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Expert Brief

Criminal Justice Reform at the State Level

Most incarcerated people in America are held in state and county facilities. That is why state reform is crucial.

Published: January 2, 2020

The crim­inal justice system in Amer­ica is complex, made up of county courts and jails, state courts and pris­ons, and a federal justice system with its own courts, judges, and pris­ons. Redu­cing mass incar­cer­a­tion means work­ing across this tangled web.

Despite the atten­tion that the federal system gets, most Amer­ic­ans encounter the justice system at the county and state level. In fact, most incar­cer­ated people in Amer­ica are held in state and county facil­it­ies. That is why state reform efforts are so import­ant.

The stag­ger­ing number of people behind bars in Amer­ica

Today, some 2.2 million people are incar­cer­ated in county jails and state and federal pris­ons, giving the United States the largest prison popu­la­tion in the world.

Many factors build­ing over decades got us here. Since the late 1960s, the govern­ment has spent billions of dollars fund­ing crime preven­tion in the United States that was focused more on poli­cing and punish­ment than on address­ing the root causes of crime. States also enacted a series of laws that dramat­ic­ally lengthened sentences for many crimes and created entirely new ones. In partic­u­lar, mandat­ory minimum senten­cing and truth-in-senten­cing provi­sions required indi­vidu­als to serve longer peri­ods of time behind bars, contrib­ut­ing to the explo­sion in the nation’s prison popu­la­tion.

The crim­inal justice system encom­passes more than 1,700 state pris­ons, 100 federal pris­ons, 1,700 juven­ile correc­tional facil­it­ies, 3,100 local jails, and 80 jails on Native Amer­ican reser­va­tions, as well as other facil­it­ies like milit­ary pris­ons.

These figures under­score an import­ant point: it is impossible to end mass incar­cer­a­tion by focus­ing on just one aspect of this sprawl­ing system.

Harsher state crim­inal laws, followed by the prison-build­ing boom

State laws contrib­uted to mass incar­cer­a­tion, and those laws must change to end it. Federal crimes cover a relat­ively narrow range of conduct, such as drug offenses. State laws, on the other hand, cover crimes that are more recog­niz­able to the aver­age citizen, like drunk driv­ing, shoplift­ing, and homicide. It’s no surprise, then, that state courts handle many more cases than federal courts.

As crime rose in the 1970s and 1980s, lawmakers at the state and federal level enacted more draconian laws that ensnared more people in the crim­inal justice system. In 1973, legis­lat­ors in New York passed the so-called Rock­e­feller drug laws, which imposed mandat­ory minimum 15-year terms for posses­sion of marijuana and other drugs. Michigan and other states quickly enacted similar laws. Continu­ing this trend, Wash­ing­ton State in 1984 adop­ted the nation’s first “truth-in-senten­cing” law, which required people to serve at least 85 percent of their sentences before becom­ing eligible for parole. In a domino effect across the coun­try, 27 other states imposed similar require­ments.

Although viol­ent crime in Amer­ica peaked in 1991, and crime today remains at historic lows, our nation’s punit­ive responses to crime resul­ted in a prison build­ing spree through­out the 1990s. Accord­ing to the Congres­sional Research Service, in the mid-1990s, at the peak of the prison construc­tion boom, a new prison opened every 15 days on aver­age.

Prosec­utors and the vanish­ing crim­inal trial

As the United States contin­ued to build pris­ons, another trend emerged: the gradual disap­pear­ance of the jury trial and its replace­ment with plea bargain­ing, to the detri­ment of defend­ants’ rights.

About 94 percent of crim­inal cases at the state level are resolved through plea bargain­ing. This trend increases the already vast discre­tion wiel­ded by local prosec­utors, who handle more than 95 percent of Amer­ica’s crim­inal cases.

Prosec­utors enjoy unique author­ity to make decisions about what to charge someone with, making deals with witnesses, and nego­ti­at­ing pleas — and they frequently dictate sentences or senten­cing ranges. As a result, they have gained greater lever­age to extract guilty pleas from defend­ants and reduce the number of cases that go to trial, often by using the threat of more seri­ous charges with mandat­ory minimum sentences or other harsh penal­ties.

