A National Agenda to Reduce Mass Incarceration

In her essay for Solutions: American Leaders Speak Out on Criminal Justice, the Brennan Center's Inimai Chettiar explains that a comprehensive mix of federal, state, and local reforms will be necessary to end mass incarceration — the fundamental civil rights issue of our time.

April 27, 2015

Mass incarceration threatens American democracy. Hiding in plain sight, it drives economic inequality, racial injustice, and poverty. It will ultimately make it harder to compete in the global economy. The United States has 5 percent of the world’s population, yet it has 25 percent of the world’s prisoners. More black men serve time in our correctional system today than were held in slavery in 1850. If the prison population were a state, it would be the 36th largest — bigger than Delaware, Vermont, and Wyoming combined. Our current penal policies do not work. Mass incarceration is not only unnecessary to keep down crime but also ineffective at it. Increasing incarceration offers rapidly diminishing returns. Extensive research shows incarceration can increase future crime in some cases, as prison often acts as a “crime school.” 

Mass incarceration has startling harmful effects. The criminal justice system costs taxpayers $260 billion a year. Spending grew almost 400 percent over the past 30 years. With so many withdrawn from society, and returning stigmatized as “convicts,” the criminal justice system drains overall economic growth. Best estimates suggest it contributed to as much as 20 percent of the U.S. poverty rate. Nearly two-thirds of the 600,000 people who exit prisons each year face long-term unemployment.3 The social and human costs are even higher.

How did we get here? In response to the crime wave of the 1980s, politicians vied to be the most punitive — from the 1977 New York City mayoral election, which improbably turned on the issue of the death penalty (over which a mayor has no power), to the 1994 referendum that passed “three-strikes-and-you’re-out” in California.

But times have changed. Reducing mass incarceration is now one of the few issues on which the left and right are coming to agree. Notably, Republicans are leading the charge, while Democrats largely play catch up. Lawmakers approach the issue from different perspectives. Their concerns vary from spiraling prison costs to intrusion of big government, from religious redemption to civil rights concerns.

We now know that we can reduce crime and reduce incarceration. States like Texas, New York, Georgia, and California have changed their laws to do just that.4 For the first time in 40 years, crime and incarceration fell nationwide.5 The state reforms provide modest fines and short- term relief. Local grassroots and state advocacy groups were vital to these wins, working tirelessly to build momentum. Although these reforms are heartening, they are not the wholesale systemic changes needed to strike a blow to mass incarceration.

To end mass incarceration, the American people and their top leaders must also embrace the cause. We need a national conversation, led by national voices, off   national solutions. The ideas must be big and aim high.

But, since criminal justice is largely a province of states and cities, how can there be “national” solutions? Each state struggles with the same challenges: too many arrests, prosecutions, pretrial detentions, prison sentences, and probation and parole revocations. Trends of overcriminalization, overincarceration, and selective enforcement play out across the country, with some variation. It is a false choice to debate whether we need powerful, state-focused efforts or a vibrant, national conversation. A change in national attitude will create the space for bolder state reforms.

This essay offers three national solutions, executed through a mix of federal, state, and local reforms. Though a President or other national leader may not have legal authority to enact all of them, they can and should be champions for these changes.

Eliminate incarceration by law for most low-level offenses, except in extraordinary circumstances.

Incarceration is the punishment of first resort for too many offenses. Half of state prisoners are behind bars for nonviolent crimes; half of federal prisoners are locked up for drug crimes. Roughly one in three new prison admissions are for violations of parole or probation conditions. And 6 out of 10 local jail inmates await trial, though research suggests that as many as 80 percent could be released with little or no threat to public safety. All told, as many as 1.07 million people may be behind bars without a public safety rationale.

Many states increased the discretion of judges so they can decide—  or a prosecutor or parole officer can recommend — whether to send a defendant to prison or to an alternative punishment. However, prison is still a legally permissible option for low-level crimes.

But we should ask: Why do our laws allow prison — the harshest punishment available short of execution — for many of these crimes in the first place? Of course, those who commit crimes should be punished (and some low-level offenders may need prison), but generally such severe punishment simply is not warranted. Ample research demonstrates that alternatives to incarceration in such cases often reduce recidivism and are cheaper than prison time.

We can safely reduce the ranks of the incarcerated in several ways:

  • Change criminal laws to remove prison as an option for most low- level, nonviolent, or non-serious crimes — except in extraordinary circumstances. More suitable punishments include: probation, community service, electronic monitoring, or psychiatric or medical treatment. Th holds especially true for an array of drug crimes. Many argue for drug legalization. Many argue against it. The same neighborhoods where drugs wreaked havoc in the 1980s are now devastated by mass incarceration. It remains unclear whether drug legalization would be helpful or harmful to communities of color. However, one fact is clear: It is neither eff e nor cheap to throw a person into prison for years for possessing a joint or a bag of cocaine.
     
