A little more than two million people in the United States – that's one out of every 140 – are locked up, making the US the biggest jailer in the world.
Some hope that this obscene rate of human incarceration might begin to decline as reform of mandatory sentencing laws is close at hand. Last month, Attorney General Eric Holder denounced mandatory minimums and then backed up his words on September 19, with a directive to prosecutors to not apply mandatory sentences to low-level drug offenders. The day before, the Senate Judiciary Committee heard testimonies from advocates for sentencing reform urging the Committee to approve the Justice Safety Valve – a law that would restore sentencing discretion to judges.
That legislation not only enjoys bipartisan support, but an endorsement from none other than ALEC, the American Legislative Exchange Council. ALEC has even authored its own version of the Justice Safety Valve.
As others have pointed out, ALEC might seem like an unlikely ally to a bill that seeks to take the mandatory out of mandatory minimum sentencing laws. As the stewards of America's two largest for-profit private prison corporations, ALEC – a so-called bill mill for "free-market" legislation – was a champion of many of the harshest sentencing laws passed throughout the 1990's, including "truth-in-sentencing" and "three-strikes" laws. These laws locked judges into a rigid matrix of sentencing guidelines that have been one of the primary causes for the swollen numbers in federal and state prisons over the past two decades.
But in fact, ALEC's apparent change of heart has been a long time coming: according to Julie Stewart, President and Founder of Families Against Mandatory Minimums (FAMM), David Koch, a significant donor to ALEC, "has donated generously and without fanfare to FAMM for many years".
In April 2012, ALEC dissolved its Public Safety and Elections Task Force, the committee responsible for the aforementioned "tough-on-crime" sentencing laws, which once asserted as its goal, to "hold criminals accountable for their actions and provide swift and certain punishment for their crimes – without adding more government intrusions into law-abiding citizens’ lives".
At the time, John Nichols from The Nation, attributed ALEC's decision to the unfavourable attention ALEC and its corporate members garnered after the task force pushed for "stand your ground" and "Voter ID" legislation. Civil rights groups successfully campaigned corporate members like Coca Cola, Kraft Foods and McDonalds to drop their memberships.
ALEC provided this explanation for why it discontinued the task force:
"We are eliminating the ALEC Public Safety and Elections task force that dealt with non-economic issues, and reinvesting these resources in the task forces that focus on the economy. The remaining budgetary and economic issues will be reassigned."
But six months later, ALEC had simply established a new task force with a criminal justice focus – only now from a markedly different angle. The new Justice Performance Project states its goal is to "refocus criminal justice resources on dangerous offenders and put the right programs in place to hold non-violent offenders accountable while providing them with the resources they need to become contributing members of society."
Echoing the "Right on Crime" critics of mass incarceration that find fault with the prison industrial complex merely for being economically inefficient, ALEC has assumed a position that is, ostensibly, a fiscally conservative one. Regardless of their rationale, long-time prison reform advocates warmly welcome ALEC to the table.
Gaming the system
But while ALEC's endorsement of mandatory sentencing reform is appreciated, how and what "alternatives" it is inclined to promote requires scrutiny. Indeed, as early as 2011, the Justice Policy Institute portended the organisation's likely shift away from increasingly unpopular mass incarceration policies, noting the organisation was in the process of establishing a backdoor infrastructure that would enable its members to reap financial gain whenever the policymaking winds changed – anticipating an eventual public revulsion at the spectacle of a mass prisoner population that seems, in some part, to have happened.
"In competition with private prisons are other industries which are coming up with solutions to reduce incarceration costs that will benefit them. For instance, a 2007 brief by ALEC recommended releasing people early from prison with conditional release bonds, similar to bail bonds, effectively setting up bonding companies as private parole agencies."
The report suggests, in other words, that there are plenty of other people happy to step in and make money off of an inevitable "reform".
For example, before the Public Safety and Elections Task Force was shut down in 2012, the American Bail Coalition (ABC) served as one of its executive members. Since 1993, ABC had cultivated such a reliable relationship with ALEC that in 2010 it called ALEC its "life preserver". During its alliance with ALEC, ABC wrote at least 12 model bills. In 2007, ALEC and ABC proposed legislation that dressed itself up as a "solution" to prison overcrowding. The law would have allowed the early release of certain non-violent and juvenile offenders with the posting of a bond, thus providing its supporters – private bail agents – a new source of profit.
Since ABC formed as a coalition in service of the for-profit bail industry in 1992, the percentage of people sitting in US jails with a "pre-trial status" has increased from 50 to 63 percent, while average bail amounts have more than doubled. Today, as California Governor Jerry Brown ferrets out empty beds in which to stick the prisoners he refuses to let out a single day before their sentences have been served, more than 70 percent of California jails are filled with pre-trial cases – that is, men and women who are too poor to post bail or whose crime is so petty no bondsman considers it worth his time. Meanwhile, Brown doesn't look poised to threaten California's position as the Corrections Corporation of America’s (the largest private prison corporation) most lucrative state partner.
The dire need for mandatory sentencing reform cannot be understated. The two-decades reign of mandatory sentencing in US courtrooms is largely responsible for bringing us to the current state of affairs where 160,000 people – that's one out of every nine prisoners – in the country are serving life sentences, as a new Sentencing Project report reveals.
However, reforming the sentencing system without removing the role of commercial enterprises in the criminal justice process will ensure that the field of opportunities to exploit the poor, vulnerable and easily "criminalised" underclass – with predictably and endlessly devastating results – remains wide open.
Charlotte Silver is an independent journalist currently based in San Francisco. She has written for Inter Press Service, Truthout, The Electronic Intifada, Al Ahkbar and many other publications.