President Obama will forever be remembered as the “first” to do many things. And with his recent visit to a federal prison in Oklahoma, he added to that list by becoming the first sitting president to make such a trip–no, not to El Reno Correctional Institution specifically (although that’s true too), but rather, to any federal prison in general. For this, he has received great notoriety, and rightfully so. He is unquestionably a trailblazer in this respect; as for being a trendsetter, that remains to be seen.
But it’s not the future behavior of presidents unknown that concerns me; rather, it’s the past behavior of former presidents that alarms me. Obama’s visit to El Reno Correctional Institution simultaneously demonstrates his interest in criminal justice reform while highlighting the apathy of his predecessors on the same issue.
Recall, this great country was founded on July 4, 1776. By June 21, 1788, our constitution was ratified, a purpose of which was “to form a more perfect Union [and] establish Justice.” As to the ideal of “Justice,” two years later, the Crimes Act of 1790 was passed, outlining our nation’s first federal criminal laws. And what was to become of its offenders? The Crimes Act made no provision for the creation of a federal prison system, so Congress resolved to have the state legislatures authorize persons convicted of federal crimes to be imprisoned in state facilities. So we can’t exactly fault George Washington, the then-sitting president (and our first president ever, for that matter), for failing to be the first president to visit a federal prison. They simply didn’t exist back then.
In 1891, though, the prison landscape changed drastically when Congress passed the “Three Prisons Act,” establishing our nation’s Federal Prison System. The first three prisons were USP Leavenworth (opened in 1894 and still operational today), USP Atlanta, and USP McNeil Island, respectively, and they operated with limited oversight by the Department of Justice (“DOJ”). The DOJ is a federal department under the executive branch of government, and while the Attorney General of the United States heads the department, he or she is nominated by the President of the United States–the highest-ranking executive officer in the land. Look, I wasn’t around in 1894, nor was mainstream media as it exists today, but I can’t find anything confirming that then-sitting president Grover Cleveland visited Leavenworth. But with federal prisons in their infancy, the now painstakingly clear problems in our nation’s federal criminal justice system had yet to materialize, so perhaps he is deserving of a pardon too (pun intended).
Flash forward, if you will. Far from scarce, as they were in the nineteenth century, presently, prisons abound. At last check, there are over 100 federal prisons. Common sense dictates that if the federal Bureau of Prisons is responsible for our prisons, and that agency is under the DOJ, and the DOJ is under the Executive Branch, then surely, at some point between 1894 and July 16, 2015, at least one sitting president took an hour or two to tour a prison facility. Nope. Not a single one.
To me, that is tantamount to the CEO of Walmart never visiting a single store location. Just trusting that his National Director (like the Attorney General) and franchisees (like the Wardens/Superintendents) have things under control. It’s almost unfathomable. What’s more, it would be like after enormous public outcry garners national attention (like, for example, gender discrimination or wage disputes as compared to criminal justice and prison reform) that the CEO still remained willfully ignorant as to what the inside of one of his or her stores looks like.
And don’t take it from me, a criminal defense lawyer, that we have serious problems in our criminal justice system (including prisons). Almost everyone has heard the statistic that the United States represents about 4.4% of the world’s population but houses nearly 22% of the world’s prisoners. And did you hear former President Bill Clinton, who in 1994 was the driving force behind a huge omnibus criminal law mandating life sentences and applying “three strikes” principles, recently acknowledge that “the problem is the way it was written and implemented as we cast too wide a net and we had too many people in prison, and we wound up…putting so many people in prison that there wasn’t enough money left to educate them, train them for new jobs and increase the chances when they came out so they could live productive lives”?
As CNN reported, in 1994, his wife, Hillary Clinton (a current-presidential candidate) applauded the “well-thought-out crime bill that is both smart and tough,” but now, in 2015, acknowledges that “keeping [felons] behind bars does little to reduce crime, but it does a lot to tear apart families. … Our prisons and our jails are now our mental health institutions.”
These radical shifts in ideology and perspective are well received, but the public outcry for prison reform, while garnering much attention now, is far from a modern issue. It almost seems like one from antiquity at this point.
