Skip Navigation
Analysis

A National Agenda to Reduce Mass Incarceration

In her essay for Solutions: American Leaders Speak Out on Criminal Justice, the Brennan Center’s Inimai Chettiar explains that a comprehensive mix of federal, state, and local reforms will be necessary to end mass incarceration—the fundamental civil rights issue of our time.

  • Inimai M. Chettiar
April 28, 2015

Mass incar­cer­a­tion threatens Amer­ican demo­cracy. Hiding in plain sight, it drives economic inequal­ity, racial injustice, and poverty. It will ulti­mately make it harder to compete in the global economy. The United States has 5 percent of the world’s popu­la­tion, yet it has 25 percent of the world’s pris­on­ers. More black men serve time in our correc­tional system today than were held in slavery in 1850. If the prison popu­la­tion were a state, it would be the 36th largest — bigger than Delaware, Vermont, and Wyom­ing combined. Our current penal policies do not work. Mass incar­cer­a­tion is not only unne­ces­sary to keep down crime but also inef­fect­ive at it. Increas­ing incar­cer­a­tion offers rapidly dimin­ish­ing returns. Extens­ive research shows incar­cer­a­tion can increase future crime in some cases, as prison often acts as a “crime school.” 

Mass incar­cer­a­tion has start­ling harm­ful effects. The crim­inal justice system costs taxpay­ers $260 billion a year. Spend­ing grew almost 400 percent over the past 30 years. With so many with­drawn from soci­ety, and return­ing stig­mat­ized as “convicts,” the crim­inal justice system drains over­all economic growth. Best estim­ates suggest it contrib­uted to as much as 20 percent of the U.S. poverty rate. Nearly two-thirds of the 600,000 people who exit pris­ons each year face long-term unem­ploy­ment.3 The social and human costs are even higher.

How did we get here? In response to the crime wave of the 1980s, politi­cians vied to be the most punit­ive — from the 1977 New York City mayoral elec­tion, which improb­ably turned on the issue of the death penalty (over which a mayor has no power), to the 1994 refer­en­dum that passed “three-strikes-and-you’re-out” in Cali­for­nia.

But times have changed. Redu­cing mass incar­cer­a­tion is now one of the few issues on which the left and right are coming to agree. Notably, Repub­lic­ans are lead­ing the charge, while Demo­crats largely play catch up. Lawmakers approach the issue from differ­ent perspect­ives. Their concerns vary from spiral­ing prison costs to intru­sion of big govern­ment, from reli­gious redemp­tion to civil rights concerns.

We now know that we can reduce crime and reduce incar­cer­a­tion. States like Texas, New York, Geor­gia, and Cali­for­nia have changed their laws to do just that.4 For the first time in 40 years, crime and incar­cer­a­tion fell nation­wide.5 The state reforms provide modest fines and short- term relief. Local grass­roots and state advocacy groups were vital to these wins, work­ing tire­lessly to build momentum. Although these reforms are heart­en­ing, they are not the whole­sale systemic changes needed to strike a blow to mass incar­cer­a­tion.

To end mass incar­cer­a­tion, the Amer­ican people and their top lead­ers must also embrace the cause. We need a national conver­sa­tion, led by national voices, off   national solu­tions. The ideas must be big and aim high.

But, since crim­inal justice is largely a province of states and cities, how can there be “national” solu­tions? Each state struggles with the same chal­lenges: too many arrests, prosec­u­tions, pretrial deten­tions, prison sentences, and proba­tion and parole revoc­a­tions. Trends of over­crim­in­al­iz­a­tion, over­in­car­cer­a­tion, and select­ive enforce­ment play out across the coun­try, with some vari­ation. It is a false choice to debate whether we need power­ful, state-focused efforts or a vibrant, national conver­sa­tion. A change in national atti­tude will create the space for bolder state reforms.

This essay offers three national solu­tions, executed through a mix of federal, state, and local reforms. Though a Pres­id­ent or other national leader may not have legal author­ity to enact all of them, they can and should be cham­pi­ons for these changes.

Elim­in­ate incar­cer­a­tion by law for most low-level offenses, except in extraordin­ary circum­stances.

