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Solutions: American Leaders Speak Out on Criminal Justice, Brennan Center for Justice, 2015

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Edited by
Inimai Chettiar and Michael Waldman

at New York University School of Law

Foreword by
President William J. Clinton

Joseph R. Biden, Jr.
Cory Booker
Chris Christie
Hillary Rodham Clinton
Ted Cruz
Mike Huckabee
Cathy L. Lanier
Martin O’Malley
Janet Napolitano
Rand Paul
Rick Perry
Marco Rubio
Bryan Stevenson
Scott Walker
James Webb

Brennan Center for Justice
at New York University School of Law

Edited by
Inimai Chettiar and Michael Waldman
Associate Editors
Nicole Fortier and Abigail Finkelman

© 2015. This paper is covered by the Creative Commons “Attribution-No Derivs-NonCommercial”
license (see It may be reproduced in its entirety as long as the Brennan
Center for Justice at NYU School of Law is credited, a link to the Center’s web pages is provided,
and no charge is imposed. The paper may not be reproduced in part or in altered form, or if a fee is
charged, without the Center’s permission. Please let the Center know if you reprint.

Table of Contents
William J. Clinton, 42nd President of the United States




1. The Importance of Community Policing
Joseph R. Biden, Jr., Vice President of the United States



End One-Size-Fits-All Sentencing
Cory Booker, Unites States Senator for New Jersey



Ban the Box
Cornell William Brooks, President and CEO of the NAACP



Save Jail for the Dangerous
Chris Christie, Governor of New Jersey



Respect by the Law, Respect for the Law
Hillary Rodham Clinton, former United States Secretary of State



Reduce Federal Crimes and Give Judges Flexibility
Ted Cruz, United States Senator for Texas



Shut the Revolving Door of Prison
Kamala D. Harris, Attorney General of California



Treat Drug Addiction and Address Character
Mike Huckabee, former Governor of Arkansas



A Real Mental Health System
David Keene, former President of the National Rifle Association


10. Graduated Reentry
Mark A.R. Kleiman, Professor at University of
California, Los Angeles


11. A New Way of Policing
Cathy L. Lanier, Chief of the District of Columbia
Metropolitan Police


12. A System that Rewards Results
Marc Levin, Founder and Policy Director of Right on Crime


13. Prosecutorial Prioritization
Janet Napolitano, former United States Secretary
of Homeland Security


14. Abolish the Death Penalty, Invest in Public Safety
Martin O’Malley, former Governor of Maryland


15. Restore Fairness in Sentencing
Rand Paul, United States Senator for Kentucky


16. Follow the Texas Model
Rick Perry, former Governor of Texas


17. A Step Toward Freedom: Reduce the Number of Crimes
Marco Rubio, United States Senator for Florida


18. Mercy, Especially for the Mentally Ill
Bryan Stevenson, Executive Director of the
Equal Justice Initiative


19. A Culture Change
Jeremy Travis, President of John Jay College
of Criminal Justice


20. Get People Ready for Work
Scott Walker, Governor of Wisconsin


21. A National Commission on Mass Incarceration
James Webb, former United States Senator for Virginia


22. A National Agenda to Reduce Mass Incarceration
Inimai Chettiar, Justice Program Director at the Brennan Center
for Justice, New York University School of Law






About the Brennan Center for Justice


Hon. William J. Clinton
42nd President of the United States


n this time of increased political polarization, there is one area
where we have a genuine chance at bipartisan cooperation: the
over-imprisonment of people who did not commit serious crimes.
The drop in violence and crime in America has been an extraordinary
national achievement. But plainly, our nation has too many people
in prison and for too long — we have overshot the mark. With just
5 percent of the world’s population, we now have 25 percent of
its prison population, and an emerging bipartisan consensus now
understands the need to do better.1
It has been two decades since there was sustained national
attention to criminal justice. By 1994, violent crime had tripled in
30 years.2 Our communities were under assault. We acted to address
a genuine national crisis. But much has changed since then. It’s time
to take a clear-eyed look at what worked, what didn’t, and what
produced unintended, long-lasting consequences.
So many of these laws worked well, especially those that put
more police on the streets. But too many laws were overly broad
instead of appropriately tailored. A very small number of people
commit a large percentage of serious crimes — and society gains
when that relatively small group is behind bars. But some are in
prison who shouldn’t be, others are in for too long, and without a
plan to educate, train, and reintegrate them into our communities,
we all suffer.
The new approach has many roots and just as many advantages: a
desire to save taxpayers money; the resolve to promote rehabilitation
not recidivism; an obligation to honor religious values; the necessity
to alleviate crushing racial imbalances. All of them strengthen this
powerful new movement.

Now it’s time to focus on solutions and ask the right questions.
Can we do a better job identifying the people who present a serious
threat to society? If we shorten prison terms, could we take those
savings and, for example, restore the prison education programs that
practically eliminate recidivism? How can we reduce the number of
prisoners while still keeping down crime?
As the presidential election approaches, national leaders across the
political spectrum should weigh in on this challenge — and in this
exciting book of essays from the Brennan Center, many of our nation’s
political leaders step up and offer answers. This, in itself, is deeply
encouraging. After decades in which fear of crime was wielded as a
political weapon, so many now understand the need to think hard
and offer real reforms, which, if implemented, can bring about this
change in the right way. To address our prison problem, we need real
answers, a real strategy, real leadership — and real action. We can
show how change can happen when we work together across partisan
and political divides. That is the great promise of America.




eaders across the political spectrum agree on one fact: The American
criminal justice system is not functioning as it should.
Our nation is beginning to understand certain fundamental truths.
Mass incarceration exists. It is not needed to keep down crime. It comes at
a huge cost to the country. And there are practical solutions on which we
can agree to reduce our prison population, while keeping the country safe.
One in 100 Americans is currently behind bars. Our nation’s prisons
include one-third of the planet’s incarcerated women. One in three black
men will spend time behind bars. Mass incarceration is among the greatest
challenges facing our nation.1
These numbers are intolerable, irrational, and unsustainable. Worse,
they are unjustified. Public safety is of paramount importance. Strong
communities can only grow amid order and respect for the law. Over
the past three decades, the United States has made remarkable progress.
Crime is now at the lowest levels in half a century.2 But experience has
shown conclusively that locking up ever-larger groups of people does
not lead to fewer crimes. A large body of research has demonstrated that
incarcerating people who do not need to be punished so severely actually
increases their propensity to commit future crime. Paradoxically, letting
certain people out of jail, or never putting them there in the first place,
may be the best thing we can do to make our country safer.
We now know we can reduce crime and reduce mass incarceration.
States have begun to do just that. For the first time in 40 years, both crime
and incarceration have fallen nationwide. Since 2000, a geographically and
politically diverse group of 13 states — ranging from Texas to California
to New Jersey — have successfully reduced imprisonment and crime at
the same time.3
Not only are these reforms needed from a public safety perspective,
they are needed from an economic perspective. Mass incarceration
imposes significant costs. The national archipelago of corrections facilities



and criminal justice agencies cost taxpayers $260 billion a year, and
corrections spending has more than quintupled over the past 30 years.
The overall economic toll is deeply troubling. Sixty percent of the 600,000
prisoners who reenter society each year face long-term unemployment. By
some estimates, mass incarceration is responsible for as much as 20 percent
of the United States poverty rate.4
But the human cost may be the starkest of all: If the total number of
people behind bars were a state, it would be the 36th largest, bigger than
Delaware, Vermont, and Wyoming combined. Adding people on probation
and parole would make it the 14th largest state.5
The problem of mass incarceration is not new. For decades, it has
grown in plain sight. What is new is the emerging bipartisan will to address
it. Republicans, Democrats, and Independents are co-sponsoring legislation
to decrease prison sentences. These reforms move in the right direction, but
they are not systemic. Much more can and should be done.
The larger apparatus of overcriminalization and over-imprisonment
remains. To truly reduce mass incarceration, we need a national conversation,
led by national voices, offering national solutions. In this book, the Brennan
Center asked the country’s leading public figures and criminal justice experts
to offer practical solutions. They responded by writing essays putting forth
a variety of proposals to tackle the problem of overincarceration from
differing perspectives. From helping ex-offenders reintegrate into society to
decreasing the number of crimes, from treatment instead of prison for those
with mental health and drug addiction issues to increasing employment
and education, their thoughtful ideas provide a way forward. They share
a commitment to continued progress in the fight against crime — and
continued progress toward a more just society.
The 22 solutions offered here will not fix the problem on their own.
It is our hope that lawmakers and stakeholders implement these ideas to
produce a system that both reduces crime and reduces mass incarceration.
These ideas must be turned into action. They must become policy, etched
into law. Success will only come when ideas are translated into concrete
results. And a successful reform of the criminal justice system is necessary
for the continued health of our American democracy.


Hon. Joseph R. Biden, Jr.
Vice President of the United States1

“There are changes that President Obama and I
believe can and should be made that can help change
the way police patrol their often dangerous streets
without jeopardizing the safety or security of the
community, which is the whole reason to patrol the
street in the first place. One of the things we’re
looking at is genuine community policing.”


r. Martin Luther King, Jr. stood for many things that still resonate
in our country today — issues of war and peace, the rights of
women overseas, the future of civil justice in this country. But here, I
would like to focus on an area of Dr. King’s teachings that sits especially
close to home for many Americans.
I know that when you send your children, your grandchildren out
into the world, you worry about them. Will they be safe? Will they be
treated fairly? Will they be respected? Can I trust the world with this
person I love?
It’s the prayer of every parent and grandparent. When your child
walks out the door you have enough fears to contend with — the
possibility that they will get into a car accident, or fall victim to an act
of crime, or be hit with a stray bullet from a drive-by shooting.
But in too many neighborhoods in this country, that fear is
compounded by the fear your child may be presumed to be a gang
member, or a suspect — the fear of someone in authority looking at
that child and seeing only a profile, not an individual. 



Dr. King wrote, “Men often hate each other because they fear each other;
they fear each other because they don’t know each other; they don’t know
each other because they cannot communicate; they cannot communicate
because they are separated.” We have to bridge the separation between the
police and the community.2
In an interview on “Charlie Rose,” New York City Police Commissioner
Bill Bratton used an expression that I think should be the guiding principle
for every effort to rebuild that trust. It is an expression from the Maasai
tribe. The expression is simply, “We see you.”3
But the question is: Do we see one another? Does the danger they face
prevent the police in your neighborhood from seeing the people they serve?
And does fear prevent the community from seeing and engaging with the
person behind the badge?
I served in these communities as a public defender, and for 36 years
as Delaware’s senator. I know, and I see, the goodness and decency in
communities across the country. And I have also worked with thousands
of honorable and decent police officers, some of whom I grew up with and
worked with my entire career. And at times I’ve seen reflected in their eyes
the uncertainty and fear that comes with being asked to put their lives on
the line when it’s unclear who has their back.
I had the honor of speaking at the funeral of New York City Detective
Rafael Ramos. I didn’t know him, but I knew him. He’s like the most
courageous and compassionate guys I grew up with in Claymont, Del., the
ones who were always there to help. Rafael was an active member of his
church, about to be ordained as a chaplain. He didn’t just keep a Bible in his
locker, he lived his ministry as part of his job, reaching out to all people. He
was a former school safety officer, who joined the NYPD at age 37. He was
a father, a husband, and a son.
I was welcomed into the home of his partner, Wenjian Liu. A sevenyear veteran of the force. He came to these shores from China as a 12-yearold and spoke several dialects. He was a newlywed.
Both were minorities. Both were the product of the community they lived
in. Both knew the sting of stereotypes, of prejudice. They had families. They
had stories. They had a humanity that was denied by an assassin, who judged
them by the color of their uniform, and not by the content of their character.



We have to start seeing each other. We have to recognize that the
black male on the corner is also a kid who likes to draw, and maybe has
a future as an architect. We have to recognize that the cop on the beat is
also a mom who plays basketball.
It is the responsibility of every community to recognize the humanity
of the men and women who volunteer to put themselves in harm’s way, to
answer the urgent call in the night, to do the best that they can. And it is
the responsibility of every officer who takes an oath to protect and serve to
respect the dignity of every person that officer encounters, young or old,
male or female, black, white, Hispanic, or Asian.
We need to agree as a nation on two basic statements of truth.
Number one, cops have a right to make it home to their families tonight.
And number two, all minorities have a right to be treated with dignity
and respect. Because all life matters. And the fact that all life matters is the
reason most officers became cops in the first place. And no one, no matter
what their position, what badge they wear, no one is above the law. There
can be no notion of impunity for any individual in society, regardless of
their position. 
There are changes that President Obama and I believe can and should
be made that can help change the way police patrol their often dangerous
streets without jeopardizing the safety or security of the community,
which is the whole reason to patrol the street in the first place.
One of the things we’re looking at is genuine community policing. In
some ways we’ve lost the meaning of that term. I helped institutionalize
the idea, in the 1994 Biden Crime Bill, to have community policing.4
When there’s criminal activity, the older lady living on the corner knows
what’s going on but may be afraid to call the cops because she may become
the victim if the offenders find out she called them. But if she knows
the cop and has his name, she can call and say, “Johnny, they’re outside
my door.” And Officer Johnny can take care of it without exposing her.
That’s what community policing was supposed to be about.
When it started, it worked. But it’s really expensive. It takes a lot
of cops. In the beginning we had adequate resources. The 1994 Biden
Crime Bill at the time was a pretty expensive operation. It put another
100,000 cops on the street, and it cost $1 billion. But because crime was



rampant, everybody signed on. And it worked. Community policing
costs a lot of money. It’s more expensive to have individuals patrolling
the neighborhood than relying on technology, or up-armored vehicles,
or jump squads, which every city in America now has.
But since 1998, states, as well as the federal government, in large
part because crime dropped, have started to slash budgets. We acted like
the problem was solved. Crime was not at the top of the country’s agenda
anymore. As a result, since 1998, funding for community policing has
been cut by 87 percent.5 That means fewer cops on the streets and in
neighborhoods, building recognition and trust.
The result is more separation, less communication, more hostility,
and a place for crime to thrive in a neighborhood full of decent and
honorable people. That needs to change. A lot of other things need to
change too. Ultimately, there’s no overnight way to make that happen. It
has to happen neighborhood by neighborhood, block by block, person
by person. And there’s nothing certain about it.
In his final sermon, Dr. King said: “Somewhere we must come to
see that human progress never rolls in on the wheels of inevitability. It
comes through the tireless efforts and the persistent work of dedicated
individuals who are willing to be coworkers with God.”6
Through the persistent work of so many Americans we’ve seen
progress come rolling down the tracks on a host of issues that once
seemed insurmountable. If we remember that, we’ll recognize that we
can solve this problem too. Let’s not forget who we are. Let’s not forget
what we’ve done. Let’s not forget that although there’s much more to do,
we have come very, very far. And we have come this far because of the
spirit and hard work of the American people.

Hon. Cory Booker
United States Senator for New Jersey

“To truly end mass incarceration, we need a
comprehensive approach. We need to do away with
harsh mandatory minimum penalties and the onesize-fits-all approach to sentencing. We should
give judges — who are our sentencing experts —
more discretion in sentencing.”


e, as a nation, work to lead the world in areas from education to
innovation; yet, we do not fully realize that the cancerous growth
within our criminal justice system has made us the global leader in
incarceration. Though only 5 percent of the world’s population lives in
the United States, we are home to 25 percent of the world’s imprisoned
people. This is, among other things, a phenomenon driven by the drug
war. In fact, there are more people incarcerated in America today for drug
offenses then all the people incarcerated in 1970.1
Some people need to be taken off the street for a long time. If you
commit a crime, and particularly a violent crime, you must pay a price.
But we are not focused on locking up violent, dangerous felons — far from
it. Our prisons are filled not with violent criminals, but with nonviolent
offenders — nearly one-third of federal prisoners have little or no prior
criminal history.2
And we are all paying the financial price for these troubling trends.
Using the narrowest of measures (not including police costs, courts,
and more) the average American contributed $30 a year to corrections



expenditures in 1980; that number grew to over $230 by 2012.3 Factoring
in other costs, each American annually spends hundreds of dollars from his
or her tax bill to incarcerate nonviolent offenders while our expenditures
on other critical aspects of our society — from infrastructure to life-saving
medical research — have declined. It costs hundreds of thousands of dollars
to incarcerate a nonviolent offender for a few years, money that could be
used to hire more police officers, secure our nation from terrorist threats,
or solve more serious violent crimes. Or we could spend this money to
empower those who break the law — from the drug addicted to youthful
offenders — to succeed.
Our criminal justice system is so broken that, once convicted of a
nonviolent crime and time has been served or punishment completed, we
place daunting obstacles in the path of people leaving prison that undermine
their ability to successfully rejoin society. The American Bar Association
has identified over 46,000 penalties, called collateral consequences, which
can impact people long after they complete their criminal sentence.4 These
consequences include roadblocks to voting and barriers to obtaining a job,
business licenses, housing, education, and public benefits. That is why our
state and federal prisons have become revolving doors, with two of every
three former offenders getting rearrested within three years of release.
We use solitary confinement against juveniles, a practice that some
nations consider torture. It also can have profound life-altering consequences
on our youth. In fact, the majority of suicides by incarcerated youth are by
ones that have been subjected to solitary confinement.5
You may assume mass incarceration exists because people are
committing more crimes. But that is not true. Violent crime has
plunged in recent decades; the rate has declined roughly by half since
1993. In fact, numerous studies have shown that incarceration rates
cannot be tied to crime rates.6 The incredibly costly reality is that
prisons in our nation continue to grow irrespective of crime rates. It
is a bureaucracy that has been expanding independent of our security
or safety. One that costs each and every one of us more and more as
it systematically deprives millions of Americans and their children of
economic opportunity — the opportunity to contribute, succeed, and
break cycles of poverty and hardship.



In fact, Americans are increasingly detained in jails for simply being
too poor to pay a fine or from conduct stemming from mental illness,
homelessness, or addiction. Instead of empowering people to succeed
or treating their addictions or mental health problems, our overuse of
detention, jail, and incarceration aggravates their problems. Being poor
should not be a crime. Incarcerating a person further undermines his or
her ability to achieve economic stability because it often results in the
individual having to miss work, lose a job, or have an arrest record that
makes the person even less employable.
 Some feel the brunt of this broken system more than others. More
than 60 percent of the prison population is comprised of racial and ethnic
minorities. This is driven by wide disparities in arrests and incarceration.
Even though blacks and Latinos engage in drug offenses at a rate no
different than whites, blacks are incarcerated at a rate six times greater
than whites, and Latinos are incarcerated at nearly twice the rate of whites
for the same offenses. The incarceration rate of Native Americans is 38
percent higher than the national rate. Latinos account for 17 percent of
the U.S. population, but 22 percent of the U.S. incarcerated population.
And, blacks make up only 13 percent of the total U.S. population, but 37
percent of the U.S. prison population. Today, we have more black men in
prison or under state or federal supervision than were enslaved in 1850.7
Despite these realities, I have a deep and abiding faith in our nation’s
ability to fix our justice system. We have shown time and time again that
in the face of injustice, unfairness, and inequality we have the capacity
to overcome, to reform, to change, and to grow. Correcting the problem
of mass incarceration demands again a time of courage and action for
our nation.  
Today, I am encouraged. Across our country, people from all
backgrounds, from all parts of our political spectrum are standing up to
change this awful reality of mass incarceration. Liberals and libertarians,
Democrats and Republicans, Christian conservatives and left wing
atheists, together with many others are forming unusual partnerships to
roll back mandatory minimum penalties, enact bail reform, expand drug
treatment, and push for countless other reforms to our justice system.
As an elected Democrat, I am encouraged to see conservative groups



like the Heritage Foundation, Right on Crime, and the National Rifle
Association joining the call for change and pushing for substantive
criminal justice reforms.  
I am increasingly encouraged by the progress in our states, which
often have been the laboratories of our democracy. So-called “red states”
like Texas and Georgia — which have a widely-held reputation for
prioritizing law and order — have made sweeping reforms in recent years
to reduce their prison populations.
In addition, states like New Jersey, Texas, California, Virginia,
Hawaii, Wyoming, Massachusetts, Kentucky, Connecticut, Rhode
Island, Colorado, New York, South Carolina, Alaska, and Georgia have
all enacted reforms and have seen drops in both their incarceration and
crime rates. The reforms in these states prove that you do not have to lock
up more people to create safer communities.
Now that we have made serious progress in many states, the question
is what can policymakers do at the federal level? The answer: We must
think big. We need broad-based reforms that will address all corners of the
system — from sentencing, to incarceration, to reentry.
Since joining the Senate, I have taken steps toward introducing sensible
reforms. Sen. Rand Paul (R-Ky.) and I came together to introduce the
Record Expungement Designed to Enhance Employment (REDEEM)
Act.8 It would keep more kids out of the adult system, protect their privacy
so a youthful mistake does not follow them all of their lives, and help
make it less likely that low-level adult offenders reoffend. While new to the
Senate, I am so grateful to join enduring champions for sensible reforms.
Senators like Patrick Leahy (D-Vt.), Richard Durbin (D-Ill.), Mike Lee
(R-Utah), Rob Portman (R-Ohio), Sheldon Whitehouse (D-R.I.), and
John Cornyn (R-Texas) have for years all pushed for legislation that would
make our legal system become more just.
In February, I joined with Sens. Lee, Durbin, and Ted Cruz (R-Texas)
to reintroduce the Smarter Sentencing Act of 2015, bipartisan legislation
that would enact meaningful sentencing reforms that would make our
federal sentencing policy fairer, smarter, and more cost-effective.9 It would
reduce harsh mandatory minimums for nonviolent drug offenders, which
is the single largest factor in the growth of the federal prison population.



If we want our prison population to decrease, we must reduce mandatory
minimums. The bill would expand the federal “safety valve,” which
returns discretion in sentencing for nonviolent drug offenses back to
federal judges. It would allow persons convicted under the pre-2010 crack
cocaine laws to receive reduced sentences, a change needed to make crack
cocaine penalties more in line with powder cocaine penalties. Crack and
powder cocaine are pharmacologically the same. The Smarter Sentencing
Act would reduce these sentences and save our country $229 million over
the next 10 years.
To truly end mass incarceration, we need a comprehensive approach.
We need to do away with harsh mandatory minimum penalties and the
one-size-fits-all approach to sentencing. We should give judges — who
are our sentencing experts — more discretion in sentencing. We need
to adopt policies that push for the early release of those least likely to
recidivate. And we need to do more to ensure that people who reenter
society after serving time will contribute to society and not commit
future crimes.
The road ahead will pose challenges and change will not be easy. It
never has been. But nothing is more powerful than an idea whose time
has come. We cannot afford to be deterred in this cause to end a cancer
in our country that so aggressively eats away at our liberty and our justice.
We must reject the lie of cynicism that tells us that we cannot come
together to make criminal justice reform a reality now. We must reject the
lie of contentment that tells us to be satisfied with small reforms amidst
such giant problems. We must reject the lie of otherness that leads us to
believe that this is someone else’s problem when we are an interdependent
nation that knows “injustice anywhere is a threat to justice everywhere.”
I have an unshakable faith that our nation will rise to meet, and will
eventually overcome, this challenge. Let’s get to work.10


Cornell William Brooks
President and CEO
National Association for the Advancement of Colored People

“A criminal conviction — or an arrest record
— should not automatically sentence a person
to a life of unemployment or underemployment.
Legislation to “ban the box” should be implemented
in all states and at the federal level. Without such
legislation, African Americans will forever be a
permanent underclass in the United States and
mass incarceration will continue to hold back the
economic growth of our men and our communities.”


he tragic killings of unarmed African-American men Michael
Brown and Eric Garner in 2014 are a grim reminder of our
country’s ineffective and unjust criminal justice system.
Racial profiling is a corrosive policing practice harming black and
brown communities at both ends of the criminal justice system. At
the front end, racial profiling can lead to tragic and senseless deaths
of unarmed black men and women, as was the unfortunate case with
Michael Brown and Eric Garner. More regularly, racial profiling results
in men and women of color being disproportionately represented in our
prisons and jails. At the back end, racial profiling takes an economic
toll on communities of color, as upon release from prison, persons with
an arrest record are often disqualified from finding employment and
financially contributing to their community.
The NAACP stands at the forefront of addressing racial profiling
and its immediate and long-term impacts, both with political action
and advocating for policy reforms — like “ban the box” legislation,



which urges employers to remove from their hiring applications the box
applicants with a criminal record are required to check. Our efforts aim
to move our country toward establishing a fairer criminal justice system
and eliminating barriers for formerly incarcerated people to work, which
can transform our neighborhoods and make our communities safer and
economically stronger.
Racial profiling is neither an efficient nor corrective tool of policing.
In 2011, NYPD officers stopped nearly 800,000 people for alleged
suspicious activity. Nine out of 10 were innocent, 99 percent did not
have a gun, and 9 out of 10 were black or Latino. Furthermore, in 2011,
black and Latino men between 14 and 24 years old made up 42 percent
of those targeted by stop-and-frisk. That group makes up less than 5
percent of the city’s population.1
Yet, overwhelmingly, people of color continue to be racially profiled.
People with dreams, hopes, and aspirations are being locked and trapped
in the bottoms of airtight cages of prisons and poverty. In 2012, there
were an estimated 2.3 million people in U.S. jails and prisons — the
disproportionate majority of whom are people of color. African Americans
make up roughly 13 percent of the U.S. population, but are 37 percent
of its prisoners. Some survey data suggest that more than half of formerly
incarcerated people remain unemployed up to a year after their release
from custody. 2 This means communities of color, which are overly profiled
and incarcerated, are also acutely economically vulnerable.
Since its inception, the NAACP has always stood on the front lines
to ensure a society free from racial discrimination. Black lives matter.
Indeed all lives matter.
Most recently, the NAACP helped galvanize national and
international attention around racial profiling and overaggressive
policing practices, which led to the death of Michael Brown, in a 134mile march, “Journey for Justice,” from Ferguson to Jefferson City, Mo.
Our marchers trudged up icy hills with boots often filled with bloodied
and blistered feet. For seven days, from sunup to sundown, protesters
joined us as we marched through harsh weather for the cause of justice.
We marched to call for reforms of police practice and culture across
the country. Racial epithets were thrown our way from passersby, but



we marched. A mob shattered the window of our “support bus” after
some threatened to shoot us, yet we continued. And after marching 134
miles, we were in no way tired.
In no way was our trek from Ferguson to Jefferson City designed
to be a solution. It was a continuation of the many demonstrations
designed to make clear to the country and the world that the NAACP
and our allies will not stand down until we see systemic change in our
criminal justice system and we bring an end to the overaggressive policing
culture, particularly racial profiling, that has become commonplace in
communities of color all across the country.
That march is now completed, but we as a nation must continue
to march forward. We march to arrive at a day when my two teenage
sons and black men and women across this nation will be judged by
the content of their character, not the color of their skin. We press on
to achieve a criminal justice system that holds officers accountable for
their misconduct and strengthens neighborhoods while keeping all
communities safe.
Most of all, we march to end the plague of mass incarceration on our
communities. There are several ways the NAACP marches forward for
systemic reform in our criminal justice system. Clearly, we must advance
systemic reform and fundamental change in how policing is conducted
throughout our communities, which includes requiring police to use
body cameras, revising the equipping of police with military hardware,
promoting diversity on the force, ending the use of major force in cases
involving minor offenses, and, of utmost importance, passing legislation
that ends racial profiling at the federal, state, and local levels.
But there is one often overlooked consequence of today’s system
of racial profiling and mass incarceration that must become a more
prominent part of the criminal justice reform conversation: the
economic toll on communities of color. Much of this harm is caused by
a box on job applications.
The impacts of racial profiling do not end with an arrest. Long after a
person receives an arrest record, and has even repaid their debt to society,
he or she can be potentially sentenced to a life of economic insecurity.
With 70 million Americans with a record and 2.3 million incarcerated



nationally, everyone knows someone with a record — from the studious
undergrad with a high school shoplifting conviction, to the respected
middle manager guilty of a nearly forgotten sorority prank, to countless
scores of ambitious young men arrested but never convicted under “stop
and frisk” policing run amuck in our cities.3
The NAACP has long championed reforms to improve the
economic outcomes for former offenders, chiefly legislation to “ban
the box,” which is gaining traction. “Ban the box” is aimed at urging
employers to remove from their hiring applications the check box that
asks if applicants have a criminal record. Its purpose is to enable exoffenders to display their qualifications in the hiring process before
having to disclose their criminal records.
A criminal conviction — or an arrest record — should not
automatically sentence a person to a life of unemployment or
underemployment. Legislation to “ban the box” should be implemented
in all states and at the federal level. Without such legislation, African
Americans will forever be a permanent underclass in the United States and
mass incarceration will continue to hold back the economic growth of our
men and our communities.
According to Harvard sociologist Devah Pager, having a criminal
record decreases the likelihood of a white male job applicant getting
called back for an interview by at least 50 percent. For black men, the
rate is even 40 percent worse than for white men.4 A man with a record of
incarceration will lose $100,000 of income in his prime earning years. Not
surprisingly, formerly incarcerated people lower the national employment
rate as much as 0.9 percent; male employment as much as 1.7 percent;
and those of less-educated men as much as 6.9 percent. This joblessness
costs at least $57 billion nationally and annually.5
One in four adult Americans with a criminal record are reminded
whenever they fill out a job application that states: “Please check the box,
if you have ever been arrested or convicted of a crime.” This tiny box is a
massive economic challenge to both job applicants and businesses.
The economic challenge starts with today’s ubiquitous digital
technology. Anyone’s criminal record is accessible to anyone anywhere
in the world with the click of a mouse or the swipe of a finger across



a screen. These Internet records, no matter how old or inaccurate,
have digital eternal life. For employers protecting business reputations,
workplace safety, and staff quality, criminal record access is critical.
Once a person with a record checks the box, the employment process
often ends immediately — regardless of what the record actually says.
Applications with checked boxes are often trashed unread.
Employers who blindly screen out applicants by the box hurt both
businesses and applicants. The majority of people with criminal records
have neither spent time in prison nor committed a felony or violent crime.
Many are not guilty of any crime at all. Most have been arrested, but not
convicted. Moreover, of those convicted, most have only been convicted
of nonviolent and often minor crimes.
The misuse of criminal records by some employers is not only an
economic challenge but also a moral challenge. Harvard sociologist
William Julius Wilson has long written empirically, eloquently, and
sadly about what happens to poor communities when their citizens
aren’t able to work. Joblessness frustrates not only the ability and
ambition to hold a job, but also the ability and perhaps the aspiration
to raise a family responsibly.6
Imagine the possible moral consequences of employer policies that
impede the ability of literally millions of people to compete fairly for
work. Many employers, employees, and parents believe that work is not
merely economic activity but a moral exercise. Work and even the ability
to compete for work can imbue the young with discipline, ambition, an
aversion to crime, and the aspiration to start a family responsibly.
Using the box to unfairly screen out qualified applicants, with
minor convictions or mere arrests, not only affects them getting jobs,
but also building character, forming families, and contributing to the
community. For example, a child who sees a parent working — or even
competing for work — gets a moral lesson in responsibility.
“Ban the box” legislation would move the box off the application
and postpone (but not eliminate) a criminal background inquiry. This
practical policy has already been adopted by our nation’s largest public
employer, the federal government; the nation’s largest private employer,
Wal-Mart; and several states, including Georgia. Both Wal-Mart

and Georgia’s adoption of the “ban the box” policy were pursuant to
persistent campaigning by the NAACP and our coalition partners.7 This
policy will allow job applicants first to be considered and compete on
their qualifications — then be asked about and assessed on any criminal
record. Returning citizens who gain employment are more than onethird less likely than their counterparts to recidivate and are more
capable of turning their lives around permanently.
Now is the time to bring an end to unjust policies and policing
strategies and strive toward both individual culpability and collective
responsibility. Ending racial profiling and passing “ban the box”
legislation would be major transformative steps in the right direction. We
call on those we have elected to office to become our partners in the fight
for equality and fairness. Now is the time to ensure that all communities
can live safely — safe from violence both at the hands of criminals and
at the hands of police. Upon release from prison, individuals must have
the chance for employment; the chance to support themselves, their
families, and their communities; and a fair chance to live economically
productive lives.8


