CRIMINAL JUSTICE REFORM
The Justice Movement supports (1) major sentencing reforms, including the elimination of minimum mandatory sentences; (2) the elimination of the death penalty; (3) a change in focus from punishment to rehabilitation and restorative justice; (4) alternatives to incarceration for non-violent offenders; (5) substance abuse treatment on demand; and (6) expanded access to mental health treatment.
The Record of Republicans and Democrats
The United States prison population in 1972 was 200,000; today more than 2.1 million people are imprisoned in U.S. jails and prisons.[13]
The United States has by far the world’s highest rate of incarceration. With only about 4.25% of the world’s population,[14] the U.S. has about 25% of the world’s prison population.[15] The U.S. imprisons more people per capita than any other nation––639 per 100,000 people. Compare that to Russia (341), Israel (234), New Zealand (188), Mexico (158), United Kingdom (114), France (87), Germany (69), and Norway (49).[16] In other words, the U.S. incarceration rate is four times higher than Mexico, more than five times higher than the U.K., seven times higher than France, nine times higher than Germany, and thirteen times higher than Norway.
The prison population is disproportionately comprised of people of color. As of 2016, Blacks made up roughly 13 percent of the U.S. population but 37 percent of the nation’s prisoners.[17]
Both the Democratic and Republican Parties are responsible for the continuing shame and gross injustice of record mass incarceration in the United States.
President Nixon, using fear and appeals to racism, started the trend toward mass incarceration declaring a “war on drugs.” When he took office in 1980, the U.S. prison population was 329,000; when he left office eight years later, the prison population had almost doubled, to 627,000, hitting communities of color the hardest.[18]
The fastest rise in incarceration was in the states. In Texas, the incarceration rate grew from 182 per 100,000 residents in 1978 to a rate of 710 by 2003.
The rapid increases in incarceration were spurred, in part, by the 1994 Crime Bill, promoted and signed by President Clinton and pushed by then-Senator Joe Biden, Chair of the Senate Judiciary Committee.[19] That federal legislation appropriated money to states, encouraging, among other things, more drug arrests and prosecutions, the building of more prisons, and imprisonment for longer terms.
Other tough-on-crime “drug war” federal legislation pushed by Democrats (particularly Joe Biden, who said punishments should “hold every drug user accountable”[20]) also contributed to mass incarceration in the U.S. and other civil rights abuses.
In the first analysis of its kind, in 2016 the Brennan Center for Justice at NYU Law School determined that nearly 40 percent of the U.S. prison population are behind bars without a compelling public safety rationale.[22]
During his presidential campaign, Joe Biden repeatedly said he would reduce the country’s prison population and, at one point, he said his administration could cut the number of incarcerated people by more than half, with a new emphasis on alternatives to prison. After a year of the Biden administration, those promises have been betrayed, with the number of people in federal prisons continuing to grow.[23]
The United States has by far the world’s highest rate of incarceration. With only about 4.25% of the world’s population,[14] the U.S. has about 25% of the world’s prison population.[15] The U.S. imprisons more people per capita than any other nation––639 per 100,000 people. Compare that to Russia (341), Israel (234), New Zealand (188), Mexico (158), United Kingdom (114), France (87), Germany (69), and Norway (49).[16] In other words, the U.S. incarceration rate is four times higher than Mexico, more than five times higher than the U.K., seven times higher than France, nine times higher than Germany, and thirteen times higher than Norway.
The prison population is disproportionately comprised of people of color. As of 2016, Blacks made up roughly 13 percent of the U.S. population but 37 percent of the nation’s prisoners.[17]
Both the Democratic and Republican Parties are responsible for the continuing shame and gross injustice of record mass incarceration in the United States.
President Nixon, using fear and appeals to racism, started the trend toward mass incarceration declaring a “war on drugs.” When he took office in 1980, the U.S. prison population was 329,000; when he left office eight years later, the prison population had almost doubled, to 627,000, hitting communities of color the hardest.[18]
The fastest rise in incarceration was in the states. In Texas, the incarceration rate grew from 182 per 100,000 residents in 1978 to a rate of 710 by 2003.
The rapid increases in incarceration were spurred, in part, by the 1994 Crime Bill, promoted and signed by President Clinton and pushed by then-Senator Joe Biden, Chair of the Senate Judiciary Committee.[19] That federal legislation appropriated money to states, encouraging, among other things, more drug arrests and prosecutions, the building of more prisons, and imprisonment for longer terms.
Other tough-on-crime “drug war” federal legislation pushed by Democrats (particularly Joe Biden, who said punishments should “hold every drug user accountable”[20]) also contributed to mass incarceration in the U.S. and other civil rights abuses.
