Emily Bazelon :
The United States spends far too much money locking up far too many people for far too long.
A few years ago, a politician had to be brave to say anything like that out loud. Now it’s a mainstream and bipartisan view.
In a 2018 survey conducted for the American Civil Liberties Union, 59 percent of respondents said they would be more likely to support than oppose a candidate who supports reducing the prison population. Achieving that goal is now an accomplishment that politicians showcase. In January, Congress by wide margins passed the First Step Act to reduce some drug sentences and improve conditions in federal prisons. President Trump, despite painting a frightening picture of crime-ridden “American carnage” at his inauguration, invited the first drug offender released as a result to the State of the Union address.
It’s all pretty head-spinning after decades of elected officials competing to lock more people up and spotlight the scariest crimes. Now, with public opinion shifting far and fast and politicians hurrying to catch up, you could even argue that criminal justice reform has become the new marriage equality in terms of the turnaround in public attitudes.
That presents a major opportunity for Democratic presidential candidates. But for all the energy behind reform, no presidential candidate has articulated a big, comprehensive vision for transformational change. There’s a consensus that the system is broken, but no agreement on how to fix it.
The presidential candidate seeking to distinguish herself might start by looking at a new wave of reform-minded district attorneys who are challenging conventional law-and-order approaches in red states and blue ones.
For the candidates, thematically, a starting point should be that wealth should not determine a person’s fate in court, and profit should not drive the system. Bail bonds, privatized probation and corporate-run prisons are parasitic features of the justice system. Ending cash bail should be at the top of every candidate’s criminal justice agenda. So should getting rid of fines and fees that help fund local governments but trap people in cycles of debt.
Ferguson, Mo., became a symbol of the criminalization of poverty for routinely sending black defendants to jail for failing to pay minor traffic fines. But last November, a new district attorney, Wesley Bell, was elected. On his first day in office, he announced one of the most progressive bail policies in the country – pretrial release, without bail, for misdemeanors and some felonies, unless the prosecutor thinks there is a direct threat to public safety.
Mr. Bell also said his office would no longer seek to revoke probation for unpaid fines and fees. “As an overriding principle, I do not believe in prosecuting poverty,” he told a weekly newspaper, The St. Louis American.
The old Ferguson lives on elsewhere. In Texas, 524,000 people were jailed in 2018 for unpaid traffic tickets. Even short stays for nonviolent offenses can wreak havoc with people’s jobs and child care. Sparing them needless punishment matters for their lives.
To end mass incarceration, however, exempting nonviolent offenses from jail time isn’t enough. People convicted of violent crimes make up more than half of the country’s state prison population. But the image of prisons overflowing with murderers and rapists is wrong. In many states, “violent felonies” include offenses like breaking into an empty house or snatching a purse or iPhone on the street. Reducing sentences for these offenses – and changing what counts as a violent felony to begin with – can lower this share of the prison population.
And that fits in with a second theme for candidates: People deserve a second chance, because many grow and change. They robbed to feed an addiction and then got sober. They assaulted someone because they were mentally ill and then got treatment and stabilized. They mature as they age beyond their teens and early 20s. That’s why it makes sense to reconsider how long a person should stay in prison after doing some time.
At last, a few prosecutors are doing this and are moving to correct the heavy sentences handed down in the past. The elected prosecutor in Seattle, Dan Satterberg, has won 21 commutations or resentencings for people serving life or decades. Three of the people released – brothers – are back in prison for new crimes, including one for a killing, but the other 18 are “taking full advantage of their freedom,” Mr. Satterberg put it.
“Our obligation to do justice continues to go backward as well as forward,” he said. “Yes, we’ll have failures, but one way to manage that is more re-entry support for people.”
Parole offers another opening for second chances. In Texas, says Scott Henson, an activist who blogs at the site Grits for Breakfast, “our parole rates have gone from 15 percent to the high 30s in the last decade,” He said the increase is “having more impact than any bill we’ve passed even through the legislature.” He thinks the reason for the rise is a humdrum logistical one: The state unofficially uses parole as a way to reduce prison overcrowding.
We should also focus on redefining the terms of the public safety debate. Ending mass incarceration, and ensuring fairness throughout the criminal justice system, aren’t in tension with public safety. It is integral to it. People tend to uphold the law when they believe it’s reasonable and applied evenly. When people have that faith, they are more likely to help the police solve crimes.
With only about 60 percent of murder cases resulting in arrest or other resolutions – that percentage is even lower for other crimes – disillusionment may be our biggest safety threat. After Baltimore’s district attorney, Marilyn Mosby, announced in January that her office would stop prosecuting marijuana possession, a group of mothers whose children were killed in the city mounted a mobile billboard. “Stop Pot Arrests,” it read. “Solve Murders Instead.”
In a comprehensive new blueprint for reform, the Justice Collaborative, a nonprofit group, makes an underappreciated and crucial point: “Law enforcement is not the only, or even the most important, answer to addressing cycles of violence.”
Adam Foss, president of Prosecutor Impact, which conducts training for prosecutors, said politicians can be explicit about this approach: “If you’re serious about tackling violence, you talk about how to prevent it. You talk about how trauma drives violence among groups the public can get behind, like young people, women and veterans. You adopt language used by the doctors and surgeons working on the front lines of this scourge of violence who have been saying for years that it is a public health issue.
“You talk about stable housing and equal access to education and health care,” he continued. “You center it around the survivor community begging for alternative solutions. And you tie it back to public safety so you’re changing the terms of the debate.”
Finally, incarceration should be the last resort, not the default. In Brooklyn, District Attorney Eric Gonzalez has said this idea is central to his tenure. His counterpart in Boston, Rachael Rollins, last month instructed prosecutors to ask for jail only “when any other recommendation would compromise” safety.
When no option other than jail or prison will do, it’s important to remember that the vast majority of people who go in also get out. Making sure they have the tools to lead productive lives when they emerge – like job training and access to decent housing – is a public good.
Presidents don’t actually control the key levers of the American punishment machine. About 80 percent of the people who are locked up today are in state and local jails and prisons. But presidents, and presidential campaigns, can raise the profile of an issue and set a tone. The way they talk about repairing our broken criminal justice system speaks loudly to broader issues about racial and wealth inequality. Presidents can also shape the behavior of states and cities with funding and other incentives, like redirecting money for treatment and prevention programs.
Though some prosecutors and state legislatures are now embarking on serious reforms, there’s still so much further to go. Bipartisan support is increasing but still has to build. The candidate for president who makes that happen can reap political benefits – and more important, make America so much better.
(Emily Bazelon is a staff writer for The New York Times Magazine and the author of the forthcoming “Charged: The New Movement to Transform American Prosecution and End Mass Incarceration.”)