Hon. Chris Christie
Governor of New Jersey

“I hope other states can build on New Jersey’s
experience, ushering in bail reform to keep violent
offenders off the streets and give nonviolent
offenders a chance to reclaim their lives. These
changes will ensure that decisions about whether
to detain someone pretrial are made based on
real public safety threats and not on whether a
defendant is rich or poor.”


ur nation’s criminal justice system has failed us in many ways.
Too often, we let violent criminals slip through the cracks while
ensnaring nonviolent — and sometimes innocent — people behind bars.
For New Jersey, this situation has played out most acutely in our
bail system. Our system had allowed people who committed serious,
violent crimes, and continued to pose a clear danger to the community,
to be back on the streets while awaiting trial. At the same time, we kept
those who committed minor, nonviolent offenses behind bars simply
because they could not afford to pay a minimal bail amount. These
people sat in jail for an average of 10 months while violent people, who
could afford bail, walked free, further exemplifying how dysfunctional
the system had become.
There are many stunning examples of the utter failure of our bail
system. Perhaps there is none more striking than in July 2014, when
a man from Hamilton, N.J., whom police arrested earlier that same
month, invaded the home of a local family. He had been granted bail
for a litany of charges, including multiple counts of first-degree robbery



and had been released on bail despite his prior convictions. During the
robbery, he and his accomplice pointed a gun at the family’s 8-monthold baby and threatened to put the child in the oven and turn it on if
their demands were not met.1 That man should never have been released
simply because he could afford to post bail.
In contrast, Iquan Small was charged with a nonviolent offense
that was ultimately dismissed, yet he sat in jail for four months, lost his
job, and his life opportunities — all because he could not afford bail.2
This is the real tragedy of a broken system that often leaves in its wake
thousands of broken families created by low-income individuals, who are
nonviolent, are no threat to our society, but are stuck in jail awaiting trial.
These individuals often lose their jobs and their homes because of this.
Quite simply, the system did not work for the people it was supposed
to protect. Our bail system failed two essential tests: it was not fair nor
was it effective at protecting public safety. It is also fiscally irresponsible
to jail the poor and let the violent free.
Some argued that this was not a crisis for our state. For me, however,
every day that someone fears for their life on our streets is a crisis. For
me, every day that someone is deprived of their liberty in a jail, simply
because they lack the economic means, is a crisis. And I suspect that if
it were your mother or father, son or daughter, or sister or brother who
felt the graveness of that violent threat or sat unjustly in a jail cell that it
would be a crisis for you, too.
This crisis is not unique to New Jersey. A 2007 study by the Bureau
of Justice Statistics found that one-third of defendants released while
awaiting trial were charged with one or more types of misconduct while
on release. Nearly one-quarter had bench warrants for failing to appear
in court. About one-sixth were arrested for a new offense, and more
than half of these new arrests were for felonies.3
How can we allow a system to exist that fails our poor, fails those
who pose no risk to our communities, and fails our citizens?
I knew that we could do things differently in New Jersey. So I made
a commitment to overhaul our bail system. During my State of the State
address in 2012, I made a promise to a mother from Newark that we
would help reduce the cycle of violence so prevalent in many of our urban



communities. I made a promise that we would not allow the safety of
our communities and the fair treatment of nonviolent and low-income
offenders to continue to fall victim to politics and procrastination.
That’s why I proposed two common-sense reforms to refocus New
Jersey’s bail system on whether a person poses a danger. These changes
finally allow New Jersey courts to keep dangerous criminals off the streets
and in jail until trial.
In August 2014, I signed a law that created non-monetary
alternatives allowing for the release of low-level offenders while they
wait for trial.4 And in November, our citizens voted to pass a bipartisan
ballot initiative that I championed to amend our state constitution and
allow judges to deny bail for dangerous offenders, keeping them behind
bars while they wait for trial.5
Our constitution had been interpreted to require judges to set
bail amounts for all offenders — even if judges thought they should
be kept behind bars because they were dangerous.6 Judges should be
able to look at defendants’ criminal history, determine whether they
pose a potential danger to other individuals — witnesses or innocent
citizens on the streets — and then decide whether bail makes sense.
The new amendment establishes a clear exception: When a court finds
that no amount of bail, pretrial release conditions, or combination of
the two would assure a defendant’s appearance, protect the safety of the
community, or maintain the integrity of the criminal justice process, it
can deny bail and hold the defendant. This change will stop preventable
crimes from occurring by allowing a judge to use his or her common
sense to decide whether someone deserves to be released or not. This long
overdue measure will improve the quality of life in our communities by
keeping the most violent criminals off the streets and ease the minds of
citizens around the state.7
The companion measure was a bill to reduce our state’s reliance
on monetary bail. It created alternatives for individuals charged with
nonviolent offenses. These alternatives include requiring that defendants
remain in the custody and under the supervision of a designated guardian,
maintain employment or stay enrolled in school, report periodically to
a law enforcement officer, abide by curfews, undergo drug or mental



health treatment, or submit to electronic monitoring.8 These restrictions
will work to ensure a defendant returns to court without committing
another crime. This law brings fairness to individuals who have not
been charged with violent crimes and do not belong warehoused in jail
awaiting trial because they cannot afford bail.
We also made other sensible changes to our state’s criminal justice
system. In 2012, we expanded the mandatory drug court and treatment
program to more counties.9 I have a simple view on drug policy: Drug
addiction is a disease. It can happen to anyone, from any station in
life. And it can be treated. Most importantly, every life is an individual
gift from God and no life is disposable. We have an obligation to help
people reclaim their lives. And since we have the tools to help those with
this disease to save their own lives, we should use them.
We need to realize that when we keep drug addicts in jail, we
ensure that they will be a constant drain on our society. Treatment
not only costs us less in the short run, but in the long run it produces
contributing members to our society — people who are employed and
pay taxes, rather than being in jail and draining taxes. These individuals
will have the opportunity to become a good father or mother, a good
son or daughter, and contribute to the cultural fabric of our society.
Requiring mandatory treatment instead of prison for nonviolent drug
addicts is only one step — but an important one. Treatment is the path
to saving lives. For as long as I am governor of New Jersey, treatment
will be mandatory in our system.
In 2014, I also signed legislation to “ban the box” and end
employment discrimination against people with criminal records.10
The Opportunity to Compete Act limits employers from conducting
criminal background checks on job applicants until after a first interview
has taken place. This will make a huge difference to people who have
paid their debts to society and want to start their lives over again. They
now have the opportunity to do that in our state.
I am proud that New Jersey led by example, showing it is possible to
bring about true bipartisan progress and action. We passed real criminal
justice reform in New Jersey. We can now release individuals accused
of minor crimes without bail and ensure that those who pose the biggest



risks — the severest threats to our community — are kept behind bars
and off our streets.
For six years, I was the United States Attorney for New Jersey, the
chief federal law enforcement officer of the state. No one can say that I am
“soft on crime.” My career has been dedicated to trying to put bad people
in prison. But we need to be smart about how we use prison.
I hope other states can build on New Jersey’s experience, ushering in
bail reform to keep violent offenders off the streets and give nonviolent
offenders a chance to reclaim their lives. These changes will ensure that
decisions about whether to detain someone pretrial are made based on real
public safety threats and not on whether a defendant is rich or poor. They
enhance the administration of justice and keep our citizens safe.
As elected officials, we are the only ones who can bring change to fix
our criminal justice system. The individuals affected by the system cannot
bring that change. Neither can prosecutors nor defense attorneys. And
in some cases, not even judges can bring that change. These changes are
serious and should be made by the people who are elected and therefore
accountable to the people. It is our responsibility.
Elected officials across the country must act to make needed and long
overdue changes to our criminal justice system. It is good for public safety.
It is good for families. And it is good for New Jersey and the country.


Hon. Hillary Rodham Clinton
Former United States Secretary of State
and United States Senator for New York

“Everyone in every community benefits when there
is respect for the law and when everyone in every
community is respected by the law. All over the
country, there are creative and effective police
departments proving that communities are safer when
there is trust and respect between law enforcement
and the people they serve. They are demonstrating
that it is possible to reduce crime without relying on
unnecessary force or excessive incarceration.”


n the wake of tragedies in Ferguson, Mo., and Staten Island, N.Y., our
country is grappling with the urgent need to reform our criminal justice
system and rebuild trust and respect in our communities. In a speech last
December, I reflected on how the life and legacy of Robert Kennedy can
inspire us to come together and pursue this important work. Today, it’s
critical that we ask these questions, place them on the national agenda,
and work together to forge solutions.
What would Robert Kennedy think if he could see us today?
I think he would celebrate the enormous progress we have made
over the past half century: the advance of democracy and human rights
in parts of the world once locked in tyranny; the breakthroughs in
health, science, and productivity, delivered by American innovation;
and the great strides we have made here at home to build a more
just and inclusive society. In many ways, we have moved forward



toward that more perfect union of which he dreamed and for which
he worked.
But what would Robert Kennedy say about the fact that still today
more than 14 million children live in poverty in the richest nation on
Earth? What would he say about the fact that such a large portion of
economic gains have gone to such a small portion of our population?
And what would he say about the cruel reality that African-American
men are still far more likely to be stopped and searched by police,
charged with crimes, and sentenced to longer prison terms? Or
that one-third of all black men face the prospect of prison during
their lifetimes, with devastating consequences for their families,
communities, and all of us. What would he say to the thousands of
Americans who marched in our streets, demanding justice for all — to
the mothers who have lost their sons?
We have to come to terms with some hard truths about race and
justice in America. Despite all the progress we have made together, the
United States has less than 5 percent of the world’s population, yet we
have almost 25 percent of the world’s total prison population.2
We have allowed our criminal justice system to get out of balance,
and I hope that the tragedies of the last year give us the opportunity to
come together as a nation to find our balance again. We can stand up
together and say: Yes, black lives matter. Yes, the government should
serve and protect all of our people. Yes, our country is strongest when
everyone has a fair shot at the American Dream.
Inequality is not inevitable. Some of the social disparities we see
today may stem from the legacy of segregation and discrimination.
But we do not have to perpetuate them, and we do not have to give
into them. The choices we make matter. Policies matter. Values matter.
Everyone in every community benefits when there is respect
for the law and when everyone in every community is respected by
the law. All over the country, there are creative and effective police
departments proving that communities are safer when there is trust
and respect between law enforcement and the people they serve. They
are demonstrating that it is possible to reduce crime without relying
on unnecessary force or excessive incarceration. There are so many



police officers every day inspiring trust and confidence, honorably doing
their duty, putting themselves on the line to save lives. They represent
the best of America.
We can learn from these examples. We can invest in what works.
We can make sure that federal funds for state and local law enforcement
are used to bolster best practices, rather than contribute to unnecessary
incarceration or buy weapons of war that have no place on our streets.
Of course, these are not new concerns, as I learned firsthand as
a young attorney just out of law school. One of my earliest jobs for
the Children’s Defense Fund was studying the problem of juveniles
incarcerated in adult jails. As director of the University of Arkansas
School of Law’s legal aid clinic, I advocated for prison inmates and poor
families. I saw how our criminal justice system can be stacked against
those who have the least power and are the most vulnerable. These
experiences motivated me to work for reform, especially for juveniles, a
priority as first lady and senator. Yet, our criminal justice challenges have
become even more complex and urgent in the years since.
Today, there is a growing bipartisan movement for common-sense
reforms. I was encouraged to see changes that I supported as senator
to reduce the unjust federal sentencing disparity between crack and
powder cocaine crimes finally become law. Last year, the Sentencing
Commission reduced recommended prison terms for some drug crimes.
And, President Obama and former Attorney General Eric Holder have
led the way with important additional steps. But there is much more
to do. Measures that I and others have championed to reform arbitrary
mandatory minimum sentences, curb racial profiling, and restore voting
rights for ex-offenders are long overdue.3
As a presidential candidate in 2008, I outlined proposals to reduce
both crime and the size of our prison population.4 For example, tough
but fair reforms of probation and drug diversion programs to deal
swiftly with violations, while allowing nonviolent offenders who stay
clean to stay out of prison. I called for putting more officers on our
streets, with greater emphasis on community policing to build trust
while also fighting crime, as well as new support for specialized drug
courts and juvenile programs.



These ideas are needed now more than ever — and they are just
the beginning. We need a true national debate about how to reduce our
current prison population while keeping our communities safe. We should
work together to keep more nonviolent drug offenders out of prison and
to ensure that we don’t create another “incarceration generation.”
Progress will not be easy, despite the emerging bipartisan consensus
for reform. We will have to overcome deep divisions, replenish our
reservoirs of trust, and stay focused on the common humanity that
unites us all.
To move forward, we can again look back to the lessons of Robert
Kennedy. Being the privileged heir to a famous name never stopped
him from finding humanity in everyone — from a single mom in BedStuy, to a steel worker in Buffalo, to a student in South Africa. He had
the gift of seeing the world through their eyes, imagining what it was
like to walk in their shoes. I was honored to follow in his footsteps in
the United States Senate, and his example was often on my mind. New
Yorkers took a chance on both of us, and I will always be grateful for
that. And I followed in his footsteps again in the summer of 2012, when
I went to South Africa. One of the places I went was the University
of Cape Town to deliver a speech, just as he had decades earlier that
continues to inspire today.
Before that speech, I stopped in for what turned out to be my final
visit to my friend, Nelson Mandela, at his home in his ancestral village.
We reminisced, and I thought about the extraordinary excitement of
being at his inauguration in 1994. It was a time of political strife in our
own country. I have to confess, my heart had been hardened by all the
partisan combat. But then at lunch, the new president of the new South
Africa, President Mandela, said something that shook me from my head
to my toes. He welcomed all the VIPs who came from all over the world,
that he was pleased they were there, and then said this: “The three most
important people to me here in this vast assembly are three men who
were my jailers on Robben Island.”
Mandela called them by name, and three middle-aged white men
stood up. He explained that despite everything that divided them, those
men had seen him as a fellow human being. They treated him with



dignity and respect. Mandela had later told me when he was finally
released he knew he had a choice to make — he could carry the bitterness
and hatred of what had been done to him in his heart forever and he
would still be imprisoned, or he could open his heart to reconciliation
and become free.
Robert Kennedy said much the same thing on that terrible night in
1968, when Dr. King was killed. He spoke of his own loss, and he urged
Americans to reach for justice and compassion, rather than division and
hatred, quoting Aeschylus on the wisdom that comes through the awful
grace of God.
It is in this spirit of common humanity that we will be able to
come together again to restore balance to our criminal justice system,
our politics, and our democracy.


Hon. Ted Cruz
United States Senator for Texas

“This essay focuses on three vital areas of concern:
overcriminalization, harsh mandatory minimum
sentences, and the demise of jury trials. Congress
should pass laws that would eliminate redundant
crimes and convert regulatory crimes into civil
offenses, take steps to give judges more sentencing
flexibility, and require prosecutors
to disclose material exculpatory evidence during
plea negotiations.”


he criminal law is the most potent “lever through which
government brings power to bear on the individual citizen.”1 Not
only can a criminal conviction lead to imprisonment and the loss of
other rights, including the right to vote, it forever brands those who
are convicted as criminals — a stigma that can be difficult, if not
impossible, to overcome. Because of these serious consequences, the
power to define crimes and to prosecute and jail people for committing
them must be exercised with utmost care. Unfortunately, for all its
virtues, the criminal justice system does not always exercise the care
that it should.
This essay focuses on three vital areas of concern: overcriminalization,
harsh mandatory minimum sentences, and the demise of jury trials.
These problems pervade our criminal justice system at large, but
there are practical ways to address them at the federal level. Congress



should pass laws that would eliminate redundant crimes and convert
regulatory crimes into civil offenses, take steps to give judges more
sentencing flexibility, and require prosecutors to disclose material
exculpatory evidence during plea negotiations.
The first problem is the proliferation of federal crimes, what is often
termed overcriminalization. Since the late 19th century, the number
of federal offenses has risen steadily, accelerating during the New Deal
and virtually exploding since the 1970s. The last time a rigorous effort
was undertaken to tally the number was over 30 years ago in 1982.
The task took two years and produced, at best, an educated estimate
of approximately 3,000 federal criminal offenses. No one really knows
what the real number is today. We do know, however, that Congress
created more than 450 new crimes from 2000 to 2007, a rate of more
than one a week. Assuming a one-a-week rate over the last 32 years,
the number of federal criminal offenses would now exceed 4,600. But
even that does not capture the full scope of our overcriminalization
epidemic because many federal regulations carry criminal penalties.
If those regulations are included in the tally, then the total number of
federal offenses could reach a staggering 300,000.2
Congress and the president should work together — perhaps
through a commission — to scrub the entire United States Code,
eliminating crimes that are redundant and converting regulatory
crimes into civil offenses. But the political incentives to criminalize
disfavored conduct — whether it is inherently evil or not — could
prove too great to generate the support needed to undertake this
Herculean task.
The place to start is with incremental reforms aimed at mitigating
the harmful effects of overcriminalization. Congress should begin
by requiring that all criminal offenses are put into one title of the
Code, Title 18, or if that proves too difficult, Congress can enact a law
that prohibits criminal liability on the basis of any statute that is not
codified or otherwise cross-referenced in Title 18.3 Having thousands
of criminal laws scattered throughout the entire Code works an
intolerable hardship on the public akin to Caligula posting his laws
high up to make them difficult for the public to see.



To ameliorate the effect of redundant or overlapping criminal
laws, Congress should also pass legislation requiring courts to presume
that a single criminal act or transaction should be treated as one
crime subject to one punishment, even if the act or transaction is
punishable under multiple statutes. And to mitigate the consequences
of criminalizing regulatory offenses, Congress should repeal criminal
penalties for violations of agency regulations. At the very least, it
should require that any new regulations carrying criminal penalties be
approved by Congress and the president. Perhaps most importantly,
Congress should enact legislation that requires the government to
prove the defendant knowingly violated the law — or that, at least,
allows a mistake of law defense — for certain classes of crimes that
have no analog in the common law or that no reasonable person
would understand to be inherently wrong. Where the government
has criminalized non-blameworthy conduct for regulatory purposes,
ignorance of the law should be a valid defense to criminal liability.
The second problem is the ratcheting up of mandatory minimum
sentences over the last several decades. Although there is nothing
wrong in principle with mandatory minimums, they must be carefully
calibrated to ensure that no circumstances could justify a lesser
sentence for the crime charged. The current draconian mandatory
minimum sentences sometimes result in sentencing outcomes that
neither fit the crime nor the perpetrator’s unique circumstances. This
is especially true for nonviolent drug offenders.
Harsh mandatory minimum sentences for nonviolent drug crimes
have contributed to prison overpopulation and are both unfair and
ineffective relative to the public expense and human costs of years-long
incarceration. According to a 2012 Government Accountability Office
report, the inmate population in the federal Bureau of Prisons (BOP)
increased by more than 400 percent since the late 1980s because of
lengthening sentences. The number of drug offenders in federal and
state prisons increased 13-fold during that time period. As of February
2015, nearly half — 49 percent — of BOP inmates were sentenced for
drug crimes. This has contributed to overcrowding. BOP prisons now
house 39 percent more inmates than their capacity.4 It is far from clear



whether this dramatic increase in incarceration for drug crimes has
had enough of an effect on property and violent crime rates to justify
the human toll of more incarceration.
Given the undeniable costs and dubious benefits of mass, longterm incarceration of nonviolent drug offenders, Congress should
take steps to give judges more flexibility in sentencing those offenders.
The Smarter Sentencing Act of 2015, which was introduced by Sens.
Mike Lee (R-Utah) and Dick Durbin (D-Ill.), and of which I am an
original cosponsor, is a significant stride in that direction.5 Among
other things, the bill lowers minimum sentences, cutting them in
half, to give judges more flexibility in determining the appropriate
sentence based on the unique facts and circumstances of each case.
The third problem, which is exacerbated by the first two, is the
demise of jury trials. Plea bargaining has become the norm in our
criminal justice system, while the constitutional right to a jury trial —
which the Founders understood to be a bulwark against tyranny — is
now rarely exercised. Contrary to popular perceptions, we no longer
have a system where a jury determines a defendant’s guilt or innocence
in a public trial. In 2013, 97 percent of all federal criminal charges
that were not dismissed were resolved through plea bargains; less than
3 percent went to trial.6
In this plea-bargaining system, prosecutors have extraordinary
power, nudging both judges and juries out of the truth-seeking process.
The prosecutor is now the proverbial judge, jury, and executioner
in the mine-run of cases. Often armed with an extensive menu of
crimes, each with their own sentencing ranges, federal prosecutors can
wield their discretionary charging power to great effect by threatening
the most serious charges that theoretically (if not realistically) can
be proved. If the accused succumbs to the threat and pleads guilty,
which often happens, the prosecutor agrees to bring lesser or entirely
different charges that carry a lower sentencing range.
Given the risks involved in turning down a plea offer, it is not
unheard of for people to plead guilty to crimes they never committed.
Of the 1,428 legally acknowledged exonerations recorded by the
National Registry of Exonerations since 1989, 151 (or roughly 10



percent) involved false guilty pleas. It is estimated that between 2 and
8 percent of convicted felons who have pleaded guilty are actually
innocent.7 In a federal prison population of 218,000 — the number
at the end of fiscal year 2011 — where 97 percent pleaded guilty,
that means that anywhere from 4,229 to 16,916 people could be
imprisoned for crimes they did not commit.
The plea-bargaining system is premised on the assumption that
there is relatively equal bargaining power between the accused and the
state. Nothing, of course, could be further from the truth. Mitigating the
coercive effect of the plea-bargaining process will require empowering
the defense. And one way to do that is to reduce the informational
asymmetry between prosecutors and defense counsel. Plea offers are
often foisted upon the accused before the defense has had enough time
to investigate the facts, and the longer the investigation takes, the less
generous the plea offer may become. Congress should pass legislation
that requires the government — whether constitutionally required or
not — to disclose material exculpatory evidence before the accused
enters into any plea agreement. This reform will reduce the risk of
false guilty pleas by helping ensure that the accused is better informed
before sealing his or her fate.
Not all criminal justice reforms benefit criminal defendants. I,
for instance, strongly supported Sen. Kirsten Gillibrand’s (D-N.Y.)
Military Justice Improvement Act, which would have transferred
charging authority for many non-military-related crimes, including
sexual assault, from unit commanders to independent military
prosecutors — a change that may well make it more likely for charges
to be brought against defendants.8 Such a reform will better serve
the interests of justice. Likewise, the reforms discussed in this essay
would serve the interests of justice by giving much-needed protection
to individuals — many of whom are poor or minorities — who find
themselves in the crosshairs of federal prosecutors.


Hon. Kamala D. Harris
Attorney General of California

“States can deliver accountability and achieve costeffectiveness by implementing reentry programs,
such as California’s Back on Track, to ensure that
offenders successfully transition from in-custody
to out-of-custody life and stop committing crimes.
Providing these services reduces recidivism, saves
money, and prevents crime. It helps redirect
nonviolent offenders from a life of repeated crime
and prison time to get their lives back on track.”


merica is a global leader on many fronts, including our record
incarceration rate. Over the last 40 years, the country’s prison
population has grown 500 percent. We now house more than onefifth of the world’s incarcerated population. In California, the prison
population grew three times faster than the general population
between 1990 and 2005.1 With severe overcrowding in the state’s
prisons and increased scrutiny on the effectiveness of incarceration
in enhancing public safety, California has had to develop innovative
policies to hold criminals accountable and stop prison’s revolving
For several decades, tough laws and long sentences have created
the illusion that public safety is best served when we treat all
offenders the same way: arrest, convict, incarcerate, and hope they
somehow learn their lesson. As a career prosecutor, I firmly believe
there must be swift and certain consequences for crimes, and that
certain offenses call for nothing less than long-term imprisonment.



