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Policy Solution

A Federal Agenda to Reduce Mass Incarceration

Key Fact: Today, $8.4 billion in federal criminal justice grants flow from Washington annually, largely on autopilot, encouraging more arrests, prosecution, and incarceration.

Published: May 15, 2017

Bipar­tisan momentum for crim­inal justice reform has been build­ing for years, and a new pro-active agenda by the Bren­nan Center offers solu­tions that would keep crime rates low, provide support for law enforce­ment, and reduce the federal prison popu­la­tion. 

Read the Exec­ut­ive Summary


AnchorExec­ut­ive Summary

This report sets forth an affirm­at­ive agenda to end mass incar­cer­a­tion and reform our crim­inal justice system. Bipar­tisan momentum has been grow­ing for years. We must keep it going.

The United States has less than five percent of the world’s popu­la­tion, but nearly one quarter of its pris­on­ers. Mass incar­cer­a­tion contrib­utes signi­fic­antly to the Amer­ican poverty rate. Conser­vat­ives, progress­ives, and law enforce­ment lead­ers now agree that the coun­try must reduce its prison popu­la­tion, and that it can do so without jeop­ard­iz­ing public safety. In the last decade, 27 states have led the way, cutting crime and impris­on­ment together.

Of course, because 87 percent of pris­on­ers are housed in state facil­it­ies, changes to state and local law are neces­sary. But history proves that decisions made in Wash­ing­ton affect the whole crim­inal justice system, for better or worse. Federal fund­ing drives state policy, and helped create our current crisis of mass incar­cer­a­tion. And the federal govern­ment sets the national tone, which is crit­ical to increas­ing public support and national momentum for change. Without a strong national move­ment, the bold reforms needed at the state and local level cannot emerge.

In a divis­ive polit­ical envir­on­ment, it is tempt­ing to assume that progress toward federal reform is impossible. But even today, the need to confront prob­lems in the way we arrest, prosec­ute, and incar­cer­ate remains a rare point of trans-partisan agree­ment. Repub­lican and Demo­cratic Congres­sional lead­ers alike acknow­ledge that unne­ces­sar­ily long federal prison sentences continue to impede rehab­il­it­a­tion, driv­ing recidiv­ism and economic inequal­ity. And accord­ing to a new poll from the Charles Koch Insti­tute, 81 percent of Trump voters believe crim­inal justice reform is a “very import­ant” or “some­what import­ant” issue. More than half know someone who is in or has been to prison.

Even with broad public support, address­ing the prob­lems in our crim­inal justice system will not be easy. For the last eight years, the White House and Justice Depart­ment suppor­ted this import­ant work. But Attor­ney General Jeff Sessions appears opposed to efforts to reduce unne­ces­sar­ily harsh char­ging and senten­cing. While Pres­id­ent Donald Trump’s own views remain unclear, key advisers such as Vice Pres­id­ent Mike Pence, senior adviser Jared Kush­ner, and Gov. Chris Christie all support efforts to reduce impris­on­ment.

To help bridge that divide, this report offers solu­tions that would keep crime rates low and show support for law enforce­ment, while redu­cing mass incar­cer­a­tion. The strongest of these policies require congres­sional action. Others could be imple­men­ted by a sympath­etic admin­is­tra­tion. Taken together, these policies form the core of a national agenda for federal lead­ers to make our coun­try safer and fairer. They also serve as models for state and local action.

Legis­la­tion

  • End the Federal Subsid­iz­a­tion of Mass Incar­cer­a­tion: Federal grants help shape crim­inal justice policy at the state and local levels. For decades, these grants have subsid­ized the growth of incar­cer­a­tion. For example, the 1994 Crime Bill offered states $9 billion in fund­ing to build more pris­ons. Today, $8.4 billion in federal crim­inal justice grants flow from Wash­ing­ton annu­ally, largely on auto­pi­lot, encour­aging more arrests, prosec­u­tion, and incar­cer­a­tion. To bring account­ab­il­ity to this flow, Congress can pass a “Reverse Mass Incar­cer­a­tion Act” that would dedic­ate $20 billion over 10 years to states that reduce both crime and incar­cer­a­tion. This would spur state and local action across the coun­try.
  • End Federal Incar­cer­a­tion for Lower-Level Crimes: Our crim­inal justice system relies heav­ily on prison, using it as the default punish­ment for most crimes. But research has shown that unne­ces­sary incar­cer­a­tion is costly and inef­fect­ive at prevent­ing recidiv­ism and promot­ing rehab­il­it­a­tion. Early estim­ates show that approx­im­ately 49 percent of the federal prison popu­la­tion is likely incar­cer­ated without an adequate public safety reason. Congress can pass legis­la­tion to elim­in­ate prison terms for lower-level offenses and shorten prison terms for other crimes. In doing so, it can safely, signi­fic­antly cut the prison popu­la­tion, saving around $28 billion over 10 years, enough to fund a Reverse Mass Incar­cer­a­tion Act.
  • Insti­tute a Police Corps Program to Modern­ize Law Enforce­ment: The coun­try faces a national crisis in poli­cing. Some believe that overly-zeal­ous enforce­ment has reached a break­ing point. Others believe police are not adequately funded or suppor­ted. All can agree that some­thing needs to change. To advance a twenty-first century police force, Congress can alloc­ate $40 billion over five years to recruit new officers and train them in modern poli­cing tactics focused on crime preven­tion, as well as tech­niques to reduce unne­ces­sary arrests, uses of force, and incar­cer­a­tion.
  • Enact Senten­cing Reform: While lawmakers should aspire to the bold changes to federal senten­cing described above, Congress can start with a milder first step: rein­tro­du­cing and passing the Senten­cing Reform and Correc­tions Act of 2015. This proposal would cautiously reduce prison sentences for some nonvi­ol­ent crimes. A bipar­tisan group of senat­ors, led by Chuck Grass­ley (R-Iowa) and Dick Durbin (D-Ill.), have already commit­ted to rein­tro­du­cing the bill this session. The White House has expressed cautious support.

Exec­ut­ive Action

  • Redir­ect Federal Grants Away from Mass Incar­cer­a­tion: Since many of the harm­ful incent­ives in federal crim­inal justice grants are writ­ten into law, truly ending the federal subsid­iz­a­tion of mass incar­cer­a­tion will take congres­sional action, as laid out above. But the Justice Depart­ment can take the first step, by chan­ging perform­ance meas­ures for grants to reward states that use federal funds to reduce both crime and incar­cer­a­tion.
  • Insti­tute New Goals for Federal Prosec­utors: The Justice Depart­ment should ensure that scarce federal crim­inal justice resources are focused on the most seri­ous crimes, and eval­u­ate U.S. Attor­neys nation­ally based on their abil­ity to decrease both crime and incar­cer­a­tion.
  • Commute Sentences to Retro­act­ively Apply the Fair Senten­cing Act: In 2010, Repub­lic­ans and Demo­crats joined together to pass legis­la­tion to reduce the dispar­ity between crack and powder cocaine crimes as the drugs are scien­tific­ally equi­val­ent. But more than 4,000 federal pris­on­ers remain incar­cer­ated under outdated drug laws. Future pres­id­ents can bring justice to these pris­on­ers by identi­fy­ing clem­ency peti­tions meet­ing certain criteria, fast-track­ing them for review, and grant­ing clem­ency.

 

A Federal Agenda to Reduce Mass Incar­cer­a­tion by The Bren­nan Center for Justice