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Michael Haugen | December 12, 2016
Recently, my colleague Haley Holik penned a timely piece concerning the knee-jerk fatalism among many justice reform advocates on the left that has attended the result of the presidential election, with most headlines heralding the end of criminal justice reform. I recommend her article, and I’d like to expand at length on several of her points.
Holik’s primary thesis is that given the decade’s worth of justice reform initiatives already under the belt of states across the country—a situation that’s going to continue, not least because roughly 90% of the nation’s incarcerated population is under state jurisdiction—imparting the federal chief executive and his appointees with undue (and undeserved) influence over the issue discounts where the central impetus for reform came from to begin with.
To be sure, President Obama is to be commended for calling national attention to the issue and elevating it into one of the administration’s priorities. But calling attention to reform efforts and accomplishing those reform efforts are not the same, and while this administration has been long on the former, it has been frustratingly short on the latter. For all the lip service paid over the last three years concerning the need for strong legislation to be passed; for all the substantial, bipartisan support that exists for such an endeavor, the sole action this administration has undertaken has been commutations, which isn’t straightforward policy that’s generally applicable to all offenders for the purposes of sentencing.
Even considered in and of themselves, these commutations haven’t exactly been sterling achievements. Legislation considered in Congress this session would have permitted retroactive re-consideration of sentences for certain eligible offenders—and would conceivably reduce them to a greater extent than the commutations that many have received from the president. Not to mention that the legislation would be generally applicable to all future offenders. This administration may have pegged a record number of commutations to its “legacy,” as is the executive’s prerogative, but we shouldn’t pretend that this is political courage.
This is to say nothing of the administration’s eight-year encroachment on property rights through federal civil forfeiture and window-dressing reforms placed on equitable sharing agreements.
While hope springs eternal for movement at the federal level—many conservative champions were elected in November and have continued to tout reform—stakeholders should maintain a healthy sense of proportion as to what federal reform can even accomplish in the grand scheme, and instead focus on the 50 state executives who wield genuine influence to exact necessary changes.
Several conservative states and governors have long been at work advancing successful criminal justice reforms, and those states investigating their own systems for reform opportunities would do well to heed that work.
This focus belongs at the state level for at least two reasons: first, because of the simple arithmetic surrounding where the country’s prison population is housed; as stated above, 90% is under state, not federal, control. Second, on the basis of federalism. Criminal and civil justice concerns have traditionally been under the aegis of the states, who are far better positioned, and indeed, constitutionally empowered, to possess police powers and administer criminal law. Those interested in the fair and equitable execution of justice would be wise to curb the increasing abdication of these responsibilities to the federal government, which rarely acquits itself as a well-oiled bastion of efficiency.
For it’s in the states, and even counties, where the lion’s share of consequential advances in criminal justice policies have come to pass. That’s where there’s been a growing recognition of the need for sweeping pre-trial reform, including the administration of bail and onerous fines and fees. That’s where important changes to the grand jury process will occur, or where risk-needs assessments in county jails are occurring. Most re-calibration of carceral sanctions and re-entry policies occur in the states. Want to make it easier for ex-offenders to re-enter the labor pool and ply their trade, or otherwise stop criminalizing innocuous work? Occupational licensing reform is a mostly state concern. Law enforcement’s ability to take and keep private property without first pursuing a criminal conviction has been substantially curbed in the states, as civil forfeiture laws have been falling like dominos. Changes to the way juveniles are held to account for their actions has changed dramatically, and for the better, at the state level.
Across the entire gamut of criminal justice reform policy, state and local leaders have been carrying the torch. Harris County has decided it simply isn’t going to prosecute low-level drug offenses any longer. Maryland’s newly-minted justice reinvestment package is slated to free up over $80 million for recidivism-reduction programs tested and proven in other states. Alaska’s integrated corrections system is similarly poised for significant efficiencies under its reinvestment program, as well—both of which have been informed by successful policies in Texas, Georgia, South Carolina, and dozens of other states. Oklahoma and Louisiana are the currently investigating this approach, and are in the initial stages of determining the drivers of their prison populations to craft unique policies that can rein in stubbornly high recidivism, reduce costs, and enhance public safety.
In those states that have long since passed justice reinvestment proposals, the sky hasn’t fallen, as critics are fond of predicting. Such states continued to see substantial reductions in crime rates and recidivism after their passage (despite recent perturbations in some places that are driven mostly by local variables), while providing major cost savings, increased sentencing flexibility for judges, an expansion of treatment beds for substance abuse, better returns on public safety, and opportunities for wrongdoers to atone, get clean, and/or seize upon second chances.
Various naysayers have been content to discount this progress and cling to an antiquated status quo that hasn’t produced the sort of satisfactory outcomes the public expects. For instance, leveraging the very best in public research reveals that crime rates are independent of length of incarceration, and imprisoning certain offenders for longer periods increases their criminogenic profile to the point of diminishing returns. Yet, when reform advocates suggest re-configuring sentencing options to include alternatives, they’re treated to klaxon calls by those happy to warn of dire consequences—or even misconstrue opponent’s positions—but not as eager to offer policy recommendations of their own. Maintaining well-functioning public institutions goes over easier when proposals for change aren’t dismissed without positing some valid alternative.
Introducing flexibility into our corrections systems is a choice. So, too, is the cost of inaction. Reforms of the sort that Right on Crime and other groups have espoused have been bearing fruit—a lot of it. Saved taxpayer money. Reduced recidivism. Prioritized prison space for serious, repeat offenders. More treatment options for drug addiction. Opportunities for parents to be present in their children’s lives, rather than sit idle as unproductive, unavailable wards of the state. All buttressed against a philosophy which informs us that complex, multi-faceted institutions such as the criminal justice system benefit most from policies marked by flexibility, decentralization, and maximizing the number of tools in the system’s belt.