Trials and Error

The Reverse Mass Incarceration Act Won’t Reverse Mass Incarceration

A new bill from Cory Booker and Richard Blumenthal has the right concept. It won’t work.

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Sen. Cory Booker at a committee hearing on Capitol Hill on April 25.

Chip Somodevilla/Getty Images

On Wednesday, Sens. Cory Booker and Richard Blumenthal introduced a bill with an ambitious goal. The Reverse Mass Incarceration Act is a proposal to amend the 1994 omnibus crime bill passed under President Clinton, which earmarked $12.5 billion in federal grants for states that passed harsher criminal sentencing laws. The new bill aims to do the opposite, by offering $20 billion in federal grant money over 10 years to states that decrease their prison populations by at least 7 percent over three years.

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The proposal holds obvious appeal for criminal justice reformers who are disturbed by the return to staunch law-and-order policies under the Trump administration. As attorney general, Jeff Sessions has already directed prosecutors to seek maximum penalties in criminal cases, undoing the modest reforms made by the Obama Justice Department.

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“The bill will encourage state and local governments to continue reform efforts despite what Sessions is doing,” says Inimai Chettiar, justice program director at the Brennan Center for Justice, which helped write the legislation and conducted the research it’s based on. The initiative has attracted support across the civil rights community—from the NAACP’s Washington bureau to the National Urban League and the Lawyers’ Committee for Civil Rights Under Law. The bill’s backers say the incentives embedded in the law could reduce imprisonment rates by 20 percent nationwide over the next 10 years.

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Despite this wide-ranging support, the bill thus far lacks a Republican sponsor. Sources on Capitol Hill say the absence of GOP interest, along with the attorney general’s overt hostility to criminal justice reform, means the chances of it moving forward any time soon are slim to none. Legislation with broad bipartisan support such as the Sentencing Reform and Corrections Act has struggled to move forward in this Congress, much less efforts led by the minority party. Although Trump senior advisor Jared Kushner met with conservative Sens. Chuck Grassley and Mike Lee in March, reportedly to discuss criminal justice reform, it remains unclear whether the meeting produced any forward movement on reform efforts. Chettiar, who is aware of the uphill battle the bill faces, says the goal is “to build more support over time.”

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In a statement, Booker said his aim is to “encourage states to reduce their prison populations and invest money in evidence-based practices proven to reduce crime and recidivism.” There are many successful examples of justice reinvestment initiatives like this one, in which money saved by reducing incarceration is reinvested in communities. It’s a principle that has a proven track record of helping cash-strapped states reduce incarceration rates and save money, and conservative groups like Right on Crime have expressed support for changing federal criminal justice grant incentives. But some criminal justice experts are skeptical that these relatively small grants are the best way forward.

“There’s tremendous political risk to cutting back [on incarceration], so I’m not sure you can just incentivize your way out of growth,” says John Pfaff, a Fordham law professor and the author of the book Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform. Of the $12.5 billion in federal funds earmarked by the 1994 crime bill for states that introduced tougher sentencing laws, Pfaff says only $2.7 billion was claimed, an indication “that these federal grants are kind of ignored.”

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The Booker-Blumenthal bill also mandates that a state is eligible for grant money only if its overall prison population drops by at least 7 percent and its crime rate increases by no more than 3 percent. Chettiar says this requirement is a way “to make the point that incarceration and crime are not inherently linked.”

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This makes very little sense as a matter of policy. As the Brennan Center itself has illustrated in a series of in-depth reports, crime rates can increase or decrease for myriad reasons: unemployment rates, changes in drug markets, economic stability, lead exposure. When crime rates in the U.S. peaked in 1990 and began to steadily drop, researchers struggled—and continue to struggle—to identify the main drivers of the decline. Social, environmental, and economic factors proved far more influential in reducing crime than incarceration rates, according to the Brennan Center’s 2015 study. That’s not to suggest incarceration has no effect on crime: A 2005 study from the Sentencing Project found 25 percent of the decrease in violent crime rates during the 1990s could be attributed to increased imprisonment. Still, that leaves 75 percent of the reduction outside the realm of incarceration.

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The gains in reducing crime that may be attributed to incarceration also come at a heavy price. The neighborhoods hit hardest by high incarceration rates are low-income areas that lack social services that are easily attained in more affluent communities. People of color are disproportionately represented in these communities, and in the prison system. In spite of a heavy police presence, these are also the same neighborhoods that are most heavily victimized by violent crime. Yet because of limited social resources and political capital, those most affected by crime aren’t often engaged in policy discussions about how to stamp it out.

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What’s more, this bill is unlikely to motivate some of the most important stakeholders in the fight to reduce incarceration rates: local prosecutors. Prosecutors’ associations are some of the most powerful institutions speaking out for tough sentencing. (Recent setbacks to reform in Louisiana, for example, came largely thanks to opposition from prosecutors.) Even if states fund crime reduction programs with federal grants, that won’t change the power, autonomy, and immunity enjoyed by most prosecutors, who ultimately decide who will be charged and how harshly.

Pfaff acknowledges that the bill could encourage states to think creatively about how to rein in prison growth but thinks it’s “not enough money to encourage them to do that aggressively.” Without considering what motivates key players like prosecutors who consistently oppose reform, a well-intentioned law with a meager budget is unlikely to bring about the change it promises.    

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