- The Comprehensive Crime Control Act, a 1984 law pushed by Senators Biden and Strom Thurmond, expanded drug trafficking penalties and provided for civil asset forfeiture, allowing police to seize a person’s property without proving the person is guilty of a crime.
- The Anti-Drug Abuse Act of 1986, sponsored by Biden, increased penalties for drug crimes and created a huge disparity in sentencing between crack and powder cocaine, leading to an even greater racial disparity in incarceration since Blacks more commonly used crack.
- The Anti-Drug Abuse Act of 1988, co-sponsored by Biden, once again increased prison sentences for drug possession, among other things.[21]
In the first analysis of its kind, in 2016 the Brennan Center for Justice at NYU Law School determined that nearly 40 percent of the U.S. prison population are behind bars without a compelling public safety rationale.[22]
During his presidential campaign, Joe Biden repeatedly said he would reduce the country’s prison population and, at one point, he said his administration could cut the number of incarcerated people by more than half, with a new emphasis on alternatives to prison. After a year of the Biden administration, those promises have been betrayed, with the number of people in federal prisons continuing to grow.[23]
Majority Support for Major Criminal Justice Reform
In a 2018 survey of 2000 U.S. adults in rural areas, small cities, and major metropolitan areas, 67% agreed that “building more jails and prisons to keep more people in jail does not reduce crime.” Also, 62% agreed building more prisons and jails is not an effective means to improve the quality of life, favoring investment in education, job training, roads, programs to reduce bias, and community-based services.[24]
In a 2017 poll conducted by the John D. & Catherine T. MacArthur Foundation, “60% of Americans believe that ‘rehabilitating or treating the person’ is the most appropriate response to non-violent offenses as opposed to ‘punishing the person for committing the crime’ or ‘keeping the person off the street so they can’t commit more crimes.’ Support for rehabilitation rises to 71% for non-violent offenses by those who suffer from mental illness.”[25]
“Except for the most serious crimes, 75% of Americans believe the most appropriate sentence for an offense by a person with a mental disorder should not involve jail time. People see alternatives to incarceration––such as treatment or rehabilitative services, probation, or community service––as the best option in these cases.” “84% agreed that local governments should devote more resources to substance abuse treatment.”[26]
In a 2017 poll reflected consensus support for reducing prison population in the U.S. by people who identified as conservative, liberal, and moderate. Seventy-one percent agreed it is important to reduce the prison population, including 87% of Democrats, 67% of Independents, and 57% of Republicans (including 52% of Trump voters).[27]
Eighty-four percent believe that people with mental health disabilities belong in mental health programs instead of prison. Seventy-one percent of Americans (including 68% of Republicans) agree that incarceration is often counterproductive to public safety, since “sending someone to prison for a long sentence increases the chances that he or she will commit another crime when they get out because prison doesn’t do a good job of rehabilitating problems like drug addiction and mental illness.”
“[A] large majority of Americans (72%) would be more likely to vote for a candidate who believes in eliminating mandatory minimum sentencing, and 73% would be more likely to vote for a candidate who commits to reducing sentences and reinvesting the cost savings into community programs.”[28]
Even going back to 2012 polling sponsored by the Pew Center on the States, 88% (94% of Democrats, 89% of Independents, and 81% of Republicans) agreed that “We have too many low-risk, non-violent offenders in prison. We need alternatives to incarceration that cost less and save our expensive prison space for violent and career criminals.” Eighty-seven percent (90% of Democrats, 89% of Independents, and 82% of Republicans) agreed that “If we are serious about public safety, we must increase access to treatment and job training programs so they can become productive citizens once they are back in the community.”[29]
In a 2017 poll, 78% of respondents (81% of Democrats, 83% of Independents, and 68% of Republicans) support shifting the youth justice system from a focus on incarceration and punishment to prevention and rehabilitation.[30]
In a 2017 poll conducted by the John D. & Catherine T. MacArthur Foundation, “60% of Americans believe that ‘rehabilitating or treating the person’ is the most appropriate response to non-violent offenses as opposed to ‘punishing the person for committing the crime’ or ‘keeping the person off the street so they can’t commit more crimes.’ Support for rehabilitation rises to 71% for non-violent offenses by those who suffer from mental illness.”[25]
“Except for the most serious crimes, 75% of Americans believe the most appropriate sentence for an offense by a person with a mental disorder should not involve jail time. People see alternatives to incarceration––such as treatment or rehabilitative services, probation, or community service––as the best option in these cases.” “84% agreed that local governments should devote more resources to substance abuse treatment.”[26]
In a 2017 poll reflected consensus support for reducing prison population in the U.S. by people who identified as conservative, liberal, and moderate. Seventy-one percent agreed it is important to reduce the prison population, including 87% of Democrats, 67% of Independents, and 57% of Republicans (including 52% of Trump voters).[27]
Eighty-four percent believe that people with mental health disabilities belong in mental health programs instead of prison. Seventy-one percent of Americans (including 68% of Republicans) agree that incarceration is often counterproductive to public safety, since “sending someone to prison for a long sentence increases the chances that he or she will commit another crime when they get out because prison doesn’t do a good job of rehabilitating problems like drug addiction and mental illness.”
