Skip Navigation

How the Federal Government Can Incentivize States To Reverse Mass Incarceration

The Reverse Mass Incarceration Act would supply states that reduce incarceration with federal grants.

Mass Incarceration
Al Seib/Getty

This piece origin­ally appeared in the National Urban LeagueState of Black Amer­ica series.

Amer­icas crim­inal legal system is rooted in the nations history of legal­ized slavery and racial oppres­sion. Our current system of punish­ment is still foun­ded on a basic concep­tion of outsider-hood that contin­ues to create and perpetu­ate racial, ethnic, and class inequal­ity. Crim­inal legal reform efforts must engage directly with this sordid lineage to unmoor the inequit­able impacts and outcomes of our current system of “justice.”

As Cornell William Brooks, former pres­id­ent and CEO of the National Asso­ci­ation for the Advance­ment of Colored People, wrote: “Communit­ies of color are over policed, over-prosec­uted, over-incar­cer­ated and yet under­em­ployed.” The racial dispar­it­ies through­out our crim­inal legal system are consid­er­able. For example, one in three Black men are incar­cer­ated in their life­times compared to one in 17 white men. When it comes to poli­cing, these dispar­it­ies are even greater, as evid­ent in the number of Black men and women who are killed without justi­fic­a­tion by law enforce­ment officers. A mapping of police viol­ence illus­trates that Black Amer­ic­ans are three times more likely to be killed by police officers than white Amer­ic­ans, while nearly twice as likely to be killed as a Latinx person. Black Amer­ic­ans are also about 30% more likely to be unarmed in fatal inter­ac­tions with police than white Amer­ic­ans. 

Can the federal govern­ment do anything to trans­form the Amer­ican crim­inal legal land­scape and reduce racial dispar­it­ies? This is a genu­ine ques­tion. So many of these chal­lenges exist at the local and state level. For instance, local jails and state pris­ons account for 91% of the nations incar­cer­ated popu­la­tion. To put it just a bit differ­ently: There are about 2.2 million people behind bars in this coun­try, but only about 175,000 of them are in federal prison. Addi­tion­ally, there are more than 10 million admis­sions in and out of the nation’s colossal network of local jails each year; more than 4.5 million people on proba­tion or parole; and more than 70 million people have convic­tion histor­ies that subject them to lifelong consequences to their lives and live­li­hoods. And when it comes to poli­cing, there are 18,000 local police depart­ments dotting the United States.

Yet still, the federal govern­ment is uniquely situ­ated to incentiv­ize systemic reforms for state and local-level crim­inal legal systems.

Consider the many forms that federal involve­ment in local crim­inal justice affairs can take. Federal agen­cies can and do enforce federal law against local­it­ies. For example, the Justice Depart­ment’s Civil Rights Divi­sion and U.S. Attor­neys’ offices have the stat­utory author­ity to bring civil rights actions against correc­tions agen­cies and local police depart­ments in addi­tion to crim­inal prosec­u­tions against indi­vidual officers to enforce federal rights law when police viol­ate those rights. And through the federal govern­ments grant­mak­ing powers, it can shape state and local crim­inal justice policy.

Federal fund­ing schemes have long encour­aged states to focus their resources on law enforce­ment inter­ven­tions to deal with social prob­lems, often result­ing in our govern­ment lock­ing up ever more people for ever longer peri­ods of time. This has resul­ted, in part, in today’s bloated carceral state. In fact, since the 1960s, the federal govern­ment has played a cent­ral role in shap­ing the nations crim­inal justice land­scape through outlays of grant money to states. For decades, federal grants encour­aged states to increase arrests, prosec­u­tions, and impris­on­ment. Federal funds have suppor­ted the expan­sion of local jails, includ­ing paying jails to house federal incar­cer­ated indi­vidu­als as well as ICE detain­ees.

One example of how federal dollars incentiv­ized the growth of the carceral state that only exacer­bated racial dispar­it­ies is through the Viol­ent Crime Control and Law Enforce­ment Act of 1994 (The 1994 Crime Bill), which author­ized incent­ive grants to build or expand correc­tional facil­it­ies. Grants total­ing $12.5 billion were author­ized for incar­cer­a­tion, with nearly 50% earmarked for states that adop­ted tough “truth-in-senten­cing” laws that required people to serve substan­tial portions of their custodial sentences. Other examples over the last half century include the Omni­bus Crime Control and Safe Street Act of 1968, which provided $400 million for law enforce­ment purposes; and the Anti-Drug Abuse Act of 1986, which increased federal fund­ing for law enforce­ment to fight the drug war. Then in 2005, when reau­thor­iz­ing the Viol­ence Against Women Act (VAWA), Congress created the Edward Byrne Memorial Justice Assist­ance Grant program (JAG). All 50 states, territ­or­ies, and more than 1,000 local govern­ments rely on JAG dollars, whose fund­ing level for the entire program aver­ages between $300 to $500 million yearly. Those dollars support almost any crim­inal justice activ­ity covered by the federal stat­ute, yet about 60% of state-level JAG dollars support law enforce­ment and correc­tions func­tions. In his 2013 book, “Rise of the Warrior Cop: The Milit­ar­iz­a­tion of Amer­icas Police Forces,” journ­al­ist Radley Balko encap­su­lated this crime fight­ing incent­ive well: “As local police depart­ments were infused with federal cash, members of Congress got press release fodder for bring­ing federal money back to the police depart­ments in their districts.”

The federal govern­ment should no longer subsid­ize mass incar­cer­a­tion and should instead incentiv­ize states to reverse the era of excess punit­ive­ness and shrink the carceral state. One power­ful way to do so would be for the pres­id­ent to cham­pion and Congress to pass the Reverse Mass Incar­cer­a­tion Act (RMIA) to unwind these incent­ives by ensur­ing that federal grants are sent only to states that reduce incar­cer­a­tion. Designed to undo the damage inflic­ted by federal policies incentiv­iz­ing states to lock up more people and to lock them up for longer peri­ods of time, the RMIA would estab­lish a grant program reward­ing states for lower­ing their prison popu­la­tions.

For states to obtain fund­ing under the RMIA, they would have to submit plans describ­ing how they would reduce incar­cer­a­tion; the RMIA would set an across-the-board reduc­tion target for all states to meet. The grant would encour­age states to take numer­ous steps to undo mass incar­cer­a­tion, like chan­ging senten­cing laws, estab­lish­ing new programs divert­ing people away from the system, or improv­ing wrap­around services for indi­vidu­als reen­ter­ing their communit­ies after incar­cer­a­tion. Lead­ers on both sides of the polit­ical spec­trum all agree: The United States must end mass incar­cer­a­tion, which high­lights and exacer­bates racial inequal­ity in Amer­icas crim­inal punish­ment system. And we believe the RMIA can serve as a vehicle for reign­ing in state prison popu­la­tions, while vastly redu­cing racial dispar­it­ies in the system.

As calls for racial justice continue ringing in the air, the federal govern­ment should use its powers to real­ize the human­ity, equal­ity, and dignity of all. Black and Brown people deserve more. And anything less threatens to make our justice system anything but.