But we also know that the majority of prisoners are serving time for
nonviolent offenses — what I call the base of the “crime pyramid.”
At the top of the pyramid are the most serious and violent crimes,
which are committed far less often but should demand most of our
attention in law enforcement. At the base of the pyramid are the
vast majority of crimes committed, which are nonviolent and nonserious. Yet the manner in which our system deals with low-level
offenders wastes precious resources needed to fight more serious
crime and truly enhance public safety.
Crime is not a monolith. Instead of a one-size-fits-all justice
system that responds to all crime as equal, we need a “Smart on Crime”
approach — one that applies innovative, data-driven methods to make
our system more efficient and effective. Being smart on crime means
that we focus on the top of the pyramid and avoid treating all offenders
the same way. This approach has three pillars: maintain a relentless
focus on reducing violence and prosecuting violent criminals, identify
key points in the lives of young offenders to stop the escalation of
criminal behavior, and support victims of crime.
The issue of mass incarceration was brought into sharp focus
for California when the U.S. Supreme Court issued its 2011
Brown v. Plata decision, requiring the state to reduce its prison
population by approximately 46,000 inmates due to overcrowding.2
This ruling forced California’s leaders to confront how our state
approached incarceration, particularly when more than 90 percent
of prisoners return to their communities and are unprepared to
be productive members of society.3 In response to this ruling, the
California legislature passed the Criminal Justice Realignment Act
of 2011 (“Realignment”). Realignment shifted responsibility for
the incarceration and supervision of low-level, nonviolent offenders
from state prisons to California’s 58 counties. It also funded counties
to handle their increased responsibilities and create alternatives to
incarceration and successful reentry.4
Since then, Realignment has achieved one of its primary
purposes: to significantly reduce California’s prison population.
California has reduced its state prison population by 30,000 and also



shifted the supervision of 50,000 offenders from state parole agencies
to county probation departments. Further, Realignment has allowed
us to increase our return on investment, so that dollars we spend on
criminal justice better equip inmates with the tools and skills they
need to ensure they do not reoffend. This is particularly important
because incarceration in California is expensive. Statewide, we spend
an estimated $13 billion per year on prisons, yet nearly two-thirds
of all state prisoners go on to reoffend within three years of release.
These high rates of recidivism are not only a waste of taxpayer
dollars,they are a serious threat to California’s public safety.5
There has been a movement to change these trends, to adopt the
smart on crime approach, and build evidence of its effectiveness for
some time. In 2005, as district attorney of San Francisco, I put this
strategy to the test when we created “Back on Track,” a comprehensive
reentry initiative for first-time, nonviolent drug offenders. The
initiative focused on personal responsibility by holding offenders
accountable for their behavior. In exchange, participants engaged in
intensive reentry, life skills training, and education and employment
opportunities to reduce the alarmingly high chance that they would
resume a life of crime upon their release.6
Back on Track worked. The re-offense rate for participants was
10 percent, compared to 54 percent for non-participants who had
committed the same types of crime. Taxpayer savings were significant.
The program cost less than $5,000 per person, compared to the
$43,000 it cost to house an offender in jail for one year. Back on
Track yielded a substantial return on investment for the city and for
California. Not only did we save taxpayer dollars for each successful
participant who did not return to jail, the effort also grew the local
labor force, expanded the tax base, and had a number of collateral
benefits (e.g., higher child support payments). We were honored that
the U.S. Department of Justice designated Back on Track as a model
for law enforcement.7
Building on this success, I created the Division of Recidivism
Reduction and Reentry (“DR3”) of the California Department
of Justice in November 2013. DR3 aims to reduce recidivism by



partnering with counties and district attorneys. DR3 identifies
effective evidence-based best practices, measures their success in
reducing recidivism and facilitating successful reentry, and identifies
public and private funding sources to support those initiatives.8
In February 2015, we launched “Back on Track-LA.”9 This
holistic reentry initiative targets nonviolent offenders in the Los
Angeles County jail system to prepare them to reenter society as
contributing and law-abiding members. Using evidence-based
practices, the initiative combines in-custody education with the
critical services for a seamless transition to out-of-custody life. The
in-custody program provides cognitive behavioral therapy, academic
and career-technical education, life skills, and reentry training. It
also provides child support services, parenting and family services,
identification cards, health services, and tattoo removal. Through
partner schools, “Back on Track-LA” offers remedial and college
courses, as well as certification courses in welding, construction, and
other careers that match California’s workforce needs.
After release from jail, the out-of-custody program provides
employment, housing, and continuing education services. An
Employment Advisory Board assists participants with job placement
and the LA County Probation Department provides transitional
housing for participants for up to 120 days and coaches who
continue to monitor and assist participants for one year after release.
Participants can continue toward completing high school studies,
and transfer their college credits earned while in-custody to any
California community college.
A foundational component of Back on Track-LA is personal
accountability. Participants create individual responsibility plans
and are guided by coaches who will hold them accountable to
benchmarks. Participants make the transition from lives of crime to
become productive members of society, benefitting not only their
communities and families, but also California taxpayers.
Back on Track is proof that we can be smarter in reducing crime
than simply perpetuating the pricey revolving door to prison. At
the federal, state, and local levels, we need to explore how to best



scale and replicate proven approaches. We should continue building
partnerships across agencies, such as sheriff’s departments, probation
departments, community colleges, and other public and private
sector entities to pool their expertise and resources toward the goals
of stopping recidivism and preventing crime.
Being smart on crime also means using the best and most
innovative tools available to increase the effectiveness of law
enforcement and criminal justice. Using state-of-the-art technology,
California tracks program outcomes such as recidivism, educational
attainment, employment, and child support payments. For example,
we have collected data points on each of Back on Track-LA’s program
elements. Through data collection, we are setting a new standard for
what “success” means in recidivism-reduction programs.
Recidivism reduction is a long-term commitment, and our
programs must equally reflect that commitment. And we must
measure progress toward those goals. To facilitate these reforms, last
October I proposed a single statewide definition of recidivism, which
represents a data-driven approach to evaluate recidivism rates and
measure the effectiveness of criminal justice policies and programs.10
California and many other states lack a uniform way to measure
the rate of individuals who recidivate. One shared definition of
recidivism is critical if we are to be smart on crime.
Our country has an opportunity to adopt a modern, costeffective crime-fighting agenda that delivers the safety we deserve.
States can deliver accountability and achieve cost-effectiveness by
implementing reentry programs, such as California’s Back on Track,
to ensure that offenders successfully transition from in-custody to
out-of-custody life and stop committing crimes. Providing these
services reduces recidivism, saves money, and prevents crime. It
helps redirect nonviolent offenders from a life of repeated crime and
prison time to get their lives back on track.
In recent years, public opinion on criminal justice policy has
changed. The message has been clear: We cannot continue to do
business as usual, then act surprised when individuals reoffend. We
are at a seminal moment for criminal justice policy — not just in



California, but across the nation. We can no longer afford to ignore
our incarceration problem — the financial and societal costs for
victims, communities, and taxpayers are too high. The smart on
crime approach can shut the revolving door between prisons and our
communities for good.11

Hon. Mike Huckabee
Former Governor of Arkansas

“We need to re-examine our incarceration objectives.
The ultimate purpose of the system — beyond
establishing guilt, assigning responsibility, delivering
justice, and extending punishment — is to correct the
behavior that led to the crime. Major first
steps include treating drug addicts, eliminating waste,
and addressing the character of our citizens
and children.”


believe in law-and-order. I also believe in using facts, rather than fear,
when creating policy. And, I believe in fiscal responsibility. Right
now, our criminal justice system is failing us in all three camps.
The government’s most fundamental responsibility is to protect the
public with basic law and order. As a governor, I know firsthand the
importance of delivering justice, especially for the worst crimes in our
society. I authorized 16 executions, more than any other governor in
my state’s history. It was my duty and I took it seriously because each
was the only decision I had made that was absolutely irrevocable. I
have no tolerance for those who victimize and terrorize the innocent
through crime. Ending someone’s life or separating someone from their
family for 30 years is not a trivial decision — it requires caution, care,
and prayerful wisdom.
However, my up-close-and-personal view has also taught me
that all judicial sentencing requires close deliberation. Many of the



cases that come before courtrooms are full of human emotion. These
decisions impact real lives. Leaders in our country have a responsibility
to evaluate sentencing policies to ensure justice. We must also take into
account the broader impact these policies have on society. When it
comes to criminals who will eventually be released and return to society,
Americans simply cannot afford a system that is based solely on revenge.
We need to re-examine our incarceration objectives. We must make
these decisions with an eye toward rationality. The ultimate purpose
of the system — beyond establishing guilt, assigning responsibility,
delivering justice, and extending punishment — is to correct the
behavior that led to the crime. Major first steps include treating drug
addicts, eliminating waste, and addressing the character of our citizens
and children.
An Arkansas prison official once told me that 88 percent of
incarcerated inmates at his prison were there because of a drug or
alcohol problem or because they committed a crime in order to
get drunk or high. As he astutely observed, we do not have a crime
problem, we have a drug and alcohol problem. While those who deal
drugs and entice others into enslaving addictions deserve serious time
and tough sentences, we lock up many nonviolent drug users, some
of whom spend longer periods in prison than they would if they had
committed a violent crime. Though many of the efforts to address this
problem have brought some measure of sanity to the process — drug
treatment as opposed to merely warehousing drug users — we need to
do things differently.
We have far too many bureaucratic protocols and sentencing
mandates that create career criminals. This doesn’t make our streets safer
— it just makes our government more expensive. We need commonsense reforms, especially with sentencing. As my corrections director
often said, “We need to quit locking up all the people that we are mad
at and lock up the people that truly deserve it.” Sexual predators, violent
offenders, and dangerous criminals need to be locked up, but we must
provide treatment options and real rehabilitation to those who struggle
with drug abuse and addiction. Throwing them in prison with a long
sentence is a costly, short-sighted, irresponsible response.



Drug courts provide one example of tried and true reform. With
drug courts, a nonviolent drug offender can be directed to enroll in
drug treatment program with comprehensive and intensive supervision,
particularly as they reenter the community. Naturally, any violation
of good behavior during this period results in prison. However, if the
individual successfully completes drug rehabilitation and demonstrates
responsible behavior over a period of time, the court would expunge
that person’s record.
When we instituted these reforms in Arkansas, we witnessed
a significant drop in our recidivism rate. As an added benefit, drug
court rehabilitation models, such as community based corrections, cost
the state significantly less than incarceration — less than $5 a day as
compared to about $45 a day. Over time, these reforms saved taxpayers
millions, while also allowing and empowering offenders with the
opportunity to regain, restore, and rebuild their lives.
We must reduce the waste in our criminal justice system. The
United States will spend more than $80 billion on our prison system
this year — with an average of $30,000 on each inmate. We will spend
almost $58 billion adjudicating crime in our courts and $5.7 billion
on our juvenile system.1 In most states, it’s less expensive to pay for a
person to be in college for a year and pay full tuition, room and board,
books, and spending money than for putting a person in prison for a
year. I’m pretty sure we all agree that education is a better investment
for taxpayers than incarceration.
But it is not just money being wasted. We are wasting human lives.
I am deeply concerned about the rate at which young African-American
males enter the prison system. As many African-American males have
served in prison as have all whites both male and female, despite the
significant population disparities between whites and blacks.2 While
disproportionate crime rates are a factor, it is inescapable that we have a
system where white kids from upper middle class families get probation
and counseling, while young black kids get 108 years behind bars. Our
system must have true justice and equality for all.
As a person of faith, I recognize the fragility of the human spirit.
And I recognize that our justice system needs both punishment and



redemption. From my time both as a governor and the job as pastor I
held in my mid-20s to early 30s, I know about life-and-death, hope and
pain, and crime and punishment. However, redemption is critical from
both a moral and a pragmatic standpoint. After all, most of those we
incarcerate for criminal and drug-related behavior will eventually rejoin
society at some point in the future.
We simply cannot afford a criminal justice system where taxpayers
spend billions of dollars sending small-time offenders to correctional
facilities and expose them to teachers, techniques, and tools to be
lifetime criminals. As governor, I signed common-sense laws that cut
red tape, allowing rehabilitated persons who had committed minor
crimes to become productive citizens in our society.
More importantly, we can build prisons as far as the eye can see, but
without strong families to teach kids right from wrong, there will never
be enough bars to hold all the criminals. Families are the building blocks
of our society. Each home is a miniature civilization with authority
figures, rules, and roles, and it is in that civilization that we learn how
to act in the world at-large. When that civilization crumbles, then the
larger society that rests on it has nothing to stand on. There will never
be enough money to combat the social pathologies that result when
parents do not love each other and do not raise their children properly.
The ultimate reason people are in prison is their lack of personal
character, as evidenced by the self-centered who will break the law
and violate the moral code of society. To those who would argue that
addressing the issue of character is not a function of government, I
would respond that the lack of character has become a very expensive
part of government. That expense is evidenced by the budget of our
court systems, the department of corrections, and the law enforcement
agencies, as well as the cost of stolen property and the increased insurance
premiums to pay for replacing it.
It grieves me when I think of how much I would rather have those
folks in a university than a penitentiary. Maybe if we had been more
diligent in their growing up with education programs that appeal to
them, community mentoring programs to give them examples of
proper adult behavior, and the simple encouragement to believe that



their lives could be better at the finish line than they were at the start,
things could be different. Most of all, if we had focused on policies to
help create stable families and strong fathers, we would have much less
of a prison problem.
The kind of society we live in is determined by the daily decisions
we make when doing the right thing is not easy or expedient. Those
choices are based on a core set of principles we call character. And
whether you are driving through an intersection, standing before
a classroom, or running for office, character is the issue. Of course,
it is never too late to change. And our criminal justice laws should
recognize that.

David Keene
Former President of the National Rifle Association
and former Chairman of the American Conservative Union

“How can we move forward? One major way:
rebuild the nation’s mental health system — this
would do far more to decrease incarceration than
decriminalizing marijuana. We must also reduce
the number of crimes on the books, reduce the
number of crimes punishable by prison, and undertake
other reforms.”


ven a cursory look at the American criminal justice system will
show it does not work. America locks up too many people for too
long. We do little to prepare them for their release. Then we lock up
more than half of them again and again.
We spend an exorbitant amount of money on a system that does
not work and then argue that we lack the funds to make it cheaper
and more efficient. And, too few of us have any idea of how it might
be fixed.
Part of the problem stems from the relative invisibility of lawbreakers.
When people are convicted and sent away, they are out of the public eye,
so we forget about them until they are released. Then we brand them,
refuse to hire them, and are shocked when they are arrested and end up
in prison again.
The obstacles to reform have seemed insurmountable until quite
recently. For decades, liberals and conservatives talked past each other.
Liberals seemed only interested in the criminals and how they are treated;
conservatives were viewed as interested only in punishing wrongdoers.



A declining violent crime rate, soaring incarceration costs, and
empirical evidence have finally allowed policymakers to move beyond
rhetoric. Liberals and conservatives are at long last beginning to work
together in support of measures to improve a system that is not only
failing in its mission, but is actually making the problem it is intended
to fix worse. A wave of legislative reforms adopted in Texas, Georgia,
Mississippi, and other states have resulted from bipartisan cooperation
that would have been impossible even a decade ago.
The criminal justice system — the web of laws regulating conduct
in a free society and the enforcement of those laws — exists to maximize
the ability of citizens to live without fear. Punishing lawbreakers in the
most humane and cost effective ways possible is a means to that end.
Of course, we need to imprison some wrongdoers lest they harm
their fellow citizens, but a well-run society locks away only those who
need to be kept off the streets — lest the innocent get caught up in
the system. Once caught, those arrested, convicted, and incarcerated
should be treated humanely and prepared to return to communities as
responsible and productive citizens.
These goals are simply not being met. While we condemn the
public stocks erected in the village square, we tolerate more than 4,500
federal offenses on the books along with thousands of state statutes that
allow us to arrest, prosecute, and lock up anyone who runs afoul of
them. Something is fundamentally wrong with a criminal justice system
that imprisons millions of men, women, and even children for more
crimes than any of us can imagine or count, subjects them to terrible
conditions in overcrowded prisons that tend to harden them for far
longer than necessary, and creates barriers that minimize their chances
of succeeding once outside. The system has mushroomed over the years
and no one remembers why or how this happened.
In some states, taxpayers spend more on prisons than on school
systems. Prison guards see prisoners not as people, but as a source
of money and jobs. Prosecutors prosper by “throwing the book”
at lawbreakers who might benefit from alternative treatment. And
legislators show just how tough they are by criminalizing more activities
that had previously been merely frowned upon.



The Department of Justice report on the atmosphere in Ferguson,
Mo., made it clear that police were aggressively citing residents for
technical violations of local laws and regulations not to make Ferguson
a safe place to live and work, but to add to city coffers.1 Similarly, the
New York City Police Department officers responsible for the death of
Eric Garner over cigarettes were not attempting to maintain safety and
order in that instance. Rather, they were using deadly force to enforce
laws designed to raise money for the city. In Chicago, the 300 traffic
cameras installed “to make the city’s streets safer” have done nothing of
the sort, but are extracting $70 million annually from Chicago drivers.2
The purpose of criminal laws is to keep people safe, not to make money
off them.
We like to believe we are a nation whose citizens live under “the
rule of law.” Yet if honest people are required to obey thousands of laws
that make no sense to them, the police who arrest them, or the men
and women who prosecute and punish them, then we all live under the
tyranny of arbitrary prosecution.
James Madison drew a clear distinction in Federalist No. 62:
It will be of little avail to the people, that the laws are
made by men of their own choice, if the laws be so
voluminous that they cannot be read, or so incoherent
that they cannot be understood; if they be repealed or
revised before they are promulgated, or undergo such
incessant changes that no man, who knows what the
law is today can guess what it will be tomorrow. Law
is defined to be a rule of action; but how can that be a
rule, which is little known and less fixed.3
Madison would likely be appalled at the state of our laws today.
Too many criminal justice system actors forget that their primary
mission is not to put people in jail, but to see justice done. My Right
on Crime colleague and former Prison Fellowship director, Pat Nolan,
has often stated that we need to stop locking people up who simply



do not need to be locked up. That requires a full review of our laws and
alternatives to incarceration.
Americans tend to overreact to problems in our effort to solve them.
Ideology and good intentions, rather than a true understanding of what
works and what does not, has guided and poisoned political discussions
of criminal justice. In the 1970s, when crime and violence were
escalating, some liberal judges blamed crime on societal shortcomings
rather than the criminals themselves. They seemed willing to release even
the violent and obviously guilty back onto the streets. Politicians reacted
by demanding harsher and longer sentences, and enacting mandatory
minimum and “three strikes you’re out” laws, stripping all judges of the
authority to tailor the punishment to fit the crime. During this same
period abuses within the nation’s mental health care system resulted
in the closing of treatment facilities and the virtual dismantling of the
system, leaving millions of at-risk men and women to their own devices.
How can we move forward? One major way: rebuild the nation’s
mental health system — this would do far more to decrease incarceration
than decriminalizing marijuana. We must also reduce the number of
crimes on the books, reduce the number of crimes punishable by prison,
and undertake other reforms.
Six concrete suggestions:
Rebuild and strengthen the nation’s mental health care system
by ensuring the mentally ill are treated in hospitals or public
treatment centers. Today in every single state, more people
diagnosed as mentally ill are in jails and prisons than in
hospitals or treatment centers. Penal institutions do not treat
mental illness and in fact exacerbate illnesses. One in five of
those incarcerated suffer from severe mental problems that
should best be treated elsewhere. The failure of the mental
health care system to help the mentally ill accounts for as
many as 1,000 homicides and 3,000 suicides each year. Some
states have made progress. In New York, “Kendra’s Law”
requires people with severe mental problems to take prescribed



medications.4 It has had a demonstrated empirical impact on
crime, violence, and recidivism.
Reduce the number of criminal offenses. The number of criminal
acts in the United States is mind-boggling. But it is only a fraction
of the actual offenses that can lead to criminal sanctions. There
are thousands of state and federal regulations that carry criminal
penalties without being explicitly labeled as crimes. Those should
be identified and modified.5
Reduce the number of crimes punishable by prison. People who
do not pose a realistic threat to society, especially nonviolent
lawbreakers, should be punished with alternative sanctions,
such as mental and health treatment or probation. Kentucky, for
example, has a program to send heroin addicts to treatment, not
lock them up.6
Revise mandatory minimum and three strikes laws that keep people
in prison far longer than necessary. Very long terms are expensive,
do not serve a public safety purpose, and make it difficult to
readjust to freedom.
Reform how and when people on probation and parole get sent back
to prison. States can follow the model of Hawaii’s Opportunity
Probation with Enforcement (“HOPE”) program. HOPE has
had a remarkable impact on recidivism and incarceration. Judge
Steve Alm, a former U.S. Attorney, found that a plurality of the
court’s work involved sending people back to prison for parole
and probation violations.7 By instituting a system of fair, swift,
and certain punishment for such violations, Judge Alm changed
the behavior of those previously viewed as incorrigible. Other
states are replicating this success, and more states can follow suit.
Reduce the stigma attached to those who have served their time.
Some repeat offenders deserve their return visit, but many

are almost forced into a life outside the law by circumstances
resulting from their first arrest, conviction and sentence. There
was a time when one “paid” his or her “debt to society” and
could move on, but technology, the type of jobs now available,
and the institutional safeguards put in place by many businesses
and their insurers has made that more difficult.
Meaningful reform is possible and happening in some places.
Prison splits families, produces negative role models, and reduces family
incomes. Incarceration can cost more than $100,000 per year, more
than an Ivy League education.8 That our country allows this system to
then get away with saying there is no money for training or treatment is
laughable and deeply saddening. Once a prisoner is released, successfully
reentering society requires a fresh perspective and whatever retooling
and retraining we can assess and provide.
Jails and prisons are here to stay and truly dangerous lawbreakers
deserve long sentences. But this should not obscure the fact that much
can and should be done to improve the system. If there was ever a
system that required a comprehensive overhaul, it is our criminal
justice system.9


Mark A.R. Kleiman
Professor of Public Policy
University of California, Los Angeles*

“We need to swap prison for effective supervision.
Prisoners should be released after serving some
portion of their time behind bars. They should
then spend the rest of their sentence outside bars,
gradually earning their way toward freedom: a process
of ‘graduated reentry.’ It can help keep down crime,
our prison population, fiscal costs, and recidivism.”


merica’s prison state is a disaster. One percent of the adult
population is behind bars. We have five times as many prisoners
as any other advanced democracy.1 And corrections is squeezing higher
education out of state budgets.
This disaster is completely unnecessary. Our prison system is built
on the false notion that the only way to punish someone and control his
behavior is by locking him up.
While it lasts, prison is horrible for the prisoner and expensive
for the state. It often does not get better when it ends: Of the people
released from prison today, about 60 percent will be back behind bars
within three years. The transition from prison to the “free world” can be
very tough, both for the offender and for the neighborhood he returns

*This piece is co-authored with Angela Hawken and Ross Halperin. A longer version of this essay

was published on March 18, 2015 on, and can be found there. It is drawn upon here
with the permission of the authors, Vox Media, Inc., and




to. In the month after getting out, a person released from prison has
about a dozen times the mortality rate of comparable people in the same
neighborhood, with the leading causes of death among former inmates
being drug overdose, heart attacks, murder, and suicide.2
This should not come as a surprise. Consider someone whose
conduct earned him a prison cell. Typically that person came into prison
with poor impulse control, weak if any attachment to legal employment,
and few marketable skills. More often than not, he is returning to a high
crime neighborhood. Many of his friends on the outside are themselves
criminals. If he is lucky and has been diligent, he has picked up a GED
while in prison. But he has not learned anything about how to manage
himself in freedom, because he has not had any recent freedom. And he
has not learned to provide for himself, because he has been fed, clothed,
and housed at public expense.
Now let him out with $40 in his pocket, sketchy if any identification
documents, and not enrolled for basic income support, housing, or
health insurance. Even if he has family or friends who can tide him over
the immediate transition, his chances of finding legitimate work in a
hurry are slim. If he is not working, he has much free time to get into
trouble, and no legal way of supporting himself.
This formula for failure leaves us stuck with mass incarceration.
Luckily, there is a better way. We need to swap prison for effective
supervision. Prisoners should be released after serving some portion
of their time behind bars. They should then spend the rest of their
sentence outside bars, gradually earning their way toward freedom: a
process of “graduated reentry.” It can help keep down crime, our prison
population, fiscal costs, and recidivism.
To get back to our historical level of incarceration, we would need to
reduce the prisoner headcount by 80 percent. How can we do that while
also protecting public safety? By turning ex-criminals into productive,
free citizens.
For the transition from prison to life outside to be successful, it
needs to be more gradual. If someone needed to be locked up yesterday,
he should not be completely at liberty today. And he should not be
asked to go from utter dependency to total self-sufficiency in one flying



leap. He needs both more control and more support. Neither alone is
likely to do the job.
Of course both control and support cost money. But prison costs
even more. The trick is to start the reentry process before the prisoner’s
release date, so the money you spend in the community is balanced by
the money you’re not spending on a cell.
Start with housing. Spend some of the money that would otherwise
have financed a prison cell to rent a small, sparsely-furnished efficiency
apartment. In some ways, that apartment is still a cell, and the offender
is still a prisoner. He cannot leave it or have visitors except as specifically
permitted. The unit has cameras inside and is subject to search. But he
does not need guards, and does not have to worry about prison gangs
or assault.
Drug testing and sanctions can avoid relapse to problem drug use.
GPS monitoring can show where he is all the time, including whether he
is at work or at home when he is supposed to be there. This makes curfews
enforceable and keeps him away from personal “no-go” zones (i.e. the street
corner where he used to deal). GPS would also place him at the scene of any
new crime that he might commit, thus drastically reducing his chances of
getting away with it and therefore his willingness to take the gamble in the
first place. The apartment functions as a prison without bars.
In some ways, it is a fairly grim existence, especially at the beginning:
The offender starts off on a strict curfew, allowed out only for work, for
job-hunting, for necessary personal business (food shopping, medical
care, service appointments) and to meet the correctional officer in charge
of his supervision. And he is required to work full-time at a public-service
job. On top of that he has to spend time looking for an ordinary job.
He never touches money except for small change; he makes purchases as
needed with an EBT or debit card, and only for approved items. The “nocash” rule makes it harder to buy drugs or a gun and reduces the benefits
of criminal activity.
Minor violations — staying out beyond curfew, using alcohol or other
drugs, missing or misbehaving at work, missing appointments — can be
sanctioned by temporary tightening of restrictions, or even a couple of days
back behind bars. Major violations — serious new offenses, attempts to



avoid supervision — lead to immediate termination from the program and
return to prison. Not, on the whole, an easy life. But it is much simpler than
the challenge of a sudden transition from prison to the street.
If you were to ask a prisoner who has now served two years of a five-year
sentence (for drug dealing, say, or burglary), “Would you like to get out of
prison right now and into the situation I just described?” the odds of his
saying “Yes” would be excellent. (Entry into the program could actually be
offered as a reward for good behavior in prison.)
The offender’s freedom increases over time, as long as he does what
he is supposed to do. While violations of the rules are sanctioned,
compliance and achievement are rewarded with increased freedom.
Every sustained period of compliance with the rules leads to some
relaxation of them. Successful completion of the first 48 hours out of
prison might earn a few hours’ freedom to leave the unit other than for
work or other necessary business. Further relaxation might change the
rule from “out only as allowed” to a curfew (“not out after 6 p.m.”).
All of those transitions would be by formula, so that the subject knows
the exact timing of his next milestone and exactly how much freedom
he will obtain if he hits it. That tight coupling between behavior and
results is the best way to gradually build the habits that will allow the
ex-offender to stay out of trouble.
Eventually the transition from a prisoner in a cell to a person with a
job and an apartment is complete. At that point, the ex-offender could
be released from his legal role as a “prisoner” and put on parole or other
post-release supervision, or even given unconditional liberty.
The ex-prisoner’s biggest goal would be finding and holding a job.
From the program’s viewpoint, an employed person should be virtually
cost-neutral other than monitoring costs; in most housing markets,
even a minimum-wage job can pay the rent on an efficiency apartment
plus groceries. That means that every re-entrant who finds a job would
allow for the release of another prisoner. Thus, such a program could
grow to a scale big enough to noticeably change the incarceration rate.
Once a former prisoner has become self-supporting, and developed
the habits necessary to hold a job, his risk of recidivism plunges. For a
re-entrant who gets and holds a real job, life would become much less



prison-like. The price of sustained liberty is sustained employment.
Given the lamentable record of offender employment programs,
finding and holding a job might seem out of reach for most offenders.
But the success of some job-oriented, incentive-based programs — federal
probation in St. Louis, the Montgomery County Pre-Release Center in
Rockville, Md., and the Alternatives to Incarceration program in Georgia
— seems to indicate that if supervision can make offenders genuinely
interested, many of them are capable of getting and holding jobs.3
There is good reason to think that the success rate would be higher
for graduated release than for the current approach, and that the
costs of the program could be more than recouped from the savings
in reduced incarceration. But budget savings are not the main goal:
The greatest benefits would flow to the offenders, to their families, to
their neighborhoods, and to those who otherwise would have been the
victims of their future crimes.
Getting back to a civilized level of incarceration while continuing
to push crime rates down is out of reach using current policy tools.
We need big new ideas that can be tested, and scaled up if they work.
Graduated reentry is one such idea. We should test it with a few dozen
prisoners at one or two sites, work out the kinks, evaluate it, and — if
it works — expand it and try it elsewhere. If it fails, go back to the
drawing board. But sticking with the existing system, and accepting its
disastrous results, is not a reasonable choice.


Cathy L. Lanier
Chief of Police
District of Columbia Metropolitan Police Department

“Merely responding to crimes and increasing the
number of arrests are indications of failures of
policing. Rather, the primary task in policing must be to
prevent crime, not merely respond to it. There are four
fundamental tenets of our ‘crime reduction’ policing
philosophy: strengthening trust with the community,
cultivating relationships to encourage information
from community members to the police, increasing the
flow of information from the public, and increasing
the flow of information within the department.”


t was not long ago — as recently as the early 1990s when I first
began my career as a police officer — that the number of homicides
in the District of Columbia regularly topped 400 a year.1 Violence
and disorder were taking a severe toll on the city. The street gangs and
cold brutality of the associated drug trade seemed to consume entire
neighborhoods, and the violence soon grew to epidemic proportions.
The city had quickly gained a notorious reputation as the “Murder
Capital of the World” and the “City of Unsolved Homicides.” The
unacceptable levels of crime not only resulted in needless suffering
for numerous families, but opened a large divide between the police
and the community, who felt the police were doing little to curb the
violence. The city was reeling, with the perceived lack of public safety
driving both residents and businesses out of the city, which only
further hampered the city’s ability to address the public’s concerns.



Times have certainly changed. In stark contrast to the violent
days of the 1990s, the last several years have seen historic reductions
in crime. From 2008 to 2012, we reduced homicides by more than
half — to a level the city had not seen in nearly 50 years. We ended
2012 with 88 homicides, and the annual number has remained near
100, an almost unimaginable notion when compared to the 482 lives
lost in 1991.2
This progress did not occur overnight. It took several years and
a concerted effort to implement an effective policing strategy for
combating violent crime and rebuilding the relationship between the
police and members of the community. Even now, we do not consider
the success of the last several years as the end of our important work.
There are four fundamental tenets of our “crime reduction”
policing philosophy: strengthening trust with the community,
cultivating relationships to encourage information from community
members to the police, increasing the flow of information from the
public, and increasing the flow of information within the department.
Other cities may be able to build upon this policing philosophy to
both reduce crime and strengthen ties with communities. With
minimum cost and the opportunity for flexibility, our approach has
resulted in historic low levels of violent crime and fewer homicides
in a city with a notoriously violent past.
Many cities drove down violent crime through a combination of
“hot spot” and “zero tolerance” policing. Police identify specific areas
through the density mapping of violent crimes and then flood those
areas with extra officers who are instructed to use a zero tolerance
approach to any criminal offense. We tried this in Washington.
While the theory is valid, it unfortunately did little to curb the
violence in the District. In fact, these approaches had almost the
opposite effect. Because officers had to manually process each arrest
and respond to court to present every arrest, many of the best officers
were being pulled off the street for minor arrests, thereby leaving the
neighborhoods in the hands of the more violent predators.
The other problem with employing a zero tolerance approach:
The tactics drove a wedge between the police and the members of the



communities. The residents, who were often the victims of violent
crimes, felt betrayed by their own police department. Not only did
the police label their neighborhoods as essentially “bad,” but officers
would charge in and arrest neighbors for minor offenses, while the
truly violent predators continued to victimize the community. The
community perceived this as officers being too afraid to go after
the real criminals or simply not caring about the community. Even
worse, some community members began to believe that the police
may even be conspiring with violent gang members who were known
to be involved in violent attacks but were never held accountable.
These attitudes only served to further distance the community from
the police, thus making it nearly impossible for police to obtain
critical information when crimes did occur.
To fix this real fear of crime and distrust of the police, the
philosophy inside the department had to shift. Merely responding to
crimes and increasing the number of arrests are indications of failures
of policing. Rather, the primary task in policing must be to prevent
crime, not merely respond to it. Unfortunately, somewhere along the
way, officers and administrators began to believe they could neither
stop crime nor prevent homicides. Neither belief is true. Everyone
from the lowest ranking officer to the highest level executive has an
important role in preventing crime. This transition in thinking is the
first step to a more modern and effective system of policing. This is
the first principle: You must strengthen ties with the community in
order to achieve the ultimate goal of preventing crime.
Next, we sought to define “community policing” in Washington
and educate the officers responsible for carrying out the mission.
This proved challenging as zero tolerance policing had actually been
used as a community policing technique in other cities.
We developed principle two: what we call “developing sources.”
This involves cultivating members of the community to be sources
of information on future and past crimes. Historically, source
development was primarily the function of specialized units such
as narcotics, and sources were often developed through arrest or the
threat of arrest. This stands in direct conflict with and threatened



to undo what our department had accomplished through principle
one. To initiate a change in those methods, we deployed uniformed
patrol officers on foot in the most violent areas, where they focused
on developing sources within the community. With more than 300
officers on foot, mountain bikes, and Segways, this shift in policing
was instantly recognized by residents. Their skepticism began to truly
subside as residents got to know the names of the officers who routinely
stopped to speak to them as they sat on their porches.
In the past, officers would arrest people for minor crimes, such as
an open container of alcohol, alienating the very community we relied
on for information. Officers instead developed new approaches to
those situations, and began to build trust among all segments of the
community. Since officers had established a positive relationship with
the residents, they would often get tremendous amounts of information
when a crime would occur. Within a short period of time, the uniformed
patrol officers became the primary sources of information about serious
crimes, gang members, and violent repeat offenders.
The shift in the public’s trust of the police officers led to the
development of the third principle: finding more ways for the public
to get information to the police. While sophisticated technology in law
enforcement — such as mobile computers, license plate readers, and
gunshot detection — are all important tools, there are often simple
and low cost tools that can have the biggest impact in a department’s
ability to receive, share, and use information to reduce violent crime.
We began with automating the report-taking process and eliminating
mandatory court appearances. This allowed officers to spend more
time in the community rather than dealing with burdensome
administrative matters. Each patrol district established a community
listserv, which established a forum for neighborhood residents, with
more than 16,000 members and growing, to communicate and engage
with police around the clock. Detectives started using Facebook,
Twitter, and other social media to investigate and communicate issues
regarding crime. We created an anonymous text tip line to expand
opportunities to develop sources. This approach proved effective, and
we gained a flood of new information.



