Californians vote to reform harsh 'three strikes' law

>>> welcome back. i'm melissa harris-perry. amid all the uproar about the re-elected president and the historic number of women in congress and the legalized marijuana and the same-sex marriage victories, another major shift on election day received relatively little fanfare. voters in california approved a ballot measure to reform the state's notorious three strikes law. one of the strict he's sentencing policies in the nation. under the law, if a defendant has two serious convictions, a third conviction for any felony automatically resulted in imprisonment 25 years to life. that meant that a crime like shoplifting could earn the offender a life sentence . under the revised law, a life sentence goes into effect if the third felony is a violent crime . california 's decision is a long overdue movement on the practice of imposing the heaviest sentences for the lightest of crimes. unfortunately, there's been much less progress when it comes to u.s. drug policy and reform around mandatory minimum sentencing . the 1986 anti- drug abuse act was passed after the death of university of maryland player len bias from a drug overdose . it started by tip o'neil of making a demonstration of being tough on crime. it was intended to prosecute high-level drug dealers . what it actually did was to ensnare low level offenders for small quantities of drugs below the amounts sold by large scale traffickers. more than 20 years later, we're living with the unintended consequences of that law and others passed by states. hundreds of thousands of nonviolent, low-level drug offenders, serving long prison sentences without the possibility of parole. 75% of mandatory minimum sentences today are given to people convicted of drug offenses in the more than two decades, mandatory minimums have tripled the amount of people in federal prisons with over half being incarcerated because of drug crimes . there's no causal proof that mandatory minimums do anything to reduce crime. i want to say that one more time. there's no causal proof that mandatory minimums do anything to reduce crime. what we do mow is that these laws lead to overcrowded prisons, burdens the cash-strapped states with the cost of housing low-level offenders and block the power of judges to deliver a punishment that fairly fits the crime. that frustration inspired one such judge to break the judicial silence around public policy issues and to speak out about this. in a column, iowa judge mark bennett wrote "if lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to ration ool lies them. there's no evidence that they do. i've seen how they've left children parentless and aging and irn -- they destroy families and fuel the cycle of poverty and addiction." it's true that the laws have outlived their purpose. if ever they served their purpose at all. it's also clear like in california , that it's pastime that we do something to change them. at the table with me, former commissioner of the new york city department of correction, glenn martin , formerly incarcerated and now vice president of public affairs for the fortune society. valerie core, the director of a new documentary about prison called the worst of the worse and a fellow at the yale law school and the author i quoted. mark bennett , united states district court judge for the northern district of iowa . i want to start with you. thank you for being here today

>> thank you for having me.

>> part of what these laws did and have done is put prosecutors rather than judges in charge of our system.

>> that's true. you're always going to have discretion in sentencing. the passage of the united states sentencing guidelines in 1987 took discretion from judges and gave it to prosecutors.

>> yeah.

>> the effect of that is many prosecutors are re-elected. they have a personal, professional, democratic incentive to incarcerate as many people for as long as possible.

>> that's been my experience. i mean, it's -- the prosecutors have been a growth industry. in my district, northern district of iowa , when i was appointed by president clinton in 1994 , i believe there were seven assistant u.s. attorneys . we now have 28.

>> so we were talking earlier about the question of the cost of the war in afghanistan and the lives lost and the amount of money that we've spent. you know, you can always balance that cost against a benefit if there is in fact a benefit. the cost of the so-called war on drugs has been an enormous human cost as well as cost to the states. is there a benefit on the backside? have we won something on this war on drugs ?

>> i believe it's a law of diminishing returns . a certain amount of imprisonment is always going to exist. we're well beyond that in the united states . we're spending probably in the range of $80 billion a year. imprisonment is a public investment with a very low return on investment. we're addicted. we're binging on imprisonment in this country. but the tide has begun to change for the first time in the last two years. the number of people imprisoned in the united states has plateaued and starting to come down as places like here in new york, in large measures because of efforts by glen martin, the rockefeller drug laws which were more draconian than the federal guidelines reversed and the number in people in prison reduced by 20,000 people.

>>> rockefeller drug laws and the president signing the fair sentencing act, which was meant to begin to reduce that powder versus crack cocaine disparity. are we moving in the right direction or still just in a circumstance of our addiction to imprisonment as a public policy ?

>> i think these are all steps in the right direction. congress and the president recognized inequity in the crack cocaine sentencing disparity. when you identify it, you get rid of it. you don't reduce it. we're hoping to push the administration and congress to take another look and to eliminate the disparity altogether. rockefeller drug laws became the model tore the nation. as you said earlier, it didn't take away discretion across the board. it removed it from judges and handed it to prosecutors. you end up in a situation where in the federal system , for instance, 96% of cases are people pleading out. if you're facing a considerable amount of time, whether guilty or not, you're incentivized to take a plea.

>> we can say a lot of positive things about the department of justice around things like civil rights issues and housing issues and that sort of thing. they've been under strong critique for their continued role in perpetuating federal incarceration rates.

>> if you look at last year's budget, for instance, while other states are grapple willing with -- we're projected to grow. while we have the second chance act pushed by congress and bipartisan support, unfortunately, you have an administration while convening a new counsel, we need to look more on the front end and figure out why so many people are going in, in the first place.

>> in the first place.

>> the interesting thing about the growth and the number of people in the federal prisons is driven by two things. one is the increasing number of people who are being prosecuted for immigration law violations. the fastest growing number of people admitted to the federal prison system is as a result of immigration law violations and the second, of course, is the growth in the federalization of what used to be state and local crimes. crime used to be a state and local responsibility. it's become federalized.

>> there's an enormous cost associated.

>> they're staggering. we have 2.3 million people ins cars rated, more than any other country in the world. to bring it home , i've spent the last year working with a team of law students at yale law school on a film called the worst of the worst. we spent an enormous amount of time with former inmates, grew up on the streets of hartford, got caught up with the wrong crowd, caught for selling drugs. for those who can't adjust, they get punished by being sent to super max prison. for several of them, i've watched them live out the consequences of that psychological damage of being held in solitary confinement , consequences they'll live out for the rest of their lives. i can't help but wonder if in the first instance a judge could assess the entire person in front of them. their particular story and struggle. their capacities to change rather than giving in to mandatory sentencing if their futures could be different.

>> would you agree -- i have a little bit of nervousness about assuming that judges are necessarily better at the use of discretion. do we end up with a different sort of format of crime and punishment when we have judges rather than prosecutors with the discretion in the system?

>> i think so. i think it's fairer justice. i've sentenced over a thousand people to mandatory minimum sentences . the vast majority in drug cases, the vast majority of which did not deserve a sentence anywhere near the length they do. people don't understand the incredible length of sentences. in the midwest, it's methamphetami methamphetamine. five grams gets you a five-year mandatory sentence . 50 grams gets you a ten-year mandatory sentence and in our district, they're always charged as a conspiracy. you're responsible for the reasonably foreseeable conduct and drug quantity of your co-conspirators. you could be involved in going to walmart, with a small group of other people to make meth because you're an addict and end up with a ten-year mandatory minimum .

>> this is why we have a growing women's population. if you're the sister or the girlfriend or the mom or whatever and you're buying the claritin that is nonprescription, but you have to go behind the counter to get it and you've bought an enormous amount, you could be a conspirator.

>> we're going to talk about valerie's film and life in solitary confinement from the perspective of one man living it.