Incar­cer­a­tion is the punish­ment of first resort for too many offenses. Half of state pris­on­ers are behind bars for nonvi­ol­ent crimes; half of federal pris­on­ers are locked up for drug crimes. Roughly one in three new prison admis­sions are for viol­a­tions of parole or proba­tion condi­tions. And 6 out of 10 local jail inmates await trial, though research suggests that as many as 80 percent could be released with little or no threat to public safety. All told, as many as 1.07 million people may be behind bars without a public safety rationale.

Many states increased the discre­tion of judges so they can decide—  or a prosec­utor or parole officer can recom­mend — whether to send a defend­ant to prison or to an altern­at­ive punish­ment. However, prison is still a legally permiss­ible option for low-level crimes.

But we should ask: Why do our laws allow prison — the harshest punish­ment avail­able short of execu­tion — for many of these crimes in the first place? Of course, those who commit crimes should be punished (and some low-level offend­ers may need prison), but gener­ally such severe punish­ment simply is not warran­ted. Ample research demon­strates that altern­at­ives to incar­cer­a­tion in such cases often reduce recidiv­ism and are cheaper than prison time.

We can safely reduce the ranks of the incar­cer­ated in several ways:

  • Change crim­inal laws to remove prison as an option for most low- level, nonvi­ol­ent, or non-seri­ous crimes — except in extraordin­ary circum­stances. More suit­able punish­ments include: proba­tion, community service, elec­tronic monit­or­ing, or psychi­at­ric or medical treat­ment. Th holds espe­cially true for an array of drug crimes. Many argue for drug legal­iz­a­tion. Many argue against it. The same neigh­bor­hoods where drugs wreaked havoc in the 1980s are now devast­ated by mass incar­cer­a­tion. It remains unclear whether drug legal­iz­a­tion would be help­ful or harm­ful to communit­ies of color. However, one fact is clear: It is neither eff e nor cheap to throw a person into prison for years for possess­ing a joint or a bag of cocaine.
     
  • Make treat­ment, not prison, the stand­ard response for people with mental health or addic­tion issues. Half of pris­on­ers suff from mental health or drug addic­tion issues. Th e are more Amer­ic­ans with mental illness in pris­ons than in hospit­als. Prison does not treat health issues; it makes them worse.10 Treat­ment will help people get back on their feet and become product­ive members of soci­ety. (Of course, they should also be super­vised; and incar­cer­a­tion may be needed for some due to the nature of the crime or threat posed.)
     
  • End incar­cer­a­tion as a sanc­tion for tech­nical viol­a­tions of terms of parole and proba­tion. Texas found a way to safely curb these revoc­a­tions. In 2007, the state intro­duced a system of progress­ively stronger punish­ments for viol­a­tions. It inves­ted $241 million in altern­at­ives, includ­ing treat­ment. By 2015, the state cut revoc­a­tions to prison by 40 percent. It also saved $2 billion, closed three pris­ons, and dropped its crime rate to the lowest since 1968.
     
  • Detain defend­ants who await trial based on danger­ous­ness, not wealth. Last year, New Jersey over­hauled its bail process: the state will now release defend­ants charged with low-level crimes under condi­tions that protect public safety, while detain­ing those who pose risks of viol­ence. These defend­ants are required to remain in the custody of a guard­ian, main­tain a job or school enroll­ment, report to a law enforce­ment officer, undergo drug or mental health treat­ment, or submit to elec­tronic monit­or­ing. Other states use social science tools to assess danger and flight risks to make deten­tion decisions.

Reduce mandat­ory sentences set by law.

Senten­cing laws must change. Mandat­ory minimum, “three strikes you’re out,” and “truth-in-senten­cing” regimes set overly-punit­ive sentences for defend­ants. Not only are people now incar­cer­ated at higher rates than ever before, they are incar­cer­ated for longer. Accord­ing to the Pew Center, the aver­age prison stay increased 36 percent since 1990.

Lawmakers enacted these regimes partly out of a concern for uniform­ity and equal treat­ment. If states simply elim­in­ate these laws and return discre­tion entirely to judges, they could create the very prob­lems of inequity some of these laws were inten­ded to fix.

