End of the Dumb-on-Crime Consensus?

Prodded by the maxim that every challenge is an opportunity, criminal-justice reformers hoped that the recession might deliver long-sought criminal-justice reforms. As Mark Kleiman elegantly argues, there are more humane, more effective and less costly sentencing laws available, making an economic downturn seem like an ideal opportunity to improve our country's sentencing practices.

Optimistic evaluations of legislative will to enact such reforms have so far proved fodder for disappointment. There have been some positive developments, however, and the prospect for a few more seems promising.

Perhaps the most notable change was Congress' reduction of the sentencing disparity for offenses related to crack versus powder cocaine. For over 20 years, possessing crack was punished 100 times more harshly than possession of powder cocaine. Although most crack-users are white, over 80 percent of those convicted for crack possession are black. Since most convicts for powder possession are white, the gargantuan sentencing disparity produced a disgraceful imbalance in the prison terms handed down to black and white defendants. Reducing the disparity from 100-to-1 to 18-to-1 last summer was an improvement: now cocaine sentencing is only one-fifth as racist as it used to be.

On top of failing to eliminate the sentencing disparity, the law failed to deliver justice to those still serving time under the old 100-to-1 law. That may be about to change. The U.S. Sentencing Commission, which oversees federal sentencing and sends related recommendations to Congress, has opened to public comment an amendment which would make the new 18-to-1 law retroactive. While the present sentencing disparity remains obscene, delivering something closer to justice for those sentenced under the old regime would be a welcome move. The timeline for, and effect of, any recommendations the commission might offer Congress remain unclear.

Criminal-justice reforms are also marching forward in California, where Gov. Jerry Brown is parting ways with his recent predecessors by drastically reducing interference with decisions by Board of Parole Hearings. Particularly in cases of convicted murderers, Brown is reversing course, overruling the board only 24 of 130 times. By comparison, "Gov. Arnold Schwarzenegger let stand only about 27 percent of parole decisions. Gov. Gray Davis was even less lenient, letting only nine of 374 paroled killers out of prison while he was governor," reports the Sacramento Bee. Some observers suggest that Brown, who is 73 and now serving his third, non-sequential term as governor, may be less bridled by political considerations that influenced his predecessors.

Support for the death penalty also seems to be diminishing among California officials. Amid the state's perennial and worsening budget crisis, Brown recently scrapped plans to build a new $356 million death row. Meanwhile, a suit brought by death-row inmates is seeing continued succes in freezing Californian executions. After the Department of Corrections recently requested more time to meet basic standards for incarceration conditions, executions are almost guaranteed not to resume in California before 2012.

As California also sees a push for reforms to drug sentencing, other states are also straying from what used to be the tough-on-crime consensus. In Oklahoma, which has one of the highest incarceration rates in the nation, the governor recently received for his signature a bill that would reduce prison time for nonviolent offenders. Ohio also seems poised for sentencing reforms that would save millions in public funds after the state's House almost unanimously passed a bill designed to reduce prison populations.

These reforms may yet be stalled or minimized. Indiana recently failed to save taxpayers' money through smart-on-crime reforms. Yet, hope for saner criminal-justice approaches still springs from budgetary constraints. If these proposals bear fruit, taxpayers, defendants, and those who seek safer and more just communities all stand to benefit.