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Why ‘Tweaking Around the Edges’ Won’t Reduce Mass Incarceration

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Last month, both the Vera Institute of Justice and the federal Bureau of Justice Statistics (BJS) reported declines in the number of individuals under the jurisdiction of state and federal prisons. Unfortunately, for anyone committed to ending mass incarceration, there can be little comfort in those numbers.

Vera’s People in Prison in 2018, a follow-up to People in Prison in 2017, documented a 1.3 percent decrease in state and federal prisoners in 2018, nearly double the 0.7 percent decrease among the states in 2017—bringing the total number of individuals under jurisdictional authority to 1,471,246.

A day after Vera’s release, BJS, which for decades provided a consistent annual analysis of state and federal prison populations, released its Bulletin, Prisoners in 2017.  BJS’s count of state and federal prisons under corrections jurisdiction in 2017 differed by just -1,666 or -0.1 percent from the 1,491,029 reported by Vera for 2017. The counts were identical in 24 states, within a 2 percent margin in 19 states, and different by more than 2 percent in just seven states (Hawaii, Idaho, Maryland, New Hampshire, Oklahoma, Tennessee and Vermont).

Although nearly two years after the fact, the BJS Bulletin provides the numbers and rates for sentenced prisoners as well as those under the jurisdiction of corrections authorities. It profiles prison populations by sex, race, for youth and assignment to private prison facilities among other variables.

We can therefore be confident in Vera’s methodology and its count for 2018.

Almost one year ago, I analyzed BJS data to conclude, first, that at the -1.4% average decrease over the most recent three years, 2014 to 2016, America’s prison population wouldn’t fall below one million until 2042.  The U.S. wouldn’t reduce the number of prisoners by half, a goal of #cut50  and other advocacy organizations, for 50 years, or until 2068.

Mine was not the most pessimistic projection: The Sentencing Project estimated a 75-year wait before prison populations would be halved.

The rates of decrease in prison populations documented in Vera’s reports for 2017 and 2018, and in the string of  comprehensive reports issued by the BJS up to and including 2017, are even less than the “anemic” -1.4 percent average annual decrease I described a year ago.

Their information affirms that we need to change our strategies and approach if we are to end mass incarceration in our lifetimes. Fortunately, the numbers in these reports describe successes to replicate as well as failures to avoid.

First of all, these reports show that while the majority of states slowed or stopped increasing prison populations in recent years, only a handful of states and, from 2012 to 2018, the federal system, succeeded in significantly decreasing prison populations.  Between 2000 and 2016 just seven states (California, New York, New Jersey, Michigan, Connecticut, Maryland and Illinois) were responsible for two-thirds of the collective decrease in state prison populations.

California alone, acting under orders from the U.S. Supreme Court, was responsible for almost one in three (29.6 percent) of the decreases in America’s prison populations in these years, under what has been called a “public safety realignment” strategy.

The majority of states are not significantly reducing prison populations. We should learn from and imitate the few that have been successful, noting from the start that several, like Massachusetts, New York and New Jersey, keep on reducing incarceration even though they use prison far less than most other states.

Second, the numbers show that often-repeated claims of success for “bi-partisan reforms” in “red” states such as Texas, Georgia, Kentucky or,  early on, Kansas ignore larger and more durable decreases in prisoners which occurred mostly in “blue”  states.

The Vera Institute’s most recent data, a selected portion of which is shown in the table on this page, illustrates this point. Since the end of 2008, 16 states reduced prison populations at an annual rate of -1.4 percent or more. Five of these (South Carolina, Michigan, Louisiana, Mississippi and Alaska) might currently be considered “red” states. Of these, only Michigan and South Carolina are included among the ten states that decreased prison populations by on average more than -2 percent annually over these years.

If we are to look to successful states for models, most of those states will be “blue” states, and most of those states will be seen to have started to reduce prison populations in or before 2008, before the introduction of federally funded initiatives focused on legislated “bipartisan” solutions.

