Fact check: Biden wrongly says Obama policies released 38,000 prisoners

The federal prison population shrunk under the Obama administration, but PolitiFact found the decline was actually about 12,000 people from the start to the end of Obama's presidency.

Posted Updated

Bill McCarthy
, PolitFact reporter

Squaring off with President Donald Trump over criminal justice reform during the final debate before Election Day, Democratic presidential nominee Joe Biden wrongly claimed the Obama administration's policies "released" 38,000 federal prisoners while he was vice president.

"38,000 prisoners were released from federal prison," Biden said, responding to Trump’s claim that Biden and President Barack Obama "got nothing done" on the matter.

The federal prison population did shrink under Obama for the first time since President Jimmy Carter was in office — but not by 38,000, and not because 38,000 prisoners were released.

The 38,000 figure is cherry-picked

The first problem with Biden’s claim is with the number he cited.

The Biden campaign pointed to data from the Justice Department’s Bureau of Justice Statistics showing that the federal prison population dropped from a peak of 217,815 people at the end of 2012 to 179,898 people by the end of 2018, for a decrease of about 38,000.

The 38,000 figure was cited in a letter civil rights groups sent the Senate leadership in 2018. But the number is misleading, since it compares the high point under Obama with the federal prison count almost two years into Trump’s presidency.

The same Bureau of Justice Statistics data shows that there were 201,280 prisoners in federal custody on Dec. 31, 2008, nearly one month before Obama’s inauguration. There were 189,192 by the same day in 2016, with less than a month left in Obama’s second term.

That’s a decline of about 12,000 prisoners, not 38,000.

The number doesn’t count prisoners released

The second issue with Biden’s claim is the term "released."

The Bureau of Justice Statistics data measures the federal prison population and can be used to show population changes from year to year. It doesn’t track prisoners who were released.

"Released is not the right word here," said Kara Gotsch, director of strategic initiatives at the Sentencing Project. "What we’re talking about is a decline in the population."

The federal prison population changes all the time, Gotsch said. It drops when prisoners finish their sentences or die, for example, and it rises when new prisoners come in. The population has contracted considerably during the coronavirus pandemic, Gotsch said, as start dates for some prisoners’ sentences are getting deferred for safety reasons.

Biden framed his point more accurately earlier in the debate. "The federal prison system was reduced by 38,000 people under our administration," he said.

The Federal Bureau of Prisons does keep tallies of the tens of thousands of federal inmates released each year. But the release data doesn’t say much about the Obama administration’s criminal justice reform efforts, which is the point Biden was trying to make.

"People get released every day just because their sentence ends," Gotsch said.

The Obama administration helped drive the decline

That said, Gotsch told PolitiFact that policies implemented by the Obama administration — along with two changes made during Obama’s tenure by the independent, bipartisan U.S. Sentencing Commission — did help drive a decline in the federal prison population.

The Fair Sentencing Act of 2010, for example, dramatically reduced a 100-to-1 sentencing disparity between powder and crack cocaine, and the U.S. Sentencing Commission approved the retroactive application of some of the new sentencing guidelines.

According to a U.S. Sentencing Commission report, 7,748 crack-cocaine offenders received retroactive reductions to their prison sentences under that change.

The U.S. Sentencing Commission also voted in 2014 to reduce drug sentencing guidelines by two offense levels and apply the change retroactively. That change has resulted in 31,763 drug offenders getting retroactive sentence reductions as of June, according to the commission.

Former Attorney General Eric Holder also instituted a "Smart on Crime Initiative" that Gotsch said led to fewer federal drug prosecutions. A separate Justice Department initiative urged qualified federal inmates to seek sentence commutations. Obama commuted the sentences of 1,696 people through that program, the U.S. Sentencing Commission found.

PolitiFact ruling

Mostly False

Biden said that as part of the Obama administration’s criminal justice reforms, "38,000 prisoners were released from federal prison."

The 38,000 figure is cherry-picked. It represents the change in the federal prison population from its peak at the end of 2012 to the end of 2018, nearly two years into Trump’s presidency.

The federal prison population did shrink under Obama for the first time in decades, but the true decline from the start to the end of Obama’s presidency was about 12,000 prisoners.

The 38,000 figure also describes a reduction in the federal prison population — which can happen for a myriad of reasons — rather than the number of federal inmates who were released under or because of the Obama administration’s policies.

We rate Biden’s statement Mostly False.