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From Incredible to Inevitable: How the Politics of Criminal Justice Reform May Be Shifting

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Yesterday, President Obama signed the Fair Sentencing Act into law. Though this new law retains an unjustifiable federal sentencing disparity between crack and powder cocaine offenses, it is a remarkable criminal justice reform measure. Ten years ago, advocates working to repeal the notorious 100-to-1 sentencing disparity were thought of as naïve. Yet 2010 saw a bipartisan bill aimed at reforming a mandatory minimum actually get through Congress and receive the president's signature for the first time since the Nixon administration. Yesterday's passage of the Fair Sentencing Act is one of several recent developments signaling that the political landscape of criminal justice reform truly has shifted — perhaps not seismically, but significantly. The opportunity to cut and reform our bloated, inefficient system is now.

In the last couple of years, states across the nation from New York to Kansas have downsized their prisons. Hard economic times have persuaded some state legislatures to reexamine their addiction to incarceration, ushering in practical alternatives that promote public safety. South Carolina just passed a landmark sentencing reform act that mandates alternatives to incarceration for many low-level offenders. In 2007, the U.S. Supreme Court held in Kimbrough that judges can sentence defendants to less time than is prescribed by federal sentencing guidelines if the guidelines were based on faulty or scant-considered evidence — as was the case with crack cocaine. The U.S. Sentencing Commission has conducted a thorough review of the effects of mandatory minimum sentences and will publish its findings in a report this fall. And the House of Representatives last week passed the National Criminal Justice Commission Act, which, if approved by the Senate, would establish a blue-ribbon panel to review the effectiveness of the criminal justice system. Given Congress's historic reluctance to consider criminal justice reform, this is no small thing.

This is not a set of coincidences. There is a growing movement afoot. When I look back on where I was nearly 10 years ago, I feel justified in taking a moment to savor the significance of these recent developments.

Just under 10 years ago, I was in Tulia, Texas.

In 2001, I landed in that little town in the Texas Panhandle to investigate a suspicious drug sweep of approximately 12 percent of the town's African-American population. I represented dozens of African-Americans who were charged and convicted of bogus cocaine offenses. The only evidence against them was the uncorroborated testimony of one man, Tom Coleman, an undercover cop-for-hire who we later proved concocted evidence and had a documented history of fraud and racial animus. That didn't stop my clients from initially receiving sentences of 20, 40, 60 and even 90 years. While the ending was ultimately a happy one, I cannot forget that my clients spent four years in prison for crimes they did not commit while we worked to clear their names against a stubborn backdrop of entrenched racial bias and fear-driven crime and drug war policies that fueled the drug sweep and ensuing convictions.

As I consider yesterday's White House signing of the crack-powder sentencing disparity reform in light of my experiences in Tulia, I realize that our country may be emerging from a dark period of drug war hysteria, in which fear overshadowed facts. While we still have to work toward full equalization of powder and crack cocaine sentencing, the significance of the Fair Sentencing Act's passage cannot be denied. And in many quarters, from state legislatures to Congress, those who envision and enforce criminal justice policy are seriously reconsidering the wisdom of lengthy prison sentences for relatively low-level, nonviolent crimes like drug possession. They are reconsidering the assumption that mass incarceration promotes public safety. And at the state level, policymakers are coming to the realization that if for no other reason than fiscal solvency, our obese and costly criminal justice system demands an intervention.

None of these reasoned responses to the incarceration crisis were on the table during my Tulia days, but I'm glad they're on the table now. With more than two million people behind bars and 1.7 million children with incarcerated parents, I think it's safe to say we've finally hit the proverbial tipping point. If Republican members of Congress from Alabama and Oklahoma, the National District Attorney's Association and the state governments of South Carolina, Kansas, Michigan, New Jersey and New York can support serious criminal justice reforms to reduce our prison population, then I know we can finish the job. Driven by the "war on drugs" and the "get tough" crime policies of the 1980s and 90s, our prisons are bursting at the seams with low-level offenders, the mentally ill, those with drug addiction in need of treatment and the elderly, and we need to do something about it. But it will require nothing short of a shift in paradigm from a fear-based criminal justice policy to an evidence-based criminal justice policy that views incarceration as an option of last — not first — resort. We must be willing to take an unflinching look at the extent to which the policies of previous decades have failed to promote public safety and health, and have instead diverted taxpayer money from schools to prisons while raiding communities of color.

It's often been said that criminal justice reform is a third rail in politics. But recent criminal justice reform efforts give cause to question this adage, which has, sadly, become something of an operating principle for many politicians and reformers alike. Policymakers on both sides of the aisle in states around the nation are coming to a consensus that we need a new direction for our criminal justice system. With the bipartisan support and passage of the Fair Sentencing Act, the proposed creation of the National Criminal Justice Commission and the many positive state-based reforms over the last few years, we are already headed in the right direction, making reform of our nation's criminal justice system no longer incredible, but, rather, inevitable.