A substantial number of Democrats and Republicans in Congress realize mass incarceration is a major problem for the United States, but intense political polarization has thwarted even modest reforms to the federal criminal justice system. It hardly helps that the “tough on crime” Republican faction has captured the White House.
Despite this impasse, two Democratic senators are proposing to use federal law to target the key driver of the growth in national prison population: state incarceration rates. On June 28, Sens. Cory Booker of New Jersey and Richard Blumenthal of Connecticut introduced the Reverse Mass Incarceration Act.
The act, which builds on a plan proposed in 2015 by analysts at the Brennan Center for Justice at NYU, would authorize the Department of Justice to award up to $2 billion per year for the next 10 years to states that achieve two goals: cutting prison populations while keeping crime rates low. Specifically, states would be rewarded if they reduced the number of people imprisoned by 7 percent over three years without any noticeable rise in crime — with the grants being directed to “evidence-based programs to reduce crime rates and incarceration.”
What’s not to like? At first blush, the Reverse Mass Incarceration Act seems like a big step forward. After all, state prisons hold nearly 90 percent of the 1.5 million people locked up in US prisons. Therefore, they must be the main targets of reform efforts. And the need for reform is inarguable. The US has 5 percent of the world’s population yet 25 percent of its prisoners.
And the evidence is clear that our current levels of incarceration are not required to keep us safe, and may even lead to more crime in the long run. To the extent that incarceration has reduced crime (as it surely has), it has done so inefficiently and with gratuitous harshness. Spending money on approaches like cognitive behavioral therapy or certain street-level policing interventions, which research has demonstrated work well, would be a far smarter way to go.
But there are problems.
The Booker-Blumenthal bill and the report it draws on are both premised on a misreading of the political history of mass incarceration. Both overstate the role of federal policy in expanding state prison populations, and therefore both overstate the role federal policy might play in reducing those populations.
The bill will also awaken the political opposition of prosecutors and prison guard unions, who have the power to defeat reform — and it provides no carrots to win them over. With that weakness in mind, I propose applying grants linked to reductions in prisoner population to a different target: rural job replacement.
The bill reflects a failed approach that is common in criminal justice reform
Why pick on a bill that likely won’t go anywhere, given the lock-’em-up stance of the Trump administration? Because the misunderstandings it reflects are common in many criminal justice reform efforts today: Reforms generally fail to grapple with the often mind-bogglingly messy way we divide up responsibility in the criminal justice system. In addition to Washington, DC, states wield control over some aspects of the system, cities control other aspects, and counties oversee yet others. That ensure any policy change will create a distinct set of winners and losers.
The Booker-Blumenthal bill models its funding approach on an earlier law that numerous reformers see a chief villain in the rise of mass incarceration, the sprawling Violent Crime Control and Law Enforcement Act of 1994, signed by Bill Clinton. (In fact, the new bill is conceived as nearly a mirror image of that one.) While most of that law’s provisions only altered federal law — expanding the crimes eligible for the death penalty, for instance — there was also a substantial grant program targeting the states.
One program, the Violent Offender Incarceration/Truth in Sentencing program, authorized the DOJ to award up to $10 billion over six years to states that adopted policies aimed at sending more people convicted of violence to prison, for greater amounts of time — including laws that required people convicted of violent crimes to serve at least 85 percent of their sentences.
Many reformers believe these grants played a big role in driving up mass incarceration in the US. And if those grants prompted states to increase incarceration, then new federal grants should get them to do the opposite, right?
The Clinton-era crime bill was less consequential than many people assume
Unfortunately, neither part of the if-then statement is correct. For all the attention the 1994 Crime Act has received (Hillary Clinton was slammed during the 2016 race for supporting it), its actual impact was slight. To start, by the time the Justice Department’s grants to the states kicked in, in 1995, the US prison population had already grown by almost a million people, from 196,000 in 1972 to 1.05 million.
It would grow by another 560,000 by the time it peaked in 2010, but more than 60 percent of the growth occurred before the 1994 act went into effect.
More striking, the rate of prison growth had started to slow before the 1994 act was adopted, and it continued to slow for almost every year the Violent Offender Incarceration/Truth in Sentencing program was operational. As far as I can tell, there have been no rigorous studies of the program’s impact on total prison populations, but empirical work I’m conducing — still in its infancy — seems to confirm that the grants had at most a minimal effect.
One reason is that the grants just weren’t that big. Yes, $10 billion over six years sounds like a lot, but in the early 1990s states were spending more than $30 billion each year on prisons and $50 billion per year on criminal justice more broadly.
