Decarcerating America Read online

  1. Ram Subramanian and Ruth Delaney, “Playbook for Change? States Reconsider Mandatory Sentences,” Federal Sentencing Reporter 26, no. 3 (2014): 198–211.

  2. Todd R. Clear, “A Private-Sector, Incentives-Based Model for Justice Reinvestment,” Criminology and Public Policy 10, no. 3 (2011): 585–608; Marshall Clement, Matt Schwarzfeld, and Michael Thompson, “The National Summit on Justice Reinvestment and Public Safety: Addressing Recidivism, Crime, and Corrections Spending,” Justice Center, Council of State Governments, 2011.

  3. Nancy G. La Vigne, “Justice Reinvestment at the Local Level Planning and Implementation Guide,” 2010.

  4. Council of State Governments, “Massachusetts Names Working Group for Justice Reinvestment Initiative,” news release, October 29, 2015; Nancy LaVigne et al., Justice Reinvestment Initiative State Assessment Report (Washington, DC: Urban Institute, 2014); Nicole Porter, The State of Sentencing 2015: Developments in Policy and Practice (Washington, DC: Sentencing Project, 2016).

  5. S. Tucker and Eric Cadora, “Justice Reinvestment: To Invest in Public Safety by Reallocating Justice Dollars to Refinance Education, Housing, Healthcare, and Jobs,” Ideas for an Open Society occasional papers vol. 3, no. 3, 2003.

  6. Natasha A. Frost, Carlos E. Monteiro, and Beck M. Strah, “Cost-Effective and Accountable Criminal Justice Policy,” Advancing Criminology and Criminal Justice Policy, 2016, 441.

  7. Mark A.R. Kleinman, “Justice Reinvestment in Community Supervision,” Criminology and Public Policy 10, no. 3 (2011).

  8. Frost, Monteiro, and Strah, “Cost-Effective and Accountable Criminal Justice Policy,” 441.

  9. Don A. Andrews, Ivan Zinger, Robert D. Hoge, James Bonta, Paul Gendreau, and Francis T. Cullen, “Does Correctional Treatment Work? A Clinically Relevant and Psychologically Informed Meta-analysis,” Criminology 28, no. 3 (1990): 369–404; Lois M. Davis et al., Evaluating the Effectiveness of Correctional Education: A Meta-Analysis of Programs That Provide Education to Incarcerated Adults (Santa Monica, CA: RAND Corporation, 2013); Mark W. Lipsey and Francis T. Cullen, “The Effectiveness of Correctional Rehabilitation: A Review of Systematic Reviews,” Annual Review of Law and Social Science 3 (2007): 297–320.

  10. Todd R. Clear and Natasha A. Frost, The Punishment Imperative: The Rise and Failure of Mass Incarceration in America (New York: New York University Press, 2014). See also Natasha A. Frost and Todd R. Clear, “Theories of Mass Incarceration,” in The Oxford Handbook of Prisons and Imprisonment, ed. John Wooldredge and Paula Smith (New York: Oxford University Press, 2016).

  11. Todd R. Clear and James Austin, “Reducing Mass Incarceration: Implications of the Iron Law of Prison Populations,” Harvard Law and Policy Review 3 (2009): 307; Natasha A. Frost, The Punitive State: Crime, Punishment and Imprisonment Across the United States (New York: LFB Scholarly Publications, 2006); Natasha A. Frost, “The Mismeasure of Punishment: Alternative Measures of Punitiveness and Their (Substantial) Consequences,” Punishment and Society 10, no. 3 (2008): 277–300.

  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.

  13. Andrew Von Hirsch and Committee for the Study of Incarceration, Doing Justice: The Choice of Punishments: Report of the Committee for the Study of Incarceration (Boston: Northeastern University Press, 1976).

  14. Nancy A. Heitzeg, “Criminalizing Education: Zero Tolerance Policies, Police in the Hallways, and the School to Prison Pipeline,” in From Education to Incarceration: Dismantling the School-to-Prison Pipeline, ed. Anthony J. Nocella, Priya Parmar, and David Stovall (New York: Peter Lang, 2014); Kelly Welch and Allison Ann Payne, “Racial Threat and Punitive School Discipline,” Social Problems 57, no. 1 (2010): 25–48.

  15. Nancy Heitzeg, “Criminalizing Education.”

  16. William Spelman, “The Limited Importance of Prison Expansion,” in The Crime Drop in America, ed. Alfred Blumstein and Joel Wallman (Cambridge: Cambridge University Press, 2005).

