Could this be the year that lawmakers really begin to dismantle the system of mass incarceration that they have been building for decades? It seems conceivable, thanks to a surge in interest from elected officials at the state and federal level, as well as an “unlikely” coalition of left- and right-wing groups that announced its formation on Thursday. The Coalition for Public Safety, as the group is called, includes organizations like the Center for American Progress and the American Civil Liberties Union along with Tea Party-aligned FreedomWorks and Grover Norquist’s Americans for Tax Reform. It’s backed, in part, by Koch Industries.
“We finally have the wind at our backs when it comes to criminal justice reform in America,” ACLU Executive Director Justin Romero said on a call Thursday with reporters. “It’s taken more than forty years to build our addiction to over-incarceration,” he continued. “We look forward to the work ahead.”
Where, exactly, is that wind blowing? The transpartisan alliances springing up around criminal justice reform agree on the problem: the United States locks up too many people for too long. But the allies have varying explanations for why that’s a problem, and what its origins are. For groups like Americans for Tax Reform and libertarians like Rand Paul, lowering prison populations is a means of shrinking government; they have obvious differences with those on the left who believe significant investment in social services and gun safety laws would make communities safer. So to what extent do they agree on solutions, and where is the greatest potential for progress?
In Congress, there is momentum for reducing mandatory minimum sentences for nonviolent offenders; for limiting cops’ ability to seize assets; and for allowing some prisoners to take time off their sentences in exchange for participating in “recidivism reduction” education programs or “productive activities” like prison jobs.
But there’s one serious potential roadblock: Senator Chuck Grassley, the Iowa Republican who chairs the Senate Judiciary Committee, through which most reform bills would pass. In January, Grassley listed juvenile justice and prison reform among his top three priorities as chairman. But he’s a believer in a “tough on crime” approach to policing, and he’s particularly skeptical about sentencing reforms. “Lenient” and “dangerous” is how Grassley characterized the Smarter Sentencing Act after Utah Republican Mike Lee and Illinois Democrat Dick Durbin reintroduced it in the Senate in early February. That bill would cut mandatory minimum sentences for drug offenses and give judges limited discretion over mandatory minimums. (A bill sponsored by Kentucky’s Rand Paul would go even further to allow judges to give exceptions to mandatory minimums.)
Grassley did vote for a version of the recidivism reduction bill last year, and he supports reforms to asset forfeiture laws. These areas of reform are modest, and they have particular benefit for white and white-collar offenders. Still, advocates say they’ll throw their weight behind them as a starting point. “If civil asset forfeiture is the first [reform] we can jump on, let’s go with that and put the points on the board,” Romero said.
The most significant opportunities present themselves in state capitols, particularly in states stretched by budget shortfalls and overcrowded prisons. In Utah, for example, the prison population has grown by about 18 percent over the past decade. It’s expected to swell by another 37 percent by 2034. State lawmakers and the director of the Utah’s Department of Corrections are now questioning “tough on crime” policies and their relationship to recidivism. On Wednesday, a Republican state representative introduced a criminal justice bill that would reduce the penalties for drug possession, and provide more support for drug and mental health treatment; the goal is cut down on the number of nonviolent offenders who spend time in prison. “Data shows that when you treat these people like criminals, then shockingly, they become criminals,” Representative Eric Hutchings, the bill’s sponsor, said at a press conference.
In many states, momentum for reform is an indicator of how bad things are in American prisons. Pressure is building in Alabama, for example, not necessarily because of any new awareness of systemic injustice but because the state’s current rates of imprisonment are simply unsustainable. Alabama’s prisons are the most overcrowded in the country, at almost 200 percent capacity. Anticipating lawsuits, conservative lawmakers there are framing reform as a move to ward of the federal intervention. “If the federal government takes over, you’ll see a mass release of violent inmates and you’ll also see a lot of money having to be spent by the state of Alabama that we just don’t have to spend,” Republican State Senator Cam Ward, who chairs a prison reform task force, said recently.
“That really is where the action is,” said Romero, referring to state legislatures. That’s also where Congress takes its cues—from states like Texas, where conservative lawmakers got on board with investments in rehabilitation, special courts, and an overhaul of the parole system instead of new prisons, and saw reduced crime rates. Romero pointed to the Deep South as the “critical” place for the next phase of the reform movement. There are both practical and political reasons to look southward. The south locks up more of its population than any other part of the country, and because a majority of black Americans live in the region, the racial disparities evident everywhere in the justice system are amplified there. Given the extremely conservative character of those states’ legislatures, wins for reformers would send a clear signal to Congress about the movement’s strength.
Members of the Coalition for Public Safety made it clear that their focus is on “getting work done”; identifying areas of “urgent consensus” in order to score early wins, and moving from there onto more contentious ground. That’s where the potential—and the perils—of bipartisan compromise will really be tested.