This is not to say that successful prison or sentencing reform is not “bipartisan.” Consider that seven of the 12 “blue” states Vera reported to have significantly reduced prison populations from 2008 to 2018 were under Republican administration for at least part of the time: California, New Jersey, Massachusetts, Maryland, Michigan, Alabama and Illinois.

Consider as well that in some “blue” states, including Connecticut, New York and, historically, Illinois and Michigan, justice reform initiated by Democrats was vigorously opposed by Republicans. In both Illinois and Michigan, however, Republicans defeated Democratic governors after campaigning against policies that reduced prison populations. But then, in office, they continued to oversee reductions in those populations.

It may well be that in states such as New Jersey, Michigan and Illinois,  Republican governors were better able to take bold steps to reduce incarceration than their Democratic counterparts who were confident in the backing of more liberal urban politicians and were less susceptible to attacks by Republicans in the legislature.  Perhaps this reflected a tacit executive-liberal legislator’s alliance that overcame conservative or rural legislative opposition.

I raise this out of concern that in pursuit of a largely fictive “bipartisan” approach to mass incarceration, our political leaders will continue to make their politically safe technical and marginal adjustments to criminal justice legislation, processes and policies, frittering around the edges of a complex, self-perpetuating, industry-driven and racially-fraught system rather than going after the roots of the problem.

There needs to be a large dollar commitment to alternatives to incarceration and criminal prosecution, as in New York and New Jersey, dramatic steps as when California was forced to act by the Supreme Court, and major efforts to reform policing and the “school-to-prison” pipeline.

Yet to end mass incarceration, it’s not enough that fewer people be charged with crimes, detained in jail if charged,  and sentenced to prison for far less time if convicted.

Distressed communities must be remedied. That means improved schools, richer community resources, living wage employment, safe and pleasant public spaces, access to drug treatment, affordable housing and medical and mental health services. Many of these are partisan issues. Unless our leaders take them on, “bi-partisan” criminal justice reforms will continue to do little to end mass incarceration.

As I write this, I see signs of hope in contemporaneous bell-weather indicators of cultural change.

The First Step Act might be one of them.

However, outcomes will depend upon how enthusiastically the Act is administered and whether its modest reforms are extended.  More heartening, we read that politicians and groups across the political spectrum who yesterday pushed the First Step Act on through, including Senators Mike Lee, Charles Grassley, Cory Booker and Richard Durbin, individual and organized prosecutors as well as traditional advocates are today speaking out against a counterproductive proposal from federal Office of Personnel Management, that federal job applicants be required to disclose having successfully gone through a criminal diversion program (usually resulting in a dismissal of charges).

And, in just one small example of many that the horror and wrongs of mass incarceration are having an impact on the culture, the National Teacher of the Year award went to Rodney Robinson who chose to teach in a Virginia juvenile detention center in order to reach kids in the school-to-prison pipeline.

Combined with the activism of many, including most particularly people formerly caught up in criminal courts and corrections, and initiatives tackling large issues, such as The Sentencing Project’s Campaign to End Life Imprisonment, we may be seeing signs of the kind of broad-based cultural and attitudinal change that will bring about an end to the nation’s excessive, obsessive reliance on criminal prosecution and incarceration in our lifetimes.

Malcolm Young

Malcolm C. Young

That’s hopeful, because as the numbers show, perpetually tweaking around the edges isn’t doing it.

Additional reading:  “Researcher Calls Drop in Prison Numbers Anemic

Malcolm C. Young, Attorney at Law, is founding Project Director of Project New Opportunity.  His  June  2018 report, Prisoners in 2016 and the Prospects for an End to Mass Incarceration, may be read or downloaded from the Center on Community Alternatives under the heading, “New Research Report Highlights Challenges in Reducing Mass Incarceration .”  He welcomes comments by readers.

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