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Analysis

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.