I recently wrote about police reform, but I don’t think we can adequately address police reform without discussing criminal justice reform. So I want to offer a few thoughts about that. Before that, I want to provide some context.
First, a reminder about my background: I worked with juvenile offenders and high-risk youth for 13 years. I also spent some time working in community corrections with adult offenders. I have spent time interacting with juvenile court officers, judges, caseworkers, defense attorneys, prosecutors, corrections officers, juvenile facility staff, law enforcement officers, and offenders. I don’t consider myself an expert, just someone who has spent several years observing the criminal justice system.
Now the issue at hand: mass incarceration.
We have a lot of people in prison. Tons. According to the Prison Policy Initiative, the United States has roughly 2.3 million people who are incarcerated – one in every 143 Americans.
That number includes people in state and federal prisons, local jails, juvenile correctional facilities, immigration detention facilities, Native American reservation jails, military prison, civil commitment centers, state psychiatric hospitals, and prisons located in U.S. territories.
According to a 2018 report by the U.S. Bureau of Justice Statistics (the last year it was released), the incarceration rate in state and federal prisons has seen a steady decline. They report 1,465,200 people incarcerated in state and federal prison, a decrease of 24,000 from 2017. They report that over a decade, the imprisonment rate – the proportion of U.S. residents in prison fell 15 percent. In 2008, the rate was 506 sentenced prisoners per 100,000 U.S. residents. In 2018, it was 431.
They also note that during that time, the imprisonment rate dropped 28 percent among black residents, 21 percent among Hispanic residents, and 13 percent among white residents. It also dropped 15 percent among men and nine percent among women. In 2018, the imprisonment rate was lower than at any time since 1996.
According to that report, compared to the 2019 U.S. Census estimates, one in 95 black U.S. residents is in prison; comparatively, one in 583 white U.S. residents is in prison. If you drill down that number to adult males, then that ratio gets smaller still. Also, that is just state and federal prison, which does not include the approximately 900,000 incarcerated elsewhere.
Between 1980 and 2012, the incarceration rate increased by 222 percent due to several federal and state “tough on crime” policies. For most of the 20th century, the prison and jail rate held steady. There were 112,362 incarcerated in 1910, 110,099 in 1920, and 180,889 in 1930. There was a bump in 1940 to 272,995, and it dipped by almost 20,000 by 1950. In 1960 there were 332,945, and in 1970 it was 338,029. None of this is particularly concerning, considering the population grew as well.
That began to change. There were 474,368 incarcerated in 1980; ten years later, there were 1,148,702 incarcerated in 1990. It grew to 1,965,667 in 2000. The growth slowed between 2000 to 2012, but it still grew. Now, at least in the state and federal prisons, there is a decline.
Two major federal bills were passed addressing criminal justice reform in the last decade.
In 2010, the Fair Sentencing Act was passed by Congress and signed into law by President Obama. It reduced but did not eliminate, the disparity between sentencing for crack cocaine possession and powdered cocaine possession. In 2018, Congress passed the First Step Act that made the Fair Sentencing Act retroactive and reduced and modified mandatory minimum sentences. It also allowed non-violent drug offenders with minor criminal sentences to receive sentences under the mandatory minimum.
Different states have also addressed criminal justice reform, but more can be done.
So here are six ideas.
1. Decriminalize Drug Possession and Revisit Trafficking Laws
I’m not ready to advocate full-blown legalization of drugs, but I don’t think incarcerating drug addicts caught possessing drugs makes fiscal sense, nor is it just. Those who struggle with drug addiction need treatment, not prison.
The amounts someone can carry and be nailed with trafficking or intent to sell charge vary by state and by drug; in some circumstances, that threshold is too low. The sentencing disparity that still exists between crack cocaine and powder cocaine must disappear. That does disproportionately impact the black community, and it is the same drug just in a different form.
According to the Prison Policy Initiative, there are 448,000 people incarcerated on a drug offense. That is insane. That is almost one-fifth of those incarcerated.
This change should also vastly reduce the number of police interactions.
2. Eliminate Cash Bail
According to the Prison Policy Initiative, there are 470,000 U.S. residents incarcerated in local jails who have not been convicted, and many are still there because they can’t post bail.
After one is arrested, booked, and fingerprinted, they sit in jail until their bail hearing. A judge then establishes a bail amount, which is usually paid by a bail bondsman because most people can not pay the bail amount. So a bail bondsman will charge a non-refundable percentage of the bail, usually ten percent, and will promise the court the full amount if the offender does not show up to their court date. They can then hunt the offender down to collect the debt if they fail to show for court.
Some people can not afford the fee. Some people are considered too much of a risk by the bail bondsman. So they sit in jail.
