Next week’s midterm elections provide a potent reminder that Virginia is one of three states in the nation where more than 20 percent of African-Americans can’t vote because of a felony conviction. Just 20 percent of the population, blacks comprise 61 percent of state prisoners and 72 percent of those convicted of a drug offense. These are just some of the repercussions of the “tough on crime” era that rest heavy on the shoulders of former Republican state legislator Mark Earley. In the 1990s when states were outdoing each other on anti-crime bills, the 60-year-old father of six tells me, “Virginia was right there leading the way, and I was out front banging the drums.”
For more than two hours, Earley, an Evangelical Christian and former attorney general of Virginia, sat down with Colorlines to talk about the criminal justice system, prisons and changing public opinion. Here’s how he realized that his generation had gone too far–and the work he’s been doing over the last 15 years to help undo the overly punitive system that they built.
You belong to that ‘tough on crime’ generation of lawmakers. What kinds of laws did you help to pass in Virginia and why?
I’ve been involved in the criminal justice system really all of my working life. When I was elected to the [Virginia state] senate in 1988, I went on two committees that deal with all the criminal justice issues in Virginia. In the ’90s every state was getting tough on crime, and Virginia was right there leading the way. And I was out front banging the drums. So for my 10 years in the senate I was very involved in criminal justice issues. I was tough on crime.
I was very involved in abolishing parole in Virginia, in lowering the age at which juveniles can be tried as adults from 16 to 14, [and in passing] truth in sentencing, a lot of mandatory minimum laws [and] three strikes and you’re out. And at the time I thought all of that was good because my view was criminals deserve to be behind bars and the longer they’re behind bars the better off everybody is.
So how did you get to a point where you realized, well, maybe I’ve made a mistake or, gone too far?
By the time I got through with serving 10 years on the senate and working on all of those issues, I was beginning to come to the conclusion that we had done everything we could do to get tough on crime –and that we ought to look at what we could do to get to the root cause of crime. It wasn’t that I thought at that time that what I had done was not a good idea. It’s just that I thought, “We need a little balance to this.” That’s when I first began to get a feeling that we’d moved in the wrong direction.
Do you recall your first steps in what was to become your new direction?
[When I was elected attorney general of Virginia in 1998] I started this task force on gangs and youth violence. One of the things I said I was going to do was go into all the juvenile detention facilities in Virginia. I asked the directors to let me sit down behind closed doors, one-on-one with juveniles who had been convicted of violent crimes. I interviewed about 45 kids over a six-month period. They [ran] the gamut–white, African-American, Latino, Asian, male, female. One of the questions I asked all of them was, “Tell me a little bit about your family.” And all except for one of the children I talked to was raised in a home without a father. There was one young man who stood out to me who was about 16 years old. He was from Richmond, an African-American male, and he already had been convicted of two homicides.
Wait. How old did you say he was?
Sixteen. So I remember talking to him and I said, “Tell me a little bit about your family.” So he started telling me about his mom and his aunt. I said, “Well, tell me about your dad.” And he said, “He left when I was 4. I only saw him one time; I was 12 and I was on the street selling drugs and he came up to make a buy from me.” They recognized one another and his dad left. So here’s me on the one hand, I get up in the morning, I pick up a newspaper and I see where a kid commits a violent crime in one of the projects in Richmond and I think, “How does this happen? That’s horrible.” And then in talking with that kid I realize, he never had a chance. It didn’t make me think that he was excused for his actions, but it helped me understand why a lot of people end up on a different side of the criminal justice system than other people. It was really just a wake-up call for me.
In 2001, you unsuccessfully ran for governor. Then you left electoral politics and from 2002 to 2011 you were president of Prison Fellowship, the outreach ministry that champions sentencing and reentry reforms. How many former prosecutors get involved in ministering to prisoners and their families and helping them find jobs and housing after prison?
Not that many.
So you would have been a rarity in that circle.
Yeah. Where it really became interesting was when I would meet with inmates, particularly as a group, and tell them my story. They were looking at me like, “What the hell are you doing here? You’re why we’re in here.” But then I basically would tell them [that] for the first 47 years of my life I didn’t think about prisoners–and when I did, I basically thought, “The longer they’re locked up the better.” Growing up, I didn’t know anybody who’d been in prison. They were people someplace else. [And] I think I was really not unlike most lawmakers. We didn’t really have any knowledge of the people we were writing these laws for. One of the things that’s happening with mass incarceration is that it’s hollowing out [communities], it’s destroying generations. It’s just devastating.
