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Breaking the Cycle of Mass Incarceration

NYU law professor and author Rachel Barkow offers solutions for tackling America’s criminal justice crisis.

January 3, 2020

The forces that created and perpetu­ate mass incar­cer­a­tion have been entrenched for decades. In her book, Pris­on­ers of Polit­ics: Break­ing the Cycle of Mass Incar­cer­a­tion, New York Univer­sity law professor Rachel Barkow details solu­tions for fixing the system’s myriad prob­lems. She talked to the Bren­nan Center’s Ruth Sangree about some of them.

What is the best-case scen­ario for crim­inal justice reform in the coming years?

It involves reform at the state and federal level. It gives us a pres­id­ent who is commit­ted to making crim­inal justice reform a top prior­ity and uses the bully pulpit to educate the public about all the reforms that are needed as a matter of both fair­ness and public safety.

This pres­id­ent appoints a reform-minded attor­ney general, as well as simil­arly reform-minded U.S. attor­neys and senten­cing commis­sion­ers. With the right people in place, I think you would see some posit­ive changes in federal char­ging and senten­cing prac­tices as well as over­sight of police depart­ments by the Justice Depart­ment’s Civil Rights Divi­sion. I think that would also mean a concer­ted effort to lobby for needed federal legis­lat­ive reforms, includ­ing the end of mandat­ory minimum punish­ments and retro­act­ive senten­cing relief for those currently serving such draconian sentences.

The pres­id­ent should appoint judges who have dedic­ated them­selves to public service and public defense. This will over time result in needed doctrinal changes to check excess­ive senten­cing and char­ging prac­tices. Right now, the federal bench is over­whelm­ingly domin­ated by people who spent part of their careers defend­ing the govern­ment and serving as prosec­utors. While that is a commend­able career choice and we want some of our judges to have that exper­i­ence, things go awry when you have a bench that dispro­por­tion­ately has that exper­i­ence.

At the state level, the best-case scen­ario involves the elec­tion of more reform-minded prosec­utors, governors commit­ted to crim­inal justice reform and clem­ency, and legis­la­tion curb­ing the worst excesses. I think it is real­istic to see massive reduc­tions in the use of cash bail now that people are begin­ning to real­ize that it is noth­ing more than a punish­ment of the poor which, far from promot­ing public safety, ends up under­min­ing it by disrupt­ing people’s lives in funda­mental ways.

I also think a best-case scen­ario would see the reduc­tion in or elim­in­a­tion of mandat­ory minimum sentences and a robust return of second looks at senten­cing, whether with parole, clem­ency, compas­sion­ate release, or prosec­utorial efforts to change sentences. The hope is that any changes to laws would be retro­act­ively avail­able to those serving under prior laws. I also hope we see massive changes to condi­tions in jails and pris­ons, as these insti­tu­tions are deplor­able in so many places.

We may also see changes in drug policy, with the legal­iz­a­tion of marijuana and the expun­ge­ment of records of those with marijuana convic­tions.

You write that it isn’t always possible to isol­ate govern­ment agen­cies from polit­ics. How can agen­cies best account for and push back against polit­ical pres­sures? 

We know how to design better agen­cies because we have done it. Many states, for example, have senten­cing commis­sions that do a much better job creat­ing rational and effect­ive senten­cing policies than what we see coming out of the polit­ical process. These agen­cies are charged with stay­ing within their exist­ing prison capa­city, which is a fant­astic mech­an­ism for keep­ing policies rational. Success­ful commis­sions can also be more effect­ively insu­lated if they face judi­cial review and have to explain the basis of their decisions. That is why we see more rational policies in civil regu­lat­ory spheres, and it could work in crim­inal justice as well.

Having said all that, though, it is import­ant to note that no agency will be completely insu­lated, nor should it be. We want demo­cratic checks on how agen­cies oper­ate. The key is to make sure that we build in some space for rational reflec­tion and the consid­er­a­tion of evid­ence.

The public often supports policies once it sees that they work, but our current process just does­n’t get these policies off the ground because there is too much fear and mislead­ing rhet­oric to get them star­ted. Using a differ­ent model gives us space for these efforts to take hold, and once they do, they usually end up making the case for them­selves.

