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Charting a New Justice Reinvestment

by Nicole D. Porter, The Sentencing Project

For more than forty years, the correctional system has been dominated by growth. In 1969, the crime rate was 3,680 per 100,000 population and the incarceration rate was 97 state and federal prisoners per 100,000 population. Today the crime rate is slightly lower at 3,667 per 100,000 population but the incarceration rate is five times higher, at 492 per 100,000. The culture of punishment, in part driven by political expediency with "tough-on-crime" policies marketed as the solution to "fear of crime," has been aggressively implemented at every stage of the criminal justice process: arresting, charging, sentencing, confining, releasing and supervising.

Today, there is general agreement that this vast expansion of the criminal justice system and the seven million people currently under U.S. correctional control did not occur by accident, but as the result of deliberate policy choices that impose intentionally punitive sentences that have increased both the numbers of people entering the system and how long they remain there.

The destructive effects of mass incarceration are visited disproportionately upon individuals and communities of color. Justice Reinvestment was conceived as part of the solution to this problem. Justice Reinvestment originated as an ambitious strategy to reduce reliance on incarceration and repair the harm to individuals and communities through reinvestment in neighborhoods with high concentrations of residents in the criminal justice system.

The initial purpose of Justice Reinvestment was to make state government accountable to impoverished communities – mostly (though not exclusively) black and Latino – where the burden of punishment and incarceration has been the heaviest. These already disadvantaged neighborhoods were being driven deeper into perpetual economic divestment, social isolation, political disenfranchisement and physical distress by the coercive, downward mobility caused by locally concentrated pockets of incarceration and the forced migration of residents to and from prison. The intent was to reduce corrections populations and budgets, thereby generating savings for the purpose of reinvesting in high incarceration communities to make them safer, stronger, more prosperous and equitable.

In the decade since Justice Reinvestment was launched, there has been some success in shifting the dynamics that contribute to the culture of incarceration and extreme punishment. This has been accomplished through the Justice Reinvestment Initiative (JRI), the formal implementation of the Justice Reinvestment strategy, spearheaded by the Council of State Governments (CSG) and its now principal funders, Pew Charitable Trusts and the Bureau of Justice Assistance (BJA). Of the 27 states that have participated in JRI, approximately 18 have enacted JRI legislation for the purpose of stabilizing corrections populations and budgets. JRI has played a major role in educating state legislators and public officials about our bloated and expensive correctional system, and persuading them to undertake reforms not previously on the table.

But encouraging as these advances are, they increasingly point to the diminution of the original goal of Justice Reinvestment – to reduce the number of people in prison and to reinvest savings in the disadvantaged communities most heavily affected by mass incarceration. An examination of the ways in which this process has evolved is instructive in assessing how these limitations have developed and how we can move forward from here.

The Justice Reinvestment Initiative strategy was launched during the recession of 2001-2003, when state budgets were under considerable stress and few dollars were available to fund reform efforts. With support from the Open Society Institute (now Open Society Foundations), criminologists and other experts under the leadership of the JFA Institute and CSG initiated efforts to transform the concept of Justice Reinvestment into a specific set of initiatives, and JRI was developed as a three-part strategy that included:

• Work with state legislatures to analyze criminal justice populations and budgets and recommend ways to reduce them to generate savings for reinvestment in high incarceration communities;

• Engage development experts to identify and steer investment opportunities; and

• Organize demand by affected communities, advocates and institutions for neighborhood reinvestment.

Between 2002 and 2008, JRI legislation adopted by Connecticut (2004), Kansas (2007), Texas (2007), Rhode Island (2008) and Arizona (2008) achieved initial successes and marshaled interest for reform in state government, particularly around stemming the high cost of imprisonment. In these states, the JRI sought to target administrative policies and practices of state correctional systems, intentionally aiming for low-hanging fruit, such as reducing parole and probation revocations due to technical violations, holding parole hearings at the point of parole eligibility, or re-establishing earned "good time" credits.

Early supporters of Justice Reinvestment believed that these reform mechanisms could win bipartisan support, achieve some level of systemic reduction in correctional populations and serve as a wedge for more ambitious sentencing reforms in the future. JRI legislation in these early states has shown mixed results:

• In Connecticut, the state prison population was already on the decline when JRI legislation was enacted in 2004. From 20,720 in 2002, it fell to 19,442 in 2005, jumped six percent in 2006 and rose another two percent to an all-time high of 20,924 in 2007. The numbers have since declined and by 2011 the prison population was 18,324.

• Kansas' prison population numbered 8,539 in 2008, and grew to 9,327 by 2011.

• In Texas, the prison population rose from 171,790 in 2007 to 173,648 in 2010, then dropped slightly to 172,224 in 2011.

• Rhode Island's prison population jumped from 3,654 in 2006 to 4,045 in 2008, then fell to 3,337 in 2011.

• Arizona's prison population started at 39,589 in 2008 and grew to an all-time high of 40,627 in 2009 before declining modestly to 40,020 in 2011.

