Decarcerating America Read online

  At the back end—in terms of tertiary interventions—there is a role for the police in addressing the social stigma and the many restrictions imposed upon former felons as they work to reestablish community and family lives after prison. Most notable is the work of the Law Enforcement Action Partnership (LEAP) in building strong police-community ties, which are essential for police to do their job effectively and keep their communities safe. Trust in the police is dangerously low in many communities today, with people reluctant to speak with officers, witnesses unwilling to come forward, and many crimes going unreported. As LEAP puts it, “The keys to restoring this trust are allowing officers to divert appropriate individuals to intensive support programs, so police can focus on crime; improving departmental support and training for officers; and reforming policies that put officers at odds with the communities they serve.”

  It should come as no surprise that we need to build new lines of support for employment, health care, and affordable housing programs in the United States. These areas remain a major challenge, and not only for convicted felons. It will take a lot of imaginative and locally grounded support for such programs in order to equip communities with large reentry populations to address the needs of former prisoners—a real challenge in the face of the Trump administration’s systematic stripping away of federal funds for all such programs.

  The political future of the United States is now an open issue, and its intersection with mass incarceration must now become an open topic of debate and include more efforts at change. The future of mass incarceration in America will likely be decided in the next few years. I hope this book offers a road map to the mass decarceration this country sorely needs.

  Notes

  1. Robin Steinberg, “Heeding Gideon’s Call in the Twenty-First Century: Holistic Defense and the New Public Defense Paradigm,” Washington and Lee Law Review 70 (2013): 968; Sarah R. Berson, “Beyond the Sentence—Understanding Collateral Consequences,” National Institute of Justice Journal 272 (September 2013): 25.

  2. Steinberg, supra note 2; Smyth, supra note 3. The Supreme Court affirmed the responsibility of defense attorneys to address enmeshed penalties in Padilla v. Kentucky, 559 U.S. 356 (2010).

  3. The Urban Institute analyzed the statistics relating to individuals under correction control across the United States and focused on policy changes in fifteen states to create an online tool called the Prison Population Forecaster. The Forecaster allows the user to recommend a variety of sentencing reform proposals to achieve decarceration. What becomes immediately clear to the user is that policy reforms principally relating to drug offenses will not at all be sufficient to end mass incarceration. See Ryan King et al., “The Prison Population Forecaster: State Prison Population,” Urban Institute, 2015, http://webapp.urban.org/reducing-mass-incarceration.

  4. Approximately one in five people is incarcerated for a drug offense. Prison Policy Initiative, “Mass Incarceration: The Whole Pie 2016,” March 14, 2016 (updated with a new 2017 version), https://www.prisonpolicy.org/reports/pie2016.html.

  5. Roughly half of people in federal prisons are serving time for a drug offense, and the number of people in state prisons for drug offenses today is ten times greater than it was in 1980. Sentencing Project, “Issues: Drug Policy,” 2017, http://www.sentencingproject.org/issues/drug-policy.

  6. See supra, fn. 23.

  7. In 2014, voters in California made history by passing Proposition 47, which reduced the penalties for simple drug possession, petty theft, shoplifting, forgery, writing a bad check, and receipt of stolen property, resulting in dramatic reductions to the state prison population and investments in drug and mental health treatment, school programs, and victims’ services. See My Prop 47, http://myprop47.org. In 2012, California voters had approved Prop 36, which required that a “third strike” be a serious or violent felony (previously, a “third strike” could be any felony). See Aaron Sankin, “California Prop 36, Measure Reforming State’s Three Strikes Law, Approved by Wide Majority of Voters,” Huffington Post, November 7, 2012.

  8. See Nick Wing, “Our Bail System Is Leaving Innocent People to Die in Jail Because They’re Poor,” Huffington Post, February 23, 2017.

  9. Ingrid A. Binswanger et al., “Release from Prison—A High Risk of Death for Former Inmates,” New England Journal of Medicine 356 (January 11, 2007): 157–65.

  10. Dan Strumpf, “With Fewer to Lock Up, Prisons Shut Doors,” Wall Street Journal, February 10, 2013.

  11. Laura M. Maruschak and Thomas P. Bonczar, “Probation and Parole in the United States, 2012,” Bulletin, Bureau of Justice Statistics, Department of Justice, December 2013, NCJ 243826.

  12. Matthew R. Durose, Alexia D. Cooper, and Howard N. Snyder, “Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010—Update,” Special Report, Bureau of Justice Statistics, Department of Justice, April 2014, NCJ 244205.

  PART I

  Primary Prevention

  1

  Ending Mass Incarceration

  Six Bold Reforms

  NATASHA A. FROST, TODD R. CLEAR, AND CARLOS E. MONTEIRO

  Across almost two-thirds of the states, we are witnessing policy reform to curtail further prison population growth, with dozens of states reconsidering the utility of inflexible sentencing structures and contemplating the repeal of mandatory sentences.1 Some of the current approaches to criminal justice reform—including most of the current justice reinvestment approaches to prison population reduction—will not effectively reduce mass incarceration in the near term. Without question, in the long term these approaches might work, but they will take years, indeed decades, to manifest meaningful reductions in prison populations. Real reductions in current incarceration rates will require reform efforts far bolder than those currently being pursued. Specifically, reform to end mass incarceration will require sentencing reductions across all categories of offending that would take sentencing back to where it was in the 1980s.

