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May 23, 2019

Making the case, now a quarter century after the 1994 Crime Bill, for the Reverse Mass Incarceration Act

Lauren-Brooke Eisen and Inimai Chettiar, who helped draft of the Reverse Mass Incarceration Act back in 2015 (first discussed here), have this new New York Daily News commentary making the case for this approach to prison reform under the headline "Joe Biden, Cory Booker, the 1994 Crime Bill and the future: How to unwind American mass incarceration."  I recommend the full piece, and here are excerpts:

As the 2020 field of candidates gets more crowded, Democrats have started weaponizing one of the most influential pieces of criminal justice legislation in the last 50 years — the 1994 Crime Bill.  Joe Biden, a key author of the bill when he served in the Senate, has doubled down, while his primary opponents correctly point to how it helped contribute to mass incarceration.

The debate is important, but an exclusive focus on the past underplays a crucial question: Moving forward, how will the country end mass incarceration that decades of federal funding helped create?  And what are presidential candidates’ plans to reverse failed policies?

The size of the U.S. prison system is unparalleled.  If each state were its own country, 23 states would have the highest incarceration rates in the world.  People of color are vastly overrepresented. African Americans make up 13% of the country’s population but almost 40% of the nation’s prisoners.

In response, Sens. Cory Booker (D-N.J.) and Richard Blumenthal (D-Conn.), along with Rep. Tony Cárdenas (D-CA), have just reintroduced the Reverse Mass Incarceration Act.  The bill, which they first introduced last Congress, provides financial incentives to states (which house 88% of America’s prison population) to reduce imprisonment rates.  It starts to unwind the web of perverse incentives set in motion by the Crime Bill and other laws.

To receive federal funding awards under the Act, states must reduce the imprisonment rate by 7% every three years and keep crime at current record lows.  States can choose their own path to achieve those goals, since the legislation sets targets instead of dictating policy....

The federal government has a long history of using federal funds to shape the criminal justice landscape.  For example, a bill passed in 1968 — amid concerns over rising crime rates — set up grant programs that allocated money to states to be used for any purpose associated with reducing crime.  Over two years, it authorized $400 million (roughly $2.7 billion in today’s dollars) in grants.  Two decades later, the Anti-Drug Abuse Act of 1986 played a central role in government policy in the War on Drugs by reinstating mandatory minimum sentences for drug possession, establishing $230 million (nearly $500 million today) in grants to fund drug enforcement while not permitting funding of drug prevention programs.

The 1994 Crime Bill extended that trend. It promised $8 billion ($13 billion in today’s dollars) to states if they adopted “truth-in-sentencing” laws, which required incarcerated individuals to serve at least 85 percent of their sentences.  A study by the Urban Institute found that between 1995 and 1999, nine states adopted truth-in-sentencing laws for the first time, and 15 states reported the Crime Bill was a key or partial factor in changing their truth-in-sentencing laws.  By 1999, a total of 42 states had such laws on the books....

Over the past decade, states have taken steps to move away from harsh sentencing laws. And Congress has made reforms to sentencing at the federal level, including the FIRST STEP Act, passed last year.

Certainly, one piece of federal legislation alone will not end mass incarceration, just as the 1994 Crime Bill was not solely responsible for causing it. Innovative changes at the local level must continue....  But the Reverse Mass Incarceration Act is one of the strongest steps the federal government can take to end mass incarceration.  By providing financial incentives to help power important changes at the local level, it’s a national bill that would help set a tone across the country.  It will encourage states to orient criminal justice strategies across the country toward more just and fair outcomes.

A few prior related posts:

May 23, 2019 at 09:42 AM | Permalink


As usual, articles like this get it exactly backwards. If you stop mass criminality, incarceration takes care of itself.

Posted by: TarlsQtr | May 23, 2019 1:24:18 PM

FTA: “African Americans make up 13% of the country’s population but almost 40% of the nation’s prisoners.”

The author should be embarrassed to write the above sentence with no discussion of black crime rates (most committed against fellow blacks).

