Criminal Justice Reform or Cover for Slashing Costs?

Matthew T. Mangino
The Pennsylvania Law Weekly
September 10, 2013

U.S. Attorney General Eric Holder recently announced that low-level, nonviolent drug offenders will no longer be charged with offenses that impose severe mandatory sentences. Holder said, "I think there are too many people in jail for too long, and for not necessarily good reasons."

That sounds great and Holder should be commended for starting a dialogue that may lead to meaningful reform on prison crowding and soaring costs.

In the meantime, the reforms are more about reducing costs than a fundamental change in philosophy concerning crime and punishment. Holder told NPR, "The war on drugs is now 30, 40 years old. ... There have been a lot of unintended consequences. There's been a decimation of certain communities, in particular communities of color."

These problems are not new, nor have they just been discovered. What is new is a federal budget crisis known as the sequester — a set of automatic spending cuts put into law by the Budget Control Act. The cuts began in March and will total $1.2 trillion over nine years.

Tavis Smiley, host of a talk show on PBS, recently wrote for CNN of Holder's proclamation on sentencing, "I would like to believe that it's about a shift in our morals. ... It's about money. Pure and simple. As a nation, we have a habit every bit as addictive as the habits of many of the folks we've locked away. We've been addicted to the drug of incarceration, and now we can no longer afford our expensive habit."

The sequester is decimating the criminal justice system.

"A second year under sequestration will have a devastating, and long-lasting, impact on the administration of justice in this country," 87 chief federal judges said in a recent letter to the speaker of the House of Representatives and the vice president.

The judges are asking lawmakers to go along with a Senate Appropriations Committee plan to give the courts a $500 million budget increase over this year's funding level set through sequestration.

Outgoing FBI Director Robert Mueller warned of the impact of the sequester-driven budget crisis. Mueller said there's only so much the bureau can cut back on cars and travel and information technology upgrades. Furloughs for 2014, he said, are on the way.

"I expect the special agent in charge to make certain that there is no Mohamed Atta, terrorist, swimming in the waters in that division," Mueller told NPR. "So what's going to be hit is white-collar crime. What's going to be hit is violent crime — we're not going to be able to do as much as we'd want there."

Judge Julia Gibbons of the U.S. Court of Appeals for the Sixth Circuit, chairwoman of the U.S. Judicial Conference's budget committee, told a Senate subcommittee that the nearly $350 million in cuts to the courts this year through sequestration have been "devastating" and "painful."

Clerks and probation and pretrial offices will lose as many as 1,000 staff and implement 8,600 furlough days during 2013. According to The National Law Journal, a Law Weekly affiliate publication, Gibbons suggested that cuts will slow civil and bankruptcy cases and harm public safety and effective representation by counsel.

"If funding levels remain flat or decline, it compromises the constitutional mission of the courts," Gibbons testified.

Ohio State University law professor Douglas A. Berman wrote in a recent op-ed in The Los Angeles Times, "The combination of relatively low crime rates, lean budgets, sequester cuts and overcrowded federal prisons presents a unique moment for the enactment of landmark criminal justice legislation."

Yet, federal public defenders have been forced to furlough employees and take days off without compensation. Now, private attorneys appointed by federal courts to represent indigent defendants will be paid $15 less per hour next year thanks to sequestration.

Fourth Circuit Chief Judge William B. Traxler Jr., the Judicial Conference chairman, wrote that "reducing panel attorney compensation rates, deferring panel attorney payments and limiting federal defender organization funding to the maintenance of current on-board staff are undesirable, and may impact the delivery of justice, but are necessary to avoid permanent damage to the federal defender program."

The impact of sequestration goes beyond the federal government. Federal Funds Information for States (FFIS), a Washington-based group tasked with helping states manage federal funds, estimates that if Congress fails to pass an appropriations bill and the government is run on the same sequester-driven budget levels, states will face about $4.2 billion in federal funding cuts.

When it comes to finding budgets to cut, the low-hanging fruit is in the criminal justice system.
There is no question that federal prisons are bursting at the seams. The United States has seen a 500 percent increase in the number of inmates in federal prison over the last 30 years. The federal bureau of prisons is nearly 40 percent over capacity, and it costs about $30,000 a year to house an inmate.

Virginia's Republican Attorney General Ken Cuccinelli II, a law and order candidate for governor, told The Washington Post, "There is an expectation that the generic Republican position is tough on crime. ... But even that has budget limits, particularly on the prison side."

The cost of maintaining the federal prison system is enormous. The United States spent $80 billion in 2010 on prisons and jails. There are two different directions that lawmakers can go, raise revenue — taxes — to pay for the rising cost of punishing offenders, or reduce costs by incarcerating fewer offenders.

University of California Hastings College of Law professor Rory Little said in a Web chat, "It's largely economics. Why did it take so long? The federal government is a lot slower than states. And it has never before been politically possible to act in a direction viewed as 'pro-criminal.'"

There was a time in this country when being labeled "soft on crime" was the worst possible fate for a politician. Today, politicians will do anything to avoid the label "tax and spend" — even if that means being soft on crime.

When reform is driven chiefly by budgetary influences, the result is rarely good. Time will tell if this sea change in criminal justice policy is any different.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. He is a former district attorney for Lawrence County and a former member of the Pennsylvania Board of Probation and Parole. Reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.