This led us to the fourth principle: The sharing of information
within the department needed a not-so-subtle, persuasive shove
forward. Vital information that should have been shared lingered in
individual units. Patrol officers had information on violent offenders
that had to be shared with detectives, the gang unit had information
on newly validated gang members that needed to be shared with
patrol officers, and homicide detectives often had information about
potential retaliation that had to be shared with patrol officers — but
none of this necessary information sharing was occurring.
In order to close the loop, we established a system of accountability
within the department. We ensured that officers were charged with
this responsibility and bore consequences if they failed to do so.
Supervisors were tasked with working with subordinates to develop
processes to rapidly disseminate the most critical information at all
levels. The gang unit began analyzing information from numerous
reports and sources to produce a daily gang conflict report that was
shared among all units. Within minutes of gunfire in an area with
an active gang conflict, uniformed patrol and gang unit members
started to deploy to rival gang territory to contact gang members.
Homicide detectives routinely alerted district commanders to any
potential retaliation associated with active homicide investigations.
This resulted in dramatic reductions in retaliatory violence in the
most violent neighborhoods.
The department’s philosophy to reduce violent crime has
paid off tremendously. Our officers have garnered trust with the
community, which ultimately led to more sources, an increased flow
of information from the public, and more useful intelligence within
the department about criminal activity. We were able to further our
fundamental mission of reducing crime and building safe, thriving

Marc Levin
Founder and Policy Director of Right on Crime and
Director of the Center for Effective Justice at
the Texas Public Policy Foundation

“The federal government and states across the
country should take a page from the recent success
of states like Texas, Georgia, and South Carolina.
Specifically, federal policymakers should reduce
mandatory minimums for nonviolent crimes and offer
nondisclosure to ex-offenders. Congress should
also reduce the number of federal criminal laws,
ensure clear MENS REA requirements, codify the rule
of lenity, and pull back and allow states to enforce
our criminal laws.”


eeping Americans safe, whether accomplished through our
military or justice systems, is one of the few functions government
should perform. However, that function should not be exercised
without limits. We must move from a system that grows when it fails
to one that rewards results.
When crime began increasing in the 1970s, Americans, and
particularly conservatives, were correct to react against certain attitudes
and policies that had arisen in the previous decade. The “if it feels
good, do it” mentality and tendency to emphasize purported societal
causes of crime — while de-emphasizing fundamental individual
responsibility — was one culprit for a soaring crime rate. In response,
we saw a nearly six-fold increase in incarceration, some of which was
necessary to ensure violent and dangerous offenders were kept off the
streets.1 Public safety did increase. But we went too far, sweeping too



many nonviolent, low-risk offenders into prison for long terms.
As it became clear that the incarceration rate was unnecessary
and unsustainable, some of those same conservatives as well as a new
generation of fiscal and social conservatives began to look for ways to
keep this increased safety without needlessly and expensively locking
up people who posed no threat to it. These leaders have helped pioneer
today’s national emerging call to reduce overincarceration.
Few would have expected some of the most significant moves to
right-size and modernize America’s bloated criminal justice system
would have begun in Texas, a state not known for going easy on those
who break the law. But that is exactly what happened.
In 2005, the Texas Public Policy Foundation launched a program to
reform the state’s criminal justice system. Along with other advocates,
state legislators, and our governor, we worked to achieve a historic shift
in criminal justice policy away from building more prisons and toward
strengthening alternatives for holding nonviolent offenders accountable
in the community. Since making this shift in 2007, Texas has dropped
its incarceration rate by 12 percent. And our safety has actually increased.
Our crime rate dropped by 25 percent, reaching its lowest level since
1968. Meanwhile, taxpayers saved $2 billion that would have gone
toward new prisons.2
Building on our success in Texas, we launched Right on Crime
in 2010. Our Statement of Principles, signed by conservative leaders
and leading criminal justice experts — including Jeb Bush, Newt
Gingrich, Ed Meese, Rick Perry, Ken Cuccinelli, Bill Bennett, Grover
Norquist, J.C. Watts, John DiLulio, and George Kelling — explains
how conservative principles such as personal responsibility, limited
government, and accountability should apply to criminal justice policy.
Right on Crime seeks to: maximize the public safety return on the
dollars spent on criminal justice; give victims a greater role in the system
through restorative justice approaches and improving the collection of
restitution; and combat overcriminalization by limiting the growth of
non-traditional criminal laws.
Since then, Right on Crime has worked with conservative governors
and legislators across the country to advance tough and smart criminal



justice reforms. In most places, such as Georgia, Ohio, Pennsylvania,
and South Carolina, these reforms have passed unanimously or with
just a few votes against them. Conservatives were among the most vocal
champions of these changes. The reforms in these states have been
similar: strengthening and expanding problem-solving courts; reducing
penalties for low-level drug possession; reinvesting prison savings into
proven community corrections and law enforcement strategies; imposing
sanctions for violations of parole and probation terms; increasing ability
to earn time toward release from prison; and instituting rigorous,
results-oriented performance measures to hold the system accountable
for lowering recidivism.
These reforms have achieved wide success. In 2010, South Carolina
passed legislation that created graduated sanctions for technical violations
of parole and probation, reduced penalties for low-level drug possession,
increased supervision for inmates upon release from prison, increased
earned credits for probationers, used risk assessment to guide supervision
levels, and reallocated 35 percent of prison savings to supervision. Since
then, the state has closed two prisons and experienced a 9 percent drop
in its crime rate. Moreover, the reductions in supervision revocations in
the first two years alone saved the state $7 million.3
While state incarceration rates have been declining slightly in the
last few years, largely due to these reforms, the federal prison system
continues to swell. Since 1980, the number of federal prisoners has
ballooned by over 700 percent.4 Most of this increase has been driven
by the influx of low-level drug offenders who in previous decades would
have been tried and convicted in state courts. Of the 22,300 federal
drug offenders sentenced in 2013, half had little or no prior criminal
record and 84 percent had no weapon involved in the crime — and
most of the 16 percent who did merely possessed the weapon. Despite
these facts, 95 percent of all federal drug offenders went to prison in
2013, and 60 percent received mandatory minimum sentences of 5, 10,
or 20 years, or even life without parole.5
Federal judges have often lamented that they are forced to give
sentences that are unjust and far beyond what is needed to sufficiently
punish the offender and ensure public safety. One such case: a 40 year-



old man named Robert Riley who was convicted in federal court in
1993 of selling a miniscule amount of LSD. Due to automatic statutory
sentence enhancements based on his prior drug convictions, which also
involved small amounts, Riley was sentenced to life without parole. The
judge, who was nominated by President George H. W. Bush, said the
sentence he was forced into was “unfair” and wrote a letter supporting
presidential clemency, which has proven futile thus far.
In addition to drug cases, there are also many problematic federal
cases involving guns legally owned by ex-convicts. Some such defendants
have received mandatory terms of 10 to 40 years even when the prior
offense was nonviolent and decades ago their guns would have been
legally owned. In one case, a man used a 60-year-old hunting rifle to
hunt turkey in rural Tennessee and the judge was forced to impose a 15year mandatory term, which the judge himself found was “too harsh.”
These judges are correct. These sentences are unfair and too harsh.
They are also unnecessary. The federal government and states across
the country should take a page from the recent success of states like
Texas, Georgia, and South Carolina. They have proven that it is possible
to rein in mandatory minimums for nonviolent offenses without
decreasing public safety. Specifically, federal policymakers should reduce
mandatory minimums for nonviolent crimes and offer nondisclosure
to ex-offenders. Congress should also reduce the number of federal
criminal laws, ensure clear mens rea requirements, codify the rule of
lenity, and pull back and allow states to enforce our criminal laws.
Texas and Indiana are among the states that offer “nondisclosure,”
whereby after a period of time ex-offenders who have proven to be lawabiding citizens can apply to have their record made non-public.6 Some
70 million Americans now have the scarlet letter of a conviction, which
makes it far more difficult to secure employment and housing — hurting
them, their families, and the economy overall, and making it more
likely that they will reoffend.7 To further prevent people from becoming
trapped in the revolving prison door, we have worked in states such as
Texas and Louisiana to enact legislation that ensures ex-offenders can
obtain provisional occupational licenses and immunizes employers from
being sued simply for giving an ex-offender a second chance.



Finally, it is time to pare back the astronomical growth in the breadth
of federal criminal law, which is in tension with the primary constitutional
role of state and local governments in the area of criminal justice. There
are now more than 4,500 federal statutory offenses on the books, and
hundreds of thousands of regulations carrying criminal penalties. We
recommend that all necessary federal criminal laws be consolidated into
one federal criminal code with clear mens rea requirements, which will
make it simple for the average citizen to determine what is prohibited,
and that agency regulations be precluded from carrying criminal
penalties unless expressly authorized by Congress. Congress should also
codify the “rule of lenity,” meaning that courts should read ambiguous
criminal laws in favor of defendants.
When it comes to conduct that is truly properly criminalized, the
limited federal criminal justice resources available should be refocused on
areas where the federal government is uniquely situated to supplement
the role of states and localities, such as matters involving homeland
security and international drug and human trafficking. The garden
variety drug, property, or even violent offense that occurs on one street
corner can and should be addressed by prosecution at the local and state
levels. Congress and the administration should look at how to develop
mechanisms, such as guidelines and performance measures, to ensure
federal prosecutorial resources are being appropriately prioritized. We
must be careful that in our attempts to protect the safety of all people,
we do not infringe on the liberty of others. The recent successes of many
states in reducing crime, imprisonment, and costs through reforms
grounded in research and conservative principles provide a blueprint for
reform — at the federal level and for states across the country.

Hon. Janet Napolitano
Former United States Secretary of Homeland Security
and former Governor of Arizona

“Prosecutorial discretion is as fundamental a
principle and practice to criminal justice, writ
large, as it is to immigration enforcement. And as we
contemplate reforms of our nation’s criminal justice
system, we must remember to preserve those elements,
like prosecutorial discretion, that are essential to
our eternal quest for balance and fairness in the
service of justice and freedom.”


ometimes the most meaningful reforms are the ones in which a
longstanding, fundamental principle or practice is not altered, but
instead preserved. In terms of criminal justice reform, prosecutorial
discretion certainly fits into this category.
It comes into play at every level of our legal system — from the cop
on the beat deciding whether to write a parking ticket, or give chase
to the bank robber sprinting down the block, to the establishment
of enforcement priorities by state and federal regulators charged with
policing factory pollution, workforce safety rules, and the like.
What follows is the story about the exercise of prosecutorial
discretion on the largest of scales, an immigration-related initiative
developed on my watch as Secretary of the Department of Homeland
Security (DHS).1
I am referring to the Deferred Action for Childhood Arrivals, or
DACA, which ultimately affected the lives of hundreds of thousands
of young immigrants collectively known as the “Dreamers.” This was



an exercise that required careful navigation between the potentially
conflicting dictates of doing what is right, of doing what is lawful, and of
doing what is defensible, both in the court of law and, to a lesser degree,
the court of public opinion.
By 2012, there were an estimated 1.4 million Dreamers living in
the country.2 Named after the proposed “DREAM Act”3 legislation first
introduced in 2001, which would have given them legal status and a path
to citizenship, Dreamers were brought into the country as children. They
were kids who in all but the letter of the law were Americans. All lived
in fear of deportation, and all endured everyday difficulties unknown to
their American-born contemporaries.
As a former U.S. Attorney, Attorney General, and Arizona Governor,
I came to DHS fully aware that many of our immigration enforcement
policies made little sense, and with a fundamental question on my
mind: How do we prioritize and use immigration enforcement resources
responsibly without abandoning our executive branch obligation to “take
care that the laws be faithfully executed”?
The U.S. Congress appropriates resources specifically to DHS
removal and detention operations to remove fewer than 2 percent out of
the estimated 11 million undocumented individuals in the U.S.4 These
numbers imply that, on an operational level in the field, choices were being
made about who should be removed, thus raising a host of important
questions about priorities and enforcement for DHS leadership.
We would never tell immigration enforcement agents that they should
stop enforcing immigration laws. But we certainly could tell them how to
prioritize enforcement efforts given the limited resources that Congress
provided the Department.
And so early on at my time at DHS we issued a series of memos to
Immigration and Customs (ICE) agents in the field, instructing them
to focus their efforts on the “bad actors” — individuals who presented
risks to national security, or who had committed felonies, or who had
joined gangs, and so on. As for military veterans; long-time, law-abiding
residents; nursing mothers; people with certain family ties; the severely
ill; and Dreamers — policy memos issued by the ICE director made clear
that these no longer fit the priorities.



Prosecutorial discretion has a long and distinguished history in
immigration law, and so we were confident that we were on solid legal
ground when it came to setting priorities for immigration enforcement
efforts. Our attorneys had done a great job exploring the issue — sifting
through the precedents; pursuing legal questions that ranged from
Constitutional authority, to Congressional intent, to the legal definition
of the word “shall” (which is not the same as “must always”).
A key element was Heckler v. Chaney, a seminal 1985 Supreme
Court case involving the FDA’s authority to exclude or allow certain
drugs to come to market. In that case, the Supreme Court had ruled,
“an agency’s decision not to prosecute or enforce, whether through civil
or criminal process, is a decision generally committed to an agency’s
absolute discretion.”5
Another important precedent was the Court’s 1999 decision in Reno
v. American-Arab Anti-Discrimination Committee, where it explicitly
recognized the executive branch’s authority to exercise prosecutorial
discretion in the immigration context.6
With this legal footing in mind, and with progress toward any
meaningful immigration reform clearly stalled in Congress, I assembled
a small team of advisers in the spring of 2012 and asked them this:
What, through the exercise of prosecutorial discretion, can we do about
the Dreamers, short of a blanket amnesty and within the parameters of
the law?
I wanted to create a potential pathway to deferred action for all
Dreamers, not just the minority already caught up in the system and
facing removal proceedings. In immigration-speak, the term “deferred
action” generally means to suspend moving forward with certain
cases for a fixed period of time. It does not mean granting amnesty
or otherwise permanently resolving immigration status. But it does
permit someone to live free from fear of deportation, and to obtain
authorization to work.
To apply deferred action in the form of a categorical exercise of
prosecutorial discretion to an entire group across the board raises serious
questions. It runs the risk of appearing to make law, and usurping Congress.
Thus, it would be crucial to underscore that each case would be assessed



individually, on its own merits — similar, but not identical, to how a
prosecutor decides to charge a case. The Dreamers would be required to
step forward individually and apply for deferred status. All applicants
would need to pass background checks. Those who qualified would be
eligible for work authorization, pursuant to a longstanding regulation that
granted such eligibility to those who received deferred action.
At this point, I could not say with certainty that we would be able
to pull off this approach. Individualized review of potentially hundreds
of thousands of cases would require building complex new systems and
processes within the existing bureaucracy — a daunting challenge. What
I did know was that this was the right thing to do, and that it was lawful
— although this latter view, we knew, would almost certainly need to be
defended, both in court and in the court of public opinion.
As DACA was intended to apply to young people who came to
the United States as children, we required that an individual must have
arrived in the United States before turning 16 and be under the age of 30
on the date DACA was publicly announced. To reflect that those who
received deferred action should have strong roots in the United States,
we required that individuals must have lived in the United States for five
years prior to the implementation of DACA, and be present in the United
States on the DACA announcement date. And to ensure that recipients of
DACA were productive members of their communities, we required that
individuals must be currently in school, have graduated from high school,
have obtained a GED, or be a veteran and not have a serious criminal
record or pose a threat to public safety.
The White House then asked us to walk them through the legal
rationale and the implementation challenges. The scale of our proposal
was significant, perhaps more so than any previous exercise of prosecutorial
discretion in the immigration context. Our White House colleagues asked
serious, tough questions. Eventually, they reached a comfort level with our
legal position — DACA was well within the legal authority of DHS —
and with our preparations for implementing DACA across the country.
On June 15, 2012, I issued a memorandum to the heads of the DHS
agencies that enforce immigration laws, handle immigration benefits, and
police the borders and ports.7



“By this memorandum,” it began, “I am setting forth how, in the
exercise of our prosecutorial discretion, the Department of Homeland
Security (DHS) should enforce the Nation’s immigration laws against
certain young people who were brought to this country as children and
know only this country as home. Additional measures are necessary to
ensure that our enforcement resources are not expended on these low
priority cases but are instead appropriately focused on people who meet
our enforcement priorities.”
I closed with the following: “This memorandum confers no
substantive right, immigration status or pathway to citizenship. Only
the Congress, acting through its legislative authority, can confer these
rights. It remains for the executive branch, however, to set forth policy
for the exercise of discretion within the framework of the existing law. I
have done so here.”
We received what appeared to be early support for our efforts in a
decision by the U.S. Supreme Court that came less than two weeks after
our announcement. Although the issue before the Court in Arizona v.
United States was Arizona’s restrictive immigrant enforcement measures,
Justice Kennedy wrote for the majority that “a principal feature of
the removal system is the broad discretion exercised by immigration
officials. Federal officials, as an initial matter, must decide whether it
makes sense to pursue removal at all.”8
Nevertheless, we soon, as anticipated, faced a legal challenge.
Though the vast majority of ICE agents dutifully executed on DACA,
and conducted themselves professionally and responsibly, a handful
of immigration agents brought a lawsuit that challenged our theories
of prosecutorial discretion. They argued that DACA required them to
break the law. A district court judge in Dallas surprised us, and most
legal scholars, by ruling the case might have merit.9 He then dismissed
it on the grounds that it belonged in an administrative setting, not in
federal court.10 The decision has been appealed and is pending before
the Fifth Circuit.
In the political arena, our Congressional critics attacked DACA as
both an open invitation for young people to illegally cross our borders,
and a Constitutional power grab in the form of an executive amnesty

program. It is neither. DACA is no substitute for comprehensive
immigration reform. But in the absence of reform action by the House
of Representatives, something needed to be done to address the plight of
the Dreamers. Our answer was to exercise prosecutorial discretion in the
form of DACA. It was the right thing to do, and the lawful thing to do.
In closing, I would note that prosecutorial discretion is as
fundamental a principle and practice to criminal justice, writ large, as it
is to immigration enforcement. And as we contemplate reforms of our
nation’s criminal justice system, we must remember to preserve those
elements, like prosecutorial discretion, that are essential to our eternal
quest for balance and fairness in the service of justice and freedom.

Hon. Martin O’Malley
Former Governor of Maryland

“In tough times, we must make smarter, more
principled decisions. The death penalty is expensive,
ineffective, and wasteful as a matter of public policy.
It is unjust as historically applied. And it has no
place in a principled 21st century nation.”


oday, there is a growing enlightenment in the world community
regarding the value of capital punishment. The majority of public
executions now take place in just seven countries: Iran, Iraq, China,
North Korea, Saudi Arabia, Yemen, and the United States of America.1
Our home is one of the last refuges of the death penalty.
Our nation was not founded on fear, or on revenge, or on retribution.
Freedom, justice, equal rights before the law, and a fierce belief in the
dignity of every human being — these are the foundational notions of
what it means to be American. Our values are our treasures, and the
death penalty is incompatible with them.
Nevertheless, advocates of the death penalty will argue that the
death penalty is firmly rooted in our legal tradition, extending to its
roots in England. But just as our notions on equality and civil liberties
have rightfully changed since the early days of the republic, it is time to
reconsider the place of the death penalty in our criminal justice system
— and whether we should, as a nation, replace the death penalty with
life without parole.




As we weigh this decision, there are several questions, to my mind,
that we must address: First, does the death penalty work? Second, is the
death penalty an effective use of limited taxpayer dollars? And finally, is
the death penalty consistent with our values?
The answer to each, I believe, is an emphatic no.
The death penalty does not advance public safety. It has proved
countless times to be an ineffective deterrent to violent crime. In fact, the
average homicide rate in states with the death penalty is 4.4 per 100,000
people. In states without it, the rate is 3.4 per 100,000 people.2
Just consider the example of Baltimore City. When I decided to run
for Mayor in 1999, my city had become the most violent, most addicted,
most abandoned city in America. I was very close to, and indelibly moved
by, the pain, suffering, and tragedy. I was witness to horrendous crimes
— violent crimes, murderous crimes, crimes against humanity, crimes
against children. And having the death penalty on the books did absolutely
nothing to stem the growth of the city’s crime and despair.
But the city government and its citizens decided to act. With
concerted effort, we drove down violent crime by 42 percent in Baltimore.
Not because of the existence of the death penalty, not because of great
use of the death penalty, but because we employed new strategies to
work to reduce violence. We actively combated crime. We focused on
the collection of timely, accurate information that could be shared by all.
We focused on direct and rapid deployment of resources to where they
would do the most good. We focused on solving the crimes the death
penalty did not deter, on more effective prosecutions, and on better and
more widely available drug treatment. All these efforts worked. And
together with law enforcement, we — not the death penalty — drove
down violent crime and homicide to three-decade lows.3
The death penalty is also costly and ineffective governance. Despite
being one of our weakest weapons in combating crime, it is enormously
expensive: Sentencing a prisoner to death costs $400,000 more than
sentencing one to life in prison. Given that 56 people have been
sentenced to death in Maryland since 1978, our state has spent about
$22.4 million more than it would have to imprison those people for the
remainder of their lives.4



Moreover, the $22.4 million we spent in Maryland could have paid
for 500 additional police officers or provided drug treatment for 10,000
of our addicted neighbors.5 Every dollar we throw at maintaining an
ineffective death penalty is a dollar we are not investing in the strategies,
like those we followed in Baltimore, that actually work to save lives.
Every dollar spent maintaining an antiquated system is a dollar deferred
from creating a stronger, safer America.
Finally, the death penalty is not just. There are discrepancies in how
we administer the death penalty on the basis of race. Defendants accused
of murdering white victims are significantly more likely to face a death
sentence than those accused of killing non-white victims. Although
African Americans represent 43 percent of all death row inmates, they
make up only 13 percent of the population at large. And a minority
defendant is three times more likely to receive the death penalty than is
a white defendant.6
Nor can we be certain that any defendant is being rightly
convicted, for the death penalty is tragically subject to human error. It
is unconscionable that an innocent person can be put to death by their
own government — and yet, each year from 2000 to 2011, an average
of five death row inmates was exonerated nationwide. And in Maryland,
between 1995 and 2007, our state’s reversal rate for the death penalty
was 80 percent.7
The death penalty is simply inconsistent with the principles of
our nation. If the death penalty as applied is inherently unjust, costly,
and lacks a deterrent value, we are left to consider whether the value to
society of partial retribution outweighs the cost of maintaining capital
punishment. I believe that it does not. The damage done to the concept
of human dignity by our conscious communal use of the death penalty
is far greater than the benefit of a justly drawn retribution.
Our laws must be above the human temptation for revenge. They
must not be an instrument for us to lash out in pain and anger. This
will inevitably leave us with only bitterness and resentment, fraying the
ties between each of us. Rather, our laws aim to strengthen those ties by
using our resources to strengthen our communities and find innovative
solutions to fight violent crime. Far more good will come by ending



violence and saving thousands of lives, than by ending the life of one
person who contributed to violence.
For these reasons, in Maryland, we replaced the death penalty
with the punishment of life without parole. In 2013, Maryland
became the first state south of the Mason-Dixon Line to repeal capital
punishment. The bill was supported by a broad coalition of victims’
families, communities of color, law enforcement officials, faith groups,
and civil rights leaders. I was proud to sign that bill. And, in December
2014, after speaking with the families of victims, I decided to commute
the sentences of Maryland’s four remaining death row inmates to life
in prison without the possibility of parole as one of my final acts as
Across the nation, the tide is turning. Public support for the
death penalty is at its lowest point in 40 years. In 2014, 72 people were
sentenced to death, compared to about 300 per year in the mid-1990s.
The number of states without capital punishment now totals 18, and
Delaware, New Hampshire, and Kansas are also weighing repeal.9 As
momentum continues to shift toward repeal in state after state, there
is real hope that America will soon join the rest of the free world in
abolishing the death penalty once and for all.
In tough times, we must make smarter, more principled decisions.
The death penalty is expensive, ineffective, and wasteful as a matter of
public policy. It is unjust as historically applied. And it has no place in
a principled 21st century nation. Instead we will look now for more
creative, direct, and powerful tools to fight crime and ensure that each
American remains safe. All of our leaders need to be held accountable
to that standard.


