Marc A. Levin is the Chief Policy Counsel at the Council on Criminal Justice and Senior Advisor to Right on Crime.
The U.S. is exceptional in many positive ways, from its Founding ideals to the dynamism of its free market economy and technological innovations. It is also distinguished by having less than 5 percent of the world’s population, but 20 percent of those behind bars.
The U.S. has 8.5 times the incarceration rate of Germany. Of course, there are many differences between nations, and some might suggest other developed countries like Germany should incarcerate more people, but the U.S. is clearly an outlier. Moreover, the exponential gap in incarceration rates cannot be explained solely by the variation in crime rates, as the crime index in the U.S. is only 36 percent higher than Germany. While my Newsweek Debate opponent, Mr. Mangual, is correct that the U.S. has far more homicides than Germany, homicides are relatively rare and amount to only a small slice of violent crime and prison admissions. The U.S. violent crime rate in 2018 was 380.6 per 100,000 people, which is only about twice as much as Germanys’ rate of 181.1 in the same year.
Prior to the early 1970s, the U.S. had relatively similar per-capita incarceration rates as Canada and Europe—but from that time until the early 2000s, the pendulum swung too far, leading to a five-fold increase in incarceration. Indeed, research suggests that while some portion of the increased incarceration prior to 2000 accounted for up to 25 percent of the crime decline, the incarceration boom overshot the target and led to diminishing returns. The National Academy of Sciences determined this is partly because people who were not dangerous were swept into prisons, many of whom became more of a risk to society due to the criminogenic effect of incarceration; others remained in prison long after they posed a danger.
Reforms can go too far, especially amid the preposterous prison abolition movement in the leftmost fringes of academia. However, in the last several years, the U.S. has only dialed back incarceration slightly, and there is ample evidence that this can be done consistent with public safety.
We don’t need to look overseas for proof, but rather to Texas’ recent success in cutting both crime and incarceration. In 2007, Texas did not set out to downsize prisons, but to simply stem the tide that saw the prison population balloon from 51,592 in 1992 to 152,661 in 2007. In that year, policymakers facing an official projection that another 17,000 prison beds would be needed by 2012 instead charted a new course. They assembled a $241 million package that strengthened alternatives to prison in nonviolent cases, such as probation, drug courts and community-based mental health and addiction treatment beds and slots. The budget also boosted treatment programs behind bars and halfway house beds for those approved for parole but still stuck behind bars.
The results far exceeded the goal of simply avoiding new prisons. Indeed, Texas has already closed eight prisons and will have closed ten by the end of 2020. From 2007 to today, the state’s incarceration rate has fallen from 641 to 423 per 100,000 people, a 34 percent drop. Most importantly, the state’s crime rate has fallen 40 percent since 2007, exceeding the national decline.
Moreover, recidivism has fallen. For example, data indicate that those placed on probation through a pretrial diversion program for state jail felonies, principally possession of less than a gram of drugs, had far lower recidivism rates than those sentenced to state jails. In 2007, some 9,381 Texas parolees were revoked to prison. This figure dropped to 5,397 revocations in 2019. The probation revocation rate fell from 15.9 percent from in 2007 to 14.1 percent in 2019.
Key lessons emerge from the Texas experience of simultaneously reducing incarceration and crime. First, every dollar spent on locking more people up is a dollar that cannot be spent on preventing crime, including visible policing that can deter street crime, in-prison programming and re-entry interventions proven to reduce recidivism.
Second, Texas recognized that public safety requires that, as more people are diverted from prison or paroled, some of the savings must be reallocated to strengthen probation and parole supervision, as well as scaling up interventions such as drug and veterans courts and related addiction and mental health treatment programs. Indeed, Texas increased the number of its drug and other problem-solving courts from 35 in 2007 to 143 today.
One key to this success is advances in techniques enabling more people to be safely supervised in the community. For example, Texas and other states have embraced risk and needs assessment instruments, which rely on objective questions to predict with reasonable accuracy the risk that an individual will recidivate or abscond. Utilizing these actuarial assessments, parole boards can better identify those who pose a low risk to the public and determine what programs and conditions would further reduce that risk.
Similarly, probation departments vary supervision levels based on these assessments. This allows probation officers to closely watch those who might otherwise step out of line without over-supervising low-risk individuals, which worsens outcomes. For example, someone with a first-time DWI and a stable job and family life might miss work and other pro-social activities to attend unnecessary meetings. Another breakthrough has come with medication-assisted treatment for people with opioid addictions.