  What follows are critiques of the two popular approaches to decarceration—justice reinvestment initiatives as they are now implemented, and early release strategies for low-level offenders—followed by six bold reforms that we believe can rapidly reduce incarceration rates without compromising public safety.

  The Problem with Justice Reinvestment Initiatives

  Justice reinvestment initiatives are those reforms that seek to reduce rates of incarceration through the use of evidence-based approaches, taking the money that would have been invested in incarceration and reinvesting it locally.2 The approach is often touted as a way to reduce our reliance on incarceration without compromising public safety.3 In the several years since Eric Holder’s Justice Department popularized the term, policy makers, researchers, and practitioners have in many respects been won over by the idea of justice reinvestment, which has become the en vogue approach to serious criminal justice reform, with dozens of states receiving federal assistance to launch justice reinvestment initiatives and additional states signing on every year.4

  The justice reinvestment model, initially proposed by Eric Cadora and Susan Tucker, however, focused not only on reducing the country’s reliance on prisons and jails but also on reallocating savings to communities most devastated by crime and incarceration.5 Justice reinvestment initiatives launched thus far, however, have not remained true to Tucker and Cadora’s original vision.6 Instead, many of the initiatives created under the banner of justice reinvestment remain tethered to the provision of criminal justice and correctional services in the usual forms of more probation and enhanced community correctional supervision.7

  Where justice dollars saved are reinvested, they tend to be reinvested not in communities but rather in community-based supervision schemes. Across many jurisdictions, probation has, for example, benefited from greater investments in bolstering the community-based supervision it provides.8

  Although these approaches are well-intentioned, we are not very optimistic about getting sizable reductions
from either the intensive supervision strategies or recidivism-based strategies most often associated with justice reinvestment initiatives. Intensive supervision strategies have never really been promising as alternatives to prison sentences, for two reasons. First, they are nearly always used as alternatives to regular probation rather than as alternatives to prison. This is particularly true when judges decide who gets to go into intensive supervision programs. In other words, rather than serving as alternatives to prison for those who would have otherwise been sentenced to prison, regular probation typically becomes intensive supervision probation (ISP) for a subset of offenders. The only way this can be overcome is to allow correctional administrators to take people out of prison and put them onto ISP, and then it starts to look like parole. And if administrators are in charge of the ISP decisions post-sentencing, then judges will send people to prison in the hopes that they will be selected for ISP. How could you guarantee that an ISP population would be drawn only from the truly prison-bound? You might get there if you allowed intensive supervision strategies as an option for cases where mandatory prison terms apply. But programmatically, how would you make the intensive supervision programs large enough to get reductions of any meaningful size in the number of people behind bars? And if you are going to go after mandatory penalties, why not just eliminate them altogether? The effect would be much larger.

  The second problem with intensive supervision programs is the “intensive” part. Watching people closely while they are in the community always uncovers problems, especially with an at-risk or high-risk population such as people who have committed serious enough felonies to make them otherwise candidates for prison sentences. There is always a threat: “We will be watching you closely, and if we see anything we don’t like we will send you right to prison.” That means that any potential reductions in the number of prisoners through intensive supervision programs evaporate in the face of the number of parole returns that intensive supervision produces through enforcement of its rules. So we are skeptical that ISP-style strategies can get us reductions in prison populations that amount to much. We feel much the same way about in-prison treatment and rehabilitation programs intended to reduce recidivism rates.

  We should invest in programs that are intended to rehabilitate offenders and prepare them for reentry because it is the right thing to do. That said, rehabilitating offenders and preparing them for reentry will not bring about an end to mass incarceration anytime soon. Most meta-analyses find that well-designed and well-implemented rehabilitation programs reduce recidivism rates by about 20 percent.9 In other words, through correctional programming a recidivism rate of 40 percent might become a recidivism rate of 32 percent. This is certainly worth doing, but producing meaningful reductions in the number of people in prison over time by simply trying to affect return-to-prison rates will take a very long time. Crucially, the recidivism reduction potential of programming assumes that all programs are well run and that there actually is a suitable effective program for every person. It is much more likely that less than half of all programs will be well run. It is also more reasonable to assume that for a large proportion of people behind bars, there is no “known and proven effective” program that fits their problems (whatever their problems are). Correctional programming is costly and resources are scarce, so we would have to assume that for some proportion of those for whom we do have a proven and relevant program to address their problems, there will be no space available for them in that program.

