Overcriminalization Task Force should focus on reducing prison populations

With federal prison costs skyrocketing and a tenfold increase in the federal prison population since 1980, the task force should reexamine federal criminal laws and sentencing regimes that will stem the flood of inmates into the federal system.

The task force’s mandate is broad: to review the entirety of the estimated 4,500 federal crimes in federal statutes. Changes in federal policy since the early 1980s have contributed to an exploding federal prison population. These include increasing the number of crimes with mandatory minimum sentences; increasing the number of federal crimes; and eliminating parole. There are now more than 170 mandatory minimum sentences in the federal code that sentence too harshly. Not only do these need reform, but federal action could pave the way for the states.

Yet the task force’s hearings to date barely scrape the surface of these topics. They have focused on the ever-increasing labyrinth of federal regulations that don’t contain a criminal intent requirement. Last week’s hearing focused on the myriad federal crimes that do not require a prosecutor to prove that the defendant knew they were violating the law.

In order to make a dent on our country’s overreliance on incarceration, the task force must shift gears and focus on the impact of the policies that have created too many crimes and overly harsh sentences. Federal regulation – which largely regulates business activity – does not fuel our mass incarceration problem. In fact, the lion’s share of federal inmates are serving time for drug crimes. Federal prisons would ring hollow if they were mostly filled with inmates convicted of regulatory offenses.

Furthermore, in these fiscally lean times, funding the expanding Bureau of Prisons takes away desperately needed funds from other criminal justice priorities. Funding for the Bureau of Prisons now makes up almost a quarter of the budget for the Department of Justice. More than half of federal prisoners are incarcerated for drug crimes and punishment falls disproportionately on people of color.

Beyond these chilling statistics, tremendous damage is done to the lives of the incarcerated and their families. Research shows that incarceration has a cosmic negative impact on future income, employment prospect, and family involvement, and therefore on the country’s economy. Reducing overcriminalization and thereby overincarceration, saves taxpayer money and improves the lives of all citizens.

To strike a blow to the country’s overcriminalization policies, the task force should veer away from its myopic attention to the criminal intent requirement in the federal code and instead focus on scaling back mandatory minimum crimes, lowering harsh sentences for drug crimes, and reclassifying felonies into misdemeanors when public safety would not be threatened.

The nation is facing an epidemic of overcriminalization and overincarceration. A true reduction in its correctional population won’t occur until lawmakers take a closer look at our systematically harsh crime sentencing policies, especially for drug and low-level offenses. Let’s hope policymakers do so sooner rather than later.

Eisen is counsel in the Justice Program at the Brennan Center for Justice at New York University School of Law.