When Hillary Rodham Clinton, Ted Cruz, Eric H. Holder Jr., Jeb Bush, George Soros, Marco Rubio and Charles G. Koch all agree that we must end mass incarceration, it is clear that times have changed. Not long ago, most politicians believed the only tenable stance on crime was to be tougher than the next guy. Today, nearly everyone acknowledges that our criminal justice system needs fixing, and politicians across the spectrum call for reducing prison sentences for low-level drug crimes and other nonviolent offenses. But this consensus glosses over the real challenges to ending mass incarceration. Even if we released everyone imprisoned for drugs tomorrow, the United States would still have 1.7 million people behind bars and an incarceration rate four times that of many Western European nations.
Mass incarceration can be ended. But that won’t happen unless we confront the true scale of the problem.
A hard-nosed skeptic would tell you that fully half the people in state prisons are serving time for violent offenses. And most drug offenders behind bars are not kids caught smoking a joint, but dealers, many with multiple prior convictions. We already have about 3,000 drug courts diverting those who need it to treatment rather than prison. Recidivism remains astonishingly high for those we release from prison, so releasing more poses real risks. And criminal law is primarily enforced by the states, not the federal government, so this is not a problem the next president can solve.
To move beyond symbolic sound bites to real progress, we need to address each of these objections in turn.
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It’s true that half the people in state prisons are there for a violent crime, but not all individuals convicted of violent crimes are alike. They range from serial killers to minor players in a robbery and battered spouses who struck back at their abusers. If we are going to end mass incarceration, we need to recognize that the excessively long sentences we impose for most violent crimes are not necessary, cost-effective or just.
We could cut sentences for violent crimes by half in most instances without significantly undermining deterrence or increasing the threat of repeat offending. Studies have found that longer sentences do not have appreciably greater deterrent effects; many serious crimes are committed by people under the influence of alcohol or drugs, who are not necessarily thinking of the consequences of their actions and certainly are not affected by the difference between a 15-year and a 30-year sentence.
For the same conduct, we impose sentences on average twice as long as those the British impose, four times longer than the Dutch, and five to 10 times longer than the French. One of every nine people in prison in the United States is serving a life sentence. And some states have also radically restricted parole at the back end. As a result, many inmates are held long past the time they might pose any threat to public safety.
Offenders “age out” of crime – so the 25-year-old who commits an armed robbery generally poses much less risk to public safety by the age of 35 or 40. Yet nearly 250,000 inmates today are over 50. Every year we keep older offenders in prison produces diminishing returns for public safety. For years, states have been radically restricting parole. We need to make it more readily available. And by eliminating unnecessary parole conditions for low-risk offenders, we can conserve resources to provide appropriate community-based programming and supervision to higher-risk parolees.
It’s true that most individuals incarcerated for a drug offense were sellers, not just users. But as a result of mandatory sentencing laws, judges often cannot make reasonable distinctions between drug kingpins and street-corner pawns. We ought to empower judges to recognize the difference and to reduce punishment for run-of-the-mill offenders, who are often pursuing one of the few economic opportunities available to them in destitute communities. The single most important thing we can do is provide meaningful work opportunities to the most disadvantaged.
There are already drug courts in many U.S. communities, and studies show they can reduce substance abuse without incarceration. But the criteria for diversion are often unduly narrow, and they screen out substantial numbers of drug users who could benefit from treatment. Equally important, we should not limit our response to those who have been arrested. Part of winding down the “war on drugs” will require making treatment options more widely available, before individuals enter the criminal justice system.
Recidivism is also a serious obstacle to reform. Two-thirds of released prisoners are rearrested within three years, and half are re-incarcerated. But many of the returns to prison are for conduct that violates technical parole requirements but does not harm others. And much of the problem is that the scale and cost of prison construction have left limited resources for rehabilitation, making it difficult for offenders to find the employment that is necessary to staying straight. So we need to lock up fewer people on the front end as well as enhance reintegration and reduce collateral consequences that impede rehabilitation on the back end.
Criminal justice is administered largely at the state level; 90 percent of those incarcerated are in state and local facilities. This means mass incarceration needs to be dismantled one state at a time. Some states are already making substantial progress. New Jersey, California and New York have all reduced their prison populations by about 25 percent in recent years, with no increase in crime. That should be good news for other states, which would reap substantial savings – in budgetary and human terms – if they followed suit. While the federal government cannot solve this problem alone, it can lead both by example and by providing financial incentives that encourage reform.
Ending mass incarceration will not be easy. Opposition will come from rural community leaders who see prisons as economic development, legislators who still respond emotionally to the “crime of the week” and prosecutors who measure success by convictions and incarcerations, rather than by resolving conflict. But the recent tragic police shootings of young black men have, for the moment, focused our attention on the imperative for reform. And state budgetary crises have led many to question the vast resources we devote to holding too many people under lock and key.
Today, at long last, a consensus for reform is emerging. The facts that no other Western European nation even comes close to our incarceration rates, and that all have lower homicide rates, show that there are better ways to address crime. The marked disparities in whom we choose to lock up pose one of the nation’s most urgent civil rights challenges. But we will not begin to make real progress until we face up to the full dimensions of the task.
Marc Mauer is executive director of the Sentencing Project. David Cole is a professor of law and public policy at Georgetown University.