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November 3, 2022

Is the US "on the verge of a new wave of mass incarceration"?

The question in the title of this post is prompted by this notable new Time commentary by Udi Ofer given the headline "Politicians' Tough-on-Crime Messaging Could Have Devastating Consequences."  Here are some extended excerpts from a piece that merits reading in full:

In the majority of hotly contested 2022 midterm races across the country, tough-on-crime rhetoric is at the top of the agenda.  Close to 60% of Republican spending on campaign ads since September has been on the topic of crime, with tens of thousands of ads running on the issue, and Democrats have responded with their own $36 million war chest.  Not since the height of America’s mass incarceration era has the nation seen law and order politics play such an outsized role in candidate races up and down the ballot.  The outcome could put the country in danger of entering a new era of more mass incarceration....

While Republicans are leading this charge, both parties are playing with fire, as the political rhetoric being deployed this election season has the potential to trigger a new surge in incarceration, as occurred following previous election cycles that starred tough-on-crime rhetoric.  Between 1973-2009, the nation saw an exponential growth in incarceration, from approximately 200,000 people in prisons and jails in 1973 to 2.2 million by 2009, making the U.S. the largest incarcerator in the world, with a rate 5 to 10 times higher than Western Europe and other democracies.  Hundreds of new laws and practices passed at the local, state, and federal levels, including new mandatory minimums with harsh sentences, more cash bail and pretrial detention, and more aggressive prosecutorial and policing practices like stop-and-frisk....

Along with mass incarceration came extreme racial inequities that spread well beyond the carceral system.  A Black boy born in the 2000s had a 1 in 3 chance of ending up incarcerated, compared to a 1 in 17 chance for a white boy.  Mass incarceration has contributed significantly to the racial achievement gap, poorer health outcomes in Black communities, and economic hardship for Black families....

This crisis in mass incarceration, which only recently began to dip, has roots that run deep in efforts to politicize and racialize crime.  Mass incarceration has been fueled by moments like the one we are living in today, where following years of gains on civil rights, a backlash ensues and crime is conflated with reforms and civil rights protests....

It wasn’t until the past 10 years that a bipartisan movement for criminal justice reform formed, pushing for an alternative approach.  This movement by Democrats and Republicans has worked together in states across the country to pass bipartisan reforms, such as sentencing reform in Louisiana and Oklahoma, bail reform in New Jersey and Colorado, second chance laws in Georgia, Michigan, Pennsylvania and Utah, drug law reform in Oregon and Rhode Island, and much more.  The nationwide prison population began to drop to 1.2 million, and the U.S. moved from first to fifth place in the global ranking of imprisonment rates, right between Cuba and Panama.  Families were reunited with their loved ones, and some of the states that have seen the largest decrease in incarceration are also some of the safest states in the nation, like New Jersey.

But today, just as nationwide incarceration rates were beginning to slowly drop, public anxiety over crime is being turned into a wedge issue between the two political parties to undermine progress made on civil rights and criminal justice reform.  Bail reform, police reform, parole reform, and sentencing reform are wrongfully being blamed for a rise in crime....

Candidates for office can resist the tough-on-crime impulse that has grown so common since Barry Goldwater’s 1964 run for office. They can provide a new vision for safety, one that many communities have been calling for — one the emphasizes prevention and investments in public health, schools, jobs, housing and community support structures, and relegates incarceration to the last possible option, after all other intervention efforts have failed.

In fact, research conducted by organizations like Vera Action and HIT Strategies has found that while voters care deeply about crime, they want more than the one-dimensional tough-on-crime message being delivered.  Candidates benefit by articulating a vision that recognizes that public safety is achieved when we provide people with the resources they need to thrive, like earning a living wage, receiving a good education, and having stable housing.  Voters understand that police shouldn’t be the ones charged with solving every social problem, from kids skipping school to mental health needs to homelessness. Instead, voters are seeking long term solutions rooted in prevention, like a good education and a good job.

So far, too few politicians on both the right and left are moving away from the reflexive tough-on-crime rhetoric that has proven to be so devastating in the past.  It won’t be clear until after the midterms how much this rhetoric has impacted voter choices, but the damage may have already been done.  Unless more politicians change course, the U.S. is on the verge of a new wave of mass incarceration — as history repeats itself.

