Criminal Justice Reform Is Having a (Long Overdue) Moment
Slowly but surely, some of the most glaring problems of our criminal justice system are being addressed.
Last May, reality TV mega-celebrity Kim Kardashian arrived at the White House and successfully lobbied President Donald Trump to grant clemency to Alice Marie Johnson, a grandmother then serving life in federal prison for a nonviolent drug crime.
It would be easy to read that sentence as an encapsulation of the deeply absurd times we're living through, but 2018 was full of similarly unexpected and encouraging turns in the fight to reform the criminal justice system. Along with Kardashian getting lifers out of prison, Republicans and Democrats hugged on the Senate floor to celebrate the passage of a bill rolling back some mandatory minimum sentences, and former Obama green jobs czar Van Jones stood in the White House with conservative and evangelical Christian leaders to applaud the signing of that bill. Johnson, who served 21 years in federal prison before Kardashian got her released, was an honored guest at Trump's State of the Union speech this January and published a book about her experiences.
The U.S. criminal justice system railroads innocent people and petty offenders every day. People die in jails and prisons due to neglect or plain malice by public officials. Even if the U.S. released every single nonviolent drug offender currently behind bars, it would still have the highest prison population in the world by a wide margin. These are problems that won't be completely resolved any time soon. Yet ever so slowly, thanks to a combination of criminal justice advocates, budget-conscious legislators, and voter demand—not to mention the devastating testimony of people like Johnson—some of the system's most glaring problems are being addressed. Solutions may still be a long way off, but real progress is being made.
Cross-partisan efforts are happening around the country—at the federal, state, and local levels—to change the way people interact with every facet of the criminal justice system, from initial police encounters to sentencing to prisoner re-entry back into society. Some of those efforts will fail. Others will be misguided or ineffectual. But the fact that policy makers are considering alternatives to the lock-'em-up mentality that dominated much of the latter half of the 20th century, and are working with their usual political opponents to make it happen, is a cause for optimism.
Congress Took a Baby Step
In December, federal lawmakers passed the first major criminal justice bill in nearly a decade: the FIRST STEP Act. Although a small cadre of Republicans tried to scuttle the bill, it passed by overwhelming bipartisan majorities in the House and Senate. Some of the GOP senators who shepherded it through Congress, such as Chuck Grassley (R–Iowa), had previously been among the staunchest supporters of harsh drug laws and mandatory minimum sentences.
The legislation was almost painfully modest in scope. It reduced, but didn't eliminate, several mandatory minimum sentences, and it provided retroactive sentencing reductions to about 3,000 federal inmates serving time under draconian crack cocaine laws. It was riddled with exceptions to appease law enforcement groups, but considering how long it had been since Congress had done, well, anything worth celebrating, it was a notable success.
The biggest lift for those backing the bill was securing the support of Donald Trump, who had made fearmongering about crime one of the highlights of his stump speeches as a 2016 candidate. A bipartisan group of lawmakers and advocates, including White House adviser and Trump son-in-law Jared Kushner, worked for months to convince the president that unjust laws were putting nonviolent offenders in prison for far too long and giving inmates far too few opportunities to succeed when they re-entered society.
For his part, Trump seems to enjoy the positive press he's received on the issue. The White House bragged in an April press release that the FIRST STEP Act had already resulted in 573 federal inmates being released early from prison. That list included people who were serving life sentences for nonviolent drug offenses, who had expected to die behind bars.
There are many more people languishing in prison under indefensible mandatory minimum sentences who deserve to be freed. But for the former inmates and their families who have been reunited, the benefit has been unquantifiable.
Many civil liberties groups worried that the first step would turn out to be the only step—that the Trump administration and Congress would pat themselves on the back and declare the criminal justice system fixed. The American Civil Liberties Union and the Leadership Conference on Civil & Human Rights, both of which had opposed earlier, weaker versions of the FIRST STEP Act, wrote in a joint statement that the bill was "an important but modest step forward for justice and human dignity. But it is not the end of our fight." The same advocates who got the law passed are now keeping pressure on the Trump administration to fully implement its provisions.
States Are Pushing Ahead With Reforms
Over the last decade, the bulk of criminal justice reforms have happened at the state level. That trend shows no sign of slowing down. Responding to the promising bipartisan developments in Congress, the Florida, Missouri, and North Carolina legislatures all considered state-level versions of the FIRST STEP Act this year.
One reason many states are looking for ways to reform their criminal justice systems is that their prisons are overcrowded, understaffed, wildly expensive, and dangerous. In Florida, legislators are grappling with how to draw down the third-largest incarcerated population in the country. That population is growing older and more expensive to care for, due to the mandatory minimum sentences many inmates are serving.
"The truth is the state can't afford 96,000 inmates, not without spending hundreds and hundreds of millions of dollars a year and pulling that money from education or health care, which it doesn't want to do," says Florida state Sen. Jeff Brandes, a Republican.
Meanwhile, California is using algorithms to automatically expunge the criminal records of tens of thousands of marijuana offenders, freeing them from the lifelong stigma that a rap sheet carries. If this pilot program spreads, it could go a long way toward rolling back some of the damage wrought by the drug war.
