Formula for reducing unnecessary incarceration: Focus on both public safety and prison reduction

Many have written off the 118th Congress as hopelessly divided, with no prospect of legislation getting to the president’s desk. But criminal justice reform has a long record of bipartisan cooperation, most recently with the First Step Act in the Trump administration. The two parties reached consensus to pass a common-sense bill that improved the lives of people impacted by unjust laws. Now Congress has a chance to do it again.

State prisons are at the core of America’s mass incarceration problem. They hold 87 precent of the nation’s more than 1.2 million people in prison. A new bill — the Public Safety and Prison Reduction Act — would let Congress help states break the cycle of excessive imprisonment and its devastating impact on families and communities. It would use $1 billion in federal funding as an incentive to shrink state prison populations and reduce crime.

Those two goals — reducing incarceration and lowering crime rates — can be met at the same time. States as different as Michigan and Mississippi prove it, achieving double-digit reductions in their state prison populations without adverse effects on public safety. Those gains are real. Although some have used the recent upticks in crime to try to discredit criminal justice reform, the reality is that the country is ready for more effective, less punitive policies.

The Public Safety and Prison Reduction Act, which is a proposal from the Brennan Center at New York University, could have a meaningful impact in beginning to chip away at mass incarceration. For example, if the 25 states with the largest prison populations reduced imprisonment by 20 percent, around 179,000 fewer people would be confined in state prisons.

Here’s how the legislation would work. First, states would apply for federal dollars to study the causes of unnecessary incarceration within their prison systems. Our research shows that 40 percent of the people in state and federal prison do not pose a risk to public safety. Many of these people would be better served by diversion programs and alternatives to incarceration while others have already served long sentences and can be safely released. As just one example, those 55 years or older — whose public safety risk is exceedingly low — make up approximately 12 percent of the nation’s prison population.

Once a state has identified ways to reduce unnecessary incarceration, it would then be eligible under the Public Safety and Prison Reduction Act for additional funding to implement policies and programs that shrink its prison population and bolster public safety. A state that reduces its prison population by 20 percent within three years would be eligible for further funding.

States could make myriad policy changes with grant funds. They could set up or expand systems that correct extreme sentencing or wrongful convictions. States could beef up systems that help release those from prison who don’t pose a threat to public safety, like the elderly or those with terminal illnesses.

States could create or expand programs within prisons to help currently incarcerated people plan to successfully return to their communities. Each year, more than 500,000 people return home from state prisons. Yet reintegrating into their communities comes with countless hurdles, especially for people who don’t have a strong safety net.

People who have been to prison, we’ve found, face around a 50 percent reduction in annual earnings — adding up to nearly half a million dollars over the course of a lifetime — and lifetime losses are worse if you’re Black or Latino. The funding from the Public Safety and Prison Reduction Act could support job training, mental health services, and drug treatment behind bars to help people reintegrate into their communities.

Using federal funding to influence criminal justice policies in the states is far from new. The 1994 Crime Bill authorized $12.5 billion for states to build new prison beds on the condition that they adopt an excessively harsh sentencing regime. We can now use that same approach to do the opposite — guided by mountains of data indicating that incarcerating more and more people doesn’t equate to greater public safety.

By enacting this legislation, Congress can send a powerful message to the nation that some issues are bigger than partisan politics, like delivering public safety while promoting a more fair and humane justice system.

Lauren-Brooke (L.B.) Eisen is senior director of the Justice Program at the Brennan Center for Justice at NYU Law.

Hernandez D. Stroud is a counsel in the Justice Program at the Brennan Center for Justice at NYU Law.