“[A] large majority of Americans (72%) would be more likely to vote for a candidate who believes in eliminating mandatory minimum sentencing, and 73% would be more likely to vote for a candidate who commits to reducing sentences and reinvesting the cost savings into community programs.”[28]
Even going back to 2012 polling sponsored by the Pew Center on the States, 88% (94% of Democrats, 89% of Independents, and 81% of Republicans) agreed that “We have too many low-risk, non-violent offenders in prison. We need alternatives to incarceration that cost less and save our expensive prison space for violent and career criminals.” Eighty-seven percent (90% of Democrats, 89% of Independents, and 82% of Republicans) agreed that “If we are serious about public safety, we must increase access to treatment and job training programs so they can become productive citizens once they are back in the community.”[29]
In a 2017 poll, 78% of respondents (81% of Democrats, 83% of Independents, and 68% of Republicans) support shifting the youth justice system from a focus on incarceration and punishment to prevention and rehabilitation.[30]
[13] World Population Review, available at https://worldpopulationreview.com /country-rankings/incarceration-rates-by-country.
[14] “United States Population,” Worldometer, available at https://www.worldo meters.info/world-population/us-population/.
[15] World Population Review, available at https://worldpopulationreview.com /country-rankings/incarceration-rates-by-country.
[16] Id. See also “Countries with the largest number of prisoners per 100,000 of the national population, as of May 2021,” Statista, available at https://www. statista.com/statistics/262962/countries-with-the-most-prisoners-per-100-000-inhabitants/.
[17] Cornell William Brooks, Foreword, “How Many Americans Are Unnecessarily Incarcerated?,” Brennan Center for Justice (2016), available at https://www.brennancenter.org/sites/default/files/2019-08/Report_Unnecessarily_Incarcerated_0.pdf.
[18] James Cullen, “The History of Mass Incarceration,” Brennan Center for Justice (July 20, 2018), available at https://www.brennancenter.org/our-work/analysis-opinion/history-mass-incarceration.
[19] “Biden also took credit for the law: ‘As a matter of fact, I drafted the bill, if you remember.’” “Biden reveled in the politics of the 1994 law, bragging after it passed that ‘the liberal wing of the Democratic Party’ was now for ‘60 new death penalties,’ ‘70 enhanced penalties,’ ‘100,000 cops,’ and ‘125,000 new state prison cells.’” “On the website for his 2008 presidential campaign, Biden referred to the 1994 crime law as the ‘Biden Crime Law’ and bragged that it encouraged states to effectively increase their prison sentences by paying them to build more prisons. German Lopez, “The controversial 1994 crime law that Joe Biden helped write, explained,” Vox (September 29, 2020), available at https://www.vox.com/policy-and-politics/2019/6/20/18677998/joe-biden-1994-crime-bill-law-mass-incarceration.
[20] Id.
[21] German Lopez, “The controversial 1994 crime law that Joe Biden helped write, explained,” Vox (September 29, 2020), available at https://www.vox.com/policy-and-politics/2019/6/20/18677998/joe-biden-1994-crime-bill-law-mass-incarceration.
[22] James Austin and Lauren-Brooke Eisen, How Many Americans Are Unnecessarily Incarcerated?, Brennan Center for Justice, NYU School of Law (2016), available at https://www.brennancenter.org/our-work/research-reports/how-many-americans-are-unnecessarily-incarcerated.
[23] Samantha Michaels, “Biden Said He’d Cut Incarceration in Half. So Far, the Federal Prison Population Is Growing,” Mother Jones (July 21, 2021).
[24] “New Poll Finds That Urban and Rural America are Rethinking Mass Incarceration,” Vera Institute of Justice (April 19, 2018), available at https://www.vera.org/newsroom/new-poll-finds-that-urban-and-rural-america-are-rethinking-mass-incarceration.
[25] Zogby Analytics “Re: Public Opinion Poll Findings on Jails and Local Justice Systems,” (February 13, 2018), available at https://safetyandjusticechallenge. org/wp-content/uploads/2021/06/RTI_MacArthur_Local_Criminal_Justice_Memo-2018.pdf.
[26] Id.
