We don't give Jim Webb enough credit. He started this whole criminal justice reform movement. If only we had given him more time.
Four years ago today, October 20th, then-Virginia Senator Jim Webb's raison d'etre legislation - the National Criminal Justice Commission Act - failed in the Senate, unable to survive a Republican filibuster. Since 2009, the candidate at the left end of last Tuesday's Democratic lineup has been the real catalyst for the reform movement we see today. And if his bill had been passed, we might have known what we are doing in justice reform and who, among the country's 2.2 million prisoners, really deserves to be released.
The Presidential debates have shown just how understanding has been divorced from the reality of American criminal justice. First, in September's debate, Carly Fiorina claimed "two-thirds of the people in our prisons are there for non-violent offenses, mostly drug related," when, actually, 53.8% of state prisoners and 47.7% of federal inmates are convicted of violent offenses, according to the Department of Justice's Bureau of Justice Statistics.
Then Hillary Clinton made her own gaffe last week in the Democratic debate when she spoke of the current criminal justice mascot: a "low-level, non-violent" offender who might not really exist, at least not in appreciable numbers. Clinton said we need to rid ourselves of "a huge population in our prisons for nonviolent, low-level offenses that are primarily due to marijuana."
Only 0.3% - 66 total - federal prisoners and 3.6% of state prisoners are serving time for marijuana. Pot smokers did not cause our mass incarceration crisis, according to a report published Wednesday by the Marshall Project, the criminal justice news organization. And Hillary would have known this if she had listened to the guy all the way on her right that night, the one complaining that he hadn't been given enough time.
I would probably be as frustrated as Mr. Webb is. Not only does he receive very little credit for initiating the pushback against mass incarceration and gross injustice we see today, but we still haven't achieved what Webb wanted to accomplish with his bill: determining what was really going on in our nation's courthouses and correctional facilities. The Presidential debates proved this; none of the candidates in either party had a firm grasp of prison statistics or justice policy.
By itself, then-Senator Webb's National Criminal Justice Commission Act did nothing about criminal defendants or prisoners except to seek to understand the present system and inform everyone - politicians, the public, practitioners - what was really happening inside of it since the last review had occurred more than 45 years before.
The truth is that, because this country has not engaged in a meaningful review of our entire justice system for long, we don't know who is the best risk to let out if we use only prisoners' convictions as a guide. Had people given Webb more time four years ago, and his bill passed and implemented, then all the Presidential candidates would know that the nonviolent offenders whom they think are the only acceptable candidates for early release might not pose the lowest risk to society.
A correctional reality that only prison-issued-workboots-on-the-ground people like me would know from a long stint behind bars is that, not only do people's characters and their convictions not always match, often neither do their convictions and what they actually did.
Many people in prison were actually charged and committed violent crimes but pleaded them down to nonviolent convictions. We just don't know how many of them there are. Conversely, we have no idea how many defendants charged with non-violent drug crimes, when faced with unyielding minimum sentences established in the draconian Rockefeller drug laws, pleaded guilty to a violence offense to escape a mandatory sentence.
Competent lawyering usually causes the conviction confusion. Usually, it's the wealthier, whiter defendants in the courthouse who can hide their aggression most effectively from the Bureau of Justice Statistics with an expertly crafted plea bargain that gets them the shortest sentence but may not reflect the facts of the crime.
Of course, what causes all of this manipulation of the system is the fact that prosecutors are vested with too much discretion and power and the risk of going to trial - an enhanced penalty - causes defendants to fold and plead guilty regardless of what the evidence is.
In slight resistance to this overbalance in power, defense attorneys finagle pleas to other, lesser-included crimes which bring their clients earlier release dates and parole eligibility but not necessarily an accurate representation of what they did - or didn't do - on their rap sheets.
Mandatory minimum sentencing laws only enhance a prosecutor's power so it stands to reason that they are a significant cause of this commingling of non-violent convictions with violent crimes.
Webb left the Senate three years ago and the National Criminal Justice Commission Act was resurrected by Senator Gary Peters (D-MI) in April of this year. The new bill is substantially similar to Webb's in that it, too, establishes a blue-ribbon panel of experts to conduct a complete, top-down scrutiny of the nation's criminal justice system.
So far, Peters' bill has only been referred to the Judiciary Committee, to much less fanfare than the recently announced sentence reform bill, The Sentence Reform and Corrections Act, that seeks only to tinker with - but not to eliminate - the mandatory minimum sentences that have enabled the kind of conviction camouflage that Webb's bill aimed to uncover.
If Senator Peters' bill - which is really Webb's bill - had been passed and implemented before these two reform bills were drafted, our Presidential candidates might understand correctional realities and be able to decide and who we really want - and need - to release to unload our prisons.