JUSTICE
These are the three ways states have cut incarceration rates
Policy change and new programs lead to decarceration
In 2020, the U.S. prison population declined a remarkable 15 percent from the previous year; from 1.4 million to 1.2 million. Reductions in the number of admissions accounted for 95 percent of the total decrease in state prisons.
The COVID-19 pandemic, overcrowding, and a nationwide upsurge of Black Lives Matter protests put pressure on state and local officials to reduce their incarcerated populations. Prisons and jails were, and continue to be, impacted significantly by COVID-19, seeing many of the largest outbreaks.
In addition, courts were forced to significantly alter their operations, and as a result, there was a 40 percent decrease in prison admissions from 2019 to 2020. Present issues aside, between 2010 and 2020 the U.S. prison population declined by 24 percent (350,000), with 92 percent of that decrease occurring at the state level.
Two national factors undoubtedly contributed to the decline in the U.S. prison population. First, since the 1990s there has been a continued and persistent decrease in the U.S. crime rate. Second, the forty-year, 500-percent increase in the U.S. prison population created serious overcrowding issues in state prisons.
Subsequently, state correctional expenditures have increased 347 percent. Criminal justice spending accounts for $1 of every $20 spent at the state level, $1 of every $5 spent at the county level, and $1 of every $6 spent at the municipal level. Notwithstanding, reductions in crime rates and/or correctional costs and overcrowding were not on their own (or together) directly correlated with policy movement. However, states did manage to make policy changes that reduced their correctional populations. Since 2010, forty-six states made (or were forced to make) reductions in their prison populations, but the efficacy of these reforms and interventions has varied considerably.
In this study published in the journal, Publius, I conducted a qualitative analysis, using states as cases. I find that the twin pillars of mass incarceration — the key determinants of prison population size — are admissions and length of stay. When these numbers increase, the number of people incarcerated increases. The most effective decarceration policies have been organized around uncoupling these variables. I find that the more efficacious states focused on (a) decreasing admissions, (b) increasing early releases, and (c) decreasing admissions of conditional release violators.
To decrease new admissions, the most efficacious states focused on reclassifying felonies as misdemeanors, redefining sentencing guidelines for nonviolent offenders, and expanding eligibility for alternative sentencing programs and presumptive probation, namely, substance abuse programs. State reforms targeting new admissions have been very successful. Since 2010, new admissions of sentenced prisoners (felons) have lagged releases in all but one year (Prisoners 2022) and there has been a 13 percent decrease in the number of incoming state court cases (Gibson et al. 2022).
To increase releases from prison, states made reforms to their mandatory minimum and truth-in-sentencing laws retroactive, and they expanded eligibility for earned/merit/good-time (early release) programs. Early-release programs give prisoners the opportunity or the ability to “earn” sentence reductions, which improve the feasibility of early release. The retroactivity allows current prisoners to be resentenced under the new guidelines, making them eligible for early-release programs.
To decrease conditional release admissions, states focused on reducing readmissions for technical violations. States established programs that provided both pre- and post-release services, including substance abuse, mental health, and educational programs; initiated alternative (non-parole) supervision programs; and authorized graduated responses for technical violations, which included remanding to post-release services. The policy interventions associated with reducing readmissions for conditional violations have important implications for decarceration, but until this point, they have not proven as efficient as the policy interventions and reforms associated with sentencing guidelines, diversion programs, retroactivity, and early-release programs.
Notwithstanding, the number of incoming state criminal cases has only decreased by 7 percent and there was an even smaller decrease in the number of incoming misdemeanor cases (3 percent). I found that between 2012 and 2019, there was an 18.3 percent increase in incoming criminal misdemeanor cases. Nationally, incoming misdemeanor property cases have increased 104 percent and incoming misdemeanor drug cases have increased 134 percent. It appears that states are substituting sentenced prisoners (felons) for misdemeanants, and at a rate of four to one. This is important for two reasons. First, there is a significant lack of empirical data on misdemeanor cases. Second, in some jurisdictions, the number of misdemeanants is so overwhelming that it has incentivized courts to sidestep constitutional protections.
Despite the tendency to focus on federal legislation, the vast majority of the work in criminal justice policy is done at the state level. Research on state incarceration policy is important because it helps us better understand which states are learning, what those states are learning, and which states are not learning.
Moreover, local policing policies, more so than crime, determine the probability that a given resident will have contact with the criminal justice system. Currently, states have little administrative or operational control over local law enforcement and even less influence over their conduct and hiring practices. Nevertheless, localities derive their authority from the state, and therefore states are better positioned than the federal government to address issues stemming from status quo policing. Under the U.S. federal system, states have the power to create more efficacious criminal justice systems. In doing so, states of predation can reclaim their position as laboratories of democracy.