In fact, fewer than 1 in 40 felony cases results in a trial, accord­ing to data from 9 states that have published their records since the 1970s, when the ratio was closer to 1 in 12. As New York Univer­sity Law and Soci­ology Professor David Garland recently wrote, “The move away from rehab­il­it­a­tion, the spread of mandat­ory penal­ties, the creation of new categor­ies of crimes, and the prior­ity given to public safety over offend­ers’ rights — these all increased prosec­utors’ lever­age and incentiv­ized them to use it aggress­ively.”

State prosec­utors often seek higher sentences against people who exer­cise their right to trial — some­thing known as “the trial penalty” or the “trial tax.” Histor­ic­ally, bring­ing the maximum possible charges has persuaded defend­ants to plead guilty instead of going to trial. This prac­tice emerged to prior­it­ize resources when courts across the coun­try were over­burdened lacked the resources to take every case to trial. Yet, as the late legal scholar William Stuntz noted in The Collapse of Amer­ican Crim­inal Justice, “The law of guilty pleas made such pleas easy for prosec­utors to extract, which allowed the justice system to increase dramat­ic­ally the ratio of convicted felons to prosec­utors and defense lawyers.” As Stuntz also explained, “Guilty pleas and the quick bargains that precede them have become the system’s primary means of judging crim­inal defend­ants’ guilt or inno­cence.”

County jail systems

Many of those incar­cer­ated have yet to even be convicted of a crime. Accord­ing to 2017 figures from the Justice Depart­ment, about 482,000 people in jail were “await­ing court action on a current charge,” and about 260,000 people were convicted of viol­at­ing a law.

Jails are run by local govern­ments, often managed by a sher­iff’s depart­ment, and they oper­ate inde­pend­ently from other jails in the same state. Jail popu­la­tions typic­ally consist of those who are being held on bail or bond pending trial and indi­vidu­als who are serving out short sentences of less than a year.

On any given day, about 612,000 people are behind bars in county jails. But that number does­n’t reflect the roughly 10.6 million instances of people cycling through jails each year. These are not all separ­ate indi­vidu­als, as it includes some people who have been rearres­ted, some­times many times in one single year.

State prison systems

State pris­ons today hold about 1.3 million people, repres­ent­ing the biggest chunk of those who are behind bars in Amer­ica. They typic­ally house people convicted of felon­ies, which in most states are crimes that carry a sentence of one year or more.

Accord­ing to Justice Depart­ment stat­ist­ics, more than half of those in state pris­ons are serving sentences for viol­ent crimes: approx­im­ately 14 percent were serving time in state prison for murder or non-negli­gent manslaughter, and about 13 percent of state pris­on­ers were sentenced for rape or sexual assault. As opposed to the federal popu­la­tion, where nearly half of the prison popu­la­tion is incar­cer­ated for a drug offense, only about 15 percent were convicted of a drug offense.

Minor viol­a­tions

Many state prison admis­sions result from viol­a­tions of proba­tion or parole condi­tions. In fact, in 2017, the states of Wash­ing­ton, Idaho, Vermont, Utah, Maine, New Hamp­shire, and Pennsylvania admit­ted more than half of their pris­on­ers for proba­tion or parole viol­a­tions. Over­all, one-third of state pris­on­ers admit­ted to prison in 2017 entered on a “new commit­ment” on such a viol­a­tion, compared with only 10 percent in the federal system.

These re-incar­cer­a­tions are often for minor viol­a­tions, such as fail­ing a drug test or not complet­ing a drug or other required program. States could make a huge dent in the prison popu­la­tion by passing reforms to ensure people are not sent back to prison for minor viol­a­tions of condi­tions of proba­tion such as not attend­ing a hear­ing.

Needed Reforms

Given the toll that mass incar­cer­a­tion takes at the state and county level, it’s essen­tial that we focus reform efforts there to ensure that states roll back punit­ive laws that send too many people to prison for far too long. We’ve created blue­prints for that work, includ­ing recom­mend­a­tions for senten­cing reform and guidelines for prosec­utors. Another key step would be for Congress to pass the Reverse Mass Incar­cer­a­tion Act.

None of these propos­als offers a silver bullet. But they will do a great deal to improve the lives of count­less Amer­ic­ans as we continue the fight to improve our justice system on multiple fronts.