Where did you learn this? Where’s a community in Virginia where that could be true?
Go into any African-American community in the projects, in a low-income area and just go walk to any door. Somebody’s in prison. Somebody’s kid or daddy or mama was in prison. Economically, it’s just hollowing out these communities for generations because you come out of prison as a felon, you can’t get a job. It’s awful. You can’t invent a more insidious way to destroy–and when I say “community” I’m not just talking about a geographical community, but families–you can’t invent a more insidious way to destroy two or three generations of a community than locking people up and basically putting them under this incredible burden of being [labeled] a felon when they come out.
That is a really big change from “tough on crime” to now, seeing the families and communities hurt by those same laws you helped to pass.
Yeah, it’s a big change. It was a big change policy-wise and it was a big change in how I view people. I’d read the Bible daily, since 1972 or ‘73, but you know you can read the Bible and miss a whole lot. As I began to spend time in prisons, I realized the people I was talking to were no different from me or my kids. [They just had] a different set of circumstances. [And understanding how God used biblical figures like Moses and Paul helped me to see] that even people in prison who deserved to be there, and maybe deserved to be there for a long time, were an opportunity waiting to happen, not a closed chapter. And by the same token I [also] realized a lot of the people we were putting in prison didn’t need to be in prison. People who need to be in prison are people who are an actual danger to other people–not people we’re mad at.
If the goal is to reduce mass incarceration and ensure public safety how important are prosecutors?
They’re important but not as important as lawmakers. Having said that though, prosecutors in every case exercise prosecutorial discretion. And what I see happening a lot is overcharging. Also, at every sentencing for every crime, the prosecution weighs in with what they think. They almost never weigh in to have a sentence be less than what the guidelines call for–even if they agree with a lesser sentence. [But] at the end of the day, prosecutors enforce the laws that are on the books. So policymakers and lawmakers are the most important.
So then we’re getting into public opinion. Is it changing around mass incarceration and the criminal justice system?
[Yes,] because once you get to 2 million people locked up, there’s nobody that doesn’t have a family member or loved one or a friend that’s in prison. So all of a sudden you can’t be like me much anymore, and say, “I don’t know any criminals. I don’t know anybody who’s locked up.” That’s not true anymore.
I’m not sure I agree. I think that’s true for some communities and not others. I mean, what are the indications that you have that general public opinion has changed?
So here’s the biggest indicator out here if you follow politics. Crime has not been used as a wedge issue in any major campaign in the U.S. in the last 15 to 20 years. The last time was Bush One when he ran for president and put on the Willie Horton ad. That was the height of it. [Crime] won’t be an issue in 2016. Terrorism will be–but not domestic crime.
I didn’t think of looking at what politicians are not talking about as a measure of how far we’ve come.
Yeah. The change in public opinion is being reflected by the way politicians run their campaigns. But that doesn’t mean yet these same politicians are ready to undo a lot of the things that have been done. It’s extremely difficult to take a law off the books. Regardless of what the issue is, it’s just really difficult to turn back something once it gets going. When I was at Prison Fellowship I spoke at a lot of churches–African-American churches, white churches, Evangelical, main-line Protestant. I could go and get any church congregation in America, and you could go with me this Sunday and you can go ask: “How many of you have a loved one or know someone who’s currently or has been incarcerated?” And you’d be amazed at the number of hands that would go up. Now the sad thing is that if you go to an African-American church, almost every hand goes up. But even in a white Evangelical, suburban or Protestant churches it’s over half.
I don’t think many people know that.
Everybody’s got a kid, nephew or sister who’s been on drugs or who’s been on alcohol. So they’ve ended up being incarcerated for using, breaking and entering, shoplifting. And if they’ve been on drugs they’ve done these things multiple times so they’ve ended up spending some time behind bars–not just two weeks.
Of course the big news this past year is that there’s unprecedented bipartisan support for criminal justice reform on the Hill. As an elder in this big tent, any parting thoughts?
There’s a lot of common ground now that didn’t exist 15 or 20 years ago. Never existed. With Rand Paul, it’ll be really interesting to watch his candidacy because he’s got a four- or five-point agenda on criminal justice reform. Whether he wins or loses in his bid for the Republican [presidential] nomination, it’ll be interesting to see how much traction these issues gain. But the very fact he’s chosen to talk about them, emphasize them as a potential presidential candidate, it’s an indication of where things are going.