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Policy Solution

Criminal Justice: An Election Agenda for Candidates, Activists, and Legislators

Summary: Americans want to see a smarter and fairer justice system that learns from mistakes of the past. This platform of progress is how we get there.

Published: March 22, 2018

Amer­ic­ans want to see a smarter and fairer justice system that learns from mistakes of the past, and veers from the destruct­ive approach taken by the pres­id­ent and his team. This plat­form of progress is how we get there. 

Fore­word by Bren­nan Center Pres­id­ent Michael Wald­man

How can we fix Amer­ican govern­ment? How can we make sure it works for all?

In the wake of the convuls­ive 2016 elec­tion, there may be no more press­ing ques­tion.

Nor will 2016 likely be the last such erup­tion. Amer­ican polit­ics has stag­nated for years, locked in arid debate on old ideas. Polit­ical parties have become increas­ingly tribal. Elec­tions are drenched in money and marked by intense polar­iz­a­tion. Govern­ment dysfunc­tion has created an open­ing for racially divis­ive back­lash polit­ics, while ignor­ing long-range economic, social, and envir­on­mental chal­lenges.

Until we reckon with that public discon­tent, we’ll continue to be entangled in the same battles we’ve been fight­ing for decades.

It is time for fresh think­ing, which is why the Bren­nan Center for Justice is produ­cing Solu­tions 2018, a series of three reports setting out demo­cracy and justice reforms that are inten­ded to help break the grip of destruct­ive polar­iz­a­tion.

This volume sets out propos­als to reform the crim­inal justice system and end mass incar­cer­a­tion. Others will show how we can ensure free and fair elec­tions, curb the role of big money in Amer­ican polit­ics, and protect consti­tu­tional freedoms amid new threats.

We hope these propos­als are useful to candid­ates, office­hold­ers, activ­ists, and citizens. The 2018 elec­tion should be more than a chance to send a message. It should be an oppor­tun­ity to demand a focus on real change.

What counts is not what we are against, but what we are for.

Exec­ut­ive Summary

This report sets forth an affirm­at­ive agenda to end mass incar­cer­a­tion in Amer­ica. The task requires efforts from both federal and state lawmakers.

Today, crim­inal justice reform stands on a knife’s edge. After decades of rising incar­cer­a­tion and ever more obvi­ous consequences, a power­ful bipar­tisan move­ment has emerged. It recog­nizes that harsh prison policies are not needed to keep our coun­try safe.

Now that extraordin­ary bipar­tisan consensus is chal­lenged by the Trump admin­is­tra­tion, through inflam­mat­ory rhet­oric and unwise action. Only an affirm­at­ive move to continue reform can keep the progress going.

The United States has less than five percent of the world’s popu­la­tion, but nearly one quarter of its pris­on­ers. About 2.1 million people are incar­cer­ated in this coun­try, the vast major­ity in state and local facil­it­ies. Mass incar­cer­a­tion contrib­utes signi­fic­antly to the poverty rate. It is inequit­able, placing a dispro­por­tion­ate burden on communit­ies of color. It is wildly expens­ive, in some cases cost­ing more to keep an 18-year-old in prison than it would to send him to Harvard. Our crim­inal justice system costs $270 billion annu­ally, yet does not produce commen­sur­ate public safety bene­fits.

Research conclus­ively shows that high levels of impris­on­ment are simply not neces­sary to protect communit­ies. About four out of every ten pris­on­ers are incar­cer­ated with little public safety justi­fic­a­tion. In fact, 27 states have reduced both impris­on­ment and crime in the last decade. A group of over 200 police chiefs, prosec­utors, and sher­iffs has formed, whose found­ing prin­ciples state: “We do not believe that public safety is served by a return to tactics that are overly punit­ive without strong purpose . . . we cannot incar­cer­ate our way to safety.”

In cities, states, and at the federal level, Repub­lic­ans and Demo­crats have joined this effort. They recog­nize that today’s public safety chal­lenges demand new and innov­at­ive polit­ics rooted in science and based on what works. The opioid epidemic, mass shoot­ings, and cyber-crime all require modern responses that do not repeat mistakes of the past.

Crime is no longer a wedge issue, and voters desire reform. A 2017 poll from the Charles Koch Insti­tute reveals that 81 percent of Trump voters consider crim­inal justice reform import­ant. Another, from Repub­lican poll­ster Robert Bliz­zard, finds that 87 percent of Amer­ic­ans agree that nonvi­ol­ent offend­ers should be sanc­tioned with altern­at­ives to incar­cer­a­tion. And accord­ing to a 2017 ACLU poll, 71 percent of Amer­ic­ans support redu­cing the prison popu­la­tion — includ­ing 50 percent of Trump voters.

But the politi­cian with the loudest mega­phone has chosen a differ­ent, destruct­ive approach. Donald Trump, and his Attor­ney General Jeff Sessions, falsely insist there is a national crime wave, portray­ing a coun­try besieged by crime, drugs, and terror­ism — “Amer­ican carnage,” as he called it in his inaug­ural address.

But, crime in the United States remains at historic lows. While viol­ent crime and murder did increase in 2015 and 2016, new data show crime and viol­ence declin­ing again in 2017. The national murder rate is approx­im­ately half of what it was at its 1991 peak. Those who seek to use fear of crime for elect­oral gain are not just wrong on the stat­ist­ics; they are also wrong on the polit­ics.

Now, to continue the progress that has been made, it is up to candid­ates running for office to boldly advance policy solu­tions backed by facts, not fear. This report offers reforms that would keep crime low, while signi­fic­antly redu­cing incar­cer­a­tion. Most solu­tions can be enacted through federal or state legis­la­tion. While most of the prison popu­la­tion is under control of state offi­cials, federal policy matters too. The federal govern­ment’s prison popu­la­tion is larger than that of any state. Further, Wash­ing­ton defines the national polit­ical conver­sa­tion on crim­inal justice reform. And although states vary some­what in their approach to crim­inal justice, they struggle with similar chal­lenges. The state solu­tions in this report are broadly writ­ten as “models” that can be adap­ted.

Steps to take include:

  • Elim­in­at­ing Finan­cial Incent­ives for Incar­cer­a­tion
  • Enact­ing Senten­cing Reform
  • Passing Sens­ible Marijuana Reform
  • Improv­ing Law Enforce­ment
  • Respond­ing to the Opioid Crisis
  • Redu­cing Female Incar­cer­a­tion