Last night was the Democratic Debate where Hilary Clinton and Bernie Sanders fought over immigration, health care, foreign policy, Obama's record, and the criminal justice system. Both candidates agreed pretty easily that enormous change needs to happen within our criminal justice system and that police need to be accountable for the crimes they commit. However, Bernie was the only one who offered a concrete promise by guaranteeing at the end of his 1st term in office, the United States would not have the world's largest prison population. This promise fit in line with his bold ideas and promised to renew the commitment to seriously doing something about our criminal justice system.
In order to do this, Bernie Sanders would need to cut our prison population by 600,000 people. Currently the United States has 2.2 million prisoners in federal, state, and local prisons. China is currently at number 2 with 1.6 million prisoners. 600,000 prisoners is a massive amount of prisoners to be sure, but Bernie Sanders said it loud and clear, so there will be no backing away from this campaign promise if he is elected.
This morning pundits from many news stations this morning that his campaign promise is impossible with Leon Neyfakh at Slate calling the promise "absurd" and if Sanders wanted to free more than 500,000 prisoners " he would have to break them out himself." Not only is this pundit wrong, his claim of impossibility shows that he doesn't understand the situation.
The President of the United States has the ability to pardon prisoners unilaterally without anyone's approval. Not only could Sanders do this in a stagnated Congress, but he could do it while rallying up his base for another fight. However, Bernie's pardoning ability can only get him so far because as President he would only able to pardon federal prisoners. But, don't you worry Sandersistas because that isn't a insurmountable problem. In fact, it isn't even hard.
Just to really prove these pundits wrong, let's tie another hand behind Bernie's back and say he will only pardon non-violent drug crimes. An issue he constantly brings up to help point out that fact that Wall Street Executives are not in jail for defrauding the American public, but teenagers who smoked marijuana are.
52% of inmates in federal prison are currently serving time for non-violent drug offenses. That number comes to roughly 98,000 prisoners. Bernie could pardon all of these inmates on day one and get 1/6 of the way there. However, he will need to go to the states in order to get the rest done. The fact that he will need cooperation from the states has been well tuned weapon in Hilary Clinton's arsenal this campaign season, and she has been largely right. Republican governors have been sticks in the mud when it comes to helping out a Democratic President. However, he doesn't need them either for this problem because of two states. California and New York get him half way there.
Governors have the ability to pardon state crimes, and both of these states are being over run by prisoners. In 2011, the Supreme Court ruled in a 5-4 decision in Brown v. Plata that overcrowded conditions in California prisons constituted a violation of the Eighth Amendment, which bans cruel and unusual punishments. The decision upheld a lower court decision which found that "an inmate in one of California’s prisons needlessly dies every six or seven days due to constitutional deficiencies."The Court found that, at the time of the lower court trial, California jailed nearly twice as many prisoners as its prisons were designed to hold. In the majority opinion for the Supreme Court, Justice Anthony Kennedy wrote:
"After years of litigation, it became apparent that a remedy for the constitutional violations would not be effective absent a reduction in the prison system population or expanded facilities."
Not only is a massive prison population a problem for most states, but even the Supreme Court believes that it is inhumane and unconstitutional to be locking up citizens at the current rate. Between California and New York, there is 140,000 non-violent drug offenders that could be pardoned tomorrow, and the Governors of those states would be more inclined to do so if they had the political cover of the President leading the way.
There are currently 804,800 state prisoners that are serving sentences for non-violent drug crimes. Let that number sink in. That is a bigger population than Vermont, Wyoming, North Dakota, or Alaska and that is just non-violent drug offenders in state prisons. There are currently 18 democratic governors and they would be more inclined to follow the lead of the President to pardon these individuals, if the Executive was to act first and made it a central campaign promise. There is also reason to believe that Republican Governors might find some common ground on this too. The Supreme Court has ruled that over populations are unconstitutional and with more and more states legalizing marijuana, it makes sense politically as well. Don't believe me? Well Republican states with Republican Governors such as Arizona, Ohio, Indiana, Michigan, Kentucky, Arkansas, Louisiana, Montana, North Dakota, and Alaska have all accepted Obamacare's Medicaid expansion. If they accepted that, then they maybe they wouldn't mind easing their prison populations either.
Not only could Bernie Sanders cut the prison in half by issuing federal pardons to non-violent drug offenders and pushing Democratic governors and libertarian leaning Republican Governors to follow suit with their own state prison populations, but his plans for decriminalizing marijuana, demilitarizing the police, instituting community policing, and holding officers accountable for issues such as killing people and unfair police brutality would dramatically help reshape a broken criminal justice system while dramatically reducing the prison population.