There is much to commend in this piece (including in parts I did not reprint here), and I think there is a very sound basis to expect and fear that heightened concerns about crime and the new wave of political rhetoric being deployed this election season likely will slow or even impede various parts of the agenda in the bipartisan movement for criminal justice reform.  One obvious "for example" here is the now-stalled effort to equalize crack and powder cocaine sentences at the federal level.  The US House of Representatives voted overwhelmingly in Sept 2021, by a tally of 361-66, to pass the EQUAL Act to equalize powder and crack cocaine sentences, but concerns about "soft-on-crime" attacks have seemingly kept the Senate from moving forward.  

But slowing down on-going reform efforts is a long way from "a new wave of mass incarceration."  As this commentary suggests, both voters and their representatives now understand the importance of a variety of policy responses to crime concerns.  More broadly, we now generally see a far more nuanced discussion of mandatory minimum sentences, drug policy issues and even the death penalty than we did a generation ago.  For example, though a number of GOP Senators have now come out against the EQUAL Act, their competing bill still involves reducing crack sentences a good deal (while also raising cocaine sentences a bit).  And at least one GOP Senator, Mike Lee, is still actively campaigning on his bipartisan criminal justice reform work in the FIRST STEP Act.  In other words, while we may only see a "one-dimensional tough-on-crime message" in 30-second TV ads, I sense most policy-makers still recognize the need for so-called "smart-on-crime" reform efforts.

Ultimately, a lot of political and policy forces that developed over decades provided the infrastructure for modern mass incarceration, and a lot of countering political and policy forces also developing over decades have contributed to the (slow) decline in incarceration rates in recent years.  I do not think one political cycle alone will dramatically change all the trends and dynamics that have brought us to this somewhat fraught moment.  But I do think, as this commentary stresses in many ways, there are plenty of political and policy lessons to learn from both older and more recent developments.  Interesting times.

November 3, 2022 at 04:17 PM | Permalink

Comments

Crime in general, and release without bail in particular, have been terrific campaign issues for Republicans. This is just the usual cycle in action:

1. Punishment for crime is reduced.
2. Crime in general increases. In particular, there are high-profile crimes committed by beneficiaries of the reduced punishment.
3. Pro-punishment politicians win office.
4. Punishments are increased.
5. Absurdly-high punishments make the news. In particular, there are high punishments for conduct which arguably should not be crimes, and innocent people are punished for crimes they did not commit.
6. Politicians sympathetic to defendants win office.
7. Return to step 1.

We are about to see step 3, I think.

Apparently, we don't find enough prosecutors who believe in punishing the guilty and not punishing the innocent.

Posted by: William C Jockusch | Nov 4, 2022 8:50:05 AM

William C. Jockusch --

I was an AUSA for 25 years under administrations of both parties, and my colleagues and I believed in NOTHING BUT punishing the guilty and not punishing the innocent. We did plenty of both, I'm happy to say. By the time I left, we were many years into the biggest drop in crime in American history, to the benefit of all citizens, but especially black citizens.

Posted by: Bill Otis | Nov 4, 2022 11:44:08 AM

Glad to hear it. The problems I've seen are mostly at the state and local level. Just as a for-example, to a person who was paying attention to the details of the evidence, it has been obvious since 2014 that Adnan Syed didn't do it. Yet he just got out this year. Other examples include Barton McNeil (IL), Joey Watkins (GA) -- may be about to get out but they are still fighting it, Jamar Huggins (SC), and Sandra Melgar (TX) -- an appeal is pending that might set her free. In each case, the evidence of innocence is in the public domain and known to thousands of people. Yet the relevant prosecutors are still fighting it.

Posted by: William C Jockusch | Nov 4, 2022 5:26:12 PM

Mr. Jockush is absolutely correct. Due to the fact that local DA's are elected officials, and must consider the political ramifications of their decisions should they desire to be re-elected, the "tough on crime" posture is of far greater significance than that of a U.S. Attorney, and their subordinates (AUSA's). As such, Mr. Otis and his former federal colleagues would, on the whole, be less likely to pursue convictions irrespective of the veracity, or lack of veracity, of the evidence.

Posted by: SG | Nov 4, 2022 6:09:15 PM

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