In the two weeks since Attorney General Eric Holder announced the Justice Department would no longer charge low-level drug offenders with crimes that carry mandatory minimum sentences—and would consider releasing some elderly, nonviolent prisoners early—something remarkable has happened. There’s been no major outcry from the right. While the attorney general certainly has no shortage of outspoken detractors in the Republican ranks, the initiative hasn’t prompted any major voices to decry him as “soft on crime.” In fact, in plenty of conservative circles, he’s earned praise—or something close to it. “Eric Holder gets something marginally right,” wrote the Daily Caller.
Not long ago, the lack of a right-wing furor would have been unthinkable. So would Holder’s initiative; criminal-justice reform has long been politically toxic for Democrats as well as Republicans. But in 2013, even with an administration whose policy proposals almost always prompt pushback, Holder’s speech has not raised conservatives’ hackles.
Probably because at the state level, conservatives and liberals alike have spent years pushing for policies that go even further than Holder’s proposals to reduce incarceration rates.
Holder’s speech comes after a decade-long push in state legislatures to reduce prison populations that had been swelling for years. In a time of widening partisan policy divides, criminal justice has proven to be one area where Republican and Democratic state legislatures are willing to learn from one another. Politicians in Texas have studied plans in Connecticut and others have studied Texas, all examining what policies will produce the desired outcome—fewer people in prison, lower recidivism rates, and safer communities. The most popular approach, known as justice reinvestment, starts with acknowledging that throwing every offender into jail for the long term isn’t likely to accomplish much. Instead, judges can rely on sentencing alternatives, like drug rehabilitation and mental health treatment, for low-level and nonviolent convicts. More people—on parole or probation—stay in the community, under close supervision, where they can complete community-service hours and make restitution payments. These programs frequently incentivize good behavior, allowing offenders to earn “good time” that can allow for early release. Each state that takes a justice-reinvestment approach passes slightly different laws, but all are based on data that shows this philosophy of more sentencing flexibility and incentivizing good behavior both lowers the number of people in prison and lowers the recidivism rate.
The National Council on State Legislatures reports that at least 27 states have enacted some form of reinvestment legislation in the last six years. State prison populations have been on the decline for the past three years, even as the federal prison population has continued to grow. The progress shouldn’t be exaggerated: State prisons are still overcrowded, and high incarceration rates are still causing major problems. But criminal-justice reform has become one of the few policy areas where Democrats and Republicans increasingly agree—at least on the state level. It’s been a different story in Washington, where such bridges seemingly cannot be crossed.
For decades, of course, “tough on crime” laws were all the rage in both statehouses and Congress. Crime rates rose in the 1970s and 1980s, but that hardly explained the rush to throw millions of Americans (disproportionately black) behind bars for ever-longer sentences. Increasingly, Republicans—taking a cue from George Wallace and Richard Nixon—learned to fear-monger their way into office, wooing white, working-class voters by preying on their racial phobias as well as their fear of crime. Most Democratic politicians, lest they be seen as soft, either went along—or, in some cases, embraced—legislation geared toward tougher penalties and longer sentences.
Between 1978 and 2009, incarceration rates rose dramatically. As crack cocaine became more prevalent—mostly in black and low-income communities—lawmakers passed measures that increased penalties for possessing and selling the drug. (Powder cocaine, more popular among whites and the higher-income, carried lighter penalties.) Prison terms got longer as mandatory minimums increasingly prevented judges from softening sentences as they saw fit. States passed “truth in sentencing” measures requiring that offenders serve at least 85 percent of their sentence before coming up for parole. Prisons filled up, new ones got built, and those filled up too.
By the late 1990s, Attorney General Janet Reno was calling for more programs to help prisoners re-enter society. Crime rates had begun to fall even as the number of people in prison continued to grow. While there’s much debate as to why crime began to drop, the political outcome was clear: Lawmakers could once again talk about solutions that went beyond locking ‘em up, without necessarily suffering political torment.
Since the political winds began to shift on criminal-justice issues, some of the most influential reforms have come from deep-red states. In 2003, facing budget cuts, the Kansas legislature passed a bill to require treatment or probation for those convicted of nonviolent drug possession for the first or second time and provided nearly $6 million in funding for the program. Four year later, as the prison population began creeping up again, lawmakers noted that a majority of prison admissions came from people who violated their parole and probation. In an effort to target the population, they created a statewide program meant to incentivize counties to keep parolees and those on probation in the community, and to help the offenders to start rebuilding their lives. Prisoners could receive “good time credit”—to accelerate their release—for completing education and treatment programs and counties got money for cutting the number of people sent back to prison for probation or parole violations. Governor Sam Brownback, known for his hard right politics, has championed judicial discretion, allowing municipal judges to give lighter sentences like house arrest for minor crimes and parole violations.
