President-elect Donald Trump is inheriting a lot from Barack Obama — most notably, a growing economy. But perhaps one achievement is rarer than them all: a declining prison population.
According to new data from the Pew Research Center, President Obama is the first president in 36 years to have overseen a decline in the federal prison population. Not since Jimmy Carter left the White House in 1980 has the US seen rates head in that direction.
Shawn Bushway, an expert in criminal justice and professor at the University at Albany, SUNY, says the decline can be chalked up to a number of factors — some of which Obama may be able to take credit for, others which he himself inherited.
In a recent article for the Harvard Law Review, Obama championed some of these initiatives, such as his use of clemency to commute federal prisoners’ sentences, the sentencing reform legislation he signed, and his work with both parties in Congress.
Bushway added to that list an important Supreme Court decision that was made before Obama took office. In 2005, the Court ruled in United States v. Booker essentially that minimum sentencing guidelines were no longer mandatory.
“They said it was unconstitutional to have mandatory, presumptive guidelines,” Bushway tells Business Insider. Federal judges could now decide for themselves to go with a more lenient punishment if the guidelines were too harsh. As a result, the sentences got shorter.
Bushway also points to the actions of former Attorney General Eric Holder, who between 2009 and 2015 committed to reforming the way minor offenses, mostly involving drugs, were prosecuted.
“Holder took steps to encourage federal prosecutors to use prison less,” Bushway says.
Hoping to undo the four-decade-long War on Drugs, Holder announced in 2013 his Smart on Crime Initiative. The plan targeted minimum sentencing for petty drug cases and removed incarceration from the equation. Rehabilitation took its place.
“The preliminary results are very encouraging,” Holder wrote in an op-ed for the New York Times. “Over the last two years, federal prosecutors went from seeking a mandatory minimum penalty for drug trafficking in two-thirds of cases to doing so in less than half of them — the lowest rate on record.”
Bushway was cautiously optimistic about the Pew data, given that a 5% drop in prisoners represents a decline of fewer than 8,000 people. Meanwhile, state prison populations still outnumber federal prisons by a factor of nearly 10. Even at a 20-year low, the total number of state prisoners is roughly 1.33 million.
But given both are declining, and at similar rates, Bushway suspects the change isn’t crime-driven so much as policy-driven. Violent crime and murder rates have been falling steadily since 2006. “What the hell happened in 2006?” Bushway says. “Booker!”
After years of legislation that was “unnecessarily harsh,” driving the incarceration rate up by a factor of four, the policies of the early 2000s loosened the court system’s grip on lower-level offenders, according to Bushway.
As for whether the incoming president will leave his successor in a similar state of affairs, Bushway says the policy effects should theoretically hold steady.
But there could be unforeseen issues particular to the new president.
“It is in [Trump’s] purview to get harsher on crime,” he says, pointing out that federal numbers include immigration-related offenses. “So he could make those numbers go up pretty quick.”
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