Criminal Justice Reform’s Shaky Coalition
With the United States at historic levels of political polarization, it’s shocking that a topic as ripe for controversy as criminal justice reform is currently enjoying a rare bipartisan moment. Nonetheless, the push for a smaller prison system, abolition of mandatory minimums, and fewer causes for arrest, has brought together a wide range of political figures that otherwise agree on little else. Rand Paul (R-KY), Cory Booker (D-NJ), Chuck Grassley (R-IA), and Dick Durbin (D-IL) are among the bipartisan coalition of senators who are, with the support of President Obama, working to propose such legislation. Signs of bipartisanship are evident beyond the Capitol as well. The newly formed Coalition for Public Safety draws support from the conservative Koch Industries and the liberal Ford Foundation, and partners with political groups that run the ideological gamut including the ACLU, Americans for Tax Reform, Center for American Progress, and FreedomWorks. A “Bipartisan Summit on Criminal Justice Reform,” sponsored by Newt Gingrich and Van Jones, was held in March 2015, and featured 82 politicians, activists, and policy experts from across the political spectrum.
Bipartisanship is a rare and welcome sight, and the high degree of comity engendered by criminal justice reform makes its passage seem like a fait accompli. But the potential for fractures in the coalition due to changing facts on the ground are very real, and make passing criminal justice reform an even more urgent task.
To understand why criminal justice reform may be in trouble, we must first understand why it came to be such a problem in the first place. In the 1980s and 1990s, criminal justice reform was also a bipartisan issue, with Presidents Reagan and Clinton installing the policies that today’s leaders are looking to roll back. Reagan and Clinton signed bills that created and strengthened mandatory minimum sentencing, extended sentence lengths, and allocated money to build more prisons. While they are now widely criticized, these policies were not arbitrary; when Reagan took office in 1980, violent crime occurred at a rate of roughly 6 crimes per one thousand inhabitants, and reached its peak in 1991 with a rate of 7.6 crimes/thousand. The policies introduced at this time were meant to solve the crime problem which, according to a Washington Post/ABC poll from 1994, was the top concern of 31 percent of Americans at that time.
Since then, the crime rate has been nearly halved, dropping to 3.9/thousand in 2012. Some have attributed this drop to the massive boom in incarceration (which has imprisoned 2.3 million Americans, making up a tenth of all American adults and a quarter of all prisoners in the world). The logic goes that locking up so many criminals leaves a much higher percentage of non-criminals on the streets, which would naturally lead to a decline in the crime rate.
However, according to an empirical study from the Brennan Center for Justice, incarceration has had a negligible impact on the crime rate, accounting for about 5 percent of the crime drop in the 1990s, and essentially none of the crime drop in the 2000s. This counterintuitive finding can be attributed to diminishing returns. Increasingly, police have been filling the jails with nonviolent offenders, including many who are prosecuted for drug crimes. There simply aren’t that many more violent offenders out there to arrest, and jailing more nonviolent offenders won’t necessarily contribute to a decrease in crime.
The Brennan Center report tested 14 causes commonly cited as reasons for the crime drop (including larger police forces, income growth, decreased crack use, improved policing methods like CompStat), and found that even accounting for all 14 factors, at least half of the crime drop remains unexplained.
This summer, several major U.S. cities have experienced an unusually large spike in murders, which was concerning enough that it prompted a number of law enforcement officials across the country to convene a summit in DC to address the problem. Like the researchers at the Brennan Center, these officials are having difficulty ascribing the crime spike to any particular cause. Since the causes are indeterminate, it remains a distinct possibility that the crime rate will begin an upward journey. If that happens, policymakers may once again ignore the awful economic and human costs that “tough on crime” policies have incurred (mostly against African-American families and communities), and seek to reinstate them. They may trade potentially safer streets for $80 billion in annual prison spending along with the deprivation of employment possibilities and housing opportunities for the 100 million Americans with a criminal history record.
Right now, there is a rare opportunity for lawmakers to push forward on reforms that won’t automatically impose disproportionate sentences, vastly reduce the number of nonviolent offenders who are imprisoned and subsequently locked out of much of public life, and grant clemency to prisoners who complete programs which reduce their chances of recidivism.
As it stands, criminal justice reform seems as sure a bet as any in politics. But if legislation is delayed, or not codified firmly enough, creeping crime rates could undermine an exceptional chance to correct the errors of the past.