Tellingly, most of the money went unclaimed: In the end, the DOJ awarded less than $3 billion of the $10 billion it had at its disposal, and most states that took the money admitted that they were already inclined to adopt the policies the grants encouraged. (In many cases, they had adopted them before the 1994 act was even passed, in which case they were still eligible for grants.) In other words, states were happy to accept a (small) discount on what they already planned to do, or already were doing, but the grants weren’t enough to change many minds.
The Reverse Mass Incarceration Act does involve a bit more money, raising the annual amount doled out to states to $2 billion. But when we control for inflation and increases in criminal justice spending, the amount is about the same. And the politics here are flipped. The 1994 act was trying to push states to do what was politically easy: taking a harsh stance against people convicted of violent crimes. The new act, in contrast, is trying to encourage them to do what is politically quite tricky: putting fewer people behind bars.
If states declined to take money to do the easy thing, I’m skeptical they would look at a similar amount of money and jump at the chance to do what’s hard.
The Reverse Mass Incarceration Act is almost designed to create enemies
The Booker-Blumenthal bill also directs the money in a way that’s sure to set up possibly insurmountable political fights.
In the United States, responsibility for paying for the criminal justice system is strangely, almost incomprehensibly, fractured. Cities pay for police, counties for jails and probation and prosecutors, and the state for prisons and parole boards. This can lead to perverse incentives: Prosecutors (paid for by the county) have a motivation to convict people of felonies (which result in state-funded prison sentences) instead of misdemeanors (which result in county-funded jail or probation terms). It’s actually cheaper for prosecutors, viewing the world through the lens of a county budget, to impose the harsher and socially more expensive sanction, because someone else pays for it.
Yet the Booker-Blumenthal bill ignores that complicated structure. The bill imposes costs on those who have benefited from expanded prison populations but directs the funds elsewhere. Its primary beneficiaries will be city- and county-based treatment and intervention programs, since crime control is managed primarily at a very local level, and it is cities and counties that will be able to deploy the evidence-based programs the bill calls for.
In contrast, those who stand to lose the most include state prison guards and their public sector unions. County prosecutors, who will likely have less aggressive threats to make against defendants, will see themselves as losing as well. The resistance by guards in particular shouldn’t be surprising, since more than half of the $50 billion we spend on prisons nationwide goes to their payroll and benefits.
Unfortunately for Sens. Booker and Blumenthal, those on the losing end of reform are quite powerful. In many states, prosecutor associations have been effective at fighting reforms and toughening sentencing laws. Guard unions from California to New York have similarly worked hard to maintain the status quo.
It would be much smarter for the Reverse Mass Incarceration Act to direct some of its funds toward those who will bear the costs of smaller prison populations. That’s why I’m proposing that grants shouldn’t fund evidence-based programs to reduce crime, worthy as those are, but rather rural job replacement.
There’s a precedent for doing this. To undermine opposition to prison closures in New York — where successful lobbying by the correctional officers’ union has kept nearly empty prisons open across the state — Gov. Andrew Cuomo offered $50 million and various tax incentives to help those who lose their jobs in prisons find other work. Obviously, the unions themselves would still resist most closures and staff reductions, but employment-targeted grants would make it easier for guards to leave and harder for local politicians to insist that they needed to keep nearby prisons up and running to preserve much-needed jobs.
(Incidentally, a recent study shows that in rural areas, towns with prisons happen to have larger minority populations than other rural towns. So the program I’m suggesting goes beyond welfare for white rural workers.)
Such a program could have a real impact despite being rather small in the context of overall spending on criminal justice. And it would be a rare case of the feds pushing the states to try something new, rather than the usual practice of promoting policies already being used widely.
It could also have potent symbolic effects. Any federal law involving criminal justice reform will get national media attention. So a federal law that says prison reform requires us to confront the heretofore ignored power of public sector unions to resist change would put that issue on the political map.
I’m not saying that retraining rural guards is the only way to fix the Reverse Mass Incarceration Act. The bill could target the moral hazard problem created by the county-prosecutor/state-prison mismatch — say, by providing money to counties, in return for their taking more responsibility for locking up people.
But any federal law aimed at reducing state incarceration rates must confront the fact that criminal justice costs and benefits are scattered across agencies at every level of government. Decarceration will create winners and losers, and the losers are going to fight to keep prisons full. Any federal action that is blind to these realities will fail.
John Pfaff is a professor of law at Fordham Law School and author of Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform. Find him on Twitter @JohnFPfaff.
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