ACLU Releases Slate of State Reports on How to Cut Incarceration by 50 Percent

Daniel Nichanian

On Sept. 5, the ACLU released 24 state-specific reports on mass incarceration, the product of a two-year partnership with the Urban Institute. Each report details what factors are driving mass incarceration in a given state. And each proposes a roadmap for how that state can reduce racial disparities and cut incarceration by 50 percent.

“Mass incarceration is a national problem, but it is one that is rooted in the states and needs to be fought in the states,” Udi Ofer, the director of the ACLU’s Campaign for Smart Justice, told me. He added that national data can mask factors that play outsize roles in different places, leading people to understate—or overstate—the impact that a particular reform will have. For instance, these reports map out the wide range of effects that would result from a similar set of changes to how drug offenses are sentenced: These reforms would reduce the prison population by 23 percent in Oklahoma, 14 percent in Texas, and only 7 percent in Michigan. That’s because Oklahoma is more resistant to pursuing alternative forms of punishment for lower-level offenses, Ofer notes, while what distinguishes Michigan is that it responds to a category of crimes it calls “assaultive” with harsh sentences and few opportunities for early release.

Nationwide conclusions do jump out, however. The first is that reforms must incorporate racial justice as a stand-alone goal. “We found that reducing the prison population by itself does little to diminish racial disparities in incarceration—and in some cases would worsen them,” the reports warn. They recommend policies that would specifically target such disparities, like ending sentencing enhancement rules that disproportionately affect people of color, ending over-policing, and holding prosecutors accountable for biases in charging decisions.

The second lesson is that any one area of reform will only go so far. The goal espoused by some politicians of cutting incarceration by half demands a broad array of changes that go beyond tackling low-level offenses. “Reaching a 50 percent decarceration goal will require transforming the way the criminal justice system responds to offenses involving violence,” Ofer told me, a statement illustrated in each of these reports by a chart forecasting to what extent different reforms would reduce a state’s prison population. Many politicians who advocate criminal justice reform stop short of this step. This makes it striking for Andrew Gillum (Florida Democrats’ nominee for governor) to not exclude such offenses from his proposed overhaul of the sentencing code, as I noted last week.

Rachael Rollins, Democrats’ nominee for Boston district attorney as of Tuesday, also talks of changing how prosecutors approach all offenses. “We can’t exclusively focus on nonviolent offenders,” she said during the primary. “We need to start having hard conversations about violent offenders and what we are doing to make sure that when they return to the community they have the tools necessary to re-enter successfully.” According to the ACLU’s Massachusetts report, more than two-thirds of criminally sentenced individuals detained in Massachusetts prisons were convicted of an offense involving violence. The report specifically flags the state’s harsh sentencing guidelines and its limits on opportunities for parole and early release.

Alongside these reports, the Urban Institute has launched a forecaster tool whose users can input policy changes to see what impact they would have on a state’s incarceration rate.