One example of this is the reduc­tion in federal drug sentences. The U.S. Senten­cing Commis­sion reduced all federal crack cocaine sentences in 2007 and made the changes retro­act­ive, so that people serving those sentences could peti­tion to get the new reduced sentence. At the time, crit­ics (includ­ing those at DOJ) warned that this would be a public safety disaster because these people would be back on the streets too early. But the agency model allowed the commis­sion’s decision to proceed without being blocked.

When the commis­sion stud­ied that popu­la­tion five years later, it found that the recidiv­ism rate of those released earlier was lower than the recidiv­ism rate of those who served their full sentences. That evid­ence, in turn, paved the way for the commis­sion in 2013 to reduce all federal drug sentences retro­act­ively, not just sentences for crack. So agen­cies end up making the case for their policies because policies groun­ded in evid­ence work more effect­ively.

How do we go about recti­fy­ing “excess­ive uniform­ity” in senten­cing laws?

The first key action to take is to elim­in­ate mandat­ory minimum sentences, which lump together people of vastly differ­ent culp­ab­il­ity levels and give them the sentence designed for the worst person legis­lat­ors were think­ing about when they passed the law. It results in dispro­por­tion­ate sentences that discrim­in­ate on the basis of race. Support­ers of mandat­ory minim­ums initially thought they would reduce dispar­it­ies, but they have ended up exacer­bat­ing them because prosec­utors have discre­tion whether or not to charge offenses with mandat­ory minim­ums, and they have used that discre­tion in ways that discrim­in­ate against people of color.

The second key action is to make sure that judges have discre­tion to tailor sentences to the facts before them. Too often the tempta­tion is to constrain judges to reduce dispar­it­ies based on which judge you get. And while that is a laud­able goal, it ignores the fact that a regime that does that simply shifts the power to prosec­utors instead. It does­n’t elim­in­ate dispar­it­ies; it recre­ates them in the prosec­utors’ office.

A third key aspect is to change the way laws define crimes. Too often laws group together people of wildly differ­ent levels of culp­ab­il­ity. A category like “sex offender” includes viol­ent rapists and teens who sext each other. “Career crim­in­als” or “three strikes” laws end up group­ing together people who have commit­ted acts of extreme viol­ence with those who have no viol­ent actions in their past. Our laws need to do a better job recog­niz­ing that we need smal­ler categor­ies, because when we put larger groups under one umbrella, inev­it­ably the entire group gets treated as if they are the worst possible type of offender in that category, and we get excess­ive senten­cing as a result.

And finally, this same dynamic exists with collat­eral consequences of convic­tions. These often flow to categor­ies as large as “felon­ies,” so anyone with any felony convic­tion might find them­selves banned from public hous­ing, welfare bene­fits, or job oppor­tun­it­ies. We need a massive over­haul of these collat­eral consequences because they are far too sweep­ing and under­mine public safety goals because of how diffi­cult they make reentry.

It is also crit­ical to note that in all of these areas, the brunt of the over­broad group­ing falls on people of color, who are dispro­por­tion­ately affected by all of these policies.

You argue that the current state of crim­inal justice data collec­tion is incom­plete at best. What are three things that would improve the qual­ity of the data we have, and by exten­sion, support argu­ments in favor of reform? 

First, we need to find out exactly what prosec­utors’ offices are request­ing for bail or pretrial condi­tions, what they are char­ging, what they are threat­en­ing in plea nego­ti­ations, and what sentences they are seek­ing. Then we need to study whether those policies are work­ing — both in terms of recidiv­ism rates and other public safety meas­ures like crime rates or employ­ment for those going through the crim­inal justice process. The rates for solv­ing the most seri­ous crimes are laugh­ably low in far too many Amer­ican cities. It is time to start meas­ur­ing what works to improve those rates.

Pris­ons and jails are another space where there is effect­ively zero account­ab­il­ity. There is almost no data compar­ing how pris­ons stack up against each other in terms of prepar­ing people for release. Pris­ons and jails are some of the biggest, most bloated govern­ment programs around, and yet we never demand data to see if they are work­ing. The data we do have suggests they are abysmal fail­ures, as recidiv­ism rates are shock­ingly high.

