America’s criminal legal system is rooted in the nation’s history of legalized slavery and racial oppression, according to The Brennan Center for Justice. Our current system of punishment is still founded on a basic conception of outsider-hood that continues to create and perpetuate racial, ethnic, and class inequality. Criminal legal reform efforts must engage directly with this sordid lineage to unmoor the inequitable impacts and outcomes of our current system of “justice.”
As Cornell William Brooks, former president and CEO of the
National Association for the Advancement of Colored People, wrote:
“Communities of color are over policed, over-prosecuted, over-incarcerated and
yet underemployed.” The racial disparities throughout our criminal legal system
are considerable. For example, one in three Black men are incarcerated in their
lifetimes compared to one in 17 white men. When it comes to policing, these
disparities are even greater, as evident in the number of Black men and women
who are killed without justification by law enforcement officers. A mapping of
police violence illustrates that Black Americans are three times more
likely to be killed by police officers than white Americans, while nearly twice
as likely to be killed as a Latinx person. Black Americans are also about 30%
more likely to be unarmed in fatal interactions with police than white
Americans.
Can the federal government do anything to transform the
American criminal legal landscape and reduce racial disparities? This is a
genuine question. So many of these challenges exist at the local and state level.
For instance, local jails and state prisons account for 91% of the nation’s
incarcerated population. To put it just a bit differently: There are about 2.2
million people behind bars in this country, but only about 175,000 of
them are in federal prison. Additionally, there are more than 10 million
admissions in and out of the nation’s colossal network of local jails
each year; more than 4.5
million people on probation or parole; and more than 70
million people have conviction histories that subject them to lifelong
consequences to their lives and livelihoods. And when it comes to policing,
there are 18,000 local police departments dotting the United
States.
Yet still, the federal government is uniquely situated to
incentivize systemic reforms for state and local-level criminal legal systems.
Consider the many forms that federal involvement in local
criminal justice affairs can take. Federal agencies can and do enforce federal
law against localities. For example, the Justice Department’s Civil Rights
Division and U.S. Attorneys’ offices have the statutory authority to bring
civil rights actions against corrections agencies and local police departments
in addition to criminal prosecutions against individual officers to enforce
federal rights law when police violate those rights. And through the federal
government’s grantmaking powers, it can shape state and local criminal justice
policy.
Federal funding schemes have long encouraged states to focus
their resources on law enforcement interventions to deal with social problems,
often resulting in our government locking up ever more people for ever longer
periods of time. This has resulted, in part, in today’s bloated carceral state.
In fact, since the 1960s, the federal government has played a central role in
shaping the nation’s criminal justice landscape through outlays of grant money
to states. For decades, federal grants encouraged states to increase arrests,
prosecutions, and imprisonment. Federal funds have supported the expansion of
local jails, including paying jails to house federal incarcerated individuals
as well as ICE detainees.
One example of how federal dollars incentivized the growth
of the carceral state that only exacerbated racial disparities is through
the Violent Crime Control and Law Enforcement Act of 1994 (The
1994 Crime Bill), which authorized incentive grants to build or expand
correctional facilities. Grants totaling $12.5 billion were authorized for
incarceration, with nearly 50% earmarked for states that adopted tough
“truth-in-sentencing” laws that required people to serve substantial portions
of their custodial sentences. Other examples over the last half century include
the Omnibus Crime Control and Safe Street Act of 1968, which
provided $400 million for law enforcement purposes; and the Anti-Drug Abuse Act of 1986, which increased federal
funding for law enforcement to fight the drug war. Then in 2005, when
reauthorizing the Violence Against Women Act (VAWA), Congress created the
Edward Byrne Memorial Justice Assistance Grant program (JAG). All 50 states,
territories, and more than 1,000 local governments rely on JAG dollars, whose
funding level for the entire program averages between $300 to $500 million
yearly. Those dollars support almost any criminal justice activity covered by
the federal statute, yet about 60% of state-level JAG dollars support law enforcement
and corrections functions. In his 2013 book, “Rise of the Warrior Cop: The
Militarization of America’s Police Forces,” journalist Radley Balko
encapsulated this crime fighting incentive well: “As local police departments
were infused with federal cash, members of Congress got press release fodder
for bringing federal money back to the police departments in their districts.”
The federal government should no longer subsidize mass
incarceration and should instead incentivize states to reverse the era of
excess punitiveness and shrink the carceral state. One powerful way to do so
would be for the president to champion and Congress to pass the Reverse Mass
Incarceration Act (RMIA) to unwind these incentives by ensuring that federal
grants are sent only to states that reduce incarceration. Designed to undo the
damage inflicted by federal policies incentivizing states to lock up more
people and to lock them up for longer periods of time, the RMIA would establish
a grant program rewarding states for lowering their prison populations.
For states to obtain funding under the RMIA, they would have
to submit plans describing how they would reduce incarceration; the RMIA would
set an across-the-board reduction target for all states to meet. The grant
would encourage states to take numerous steps to undo mass incarceration, like
changing sentencing laws, establishing new programs diverting people away from
the system, or improving wraparound services for individuals reentering their
communities after incarceration. Leaders on both sides of the political
spectrum all agree: The United States must end mass incarceration, which
highlights and exacerbates racial inequality in America’s criminal punishment
system. And we believe the RMIA can serve as a vehicle for reigning in state
prison populations, while vastly reducing racial disparities in the system.
As calls for racial justice continue ringing in the air, the
federal government should use its powers to realize the humanity, equality, and
dignity of all. Black and Brown people deserve more. And anything less
threatens to make our justice system anything but.
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