Prison Reform Matters Now More Than Ever

The virus shows the need to reduce incarceration, but misplaced fears of crime stand in the way.

As the coronavirus pandemic continues, Bloomberg Opinion will be running a series of features by our columnists that consider the long-term consequences of the crisis. This column looks at the impact on the U.S. prison system.

With the coronavirus coursing through correctional facilities large and small, states have been releasing small numbers of inmates who are not deemed threats to the public. The response raises obvious questions: If the inmates are not public threats, why are they locked up in the first place? And how dangerous are the inmates left behind that they deserve to face a risk of death?

Criminal justice reform has been on the periphery of public debate for more than a decade. The Bureau of Justice Statistics pegs annual incarceration costs at more than $80 billion. Related costs, such as criminal courts, add to the tally. In addition to finances, issues of morality, public safety and public health are all significant factors that influence America’s approach to incarceration.  

Absent policy or political consensus, most political leaders have been reluctant to reduce their prison populations significantly — even now. Fear of the coronavirus has proved no match for public misperceptions of the threat of violent crime, which drives the demand for removal of offenders from society. A more humane, rational and cost-effective approach is still possible, but it will require a different political debate, and political leaders who soothe fears rather than exploit them. 

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Prison policy in the U.S. is the product of multiplying fear by indifference. Fordham University law professor John Pfaff, author of “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform,” wrote in the Washington Post: “Our draconian approach toward violent crime rests on viewing certain people, and certain groups of people, as not fully human. This has always been a pressing concern in criminal justice reform; during the pandemic, it is a matter of life and death.”

Nationwide, at least 42 prison staff and 446 inmates have already died, according to a tracker at the UCLA School of Law. The numbers continue to rise. “Prisons and jails are ripe for staggering levels of Covid-19 infection, due to the close quarters and the limits on sanitation and personal hygiene,” said Lauren-Brooke Eisen, director of the justice program at the Brennan Center at New York University. “That makes everyone inside — those incarcerated and those on staff — sitting ducks for the virus.”  

Even so, relatively few inmates have been released.  The federal Bureau of Prisons, with more than 171,000 inmates, has released fewer than 5,000. New Jersey Governor Phil Murphy on April 10 signed an executive order allowing some inmates convicted of nonviolent crimes to be released due to the pandemic. As of mid-May, the ACLU estimated the state had released fewer than 100 inmates — 10 percent of those eligible — though state officials said the number is higher.

The overall U.S. prison population has declined over the past decade, to fewer than 1.5 million, after a sharp, sustained rise that began in the 1970s. The retreat is partly due to a reduction in violent crime, and to more lenient attitudes among the public and politicians toward nonviolent drug offenders. It’s probably not a coincidence that the change accompanied an evolution in the stereotype of the drug abuser, from a black crack user in the 1990s to a white opioid user today.

The reform impulse has gained genuine traction. District attorneys in Philadelphia and San Francisco were elected on platforms stressing decarceration. Conservative states have joined the quest to reduce prison populations. Mississippi and Louisiana, states long synonymous with prison brutality, have sought ways to reduce populations and divert low-level offenders. Oklahoma has an initiative on the November ballot that would result in less severe sentences for some classes of convicted criminals.

Perhaps the most surprising source of progress was the White House. Donald Trump has made demagogy about crime a mainstay of his politics, lingering, in particular, on the details of “beautiful” young white women killed by undocumented Mexican immigrants. But in 2018 Trump broke from his own record and rhetoric, signing the First Step Act, a criminal justice reform that paved the way for the release of thousands of federal inmates. The law gives judges more discretion in sentencing, expands access to rehabilitation programs, slightly increases credits to reduce federal prison time and makes sentences for crack cocaine more equitable compared with those for powder cocaine.  

Momentum for reform has since stalled, and the reluctance to release inmates despite the pandemic suggests how deeply entrenched the nation’s punitive conventions are. Politics is a major reason. Many political leaders prefer to avoid the risks of a potentially career-ending Willie Horton attack, in which a prisoner paroled or released on their watch proceeds to commit violence, allowing political opponents to pounce.

Attorney General William Barr didn’t wait for a new Willie Horton to emerge. He has already denounced prison-reform efforts as “demoralizing” to police who now “must look on as the criminals that they have risked their lives to apprehend get turned loose by ‘social-justice’ DAs and ‘progressive’ judges who no longer see their role as protecting the community from predators.”

Unlike reform, Barr’s demagogy is risk-free. It builds on Trump’s 2016 campaign, which exploited public perceptions of crime that are so skewed as to be almost delusional. In 18 of 22 Gallup surveys conducted between 1993 and 2018, at least 60 percent of Americans said that crime had risen compared with the year before. In reality, violent crime plummeted during that span, hitting a 45-year low in 2014.

Likewise, the Pew Research Center reported that in 2016, 57 percent of registered voters said that crime in the U.S. had gotten worse since 2008. In fact, rates for both violent and property crime declined markedly over the decade. A Brennan Center study found that more than half a million Americans are now imprisoned “with no compelling public safety reason.” But “compelling” and “public safety” are highly subjective measures.

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What might a sensible program of decarceration look like? Perhaps a little more like Europe. In 2013, a delegation of state officials traveled to Germany and the Netherlands to observe criminal justice systems that run on different philosophies, with dramatically different results. Both nations incarcerate at a fraction — little more than a tenth — of the rate in the U.S., which has the largest prison population in the world.

The more sparing use of prison results from a very different view of crime, punishment and rehabilitation. Noncustodial sanctions, fines and diversion programs are far more common sentences — even for crimes deemed felonies in the U.S., including assault. In the Netherlands, some convicted of crimes are sentenced to a “task” — sometimes hundreds of hours of work intended to benefit the community.

For those who do go to jail, sentences are generally shorter than in the U.S. The chief goal of incarceration is rehabilitation, including reintegration into the community. Corrections staff are well-trained professionals whose job is not to warehouse criminals but to prepare them for more productive lives.

The U.S., by contrast, spends far less on providing social services to those who break the law than on funding policing and punishment. Those priorities are reflected at every level of society. The American Civil Liberties Union noted that 14 million American students go to schools that have a police officer but no counselor, nurse, psychologist or social worker. 

The nation’s indifference to poor students is related to its willingness to warehouse those same students in prisons when they become teens and young adults. If American society, and its political leadership, is unwilling to invest in providing opportunity even for nonviolent offenders, what hope is there for an inmate from a marginalized neighborhood who commits a violent act as an adolescent or young man?

Ultimately, successful prison reform requires a more generous, less fearful polity, one less eager to embrace pitiless retribution as a moral and political value. Productive reforms — shorter sentences, diversion programs, services to facilitate social integration in lieu of incarceration — entail redirecting public investment. But they require something else: an assumption of small but nonetheless real risk. A convicted criminal who is not in jail is one with the capacity to offend again, possibly violently.

As long as U.S. voters entertain wildly false notions about the true measure of that risk, and remain willing, even eager, to be manipulated by appeals to fear, humane policies will remain out of reach. Prisoners and corrections personnel will die unnecessarily in this pandemic. Many already have. More rational, and humane, policies could have saved lives. But for such efforts to take root, more Americans are going to have to learn to care about such lives in the first place. A better criminal justice system in the U.S. is premised on better politics.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Francis Wilkinson at fwilkinson1@bloomberg.net

To contact the editor responsible for this story:
Romesh Ratnesar at rratnesar@bloomberg.net