But what we really need is data on whether parti­cip­a­tion in partic­u­lar programs in prison affects those rates. What about the effects of prison discip­lin­ary prac­tices, like solit­ary confine­ment? Or limit­ing visit­a­tion or char­ging excess­ive rates for phone calls? Right now, prison offi­cials have no incent­ive to care about outcomes after people are released because they are not judged on that basis.

We also need data that tracks inter­ven­tions, from clem­ency to parole to diver­sion. We need to be compar­ing those policies with controls to see if we are getting better outcomes.

We need some really basic data and inform­a­tion. One reason recidiv­ism why rates get meas­ured by arrests — which are highly mislead­ing stat­ist­ics because so many of those arrests result in dismissals and are often the product of discrim­in­at­ory poli­cing prac­tices — is because that’s all the data we have. We don’t have a good national data­base of convic­tions or sentences. But clearly we need to create one to do a better job meas­ur­ing all the other things we do to try to reduce recidiv­ism.

One of your book’s key argu­ments is that policy should not be based on popu­list ideas about punish­ment. What do you think are the most effect­ive ways to change views towards crim­inal justice reform?

It is hard to have a nuanced discus­sion of any policy issue that isn’t distor­ted by sensa­tion­al­ized media accounts and politi­cians look­ing for a rhet­or­ical edge on an oppon­ent. And certainly all this is worse when the policy topic is crime.

One key to improv­ing this is better media cover­age. We still live in a “if it bleeds, it leads” culture, with journ­al­ists high­light­ing the most grue­some crimes to get read­ers and view­ers. In contrast, a story about all that is wrong with crim­inal justice policy-making and how those policies harm public safety in the long run just does­n’t get the same kind of cover­age or atten­tion. Getting journ­al­ists more inter­ested in the stor­ies of people who are suffer­ing from excesses of crim­inal punish­ment would be a place to start.

I think it’s quite telling that the cities where people exper­i­ence firsthand how bad crim­inal justice prac­tices have been for public safety are not fooled by these stor­ies anymore. That is why places like Phil­adelphia have elec­ted prosec­utors commit­ted to decar­cer­a­tion and reform.

It is a tragic irony that one reason we are start­ing to see change in Amer­ica is because of how many people are person­ally affected by harsh and inef­fect­ive punish­ments. One in three adults has a crim­inal record. One out of every two people has a family member who has been incar­cer­ated. When you satur­ate a coun­try with that many people getting firsthand expos­ure to how poorly our crim­inal justice process works, you start to get change.

But that change will be minimal because there are too many power­ful interests with a stake in keep­ing things as they are. Law enforce­ment, and espe­cially prosec­utors, fight reduc­tions in sentences and changes that make their jobs more diffi­cult. In New York, prosec­utors are campaign­ing against a new law that would require them to share exculp­at­ory inform­a­tion with defend­ants earlier in the process. This is already a require­ment in Texas, and it works just fine, but New York prosec­utors are trying to scare the public into believ­ing this new law will lead to blood on the streets.

What was the most surpris­ing thing you learned during the process of research­ing this book?

I was struck by how many indi­vidual stor­ies of heart­break I came across where some govern­ment offi­cial had the discre­tion to stop a horrible consequence from fall­ing on someone who did not deserve it — whether it was losing public hous­ing or being charged with some­thing that had a wildly dispro­por­tion­ate sentence or allow­ing a clearly cruel and punish­ment to be imposed — and yet did noth­ing.

To get the world of mass incar­cer­a­tion we have today, sadly, takes a village. It takes will­ing prosec­utors, judges, politi­cians, and every­day citizens all going along with tragic cruelty. This wasn’t an outcome produced by a cent­ral plan­ner but instead by lots of indi­vidual people decid­ing that a harsh approach is the right approach. My hope is that one-by-one, all those folks learn how mistaken this path is. And more import­antly, that we put a better insti­tu­tional model in place that avoids going with gut instincts and uses evid­ence instead.