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

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