Hon. Rand Paul
United States Senator for Kentucky

“As we debate the numerous policies that brought
us to this point — mandatory minimum sentences,
militarization of the police, overincarceration, and
others — we must remember the lives that have been
and continue to be impacted by these flawed policies.
We should start by eliminating mandatory minimum
sentences. Few policies have been as deeply flawed or
destroyed as many lives.”


ur nation’s laws should focus on imprisoning the most dangerous
and violent members of our society. Instead, our criminal
justice system traps nonviolent offenders — disproportionately
African-American men — in a cycle of poverty, unemployment, and
incarceration. Our government’s administrative and regulatory laws
have become so labyrinthine that not even our federal agencies, let alone
our citizens, know exactly how many laws are on the books.
Congress’ failure to confront these problems has created what
Congressman John Lewis (D-Ga.) calls a “growing discontent in this
country.” The lack of trust toward police in minority communities
and the protests on our nation’s streets are rooted in this discontent:
57 percent of Americans express confidence in the police, but only 34
percent of African Americans feel the same way. The War on Drugs
is principally responsible for the wide gap in confidence between
minorities and the police. African Americans use drugs at roughly the
same rate as whites, but are more than twice as likely as whites to be



arrested for drug possession. Harsh mandatory minimum sentencing
laws have also contributed to fatherlessness in these communities. From
1980 to 2000, the number of children with fathers in prison rose from
350,000 to 2.1 million.1
These policies tear apart families, weaken communities, and
ultimately make us less safe. The criminal justice legislation I have
proposed with bipartisan backing would create a fair system for all
Americans. It would reverse the government’s relentless attack on
the fundamental rights enshrined in the Constitution, including
the right to vote and the right to due process. It will reduce the
number of nonviolent felons in our federal prisons and ensure that
our limited federal budget is used to imprison violent criminals.
Our nation’s criminal justice system is fiscally unsustainable and
morally bankrupt. If we come together — liberals and conservatives,
Democrats and Republicans — we can create a criminal justice
system that makes our streets safer and our communities stronger.
As we debate the numerous policies that brought us to this point
— mandatory minimum sentences, militarization of the police,
overincarceration, and others — we must remember the lives that
have been and continue to be impacted by these flawed policies.
We should start by eliminating mandatory minimum sentences.
Few policies have been as deeply flawed or destroyed as many lives.
Fate Vincent Winslow will die in prison for selling $20 worth of
marijuana. Weldon Angelos will serve 55 years in federal prison for
selling $350 worth of marijuana.2 Like many incarcerated under
mandatory minimum sentences, neither Winslow nor Angelos
committed violent crimes, but the judges who oversaw their cases
were forbidden from exercising their judicial discretion. Instead,
the government was able to dictate a one-size-fits-all punishment
that serves no one. A chorus of judges has lamented the effect of
mandatory minimum sentences as “unjust, cruel, and even irrational.”
One judge declared, “[F]airness has departed from the system” as a
result of these laws.3
We can restore fairness in our sentencing decisions if we allow
judges to treat each case according to its specific circumstances



instead of a government mandate. This is why Sen. Patrick Leahy
(D-Vt.) and I have introduced the Justice Safety Valve Act in the
Senate, which is sponsored by Rep. Bobby Scott (D-Va.-3) in
the House of Representatives.4 The bill allows judges to exercise
discretion and not apply mandatory minimum sentences when there
are mitigating factors involved — such as the defendant’s criminal
history and mental health. I have also joined with my colleagues
Sens. Mike Lee (R-Utah) and Dick Durbin (D-Ill.) in support of
cutting mandatory minimum sentences in half for nonviolent drug
offenses.5 Similar reforms have occurred on the state level and prove
that we can reduce the federal prison population while keeping the
country safe.
Our society must also be more accepting of ex-offenders after
they’re released from prison. Floyd Carr of Richmond, Ky., has been
out of prison for 18 years but his criminal record still prevents him from
obtaining a job. The Lexington Herald-Leader described his frustration
with being turned away from more than 75 jobs, and his desire to find
consistent work: “I’ve been let go three times after they find out I have
a record,” Carr said. “I just turned 70 and work every day ... I made a
mistake and I’m still paying for it.”6
Taxpayers are paying for it too, in high recidivism rates and the costs
of imprisoning nonviolent offenders who are drawn back into crime
by a society that defines them by their worst moments. These limited
employment opportunities result in roughly two-thirds of ex-offenders
being arrested again within three years of release.7 Dan Caudill, owner
of the Caudill Seed Company in Louisville, Ky., is one man fighting
to curb this costly cycle by offering felons employment and providing
the second chance that so many of them hope for. The jobs that Mr.
Caudill provides these offenders will grant them financial security and
improve their chances of adjusting back into society. He describes these
employees as some of the hardest workers he has ever hired.
If more employers followed Mr. Caudill’s example, then people like
Floyd would find opportunities after they paid their debt to society —
but that is just not the case. Eight months after being released from
prison, only 45 percent of ex-offenders have a job — while 70 percent of



these offenders held a job for over a year before they were incarcerated.8
It is not a question of willingness to attain a job but a lack of
opportunities that prevent ex-offenders, like Mr. Carr, from entering
the workforce. I introduced the REDEEM Act (Record Expungement
Designed to Enhance Employment Act) last year with Sen. Cory Booker
(D-N.J.) to give these ex-offenders a second chance.9 It creates a process
for juvenile and nonviolent offenders to seal or expunge their criminal
record. These offenders would have to demonstrate their willingness
toward being rehabilitated to a judge in order to qualify for the process.
As a result, Americans who would have been defined by drug possession
crimes for the rest of their lives will finally be able to get jobs and
provide for their families. The dignity and self-sufficiency that comes
with economic opportunity will make it far less likely that these exoffenders will return to a life of crime.
Employment is not the only barrier former offenders have to deal
with after release. Many must also contend with the long list of civil
rights they lose years after incarceration — like the right to vote. In the
2008 election, over 2.1 million ex-offenders were unable to vote even
after completing their prison sentence.10 Minority Leader Harry Reid
(D-Nev.) and I have introduced The Civil Rights Restoration Voting Act
to restore the right to vote for nonviolent offenders who have completed
their debt to society.11
Our methods of policing must also change. Prepared with a “no
knock” warrant, the Habersham Special Response Team proceeded
to force their way into the house of a suspected drug dealer. After
being unable to breach the door fully, they threw a stun grenade
into the residence. The flash bang was inadvertently tossed into
the playpen of a 19-month-old child, resulting in significant burn
related injuries. As it turns out, the suspect that the response team
was looking for wasn’t even at the residence. The district attorney
and Georgia Bureau of Investigations would later go on to justify
the actions and procedure administered during the raid, even when
taking into account the end result. Unfortunately, events like this
happen all too often, bringing the need for more skepticism about
the necessity of no-knock raids.12



The escalation of the militarization of America’s police force has
become increasingly alarming over recent years. Police departments
are being equipped with military grade gear and equipment, usually
with little to no oversight or documented training. Evidence has
shown that the use of SWAT teams to execute search warrants
disproportionality affects minorities in comparison to white suspects.
Overall, “42 percent of people impacted by a SWAT deployment to
execute a search warrant were Black and 12 percent were Latino.” The
Department of Defense’s 1033 program, which transfers militarized
equipment to law enforcement, has transferred $5.1 billion worth
of new equipment from the Department to federal and local law
enforcement agencies since its creation in 1997.13
The Stop Militarizing Our Law Enforcement Act will substantially
curb this practice.14 The bill restricts what equipment can be
transferred or bought through the 1033 program, the Department
of Homeland Security’s Preparedness Grant Program, and the Justice
Department’s Byrne Grant Program. It will prohibit the transfer of
militarized weaponry that was never designed to be in the hands of law
enforcement — including mine-resistant ambush protected vehicles
and weaponized drones. If local law enforcement is convinced that
these items are necessary to protect their communities, then they
should pay for it with local tax dollars and be held accountable for
the expense by the people they serve.
Civil asset forfeiture is another issue that we must reform. Outside
of his home in Philadelphia, the police arrested Christos Sourvelis’ son
for selling $40 worth of drugs. One month later, the police were back
at Sourvelis’ home, not for his son, but for his house.15 Thousands of
innocent citizens like the Sourvelis family are having their property
seized without criminal charges. What used to be a tool for targeting
drug cartels and powerful crime organizations has become a weapon
against law-abiding, tax-paying citizens. Law enforcement has become
focused on revenue generation instead of keeping communities safe. The
reforms in the Fifth Amendment Integrity Restoration Act (FAIR Act),
which I have introduced with Sens. Mike Lee (R-Utah) and Angus King
(I-Maine), would end this perverse practice.16 The FAIR Act codifies

into law numerous necessary reforms to the federal government’s civil
asset forfeiture laws. It has one simple objective: To ensure that the
government cannot take the private property of citizens without due
process of law and a criminal conviction.
States as conservative as Texas and Georgia have shown us that
reforming the criminal justice system makes fiscal and moral sense.
The states have led the way and their success should spur the federal
government to realize the folly of our current criminal justice policies.
We can and must work together to create a criminal justice system
that punishes nonviolent offenders without incapacitating them and
stripping them of their civil rights.

Hon. Rick Perry
Former Governor of Texas

“States across the country can follow the
successful example of Texas. By offering treatment
instead of prison for those with drug and mental
health problems — upon entrance and exit
from prison — the United States can eliminate our
incarceration epidemic.”


or too long, fear has dictated America’s criminal justice policy.
Citizens, afraid of the growing violence brought on by the drug
wars of the 1980s, demanded harsher penalties and longer sentences.
Politicians, afraid of looking soft on the issue, eagerly obliged.
But policy driven solely by fear — absent the equally powerful
motivation of human redemption — has failed us. States across the
country spent billions locking up kids for the most minor of offenses.
In jail, these kids learned how to become hardened criminals. Out of
jail, they often repeated their crimes. The result was a significant fiscal
burden for taxpayers, a less safe community, and a segment of society
shut out from hope and opportunity.
I saw this firsthand in Texas. While arrests for violent and property
offenses remained fairly steady throughout the 1990s, drug-related
arrests had increased by one-third. The amount Texas spent on prisons
and parole had ballooned to nearly $3 billion a year in 2007 — and it
was nowhere near enough. Projections called for an additional 17,000
prison beds, at an additional $2 billion, just to sustain the system for
another five years.1



Something needed to change. No political party has a monopoly on
good ideas, including my own. Over the course of my career in public
service, I have never been afraid to borrow good ideas, regardless of
where they come from.
That’s why, when Judge John Creuzot, a Democrat from Dallas, shared
an idea that would change the way Texas handled first-time, nonviolent
drug offenders, I listened. As the founder of one of the first drug courts in
Texas, Judge Creuzot argued that incarceration was not the best solution
for many low-risk, nonviolent offenders. It benefits neither the individual
nor society at large, and can even increase the odds that offenders will
commit more crimes upon release. And, just as importantly, by treating
addiction as a disease — and not merely punishing the criminal behavior
it compels — Texas could give new hope to people trying to get their
lives back. The evidence he presented was compelling. Recidivism in his
program was 57 percent lower than traditional state courts, and every
dollar he spent saved $9 in future costs.2
So. in 2007, with broad support from Republicans and Democrats
alike, Texas fundamentally changed its course on criminal justice. We
focused on diverting people with drug addiction issues from entering
prison in the first place, and programs to keep them from returning.
First, we expanded our commitment to drug courts that allow certain
low-level offenders to stay out of prison, if they agreed to comprehensive
supervision, drug testing, and treatment. We added drug courts to
more counties, increased funding, and expanded the types of crimes
that allow a defendant to enter drug courts. Rather than languishing
somewhere in a cell, first-time, nonviolent offenders willing to confront
their drug addiction are connected with counseling and undergo intense
supervision, including weekly random drug tests and meeting with a
probation officer. These programs work. The National Association of
Drug Court Professionals found that about 75 percent of people who
complete drug court programs do not recidivate.3
Second, we reformed our approach to parole and probation. We
focused financial resources on rehabilitation so we could ultimately
spend less money locking prisoners up again. We invested $241
million to create treatment and rehabilitation programs to address



drug addiction and mental illness for people on parole and probation.4
Rather than immediate re-incarceration for minor violations of parole
or probation conditions, we introduced a system of progressively
increasing punishments, or “graduated sanctions.” If people committed
violations because of drug or mental health issues, we addressed those
issues instead of simply locking them up again. We added more
residential and outpatient beds for substance abuse treatment. We
added more beds in halfway houses providing reentry services. And
we provided more substance abuse programs in prisons and jails.
A key shift was a focus on outcomes rather than volume. We offered
financial incentives to local probation departments: They could win
additional state funds if they reduced the number of probationers returning
to prison by 10 percent by adopting the graduated sanctions approach.5
Most departments accepted this challenge, and the number of new crimes
committed by probationers substantially decreased across the state. These
types of financial incentives are proven to work. Government should be
funding what works — not blindly funneling money into broken prisons.
The results have been remarkable. Texas implemented these
reforms in 2007. By the time I left office in 2015, Texas had expanded
the number of specialty courts in the state from nine to more than
160. We reduced the number of parole revocations to prison by 39
percent. We saved $2 billion from our budget, not to mention the
countless lives saved. We did all this while our crime rate dropped to
its lowest point since 1968. And for the first time in modern Texas
history, instead of building new prisons, we shut down three and
closed six juvenile lock-ups.6
Taxpayers have saved billions because of our new approach to
criminal justice, and they’re safer in their homes and on the streets.
Fewer lives have been destroyed by drug abuse, and more people are
working and taking care of their families instead of languishing behind
bars. That may be the most significant achievement of all: By keeping
more families together we are breaking the cycle of incarceration that
condemns each subsequent generation to a life of lesser dreams.
Our new approach to criminal justice policy is all about results. This
change did not make Texas soft on crime. It made us smart on crime.



There is nothing easy about our diversion programs. Our drug courts
provide an opportunity to those willing to work hard to regain control of
their lives. They are often much tougher than traditional programs. What
they get in return is a chance to minimize the damage they have done to
their lives. And for some people, a chance is all they really need.
I am proud that in Texas criminal justice policy is no longer driven
solely by fear, but by a commitment to true justice, and compassion for
those shackled by the chains of addiction. My hope is that all states will
do likewise. States across the country can follow the successful example
of Texas. By offering treatment instead of prison for those with drug and
mental health problems — upon entrance and exit from prison — the
United States can eliminate our incarceration epidemic.
A big, expensive prison system — one that offers no hope for
second chances and redemption — is not conservative policy.
Conservative policy is smart on crime.
I am reminded of the words of the 20th century social activist who
co-founded Volunteers for America, Maud Ballington Booth: “There is a
sunshine that can force its way through prison bars and work wondrous
and unexpected miracles . . . and a genuine change of heart where such
results seemed the most utterly unlikely and impossible.”7
We must remember that when it comes to the disease of addiction,
the issue is not helping bad people become good, but rather helping sick
people become well.


Hon. Marco Rubio
United States Senator for Florida

“[W]hen we consider changing the sentences we
impose for drug laws, we must be mindful of the great
successes we have had in restoring law and order
to America’s cities since the 1980s drug epidemic
destroyed lives, families, and entire neighborhoods.
I personally believe that legalizing drugs would be
a great mistake and that any reductions in sentences
for drug crimes should be made with great care.
Nonetheless, we must not let disagreements over
drug policy distract us from the pressing need for a
thorough review of our entire criminal code.”


arlier this year, the U.S. Supreme Court considered the case of John
Yates, a Florida fisherman who once earned his living harvesting fish in
the Gulf of Mexico.1 That career came to an abrupt end when, following a
dispute over red grouper fish, Mr. Yates found himself not just out of a job,
but also a convicted felon.
The trouble for Mr. Yates began when a Florida Fish and Wildlife
Conservation inspector boarded his ship to inspect his catch. The officer
alleged that 72 of the grouper Mr. Yates had caught were less than the thenminimum legal size of 20 inches. (That minimum has since been lowered to
18 inches.) All of Mr. Yates’ fish were 18 and three-quarter inches or longer.
Most were a mere fraction of an inch shorter than the legal minimum.
Ordinarily, catching a few under-sized fish might result in a civil fine,
not jail time. This was not the case here. When investigators re-measured



Mr. Yates’ catch after he docked his boat, they found the fish were still
undersized, but slightly less so. The government then alleged that Mr.
Yates threw some of the offending fish overboard. That allegation, a
loosely worded federal statute, and overzealous prosecutors combined
to turn a possible fine into a federal criminal case.
Mr. Yates was charged and convicted under a provision of the federal
Sarbanes-Oxley Act initially meant to prevent white collar criminals
from shredding documents. The law carries a maximum penalty of 20
years in prison.2 Mr. Yates served 30 days in jail, followed by three years
of supervised release. He lost his job as a boat captain for hire.
Fortunately for Mr. Yates, he managed to convince the U.S.
Supreme Court, by a narrow 5-4 majority, to reverse his conviction. The
Justices were sharply divided on the definition of “tangible things” in the
Sarbanes-Oxley Act and whether it included fish. While this question
of statutory interpretation might seem scintillating to lawyers, the case
highlights a problem much bigger than a few fish or a legal debate.
American criminal law has grown far beyond its proper scope and is in
serious need of reform.
Even those Justices who voted to allow Mr. Yates’ conviction to
stand agreed that the case highlights a cause for concern. Justice
Elena Kagan, writing for herself and Justices Antonin Scalia, Clarence
Thomas, and Anthony Kennedy, wrote that this “is a bad law — too
broad and undifferentiated, with too-high maximum penalties, which
give prosecutors too much leverage and sentencers too much discretion.
And I’d go further: In those ways, [it] is unfortunately not an outlier,
but an emblem of a deeper pathology in the federal criminal code.”3
John Yates going to jail for red grouper highlights a fundamental
problem in American criminal law today. Lawmakers have increasingly
turned to criminal law as a form of regulation. Recklessly passed,
duplicative, conflicting, and vague laws have turned criminal law into a
trap for the unwary.
There are now thousands of federal crimes; indeed so many that
legal experts cannot agree on a specific number. This is despite the fact
that the Constitution gives the federal government no general criminal
jurisdiction. To compound the problem, Congress has delegated broad



enforcement powers to unelected bureaucrats in federal agencies.
Attorney and writer Harvey A. Silverglate has estimated that the average
American now unknowingly commits three felonies a day.4 This state
of affairs is intolerable in a republic and practically invites selective
There is an emerging consensus that the time for criminal justice
reform has come. A spirited conversation about how to go about that
reform has begun. Unfortunately, too often that conversation starts and
ends with drug policy. That is an important conversation to have. But
when we consider changing the sentences we impose for drug laws, we
must be mindful of the great successes we have had in restoring law and
order to America’s cities since the 1980s drug epidemic destroyed lives,
families, and entire neighborhoods. I personally believe that legalizing
drugs would be a great mistake and that any reductions in sentences for
drug crimes should be made with great care.
Nonetheless, we must not let disagreements over drug policy
distract us from the pressing need for a thorough review of our entire
criminal code. Convicting someone of a crime is the most serious
action a government can take. Once a person becomes a “convicted
criminal,” the government can take his property, his liberty, and even
his life. Yet, despite the gravity of criminal law, the federal government
has at times been wildly irresponsible in what it treats as a crime and
how it proves guilt.
No one doubts the need for criminal law, and the federal government
has an important role to play in combating offenses ranging from
organized crime to white collar environmental crime. But the current
state of criminal law, especially federal criminal law, is simply foreign to
our Constitution and unworthy of a free people. Congress can and must
take sensible steps to begin correcting this serious problem. It should
start by cataloguing all federal crimes in one statutory location, restoring
a standard of intent in criminal law, reining in out-of-control regulatory
agencies, and stopping the seizure of the property of citizens to fund law
enforcement agencies.
First, Congress should immediately require the federal government
and regulatory agencies to catalogue and publish in one place all the existing



statutory and regulatory crimes. Remarkably, this is not available today.
Following a comprehensive catalogue of criminal law, we should pay special
attention to laws that are duplicative, underused, or better handled by states.
Those laws should be identified for potential repeal.
Second, Congress should restore a standard of intent to federal crimes.
Traditionally, criminal law included what lawyers call a mens rea. The
government could not bring down the weight of criminal condemnation
on an individual simply because he had made a mistake; it also had to show
that he had a mental state that made him worthy of punishment.
Consider this common illustration of this concept. If a person on the
way out of a restaurant accidentally picks up an umbrella that he thinks is
his, he has made a mistake. He has not committed a crime. However, if a
person deliberately takes someone else’s umbrella from a restaurant because
it begins to rain and he forgot to pack his own umbrella, he has committed
theft. To convict him of a crime, the government must prove intent to
steal — the relevant state of mind. That is the difference mens rea makes in
criminal law.
This critical component of criminal law has been neglected in recent
decades. Congress can begin to restore this damage by insisting on standards
of intent for any new criminal law and by establishing a default mens rea
standard for existing federal criminal laws that lack one. There may be
a limited place for crimes that do not require a standard of intent; if so,
Congress should expressly make that decision in the relevant laws.
Third, Congress must rein in out-of-control regulatory agencies.
It should stop delegating additional criminal lawmaking authority to
regulators. The public has long understood the burden unaccountable
regulators place on business and ordinary Americans. In many cases,
regulations have become more consequential than the statutes that they
purportedly execute. It is for this reason that I have proposed that Congress
establish a national regulatory budget, which would require that new, costly
regulations be offset by the repeal of other existing regulations. I have also
joined many of my colleagues in supporting legislation that would require
congressional review of major regulations. It is time we apply similar
attention to regulations with criminal implications: Regulations should be
reviewed by Congress and potentially offset by the simplification and repeal



of older regulations. Better still, Congress in the future should refuse to
delegate new criminal lawmaking authority to unelected regulators. While
truly bad actors deserve punishment, Congress should be mindful of the
serious impact our bewildering thicket of statutory and regulatory criminal
laws have on well-meaning businesses, which now must spend millions in
compliance costs and may decline to pursue innovative ideas for fear of
possible criminal punishment.
Fourth, law enforcement agencies should never have a conflict of
interest. Currently, through civil asset forfeiture, law enforcement agencies
can seize the property of citizens simply by asserting a connection to
illegal activity without ever pursuing criminal charges. Agencies are often
allowed to keep financial proceeds raised through these seizures. These
types of perverse incentives to raise funds can badly skew the priorities and
judgment of otherwise well-intentioned public servants, especially in tough
budgetary times. The potential for abuse is significant, especially in civil
forfeiture which does not carry many of the safeguards traditionally found
in criminal law. former Attorney General Eric Holder recently announced
he would curtail some aspects of civil forfeiture.5 It is a welcome start, but
Congress should go further and end this practice by requiring all proceeds
from federal forfeiture must go to the general fund of the U.S. Treasury.
Public interest and safety should be the only factors motivating property
Certain Roman Emperors had a practice of posting new criminal
offenses so high up on columns in the Forum that subjects could not read
them, nor hope to comply with them. This story is usually told as evidence
of the madness and cruelty of those leaders. As Americans, we deserve a
criminal justice system that is neither mad, nor cruel, but fair and just —
with criminal laws and regulations that are easy to understand and not prone
to abuse.
With the four steps outlined above as a starting point, Congress can begin
the project of restoring a criminal justice system that both protects public
safety and reflects our values as a free people. We can also turn to the difficult
problem of drug crimes. Our hearts are broken by stories of individuals and
families whose lives have been wrecked by drugs, and we must re-commit as
a society to helping these souls find a productive path forward.



The states have made important strides here, particularly with
youthful and first-time offenders. We should continue this work, focusing
on evidence-based rehabilitation and recidivism reduction programs. Much
of the criminal behavior in America is committed by repeat offenders, and
much of it is drug-related. If we are able to break this cycle early, we can
change not just the life trajectory of the offenders, but those of the many
lives he or she touches. The government, of course, cannot do this alone.
Families, faith communities, and employers all play indispensable roles.
We do not have to choose between the rampant criminality of the 1970s
and 1980s and the overreaching criminal laws and overstretched prison
resources we have today. Working together, those of us in government along
with partners in civil society can work to restore an America characterized
by liberty and law.


Bryan Stevenson
Executive Director
Equal Justice Initiative

“At every juncture, decision makers can be more
compassionate. One powerful way to exercise mercy:
change how we treat the mentally ill. And, make how
we treat the most vulnerable among us just.”


ass incarceration, in my judgment, has fundamentally changed our
world. This country is very different today than it was 40 years ago.
In 1972, there were 300,000 people in jails and prisons. Today, there are
2.3 million. The United States now has the highest rate of incarceration
in the world.1
In poor communities, in communities of color there is this despair.
There is this hopelessness that is being shaped by these outcomes. One out of
three black boys born in the 21st century will be incarcerated at some point
in their lives.2 In urban communities across this country — Los Angeles,
Philadelphia, Baltimore, Washington — 50 to 60 percent of all young men
of color are in jail or prison or on probation or parole. Our system is not
just being shaped in these ways that seem to be distorting around race, they
are also distorted by poverty. We have a system of justice in this country that
treats you much better if you are rich and guilty than if you are poor and
innocent. Wealth, not culpability, shapes outcomes.
The politics of fear and anger have made us believe that these
are problems that are not our problems. We have been disconnected.



Incarceration became the answer to everything — health care problems
like drug addiction, poverty that had led someone to write a bad check,
child behavioral disorders, managing the mentally disabled poor, even
immigration issues generated responses from legislators that involved
sending people to prison.
For decades, I have worked in a broken system of justice. My
clients were broken by mental illness, poverty, and racism. They were
torn apart by disease, drugs and alcohol, pride, fear, and anger. In
their broken state, they were judged and condemned by people whose
commitment to fairness had been broken by cynicism, hopelessness,
and prejudice. We are supposed to sentence people fairly after fully
considering their life circumstances, but instead we exploit the
inability of the poor to get the legal assistance they need — all so we
can kill them with less resistance.
We need to find ways to embrace these challenges, these problems,
the suffering. Because ultimately, our humanity depends on everyone’s
humanity. We have a choice. We can embrace our humanness, which
means embracing our broken natures and the compassion that remains
our best hope for healing. Or we can deny our brokenness, forswear
compassion, and, as a result, deny our own humanity.
I am encouraged by the fact that nationwide the rate of mass
incarceration has finally slowed. For the first time in close to 40
years, the United States saw the first decline in its prison population.3
Our criminal justice system must change. Fear and anger are a
threat to justice; they can infect a community, a state, or a nation
and make us blind, irrational, and dangerous. Mass imprisonment
has littered the national landscape with carceral monuments of
reckless and excessive punishment and ravaged communities with
our hopeless willingness to condemn and discard the most vulnerable
among us.
But simply punishing the broken — walking away from them
or hiding them from sight — only ensures that they remain broken
and we do, too. There is no wholeness outside of our reciprocal
humanity. Each of us is more than the worst thing we have ever
done. I am more than broken. In fact there is a strength, a power



even, in understanding brokenness because embracing our brokenness
creates a need and desire for mercy, and perhaps a corresponding need
to show mercy.
When you experience mercy, you learn things that are hard to learn
otherwise. You see things you can’t otherwise see; you hear things you
can’t otherwise hear. You recognize the humanity that resides in each of
us. All of a sudden, I felt stronger. I began thinking about what would
happen if we all just acknowledged our brokenness, if we owned up
to our weakness, our deficits, our biases, our fears. Maybe if we did,
we wouldn’t want to kill the broken among us who have killed others.
Maybe we would look harder for solutions to caring for the disabled,
the abused, the neglected, and the traumatized. I had a notion that if
we acknowledged our brokenness, we could no longer take pride in
mass incarceration, in executing people, in our deliberate indifference
to the most vulnerable. Mercy is most empowering, liberating, and
transformative when it is directed at the undeserving. The people
who haven’t earned it, who haven’t even sought it, they are the most
meaningful recipients of our compassion.
How can mercy translate into practical changes in our criminal
justice system? The ways are countless. At every juncture, decision
makers can be more compassionate. Police can presume innocence in
interactions with individuals. Judges and prosecutors can recommend
less punitive sentencing for defendants. Corrections officers can treat
inmates with humility. One powerful way to exercise mercy: change how
we treat the mentally ill. And, make how we treat the most vulnerable
among us just.
America’s prisons have become warehouses for the mentally ill.
Mass incarceration has been largely fueled by misguided drug policy
and excessive sentencing. But the internment of hundreds of thousands
of poor and mentally ill people has been a driving force in achieving our
record levels of imprisonment. It has created unprecedented problems.
For over a century, institutional care for Americans suffering from
serious mental illness shifted between prisons and hospitals set up to
manage people with mental illness. In the late nineteenth century, the
numbers of incarcerated people with serious mental illness declined



dramatically, while public and private mental health facilities emerged
to provide care to the mentally distressed.
By the middle of the 20th century, abuses within mental institutions
generated a lot of attention, and involuntary confinement of people
became a significant problem. Families, teachers, and courts were sending
thousands to institutions for eccentricities that were less attributable to
acute mental illness than resistance to social, cultural, or sexual norms.
People who were gay, resisted gender norms, or engaged in interracial
dating often found themselves involuntarily committed.
In the 1960s and 1970s, laws were enacted to make involuntary
commitment much more difficult. Deinstitutionalization became
the objective in many states. Legal rulings empowered people with
developmental disabilities to refuse treatment and created rights for
the mentally disabled that made forced institutionalization much less
common. By the 1990s, several states had a deinstitutionalization rate
of over 95 percent. In 1955, there was one psychiatric bed for every 300
Americans; 50 years later, it was one bed for every 3,000.4
While these reforms were desperately needed, deinstitutionalization
intersected with the spread of mass imprisonment policies — expanding
criminal statutes and harsh sentencing — to disastrous effect. The “free
world” became perilous for deinstitutionalized poor people suffering
from mental disabilities. The inability of many disabled, low-income
people to receive treatment or necessary medication dramatically
increased their likelihood of a police encounter that would result
in jail or prison time. Jail and prison became the state’s strategy for
dealing with a health crisis created by drug use and dependency. A
flood of mentally ill people headed to prison for minor offenses and
drug crimes, or simply for behaviors their communities were unwilling
to tolerate.
Today, more than 50 percent of prison and jail inmates in the
United States have a diagnosed mental illness, a rate nearly five times
greater than that of the general adult population. Nearly one in five
prison and jail inmates has a serious mental illness. In fact, there are
more than 10 times the number of seriously mentally ill individuals
in jail or prison than in hospitals.5 And prison is a terrible place for



someone with a mental illness or a neurological disorder that prison
guards are not trained to understand.
Most overcrowded prisons do not have the capacity to provide care and
treatment for the mentally ill. The lack of treatment makes compliance with
the myriad rules that define prison life impossible for many disabled people.
Other prisoners exploit or react violently to the behavioral symptoms of
the mentally ill. Frustrated prison staff frequently subject them to abusive
punishment, solitary confinement, or the most extreme forms of available
detention. Many judges, prosecutors, and defense lawyers do a poor job
of recognizing the special needs of the mentally disabled, which leads to
wrongful convictions, lengthier prison terms, and high rates of recidivism.
There are hundreds of ways we accommodate physical disabilities —
or at least understand them. We get angry when people fail to recognize
the need for thoughtful and compassionate assistance when it comes to
the physically disabled, but because mental disabilities aren’t visible in
the same way, we tend to be dismissive of the needs of the disabled and
quick to judge their deficits and failures. Brutally murdering someone
would of course require the state to hold that person accountable and
to protect the public. But to completely disregard a person’s disability
would be unfair in evaluating what degree of culpability to assign and
what sentence to impose.
We can take steps to accommodate mental disabilities both inside
and outside of the criminal justice system. People suffering from mental
health issues should be treated with compassion and mercy. Reforms
must focus at the root of the problem, and learn from history. In the
past, the mentally ill were institutionalized in separate institutions
with their own problems. The intention of deinstitutionalization
was not to subject the mentally ill to incarceration in prisons where
corrections officers have no relevant training and they would be
subject to conditions that would exacerbate their disabilities. Instead,
the intention was to provide services outside the institutional setting,
accessible clinics with helpful resources to treat mental illness and
address issues without incapacitation. Providing these services requires
mercy, but also money. Funds directed to mental health social services
in communities can control problems without institutionalization.



