have had ‘a destabilizing effect on particular communities, largely poor and of color,’ that have been counterproductive in many cases. Holder also made that case that in an era of budget cuts, America’s incarceration rate is a financial burden of up to $80 billion a year, and that reducing the U.S. prisoner population could shore up the country’s finances as well.
But Holder — and prison reform advocates that have emerged on both the American left and right — face a heavy task in reversing nearly a half-century of crime legislation that has largely ratcheted up, not down.
Just ask Kenneth Clarke, who until last September was the justice minister in UK prime minister David Cameron’s coalition government, who as one of the longest-serving and most effective Tories in government for the past four decades, faced a tough road in enacting prison reform in England and Wales.
Though its prison population and incarceration rate pales in comparison to that of the United States, the British justice system imprisons more offenders than many other countries in the European Union, such as France (101 prisoners per 100,000) or Germany (80).
Cameron faced a delicate task in finding a role for Clarke in his government back in mid-2010. Clarke, a self-proclaimed ‘big beast’ of Tory politics got his start under ‘one nation Tory’ prime minister Edward Heath and found his stride under Heath’s successor, Margaret Thatcher. He became John Major’s chancellor of the exchequer, guiding No. 11 from the dark days of the 1992 ‘Black Wednesday’ sterling crisis to a more robust financial position. When Labour swept to power in May 1997 under Tony Blair, Clarke immediately became the most popular Conservative in the country, even though the significantly more right-wing and increasingly euroskpetic party thrice denied the pro-Europe Clarke its leadership. While Clarke may have passed his glory days in government, his appointment as justice minister reflected that Clarke could still be useful in government.
Clarke’s biggest target as justice minister? Reducing the number of offenders in English prisons and attacking what Clarke memorably called the ‘Victorian bang-’em-up prison culture’ in a landmark June 2010 speech:
Clarke warned that simply “banging up more and more people for longer” is actually making some criminals worse without protecting the public. “In our worst prisons, it produces tougher criminals,” Clarke said. “Many a man has gone into prison without a drug problem and come out drug dependent. And petty prisoners can meet up with some new hardened criminal friends.”
In the final Labour government from 2005 to 2010, the UK prison population grew from around 76,000 to 85,000. Though Clarke managed to keep those numbers from growing, he had little success in reducing the number of prisoners. With right-wing Tory backbenchers balking at more leniency to prisoners, Clarke failed to pass comprehensive justice reforms that would have granted ‘discounts’ of up to 50% from maximum sentences to prisoners who plead guilty. The scheme essentially regularizes plea bargaining that, while not banned in England and Wales, is much more prevalent in the U.S. justice system.
A year later in May 2011, Clarke got tripped up over whether convicted rapists might serve lighter sentences, and then had to apologize when he suggested that date rape and statutory rape was less serious than more violent rapes and argued that his critics were trying to ‘add a bit of sexual excitement to the headlines’ by focusing on rape sentencing. Clarke was demoted in Cameron’s September 2012 cabinet reshuffle and his successor, Chris Grayling, is a far more conservative Tory who has already shifted the Cameron government’s policy away from reform.
What’s striking about Clarke’s ill-fated efforts at English reform is that he made the same finance-based arguments as Holder in a government where chancellor George Osborne has been obsessed with balancing the UK budget. Unlike Clarke, Holder can make common cause with an odd ally — conservatives in the United States who are already implementing prison reform at the state level. In many southern U.S. states, it has been conservative Republican governments in Texas, Florida, Georgia and elsewhere leading the way to reduce the prison population for financial reasons — taking care of hundreds of thousands of prisoners is expensive in an era where states are having historical difficulties balancing their budgets. That should give Holder some hope that reform is possible across the ideological spectrum at the federal level as well.
But though the rape comments did not help Clarke’s cause, they didn’t by themselves torpedo a largely sensible approach to justice reform. Just as Clarke had become a controversial figure among Tory rank-and-file (for many reasons other than reducing prison sentences), Holder has become a lightning rod for conservative criticism in the United States. Given the ease with which prison reform can be vilified, and given that rank-and-file conservatives may still support harsh law-and-order policies, there’s no guarantee that Holder will succeed in enacting more aggressive reforms. With a polarized political environment in Washington, it still seems unlikely that a Republican-controlled U.S. House of Representatives is willing to find common cause with a Democratic administration to enact wider legislative changes. Even in 2010, when Democrats controlled both houses of the U.S. Congress, their most extensive reform was to reduce the sentencing disparity between using powder cocaine and smokable ‘crack’ cocaine, a disparity that led to harsher sentences for black offenders.
But there’s reason to hope that a rare bipartisan consensus will win out over a strategy of scoring political points at Holder’s expense.
Freshman Republican senators Mike Lee of Utah and Rand Paul of Kentucky, both darlings of the U.S. ‘tea party’ movement and both on the more libertarian wing of their party, are joining forces with progressives to sponsor bills that would lower mandatory minimums, and conservatives as varied as tax cut advocate Grover Norquist and former Arkansas governor Mike Huckabee have applauded Holder’s announcement.
But if Clarke’s experience in reforming the British justice system is any guide, Holder (and his allies on both the left and the right) should be prepared for a long and sustained fight.
Photo credit to Ole Miss — University of Mississippi.