A Federal Agenda to Reduce Mass Incarceration
Bipartisan momentum for criminal justice reform has been building for years, and a new pro-active agenda by the Brennan Center offers solutions that would keep crime rates low, provide support for law enforcement, and reduce the federal prison population.
This report sets forth an affirmative agenda to end mass incarceration and reform our criminal justice system. Bipartisan momentum has been growing for years. We must keep it going.
The United States has less than five percent of the world’s population, but nearly one quarter of its prisoners. Mass incarceration contributes significantly to the American poverty rate. Conservatives, progressives, and law enforcement leaders now agree that the country must reduce its prison population, and that it can do so without jeopardizing public safety. In the last decade, 27 states have led the way, cutting crime and imprisonment together.
Of course, because 87 percent of prisoners are housed in state facilities, changes to state and local law are necessary. But history proves that decisions made in Washington affect the whole criminal justice system, for better or worse. Federal funding drives state policy, and helped create our current crisis of mass incarceration. And the federal government sets the national tone, which is critical to increasing public support and national momentum for change. Without a strong national movement, the bold reforms needed at the state and local level cannot emerge.
In a divisive political environment, it is tempting to assume that progress toward federal reform is impossible. But even today, the need to confront problems in the way we arrest, prosecute, and incarcerate remains a rare point of trans-partisan agreement. Republican and Democratic Congressional leaders alike acknowledge that unnecessarily long federal prison sentences continue to impede rehabilitation, driving recidivism and economic inequality. And according to a new poll from the Charles Koch Institute, 81 percent of Trump voters believe criminal justice reform is a “very important” or “somewhat important” issue. More than half know someone who is in or has been to prison.
Even with broad public support, addressing the problems in our criminal justice system will not be easy. For the last eight years, the White House and Justice Department supported this important work. But Attorney General Jeff Sessions appears opposed to efforts to reduce unnecessarily harsh charging and sentencing. While President Donald Trump’s own views remain unclear, key advisers such as Vice President Mike Pence, senior adviser Jared Kushner, and Gov. Chris Christie all support efforts to reduce imprisonment.
To help bridge that divide, this report offers solutions that would keep crime rates low and show support for law enforcement, while reducing mass incarceration. The strongest of these policies require congressional action. Others could be implemented by a sympathetic administration. Taken together, these policies form the core of a national agenda for federal leaders to make our country safer and fairer. They also serve as models for state and local action.
- End the Federal Subsidization of Mass Incarceration: Federal grants help shape criminal justice policy at the state and local levels. For decades, these grants have subsidized the growth of incarceration. For example, the 1994 Crime Bill offered states $9 billion in funding to build more prisons. Today, $8.4 billion in federal criminal justice grants flow from Washington annually, largely on autopilot, encouraging more arrests, prosecution, and incarceration. To bring accountability to this flow, Congress can pass a “Reverse Mass Incarceration Act” that would dedicate $20 billion over 10 years to states that reduce both crime and incarceration. This would spur state and local action across the country.
- End Federal Incarceration for Lower-Level Crimes: Our criminal justice system relies heavily on prison, using it as the default punishment for most crimes. But research has shown that unnecessary incarceration is costly and ineffective at preventing recidivism and promoting rehabilitation. Early estimates show that approximately 49 percent of the federal prison population is likely incarcerated without an adequate public safety reason. Congress can pass legislation to eliminate prison terms for lower-level offenses and shorten prison terms for other crimes. In doing so, it can safely, significantly cut the prison population, saving around $28 billion over 10 years, enough to fund a Reverse Mass Incarceration Act.
- Institute a Police Corps Program to Modernize Law Enforcement: The country faces a national crisis in policing. Some believe that overly-zealous enforcement has reached a breaking point. Others believe police are not adequately funded or supported. All can agree that something needs to change. To advance a twenty-first century police force, Congress can allocate $40 billion over five years to recruit new officers and train them in modern policing tactics focused on crime prevention, as well as techniques to reduce unnecessary arrests, uses of force, and incarceration.
- Enact Sentencing Reform: While lawmakers should aspire to the bold changes to federal sentencing described above, Congress can start with a milder first step: reintroducing and passing the Sentencing Reform and Corrections Act of 2015. This proposal would cautiously reduce prison sentences for some nonviolent crimes. A bipartisan group of senators, led by Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.), have already committed to reintroducing the bill this session. The White House has expressed cautious support.
- Redirect Federal Grants Away from Mass Incarceration: Since many of the harmful incentives in federal criminal justice grants are written into law, truly ending the federal subsidization of mass incarceration will take congressional action, as laid out above. But the Justice Department can take the first step, by changing performance measures for grants to reward states that use federal funds to reduce both crime and incarceration.
- Institute New Goals for Federal Prosecutors: The Justice Department should ensure that scarce federal criminal justice resources are focused on the most serious crimes, and evaluate U.S. Attorneys nationally based on their ability to decrease both crime and incarceration.
- Commute Sentences to Retroactively Apply the Fair Sentencing Act: In 2010, Republicans and Democrats joined together to pass legislation to reduce the disparity between crack and powder cocaine crimes as the drugs are scientifically equivalent. But more than 4,000 federal prisoners remain incarcerated under outdated drug laws. Future presidents can bring justice to these prisoners by identifying clemency petitions meeting certain criteria, fast-tracking them for review, and granting clemency.