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ACLU Report Proves Smart Criminal Justice Policy Reform is Possible

by David M. Reutter

The American Civil Liberties Union released a report in August 2011 that calls for reforming the U.S. criminal justice system. The report makes recommendations for systematic reforms, front-end reforms and back-end reforms; it reviews policy changes and their results in six states that have successfully implemented bipartisan criminal justice reforms, and details similar efforts in four other states.

“Since President Richard Nixon first announced ‘the War on Drugs’ forty years ago, the United States has adopted ‘tough on crime’ criminal justice policies that have given it the dubious distinction of having the highest incarceration rate in the world,” states the report’s introduction. “These past forty years of criminal justice policy making have been characterized by over-criminalization, increasingly draconian sentencing and parole regimes, mass incarceration of impoverished communities of color, and rapid prison building.”

However, recent budget deficits of historic proportions have caused some policy makers to look for ways to reduce the enormous expense of the justice system. The ACLU report describes how states with long histories of being “tough on crime” have embraced alternatives to imprisonment with less punitive measures. Such reforms “not only make more fiscal sense, but also better protect our communities.”

The rate of incarceration in the United States grew 700% between 1970 and 2010. As a result, our nation has “almost a quarter of the world’s prisoners in the entire world, although we have only 5% of the world’s population.”

Before discussing successes in Texas, Kansas, Mississippi, South Carolina, Kentucky and Ohio as a result of implementing bipartisan criminal justice reforms, the report recommends three major types of reforms. These “evidence based” practices are backed by social science and economic evidence that proves their success and demonstrates that mass incarceration is not necessary to protect public safety.

Systemic reforms “affect criminal justice policies at large, undertaking a holistic evaluation or reform of a state’s criminal justice system.” Requiring evidence-based criminal justice practices and risk assessment instruments ensure that policies are “crafted based on criminology or science rather than fear or emotion.”

To prove that policies actually achieve their stated goals, states should implement other policies to obtain research on results and effect. A commission should periodically review new or existing policies and require agencies to issue reports on the progress and success of policies after they are implemented.

Mississippi, Kentucky and Ohio are examples of the successful application of “risk assessment instruments to individuals throughout the criminal justice process, including in the pretrial process, sentencing process, and parole and probation decisions.” An accurate fiscal analysis is necessary to examine the impact in years following implementation of new policies, which “are often where cost savings are realized.” South Carolina undertook such an analysis when implementing legislation to reform its criminal justice system. The state expects the law will save $241 million, including $175 million in construction costs, by reducing the prison population by 1,786 prisoners by 2014.

The ACLU report also advocates for front-end reforms. The purpose of front-end reforms is to “reduce the unnecessary incarceration of individuals in jails and prisons.” Such reforms “recognize that prison should be an option of last re-sort, reserved only for those who really need to be incarcerated.”

To reduce the nearly $9 billion in taxpayer dollars spent to house about 750,000 people in local jails across the nation each year, reliance on pretrial detention must be curtailed.
Kentucky and California have enacted laws that limit pretrial detention only to those who pose high threats to public safety. Kentucky’s success came from abolishing commercial, for-profit bail bondsman and establishing a uniform bail schedule for non-violent felonies, misdemeanors and violations.

Of the nearly 1.7 million people arrested in 2009 for nonviolent drug charges, 90% were charged with possession only – draining billions of taxpayer dollars and millions of law enforcement hours with little benefit to public safety. Kentucky and California have decriminalized or defelonized drug possession. Drug treatment and other sanctions for those with substance abuse problems and other low-level offenses are being used in lieu of prison in Kansas, Texas, Mississippi, South Carolina, Kentucky and Ohio. Sentencing disparities between cocaine and crack have been eliminated in South Carolina and Ohio.

Further, eliminating mandatory minimum sentences or “three strikes” and habitual offender laws helped Ohio, South Carolina and Texas reduce their prison populations without endangering public safety. Reclassifying low-level felonies to misdemeanors eliminated prison time in South Carolina, Kentucky and Ohio for offenders who formerly were sent to prison for crimes such as simple drug possession or non-violent low-level theft.

Back-end reforms aim to “shrink the current and returning incarcerated population and focus on parole and probation reforms.” One such policy reform is the elimination of “truth-in-sentencing” laws that require prisoners to serve at least 85% of their sentences before release. Mississippi made 3,000 prisoners eligible for parole in 2008 by partially repealing its 1995 truth-in-sentencing law.

Extending good time credits for program participation and good behavior by prisoners provides incentives for conduct that reduces recidivism. Some states are using non-prison alternatives for technical parole and probation violations, while Louisiana and Ohio are requiring their parole boards to use risk assessment tools and receive training to make parole decisions based on evidence rather than instinct.

Finally, Texas, Kentucky and Ohio require that savings from criminal justice reform policies be reinvested in programs that reduce crime. This results in declines in prison populations and corrections budgets while also protecting the public.

The ACLU report analyzes the acts of each of the six states that have successfully implemented criminal justice policy reforms. Each has seen reductions in their prison populations, saving taxpayers millions of dollars. The report also examines reform efforts in California, Louisiana, Maryland and Indiana, and concludes by outlining the positive and negative trends affecting criminal justice legislation in 2011.

The ACLU report is available on PLN’s website and at

Source: “Smart Reform is Possible: States Reducing Incarceration Rates and Costs While Protecting Communities,” ACLU (August 2011)

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