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.
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.
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.