Inside the system, mental health courts can redirect individuals to
treatment instead of prison, to effectively address problems outside of
traditional criminal justice.
Ultimately, you judge the character of a society, not by how they
treat their rich and the powerful and the privileged, but by how they
treat the poor, the condemned, the incarcerated. Because it’s in that
nexus that we actually begin to understand truly profound things about
who we are, about human rights and basic dignity. All of our survival is
tied to the survival of everyone.6


Jeremy Travis
John Jay College of Criminal Justice

“Achieving this cultural change will require five
interrelated activities: understanding American
punitiveness, imagining a different future, breaking
the Gordian knot of crime and prison policy,
rethinking the role of the criminal sanction, and
pursuing racial reconciliation.”


ass incarceration is one of the most important moral challenges
facing our democracy. If this level of incarceration, or anything
close to it, becomes our new normal, I am concerned for the future of
our democratic experiment, our notion of limited government, and our
pursuit of racial justice.
Reversing course will require something much more profound than
our current reform strategies. What is required is a deep cultural change.
The National Academy of Sciences published a report in 2014
that reflects the deliberations of a panel of twenty prominent scholars
convened to assess the evidence on the “causes and consequences of
high rates of incarceration in the United States.”1 I was honored to
serve as chair. These are the key findings of this report: First, we stand
apart from the rest of the world. The growth in incarceration rates in
the United States over the past 40 years is historically unprecedented
and internationally unique. Second, we are here because we chose to be
here; our high incarceration rates are the result of our policy choices.
Third, the public safety benefits of the prison build-up are, at best,
modest. Fourth, the financial and social costs of the prison build-up



are likely significant. Lastly, we have lost sight of important principles.
Our panel recommended that the United States reduce
incarceration rates. Specifically, we recommended reforms to the
policies that drove the prison build-up: mandatory minimums,
long sentences, and drug enforcement. We also recommended that
the nation improve conditions for those incarcerated and reduce the
harms experienced by their families and communities. Finally, we
need to increase service needs in those communities.
Certainly there are reasons to be optimistic that these reforms will
happen. The incarceration rate has dropped slightly over the past few
years. We are seeing a new left-right coalition that has embraced the
common goal of reducing the prison population. Solidly conservative
states like Texas, Georgia, Mississippi, and Alabama have taken steps to
cut back on their prison populations.
But, the euphoria occasioned by the slight downturn in incarceration
rates is premature and the reforms that we celebrate are nibbling around
the edges.
I would like to imagine a different future for our country, when we
do not lead the world in incarcerating our fellow citizens. To get there,
we must attack the breeding grounds of the political reality that brought
us to this situation. But a cultural change is a necessary precondition
to this political change. Achieving this cultural change will require five
interrelated activities: understanding American punitiveness, imagining
a different future, breaking the Gordian knot of crime and prison
policy, rethinking the role of the criminal sanction, and pursuing racial
Why did America become so punitive? We need to look beyond
criminal justice policy — and beyond traditional political and historical
analysis — to answer this question. We need to recognize that this punitive
reflex has been evident in other policy domains as well. We have substituted
school disciplinary processes with criminal proceedings. We have decided
to detain millions of undocumented immigrants in a network of prisons
not counted in our measures of incarceration. In response to threats of
terrorism, we have enacted policies that significantly constrain the liberty
of all Americans and have subjected Muslim Americans to special scrutiny.



Our efforts to reduce mass incarceration will require a deep exploration of
why our country embarked on this aberrational experiment in the massive
deprivation of liberty.
One of the missing ingredients in the current debate over mass
incarceration is that we do not have an alternate vision for our future.
We are so focused on the tactical challenges of coalition building, the
hand-to-hand combat of legislative reform, and the concern about
short-term victories that we do not take the time to say, simply: It need
not be so.
What might be effective? For starters, consider the recent success
of Proposition 47 in California, which reclassified criminal offenses,
reallocated money from corrections budgets, and provided opportunities
for people convicted of low-level felonies to have these felonies removed
from their records.2 Many lessons can be drawn from this success.
First, the campaign led with the voices of crime victims — everyday
Californians who said that the current system did not deliver the justice
they sought.3 Second, the campaign specified alternative investments
of the money spent on prisons.4 Finally, because of California’s ballot
initiative, the campaign was able to bypass the legislative process and
directly reflect the will of the people.
Only a few states provide for sentencing reform by referendum.
We need other ways to paint a different vision for the future, such as
conducting community-level conversations that provide direct input
into a new vision for justice.
We can also compare our prison system with those of other countries.
We Americans are notoriously parochial and frequently respond with
excuses of American Exceptionalism. In our nation’s history, Europeans
came to this country to learn about progressive sentencing and prison
policies. Today, we need to repay that compliment by looking carefully
at what we can learn from the prison systems of other countries.
Next, we have to break the Gordian knot of crime policy and
prison policy. The prison build-up was only indirectly caused by crime
increases, and high rates of incarceration yielded, at best, only modest
benefits in terms of public safety. But every time we talk about reducing
prison populations, that proposition is still cast in terms of public safety.



Research now shows us that we are only repeating a false premise if we
couch a prison reduction strategy as possible only if crime does not go up.
We need to develop other reasons for reducing the number of people
in prison. To be credible, advocates for reductions in imprisonment need
to have a position on public safety. It is the height of irony that we have
so many people in prison precisely at a time when we have developed
a very sophisticated portfolio of effective crime prevention strategies.
We are now in a position to question the premise of mass incarceration
itself and to ask: Why do we need to use prison so extensively to reduce
crime? Why not put the intellectual energy and taxpayer resources into
effective strategies?
We have a golden opportunity to reframe crime policy in terms of new
ideas about the role of the criminal sanctions in producing public safety.
Nothing would be a more powerful antidote to the prison-centric realities
of our current crime policy than the design and implementation of a suite
of effective crime prevention policies that minimize the use of prison, such
as the concept of “focused deterrence.” This concept envisions the criminal
sanction — including arrest, prosecution, and incarceration — as part of a
larger strategy designed to address specific crime conditions. Today, over 50
jurisdictions have joined the National Network for Safe Communities, the
vehicle for implementing focused deterrence strategies around the country.5
One of the principles of the National Network is to reduce the
unnecessary use of incarceration while reducing crime. In focused
deterrence, formal social control is used only in connection with explicit
informal social control, including the moral voice of communities,
persuasion of family members, and positive examples of formerly
incarcerated individuals. Police officers, prosecutors, defense lawyers,
probation officers, judges, and corrections officials are not accustomed to
an embrace of informal social control that is so explicit and so strategic.
The success of focused deterrence requires a rethinking of the role of the
law in influencing behavior.
These innovations are important for what they teach us about
deterrence and for what they can deliver in terms of public safety. They
are also important because they undercut the notion that we need long
prison sentences to produce public safety.



Perhaps the most important task we need to undertake is to come
to terms with the implications of mass incarceration for our country’s
pursuit of racial justice. Most of the increase in incarceration came from
one subpopulation: minority male high school dropouts. The likelihood
that African American high school dropouts born between 1945 and
1949 serving at least a year in prison before age 34 was 14.7 percent. For
those born a generation later — during the prison boom — the risk of
imprisonment is now a staggering 68 percent.6 These data lead to only one
conclusion: Our incarceration policies — and, more broadly, our criminal
justice policies — have done enormous harm. For young men growing up
today who are living in our inner cities, in communities with poor school
systems, poor housing, poor health care, who are not able to complete high
school, their life course likely includes time in prison.
We can nibble around the edges, work with politicians to change
sentencing laws, deepen our understanding of punitiveness in America, even
adopt new crime prevention strategies, but a moral and historical imperative
remains: We need to come to terms with the racial damage caused by the
era of mass incarceration. We need to admit our government — acting in
our name — has done great harm. We need to accept responsibility for that
harm, and find ways to alleviate the consequences.
We must find the way, and must find it together. The optimist in me
says we have a chance of success. If we dig deep and commit ourselves to
doing the truly hard work of our democracy: ensuring that our society lives
up to its ideals.

Hon. Scott Walker
Governor of Wisconsin

“I proposed a strategy for Wisconsin that will allow
drug testing at critical junctures. This provides
an opportunity for intervention at the earliest
possible stages and for treatment as well as job
training for those suffering from drug addiction.
Rather than leaving citizens on the path to selfdestruction through drugs use while taxing our
law enforcement and court system, we can do the
opposite. We can address these issues head-on and get
people ready for work.”


rotecting the lives, liberty, and property of its citizens must in all
cases remain the very highest priority of government. Therefore,
when thinking of criminal justice system reform, I first think about the
impact on victims.
Often times, the voices of those most seriously harmed are not always
the ones most prevalently heard in our courtrooms. During a listening
session years ago at the Brown County Courthouse in Green Bay, a
woman once related to me how she testified against her perpetrator —
an intensely personal experience — because she was told that he would
be punished for his crime, that he would serve his time, and that she and
other potential victims would be safer. She was not aware that he would
soon be released and back on the streets due to a shortened sentence.
Years ago, I authored legislation that required certainty in sentencing
so victims like the woman I met in Green Bay can know how long the man
who attacked her will be behind bars — whether it is two or 20 years.1 As



a victim, she deserves to be a part of that process and she deserves to have
the peace of mind of knowing how long he will be in prison.
With this in mind, we are pushing reforms at the front end of the
process to create opportunities that impede paths to incarceration. We
want a safe and sound system.
Every Friday afternoon, when most courts across America are
winding down and putting the finishing touches on all of the items
on their busy weekly calendars, some courtrooms bustle with activity.
In a family drug treatment court in Milwaukee where substance abuse
problems lead to the break-up of families, the judge pointedly addresses
each addict’s weekly progress. In Green Bay, Appleton, Eau Claire,
La Crosse, Janesville, and Racine, special veterans’ courts fashion an
informed response to the unique trauma presented by those who have
served our country in combat.2
Joining many states across the nation, Wisconsin has continued the
approach of “problem-solving courts” in an effort to address tough issues
presented by alcohol and drug addiction, domestic abuse, and mental
illness.3 No longer do offenders see their judge for only one sentencing
hearing. Now, they must return. Back in front of their sentencing judge,
offenders face the type of scrutiny that only “eye to eye” accountability
affords. Successful outcomes for participants mean lower incarceration
rates and potential cost savings for taxpayers.4
Created in 2012, the Wisconsin Statewide Criminal Justice
Coordinating Council has assisted in directing, coordinating, and
collaborating with statewide and local governmental and nongovernmental partners to increase efficiency, effectiveness, and public
safety.5 Innovative problem-solving courts are one of the many topics on
our docket.6 Building a strong, efficient criminal justice system improves
public safety, saves taxpayer dollars, and ensures justice for all victims.
Proactively identifying and targeting barriers that prevent people from
moving from government dependence to true independence and personal
success have set the contours of our approach. We want every citizen
empowered to take charge of his or her life. With true independence,
people become educated, obtain gainful employment, provide for their
families, find stability and success — and yes, avoid prison.



Heroin use creates a different kind of prison. Heroin does not
discriminate. Regardless of gender, age, race, income, or zip code,
heroin entangles its victims and their families in a dangerous web of
devastation. In 2012, an escalating trend of heroin abuse in Wisconsin
led to a drastic rise in overdose deaths by nearly 50 percent.7 Swift
action was needed to protect our friends, family members, and
neighbors from this insidious drug because our communities lacked
the armor to combat this deadly addiction.
In 2014, I signed into law a package called “H.O.P.E.,” which
stands for Heroin Opiate Prevention and Education.8 H.O.P.E.
invests in Wisconsin communities. It comprehensively changes
how we contend with heroin by implementing the twin principles
of support and accountability. To prevent deaths due to overdose,
H.O.P.E. equips law enforcement officers and first responders with
additional tools to more effectively combat opiate abuse, including
access to life-saving medicines, and encourages addicts to seek
emergency care for fellow drug users. H.O.P.E. also supports addicts
with treatment alternatives, especially in underfunded, yet highneed, rural areas of our state. Accountability-wise, H.O.P.E. creates
swift and certain sanctions to respond to probation violations instead
of automatic incarceration. And finally, H.O.P.E. calls upon medical
professionals to demand identification for certain prescriptions.
H.O.P.E. lays the foundation for reversing the dangerous trend of
heroin addiction.9
It is important to take action — to take the critical steps to
reduce drug abuse. Earlier this year, we noted that more than 72,000
job openings had been posted on our state website. We need people
prepared to fill these jobs.10 Business owners tell me often that they
have positions available — they just need responsible individuals
who can reliably show up for work and pass a drug test.
As part of my plan to help fill those jobs, I proposed a strategy
for Wisconsin that will allow drug testing at critical junctures.11
This provides an opportunity for intervention at the earliest possible
stages and for treatment as well as job training for those suffering
from drug addiction. Rather than leaving citizens on the path to self-



destruction through drug use while taxing our law enforcement and
court system, we can do the opposite. We can address these issues
head-on and get people ready for work.
Back in 1997, the U.S. Department of Justice developed a set
of “key components” for drug treatment courts by a committee of
the National Association of Drug Court Professionals, including
such important measures as: forging collaborative partnerships,
integrating treatment services with effective judicial oversight, and
monitoring abstinence through frequent randomized alcohol and
drug testing.12
Drug testing is not a new concept. It is a common sense policy.
Take, for instance, some high-demand fields and manufacturing
jobs, where sobriety is unquestionably necessary for the operation of
technical equipment and heavy machinery. Workplace safety requires
the imposition of drug testing for employees.
Our goal is to help open the door for more people to enjoy the
freedom and prosperity that comes from having a great job and doing
it well. While some, on the other side of the aisle in the Wisconsin
Capitol, have said that drug testing makes it harder to get assistance,
we say it makes it easier to get a job and helps people live full and
meaningful lives. And that job provides many benefits to society
as a whole. We have worked to address drug abuse addiction issues
without necessitating mass incarceration.
Our message of straightforward government reform resonates
with Americans across the country because reform has but one
goal: effecting positive change. Positive change also comes with
the implementation of new and effective technology to make our
streets safer from violence. Effective, efficient, and accountable
government is the floor, not the ceiling. We must move forward
with greater expectations working to improve the prosperity of our
neighborhoods, so more people contribute and care for themselves
and for others. It is our choice to lead. We must answer the call.
We can increase the public safety by continuing our efforts. Since
I took office as Governor of the state of Wisconsin, employment
has reached a record high with fewer people suffering from



unemployment. Today, in Wisconsin, more students are graduating
and state budgets are based on the public’s ability to pay and not
government’s hunger to spend. We have done all this in the hope
that we can decrease government dependence, discourage criminal
behavior, and put power back into the hands of the citizens.

Hon. James Webb
Former United States Senator for Virginia

“Now is the time to revive the push for a national
commission to address the overall issue of mass
incarceration. A national commission is needed to
conduct a top-to-bottom review of our nation’s
entire justice system — federal and state —
ultimately providing Congress and state governments
with specific, concrete recommendations to cut the
national prison population.”


n addition to my public service, I have spent much of my life as an
author and a journalist. Thirty years ago, I became the first American
journalist to report from inside the Japanese prison system. It was when
I was investigating the Japanese criminal justice system that I became
aware of the systemic difficulties and challenges we face here at home. In
1984, Japan had a population half the size of ours and was incarcerating
50,000 prisoners, compared with 580,000 in the United States. As
shocking as that disparity was, the difference between the countries
now is even more astounding — and profoundly disturbing. Japan’s
total prison population has now increased to 67,000, while ours has
quadrupled to 2.3 million.1
The incarceration rate in the United States, the world’s greatest
democracy, is five times higher than the average incarceration rate of
the rest of the world.2 With so many of our citizens in prison compared
with the rest of the world, there are only two possibilities: Either we



are home to the most evil people on earth or we are doing something
dramatically wrong in how we approach criminal justice. Obviously, the
answer is the latter.
Despite burgeoning prisoner populations, our communities are not
safer and we are still not bringing to justice many of the most hardened
criminals who perpetuate violence and criminality as a way of life. It is in
the interest of every American that we thoroughly reexamine our entire
criminal justice system. I am convinced that the most appropriate way to
conduct this examination is through a Presidential commission, tasked
to bring forth specific findings and recommendations for Congress to
consider and, where appropriate, enact. We need a holistic plan to identify
and solve the entire range of problems plaguing our system, from point of
apprehension to sentencing, prison administration, and reentry programs
for those who wish to become full, participating members of our society.
The “elephant in the bedroom” in many discussions about the justice
system is the sharp increase in drug-related incarceration over the past
three decades. In 1980, we had 41,000 drug offenders in prison; today
we have almost 300,000.3 This is an increase of over 600 percent and a
significant proportion of this population is incarcerated for possession or
nonviolent offenses stemming from drug addiction and related behavioral
issues. Yet locking up more of these offenders has done nothing to break
up the power of the multibillion-dollar illegal drug trade. Nor has it
brought about a reduction in the amounts of the more dangerous drugs
— such as cocaine, heroin, and methamphetamines — that are reaching
our citizens.
Justice statistics also show that about half of all the drug arrests in
our country were for marijuana offenses. Additionally, nearly half of the
people in state prisons are serving time for a nonviolent or drug offense.
And although experts have found little statistical difference among racial
groups regarding actual drug use, African Americans — who make up
about 13 percent of the total U.S. population — accounted for 30 percent
of those arrested on drug charges, and 38 percent of all drug offenders
sentenced to prison.4
We need smarter ways of dealing with people at apprehension, and
even whether you decide to arrest. We need to consider the types of



courts drug offenders go into — drug courts, as opposed to regular
courts — how long you sentence them, and how you get them ready
to return home. It is a sickness and we have got to treat it that way. We
must treat the people who need to be treated and incarcerate the people
who need to be incarcerated.
At the same time we are putting too many of the wrong people in
prison. This does not bring safety to our communities. While heavily
focused on nonviolent offenders, law enforcement has been distracted
from pursuing more serious and violent crimes.
While I was Senator, following more than two years of hearings,
conferences, and meetings, I introduced the National Criminal Justice
Commission Act of 2009 which would have paved the way toward
systemic reform.5 The Act garnered wide support from across the political
and philosophical spectrum. My staff and I engaged with more than
100 organizations and associations, representing the entire gamut of
prosecutors, judges, defense lawyers, former offenders, advocacy groups,
think tanks, victims’ rights organizations, academics, prisoners, and law
enforcement on the street. Despite the energy behind this legislation,
and despite gaining a strong, 57-vote majority, it was filibustered in the
Senate, causing even the National Review to lament the “insanity” of the
Republican failure to allow the bill to pass through Congress.
We lost the legislation, but we did win the war of bringing the issue
of criminal justice reform out of the political shadows. Six years after the
introduction of this bill, bipartisan support for criminal justice reform
has only increased. Last year, Congress created the “Chuck Colson Task
Force” to alleviate overcrowding in federal prisons.6 President Obama
created the “Task Force on 21st Century Policing” to recommend ways
to repair police community relations.7 These commissions are steps
toward reforms, but they do not address our larger, systemic national
criminal justice problems.
Now is the time to revive the push for a national commission to
address the overall issue of mass incarceration. Policing and the growth
of the federal prison population are only parts of our nation’s larger
problem with prisons. A national commission is needed to conduct
a top-to-bottom review of our nation’s entire justice system — federal



and state — ultimately providing Congress and state governments with
specific, concrete recommendations to cut the national prison population.
Only an independent, outside commission focusing on the larger national
problem of mass incarceration can bring us complete findings necessary to
restructure the criminal justice system in the United States.
This commission must be properly structured and charged. It must
be shaped with bipartisan balance. The President would nominate the
commission’s leader. The Majority Leaders and Minority Leaders of both
houses of Congress would appoint two members each, in consultation with
their respective congressional judiciary committees. The Republican and
Democratic Governors Associations would each nominate one member.
This commission would bring together a group of federal, state, and
local experts with credibility and with wide experience to examine specific
findings and to come up with bold, systemic policy recommendations.
The commission would review all areas of federal and state criminal
justice practices and make specific findings, including an examination of:
The reasons for the increase in the U.S. incarceration rate
compared to historical standards.
Incarceration and other policies in similar democratic,
Western countries.
Prison administration policies, including the availability of
pre-employment training programs and career progression for
guards and prison administrators.
Costs of current incarceration policies at the federal, state,
and local levels.
The impact of gang activities, including foreign syndicates.
Drug policy and its impact on incarceration, crime, and
Policies as they relate to the mentally ill.
The historical role of the military in crime prevention and
border security.
These issues need to be examined carefully and comprehensively by
a group of people who are going to do more than sit around and simply



remonstrate about the problem. The commission’s recommendations
must result in action.
The first step for the commission would be to give us factual findings,
and then from those findings, give us recommendations for policy changes.
The recommendations would address the same issues above: how we can
refocus our incarceration policies; how we can work toward properly
reducing the incarceration rate in safe, fair, and cost-effective ways that
still protect our communities; how we should address the issue of prison
violence in all forms; how we can improve prison administration; how we
can establish meaningful reentry programs.
Though I leave it to the commission to decide what recommendations
are best for this country, I believe they should include graduated sanctions
for individuals on probation and parole, work-release programs, education
opportunities, the introduction of risk assessment tools for prisoners
preparing to reenter society, fewer arrests, and shorter sentences for
nonviolent drug users.
Without question, it is in the national interest that we bring violent
offenders and career criminals to justice. I do not suggest that we let
dangerous or incorrigible people go free, simply that we determine how
best to structure our criminal justice system so that it is fair, appropriate
and — above all — effective. No American neighborhood is completely
safe from the intersection of these problems.
There are better ways to keep our communities safe than simply
incarcerating people. Fixing our system will require us to reexamine
who goes to prison, for how long, and how we address the long-term
consequences of their incarceration. As a nation, we can spend our money
more effectively, reduce crime and violence, reduce the prison population,
and create a fairer system. Our failure to address these problems cuts
against the notion that we are a society founded on fundamental fairness.
It is time to take stock of what is broken and what works and modify our
criminal justice policies accordingly. The creation of a National Criminal
Justice Commission is still the best way to do this.8


Inimai Chettiar
Director, Justice Program
Brennan Center for Justice at New York University School of Law*

“To end mass incarceration, the American people
and their top leaders must also embrace the cause.
We need a national conversation, led by national
voices, offering national solutions. Those ideas must
be big and aim high. Three ideas to start: eliminate
incarceration for low-level offenses, except in
exceptional circumstances; reduce mandatory
sentences set by law; and create financial incentives
to steer toward reducing both crime
and incarceration.”


ass incarceration threatens American democracy. Hiding in plain
sight, it drives economic inequality, racial injustice, and poverty.
It will ultimately make it harder to compete in the global economy.
The United States has 5 percent of the world’s population, yet it
has 25 percent of the world’s prisoners. More black men serve time in
our correctional system today than were held in slavery in 1850. If the
prison population were a state, it would be the 36th largest — bigger
than Delaware, Vermont, and Wyoming combined.1
Our current penal policies do not work. Mass incarceration is
not only unnecessary to keep down crime but also ineffective at it.
Increasing incarceration offers rapidly diminishing returns. Extensive
* Abigail Finkelman and Nicole Fortier contributed to this essay.



research shows incarceration can increase future crime in some cases, as
prison often acts as a “crime school.” 2
Mass incarceration has startling harmful effects. The criminal justice
system costs taxpayers $260 billion a year. Spending grew almost 400
percent over the past 30 years. With so many withdrawn from society,
and returning stigmatized as “convicts,” the criminal justice system
drains overall economic growth. Best estimates suggest it contributed
to as much as 20 percent of the U.S. poverty rate. Nearly two-thirds
of the 600,000 people who exit prisons each year face long-term
unemployment.3 The social and human costs are even higher.
How did we get here? In response to the crime wave of the 1980s,
politicians vied to be the most punitive — from the 1977 New York City
mayoral election, which improbably turned on the issue of the death
penalty (over which a mayor has no power), to the 1994 referendum
that passed “three-strikes-and-you’re-out” in California.
But times have changed. Reducing mass incarceration is now one of
the few issues on which the left and right are coming to agree. Notably,
Republicans are leading the charge, while Democrats largely play catch
up. Lawmakers approach the issue from different perspectives. Their
concerns vary from spiraling prison costs to intrusion of big government,
from religious redemption to civil rights concerns.
We now know that we can reduce crime and reduce incarceration.
States like Texas, New York, Georgia, and California have changed their
laws to do just that.4 For the first time in 40 years, crime and incarceration
fell nationwide.5 These state reforms provide modest fixes and shortterm relief. Local grassroots and state advocacy groups were vital to these
wins, working tirelessly to build momentum. Although these reforms are
heartening, they are not the wholesale systemic changes needed to strike a
blow to mass incarceration.
To end mass incarceration, the American people and their top leaders
must also embrace the cause. We need a national conversation, led by
national voices, offering national solutions. Those ideas must be big and
aim high.
But, since criminal justice is largely a province of states and cities,
how can there be “national” solutions? Each state struggles with the



same challenges: too many arrests, prosecutions, pretrial detentions,
prison sentences, and probation and parole revocations. Trends of
overcriminalization, overincarceration, and selective enforcement play
out across the country, with some variation. It is a false choice to debate
whether we need powerful, state-focused efforts or a vibrant, national
conversation. A change in national attitude will create the space for
bolder state reforms.
This essay offers three national solutions, executed through a mix of
federal, state, and local reforms. Though a President or other national
leader may not have legal authority to enact all of them, they can and
should be champions for these changes.
Eliminate incarceration by law for most low-level offenses,
except in extraordinary circumstances.
Incarceration is the punishment of first resort for too many offenses.
Half of state prisoners are behind bars for nonviolent crimes; half of
federal prisoners are locked up for drug crimes. Roughly one in three new
prison admissions are for violations of parole or probation conditions.
And 6 out of 10 local jail inmates await trial, though research suggests
that as many as 80 percent could be released with little or no threat to
public safety. All told, as many as 1.07 million people may be behind
bars without a public safety rationale.6
Many states increased the discretion of judges so they can decide
— or a prosecutor or parole officer can recommend — whether to send
a defendant to prison or to an alternative punishment. However, prison
is still a legally permissible option for low-level crimes.7
But we should ask: Why do our laws allow prison — the harshest
punishment available short of execution — for many of these crimes in
the first place? Of course, those who commit crimes should be punished
(and some low-level offenders may need prison), but generally such severe
punishment simply is not warranted. Ample research demonstrates that
alternatives to incarceration in such cases often reduce recidivism and
are cheaper than prison time.8



We can safely reduce the ranks of the incarcerated in several ways:
Change criminal laws to remove prison as an option for most lowlevel, nonviolent, or non-serious crimes — except in extraordinary
circumstances. More suitable punishments include: probation,
community service, electronic monitoring, or psychiatric or
medical treatment. This holds especially true for an array of drug
crimes. Many argue for drug legalization. Many argue against
it. The same neighborhoods where drugs wreaked havoc in the
1980s are now devastated by mass incarceration. It remains
unclear whether drug legalization would be helpful or harmful
to communities of color. However, one fact is clear: It is neither
effective nor cheap to throw a person into prison for years for
possessing a joint or a bag of cocaine.9
Make treatment, not prison, the standard response for people with
mental health or addiction issues. Half of prisoners suffer from
mental health or drug addiction issues. There are more Americans
with mental illness in prisons than in hospitals. Prison does not treat
health issues; it makes them worse.10 Treatment will help people
get back on their feet and become productive members of society.
(Of course, they should also be supervised; and incarceration may
be needed for some due to the nature of the crime or threat posed.)
End incarceration as a sanction for technical violations of terms of parole
and probation. Texas found a way to safely curb these revocations.
In 2007, the state introduced a system of progressively stronger
punishments for violations. It invested $241 million in alternatives,
including treatment. By 2015, the state cut revocations to prison
by 40 percent. It also saved $2 billion, closed three prisons, and
dropped its crime rate to the lowest since 1968.11
Detain defendants who await trial based on dangerousness, not
wealth. Last year, New Jersey overhauled its bail process: the
state will now release defendants charged with low-level crimes



under conditions that protect public safety, while detaining
those who pose risks of violence. These defendants are required
to remain in the custody of a guardian, maintain a job or school
enrollment, report to a law enforcement officer, undergo drug or
mental health treatment, or submit to electronic monitoring.12
Other states use social science tools to assess danger and flight
risks to make detention decisions.13
Reduce mandatory sentences set by law.
Sentencing laws must change. Mandatory minimum, “three strikes
you’re out,” and “truth-in-sentencing” regimes set overly-punitive
sentences for defendants. Not only are people now incarcerated at higher
rates than ever before, they are incarcerated for longer. According to the
Pew Center, the average prison stay increased 36 percent since 1990.14
Lawmakers enacted these regimes partly out of a concern for
uniformity and equal treatment. If states simply eliminate these laws
and return discretion entirely to judges, they could create the very
problems of inequity some of these laws were intended to fix.
Instead, we should reduce the mandatory minimum sentences set
by law, and reduce the maximum sentences ranges set by codes. Sentence
lengths are often wildly disproportionate to the crimes committed. And
research shows that longer sentences, beyond a certain point, do not
decrease recidivism.15
Create financial incentives to steer toward curbing crime
and reducing mass incarceration.
A web of perverse financial incentives drives mass incarceration. For
example, police departments often report their “success” by tallying the
number of arrests and drug seizures. Prosecutors are often hailed when
they increase the number of convictions and prison sentences. These
counts are reported as part of the budget process. And prisons — public
and private — get more funds when their populations swell.16



Instead, a new way forward, termed “Success-Oriented Funding,”
prescribes that government should fund what works. Government should
closely tie the hundreds of billions of dollars spent on criminal justice
to the twin goals of reducing crime and incarceration. Harnessing the
power of incentives, this approach can be implemented at the federal,
state, and local levels.17
The federal government has been one of the largest instigators of
perverse incentives. For example, the 1994 Crime Bill included $9 billion
to encourage states to drastically limit parole eligibility. Unsurprisingly,
20 states promptly enacted such laws, yielding a dramatic rise in
incarceration.18 Today, the federal government continues to subsidize
state and local criminal justice costs to the tune of $3.8 billion annually.19
One basic, yet effective, step: The federal government should provide
funds to states that cut both crime and imprisonment. California,
Texas, and other states succeeded by changing financial incentives. They
awarded additional funds to local probation departments that reduced
the number of people revoked to prison. In its first year alone, California
reduced revocations to prison by 23 percent, saving the state nearly $90
million.20 In one year, Texas reduced the number of people revoked to
prison by 12 percent.21 In both states, crime continued to drop.
A federal program to reward states that reduce crime and
incarceration would spur vital change. States should also implement
similar financial incentives for budgets to police, prosecutors, jails,
prisons, and parole and probation offices. Success-Oriented Funding
steers decision making toward broad goals, while allowing local officials
the flexibility to decide how to achieve these outcomes.
What political strategy can achieve the change needed? A strategy
that firmly puts mass incarceration at the forefront of a national political
converation. One in which the President, U.S. Senators, governors,
mayors, police chiefs, civil rights leaders, and business heads call for
change. One that puts forward big solutions that can also secure political
support. As Abraham Lincoln said of the debate over slavery: “Public



sentiment is everything. With public sentiment, nothing can fail.
Without it, nothing can succeed.”22
Mass incarceration — the fundamental civil rights issue of our
time — will only end when there is a collective American will do so.
The challenge at hand is to find bold, practical ways to cut the prison
population while keeping the public safe. Three ideas to start: eliminate
incarceration for low-level offenses, except in exceptional circumstances;
reduce mandatory sentences set by law; and create financial incentives to
steer toward reducing crime and incarceration.
More broadly, this book provides an array of additional solutions
from our nation’s leading bipartisan public figures and criminal justice
experts to reduce mass incarceration. It aims to ignite a conversation that
national leaders will join, support, and encourage. Now is the moment
to push forward to revitalize our justice system and our democracy.