In April, the New York state legislature eliminated cash bail for misdemeanors and nonviolent felonies, which had been needlessly trapping poor people behind bars. The Marshall Project reported that 33,000 criminal defendants in the state spent time in jail in 2017 because they couldn't afford to post bail. New York legislators also reformed the state's discovery rules, which previously allowed prosecutors to withhold evidence from defense attorneys until the very eve of trial. (Public defenders called it "trial by ambush.") Together, these reforms help level the playing field for defendants in what has traditionally been one of the most backward states in the U.S. when it comes to criminal justice policies.
Meanwhile, capital punishment continued its slow decline last year. The Death Penalty Information Center reported that executions remained near historic lows in 2018, while the number of death penalty sentences imposed dropped for the 18th straight year. Only eight states now perform executions. Last year, Washington's supreme court ruled the state's death penalty law unconstitutional, and earlier this year California Gov. Gavin Newsom declared a moratorium on executions.
Voters Are Holding Prosecutors Accountable
In major cities across the country, district attorney (D.A.) elections have gone from sleepy, often-uncontested affairs to high-profile races that have drawn attention to the powerful role the prosecutor plays in mass incarceration.
In many of these races, candidates running on explicit reform platforms have unseated incumbents and launched ambitious programs to change the way prosecutors' offices operate.
Philadelphia District Attorney Larry Krasner, a former civil rights lawyer who was elected to be the city's top prosecutor in 2017, ordered his line prosecutors to stop bringing charges for minor marijuana violations, to request more lenient sentences for a number of crimes, and to not seek bail for 25 minor offenses. A February study by researchers at the University of Pennsylvania and George Mason University found that the bail policy led to an immediate 22 percent decline in defendants who spent at least one night in jail. And according to a presentation Krasner gave to the Philadelphia City Council in April, the estimated total time to which defendants were sentenced during the last three months of 2018 dropped by 46 percent compared to the first three months of 2014.
In Suffolk County, Massachusetts, which includes Boston, District Attorney Rachael Rollins was elected in 2018 on promises to stop prosecuting 15 different minor crimes and to largely end cash bail. And in Birmingham, Alabama, District Attorney Danny Carr is proposing a "cite-and-release" plan for simple marijuana possession.
These reform-minded D.A.s face pushback from law enforcement as well as, in some cases, from judges, who are often former prosecutors. For example, judges rejected Krasner's recommendations in the resentencing of defendants who had been given life without parole as juveniles, a practice the Supreme Court later ruled was unconstitutional.
Yet the trends are positive. In Queens, New York, seven candidates are running for district attorney—all of them on reform platforms. And in Philadelphia, activists have turned their attention to the next public office they want to target: judges.
Violent Crime and the Prison Population Are Declining
Despite a two-year increase in violent crime in 2015 and 2016, with murders spiking dramatically in several major cities, overall crime rates in the U.S. remain at historic lows and now appear to be holding steady or continuing their decadeslong decline.
Nationally, the violent crime rate in 2017 fell by 0.9 percent from the previous year, while the murder rate fell by 1.4 percent, according to the FBI's annual crime report. Property crime continued a more-than-20-year slowdown. Aggravated assault and rape rates both increased, by 2.2 percent and 0.3 percent, respectively—but for context, the total number of crimes per 100,000 people in major American cities has fallen precipitously from just under 10,000 in 1990 to fewer than 4,000 in 2018, according to a report by the Brennan Center for Justice.
As the crime rate has fallen, the U.S. prison population has also continued to decline, albeit slowly. A report released in April by the Vera Institute of Justice found that there were just under 1.5 million people incarcerated in federal and state prisons across the country in 2018—a nine-year low and a drop of 1.3 percent from 2017.
"Since 2008, the incarceration rate in the country has dropped 15 percent," says Jacob Kang-Brown, a senior research associate at the pro-reform Vera Institute. "And underneath that number you see quite a few states have dropped over 30 percent during that time. I think that those states that are really leading the way can be an example to the states that are still putting more and more people in their prison systems."
There are several troubling trends lurking beneath that topline number, Kang-Brown says. While the prison population decreased in 31 states, including California, Louisiana, and Pennsylvania, it rose in 19 others—many of them places that have traditionally had low incarceration rates, such as Iowa, Indiana, and Wyoming. In Indiana, the legislature several years ago passed reforms meant to reduce the state's prison population. Instead, they diverted low-level inmates to county jails, which are now severely overcrowded. In Wyoming, officials say tough sentences for drug and sex crimes are driving the increase.
The overall number of incarcerated women has climbed as well. And in some states where prison populations are falling, those reductions haven't reached minorities.
"We may want to celebrate reform efforts that have led to the drop in the prison rate in Minnesota," Kang-Brown says. "However, a closer look at the data shows that this downward trend only affected white people and does not adequately address the racial disparities that we know exist in our justice system. Better data will help us interrogate not just the effectiveness of reform but who benefits from reform."
A Positive Trajectory
Even though the criminal justice system remains problem-plagued, we can take some heart from the trajectory toward shorter sentences and less taxpayer money spent on caging people whose so-called crimes haven't hurt anyone.
Eternal vigilance will be required to ensure that new prison sentences aren't the default answer to every new problem, but it's significant that many conservative groups are now urging Republicans to resist their most punitive instincts.
Even if Congress reneges on its newfound love for bipartisan criminal justice reforms, activists will continue to work around them, as they have for decades. And if all else fails, Kim Kardashian is now reportedly studying for the California bar exam.