  So even a wildly optimistic recidivism reduction strategy would have to be working with, say, at least 25 percent of all those released from prison and reducing their return-to-prison rate from 40 percent to 32 percent. Under that sort of model, it will take a very long time to experience meaningful decreases in the size of the prison population (and that is if there are no compensatory changes in technical failure rates that would result from the intensive community supervision that would follow release from these effective correctional programs).

  Why Early Release Strategies for Low-Level Offenders Are Not Enough

  The rhetoric of reform always tends to be that we should start releasing low-level offenders, such as property offenders, first-time offenders, and those convicted of drug or public order crimes. But even a cursory glance at the numbers of people currently incarcerated in state and federal prisons quickly illustrates that even if we were to release all of those people en masse tomorrow, we would cut our imprisonment rate in half, but we would still have more than 700,000 people in prisons around the country. Virtually all of those would be serving very long terms for crimes of violence, facing dismal prospects for release, and our imprisonment rate would once again begin to creep upward with each new admission, as it did over the past several decades.

  Table 1.1. State and Federal Prisoners in 2014

  How Do We Reduce the Prison Population Effectively?

  Let’s begin with the assumption that meaningful reductions in the number of prisoners would require us to get at least a million people out of the prison system. That would bring our imprisonment rate down to about 200 per 100,000—large by international standards but no longer “mass.” How do we do that?

  If we went back to the sentencing policies of 1980, we would very soon get 1980 prison populations, or lower. To be clear, the causes of mass incarceration as a phenomenon are complex, but the cause of prison population growth mechanically has been the sentencing policy changes that occurred mostly over the two decades between 1980 and 2000. These sentencing policy changes served to increase both the number of people going to prison and the amount of time that they would stay there.10 Without question, undoing the sentencing policy changes that occurred through the 1980s and 1990s has to be part of the solution.

  Only two functions determine prison population size—who goes into prison and how long they stay.11 Sending fewer people to prison is surely one-half of the equation, but it is, in many ways, the easier half. Reducing length of stay is the heavy lift, and it absolutely has to be on the table. Moreover, doing it for people convicted of violent crimes also has to be on the table.

  We should reduce sentences for people convicted of “violent” crimes for at least three reasons. One, most violent crime is far more mundane than most imagine—fights, drunken assaults of friends and acquaintances, hurting a loved one. The thing most people fear when they hear the term “violent”—a person hiding behind a bush and jumping out to hurt a stranger—is very, very rare. The most common version of this is armed robbery, and most armed robberies are committed by very young men, for whom the possibilities of redemption are pretty high. Why would we want to keep a twenty-year-old in prison into his forties, when the effect of prison has completely been achieved by the time he reaches his early thirties? The same can also be said, by the way, for sexual violence that is not domestic violence.

  People who are released from prison after having served time for “violent” crimes have much lower recidivism rates than people released after serving time for drug or property crimes, and their recidivism rates for repeat violence are about the same as everyone else’s.12 In other words, keeping them longer has very little to do with public safety, and more to do with our need to express our outrage at their conduct by making them stay longer than, say, drug dealers or burglars. Because we have so enhanced what we do to burglars and drug dealers, we cannot do something reasonable to those facing sentences for violence. In other words, the sentences for violent crime reflect our inflated punishment scale for all crime, not just violent crime.

  Expressing our collective outrage has been a driving force for increasingly punitive sentencing policy for several decades now, but it is useful to remind ourselves of the American Friends Service Committee report Doing Justice. When Andrew von Hirsch and colleagues laid out the just deserts framework in the early 1970s, they argued that punishments should be scaled to match crime severity and blameworthiness, with more severe crimes warranting more severe punishments, but they we
re scaling in terms of years, not decades. They argued for penalties between one and five years for most offenses and emphasized that prison sentences longer than ten years should be exceptionally rare.13

  If, as proposed below, we were to stop incarcerating low-level property and drug offenders altogether, sentences of five to ten years for crimes of violence would eventually seem long again. It is only because we have increased the scale of all penalties so dramatically over the past four decades that incarcerating someone for ten years can seem too lenient.

  For someone who has never been to prison, the difference between one and two years does not seem very big. To someone counting the days and minutes until they can go home, the difference between one and two years feels immense. When the time to release is decades, it is virtually impossible to imagine that future, and so it should not be surprising that hopelessness sets in and behavior management becomes difficult. Although prisons themselves are not a central focus of this chapter, we would be remiss if we did not note that prisons in which prisoners have incentives to behave—like the hope of release—are easier to manage and run.

  Age matters a lot with respect to recidivism. People who have reached their late thirties and forties are simply less of a risk to reoffend. They don’t all have to eventually get released, but we should certainly allow some to be released. Anyone who has been inside a prison with a sizable population of offenders serving sentences of life without parole has witnessed the futility of continuing to keep some of these offenders behind bars, no matter how violent their original crime. Prisoners who cannot walk or breathe without assistance pose virtually no threat to public safety, and prisons make for very expensive nursing homes. It is not that these offenders necessarily deserve to be released, but more that it is not worth the cost of keeping them.