1 The U.S. represents 5% of the world’s population and approximately 25% of its prison population. See Roy Walmsley, International Centre for Prison Studies, World Prison
Population List 3 (10th ed. 2013), available at (providing the national population for the
United States as 5% of the world population and the prison population as 22% of the world’s
incarcerated population).
2 UCR Data Online, Uniform Crime Reporting Statistics, (providing crime statistics from 1960 to 2013).


1 See Roy Walmsley, International Centre for Prison Studies, World Prison Population
List 3 (10th ed. 2013) (providing the national population for the United States as 5% of the
world population and the prison population as 22% of the world’s incarcerated population);
Roy Walmsley, International Centre for Prison Studies, World Female Imprisonment
List 1 (2nd ed. 2012), available at
resources/downloads/wfil_2nd_edition.pdf (showing that nearly one third of incarcerated
women worldwide were in the United States in 2013).
2 Violent and property crime rates in 2012 were 387 and 2,860 per 100,000, respectively. The
last time the violent crime rate was that low was in 1970, when it was 364, and the last time
the property crime rate was that low was in 1967, when it was 2,737. See FBI, Uniform Crime
Reports as prepared by the National Archive of Criminal Justice Data, http://www.
3 From 2008 to 2012, numbers of crime declined by 8.8% and numbers of incarceration declined
by 3.2%. In that same time, the crime rate declined by 11.6% and the incarceration rate declined
by 8%. See Lauren-Brooke Eisen, et al., Brennan Ctr. for Justice, Federal Prosecution
for the 21st Century 56 n.21 (2014), available at
federal-prosecution-21st-century; Thomas P. Bonczar, Bureau of Justice Statistics,
Prevalence of Imprisonment in the U.S.. Population, 1974-2001 1 (2003), available at (finding that about 1 in 3 black males are
expected to go to prison during their lifetime, if current incarceration rates remain unchanged).




4 See Bureau of Justice Statistics, Justice Expenditure and Employment Extracts: 1984,
1985, and 1986 156 (1991), available at
(finding that in 1986 the justice system spent $53.5 billion); see Tracey Kyckelhahn & Tara
Martin, Bureau of Justice Statistics, Justice Expenditure and Employment Extracts,
2010 — Preliminary (2013), available at The
Brennan Center estimates the $260.5 billion number by adding the estimated judicial and legal
costs ($56.1 billion), police protection costs ($124.2 billion), and corrections costs ($80 billion). See
E. Ann Carson, Bureau of Justice Statistics, Prisoners in 2013 10-11 tbl.9 (2014) (showing
that 636,715 prisoners were released in 2012 and 623,337 in 2013); Joan Petersilia, Nat’l Inst.
Of Justice, When Prisoners Return to the Community: Political, Economic, and Social Consequences,
Sentencing & Corrections: Issues for the 21st Century 3 (2000), available at https://www. (finding that one year after release as many as 60% of former
inmates are not employed in the legitimate labor market); Robert DeFine & Lance Hannon, The
Impact of Mass Incarceration on Poverty, 49 Crime & Delinquency 581 (2013) (indicating that had
mass incarceration not occurred, poverty would have decreased by more than 20%, or about 2.8
percentage points).
5 See Lauren E. Glaze & Danielle Kaeble, Bureau of Justice Statistics, Correctional
Populations in the United States, 2013 3 tbl.1 (2014), available at
pub/pdf/cpus13.pdf (showing that in 2013 there were 2,220,330 persons incarcerated in the United
States in 2013 and 6,899,000 in the entire correctional population); see U.S. Census Bureau,
Annual Estimates of the Resident Population: April 1, 2010 to July 1, 2014 (2015), available
at (showing that as of July 1,
2014 the estimated population of the 35th largest state, Nevada, was 2,839,099 and the population
of the 36th largest state, New Mexico, was 2,085,572; the populations of Delaware, Vermont, and
Wyoming combined equaled 2,146, 329; the population of the 13th largest state, Washington, was
7,061,530 and the population of the 14th largest state, Massachusetts, was 6,745,408).


1 This essay is adapted from a speech originally delivered by Vice President Biden to the
Organization of Minority Women at the Martin Luther King Day Breakfast in Wilmington,
Del., on January 19, 2015.
2 Martin Luther King, Jr., Stride Toward Freedom: The Montgomery Story (1958).
3 Charlie Rose: Bill Bratton (PBS television broadcast Jan. 13, 2015)
4 Violent Crime Control and Law Enforcement Act, H.R. 3355, Pub.L. 103–322 (1994).
5 From 1998, the federal government has decreased funding for the COPS program by
approximately 87%. In 1998, the federal government funded the COPS program at $1.4
billion. Nathan James, Congressional Research Service, Community Oriented Policing
Services (COPS): Background Legislation, and Funding 3 (2011), available at http://fas.
org/sgp/crs/misc/RL33308.pdf. In 2012, the federal government funded the COPS program at
$198.5 million. U.S. Dep’t of Justice, Community Oriented Policing Services (COPS):
FY 2013 Budget Request At A Glance 1 (2013), available at
6 Martin Luther King, Jr., Remaining Awake Through a Great Revolution (Mar. 31, 1968).




1 See Roy Walmsley, International Centre for Prison Studies, World Prison Population
List 3 (10th ed. 2013) (providing national and prison populations for the United States, compared
to other countries); Bureau of Justice Statistics, Prisoners, 1925-1981 2 tbl.1 (1982), available
at (reporting 196,429 prisoners in 1970); E. Ann
Carson, Bureau of Justice Statistics, Prisoners in 2013 16 tbl.14 (2014) (reporting 210,200
prisoners incarcerated for drug offenses at year-end 2012).
2 U.S. Sentencing Commission, Quick Facts: Federal Offenders in Prison 1 (2015), available
3 See Bureau of Justice Statistics, Justice Expenditure and Employment Extracts: 1980
and 1981 1 tbl. a (1985), available at
pdf (providing corrections expenditure in 1980); see also 1980 Fast Facts, U.S. Census, https:// (providing the
U.S. population in 1980); see also Tracey Kyckelhahn, Bureau of Justice Statistics, Justice
Expenditure and Employment Extracts, 2012 — Preliminary tbl. 8 (2015), available at (providing corrections expenditure and
the U.S. population in 2012).
4 See American Bar Association, Nat’l Inventory of the Collateral Consequences of
Conviction (2014), available at
5 Lindsay M. Hayes, Dep’t of Justice Office of Juvenile Justice and Delinquency
Prevention, Juvenile Suicide in Confinement: A National Survey 27 (2009), available
at (finding 62% of victims had a history of
being placed in solitary confinement).
6 See, e.g., Oliver Roeder et al., Brennan Ctr. for Justice, What Caused the Crime
Decline? (2015), available at (finding that incarceration had a minimal role in reducing crime from 2000-2013).
Violent crime declined by 50% between 1990 and 2013, while property crime declined by
46%. Id. at 7.
7 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of
Colorblindness (2011); Nat’l Research Council, The Growth of Incarceration in
the United States 60 (2014) (finding no statistically significant difference in drug usage
between black and whites); Lawrence A. Greenfeld & Steven K. Smith, Bureau Of
Justice Statistics, American Indians And Crime viii (1999), available at
content/pub/pdf/aic.pdf (finding that American Indians have a rate of prison incarceration
about 38% higher than the national rate); USA Quick Facts, U.S. Census Bureau, http:// (providing U.S. population statistics by race);
Sentencing Project, Facts About Prisons and People in Prison (2014), available at (providing
racial and ethnic composition of incarcerated population); Interactive Map, Sentencing
Project, (providing rates of incarceration).
8 REDEEM Act, S. 675, 114th Cong. (2015).
9 Smarter Sentencing Act of 2015, S. 502, 114th Cong. (2015).




1 See Cornell William Brooks, Law Enforcement vs. Black and Brown Americans, NY Daily News, Aug. 6, 2014, available at; see also New York State Office of the
Attorney General, A Report on Arrests Arising from the New York City Police
Department’s Stop-And-Frisk Practices 1, 3, 5, available at
OAG_REPORT_ON_SQF_PRACTICES_NOV_2013.pdf (finding that 0.1% of all NYPD
stops led to a gun conviction, less than 3% of stops resulted in a finding of guilt, 9 out of 10
were black or Latino, and the NYPD conducted almost 700,000 stops in 2011); NYCLU,
Stop-and-Frisk 2011: NYCLU Briefing 7 (2012), available at
publications/NYCLU_2011_Stop-and-Frisk_Report.pdf (finding that young black and Latino
men ages 14 and 24 made up 4.7% of the city’s population in 2011 and 42% of those targeted
by stop-and-frisk that year).
2 Lauren E. Glaze & Danielle Kaeble, Bureau of Justice Statistics, Correctional Populations in the United States 2013 2 tbl. 1 (2014) (providing incarceration population
total of 2.22 million people in 2012); USA Quick Facts, U.S. Census Bureau, (providing U.S. population statistics by race); E. Ann
Carson, Bureau of Justice Statistics, Prisoners in 2013 3 tbl.2 (2014) (providing data on
incarcerated population by race); see also Christy Visher et al, Urban Institute, Employment
after Prison: A Longitudinal Study of Releasees in Three States 1-2 (2008), available
at (finding that 8
months after release, only 45% of participating released prisoners were employed).
3 The National Employment Law Project found in 2011 that 1 in 4 adults have criminal records
in the U.S., which today accounts for 70 million people. See Michelle N. Rodriguez & Maurice Emsellem, National Employment Law Project, 65 Million ‘Need Not Apply’: The
Case for Reforming Criminal Background Checks for Employment 27, n. 2 (2011),
available at
pdf; Lauren E. Glaze & Danielle Kaeble, Bureau of Justice Statistics, Correctional
Populations in the United States 2013 2 tbl. 1 (2014) (providing incarceration population
total as 2.22 million people in 2012).
4 Devah Pager, et. al., Sequencing Disadvantage: Barriers to Employment Facing Young Black and
White Men with Criminal Records, 623 Annals Am. Acad. Pol. & Soc. Sci. 199 (2009), available
at (finding that a
criminal record reduces the likelihood of a callback by 50 percent for white men and 60 percent
for black men).
5 Bruce Western, Punishment and Inequality in America 126 (2006) (finding that each male
prisoner can expect to see his earnings reduced by about $100,000 through his prime-earning
years, after incarceration); John Schmitt & Kris Warner, Ctr. for Econ. & Pol’y Research,
Ex-offenders and the Labor Market 1, 14 (2010), available at (estimating that incarceration lowered total employment by 0.8-0.9 percentage points, male employment by 1.5-1.7 percentage points, employment of men with less than a high school education by up to 6.9 percentage points, and the
employment reductions cost the U.S. economy over $57 billion in lost output).
6 William Julius Wilson, When Work Disappears: The World of the New Urban Poor
72 (1996).



7 About, Ban the Box Campaign, (describing how the federal government strengthened hiring guidelines in April 2012); Pam Fessler, How Banning One
Question Could Help Ex-Offenders Land A Job, NPR, July 14, 2014, available at http://www.npr.
(Wal-Mart); Exec. Order No. 13684, 79 Fed. Reg. 76,865 (Dec. 18, 2014) (establishing President’s Task Force on 21st Century Policing); Ga. Exec. Order (February 23, 2015), available
NAACP, NAACP Victory: Ban the Box Passes in Georgia, available at
news/entry/naacp-victory-ban-the-box-passes-in-georgia (NAACP campaign).
8 Portions of this essay draw on material from Mr. Brooks’s previous articles. See Cornell William
Brooks, Undaunted, We March Forward to Demand Police Reforms, NewsDay, Dec. 11, 2014,
available at; Cornell William Brooks, Law Enforcement vs.
Black And Brown Americans, N. Y. Daily News, Aug. 9, 2014, available at; Cornell William
Brooks, Opinion: Too Big For the Box -- Our Economy, Character, and Crime, Sept. 3, 2013, N.J.
Spotlight, available at


1 Brendan McGrath, Hamilton Men Allegedly Point Gun at Baby During Trenton Home Invasion, Police
Say, Times of Trenton, July 14, 2014, available at
2 Michael Phillis, At Christie’s Urging, Assembly to Vote Monday on Bail Reform,, July
31, 2014, available at
3 Thomas H. Cohen, Bureau of Justice Statistics, Pretrial Release of Felony Defendants in
State Courts 7 (2007), available at
4 S.B. 946, 216th Leg., Reg. Sess. (N.J. 2014).
5 Sen. Con. Res. 128, 216th Leg. (N.J. 2014).
6 See Donna Simon, Editorial, NJ Bail Reform Ballot Question — A Definite ‘Yes’ Vote, Times of Trenton, Sept. 16, 2014, available at (explaining that without the new bail reform to amend the state constitution, all persons charged with a crime were entitled to release on
bail, regardless of prior records or the threat he or she posed).
7 The bail reform question passed with nearly 62 percent of voters backing the measure. New
Jersey Voters Approve Dedicated Funding for Open Spaces, Pass Bail Reform, N.J. Spotlight, Nov.
5, 2014, available at
8 S.B. 946, 216th Leg., Reg. Sess. (N.J. 2014).
9 S.B. 881, 215th Leg., Reg. Sess. (N.J. 2012).
10 A.B. 1999, 216th Leg., Reg. Sess. (N.J. 2014).




1 For more on Secretary Clinton’s thoughts on the life and legacy of Robert F. Kennedy, see her
speech to the Robert F. Kennedy Center for Justice and Human Rights “Ripple of Hope” Gala
in New York City on Dec. 16, 2014.
2 See Roy Walmsley, International Centre for Prison Studies, World Prison Population List 3 (10th ed. 2013) (providing national and prison populations for the United States,
compared to other countries).
3 Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007, S. 1711, 110th Cong.
(2007) (amending the Controlled Substances Act and the Controlled Substances Import and
Export Act to eliminate the sentencing disparity between crack and powder cocaine and eliminating the five-year mandatory minimum sentence for first-time crack possession); End Racial Profiling Act of 2007, S. 2481, 110th Cong. (2007) (prohibiting law enforcement from
engaging in racial profiling); COPS Improvements Act of 2007, S. 368, 110th Cong. (2007)
(expanding the Attorney General’s authority to make grants for COPS and COPS ON THE
BEAT programs).
4 Press Release, Hillary Clinton, Hillary Clinton Sets Goal Of Cutting Murder Rate In Half (Apr.
11, 2008), available at


1 Lawrence M. Friedman, A History of American Law 280 (2nd ed. 1985).
2 Gary Fields & John R. Emshwiller, Many Failed Efforts to Count Nation’s Federal Criminal Laws,
Wall St. J., July 23, 2011, available at
319804576389601079728920 (finding that there are about 3,000 federal criminal offenses);
Paul J. Larkin, Jr., Public Choice Theory and Overcriminalization, 36 Harv. J.L. & Pub. Pol’y
725 — 729 (Spring 2013) (on the frequency with which Congress created new crimes and on
the inclusion of regulations enforceable in criminal prosecution when counting the number of
criminal offenses).
3 Paul J. Larkin, Jr., Public Choice Theory and Overcriminalization, 36 Harv. J.L. & Pub. Pol’y
759, n. 193 (2013).
4 See U.S. Gov’t Accountability Office, GAO-12-743, Growing Inmate Crowding Negatively Affects Inmates, Staff, and Infrastructure (2012) (regarding the drastic increase in
BOP prisons since the late 1980s); Rough Justice in America: Too Many Laws, Too Many Prisoners, The Economist, July 22, 2010, available at
(regarding the increased number of drug offenders in federal and state prisons); Inmate Statistics: Offenses, Fed. Bureau of Prisons,
offenses.jsp (regarding current percentages of inmates incarcerated for drug offenses).
5 Smarter Sentencing Act of 2015, S. 502, 114th Cong. (2015).
6 Jed S. Rakoff, Why Innocent People Plead Guilty, The N.Y. Rev. of Books, Nov. 20, 2014,
available at
7 Id.
8 Military Justice Improvement Act of 2013, S. 967, 113th Cong. (2013).




1 Sentencing Project, Fact Sheet: Trends in U.S. Corrections 1 (2014), available at
(stating that there has been a 500 percent increase in the population in U.S. jails and prisons
in the last forty years); Roy Walmsley, International Centre for Prison Studies, World
Prison Population List 3 (10th ed. 2013) (showing the United States has 22% of the world’s
incarcerated population); Amanda Bailey & Joseph M. Hayes, Pub. Pol’y Inst. of Cal., Who’s
in Prison?: The Changing Demographics of Incarceration, 8 Cal. Counts 1 (2006), available at (stating that the state prison
population grew three times faster than the general adult population from 1990 to 2005).
2 Brown v. Plata, 131 S. Ct. 1910 (2011).
3 James Gilligan, Punishment Fails. Rehabilitation Works., N.Y. Times, Dec. 19, 2012, available at (stating that more than 90 percent of prisoners return to the
community within a few years).
4 Criminal Justice Realignment Act of 2011, A.B. 109, 2011 — 2012 Leg., Reg. Sess. (Ca. 2011).
5 See Brown v. Plata, 131 S. Ct. 1910 (ordering the reduction of California’s state prison population); see also Mac Taylor, Leg. Analyst’s Off., The 2013-14 Budget: Governor’s
Criminal Justice Proposals 7 fig. 3 (2013), available at
crim_justice/criminal-justice-proposals/criminal-justice-proposals-021513.aspx (showing state
criminal justice spending to be approximately $13 billion in 2011-12 and estimating similar
for 2012-13); see also California Dep’t of Corrections and Rehabilitation, 2011 Adult
Institutions Outcome Evaluation Report 12 (2011), available at
Adult_Research_Branch/Research_Documents/ARB_FY_0607_Recidivism_Report_(11-2311).pdf (showing total California three-year recidivism rates at 65.1%).
6 Press Release, Cal. Dep’t of Justice, Attorney General Kamala D. Harris Announces Los Angeles Recidivism Reduction Pilot Program (May 8, 2014), available at
7 See Offender Information Reports, California Dep’t of Corrections & Rehabilitation, (breaking down re-offense rates by year and offense type); see Jacquelyn
L. Rivers & Lenore Anderson, Bureau of Justice Assistance, Back on Track: A Problem-Solving Reentry Court (2009), available at (providing recidivism rates for Back on Track participants and comparing costs of
Back on Track, adjudication, and housing offenders); Press Release, Dep’t of Justice, California
Attorney General’s Office Awarded $750,000 to Fight Recidivism (Oct. 27, 2014), available at (quoting Attorney General Holder lauding Back on Track).
8 Press Release, Cal. Dep’t of Justice, Attorney General Kamal D. Harris Launches Initiative to
Reduce Recidivism in California (Nov. 20, 2013), available at
9 Cindy Chang, L.A. County Jail Launches Program to Keep Inmates from Coming Back, L.A.
Times, Mar. 11, 2015, available at



10 Press Release, Cal. Dep’t of Justice, Attorney General Kamala D. Harris Releases Proposed
Statewide Definition of Recidivism (Oct. 16, 2014), available at
11 For more on Attorney General Harris’s smart on crime views see Kamala Harris, Smart on
Crime (2009).


1 Tracey Kyckelhahn, Bureau of Justice Statistics, Justice Expenditure and Employment
Extracts, 2012 — Preliminary (2015) (showing FY 2012 state and federal corrections
and court expenditures); Notice, 79 Fed. Reg. 26996 (May 12, 2014), available at https:// (stating that the average annual cost for federal inmates in
FY 2012 was $29,291.25); Justice Pol’y Inst., The Cost of Confinement: Why Good
Juvenile Justice Policies Make Good Fiscal Sense 1, available at http://www.justicepolicy.
org/images/upload/09_05_rep_costsofconfinement_jj_ps.pdf (finding that states spend “about
$5.7 billion each year” on juvenile incarceration).
2 See Mike Huckabee, From Hope to Higher Ground: My Vision for Restoring America’s
Greatness 88 (2007).


1 U.S. Dep’t of Justice, Civil Rights Division, Investigation of the Ferguson Police Department (March 4, 2015), available at
2 See Dominique Lord & Srinivas Reddy Geedipally, Safety Effects of the Red-Light
Camera Enforcement Program in Chicago, Illinois (2014), available at
html (finding no safety benefit from cameras at intersections with few crashes with injuries); see
also Fran Spielman, Rahm: Red-Light Cameras Being Pulled from 25 More Intersections, Chicago
Sun-Times, Mar. 8, 2015, available at
rahm-red-light-cameras-pulled-25-intersections (finding the cameras bring in $70 million in yearly traffic ticket revenue).
3 The Federalist No. 62, at 381 (James Madison) (Clinton Rossiter ed., 1961).
4 Doris J. James & Lauren E. Glaze, Bureau of Justice Statistics, Mental Health Problems
of Prison and Jail Inmates 2 (2006), available at
pdf (finding that more than 20% of prison and jail inmates have major depressive or mania symptoms); Steven P. Segal, Civil Commitment Law, Mental Health Services, and US Homicide Rates,
47 Soc. Psychiatry & Psychiatric Epid. 1449 (2012), available at http://socialwelfare.berkeley.
and%20US%20Homicide%20Rates%20Soc%20Psych%20and%20Epi.pdf (finding that making treatment more accessible for people with untreated severe mental illness is associated with
1.42 less homicides per 100,000 people, over 1,000 fewer homicides every year); N.Y. Code
MHY. § 9.60.
5 Paul J. Larkin, Jr., Public Choice Theory and Overcriminalization, 36 Harv. J.L. & Pub. Pol’y 728729 (Spring 2013) (finding that the inclusion of regulations enforceable in criminal prosecutions
may lead to over 300,000 offenses).
6 H.B. 463, 2011 Ky. Acts ch. 2 (Ky. 2011), (approved by Governor on Mar. 3, 2011); S.B. 192,
2015 Ky. Acts ch. 66 (Ky. 2015), (approved by Governor on Mar. 25, 2015).



7 Amy Walters, Could This be the Solution to America’s Probation Problem?, Al Jazeera America,
Feb. 6, 2014, available at
8 Cost of Inmate in NYC Almost as Much as Ivy League Tuition, N.Y. Daily News, Sept. 30, 2013,
available at (finding New York City’s annual cost per inmate as $167,731 in 2012, roughly
the cost of four years of tuition at an Ivy League university).


1 Lauren E. Glaze & Danielle Kaeble, Bureau of Justice Statistics, Correctional Populations in the United States 2013 4 tbl. 2 (2014) (finding that 1 in 110 adult residents are incarcerated); Roy Walmsley, International Centre for Prison Studies, World Prison Population
List 3 (10th ed. 2013) (showing that, as of October 2013, the United States incarcerates 2.24
million prisoners, and comparing it to other countries).
2 Matthew R. Durose, et al., Bureau of Justice Statistics, Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 1 (2014) (finding that 67.8% of
prisoners were arrested within 3 years of release); see generally Ingrid A. Binswanger, Release from
Prison — A High Risk of Death for Former Inmates, 356 New Eng. J Med. (2007), available at (finding the risk of death among former inmates was over ten times that of other residents in the two weeks following release, and
drug overdose, cardiovascular disease, homicide, and suicide were the leading causes of death).
3 See, e.g., Anne Morrison Piehl, Manhattan Institute for Policy Research, Preparing
Prisoners for Employment: the Power of Small Rewards (2009), available at http://www. (endorsing programs like the Montgomery Pre-Release Center).


1 UCR Data Online, Uniform Crime Reporting Statistics,
cfm (showing that there were over 400 murders annually from 1989 to 1993 in Washington,
D.C., and fewer than 400 every year since 1994).
2 Id. (showing that in Washington, D.C., murders fell from 186 in 2008 to 88 in 2012, the last
time there were fewer than 90 murders in one year was 1961, there were 482 murders in 1991).


1 Compare Bureau of Justice Statistics, Prisoners 1925-1981 2 (1982) (reporting 195,429
prisoners in 1970) with E. Ann Carson, Bureau of Justice Statistics, Prisoners in 2013 1
(2014) (reporting 1.57 million prisoners in 2013).
2 See Marc Levin, Texas Public Policy Foundation, The Texas Model: Adult Corrections Reform, Lower Crime, Lower Costs 1 (2011), available at http://www.texaspolicy.



3 Omnibus Crime Reduction and Sentencing Reform Act, 2010 S.C. Acts 2004; Nancy LaVigne, et al., Urban Inst., South Carolina 3 (2014), available at (providing state results and savings after passing
criminal justice reform legislation); UCR Data Online, Uniform Crime Reporting Statistics, (providing crime statistics from 1960 to 2013).
4 See U.S. Dep’t of Justice, Federal Bureau of Prisons, Sourcebook of Criminal Justice
Statistics 2003, (total federal prison population in 1980 was 24,252); E. Ann Carson, Bureau of Justice Statistics, Prisoners in
2013 5 tbl.4 (2014) (total federal prisoners in 2013 was 195,098).
5 See U.S. Sentencing Commission, 2013 Sourcebook of Federal Sentencing Statistics
tbl. 12, 37, 39, 43, app. A (2014),
6 Tex. Gov. Code Ann. § 411.081(d); Ind. Code § 35-38-8.
7 See Inimai Chettiar, et al., Brennan Ctr. for Justice, Reforming Funding to Reduce
Mass Incarceration 3 (2013).


1 For more on Secretary Napolitano’s views on the topic, see her lecture presented at the University
of Georgia on October 27, 2014. Janet Napolitano, Anatomy of a Legal Decision (Oct. 27,
2014), available at
2 Up to 1.4 Million Unauthorized Immigrants Could Benefit from New Deportation, Pew Research
Ctr., June 15, 2012, available at
3 DREAM Act, S. 1291, 107th Cong. (2001).
4 A Review of the Department of Homeland Security’s Policies and Procedures for the Apprehension,
Detention, and Release of Non-Citizens Unlawfully Present in the United States: Hearing Before
the H. Comm. on the Judiciary, 114th Cong. 3 (2015) (statement of Stephen H. Legomsky
Washington University School of Law), available at
5 Heckler v. Chaney, 470 U.S. 821, 831 (1985).
6 Reno v. American-Arab Anti-Discrimination Committee, 525 US 471 (1999).
7 Memorandum, Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals
Who Came to the United States as Children (June 15, 2012), available at
8 Arizona v. United States, 132 S. Ct. 2492 4 (2012).
9 Crane v. Napolitano, 2013 WL 1744422 (Apr. 23, 2013).
10 Crane v. Napolitano, 2013 WL 8211660 (July 31, 2013).


1 See Amnesty International, Death Sentences and Executions in 2014 32-35 (2015), available at (showing
the top five executing countries in 2014 as China, Iran, Saudi Arabia, Iraq, and the United States
but noting that the authors believe North Korea to have executed at least 50 people, placing it
ahead of the United States, which executed 35).



2 FBI, Crime in the United States 2013 tbl. 5 (2014), available at
(providing crime rates in 2013 by state).
3 Crime Statistics: Baltimore City, Governor’s Office of Crime Control & Prevention, (showing that during
Gov. O’Malley’s term as Mayor, Baltimore’s violent crime rate went from 2,870 crimes per
100,00 people in 1999 to 1,638 crimes per 100,000 people in 2007); Crime Statistics: Maryland, Governor’s Office of Crime Control & Prevention, http://www.goccp.maryland.
gov/msac/crime-statistics.php (showing that the state violent crime rate was 477.2 crimes per
100,000 people and its murder rate 6.3 murders per 100,000 people in 2012, both the lowest
rates since at least 1975).
4 See Martin O’Malley, Why I Oppose the Death Penalty, Wash. Post, Feb. 21, 2007, available
html (saying that processing and imprisoning a death penalty defendant costs $400,000 more
than doing the same for someone with a life sentence); see also John Roman, et al., Urban
Inst., The Cost of the Death Penalty in Maryland 2-3 (2008), available at http://www. (finding that cases seeking the death penalty cost
taxpayers more than cases not seeking the death penalty and that there were 56 death penalties
carried out in Maryland from 1978 to 2008).
5 See Maryland Comm’n on Capital Punishment, Final Report to the General Assembly
44 (2008) (finding that the costs associated with the death penalty are substantially higher than
life in prison).
6 John J. Donohue, An Empirical Evaluation of the Connecticut Death Penalty System Since 1973:
Are There Unlawful Racial, Gender, and Geographic Disparities?, 11 J. Empir. Legal Stud. 649
(Dec. 2014) (stating that black defendants receive the death penalty three times as often as
white defendants when victims are white).
7 See NAACP Legal Defense and Education Fund, Inc., Death Row U.S.A.: Winter 2015
6 (2015), available at
(showing that since the reinstatement of the death penalty in 1976, 76% of the victims of
people executed were white); see Innocence: List of Those Freed From Death Row, Death Penalty
Information Center,
(showing that 68 death row inmates were exonerated from 2000-2014, an average of nearly 5
each year); see Maryland Comm’n on Capital Punishment, Final Report to the General
Assembly 18 (2008), available at (saying that the reversal rate for capital cases
in Maryland was 80% for the years 1995-2007).
8 Press Release, Off. of Gov. Martin O’Malley, Governor O’Malley Issues Statement on the Four
Remaining Inmates Sentenced to Death in Maryland (Dec. 31, 2014), available at http://web.