For many conservatives, this approach made sense. “The one thing prison does really well is incapacitate those that are dangerous,” writes Marc Levin, the director of the conservative incarceration-reform group, Right on Crime, in an email. “Yet, too often states send low-risk, nonviolent offenders to prison for a year or less, which often means any benefit of incapacitation is outweighed by the fact that these offenders are often more of a risk when they leave due to who they encountered behind bars and their ties to family, work, church, and community being severed.” Levin has been a lead voice making the conservative case for prison reform, and Right on Crime has received support from Republicans as diverse as Grover Norquist, Jeb Bush, and Newt Gingrich.
Shortly after Kansas began instituting some of its reforms, a bipartisan group of lawmakers in Texas, the ultimate law-and-order state, began developing a set of policies to decrease the number of people sent to prison for probation violations. After studying laws passed in Kansas and Connecticut, in 2007, the legislature allocated $240 million for in-prison, residential, and outpatient treatment programs geared toward treating substance abuse and mental illness. The money also helped to fund local probation and parole supervision, and established maximum caseload numbers for parole officers. While the state still has the nation’s largest prison population, and among the top five incarceration rates, the Texas prison population has fallen to a five-year low. The incarceration rate has dropped by more than 10 percent.
Since 2007, a number of other states that aren’t exactly run by wide-eyed liberals—Georgia, South Carolina, New Hampshire, and Kentucky to name a few—have embraced justice reinvestment to varying degrees. The National Conference for State Legislatures details each state plan in its latest criminal-justice brief. Most focus on helping drug offenders—those charged with possession and in some cases low-level dealers—get treatment rather than requiring they serve time, and gives those prisoners with a track record of good behavior opportunities to get out early. Some parole-violators now face penalties other than re-imprisonment. In several states, “truth in sentencing” laws have been amended, so that prisoners can come up for parole earlier. Many states now offer nonviolent probationers methods for getting time off their sentence if they successfully hold a job, complete a treatment program, or get a degree. Specialty courts, like drug courts, take an almost rehab-like approach, as those convicted come in regularly for drug testing and receive praise for accomplishments (or swift but short punishments for violations.)
But the new political atmosphere hasn’t undone the decades of harshly punitive policies. After decades of sweeping laws that put millions away longer and longer for nonviolent crimes, these new reforms are only a beginning. And plenty of states are only just catching on.
In California, it took a court order to get lawmakers serious about reducing the prison population. The four-year-old order, demanding that the state reduce its horribly overcrowded prison population by 30,000, has resulted in some significant changes. The state has allowed a number of offenders to remain at the county level, rather than entering the state prison system. While for some, that’s simply meant time in county jails rather than prison, others have a greater chance to enter treatment programs or re-enter the community under supervision. The state has distributed $220 million over three years to counties that have successfully decreased the number of people going to prison for probation violations. But California has balked at releasing prisoners, and Democratic Governor Jerry Brown asked the court for an extension, which it denied. The Los Angeles Times editorial board recently lambasted state leaders, noting through “crowding and foolish management” the prisons actually make people more likely to offend again after release. “California leaders and lawmakers knew they had to rationalize sentencing and redirect more funding from punishment to reentry, alternative sentencing and rehabilitation,” the editorial read. But until the pressure of the court order, lawmakers didn’t make reforms because “it would have meant moving away from the fear-based and politically lucrative method of sentencing and incarcerating headline by headline, statute by statute, initiative by initiative.”
It’s not just California. Republican Governor Rick Scott of Florida vetoed a bill in 2012 to allow nonviolent offenders to get substance abuse treatment, arguing it could mean some prisoners might not serve the mandatory 85 percent of their sentences. (A recent piece in the Miami Herald documented the state’s struggle to make criminal-justice reforms.) Arkansas is struggling to find prison beds after a set of new mandates resulted in more parolees going to prison. Similarly in Arizona, the state has 37,000 permanent beds for over 41,000 prisoners. The rest sleep on temporary beds stuck in random places, like tents and day rooms.
Even among those states making reforms, the new policies don’t immediately reverse years of lock-up mentality. Texas may have reduced its prison population, but it still has one of the top four incarceration rates in the country. And while the national prison population is decreasing, just three states—California, North Carolina, and Texas—account, combined, for more than 80 percent of the decline.
Holder’s announcement helped mark a turn at the federal level, showing policymakers can take a public stance for prison reform without getting tarred and feathered. But without legislative action, any change coming from Attorney General Holder’s new initiative may be temporary one, only lasting until another administration comes in. Prior to the Republicans winning the House, Congress did pass the Fair Sentencing Act to reduce the sentencing gaps between crack and cocaine. Since then, however, there’s been little movement. The Senate currently has two bills, both with bipartisan sponsorship, that would both decrease mandatory minimum sentencing. But given the glacial pace of lawmaking in Washington, it will still likely fall to the states to continue shifting the rhetoric around criminal justice and slowly undoing decades of failed “lock-em-up” policies.