  17. Marc Mauer, “The Impact of Mandatory Minimum Penalties in Federal Sentencing,” Judicature 94 (2010): 6.

  18. Although we are encouraged by the shift, we would be remiss if we did not explicitly acknowledge the race and class dimensions of how drug use and abuse get framed. Black Americans residing in our nation’s urban communities did not receive the same compassion during the crack cocaine epidemic that the mostly white Americans residing in suburban communities are experiencing as we confront the current opioid crisis. This is of no small consequence because the way in which an issue gets framed has substantial implications for how we respond to it. Drug control policies during the crack cocaine era called for a heavy-handed criminal justice approach that usually carried lengthy, often decades-long prison sentences. In 2010, President Obama signed the Fair Sentencing Act, which sought to address disparities in sentencing that for decades disproportionately subjected black and other minority offenders to the criminal justice system. Prior to the Fair Sentencing Act, federal guidelines created a series of mandatory minimum sentencing policies. Although mandatory minimums were popular and widely adopted across the states, the treatment of crack cocaine and powder cocaine in calculating minimum sentences in the federal system stood out as one of the most controversial policies to date. During this punitive era, a gram of crack cocaine was considered equivalent to 100 grams of powder cocaine, despite the fact that the two were pharmacologically identical. While the Fair Sentencing Act was a major step toward righting a wrong, reducing the sentencing disparity for crack cocaine and powder cocaine offenses from 100 to 1 to 18 to 1 is a small victory and proved largely inconsequential in terms of the overall impact on prison populations. In 2009, for example, the U.S. Sentencing Commission projected that after ten years, federal prisons would see an estimated reduction of only four thousand inmates as a result of the change.

  19. E.A. Carson, “Prisoners in 2014,” Bureau of Justice Statistics, Department of Justice, 2015, NCJ 248955.

  20. Natasha A. Frost and Todd R. Clear, “Coercive Mobility,” in Oxford Handbook of Criminological Theory, ed. Francis T. Cullen and Pamela Wilcox (New York: Oxford University Press, 2012); Todd R. Clear et al., Predicting Crime Through Incarceration: The Impact of Rates of Prison Cycling on Rates of Crime in Communities (Washington, DC: National Institute of Justice, 2014).

  21. Eric L. Sevigny and Jonathan P. Caulkins, “Kingpins or Mules: An Analysis of Drug Offenders Incarcerated in Federal and State Prisons,” Criminology and Public Policy 3, no. 3 (2004): 401–34.

  22. Daniel S. Nagin and John V. Pepper, Deterrence and the Death Penalty (Washington, DC: National Research Council, 2012); Daniel S. Nagin, “Deterrence in the Twenty First Century,” Crime and Justice 42 (2013).

  23. United States Sentencing Commission, “Special Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System,” 1991.

  24. Mauer, “The Impact of Mandatory Minimum Penalties in Federal Sentencing,” 6.

  25. Bruce Western and Christopher Wildeman, “The Black Family and Mass Incarceration,” Annals of the American Academy of Political and Social Science 621, no. 1 (2009); Anke Ramakers, Robert Apel, Paul Nieuwbeerta, Anja Dirkzwager, and Johan Wilsem, “Imprisonment Length and Post-Prison Employment Prospects,” Criminology 52, no. 3 (2014): 399–427; Bruce Western and Leonard Lopoo, “Incarceration, Marriage, and Family Life,” Department of Sociology, Princeton University, 2004.

  26. Michael Tonry, “Remodeling American Sentencing: A Ten-Step Blueprint for Moving Past Mass Incarceration,” Criminology and Public Policy 13, no. 4 (2014): 503–33.

  27. Ashley Nellis and Ryan S. King, “No Exit: The Expanding Use of Life Sentences in America,” Sentencing Project, 2009; Ashley Nellis, “Throwing Away the Key: The Expansion of Life Without Parole Sentences in the United States,” Federal Sentencing Reporter 23, no. 1 (2010): 27–
32.

  28. Alex R. Piquero, David P. Farrington, and Alfred Blumstein, Key Issues in Criminal Career Research: New Analyses of the Cambridge Study in Delinquent Development (Cambridge: Cambridge University Press, 2007).

  29. David P. Farrington, Maria M. Ttofi, Rebecca V. Crago, and Jeremy W. Coid, “Prevalence, Frequency, Onset, Desistance and Criminal Career Duration in Self-Reports Compared with Official Records,” Criminal Behaviour and Mental Health 24, no. 4 (2014): 241–53.