Posted by: TarlsQtr | May 23, 2019 1:45:33 PM

Tarls, if you look at state-by-state violent crime rates and incarceration rates, you see that government policies clearly contribute to incarceration realities. For example, Kentucky and Virginia are in the bottom 10% among US States in violent crime rate, but both are in the top 25% in incarceration rates. Conversely, states like Alaska and Maryland have (way) above average crimes rate and below average incarceration rates. Meanwhile, in most other states relatively crime rates and relative incarceration rates are mostly in step, but in all states the current incarceration is way above historical and world norms.

Indeed, if we look at some international comparisons, this story becomes even more obviously about government policies. The incarceration rate in states like Louisiana and Oklahoma is 8 to 10 times higher than the rates in countries like Mexico, Ethiopia, Lebanon, Senegal and Greece (and I could go on and on). I have a hard time thinking that Okies are 8 to 10 times more criminal than the citizens in all these and so many other countries. And if you think this is mostly a story of black criminality, how do we explain how Montana (with the nation's lowest black population) has an incarceration rate that is nearly 7 times higher than Canada's?

In short, the story is complicated. And, as you know, folks on the left argue that much higher government investments in schooling and other social services are better ways to address "mass criminality" than using prisons, which are costly and often counterproductive if measured by recidivism rates. This Reverse Mass Incarceration proposals aspires to incentivize states to look for ways to reduce crime with heavy reliance on prisons: "To receive federal funding awards under the Act, states must reduce the imprisonment rate by 7% every three years and keep crime at current record lows. States can choose their own path to achieve those goals, since the legislation sets targets instead of dictating policy."

That all said, I always appreciate your engagement and perspective.

Posted by: Doug B | May 24, 2019 10:25:40 AM

Of course government policies can impact incarceration one way or the other.
Of course it is a complicated issue.
Of course more than keeping criminals in prison will impact crime rates.

None of that changes my statement.

Comparing black incarceration rates with their demographic without discussing black crime rate is either an oversight that would erode any credibility these two may have or a blatant attempt to deceive.

A quick question. One of the authors is a senior fellow at NYU and the other a director at the Brennan Center. If a student of yours wrote a paper on this topic, including the statement about black incarceration compared to their demographic size, would you just let such an oversight go by? Keep in mind that as a layperson it was the first thing I picked up on.

Posted by: TarlsQtr | May 24, 2019 1:03:36 PM

Trls, I agree that any simplistic comparison of incarceration rates and general population is an incomplete story. In my classes, I make this point with a focus on gender, since roughly 50% of the US population is male but nearly 90% of our prison population is male --- and nobody seriously complains about anti-male bias in our CJ system (though there are some data showing women often do better at sentencing).

That said, just about every rigorous study concerning the operation of various facets of our criminal justice system show some measure of racially disparate impact against blacks. Thus, while the population comparison is simplistic, it captures in a (too) simple way the broad concern that various systemic biases in the CJ system contributes to "people of color [being] vastly overrepresented" in our prisons.

As you noted in comments to another post, op-eds often include simplistic and incomplete statements. So while I understand your concern about this statement in this op-ed, I generally do not expect op-eds to have the same rigor as an academic paper (even one written by a student). And I am not sure how one can simply, in just a few words or sentences, fully capture the disparity realities that are reflected in hundreds of studies about the operation of the CJ system. Put differently, I do not see this statement as evidence that authors here are trying to deceive, but rather that the authors think the racial percentages in prison is disconcerting and one addition reason we should try to shrink the prison population.

Posted by: Doug B | May 24, 2019 3:48:04 PM

There is a difference between a layperson writing a persuasion piece and two very highly qualified attorneys doing the same thing. Persuade, but at least bring up the other side’s argument even if it is only to refute it.

Posted by: TarlsQtr | May 24, 2019 4:51:06 PM

Fair point, Tarls, but the main theme of this piece is that we should try to reduce incarceration levels. The side-point about the over-representation of people of color in prison is really just designed to set out another reason to be troubled by the oversized US prison population. Interesting, though, to see how this side-point turned you off, and that itself is a good lesson in the importance of making arguments to persuade effectively.

Posted by: Doug B | May 24, 2019 6:55:24 PM

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