Clemency for Drug Offenders?

by Benjamin Studebaker

US Attorney General Eric Holder has announced that the Obama administration plans to implement new rules that would reduce sentences for thousands of nonviolent drug offenders currently in federal prisons. This new policy, combined with the Fair Sentencing Act of 2010, would allow the administration to commute the mandatory minimum sentences many prisoners received under the Anti-Drug Abuse Act of 1986. The new approach may feature hundreds of presidential pardons. In the meantime, congress has been considering new legislation (the Smarter Sentencing Act of 2014, still pending) that would cut the remaining minimum sentences in half. This is good policy, but it does not go far enough. Here’s why.

The prison system costs state governments almost 800% more to operate than it did in 1985:

State Costs

For comparison, education spending per student has grown roughly 300% over the same period.

The United States’ prison population has grown 500% in the last 40 years:

Prison Population

This is far in excess of population growth–school enrollment did not so much as double during the same period. That figure sounds big, until you consider that the number imprisoned on nonviolent drug charges has increased by more than 1,200% since 1980:

Drug Offenders


While the government has gotten tougher on all kinds of crime since the early 1980’s, drug crime clearly plays a disproportionate role in driving up the size of the prison population. This has caused a series of problems. A large prison population diverts resources from education, healthcare, welfare, infrastructure, energy, and all kinds of other useful projects. The people locked in prisons are lost productivity, insofar as the economy is concerned, consuming far more resources than they can produce from inside prison even despite the prison system’s legal authority to offer prisoners extraordinarily low wages. States have struggled to cover these costs and have had to cannibalize other kinds of programs to feed prison growth. Even so, there have been frequent overcrowding problems. California was ordered by the Supreme Court to reduce its overcrowding problem from 144% of capacity to 137.5%, but even this figure is troubling. Overcrowding is known to increase infraction rates and damage prisoner psychology. These things can make prisoners more dangerous when they leave prison than they were when they came in. There has been no significant nationwide change in recidivism rates in recent decades, but because the prison population has grown much larger during this span of time, the number of people who have been to prison who have gone on to commit additional crimes has risen dramatically in absolute terms.

Reducing the size of the prison population consequently has a few discrete advantages:

  1. Rehabilitation–it allows the system to more effectively care for the remaining prisoners.
  2. Efficiency–it reduces costs and allows the government to redistribute funds to better purposes (or tax cuts, if that’s what you prefer).

These advantages are compounded by the fact that the target population is nonviolent drug offenders rather than criminals writ large. Nonviolent drug offenders, even if they return to crime, will be returning to crimes that have limited social costs compared with burglary, theft, rape, murder, and so on. Insofar as they make it easier for the system to rehabilitate more violent offenders, there may even be a net gain.

Some may counter that enforcement of tough mandatory minimum sentences for drug criminals weakens existing deterrents against drug use, but the empirical evidence indicates that these deterrents are largely ineffective. Usage rates for all kinds of drugs have risen in the last few years in the United States, while states that have relaxed their drug penalties or decriminalized drug use altogether have seen their usage rates fall dramatically (e.g. Portugal, which has seen its usage rates cut in half).

However, as currently described, neither the administration’s new clemency policy nor the proposed Smarter Sentencing Act will fully tackle the problem. Even if the Smarter Sentencing Act is passed, the drug laws will be retained with minimum sentences that are somewhat shorter but still very much operable. Meanwhile, the administration’s clemency policy applies exclusively to drug crime at the federal level. There are more than twice as many drug offenders in state prisons as there are in federal prisons (though drug offenders are a larger percentage of the federal population). The administration’s planned new policy will have no impact on those offenders nor on the states presently struggling with overcrowding.

Nevertheless, this federal activity, if it comes to anything, raises the issue and suggests additional ways forward for enterprising state governments looking to reduce their costs and improve their prison conditions. Provided it actually comes to fruition, it will be a step in the right direction. It is quite difficult to get laws passed through this congress that this president will be happy to sign that do very much good at all for anybody, so it’s nice to see that there’s at least one out there being talked about, even if nothing ultimately comes of it.