These advances in corrections mean: (1) more people can be safely supervised in the community initially through diversion and probation programs; (2) more of those who are incarcerated can be rehabilitated, and candidates for parole can be more accurately screened to determine if this has occurred; and (3) parole and post-release supervision can more effectively reduce recidivism.
Moreover, research suggests key populations should focus on prioritizing costly prison space for those likeliest to commit serious crimes, even with the most rigorous alternative. For example, incarcerating someone for a nonviolent offense for six months in a state lockup results in higher recidivism than a community-based sanction. Once classification occurs, there is little time to administer any programming, and the short period of incapacitation is offset by criminogenic effect of separation from employment, family and other pro-social influences. In contrast, for those who violate supervision terms, jail stays of a few days, which can be on a weekend to preserve employment, have been highly effective as part of the Hawaii HOPE Court, and in North Carolina as a sanction to encourage compliance with probation.
At the other end of the spectrum, we must confront the costly graying of the prison population. Much research shows that the geriatric are least likely to reoffend, with a recidivism rate of less than 3 percent.
Indeed, many others behind bars serve longer than necessary for public safety. For example, a July 2020 study found that those in federal prison for drug crimes who received a reduction in their sentence were no more likely to recidivate. This is consistent with other research suggesting that the dramatic increases in length of stay from 1990 to 2009 for drug and property crimes did not correlate with lower recidivism rates.
Another opportunity for safely reducing incarceration is improving the effectiveness of probation and parole systems, which together account for 40 percent of prison admissions. Nearly half of these result from technical violations, such as missing appointments, leaving the county without permission or drinking alcohol. Swift, certain and commensurate sanctions coupled with positive incentives can promote compliance with conditions without resorting to revocations. Using such graduated responses, South Carolina achieved lower recidivism and re-incarceration rates for those on supervision. Similarly, after capping first-time technical probation revocations at 90 days, Louisiana saw returns to custody for new crimes fall 22 percent while saving taxpayers more than $17 million.
States like Texas, South Carolina and Louisiana are not alone in adopting sensible reforms and reducing both crime and incarceration. In fact, from 2010 to 2015, 31 states achieved declines in both metrics, with crime falling more in those states that lowered incarceration the most.
When it comes to pretrial justice, Mr. Mangual has rightly emphasized that the decision as to whether a defendant should be released from jail prior to trial should not be based on wealth, but rather public safety—with judicial discretion informed by the use of objective assessments. The late Chief Justice William Rehnquist noted in the landmark Salerno case that, due to the presumption of innocence, pretrial release must be the norm and detention “the carefully limited exception.” The right kind of bail reform ensures low-risk, poor defendants can obtain release with appropriate conditions while empowering courts to deny bail to even wealthy defendants charged with serious offenses and assessed as being highly dangerous.
To deliver on the due process Chief Justice Rehnquist was concerned with, denial of bail should require clear and convincing evidence, not just probable cause, and defendants must have capable counsel at bail hearings and access to fast-tracked appeals. Mr. Mangual is right that efforts to abolish pretrial detention must be rejected, as it would result in the release of the most dangerous defendants charged with the most heinous crimes, some of whom we must also acknowledge can now buy their way out of jail. At the same time, research is clear that pretrial detention of just several days before release increases the odds of recidivism for all but high-risk defendants, due largely to the disruptive impact on employment and family support.
Ultimately, precious tax dollars must be allocated to maximize serious crime reduction for every dollar spent, while minimizing collateral consequences. Side effects of incarceration include breaking up families, resulting in five million children who have experienced parental incarceration, and a lifetime of diminished earnings.
Despite such drawbacks and the inherent deprivation of liberty, incapacitating the right people for the right amount of time must remain part of the public safety equation. Theoretically, a German or American city could eliminate all unnecessary incarceration and even lock up too few people. However, there remains plenty of low-hanging fruit to be plucked in most of this nation. As that effort continues, reformers and elected officials should not ignore insightful skeptics like Mr. Mangual, who doesn’t just point out where some proposals may go too far, but has also, along with his organization, greatly contributed to successful re-entry efforts.
Texas and many other states are reaping dividends, from a measured paring back of incarceration combined with policies that prevent and deter crime on the front end, to a reduction of recidivism on the back end. Given that resources are limited, achieving a safer society requires nothing less. Instead of reverting to an era of writing blank checks for more prisons, we must continue including corrections systems in our commitment to hold every government system accountable for results.