What ever happened to mass incarceration reform?

Though it feels like eons ago, the summer of 2016 promised to be one of bipartisan efforts to tackle the issue of mass incarceration.  Unfortunately, the summer for criminal justice reform dissolved without fanfare into the craziness of the 2016 election.  And, with the confirmation of Attorney General Jeff Sessions, who ushered in a 1980’s throw-back Department of Justice directive on low-level drug offenses, it remains unclear whether there might be a return to a bipartisan approach to criminal justice reform in the 115th Congress.  

Nonetheless, a promising alternative strategy to reverse mass incarceration seems to have emerged. In the lead once again is Sen. Cory Booker of New Jersey, joined by former prosecutor, Sen. Richard Blumenthal of Connecticut, both Democrats.  In the Reverse Mass Incarceration Act of 2017 (RMIA), the senators apply the lessons learned from the failed approaches of the 1990’s to lower crime and lower incarceration. The bill was modeled off of a Brennan Center proposal of the same name.

{mosads}When the Violent Crime Control and Law Enforcement Act of 1994 (1994 Crime Bill) passed, a prescient few predicted the extreme escalation of incarceration in the nation’s prisons, a trend that likely began in the two decades before the 1994 law.  

According to a recent Brennan Center analysis, even as crime declined by 10 percent from 1991-1994, prison populations exploded pre-1994 by 400 percent and doubled in the decade following the law’s passage.  With today’s well-documented growth in state and federal prison population, most people, including President Bill Clinton, accept that the 1994 incentives he championed were a mistake, rewarding states to build and fill more prisons.  

Indeed, in the more than two decades since the passage of the 1994 Crime Bill, the evidence is overwhelming that resulting incarceration rates are harming families, communities, and federal and state budgets.  Despite having only 5 percent of the world’s population, the United States has 25 percent of the world’s incarcerated at an annual cost of roughly $80 billion. This is not acceptable.

A disproportionate number of people of color fill federal and state prisons.  According to The Sentencing Project, more women than ever are behind bars and 60 percent of them have children at home.  In the last three decades incarceration rates for women have outpaced men by 50 percent, a 700 percent rate of growth since 1980.  And, while incarceration rates for African-American women have declined since 2000, twice as many African-American women as white women are incarcerated. Incarceration rates for white and Hispanic women have continued to increase over the same period, by 56 percent and 7 percent, respectively.   

In recognizing the creativity and diversity of states, as well as the overwhelming number of persons incarcerated under their jurisdiction, the RMIA provides incentivizes to states to reduce their incarceration rates. Rather than mandate states to reduce incarceration, the Reverse Mass Incarceration Act of 2017 would instead enable states that achieve a 7 percent reduction in incarceration rates over 3 years without a significant increase in crime to access a $20 billion grant program.

Unlike the so-called “tough on crime” approaches of the 1990’s, RMIA would support evidence-based programs that reduce incarceration and crime. Perhaps one of the chief benefits of this approach is behavior changes that occur throughout the system, from the prosecutors and sentencing judges, to the social service providers, to policy makers. These positive incentives can have nationwide impact to reduce incarcerated populations, providing the moral, social and fiscal incentives to help states reverse incarceration.

States are encouraged to be creative and to find solutions that best fit their state. Eligible states might support ideas like drug treatment, education, job training, diversion or re-entry programs. Some states are engaging in these strategies already, and they and others should be encouraged to do more. The good news is that within the last decade, 27 states have decreased both crime and imprisonment, so there is a path forward.  

According to a 2016 Brennan Center report, 39 percent of the 1.46 million persons incarcerated in state and federal prisons could be reduced by nearly 600,000 with shorter sentences or alternatives to prison. The cost savings would be tremendous — an estimated $20 billion a year.

In 2007, Texas got smart and increased the availability of drug addiction and mental health treatment for non-violent drug offenders. Then, in 2011, the Texas legislature passed legislation to allow drug offenders to reduce their sentences by completing educational programs. The result was stark — 14 percent reduction in crime, 8 percent reduction in incarceration, saving $444 million in corrections expenses and $20 million direct savings for taxpayers.  Recent reports indicate that Texas is on pace to close 8 prisons by year’s end.

By enacting new laws to eliminate some mandatory sentences for low-level property crimes and improving the parole and probation release process, South Carolina saw a 38 percent drop in violent crime and an 18 percent in their prison population, saving the state $18 million over four years.  

While Congress may be deeply engaged in the Russia election-meddling investigation, this may be just the time to revive criminal justice reform. The Reverse Mass Incarceration Act of 2017 is a simple and straightforward approach to federal lawmaking, incentivizing good behavior — helping states to do the right thing to curb incarceration and keep communities safe. It’s an approach that’s ripe for bipartisanship.

Donna F. Edwards is a former member of Congress from Maryland and Senior Fellow at the NYU School of Law Brennan Center for Justice.

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