Criminal-Justice Reform Is Dead? Not So Fast.

The presidential election disappointed advocates, but there's plenty of momentum in the states.
by | November 28, 2016

Lenore Anderson

President of the Alliance for Safety and Justice

The election of Donald Trump, who ran on a platform that promoted myths about crime and criminal-justice policy, has left many communities and advocates of justice reform grappling with what it all means. Contributing to the sense of uncertainty that so many feel are the real changes that Trump, as president, could unilaterally make to federal law-enforcement and immigration policies. He has promised mass deportations, and there will almost certainly be an overhaul at the Department of Justice.

Still, the movement for justice reform should not recoil. It's important to remember that the federal government has a limited role in state criminal-justice policy. While Washington can incentivize state reforms, most sentencing policy is made at the state or local level. Of the 2.2 million people incarcerated in the United States, more than 90 percent are in state prisons or local jails.

Even more important, the voters themselves sent strong signals on Nov. 8 that justice reform can, and should, continue marching forward. The 2016 election cycle saw unprecedented support for reducing incarceration in favor of rehabilitation and treatment. Overwhelming bipartisan majorities of voters approved criminal-justice ballot measures, signaling that they want more, not less, reform. It would be wrong to assume that Trump's views on criminal justice reflect the perspective of most voters, or even that of most Republicans.

In Oklahoma, for example, voters approved two significant ballot initiatives to reduce the prison population in a state that has the nation's second-highest incarceration rate. The measures the voters approved reclassify drug possession and petty theft from felonies to misdemeanors and reallocate the savings to prevention. Oklahoma joined at least four other states -- Alaska, California, Connecticut and Utah -- that have recently reduced penalties for drug possession, helping to reduce incarceration and advance smarter approaches to addiction.

Voters in California, the first state to begin reducing incarceration through voter initiatives, provide yet another major reform victory on Nov. 8. A proposition approved by nearly two-thirds of the state's voters, combined with ballot-measure victories in 2014 and 2012, represents a major rebuke to the tough-on-crime policies of 1980s and 1990s. The latest California ballot measure creates incentives to participate in rehabilitation programs that reduce recidivism, and it transfers discretion from prosecutors to judges to determine when a juvenile can be tried as an adult. Voters decided that these common-sense changes would cost less and work better than the one-size-fits-all approach embodied in failed bumper-sticker policies such as "three strikes and you're out."

In New Mexico, voters essentially ended money bail in the state, passing a constitutional amendment that prohibits holding people in jail until trial just because they cannot afford to pay for their release. The measure approved by the state's voters also requires the use of risk assessment to ensure that public safety rather than wealth guides pretrial-release decisions.

All of these changes build on recent state legislative reforms that have slowed prison growth and corrections spending. Thirty-nine states have reduced their prison populations, and several will be considering further reforms in upcoming legislative sessions. And the states that have reduced imprisonment the most have seen the biggest crime declines.

This trend is not just supported by justice reformers or those interested in reducing government waste. Victims of crime -- the very constituency that much of the old "tough-on-crime" era was purportedly designed to support -- also back reducing over-incarceration. In a recent national survey, the majority of victims revealed a belief that prisons cause crime rather than reduce it and expressed strong support for spending on education, treatment and job creation. By a margin of 2 to 1, victims believe that we should shorten prison sentences to pay for these investments. These beliefs cut across demographic groups, and support is as strong among violent-crime victims as it is among victims of property crime.

With crime victims joining the chorus of voices calling for transformed justice -- along with Democrats and Republicans, law enforcement, formerly incarcerated people, faith leaders, business leaders and voters -- there should be no slowdown in the reform movement. In fact, reform efforts should grow even stronger. Not only is that what voters want, but it's the most effective way to stop the cycle of crime. We should continue to demand it from our leaders, no matter who is in the White House.

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VOICES is curated by the Governing Institute, which seeks out practitioners and observers whose perspective and insight add to the public conversation about state and local government. For more information or to submit an article to be considered for publication, please contact editor John Martin.

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