How this is not considered a violation of the 5th Amendment is beyond me. Before you lose your liberty, you are guaranteed due process. Because the 6th Amendment’s guarantee of a “quick and speedy trial” has gone out the window, some have spent months, even years in jail, before they are ever convicted. All because they can’t post bail.
Some states have eliminated cash bail, every state should. There are several ways to ensure people make it to court. States can offer pre-trail phone calls and in-person contacts to ensure people make their court date. States can implement unsecured bail, which is bail that you have to pay if you miss court. They also should implement risk-based assessments to determine how much a person is a threat to public safety if they are released.
Eliminating cash bail would save taxpayer money as incarceration costs taxpayers over $70 a day per inmate.
3. Eliminate the Trial Penalty
The National Association of Criminal Defense Lawyers reports that only three percent of federal cases end in a trial. The remaining 97 percent end with a plea bargain. The number of state cases that end with a trail varies state by state, but the national average, according to the New York Times, was 94 percent in 2012.
A plea bargain is a deal struck between the defendant and a prosecutor for a reduced sentence in exchange for pleading guilty. If someone is guilty and the prosecution has a strong case, then a plea deal would undoubtedly be attractive if it knocks significant time off a potential sentence.
But sometimes innocent people feel coerced into taking a plea deal as well. The Washington Post in 2018 reported that 15 percent of those exonerated initially took a plea deal.
Those who choose to exercise their 6th Amendment right to a trial could face considerably more time in prison if convicted by a jury who finds them guilty beyond a reasonable doubt.
The National Association of Criminal Defense Lawyers calls this a “trial penalty.” They write in their 2018 report:
“(T)here is ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk. This “trial penalty” results from the discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial. If there were no discrepancy at all, there would be far less incentive for defendants to plead guilty. But the gap between post-trial and post-plea sentences can be so wide, it becomes an overwhelming influence in a defendant’s consideration of a plea deal. When a prosecutor offers to reduce a multi-decade prison sentence to a number of years — from 30 years to 5 years, for example — any choice the defendant had in the matter is all but eliminated.”
4. Reform the Juvenile Justice System
Considering my background in juvenile justice, I wanted to offer some observations.
Minors should be given the right to a jury trial. The only way in Iowa and in other states for a juvenile to receive a jury trial is if they are tried as an adult. Some kids can spend years in a juvenile detention facility without the benefit of a jury trial.
In some instances, not having a jury trial may be in their best interest, but not always. You can always waive your right to a jury trial, but I’m not entirely sure how we came to the place where juveniles in some states are automatically stripped of their 6th Amendment right to a jury trial.
Also, stop locking kids up for statutory offenses where adults would not spend time in jail. Many times these are secondary probation offenses, but it is ridiculous. It happens more often than you think.
When juveniles are victims, don’t treat them as offenders. I once worked with a 14-year-old girl in detention who was charged with prostitution. She was a victim, not an offender. She was sexually abused. She needed counseling and other services. She didn’t need to spend time in juvenile detention.
I do want to say there were many positive changes and trends in juvenile justice before I moved on to a different career, but there is always room for improvement.
5. Pursue Restorative Justice
Often in our criminal justice system, the state takes over the role of the victim. There have been victims’ rights reforms, but something to consider. If the offender is not violent, and if the victim of a crime is owed restitution, is it better to lock the offender up for years so he or she can’t pay restitution until they are released and then often have difficulty finding a job?
Or is it better to have that person involved in community service and working while their paycheck is garnished, so the victim receives restitution?
Sometimes sending a person to prison isn’t what is best for victims. Often when we send a non-violent criminal to prison, they become a hardened criminal while in prison, and recidivism is much more likely. That is especially true for juvenile offenders.
Also, if that offender has a family, they can continue to support their family. Probation conditions generally require an offender to be gainfully employed.
On a related note, offenders who are in prison who are compelled to work are often paid far less than minimum wage. This model offsets the cost of prison from the taxpayer to the prisoner. While I understand the attraction for doing this, let’s consider what this does.
- It hides the real cost of corrections from taxpayers.
- It doesn’t allow offenders to pay restitution while in prison.
- It hurts the family of the prisoner.
6. Eliminate Private Corrections
Frankly, this should be a no-brainer. There is an inherent conflict of interest when a private company runs correction facilities. Having a company’s profit margin driven by the number of people incarcerated is troubling, and the temptation to cut corners, that could lead to the mistreatment of prisoners, to bolster profits is often present.
This list is not exhaustive, and some states have done more to reform their criminal justice system than others. I understand some “law and order” type conservatives may balk at my ideas. I would encourage my fellow conservatives when it comes to policing and criminal justice to be as concerned with the 4th through the 8th Amendments as we are the 1st and 2nd Amendments.