This piece is a commentary, part of The Appeal’s collection of opinion and analysis.
In the midst of the coronavirus pandemic, we may finally be getting some effective criminal justice reform. On July 30, the New York Times reported that New Jersey is considering legislation that could release about 20 percent of its prison population because of fears about the coronavirus. Unlike most sentence-reduction bills in recent memory, this bill includes reductions for people convicted of violent crimes.
The New Jersey bill contrasts with coronavirus measures in places like California that only focus on releasing those convicted of nonviolent offenses. New Jersey’s bill is an important step forward in reducing the overbearing harshness of the criminal system. Such sentence reductions, if expanded across the country, could increase public welfare and save the state money without endangering public safety.
As you may know, the United States has a mass incarceration problem. We have 2.3 million people incarcerated, and although we are only 5 percent of the world population, we have nearly 25 percent of its prisoners. People are waking up to this problem, and criminal justice reform is a regular policy discussion. Both of the major political party platforms include commitments to criminal justice reform.
Many of the proposed reforms focus only on nonviolent drug offenders. For example, the First Step Act, passed by Congress in 2018, reduces sentences for some drug offenders but does not release those convicted of violent crimes. The act, according to the Federal Bureau of Prisons, specifically expands a “safety valve” that “allows courts to sentence low-level, non-violent drug offenders with minor criminal histories to less than the required mandatory minimum for an offense.” This is a very narrow group.
As Fordham University law professor John Pfaff explains, the numbers in the prison population are largely influenced by the states’ sentencing people convicted of violent crimes. This point conflicts with the idea that the war on drugs is the real cause of mass incarceration. Pfaff says that, even if we released everyone in jail who is there because of a drug offense, it is likely we would still have the highest incarceration rate in the world. The numbers back that up: About one-fifth of the people in jails or prison are there only for a drug offense. If we released all of them we would have approximately 1.8 million people locked up, while China, our next closest “competitor” has 1.5 million. If we really want to reduce mass incarceration, we need to reduce the number of people in jail because of violent offenses.
Long prison sentences also have deleterious effects on individuals and communities. Harvard sociologist Bruce Western has called incarceration a “poverty trap” that creates an “enduring disadvantage at the very bottom of American society.” People who go to prison for long periods are released without strong employment prospects and with severed community ties. Instead of being out in the community working, they have been warehoused and isolated. This socioeconomic situation can lead them to return to criminal activity and prison.
Communities as a whole also suffer because of mass incarceration. The criminal system strikes at poor communities of color at higher rates than other places, and, therefore, incarcerates more people living and working there. Such incarceration leaves many children with only one parent who then struggles to take sufficient care of those children. Mass incarceration also destabilizes the economies of poor areas by removing workers on a regular basis. Additionally, as stated above, when people are eventually released from prison, they have been out of the traditional workforce and most likely have reduced job prospects. The unemployment rate for formerly incarcerated people is much higher than the rate for the general population. People who remain unemployed after release are much more likely to commit further crimes.
Reducing sentence length would have the additional benefit of saving the government money. It costs an average of around $33,000 to incarcerate someone for a year, and state budgets are tight. If the states are locking up fewer of their residents, then they may be able to close some prisons and put that money into more important matters. I think most people can agree that they would rather the state pay teachers than maintain an expensive, ineffective prison system.
A typical defense of long sentences is that they have a deterrent effect. The idea is that people who are considering criminal action may not commit the crime because of the fear of a long prison sentence. However, increasing the severity of punishment has not been shown to be much of a deterrent. Much more relevant is the likelihood of getting caught and punished in some way. A low to moderate prison sentence seems to be enough to deter people; the specific length of punishment is not the deciding factor.
Therefore, reducing sentence lengths would be a major boon for a state because it would save money on incarceration. This reform would help poor and nonwhite communities by reducing how often the system abducts residents and returns them jobless, stigmatized, and unskilled. And it would do all of this without having a negative effect on public safety. In fact, reducing the number of people incarcerated could improve public safety, because fewer people would be traumatized by the effects of prison.
So, back to the New Jersey bill—this seems like a good step forward. The state is making the leap to grace for those convicted of violent offenses. The motivation is the risk of the prisoners contracting COVID-19, which is an honorable reason, but the state could also be motivated by the reasons detailed above. Shortened sentences for those convicted of violent offenses makes the community safer and reduces the harm done to poor communities. It would also be nice if we took the U.S. off the world pedestal for mass incarceration. Let’s use New Jersey’s bill as an impetus for major, national change.
Ellison Berryhill is an assistant public defender in Tennessee.