Obama Legacy of Freeing Prisoners May Come Under Trump Siege

freeing prisoners

More than any administration in recent history, the Obama White House has focused on a law enforcement mission that might seem antithetical to hard-nosed prosecutors: getting criminal offenders out of jail early and trying to give them the skills to stay out.

With a flurry of prison and sentencing initiatives in recent months, the Justice Department has worked to finish an eight-year initiative that Mr. Obama’s attorney general, Loretta Lynch, predicted in an interview would make a “significant difference” in correcting the criminal justice excesses of past generations.

And in his final week in office, Mr. Obama is likely to grant commutations to shorten the prison sentences of still more nonviolent drug offenders, officials said. He has already issued more than 1,000 commutations — more than the number issued by the prior 11 presidents combined, according to the White House.

But that legacy is about to come under quick siege with the incoming Trump administration’s “law and order” platform, as Senator Jeff Sessions of Alabama, President-elect Donald J. Trump’s nominee for attorney general, made clear last week at his confirmation hearing. Mr. Sessions — a staunch conservative who has been a key roadblock in the Senate to legislation easing what many see as unduly long prison sentences — vowed at his hearing that cracking down on drugs, violence, gun crimes and illegal immigrants would be among his top priorities. Those goals are the same ones he has had for decades as a federal prosecutor in Alabama and a United States senator.

“I’m very concerned that the recent jump in violent crime and murder rates are not anomalies, but the beginning of a dangerous trend that could reverse those hard-won gains that have made America a safer and more prosperous place,” he told the Senate Judiciary Committee. That dark view of a nation at risk echoes the stance of Mr. Trump, who declared himself the “law-and-order candidate” and warned that crime was “out of control.”

Trump indicated during the campaign that he favored reinstating disputed police tactics like New York City’s “stop and frisk” policy, which was ruled unconstitutional in 2013 when a judge found it had been used disproportionately against minorities.

Mr. Trump indicated during the campaign that he favored reinstating disputed police tactics like New York City’s “stop and frisk” policy, which was ruled unconstitutional in 2013 when a judge found it had been used disproportionately against minorities.

That worries many civil liberties advocates, who say they see the pendulum swinging away from gains made in the past eight years, with thousands of prisoners in the federal system released early.

At Mr. Sessions’s confirmation hearing, Representative John Lewis of Georgia, a Democratic civil rights leader who on Friday said he did not “see Trump as a legitimate president” because of Russia’s meddling in the election, was unsparing in his critique of what “law and order” might look like in the Trump administration. He suggested that it could mean a return to police practices penalizing minorities more harshly than whites, as he faced growing up in Alabama generations ago.

A tougher approach also threatens what the Obama administration regards as a milestone in criminal justice. For the first time in decades, the population of prisoners in local, state and federal prisons — which quadrupled from about 500,000 in 1980 to 2.2 million in 2015 — is actually shrinking.

The Obama administration sees that trend as a reflection of more lenient and sensible approaches to sentencing, and in recent months, Justice Department officials have moved ahead with initiatives meant to provide “second chances” for criminal offenders and ease their path back to their communities.

They set up a school system in federal prisons. They put in place new oversight for halfway houses. They created a new, centralized mental health facility for women at the federal prison in Danbury, Conn. They stopped using private prisons to house federal offenders because of safety and security concerns. And they issued a report in conjunction with the Urban Institute concluding that fairer and “more enlightened” prison sentencing policies at the state level — where the bulk of prisoners are held — had succeeded both in bolstering public safety and in cutting many millions in costs for strapped states.

Many of the recent initiatives have not made headlines, but they have contributed to what Justice Department officials see as a cultural shift that began under Mr. Obama’s first attorney general, Eric H. Holder Jr., who instituted a policy in 2013 meant to lessen potential sentences for nonviolent drug offenders.

Deputy Attorney General Sally Yates, who has led many of the prison initiatives, has sought to send the message that locking people up is not the department’s sole mission. “We’re not the Department of Prosecution,” aides said she often reminded them. “We’re the Department of Justice for a reason.”

Daryl Atkinson, a lawyer from Alabama, is one reflection of that attitude. He spent more than three years in federal prison in the 1990s on a first-time drug trafficking conviction, but he went on to get a degree in law and is now working at the Justice Department as its initial “Second Chance Fellow,” part of a new program reserved for former prisoners. “To me, the fellowship is a testament to the fact that the administration is really walking the walk,” Mr. Atkinson said in an interview. “This shows people with records that opportunities are still open to them.”

Ms. Lynch and her deputy, Ms. Yates, were both longtime federal prosecutors, and as a prosecutor in Brooklyn in the 1990s, Ms. Lynch tried many drug cases at a time when narcotics offenders nationwide faced long prison sentences, particularly for crack cocaine, which was much more commonly used among blacks.

The mentality among prosecutors at the time was to put drug offenders away for as long as possible. But Ms. Lynch said the stiff sentencing policies failed to adequately distinguish between the drug kingpin and “the kid on the corner.”

The consequences for both the prisoners and their families have been enormous, she said. “I think it was clearly a mistake, in hindsight,” she said. “In trying to get the balance right, we seriously overshot the mark in the ’90s.”

Those long sentences, Ms. Lynch said, have only been compounded by the lack of adequate prison programs for job training, education and mental health. Too many freed prisoners, she said, “never learned to read in prison, they never learned a trade in prison, they are unemployable, literally unemployable. When they come out, they have nowhere to live, they may come out still with an addiction.”

During the transition process, Justice Department officials have emphasized those same themes to Mr. Sessions’s team. While she is well aware of Mr. Sessions’s politics on the opposite side of the issue, she said she hoped his team got the message. “We never know,” she said, “what new policies a new administration will want to focus on.”

Eric Lichtblau
New York Times

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