By Brandon L. Garrett
The United States incarcerates its citizens at a higher rate than any other country in the world, but over the past few years, there’s finally been some progress. Rates of incarceration have finally begun to decline, mostly due to sweeping changes made in progressive states like California, New Jersey, and New York. According to Pew Charitable Trusts, adult incarceration has declined 13 percent since its peak in 2007, from 1 in 100 to 1 in 115. Of course, this progress is threatened by Donald Trump and his administration: The president has not only promised to reinstate a long-outdated approach to criminal justice, he’s also made Jeff Sessions, who holds similarly antiquated views, his attorney general. The two of them are preparing a task force to study violent crime— despite the fact that it’s already at historic lows—and are aiming to focus resources on drug cartels and drug use. They seem determined to return the federal government to the tough-on-crime era of the 1980s and 1990s, the height of the war on drugs.
But criminal justice reform is still marching forward—and the momentum is largely coming from conservatives, working in their state governments. The conservative case for reform is obvious: Spending billions of dollars on prison expansion and lengthy sentences is outdated and ineffective. And the state level is where reform will be the most effective—the majority of people are incarcerated in state systems. Reducing that number helps states balance their budgets, said Lenore Anderson, president of Alliance for Safety and Justice, a criminal justice reform organization that centers on crime victims. “Continued budget problems mean that regardless of who’s in the White House, [criminal justice] is going to continue to be a ripe issue for reform.”
Derek Cohen, deputy director of Right on Crime, a conservative group focused on criminal justice reform, echoed this sentiment: “At the state level, absolutely nothing has changed. If anything, [reform has] picked up steam a little.”
At the statehouse in Austin, Texas, Cohen and his conservative coalition, led by the Texas Public Policy Foundation, is advocating for measures that will reduce incarceration rates. One bill they’d like to pass would add more procedural safeguards to the grand jury process. Another would reclassify certain drug felonies as Class A misdemeanors—meaning some low-level drug offenders would receive probation rather than jail time. A third measure would raise the age of criminal responsibility from 17 to 18, which would allow 17-year-olds to serve their time in juvenile facilities rather than with adults.
Texas is one of several red states, along with Georgia, Kentucky, Mississippi, Oklahoma, and South Carolina, that has adopted a range of progressive initiatives in the past decade. Texas’ reputation as a gung-ho death penalty state may make its reform efforts a surprise, but in the past decade, fiscal conservatives joined forces with civil libertarians and reduced the state’s incarceration rate by 14 percent. Part of that was thanks to forensic science and eyewitness identifications reforms that ended up putting fewer people behind bars. And rather than spend a half-billion dollars on building three new prisons, Texas instead invested in rehabilitation and re-entry, which has allowed it to close three prisons and saved billions. Crime has fallen to the lowest levels seen in Texas since 1968.
More than 30 other states have passed justice reinvestment legislation similar to Texas’. These laws divert low-level offenders from prison, use evidence-based risk methods to determine who really needs to be behind bars, reduce penalties for crimes, and aim to make it easier to get work after leaving prison. The cost savings from these reforms is then invested in rehabilitation and mental health and drug treatment, reducing crime even further.
In Virginia, legislation was introduced to reduce driver’s license suspensions and raise the felony larceny amount from $200, currently the lowest amount in the country, to $500. New York is considering a set of reforms, including to bail and pretrial detention, recording interrogations, and improved eyewitness identification procedures. Michigan approved parole and probation reforms.
In Illinois, Gov. Bruce Rauner recently signed the Neighborhood Safety Act, which will expand access to trauma recovery services for crime victims and incentivize participation in rehabilitative and job training programs for incarcerated people. The law also removes a mandatory prison sentence for Class 3 and 4 felonies, and gives the judge, not the prosecutor, discretion to add prison time. It’s an impressive point of bipartisan cohesion in a state that hasn’t been able to successfully enact a permanent budget in more than 2½ years. Rep. Jehan Gordon-Booth, the Neighborhood Safety Act’s chief sponsor, said that the bill is “the most expansive criminal justice reform bill we’ve ever passed in Illinois history, and we could not have passed it or had the level of bipartisanship we did without the support of law enforcement.”
One key to the bill’s success was input from survivors of violent crime. One such group, the Alliance for Safety and Justice, is working to dispel the myth that all crime survivors support a “lock ’em up and throw away the key” mentality. They’ve been surveying survivors across the country, and the results have shown that survivors across demographics are more interested in rehabilitation and treatment than prisons and jails—one survey in Illinois found 7 in 10 victims prefer this approach.
Similar legislation is being considered in Ohio: Senate Bill 66 would remove the automatic one-year prison sentence for nonviolent offenders who violate parole and would allow people convicted of certain fourth- and fifth-degree felonies to seal their records. It would also rewrite the state’s criminal sentencing law to include rehabilitation as a stated goal. A second measure in the state’s proposed budget, House Bill 49, would allocate more than $100 million toward rehabilitation, treatment, and training programs for nonviolent, low-level offenders. The bill is supported by both Right on Crime and the Alliance for Safety and Justice.
But even with all this progress, a 10 percent to 20 percent drop in people going in won’t change the fact that our prisons are still vastly overstuffed—incarceration has risen 500 percent since the 1970s. Currently, more than half of the state prisoners in the country are serving time for violent crimes. Reducing prison populations to a manageable size must also include a closer look at how we legally define, prosecute, and punish violent crimes.
Assessing violent crime has been the third rail for criminal reform efforts, but in Louisiana, some reform leaders seem ready to try. A task force on criminal justice reform, mandated by Gov. John Bel Edwards, a Democrat, released a series of recommendations this month, which include providing earlier parole-eligibility for some imprisoned for violent offenses and diverting some low-level offenders—for example, those accused of certain drug or property crimes—from incarceration. The package of reforms also emphasizes reinvesting money saved on corrections into treatment, prevention, and rehabilitation. The reforms have the support of many in law enforcement, including former New Orleans police chief Ronal Serpas, the state’s corrections secretary Jimmy Leblanc, and Gene Mills, president of the Louisiana Family Forum, a conservative Christian organization.
There’s still resistance to some of these reforms: Bo Duhé of St. Martin, St. Mary, and Iberia parishes, voted against every recommendation regarding violent offenders. And in Oklahoma, where state voters overwhelmingly chose to reduce mandatory minimums and change simple drug possession to a misdemeanor, some state lawmakers are thinking of ways to undo those reforms. They’re introducing legislation to reclassify some drug offenses as felonies and bring back some harsh mandatory minimums for drug offenses. In Wyoming, the president of the state Senate just blocked criminal justice reform legislation that would have saved tens of millions of dollars per year because of objections from prosecutors, though prison officials supported the law. And a series of states have proposed tougher new penalties for heroin-related offenses.
With Trump in charge, it’s possible that this growing minority will feel more empowered to push back against the progress that was starting to seem inevitable. The states that go back to this approach will likely see higher incarceration rates, and the costs—both human and fiscal—will fall on the public.
But most lawmakers (not to mention the public) seem to have learned that these “tough” approaches failed in every way. We wasted billions to become the world’s leading incarceration nation. Such policies are simply an expensive and self-defeating type of posturing by politicians who value their own self-image over the well-being of the constituents. We already know what type of leader Trump is—let’s hope the state resistance is enough to fight him.