In most of these early states, JRI measures to reduce prison populations were explicitly tied to commitments by the state to invest some portion of the savings in targeted "Million Dollar Blocks," where millions of dollars are spent each year on incarcerating high proportions of working-age male residents in certain communities. Million dollar blocks dramatize the trade-offs for specific neighborhoods between local incarceration spending policies and alternative, locally-focused investment policies that could yield greater returns in public safety, strengthened community institutions and expanded neighborhood networks.

In the early years, the JRI's approach as implemented by CSG and JFA adhered to the original strategy of analyzing state prison populations and spending in the communities to which people in prison often return, providing policymakers with options to generate savings and increase public safety, quantifying savings and reinvesting in select high-stakes communities, and measuring impact and enhancing accountability. However, in recent years the language used to articulate the implementation of JRI has been revised to reflect a change in orientation and strategy that does not prioritize reducing state prison populations.

The shift in orientation is viewed, by some, as necessitated by political realities – that the focus on law enforcement has been necessary to win support and consensus among legislators and other public officials for JRI initiatives. Indeed, the popularity of JRI among state officials has, to a large extent, made "justice reinvestment" synonymous with any and all criminal justice reform, in some cases crowding out and marginalizing other reform efforts with a more aggressive agenda.

While there is no doubt that JRI has contributed to the achievement of important reforms, there continues to be a need for a more aggressive approach so that today's high incarceration rates will not become the status quo.

One of the major trends in incarceration has been the stabilization and slight decline in prison admissions (new court commitments and parole violations) that began in 2006 and, in 2009, outpaced a similar decline in releases. Some stabilization and reduction in admissions can be attributed to reforms in technical violation policies, local police practices and sentencing reforms (in both JRI and non-JRI states). However, other factors have also played a role, including declining crime rates and declining arrest rates.

Proponents of JRI claim their efforts have averted (and occasionally reduced) incarceration, but such conclusions are often based on a misunderstanding of the available data on prison admissions, populations and projections. As prison admissions slowed and even declined in recent years, prison population projections that assumed no such stabilization began producing significant errors in their long-term forecasts. Over the last decade, several states, often in anticipation of working with JRI, have made projections based on the assumption that prison admissions would not stabilize within three to five years of the projection being issued. It turns out that this was not the case. So prior to JRI being implemented in many states, the admission assumptions and projections were appropriately lowered. This means that many pre-JRI projections were no longer valid.

In comparing changes in prison populations among states where JRI legislation was enacted and those where it was not, the data shows that there have been negligible, if any, reductions in state prison populations. States that did not enact JRI legislation began to show a slight decline in early 2009 while declines in early JRI states have not been observed. What is clear is that only four states – New York, New Jersey, Michigan and California – have significantly reduced their prison populations. Those reductions were achieved by varying methods.

The political challenges to reduce state prison populations are many. Today, however, there are shifting dynamics due to declining crime rates and state fiscal pressures. To take advantage of the current climate to end mass incarceration, policy and practice must work quickly with determination and creativity. To do so, new campaigns must be undertaken in selected jurisdictions consisting of cross-disciplinary, multi-sector coalitions of players who can seize the moment to challenge the status quo and replace it with a system that is fair, just and equitable. The campaigns must be able to identify the drivers of their correctional populations, the scope and extent of their local concentration, the policy mechanisms needed to significantly reduce correctional populations and the points where the necessary political pressure can be applied. In New York, for example, reductions in the number of felony arrests coupled with increases in non-prison sentences (which only occurred in New York City) have reduced the state's prison population by nearly 25 percent. Reinvestment in high incarceration communities must also be an essential feature.

These reforms are not won overnight; they demand a combination of long-term cultural transformation and imminent policy opportunities. The opportunity to eliminate mass incarceration should not be squandered on incremental policy reform that will institutionalize large prison populations as the status quo. Rather, the moment should be seized to raise the collective consciousness that challenges high rates of incarceration as a normative experience, and to make clear that a progressive agenda that repairs the harm done to high incarceration communities cannot be achieved without dismantling the U.S. punishment system.

Today, the combination of excessive incarceration and harsh punishment is a blunt instrument for social control that perpetuates our country's painful, historical legacy of injustice and inequality, and unfairly deprives millions of people of their freedom and opportunity. Our criminal justice system is the site of today's civil rights struggle.

This article was adapted from a report titled "Ending Mass Incarceration: Charting a New Justice Reinvestment," released on April 17, 2013. The report was co-authored by a group of researchers, analysts and advocates dedicated to ending mass incarceration in the United States, and is available online at The co-authors include: James Austin, JFA Institute; Eric Cadora, Justice Mapping Center; Todd R. Clear, Rutgers University; Kara Dansky, American Civil Liberties Union; Judith Greene, Justice Strategies; Vanita Gupta, American Civil Liberties Union; Marc Mauer, The Sentencing Project; Nicole D. Porter, The Sentencing Project; Susan Tucker, formerly of Open Society Foundations; and Malcolm C. Young, Bluhm Legal Clinic, Northwestern Law School.

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