  30. Alfred Blumstein and Kiminori Nakamura, “Redemption in the Presence of Widespread Criminal Background Checks,” Criminology 47, no. 2 (2009): 327–59; Megan C. Kurlychek, Robert Brame, and Shawn D. Bushway, “Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?,” Criminology and Public Policy 5, no. 3 (2006): 483–504; Shawn D. Bushway, Paul Nieuwbeerta, and Arjan Blokland, “The Predictive Value of Criminal Background Checks: Do Age and Criminal History Affect Time to Redemption?,” Criminology 49, no. 1 (2011): 27–60.

  31. M. Michael O’Hear, “Justice Reinvestment and the State of State Sentencing Reform,” Federal Sentencing Reporter 29, no. 1 (2016).

  32. Jody Sundt, Emily J. Salisbury, and Mark G. Harmon, “Is Downsizing Prisons Dangerous?,” Criminology and Public Policy 15, no. 2 (2016): 315–41.

  33. James Austin, Todd Clear, Troy Duster, David F. Greenberg, John Irwin, Candace McCoy, Alan Mobley, Barbara Owen, and Joshua Page, Unlocking America: Why and How to Reduce America’s Prison Population (Washington, DC: JFA Institute, 2007).

  2

  Better by Half

  The New York City Story

  JUDITH A. GREENE AND VINCENT SCHIRALDI

  For much of the latter part of the twentieth century, New York was synonymous with the urban decay, crime, and mass incarceration confronting so many American cities. With the number of murders topping 2,200 in 1990, New York’s jail population was bursting at the seams, peaking at nearly 22,000 inmates at Rikers Island in 1991, more than double today’s population. Similarly, in 1998, the number of New York City residents in state prisons peaked at 47,315—a number that fell by more than half to 22,580 by May 2016.1

  In the nineties, few could have imagined that in 2015, the city would experience only 350 murders—an 84 percent drop from its peak in 1990—with steep declines in other crime categories as well.2 Writing in 2011, University of California law professor Franklin Zimring dubbed New York City’s crime decline “the largest and longest sustained drop in street crime ever experienced by a big city in the developed world.”3

  Given the widely held belief among elected officials that more imprisonment was needed to control crime, a casual 1990s observer could have been forgiven for predicting that such a sharp decline in crime in New York City surely would have been accompanied by an equally profound increase in incarceration. But exactly the opposite happened.

  Between 1996 and 2014, the city’s combined rate of population incarcerated in prisons and jails declined by 55 percent, while the combined incarceration rate in the remainder of the United States rose by 12 percent. Despite the fact that the city’s population grew by more than a million people between 1996 and 2014, the real number of New Yorkers incarcerated in prisons and jails declined by 31,120 during that time. Simultaneously, index crime—the seven types of serious crime that are tracked in the FBI’s uniform crime index—in New York City declined by 58 percent, while index crime nationally declined by a more modest 42 percent.4 By 2014, this left New York City with the lowest crime rate of the nation’s twenty largest cities and the second-lowest jail incarceration rate among the largest cities, behind only Wayne County, Michigan, which includes Detroit but much of which is suburban, unlike New York City.

  The past few years have marked a time of great change in U.S. prison policy, with a growing bipartisan consensus that mass incarceration should be ended (or at least curtailed). More states adopted decarceration policies addressing drug arrests, sentencing, and parole practices—leading to significant declines in state prison populations (Figure 2.1).

  New York’s more than 50 percent decline in jail and prison incarceration starting in the mid-1990s began at a time when incarceration rates in the rest of the United States, taken as a whole, as well as in the remainder of New York State, were still increasing. New York’s decarceration experiment first flowed from a bottom-up effort to amend, repeal, and reverse the laws, policies, and practices that swept our nation into the era of mass incarceration—most particularly those involving the war on drugs. Second, the profound decline in incarceration in the nation’s largest city left it one of the least incarcerated cities in America. At the same time New York was also becoming the safest city in America, giving the lie to the notion that more incarceration was needed to provide more safety.

  Figure 2.1: State Prison Population Decline: Peak Year to 2014

  Source: Bureau of Justice Statistics

  New York’s State Prison Population Deescalates

  One of the three most robust state experiences with decarceration has taken place in New York. During 1999, the state prison population hit an all-time high of 72,899.5 By the end of 2015, the population had fallen by 28 percent to just 52,344 (Figure 2.2).

