Why the U.S. Hasn’t Solved Mass Incarceration

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WASHINGTON – A decade ago, a Google search for “mass incarceration” yielded 11 news reports using the term over a year. The same search run Wednesday yielded 321 hits over the previous week.

Suddenly, there is agreement that the three-strikes policies from the 1990s that sent thousands of small-time, nonviolent offenders to prison for life was a bad idea. Republicans and Democrats generally agree it’s time for a change, and states have begun to rewrite statutes. Law enforcement officials are also behind the idea, assuming new laws are structured correctly.

Some of them are in town this week. They held a press conference Wednesday and met to discuss the issue with President Barack Obama on Thursday. The Law Enforcement Leaders to Reduce Crime and Incarceration is made up of more than 130 current and former police chiefs, sheriffs, federal and state prosecutors and attorneys general who advocate for reducing both crime and incarceration.

“I have been a Los Angeles police officer for four decades now, and I’ve been through the war on drugs, the war on gangs – and what I’ve learned in the last 40 years is that police departments cannot be at war with the communities they serve,” Los Angeles Police Chief Charlie Beck said. “It is time that we think of this as a peace dividend, that we’ve come to recognize that the issues that we deal with cannot be solved by merely locking people up and throwing away the key.”

A Bureau of Justice Statistics report released last month found a decline of 1 percent in the last year in the number of people in U.S. prisons. That’s the largest decrease in 35 years.

State imprisonment rates declined 7 percent since 2007. But some states are still struggling to cut costs and lower incarceration rates, according to the BJS report.

The current interest could have something to do with the number of presidential candidates talking about mass incarceration. That includes Sen. Bernie Sanders, I-Vt., Democrat Hillary Clinton and Republicans Donald Trump and Sen. Rand Paul, Ky.

The interest could be sparked by the Department of Justice’s announcement to release 6,000 inmates at the end of the month, following a decision last year by the U.S. Sentencing Commission to reduce sentences for future drug offenders and apply the reductions to current prisoners.

It could also have something to do with two bills recently introduced in Congress. TheSentencing Reform and Corrections Act of 2015 and the SAFE Justice Act (safe, accountable, fair, effective).

The sentencing reform act, introduced earlier this month, has support from Republicans, Democrats and the Obama administration. It would reduce several mandatory minimum drug and gun sentences and expand the existing “safety valve”  to give judges more leeway in sentencing.

Judges would be able to give offenders less time than mandatory minimum if the offenders meet certain requirements. The reductions could be retroactive, reducing widely divergent sentences given for those convicted of offenses involving powdered cocaine versus crack cocaine. These were reduced by the Fair Sentencing Act of 2010. Federal prisoners would be offered incentives to complete rehabilitative programs.

The SAFE Justice Act would essentially do the same things, but it would not apply the safety valve retroactively, and it would use data collected by the federal prison systems to reform policy and reinvest savings.

These bills, however, apply only to federal law. States hold 87 percent of U.S. prisoners.

The SAFE Justice Act’s approach using data-driven reforms has existed at the state level since 2002. It’s called the Justice Reinvestment Initiative, or JRI.
“There is a newfound ownership of this issue,” said Jake Horowitz, policy director of the Public Safety Performance Project for Pew Charitable Trusts. “I think for a long time it was the view of state policymakers that the issue of state prison populations was something beyond their control.”The term was coined more than a decade ago, and the reform effort is led by a number of research-based groups – the PEW Charitable Trust, the Bureau of Justice Assistance and the Council of State Governments. The groups helped states look at their correctional systems and make adjustments to cut spending and lower the prison population. The original idea was to put the savings back into communities that were at highest risk of incarceration.

States thought the growing populations were due to socio-demographic trends or resident population growth or the economy, he said. But now with JRI, states find they can look at the data and change trends.

The policies differ from state to state, but they are usually circled around post-release supervision, drug aversion programs, sentencing and mental health.

One that seems to be a recurring problem is supervision in the community, becauserecidivism numbers are high. One in three prison commitments is due a parole violation. This is a problem produced by three main reasons:

  • Some states don’t require consistent penalties for parole violations.“Parole officers have a lot of discretion with a violation,” said Marc Mauer, executive director of the Sentencing Project, which tracks sentencing policies, incarceration rates and produces policy research. “So if somebody tests positive for drug use, you could test them more frequently, you could send them to jail for a weekend to send a message or you could send them back to prison for a year. And those have very different consequences.”
  • Some states are giving the same penalties for every violation no matter how big or small. Not everyone needs supervision after being released from prison – sometimes it is more harmful than helpful.  James Austin, president of the JFA Institute, which helps states collect data and forecast prison populations, compared post-release supervision to treating the population for strokes. “We are treating everyone the same,” he said. “Whether you are high risk or low risk, we are giving the same prescription. And that doesn’t make much sense.”
  • Some states don’t have parole boards – a panel that decides whether offenders should be released from prison under supervision after serving a minimum amount of their sentences.

JRI creates community supervision policies with states. But a lot of the programs don’t stick. Austin attributes this to the lack of reinvestment.

“That’s the other part that never happened is the reinvestment into the communities,” Austin said. “The money is being saved, but it’s being saved to lower the state budget for prisons. It doesn’t get back to where it was intended to go, for a more preventive nature.”

Austin has studied and predicted prison trends for states for over 25 years. He is a former director of the Institute on Crime, Justice and Corrections at George Washington University.

Arizona and several other states have struggled with community reinvestment.

Arizona asked the Council of State Governments for help to develop new policies. It created incentives for counties to cut spending, lower crime and lower the prison population. Twenty percent of those savings were to go back to the counties. While both probation violations and prison costs decreased, and the legislature required the state to reinvest,when the budget crisis hit in 2009 the legislature removed the reinvestment requirement from the bill.

“Legally, most states aren’t comfortable with tying the hands of future legislatures in terms of where the funding goes,” Marshall Clement, the council’s director of state initiatives, said.

Clement worked with Arizona and saw the incentives the state had offered its counties as innovative.

He said that Pennsylvania has been able to enforce reinvestment by sticking to a five-year plan.


JRI has also worked in Mississippi and Louisiana. Mississippi, which adopted JRI in 2013, enacted 41  policy reforms since 2010 and eight in the last year. The number of prisoners went down 13 percent since 2010, and another 13.8 percent this year. Louisiana has enacted 117 laws and decreased its imprisonment rate by 5.9 percent since 2010 when it adopted JRI.

California, New Jersey and New York have enacted their own laws to reduce prison populations.

According to data provided by the National Conference of State Legislatures, there have been over 1,300 policy reforms both through JRI and through state-driven initiatives.

While politicians have been talking about restructuring the criminal justice system, there are still many factors getting in their way, specifically reinvesting.

Budget constraints and political battles usually cause legislatures to remove community reinvestment requirements from statutes. The fear of seeming soft on crime still exists, despite the spiked interest in the issue.

“It’s always wrapped up in this fear – well if we do this, then the whole world is going to fall apart,” Austin said.

Reach reporter Maren Machles at or 202-408-1491. SHFWire stories are free to any news organization that gives the reporter a byline and credits the SHFWire. Like the Scripps Howard Foundation Wire interns on Facebook and follow us on Twitter and Instagram.