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How Washington Can Help End Mass Incarceration

Washington and the next president can and should have a strong role to improve criminal justice policy across the nation.

March 22, 2016

Cross-posted at The Hill

As the presidential campaign continues, White House hopefuls Hillary Clinton and Sen. Bernie Sanders (I-Vt.) have both promised to end mass incarceration in America. Yet several critics argue Washington has almost no power to reduce our nation’s imprisonment rate.

Earlier this month, for example, Fordham Law Professor John Pfaff said the president can do “very little” on criminal justice, and the federal government’s past attempts to create change “hasn’t worked that much.” This echoes similar stories arguing ending mass incarceration “is not a federal issue.”

But these critics are wrong. Federal policy matters. How can that be when 86 percent of inmates are in state prisons? The key is in Washington’s unique power of the purse. The federal government has a track record of using funding incentives to shape state and local policy. It did it in the 1990s, which helped put more people in prison. Now it can do so again to help rein in mass incarceration.

In 1984, President Ronald Reagan signed a law requiring states to raise the drinking age to 21. Those that refused faced a 10 percent cut to federal highway funding. As a result, all states complied. Perhaps the most prominent of the federal government’s tinkering with state policies is the Violent Crime Control and Law Enforcement Act of 1994. The much-discussed measure, known as the 1994 Crime Bill, remains the largest and most sweeping crime legislation ever passed. It banned 19 types of semiautomatic assault weapons, authorized the death penalty for dozens of federal crimes, and created a federal “three strikes and you’re out” provision.

Perhaps most significantly, the bill authorized $12.5 billion for states that adopted “truth-in-sentencing” laws, which stipulate an offender must serve at least 85 percent of their lengthy sentences. After the bill was enacted, 24 states passed such laws. As one example, New York received more than $216 million, and by 2000, the state had added more than 12,000 prison beds, incarcerating 28 percent more of its citizens than a decade before. The law was a turning point for America’s philosophy and practices of punishment.

The Edward Byrne Memorial Justice Assistance Grant Program (JAG) is another example of the federal government’s role in increasing arrests and incarceration. The program provides around $400 million annually to more than 1,000 cities across all 50 states. It is the largest single source of federal criminal justice funds for states and localities.

For years, JAG funding helped incentivize more arrests, prosecutions, and imprisonment in states and cities. When handing out the money, the federal government asked state and local police departments to report numbers of arrests but not changes in crime rates. It tallied the amount of drugs seized, but not whether offenders were sent to drug treatment. If a state wanted money, it had to produce numbers.

But now critics argue the federal government’s hands are tied when it comes to criminal justice policy. Pfaff, for example, acknowledged the power of Washington to “offer [states] cash or threaten to withhold cash they’re already giving them to try to induce them to take certain actions,” but said “states regularly ignore these incentives.”

This critique ignores the facts and history. For the last three decades, the federal government has sent powerful signals to states that it would be highly lucrative for them to enact tougher criminal laws. Likewise, reversing those incentives will help states reduce mass incarceration.

Congress can pass a modern day crime bill that directs federal funds to states that reduce their prison populations, while keeping down crime. (The Brennan Center has proposed such a bill.) Today, $3.8 billion in federal grants run largely on autopilot, on the outdated notion that increasing prison populations brings us wins against crime. The next president can champion such an Act. Even without Congress, the next president has executive authority to redirect much of this money, helping create a major nationwide shift.  

To be sure, states must change their laws to address bloated prisons. Federal action is not the sole solution. States should follow the examples of Georgia, New Jersey, and Texas, which all reduced their prison populations while seeing reductions in crime.

But Washington and the next president can and should have a strong role to improve criminal justice policy across the nation. It would be heartbreaking to the 2.3 million people behind bars if the naysayers convinced our national leaders that their efforts would be in vain.

Chettiar is the director of the Brennan Center’s Justice Program, and Eisen is a senior counsel in the program.