Instead, we should reduce the mandat­ory minimum sentences set by law, and reduce the maximum sentences ranges set by codes. Sentence lengths are often wildly dispro­por­tion­ate to the crimes commit­ted. And research shows that longer sentences, beyond a certain point, do not decrease recidiv­ism.15

Create finan­cial incent­ives to steer toward curb­ing crime and redu­cing mass incar­cer­a­tion.

A web of perverse finan­cial incent­ives drives mass incar­cer­a­tion. For example, police depart­ments often report their “success” by tally­ing the number of arrests and drug seizures. Prosec­utors are often hailed when they increase the number of convic­tions and prison sentences. These counts are repor­ted as part of the budget process. And pris­ons — public and private — get more funds when their popu­la­tions swell.

Instead, a new way forward, termed “Success-Oriented Fund­ing,” prescribes that govern­ment should fund what works. Govern­ment should closely tie the hundreds of billions of dollars spent on crim­inal justice to the twin goals of redu­cing crime and incar­cer­a­tion. Harness­ing the power of incent­ives, this approach can be imple­men­ted at the federal, state, and local levels.

The federal govern­ment has been one of the largest instig­at­ors of perverse incent­ives. For example, the 1994 Crime Bill included $9 billion to encour­age states to drastic­ally limit parole eligib­il­ity. Unsur­pris­ingly,

20 states promptly enacted such laws, yield­ing a dramatic rise in incar­cer­a­tion.Today, the federal govern­ment contin­ues to subsid­ize state and local crim­inal justice costs to the tune of $3.8 billion annu­ally. One basic, yet effect­ive, step: The federal govern­ment should provide funds to states that cut both crime and impris­on­ment. Cali­for­nia, Texas, and other states succeeded by chan­ging finan­cial incent­ives. They awar­ded addi­tional funds to local proba­tion depart­ments that reduced the number of people revoked to prison. In its first year alone, Cali­for­nia reduced revoc­a­tions to prison by 23 percent, saving the state nearly $90 million.20 In one year, Texas reduced the number of people revoked to prison by 12 percent.21 In both states, crime contin­ued to drop.

A federal program to reward states that reduce crime and incar­cer­a­tion would spur vital change. States should also imple­ment similar finan­cial incent­ives for budgets to police, prosec­utors, jails, pris­ons, and parole and proba­tion offices. Success-Oriented Fund­ing steers decision making toward broad goals, while allow­ing local offi­cials the flex­ib­il­ity to decide how to achieve these outcomes.

What polit­ical strategy can achieve the change needed? A strategy that firmly puts mass incar­cer­a­tion at the fore­front of a national polit­ical conver­sa­tion. One in which the Pres­id­ent, U.S. Senat­ors, governors, mayors, police chiefs, civil rights lead­ers, and busi­ness heads call for change. One that puts forward big solu­tions that can also secure polit­ical support. As Abra­ham Lincoln said of the debate over slavery: “Public senti­ment is everything. With public senti­ment, noth­ing can fail. Without it, noth­ing can succeed.”

Mass incar­cer­a­tion — the funda­mental civil rights issue of our time — will only end when there is a collect­ive Amer­ican will do so. The chal­lenge at hand is to find bold, prac­tical ways to cut the prison popu­la­tion while keep­ing the public safe. Three ideas to start: elim­in­ate incar­cer­a­tion for low-level offenses, except in excep­tional circum­stances; reduce mandat­ory sentences set by law; and create finan­cial incent­ives to steer toward redu­cing crime and incar­cer­a­tion.

More broadly, this book provides an array of addi­tional solu­tions from our nation’s lead­ing bipar­tisan public figures and crim­inal justice experts to reduce mass incar­cer­a­tion. It aims to ignite a conver­sa­tion that national lead­ers will join, support, and encour­age. Now is the moment to push forward to revital­ize our justice system and our demo­cracy.

Click here to read the entire book, Solu­tions: Amer­ican Lead­ers Speak Out On Crim­inal Justice.