[27] “91 Percent of Americans Support Criminal Justice Reform, ACLU Polling Finds” (November 16, 2017), available at https://www.aclu.org/press-releases/91-percent-americans-support-criminal-justice-reform-aclu-polling-finds.
[28] Criminal Justice System Survey Results (November 13, 2017), available at https://www.aclu.org/sites/default/files/field_document/aclu_campaign_for_smart_justice_polling_memo_2.pdf.
[29] “Public Opinion on Sentencing and Corrections Policy in America,” (March 2012), available at https://www.pewtrusts.org/-/media/assets/2012/03/30 /pew_nationalsurveyresearchpaper_final.pdf.
[30] “Poll Results on Youth Justice Reform,” GBA Strategies (February 6, 2017), available at https://njjn.org/uploads/digital-library/Youth-First-National-Poll-Memo-Feb-2016.pdf.
[14] “United States Population,” Worldometer, available at https://www.worldo meters.info/world-population/us-population/.
[15] World Population Review, available at https://worldpopulationreview.com /country-rankings/incarceration-rates-by-country.
[16] Id. See also “Countries with the largest number of prisoners per 100,000 of the national population, as of May 2021,” Statista, available at https://www. statista.com/statistics/262962/countries-with-the-most-prisoners-per-100-000-inhabitants/.
[17] Cornell William Brooks, Foreword, “How Many Americans Are Unnecessarily Incarcerated?,” Brennan Center for Justice (2016), available at https://www.brennancenter.org/sites/default/files/2019-08/Report_Unnecessarily_Incarcerated_0.pdf.
[18] James Cullen, “The History of Mass Incarceration,” Brennan Center for Justice (July 20, 2018), available at https://www.brennancenter.org/our-work/analysis-opinion/history-mass-incarceration.
[19] “Biden also took credit for the law: ‘As a matter of fact, I drafted the bill, if you remember.’” “Biden reveled in the politics of the 1994 law, bragging after it passed that ‘the liberal wing of the Democratic Party’ was now for ‘60 new death penalties,’ ‘70 enhanced penalties,’ ‘100,000 cops,’ and ‘125,000 new state prison cells.’” “On the website for his 2008 presidential campaign, Biden referred to the 1994 crime law as the ‘Biden Crime Law’ and bragged that it encouraged states to effectively increase their prison sentences by paying them to build more prisons. German Lopez, “The controversial 1994 crime law that Joe Biden helped write, explained,” Vox (September 29, 2020), available at https://www.vox.com/policy-and-politics/2019/6/20/18677998/joe-biden-1994-crime-bill-law-mass-incarceration.
[20] Id.
[21] German Lopez, “The controversial 1994 crime law that Joe Biden helped write, explained,” Vox (September 29, 2020), available at https://www.vox.com/policy-and-politics/2019/6/20/18677998/joe-biden-1994-crime-bill-law-mass-incarceration.
[22] James Austin and Lauren-Brooke Eisen, How Many Americans Are Unnecessarily Incarcerated?, Brennan Center for Justice, NYU School of Law (2016), available at https://www.brennancenter.org/our-work/research-reports/how-many-americans-are-unnecessarily-incarcerated.
[23] Samantha Michaels, “Biden Said He’d Cut Incarceration in Half. So Far, the Federal Prison Population Is Growing,” Mother Jones (July 21, 2021).
[24] “New Poll Finds That Urban and Rural America are Rethinking Mass Incarceration,” Vera Institute of Justice (April 19, 2018), available at https://www.vera.org/newsroom/new-poll-finds-that-urban-and-rural-america-are-rethinking-mass-incarceration.
[25] Zogby Analytics “Re: Public Opinion Poll Findings on Jails and Local Justice Systems,” (February 13, 2018), available at https://safetyandjusticechallenge. org/wp-content/uploads/2021/06/RTI_MacArthur_Local_Criminal_Justice_Memo-2018.pdf.
[26] Id.
[27] “91 Percent of Americans Support Criminal Justice Reform, ACLU Polling Finds” (November 16, 2017), available at https://www.aclu.org/press-releases/91-percent-americans-support-criminal-justice-reform-aclu-polling-finds.
[28] Criminal Justice System Survey Results (November 13, 2017), available at https://www.aclu.org/sites/default/files/field_document/aclu_campaign_for_smart_justice_polling_memo_2.pdf.
[29] “Public Opinion on Sentencing and Corrections Policy in America,” (March 2012), available at https://www.pewtrusts.org/-/media/assets/2012/03/30 /pew_nationalsurveyresearchpaper_final.pdf.
[30] “Poll Results on Youth Justice Reform,” GBA Strategies (February 6, 2017), available at https://njjn.org/uploads/digital-library/Youth-First-National-Poll-Memo-Feb-2016.pdf.