  • Make treatment, not prison, the standard response for people with mental health or addiction issues. Half of prisoners suff from mental health or drug addiction issues. Th e are more Americans with mental illness in prisons than in hospitals. Prison does not treat health issues; it makes them worse.10 Treatment will help people get back on their feet and become productive members of society. (Of course, they should also be supervised; and incarceration may be needed for some due to the nature of the crime or threat posed.)
     
  • End incarceration as a sanction for technical violations of terms of parole and probation. Texas found a way to safely curb these revocations. In 2007, the state introduced a system of progressively stronger punishments for violations. It invested $241 million in alternatives, including treatment. By 2015, the state cut revocations to prison by 40 percent. It also saved $2 billion, closed three prisons, and dropped its crime rate to the lowest since 1968.
     
  • Detain defendants who await trial based on dangerousness, not wealth. Last year, New Jersey overhauled its bail process: the state will now release defendants charged with low-level crimes under conditions that protect public safety, while detaining those who pose risks of violence. These defendants are required to remain in the custody of a guardian, maintain a job or school enrollment, report to a law enforcement officer, undergo drug or mental health treatment, or submit to electronic monitoring. Other states use social science tools to assess danger and flight risks to make detention decisions.

Reduce mandatory sentences set by law.

Sentencing laws must change. Mandatory minimum, “three strikes you’re out,” and “truth-in-sentencing” regimes set overly-punitive sentences for defendants. Not only are people now incarcerated at higher rates than ever before, they are incarcerated for longer. According to the Pew Center, the average prison stay increased 36 percent since 1990.

Lawmakers enacted these regimes partly out of a concern for uniformity and equal treatment. If states simply eliminate these laws and return discretion entirely to judges, they could create the very problems of inequity some of these laws were intended to fix.

Instead, we should reduce the mandatory minimum sentences set by law, and reduce the maximum sentences ranges set by codes. Sentence lengths are often wildly disproportionate to the crimes committed. And research shows that longer sentences, beyond a certain point, do not decrease recidivism.15

Create financial incentives to steer toward curbing crime and reducing mass incarceration.

A web of perverse financial incentives drives mass incarceration. For example, police departments often report their “success” by tallying the number of arrests and drug seizures. Prosecutors are often hailed when they increase the number of convictions and prison sentences. These counts are reported as part of the budget process. And prisons — public and private — get more funds when their populations swell.

Instead, a new way forward, termed “Success-Oriented Funding,” prescribes that government should fund what works. Government should closely tie the hundreds of billions of dollars spent on criminal justice to the twin goals of reducing crime and incarceration. Harnessing the power of incentives, this approach can be implemented at the federal, state, and local levels.

The federal government has been one of the largest instigators of perverse incentives. For example, the 1994 Crime Bill included $9 billion to encourage states to drastically limit parole eligibility. Unsurprisingly,

20 states promptly enacted such laws, yielding a dramatic rise in incarceration.Today, the federal government continues to subsidize state and local criminal justice costs to the tune of $3.8 billion annually. One basic, yet effective, step: The federal government should provide funds to states that cut both crime and imprisonment. California, Texas, and other states succeeded by changing financial incentives. They awarded additional funds to local probation departments that reduced the number of people revoked to prison. In its first year alone, California reduced revocations to prison by 23 percent, saving the state nearly $90 million.20 In one year, Texas reduced the number of people revoked to prison by 12 percent.21 In both states, crime continued to drop.

A federal program to reward states that reduce crime and incarceration would spur vital change. States should also implement similar financial incentives for budgets to police, prosecutors, jails, prisons, and parole and probation offices. Success-Oriented Funding steers decision making toward broad goals, while allowing local officials the flexibility to decide how to achieve these outcomes.

What political strategy can achieve the change needed? A strategy that firmly puts mass incarceration at the forefront of a national political conversation. One in which the President, U.S. Senators, governors, mayors, police chiefs, civil rights leaders, and business heads call for change. One that puts forward big solutions that can also secure political support. As Abraham Lincoln said of the debate over slavery: “Public sentiment is everything. With public sentiment, nothing can fail. Without it, nothing can succeed.”

Mass incarceration — the fundamental civil rights issue of our time — will only end when there is a collective American will do so. The challenge at hand is to find bold, practical ways to cut the prison population while keeping the public safe. Three ideas to start: eliminate incarceration for low-level offenses, except in exceptional circumstances; reduce mandatory sentences set by law; and create financial incentives to steer toward reducing crime and incarceration.

More broadly, this book provides an array of additional solutions from our nation’s leading bipartisan public figures and criminal justice experts to reduce mass incarceration. It aims to ignite a conversation that national leaders will join, support, and encourage. Now is the moment to push forward to revitalize our justice system and our democracy.

Click here to read the entire book, Solutions: American Leaders Speak Out On Criminal Justice.