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A BFD for Criminal Justice Reform

The fight to reduce mass incarceration just got a big boost.

August 2, 2022

The scope of incarceration in the United States is well known by now, but it still stuns. Nearly 1.2 million people are serving sentences in state and federal prisons, and our county jails see over 10 million admissions every year. Four million more are on probation or parole. 

This level of incarceration has massive societal consequences. It drives and reinforces racial inequity, disproportionately punishing Black and Latino people. It extracts wealth from communities we’ve never invested in by imposing criminal fees and fines on top of lost wages for those with criminal records. Decades of research show that incarceration doesn’t produce public safety. In fact, incarceration has little to no effect on violent crime. The Brennan Center found that almost 40 percent of our prison population is behind bars with no compelling public safety reason.

But there is hope for change. This week, President Biden announced a landmark proposal to establish a $15 billion grant program called Accelerating Justice System Reform. The plan would help states reduce unnecessary incarceration, improving public safety without locking up more people. Importantly, the proposal would enable communities to better care for historically vulnerable populations — like those contending with substance abuse, homelessness, and poverty. 

We’ve urged exactly this sort of reorientation of federal dollars for years. Most criminal justice policy takes place in states, of course. But it turns out federal funds can provide powerful, often hidden incentives for good or ill. Now this new Biden administration incentive grant program builds from a Brennan Center policy proposal to reorient federal dollars. Instead of subsidizing mass incarceration, this new flow of funds would catalyze positive change. 

Some background: In 2015, the Brennan Center proposed the Reverse Mass Incarceration Act. We asked Congress to reorient federal dollars to reward states that attempted to reduce both crime and incarceration. This would shift the incentives in one part of the 1994 crime bill that authorized $12.5 billion in grants to fund incarceration, with nearly half earmarked for states that adopted “truth-in-sentencing” laws that scaled back parole.

Many states were already building new prisons at the time, but the federal money spurred them to construct even more. At the peak of the rush, a new prison opened every 15 days on average. 

It has been seven years since we first suggested this policy reform, and there’s a long road ahead to ensure states receive funds. But the benefits would be enormous. This quiet measure could help remake our approach to public safety.

Rather than reflexively locking up Americans with substance addiction, who pose virtually no public threat, the grants would divert them into mandatory treatment and harm-reduction programs. Grants would also fund alternate responder programs, which send trained counselors to deal with mental health crises, either alongside or instead of armed police officers. These solutions are proven to reduce violent interactions with police, who will also benefit from focusing on true public safety calls. The grant program addresses the stubborn problem of recidivism, providing money for job training and housing to smooth the transition from prison back into society. 

Crucially, this new funding acknowledges that we need to eliminate punitive sentencing laws that played a key role in creating mass incarceration. The Accelerating Justice System Reform incentive funding requires jurisdictions — if they want to receive these federal dollars — to repeal mandatory minimums for nonviolent crimes and change other laws that increased incarceration rates without making our communities safer.

As a senator, Biden sponsored the 1994 crime bill. It is fitting that his administration is attempting to reorient federal dollars to repair and reverse the harms of mass incarceration. To paraphrase Biden himself, this criminal justice reform proposal is a big . . . um . . . a big deal.