9 Jeffrey M. Jones, U.S. Death Penalty Support Lowest in More Than 40 Years, Gallup, Oct. 29,
2013, available at
(finding the lowest level of support for the death penalty Gallup has measured since 1972); see
Tracy L. Snell, Bureau of Justice Statistics, Capital Punishment, 2013 — Statistical
Tables 19 tbl.16 (2014) (listing numbers of prisoners sentenced to death each year from 19732013); Amnesty International, Death Sentences and Executions in 2014 12 (2015)
(finding that there were at least 72 new death sentences in the U.S. in 2014); see Jon Offredo,
Delaware Senate Passes Death Penalty Repeal Bill, News J., Apr. 3, 2015, available at http://www. (summarizing the successful vote in the Delaware Senate to repeal the death
penalty in the state and its implications); see Katharine Q. Seelye, Measure to Repeal Death Penalty
Fails by a Single Vote in New Hampshire, N.Y. Times, Apr. 17, 2014, available at http://www. (summarizing the vote in the New Hampshire Senate to repeal the death penalty in
the state); see H.B. 2129, 2015 Sess. (Ks. 2015) (bill abolishing the death penalty and creating the
crime of aggravated murder); Death Penalty Repeal — Substitution of Life Without the Possibility of Parole, S.B. 0276, 2013 Regular Sess. (Md. 2013); see Tracy L. Snell, Bureau of Justice
Statistics, Capital Punishment, 2013 — Statistical Tables 1 fig.1 (2014), available at http:// (listing the 18 jurisdictions without the death penalty;
Maryland is the only one located below the Mason-Dixon Line).


1 See Niels Lesniewski, Rand Paul to Quote MLK, John Lewis in SOTU Response, Roll Call, Jan. 20,
2015, available at;
Jeffrey Jones, Urban Blacks in U.S. Have Little Confidence in Police, Gallup, Dec. 8, 2014, available
at; Jonathan Rothwell, How the War on Drugs Damages Black Social Mobility, Brookings, Sept. 30, 2014, available
at; Editorial Board, End Mass Incarceration Now, N.Y. Times, May 24, 2014,
at SR10.
2 Abby Haglage, Life in Prison for Selling $20 of Weed, Daily Beast, Feb. 27, 2015, available at http:// (Winslow); Andrea Jones, The Nation’s Shame: The Injustice of Mandatory Minimums,
Rolling Stone, Oct. 7, 2014, available at (Angelos).
3 See, e.g., U.S. v. Angelos, 345 F. Supp. 2d 1227, 1230 (D. Utah 2004); Am.Civil Lib. Union, A
Living Death: Life Without Parole for Nonviolent Offenses 64 (2013), available at https:// (quoting U.S. District Judge Milton I.
4 Justice Safety Valve Act, S. 353/H.R. 706, 114th Cong. (2015).
5 Smarter Sentencing Act of 2015, S. 502, 114th Cong. (2015).
6 Merlene Davis, Ex-Felons Shouldn’t Be Made to Pay Their Whole Lives Long, What’s Up? with Merlene, Mar. 6, 2015, available at
7 Matthew Durose, et al., Bureau of Justice Statistics, Recidivism of Prisoners Released in
30 States in 2005: Patterns from 2005 to 2010 31 (2014).



8 See Christy Visher, et al., Urban Inst., Employment after Prison: A Longitudinal Study of
Releasees in Three States 1-2 (2008).
9 REDEEM Act, S. 675, 114th Cong. (2015).
10 See Felon Voting Rights, Nat’l Conference of State Legislatures, July 15, 2014, http://www.ncsl.
org/research/elections-and-campaigns/felon-voting-rights.aspx (citing to The Sentencing Project).
11 Civil Rights Restoration Act, S. 457, 114th Cong. (2015).
12 Radley Balko, Georgia Toddler Critically Injured by Police’s Flash Grenade, Wash. Post, May 30,
13 Am. Civil Lib. Union, War Comes Home: The Excessive Militarization of American
Policing 5 (2014), available at; Executive Office of the President, Review: Federal Support for Local Law Enforcement Equipment Acquisition 7 (2014), available at https://
14 Stop Militarizing Our Law Enforcement Act of 2015, H.R. 1232, 114th Cong. (2015).
15 Jeremy Roebuck, Homeowners Sue Philly D.A. Over Seizure of Property, Philly.Com, Aug. 14,
2014, available at
16 Fifth Amendment Integrity Restoration (FAIR) Act, S. 255, 114th Cong. (2015).


1 Morgan O. Reynolds, Nat’l Ctr. For Pol’y Analysis, Crime and Punishment in Texas
in the 1990s 11 (2000), available at (reporting 1990s
arrest trends by offense based on Texas Department of Public Safety Data); Am. Civil Lib.
Union, Smart Reform is Possible: States Reducing Incarceration Rates and Costs
While Protecting Communities 17 (2011), available at
smartreformispossible.pdf (reporting Texas spent $2.96 on corrections in 2007); Legis. Budget Bd., Adult and Juvenile Correctional Population Projections Fiscal Year 20072012, 80th Sess. 10 (2007), available at
2 Thomas Fomby & Vasudha Rangaprasad, Southern Methodist University, Divert Court:
Cost Benefit Analysis 2, 4 (2002), available at
3 Drug Courts Work, Nat’l Assoc. of Drug Court Professionals,
4 H.R. 1, 80th Leg., Reg. Sess. (Tex. 2007).
5 S.B. 166, 80th Leg., Reg. Sess. (Tex. 2007).
6 See Texas Governor Rick Perry Receives NADCP Award for Criminal Justice Reform, Nat’l Drug
Court Resource Center,
7 See Rick Perry, Final Address to a Joint Session of the Texas Legislature (Jan. 15, 2015).




Yates v. United States, 135 S.Ct. 1074 (2015).
18 U.S.C. § 1519 (2002).
Yates v. United States, 135 S.Ct. 1074, 1101 (2015).
See generally Harvey A. Silverglate, Three Felonies a Day: How the Feds Target the
Innocent (2009).
5 Press Release, U.S. Dep’t of Justice, Attorney General Prohibits Federal Agency Adoptions of
Assets Seized by State and Local Law Enforcement Agencies Except Where Needed to Protect
Public Safety (Jan. 16, 2015), available at


1 Chet Bowie, Bureau of Justice Statistics, Prisoners 1925-81 2 tbl.1 (1982), available
at (finding the 1972 prison population as
196,092); Bureau of Justice Statistics, The 1983 Jail Census 1 tbl. 1 (1984) (finding
141,588 people in jail in 1972); Lauren E. Glaze & Danielle Kaeble, Bureau of Justice
Statistics, Correctional Populations in the United States 2013 4 tbl. 2, (2014) (finding
2.22 million people incarcerated in 2013); Roy Walmsley, International Centre for Prison Studies, World Prison Population List (10th ed. 2013) (comparing U.S. incarceration
to other countries).
2 Thomas P. Bonczar, Bureau of Justice Statistics, Prevalence of Imprisonment in the
U.S. Population, 1974-2001 1 (2003).
3 Bureau of Justice Statistics, Corrections Statistical Analysis Tool (CSAT)—Prisoners, (showing the state prison population fell from 2010-2012
for the first time since BJS CSAT data collection started in 1978); Chet Bowie, Bureau of
Justice Statistics, Prisoners 1925-81 2 tbl.1 (1982), available at
pub/pdf/p2581.pdf (showing that the state prison population fell from 1971-1972).
4 E. Fuller Torrey, Treatment Advocacy Center, The Shortage of Public Hospital Beds
for Mentally Ill Persons, available at
documents/the_shortage_of_publichospital_beds.pdf (finding that 95% of the public psychiatric beds available in 1955 were no longer available in 2005, a fall from 340 to 17 beds per
100,000 people).
5 Doris J. James & Lauren E. Glaze, Bureau of Justice Statistics, Mental Health Problems of Prison and Jail Inmates 1, 3 (2006) (56% of state prisoners, 45% of federal prisoners, and 64% of jail inmates have a mental health problem, and about 1 in 10 adults in the U.S.
general population have a mental health disorder); The Treatment of Persons with Mental
Illness in Prisons and Jails: A State Survey 6, 24 (2014), available at
storage/documents/treatment-behind-bars/treatment-behind-bars.pdf (finding that the number of individuals with serious mental illness in prisons and jails is ten times the number in state
psychiatric hospitals).
6 Portions of this essay draw on material from Mr. Stevenson’s book Just Mercy. Bryan Stevenson, Just Mercy: A Story of Justice and Redemption (2014).




1 Nat’l Research Council, The Growth of Incarceration in the United States: Exploring Causes and Consequences (Jeremy Travis, Bruce Western, & Steve Redburn eds., 2014).
2 The Safe Neighborhoods and Schools Act, Proposition 47 (passed via referendum Nov. 2014).
3 See, e.g., Crime Survivors’ Profiles, Californians for Safety and Justice, (presenting stories of crime victims who support reform).
4 See, e.g., About Proposition 47, Californians for Safety and Justice, http://myprop47.
org/about (highlighting Prop 47’s opportunity to reallocate state prison costs to crime prevention, including mental health and drug treatment programs, programs for at-risk youth,
and trauma recovery services for crime victims).
5 City Partnerships, Nat’l Network for Safe Communities, (listing participating cities and summarizing mission).
6 Bruce Western & Becky Pettit, Incarceration & Social Inequality, 139 Daedalus 11 tbl. 1 (Summer 2010), available at


1 Patrick Marley, Walker Signs Bill Repealing Early Release, Milwaukee J. Sentinel, July 19,
2011, available at
2 See For Veterans, Wis. Ct. Sys., (listing services for veterans in several Wisconsin counties).
3 See Court Programs, Wis. Ct. Sys., (specifying the particulars of specialty problem-solving courts).
4 Drug Courts Work, Nat’l Assoc. of Drug Court Professionals,
learn/facts-and-figures (providing statistics that drug courts reduce crime and save money).
5 Wis. Exec. Order No. 65 (April 9, 2012).
6 Wis. Crim. Justice Coordinating Council, 2014 Annual Report 5 (2014), available at (explaining the problem solving courts committee’s charge to promote innovation).
7 Eric Litke, Deadly Doses: Heroin Overdose Deaths on the Rise Across Wisconsin, Green
Bay Press-Gazette, June 16, 2013, available at
8 Press Release, Rep. John Nygren, Heroin, Opiate Prevention and Education Agenda Signed into
Law (Apr. 7, 2014),
9 The H.O.P.E. package included multiple pieces of legislation. Act 194, 101st Leg., Reg.
Sess. (2014) (establishing immunity for a person seeking medical or police assistance for
someone who has overdosed); Act 195, 101st Leg., Reg. Sess. (2014) (creating programs to
address opiate addiction in underserved areas); Act 196, 101st Leg., Reg. Sess. (2014) (creating swift and certain punishments for parole violations); Act 197, 101st Leg., Reg. Sess.
(2014) (providing grants to counties that offer substance abuse treatment and diversion from
incarceration); Act 198, 101st Leg., Reg. Sess. (2014) (amending statues related to disposal
and regulation of prescription drugs); Act 199, 101st Leg., Reg. Sess. (2014) (requiring identification for individuals picking up certain opioid prescriptions); Act 200, 101st Leg., Reg.
Sess. (2014) (providing that all first responders are trained to administer naloxone to stop
opioid overdose).



10 Gov. Scott Walker, Address to Joint Sess. of Leg. (Feb. 3, 2015), available at http://docs.legis.
11 Div. of Executive Budget and Finance Dep’t of Administration, State Of Wisconsin:
Budget in Brief 21 (2015), available at
12 Nat’l Assoc. of Drug Court Professionals, Defining Drug courts: The Key Components
iii (1997), available at


1 Jim Webb, Now is the Time to Reform our Criminal Justice System, 28 Criminal Justice Ethics 163 (2009).
2 See Roy Walmsley, International Centre for Prison Studies, World Prison Population
List 1 (10th ed.) (explaining that U.S. incarceration rate is 716 per 100,000 while more than half of
countries have rate of 150 per 100,000 or below).
3 See E. Ann Carson, Bureau of Justice Statistics, Prisoners in 2013 16-17 (2014) (reporting
287,100 prisoners under state or federal supervision for drug offenses).
4 Marijuana Arrests by the Numbers, Am. Civil Lib. Union, (52% of all drug arrests were for marijuana); E. Ann Carson,
Bureau of Justice Statistics, Prisoners in 2013 15-16 (2014) (reporting 53% of state prisoners
incarcerated for violent offenses and blacks constitute 38% of those incarcerated for drug offenses);
Fed. Bureau of Investigation, Uniform Crime Reports: Crime in the United States 2013
tbl. 43 (2013),
tables/table-43 (African Americans account for 30% of those arrested for drug abuse violations);
Marc Mauer & Nahzgol Ghandoosh, The Sentencing Project, Incorporating Racial Equity into Criminal Justice Reform 6 (2014), available at
5 National Criminal Justice Commission Act of 2009, S. 714, 111th Cong. (2009).
6 The Consolidated Appropriations Act 2014, Pub. L. No. 113-76 (2014) (authorizing funding for
creation of task force addressing challenges in federal corrections system).
7 Exec. Order No. 13684, 79 Fed. Reg. 76,865 (Dec. 18, 2014) (establishing President’s Task Force on
21st Century Policing).
8 Portions of this essay draw on material from Senator Webb’s 2009 journal article. See Jim Webb, Now
is the Time to Reform our Criminal Justice System, 28 Criminal Justice Ethics 163 (2009).




1 See Roy Walmsley, International Centre for Prison Studies, World Prison Population
List 3 (10th ed. 2013) (providing the national population for the United States as 5% of the
world population and the prison population as 22% of the world’s incarcerated population);
see U.S. Census Bureau, Compendium of the Seventh Census 88-89 tbl. 81 (1854),
available at (showing that in 1850 there
were 872,933 male slaves age 15 and over and an additional 1,581 male slaves of unknown
age); see also E. Ann Carson, Bureau of Justice Statistics, Prisoners in 2013 7 tbl.7
(2014) (showing that in 2013 there were 526,000 black male prisoners under the jurisdiction
of state or federal correctional authorities). See Erinn J. Herberman & Thomas P. Bonczar,
Bureau of Justice Statistics, Probation and Parole in the United States, 2013 16-20
tbls. 2, 3, 4, 6 (2014), available at (showing that
in 2013 there were 3,945,795 people on probation, of whom 30% were black and 75% male
and 839,551 people on parole, of whom 38% were black and 88% male); see also Todd D.
Minson & Daniela Golinelli, Bureau of Justice Statistics, Jail Inmates at Midyear
2013 — Statistical Tables 6-7 tbls.2, 3 (2014), available at
pdf/jim13st.pdf (showing that at midyear 2013 there were 731,208 inmates in local jails, of
whom 35.8% were black and 86% male); see Lauren E. Glaze & Danielle Kaeble, Bureau
of Justice Statistics, Correctional Populations in the United States, 2013 3 tbl.1
(2014) (showing that in 2013 there were 2,220,330 persons incarcerated in the United States in
2013 and 6,899,000 in the entire correctional population); see U.S. Census Bureau, Annual
Estimates of the Resident Population: April 1, 2010 to July 1, 2014 (2015), available at (showing that as of July
1, 2014 the estimated population of the 35th largest state, Nevada, was 2,839,099 and the
population of the 36th largest state, New Mexico, was 2,085,572; the populations of Delaware,
Vermont, and Wyoming combined equaled 2,146, 329).
2 See Bruce Western, Punishment and Inequality in America 161 (2006).
3 See Nicole Fortier & Inimai Chettiar, Brennan Ctr. for Justice, Success-Oriented
Funding: Reforming Federal Criminal Justice Grants 25 n.19 (2014), available at
ReformingFederalCriminalJusticeGrants.pdf (finding that total criminal justice spending in the
United States equals $260.5 billion); see Bureau of Justice Statistics, Justice Expenditure
and Employment Extracts: 1984, 1985, and 1986 156 (1991), available at http://www. (finding that in 1986 the justice system spent $53.5
billion); see Tracey Kyckelhahn & Tara Martin, Bureau of Justice Statistics, Justice
Expenditure and Employment Extracts, 2010 — Preliminary (2013), available at www.bjs.
gov/index.cfm?ty=pbdetail&iid=4679; see also E. Ann Carson, Bureau of Justice Statistics,
Prisoners in 2013 10-11 tbl.9 (2014) (showing that 636,715 prisoners were released in 2012
and 623,337 in 2013); Joan Petersilia, Nat’l Inst. Of Justice, When Prisoners Return to the
Community: Political, Economic, and Social Consequences, Sentencing & Corrections: Issues
for the 21st Century 3 (2000) (finding that 1 year after release as many as 60% of former
inmates are not employed in the legitimate labor market); see Robert DeFine & Lance Hannon,
The Impact of Mass Incarceration on Poverty, 49 Crime & Delinquency 581 (2013) (indicating
that had mass incarceration not occurred, poverty would have decreased by more than 20%, or
about 2.8 percentage points).



4 See generally Ram Subramanian, et al., Vera Inst. of Justice, Recalibrating Justice: A
Review of 2013 State Sentencing and Corrections Trends (2014), available at http://
5 From 2008 to 2012, numbers of crime declined by 8.8% and numbers of incarceration
declined by 3.2%. In that same time, the crime rate declined by 11.6% and the incarceration
rate declined by 8%. See Lauren-Brooke Eisen, et al., Brennan Ctr. for Justice, Federal
Prosecution for the 21st Century 56 n.21 (2014).
6 A forthcoming Brennan Center report will provide a more precise calculation. See E. Ann
Carson & Daniela Golinelli, Bureau of Justice Statistics, Prisoners in 2012: Trends
in Admissions and Releases, 1991-2012 3 tbl.1 (2013) (finding that of the total 609,781
prison admissions documented in 2012, 152,780 were for federal and state parole violations);
see E. Ann Carson, Bureau of Justice Statistics, Prisoners in 2013 15 tbl. 13 , 17 tbls.1516 (2014) (finding that as of December 31, 2012 53.8% of sentenced prisoners under state
jurisdiction were there for violent crimes and finding that 50.7% of sentenced prisoners
under the custody of federal correctional authorities in 2013 had a drug offense as their most
serious offense); see Todd D. Minton & Daniela Golinelli, Bureau of Justice Statistics,
Jail Inmates at Midyear 2013 — Statistical Tables 11 tbl. 3, (2014) available at http:// (showing that 62% of inmates in local jails were
unconvicted); see, e.g., Leading in National Standards, Pretrial Services Agency for the
District of Columbia, (stating that
“on average in the District of Columbia, 80% of persons arrested and charged with a crime
are released to the community, either on personal recognizance or with supervised release
7 See generally Ram Subramanian, et al., Vera Inst. of Justice, Recalibrating Justice: A
Review of 2013 State Sentencing and Corrections Trends (2014), available at http:// (discussing recent state
efforts to reduce prison populations).
8 See generally Off. of Nat’l. Drug Control Pol’y., Criminal Justice Brief: Alternatives
to Incarceration (2011), available at
ondcp/Fact_Sheets/alternatives_to_incarceration_policy_brief_8-12-11.pdf (showing that
alternatives to incarceration can be more effective than incarceration); Lynne M. Vieraitis et
al., The Criminogenic Effects of Imprisonment: Evidence from State Panel Data, 1974—2002,
6 Criminology & Pub. Pol’y 589, 593 (2007) (explaining the effect of prison on low-level
9 See generally David Cloud & Chelsea Davis, Vera Inst. of Justice, Treatment Alternatives
to Incarceration for People with Mental Health Needs in the Criminal Justice
System: The Cost-Savings Implications (Feb. 2013), available at
sites/default/files/resources/downloads/treatment-alternatives-to-incarceration.pdf; see also
Drug Treatment Alternative to Prison, Nat’l Inst. of Justice, http://www.crimesolutions.
gov/ProgramDetails.aspx?ID=89; see also Families Against Mandatory Minimums,
Alternatives to Incarceration in a Nutshell (2013), available at



10 Doris J. James & Lauren E. Glaze, Bureau of Justice Statistics, Mental Health
Problems of Prison and Jail Inmates 1, 3 (2006) (56% of state prisoners and 45% of federal
prisoners); Treatment Advocacy Ctr. & Nat’l Sheriffs’ Ass., The Treatment of Persons
with Mental Illness in Prisons and Jails: A State Survey 6, 24 (2014), available at www. (finding
that the number of individuals with serious mental illness in prisons and jails is 10 times the
number in state psychiatric hospitals); see Redonna K. Chandler, et al., Treating Drug Abuse
and Addiction in the Criminal Justice System, 301 J. Am. Med. Ass. 184 (2009) (estimating that
in 2004 53% of state inmates and 46% of federal inmates met the criteria for drug abuse or
11 H.R. 1, 80th Leg., Reg. Sess. (Tex. 2007); See Marc Levin, Texas Public Policy Foundation,
The Texas Model: Adult Corrections Reform, Lower Crime, Lower Costs 1 (2011),
at; see Texas Governor Rick Perry Receives NADCP Award
for Criminal Justice Reform, Nat’l Drug Court Resource Center,
12 See Todd D. Minton & Daniela Golinelli, Bureau of Justice Statistics, Jail Inmates at
Midyear 2013 — Statistical Tables 4, (2014) available at
pdf/jim13st.pdf (showing that local jails admitted 11.7 million persons in the 12-month period
ending midyear 2013 and that showing that 62% of inmates in local jails were unconvicted);
see, e.g., Leading in National Standards, Pretrial Services Agency for the District of
Columbia, (stating that “on average in the
District of Columbia, 80% of persons arrested and charged with a crime are released to the
community, either on personal recognizance or with supervised release conditions”); see Gov.
Chris Christie, Do You Want to Do Something or be Something? (Aug. 11, 2014), available at
13 Charles Summers & Tim Willis, Csr Inc., Pretrial Risk Assessment: Research Summary 2
(2010), available at
pdf (presenting key risk factors).
14 Pew Ctr. on the States, Time Served 2 (2012), available at http://www.pewtrusts.
PrisonTimeServedpdf.pdf (finding that offenders released in 2009 served an average of almost
3 years in custody, 36% longer than offenders released in 1990).
15 See, e.g., Oliver Roeder, et al., Brennan Ctr. for Justice, What Caused The Crime
Decline? 17, 25-26 (2015), available at
publications/What_Caused_The_Crime_Decline.pdf (finding diminishing returns of increased
incarceration, and claiming that overuse of incarceration leads to ineffectiveness and lengthy
sentences may not work to reduce crime).
16 See generally Inimai Chettiar, et al., Brennan Ctr. for Justice, Reforming Funding
to Reduce Mass Incarceration (2013), available at
default/files/publications/REFORM_FUND_MASS_INCARC_web_0.pdf; Nicole Fortier
& Inimai Chettiar, Brennan Ctr. for Justice, Success-Oriented Funding: Reforming
Federal Criminal Justice Grants (2014).



17 For a general discussion of Success-Oriented Funding, see id.
18 Violent Crime Control and Law Enforcement, Pub. L. No. 103—322, 108 Stat. 1786 (codified
as amended in scattered sections of 42 U.S.C.) (1994); see also William J. Sabol, et al.,
Urban Inst. Justice Pol’y Ctr., The Influences of Truth-in-Sentencing Reforms on
Changes in States’ Sentencing Practices and Prison Populations 17 (2002), available at (stating that 21 states were eligible
for funding because they required offenders to serve 85% of the sentence, a qualification
established under the 1994 law).
19 In 2013, the federal government sent $3.8 billion across the country in criminal justice grants,
not including defense spending on criminal justice needs. Nicole Fortier & Inimai Chettiar,
Brennan Ctr. for Justice, Success-Oriented Funding: Reforming Federal Criminal
Justice Grants 2, 25 n.12 (2014).
20 California Administrative Office of the Courts, SB 678 Year 1 Report: Implementation
of the California Community Corrections Performance Incentives Act 2 (2011),
available at (finding
that California had a state-wide probation failure rate of 6.1%, down from 7.9% in the baseline
period, and that the state saw a savings of $179 million, of which $87.5 million was shared with
counties which met certain goals).
21 Texas Dep’t of Criminal Justice, Report to the Governor and Legislative Budget
Board on the Monitoring of Community Supervision Diversion Funds 10, 14, 15
(2008), available at
Report_to_Governor_2008.pdf (showing that departments receiving diversion funding
experienced an 11.6% decrease in felony technical revocations, while departments receiving no
funding saw a 11.5% increase, and a 4.6% decrease in all felony revocations).
22 Abraham Lincoln, Debate at Ottawa with Stephen Douglas (Aug. 21, 1858).


The Brennan Center gratefully acknowledges Laura and John
Arnold, Democracy Alliance Partners, Ford Foundation, The Charles
Evans Hughes Memorial Foundation, Open Society Foundations,
Public Welfare Foundation, Rockefeller Family Fund, Vital Projects
Fund, and William B. Wiener, Jr. Foundation for their support of
the Justice Program.
The editors thank the following Brennan Center colleagues:
John Kowal for his strategic guidance, valuable input, and support
of this book; Julia Bowling for her research and invaluable assistance;
Lauren-Brooke Eisen, Jessica Eaglin, Amy-Lee Goodman, Roger Li,
Justin Hurdle, Anjelica Mantikas, Victoria Volpe, and Nida Alvi for
their research and outreach; Jeanine Plant-Chirlin, Desiree Ramos
Reiner, Jim Lyons, Naren Daniel, Lena Glaser, and Mikayla Terrell
for their communications guidance; and Nicole Austin-Hillery,
Danyelle Solomon, Allison Ramiller, Lawrence Norden, Myrna
Pérez, Seth Hoy, and John Donahue for their outreach assistance;
and John Pomeranz for his legal assistance.
They are especially grateful for the assistance of: Mark Holden
and Jenny Kim at Koch Industries, John Malcolm at the Heritage
Foundation, Ilya Shapiro at the Cato Institute, Marc Levin at Right on
Crime, Mark Earley of Prison Fellowship, and Eli Lehrer at the R Street
Institute; Brennan Center Board members Patricia Bauman, James
Johnson, and Paul Lightfoot; and Jamil N. Jaffer and Bruce Reed.
They also thank Jamiah Adams, Megan Adams, Brenda Beltrani,
David Brock, Matthew Bromeland, Alex Burgos, Kahlil Byrd, Caitlin
Callaghan, Steven Cohen, Nina Conroy, Jeff Cook-McCormac, Amy
Cradic, Brian Darling, Matt David, Raeanne Davis, Pastor Allison
DeFoor, Billy Easley, Paul Egerman, Elizabeth Fine, Tina Flournoy,
Kristin Ford, Erica Freeman, Chadwick Gallagher, Mike Gallagher,




Diana Gee, Michael Gerson, Benjamin Ginsberg, Seth Grossman,
Karen Harris, Maya Harris, Kristin Jackson, Nelson Jones, Roscoe
Jones, Van Jones, Kevin Kane, Donna Wiesner Keene, Nicole
Kenney, Peter King, Matt Klapper, Ezra Klein, Joel Klein, John
Koufos, Unjin Lee, Daniel Loeb, Rebecca Lugo, John McGrail, Jeff
Miller, Bettina Muenster, Ryan Newman, Victoria Nourse, Gregg
Nunziata, Sean O’Brien, William Pallatucci, Steve Phillips, Steve
Ricchetti, Steven Rinehart, Monica Roth, Cynthia Ryan, Patricia
Salkin, Dan Schwerin, Timothy Silard, Daniel Smith, Elisabeth
Smith, Gene Sperling, Paul Teller, Reagan Thompson, Jeffrey Tsai,
James Warren, Larry Weitzner, and John Zadrozny.
Finally, they extend their sincere gratitude to the authors of the
forewords and essays for their contributions to this book and their
dedication to reforming our criminal justice system.

About the Brennan Center
for Justice

The Brennan Center for Justice at NYU School of Law is a nonpartisan
law and policy institute that seeks to improve our systems of democracy
and justice. We work to hold our political institutions and laws
accountable to the twin American ideals of democracy and equal justice
for all. The Center’s work ranges from voting rights to campaign finance
reform, from ending mass incarceration to preserving Constitutional
protection in the fight against terrorism. Part think tank, part advocacy
group, part cutting-edge communications hub, we start with rigorous
research. We craft innovative policies. And we fight for them — in
Congress and the states, the courts, and in the court of public opinion.
The Brennan Center for Justice was founded in 1995 in honor of the
late U.S. Supreme Court Justice William J. Brennan, Jr.
The Brennan Center’s Justice Program seeks to secure our nation’s promise
of “equal justice for all.” Its priority focus is to reform the criminal
justice system so that it better reduces crime and mass incarceration. It
also works to ensure a fair civil legal system.
Inimai Chettiar is director of the Justice Program at the Brennan Center.
Michael Waldman is president of the Brennan Center.
Nicole Fortier is counsel in the Justice Program at the Brennan Center.
Abigail Finkelman is special assistant to the director of the Justice
Program at the Brennan Center.


Mass incarceration. In recent years it’s
become clear that the size of America’s
prison population is unsustainable – and
isn’t needed to protect public safety.
In this remarkable bipartisan collaboration,
the country’s most prominent public figures
and experts join together to propose ideas
for change. In these original essays, many
authors speak out for the first time on the
issue. The vast majority agree that reducing
our incarcerated population is a priority.
Marking a clear political shift on crime and
punishment in America, these sentiments
are a far cry from politicians racing to be
the most punitive in the 1980s and 1990s.
Mass incarceration threatens American
democracy. Hiding in plain sight, it drives
economic inequality, racial injustice, and
poverty. How do we achieve change? From
using federal funding to bolster police best
practices to allowing for the release of lowlevel offenders while they wait for trial, from
eliminating prison for low-level drug crimes to
increasing drug and mental health treatment,
the ideas in this book pave a way forward.
Solutions promises to further the intellectual
and political momentum to reform our justice

Brennan Center for Justice
at New York University School of Law
161 Avenue of Americas, 12th Floor
New York, New York 10013
(646) 292-8310