  New York City, which drove the state’s decline in prisoners, instituted a remarkable policy shift where the New York City Police Department (NYPD) was the principal factor that set the trend in motion. For decades previously, drug law enforcement in New York City had driven prison population trends, starting with enactment in 1973 of Governor Nelson Rockefeller’s notorious drug law “reform” with harsh mandatory minimum sentences that became the model for the nation. Under the Rockefeller drug laws, sale of only two ounces, or possession of just four ounces, of a narcotic drug became a Class A felony, carrying a fifteen-years-to-life prison sentence. The majority of drug offense cases subject to the new law would involve much smaller weights, but the lesser-known Second Felony Offender Law, enacted along with the Rockefeller drug law, made a prison sentence mandatory for anyone convicted of any two felonies—no matter their nature—within ten years.

  Figure 2.2: New York State Prison Population 1993–2015

  Sources: Bureau of Justice Statistics and New York State Department of Corrections and Community Supervision

  A national moral panic sparked in the mid-1980s by the so-called crack crisis did not exempt New York City, even though the state’s drug laws were already among the toughest in the nation. In 1985 the NYPD piloted a drug enforcement dragnet called Operation Pressure Point on the Lower East Side of Manhattan, and NYPD’s Tactical Narcotic Teams spread the program across the city in other neighborhoods, including East Harlem and southeast Queens.6 The Tactical Narcotic Teams mobilized roving cadres of plainclothes and undercover narcotics officers to saturate targeted neighborhoods with intensive “buy-and-bust” operations over a three-month period before moving on to the next target neighborhood.

  Intensified street drug enforcement flooded the state’s prison capacity, with the number of individuals committed to prison for drug offenses rising from just 834 in 1973 to 11,225 in 1992, a remarkable thirteen-fold increase. By 1994, one-third of all New York State prison beds were holding people serving time for a drug conviction.7 Ninety percent of them were black or Latino.

  After enactment of the Rockefeller drug laws, New York legislators continued to constrict judicial discretion by toughening other sentencing laws. In 1978, longer sentences were enacted for “violent felony offenders” and “persistent violent felony offenders.” Another measure increased the likelihood that young people convicted of violent crimes would receive an adult prison sentence.

  Between 1988 and 1999, the state built twenty new prisons. George Pataki defeated incumbent Mario Cuomo in the 1994 gubernatorial election on a platform of “truth in sentencing” and a pledge to restore the death penalty. Legislators amended state penal laws to eliminate parole for people convicted as two-time persistent violent felony offenders, replacing discretionary relea
se with fixed “determinate” sentences. In 1998, Pataki abolished parole for all people convicted as violent felons. Between 1994 and 1999, the parole rate dropped from 60 percent to 40 percent.8

  Despite these tough-on-crime state policies, New York City’s crime data showed a remarkable decrease in violent crime starting in 1991. By 2012, the city’s violent crime rate had plummeted by 73 percent. Arrests for violent felonies also declined. In 1994, there were 70,880 arrests for violent felonies statewide. By 2015, that figure had fallen to 40,816. Within New York City, violent felony arrests fell by 49 percent, compared to a 22 percent decline in the rest of the state. During the same period, felony drug arrests in the city also took a dramatic tumble (Figure 2.3).

  The Rockefeller drug laws were met with opposition beginning in 1973, when the governor first announced his intention to toughen sentencing laws and thereafter. In the late 1990s, students with the Prison Moratorium Project organized against the laws. In 1997, State University of New York and City University of New York students marched on the state capitol carrying banners showing dollar-for-dollar shifts in state spending from higher education to prisons. A “Drop the Rock” campaign soon spawned a broad coalition of organizations, including the Correctional Association of New York, the Center for Constitutional Rights, the Legal Aid Society, the United New York Black Radical Congress, the American Jewish Congress, the New York Civil Liberties Union, and the Fortune Society. Felony drug arrests in the city suddenly began a sharp decline, from 45,978 in 1998 all the way to 15,507 in 2015—a drop of 66 percent, compared to a decline of less than 20 percent in the rest of the state—even as drug use in the city remained relatively stable.9

  Figure 2.3: Felony Arrests in New York City 1994–2015

  Source: New York State Division of Criminal Justice Services

  NYPD enforcement priorities had shifted, with dramatic results. In just two years, the number of drug arrests fell by more than 8,000 from the high-water mark in 1998. In 1999, a well-publicized Zogby International poll of likely New York State voters had indicated that the Rockefeller drug laws were highly unpopular.10 Twice as many voters responded that they were more inclined to vote for state legislators who would reduce drug sentences and give judges greater discretion than the number who said they’d be less inclined to do so.