In the nineteenth century, it was an 1821 disaster in the Auburn Prison System in New York where, after being locked down in solitary, many of the 80 male inmates of that state-prison committed suicide or had mental breakdowns. That sparked people questioning the purpose of prisons and the manner in which they operate. From this tragedy, we learned of people like Louis Dwight, the founder of the Boston Prison Discipline Society. There are no reports of then-sitting president James Monroe visiting that, or any other, state prison facility (again, Leavenworth wouldn’t open for another 73 years, so another pass seems appropriate).
In the twentieth century, the growth of psychiatric care was seen, capturing a central role in criminology and policymaking. By 1926, 67 prisons employed psychiatrists and 45 had psychologists. This lead to the spread of probation as a system of controlled supervision, which inevitably lead to its dreaded offshoot: probation violations–a process by which one’s probationary status (ie. non-incarcerative) can be revoked, placing them back into prison, without the need of another jury trial and where the standard of proof is less than beyond a reasonable doubt. There are no reports of then-sitting president Calvin Coolidge visiting any prisons.
In the early 1950s, there were prison riots triggered by abysmal conditions, including lack of hygiene, medical care, quality of food, and civility among guards. Again, no reports of then-sitting presidents Harry Truman or Dwight D. Eisenhower visiting any federal prisons.
The list goes on and on.
Put simply, on constant in our criminal justice system is that our nation’s prison population has been on a steady rise — even during times when our crime rates fall dramatically. So, too, is the rate at which federal prisons are being privatized by corporations, who, unsurprisingly, care more about P&L statements than they do reform. Federal sentencing guidelines, minimum mandatory sentencing, and three-strike laws are also just the tip of the iceberg. Race, gender, and socio-economic status are all other factors that statistically correlate to this rise in prison population; factors that have been at the forefront of only a few brave, outspoken individuals until recently.
Today, some experts think “we’re priming some kids for college — and others for prison” (especially those of African-American and Latino backgrounds), and I agree. And I’m happy to report that our current president is of a similar mindset. As recounted by CNN, after his recent visit to El Reno, President Obama remarked, “In too many places, black boys and black men, and Latino boys and Latino men, experience being treated differently under the law. …Mass incarceration makes our country worse off and we need to do something about it.”
I agree, Mr. President. We do need to do something about “it.” All I’m saying is, while I applaud President Obama for visiting the prisons, which, as our highest-ranking executive official, necessarily fall under his purview, I can’t help but be saddened by the simple fact that it took 121 years (from when our first federal prison opened to present day) for a president to visit a federal prison. It’s inexcusable to me.
Criminal justice and prison reform are not partisan issues (in my view, at least). They can’t be. It’s a uniquely American issue and there really shouldn’t be a debate as to whether reform is appropriate; only whether certain, specific changes are.
Sure, I’m on the front lines. My clients are the men and women who, rightly or wrongly (I let juries decide), make up the alarming statistics others only talk about. So I may be a little more invested in the issue than most. But if criminal lawyers (prosecutors and defense attorneys alike) are on the front lines, I suppose I always imagined our nation’s presidents, the highest ranking executive officials, being the generals on the top of the hill overlooking the battleplan they helped create unfold, or at least are responsible for (in a pure chain of command sense). At least those generals have some first-hand knowledge about the process and how it actually works. Sadly, it appears that President Obama is the first one to take a look over the proverbial hill and into the shaded valley that is our nation’s prison system.
Admittedly, he is not the first to take some action (he pardoned 46-low level drug offenders earlier in July), but it’ll take more than a few pardons and a singular visit to drive change. I hope that future presidents will follow his lead and continue to engage the issue. An issue that, at least in my view, is an elephant in the room that can no longer be ignored. History will be the judge of yet-to-be-elected presidents; but it is already the judge of President Obama’s 42 individual predecessors, in my mind at least. And while I, like others, marvel at their innumerable accomplishments that advanced our great country in other ways, I am deeply disappointed by their apathy and inaction on this issue.
This blog post was authored by Jordan Redavid, Esq., a Hollywood Criminal Defense Lawyer and founding partner of Fischer Redavid PLLC, a criminal defense law firm in Hollywood, FL.