For decades, the U.S. has put too many people in prison for far too long. The state of Illinois incarcerates more people per capita than other countries, except for Cuba, Rwanda and Turkmenistan. Second-chance laws and acts of clemency and compassionate release, through which governors and judges revisit individual criminal sentences imposed during the last half-century when incarceration rates have soared, are gaining momentum around the country. In response, opponents are deploying all-too-familiar but demonstrably false claims that these laws will cause crime rates to rise.
It is time to move away from fearmongering rhetoric and instead embrace efforts to unwind the criminal legal system’s most damaging harms by normalizing the use of second-chance laws, clemency and compassionate release.
Experts at the Brennan Center for Justice estimate that of the 2 million people who sit behind bars across the country, over half a million could be released with little risk to public safety. Yet in many places — including in the federal system and in Illinois, where we practice law — the legal system makes that all but impossible. Neither has a parole system nor a routine process to release people before the expiration of their sentence. It makes no difference if the sentence was unjust the day it was imposed or if the laws have changed. Once a person is incarcerated, the system treats everything about them — their health, successes, rehabilitation, family and humanity — as irrelevant. Their future is fixed the day they are sentenced.
The harms of this system are staggering and have made us less safe. It costs roughly $300 billion every year to police, prosecute and imprison our neighbors. But incarceration costs us more than just the expenses of the criminal legal system. Mass incarceration has eviscerated the earning potential of entire communities, makes people physically sick and causes irreparable damage to the families of those incarcerated. These rippling effects mean that mass incarceration costs us roughly $1.2 trillion every single year, money that is not spent on social services, education or housing. That figure does not include the heartbreaking human cost of large-scale human caging. It does not account for communities and families destroyed and children growing up without their parents.
Mass incarceration in the modern era is the result of there being many ways into prison and very few ways out. It was not always this way. For the first half of our country’s history, second chances were commonplace. George Washington, Thomas Jefferson and Abraham Lincoln all used clemency liberally — by the thousands. Clemency was used both as an act of mercy in individual cases and as a check on prosecution and sentencing trends that were overly punitive. But since the 1970s, tough-on-crime rhetoric has made mercy rare and politically risky.
There has never been a greater need for clemency and other pathways out of prison. We must ask ourselves the question we have avoided for too long: After five, 10 or 20 years behind bars, does continued incarceration serve any real purpose? In many cases, that answer is no. For example, prisons are crowded with aging people who were imprisoned in their youth or young adulthood, even though people age out of crime. One recent study found that elderly people convicted of murder have a recidivism rate of less than 1%. Nonetheless, with no way out of prison, more than 20% of Illinois’ incarcerated population is elderly. A federal court monitor described prison infirmaries overrun with elderly, frail and disabled people. Yet with no way out of prison, hundreds of thousands of people across the country are facing death behind bars, turning prisons into costly nursing homes.
Others around the country are serving excessive sentences that have been rejected with no avenue for receiving a second look. In the federal system, Congress recently reformed draconian mandatory minimum sentencing enhancements but did not make the changes retroactive. As a result, people remain imprisoned even though they would already be back with their families if sentenced under today’s laws. Nonetheless, federal prosecutors routinely oppose motions for release. President Joe Biden has compounded the problem by not granting a single clemency petition in his first 12 months in office, in spite of promises to use clemency to address systemic problems and promote racial justice. Over 18,000 petitions sit on his desk, awaiting a decision.
These people remain in prison because the legal system offers no systematic mechanism to look at who they are today and effectively and efficiently release them. Until that has changed, we must celebrate judges, politicians and prosecutors who find ways to exercise mercy for the betterment of us all. If we are going to end mass incarceration in our lifetime, we must embrace and empower second chances. The robust use of clemency, compassionate release and other second looks is a small step in the right direction.
Jennifer Soble is the executive director of the Illinois Prison Project. Erica Zunkel is a clinical professor of law and the associate director of the Federal Criminal Justice Clinic at the University of Chicago Law School.
Submit a letter, of no more than 400 words, to the editor here or email letters@chicagotribune.com.
