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New Report: 39 Percent of Prisoners Are Unnecessarily Behind Bars

This new analysis provides a blueprint for how the country can drastically cut its prison population while still keeping crime rates near historic lows.

December 9, 2016

Ground­break­ing Analysis Proposes New Evid­ence-Based Sentences that Prior­it­ize Public Safety

Nearly 40 percent of the U.S. prison popu­la­tion — 576,000 people — are behind bars with no compel­ling public safety reason, accord­ing to a new report from the Bren­nan Center for Justice at NYU School of Law. The first-of-its kind analysis provides a blue­print for how the coun­try can drastic­ally cut its prison popu­la­tion while still keep­ing crime rates near historic lows.

Among the report’s key find­ings:

  • 25 percent of the coun­try’s pris­on­ers — 364,000 inmates who are nearly all non-viol­ent, lower-level offend­ers — would be better served by altern­at­ives to incar­cer­a­tion such as treat­ment, community service, or proba­tion.
  • Another 14 percent (212,000 pris­on­ers) have served suffi­ciently long sentences and could be released within the year with little to no risk to public safety.
  • If these pris­on­ers were released, it could save nearly $20 billion annu­ally. The savings could employ 270,000 new police officers, 360,000 proba­tion officers, or 327,000 school teach­ers.

The report is the product of three years of research conduc­ted by Dr. James Austin, pres­id­ent of the JFA Insti­tute and one of the nation’s lead­ing crim­in­o­lo­gists who has four decades of exper­i­ence work­ing with prison offi­cials to reduce their incar­cer­ated popu­la­tions, Bren­nan Center Senior Coun­sel Lauren-Brooke Eisen, and a team of stat­ist­ical research­ers. The authors conduc­ted an in-depth exam­in­a­tion of the federal and state crim­inal codes, as well as the convic­tions and sentences of the nation­wide prison popu­la­tion (1.46 million pris­on­ers serving time for 370 differ­ent crime categor­ies) to estim­ate how many people are currently incar­cer­ated without a suffi­cient public safety rationale.

“Mass incar­cer­a­tion has huge social, racial, and economic costs,” said Inimai Chet­tiar, director of the Bren­nan Center’s Justice Program. “As a result, there is intriguing, bipar­tisan consensus that we need to fix our broken crim­inal justice system. This is the first detailed, gran­u­lar look at precisely how we can achieve this by signi­fic­antly and safely cutting the prison popu­la­tion.”

“Too many people end up in prison in the first place, when altern­at­ives like treat­ment would work much better. Still others are locked up for too long and research shows those sentences are inef­fect­ive,” added Lauren-Brooke Eisen. “When what you’re doing isn’t work­ing, it’s time to rethink it. We hope our recom­mend­a­tions will jump-start a conver­sa­tion.”

Amer­ica has less than 5 percent of the world’s popu­la­tion but nearly 25 percent of its pris­on­ers. Respond­ing to rising crime in the 1980s and 90s, legis­lat­ors created this system of mass incar­cer­a­tion by passing laws to dramat­ic­ally increase sentences for many crimes. These meas­ures created vast racial dispar­it­ies in Amer­ica’s pris­ons. But today, crime has plummeted, and research shows mass incar­cer­a­tion had little impact. As the report notes, this system is unsus­tain­ably expens­ive and overly punit­ive in ways that could actu­ally increase crime.

This report seeks to address the prob­lem by determ­in­ing who could be released from prison with little to no risk to public safety. The find­ings are based on several factors — includ­ing seri­ous­ness of the crime, impact on the victim, intent, and risk of recidiv­ism — that aim to protect public safety, create more uniform sentences, reduce dispar­it­ies, and preserve judi­cial discre­tion when needed.

Finally, the study offers a series of recom­mend­a­tions to decrease the total prison popu­la­tion while ensur­ing the pris­on­ers who have commit­ted the most seri­ous crimes remain behind bars:

  • Elim­in­ate prison for lower-level crimes, barring excep­tional circum­stances: State legis­latures and Congress should change senten­cing laws to make altern­at­ives to prison the default penalty for certain lower-level crimes. Judges should have the discre­tion to depart from the default altern­at­ive and impose a prison sentence in special cases.
  • Reduce sentence minim­ums and maxim­ums currently on the books to be more propor­tion­ate to crimes commit­ted: The report suggests state and federal legis­lat­ors consider a 25 percent cut as a start­ing point for the six major crimes that make up the bulk of the nation’s current prison popu­la­tion (aggrav­ated assault, murder, nonvi­ol­ent weapons offense, robbery, seri­ous burg­lary, and seri­ous drug traf­fick­ing).

In addi­tion, the report recom­mends that current inmates should be able to peti­tion judges for retro­act­ive applic­a­tion of the two reforms above, on a case-by-case basis, and suggests prosec­utors seek altern­at­ives to incar­cer­a­tion or shorter sentences in line with the recom­mend­a­tions. It also suggests the $200 billion in savings over 10 years could be rein­ves­ted in crime preven­tion tactics and altern­at­ives to incar­cer­a­tion.

“If we do not take steps now, Amer­ic­ans of color will forever be releg­ated to a penal and perman­ent under­class, and mass incar­cer­a­tion will continue to cage the economic growth of our communit­ies,” wrote fore­word author Cornell Brooks, pres­id­ent and CEO of the NAACP. “We have reached a crisis point, and we need solu­tions. This ground­break­ing report from the Bren­nan Center for Justice offers a path­way to reduce our prison popu­la­tion and its tragic racial dispar­it­ies.”