A report we recently co-authored for The Sentencing Project documented that three states – New York, New Jersey, and California – have led the nation in recent years by reducing their prison populations by about 25%.
New York and New Jersey achieved a 26% reduction from 1999 to 2012, and California experienced a 23% decline from 2006 to 2012.
While some proponents of continued high rates of incarceration warn of the prospect of a “crime wave” if populations are reduced, we found no evidence for such an outcome in these states. During this time frame, a period in which crime rates were declining nationally, these three states generally achieved greater reductions in violent and property crimes than national averages.
Our findings suggest that it is possible to achieve substantial prison population reductions – much greater than the very modest 4% reduction that state prisons have achieved since their 2009 peak – without adverse effects on public safety.
We also note that even a reduction of 25% in the level of incarceration would still leave the United States with a rate that is more than five times that of most industrialized nations.
To achieve reductions of this scale or greater will require both building on current initiatives in more expansive ways and taking on areas of the corrections system that have received little attention to date.
Below is a selection of changes in policy and practice that hold the potential for substantial reductions in imprisonment.
Expand diversion programs and their admissions criteria
The two-decades old drug court movement has been highly successful by some measures, with more than 2,700 such courts in operation. Research to date suggests that persons completing court-supervised treatment have reduced rates of returning to drug use and criminal involvement.
But two features of drug courts have constrained their impact on the size of the prison population. First, many drug courts are relatively modest in size, handling only a fraction of the potential pool of defendants who could benefit from such an intervention.
Second, the restrictive admissions criteria of many drug courts – and other alternatives to incarceration programs – reduce eligibility to defendants who were often unlikely to have been sentenced to prison in traditional courts. Many programs, for example, exclude individuals with a prior conviction for a violent offense, no matter when it occurred. By expanding these courts and reconsidering their admissions criteria, policymakers could achieve more substantial reductions in prison populations.
Reduce sentence lengths for drug offenders
The U.S. has such a large prison population not only because it sends so many to prison, but also because it keeps them there for so long. The recent vote by the U.S. Sentencing Commission to retroactively apply reduced drug sentencing guidelines to federal prisoners will shave about two years from the sentences of as many as 46,000 prisoners.
The vote represents the most substantial shift in federal drug sentencing since the inception of the “war on drugs” in the 1980s, and is estimated to save as much as $2 billion in corrections costs. Policymakers at the state level are beginning to reassess the wisdom of such policies as well. Given the lengthy prison terms required by many mandatory sentencing polices at both the state and federal levels there is substantial room to reduce the scale of incarceration through similar reforms.
Establish an upper limit on all prison terms
The severity of imprisonment for persons convicted of serious crimes in the U.S. is substantially higher than in comparable nations. Recognizing this feature, legal scholar Jonathan Simon suggests imposing an upper limit on prison terms of no more than 20 years except in the most unusual circumstances.
Such a policy would place the U.S. in line with Canada and most nations in Western Europe. This proposal builds on the understanding that recidivism risk declines with age and addresses moral concerns about the excessive use of imprisonment.
Establishing such upper limits would likely reduce prison terms for lesser offenses as well, since sentencing systems are generally proportional in nature.
Reduce parole and probation supervision of low-risk individuals
Community supervision of low-risk clients can sometimes serve as a “trip wire to unnecessarily revoke and incarcerate,” write Vincent Schiraldi and Michael Jacobson, former New York City probation commissioners. The three states in our report employed various strategies to scale back community supervision and/or reduce revocations to prison.
In New York City probation officials reduced prison admissions through probation revocations by shortening probation terms. New Jersey reduced the rate at which people who violated the technical terms of their parole were readmitted to prison, and California shortened the period of community supervision for lower-risk individuals and placed limits on revocations.
States can therefore reduce returns to prison by shortening lengths of community supervision for lower-risk individuals.
Reclassify certain felony offenses as misdemeanors
Proponents of a ballot proposal in California this fall are asking voters to reduce the severity of a number of low-level property and drug offenses from felonies to misdemeanors. Crimes such as petty theft, writing a bad check, receiving stolen property, and drug possession are currently considered “wobblers,” and can be prosecuted as either a felony or a misdemeanor.
The proposal seeks to reclassify these offenses as misdemeanors in most circumstances, and to retroactively apply this reform. The substantial cost savings achieved by the policy shift would be targeted to crime prevention programs, victim services and a range of treatment initiatives within the court system.
Most states have similar charging issues that could be addressed by such reforms.
The old criminal justice playbook continues to guide the work of many policymakers and practitioners. Our report spotlights the policy tools as well as the consequences of decarceration in three states that have made the most significant and sustained reductions in their prison populations.
The experiences of New York, New Jersey and California can help leaders around the country to develop both the will and the way to achieve successful prison downsizing.
Editor’s Note: In remarks last week to the National Association of Criminal Defense Lawyers, U.S. Attorney General Eric Holder called for a “careful, independent analysis” by the U.S. Sentencing Commission of the use of risk assessments in sentencing. For more coverage of his remarks click HERE.
Marc Mauer is the Executive Director and Nazgol Ghandnoosh is a Research Analyst at The Sentencing Project. They welcome comments from readers.