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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.