The illusion of criminal justice reform

Why have bipartisan reform bills barely reduced the incarcerated population?

The Oval Office signing ceremony for the First Step Act in December 2018.Jabin Botsford/The Washington Post

When the United States ushered in the era of mass incarceration, it did not do so overnight, but it did it awfully fast: Between 1972 and 2009, the number of people imprisoned in this country ballooned by nearly 700 percent, a staggering increase that came to define the United States as the world’s leading incarcerator. Since 2009 — when the imprisoned population peaked at nearly 2.3 million — politicians, both Democrats and Republicans, have tried to reverse that trend. But despite a slew of bipartisan criminal justice reform bills that have passed through many a governor’s mansion and even the White House, this reality remains: In 2019, there were nearly 2.1 million incarcerated people, a paltry average annual decrease of 1 percent since 2009.

The slow pace of decarceration, especially when compared with the skyrocketing of prison populations in decades past, is an uncomfortable truth. While the cause of ending mass incarceration has been echoed in bipartisan rhetoric by everyone from Senator Elizabeth Warren to Senator Rand Paul, at the current pace it will take until the end of the century for the imprisoned population to be cut in half — a target that, at one point in his campaign, Joe Biden said could be met during his presidency. Americans should not wait that long to correct such an unjust system, one that disproportionately hurts Black, brown, and poor people. (Consider that the median annual income of prisoners prior to incarceration is about $19,000, or 41 percent less than non-prisoners’, and Black people are imprisoned at more than five times the rate of white people.)

That’s why it’s time to look at the impact of bipartisan criminal justice reform legislation and ask whether the horse-and-buggy pace of decarceration is happening in spite of these reform efforts or because of them. Kay Whitlock and Nancy A. Heitzeg, authors of the new book “Carceral Con: The Deceptive Terrain of Criminal Justice Reform,” argue that it’s the latter. “The more we looked at what was happening in the name of reform,” Whitlock says, “the more concerned we got and the more convinced we were that there was a lot of deception in the reforms being offered.”

While a lot of criminal justice legislation in the past decade has sought to address the injustices of overcriminalization, cash bail, and inhumane prison conditions, there’s a case to be made that these reforms, on the whole, may simply be preserving the era of mass incarceration — repackaging it in a way that appears kinder and more forgiving so as to assuage public opinion. “Reforms have tended not just to replicate the system but actually to expand its reach,” Heitzeg says. “There’s more money, there’s more surveillance, there are more requirements of people caught up in it.”

Take, for example, the bipartisan reforms that have addressed pretrial detention. Even though people in pretrial detention are, by definition, still considered innocent under the law because they have not been convicted of a crime, they can still face severe consequences, especially if they are poor and can’t afford bail. Even spending a few nights locked up can cost people their jobs or housing. Some people might even lose custody of their children.

That’s why more and more jurisdictions have tried to eliminate or dramatically reduce their use of cash bail — a classist system that inherently criminalizes poverty by effectively allowing only people who can afford bail to be released from pretrial detention. But while ending cash bail is a step in the right direction, the resulting legislation has come with alternatives that will preserve class and racial inequities. For example, many jurisdictions that want to eliminate cash bail are trying to replace it with burdensome and costly conditions on people awaiting trial. These include ramping up drug and alcohol testing, home detention, and electronic monitoring, all of which can reinforce the harmful and inequitable outcomes of sending people to jail. Such practices “oftentimes can be just as oppressive as keeping someone in jail,” says Kanya Bennett, the senior policy counsel and legislative coalition manager at The Bail Project.

Los Angeles County Sheriff's deputies inspected a cell block at the Men's Central Jail in downtown Los Angeles in 2012. Reed Saxon

There’s also the fact that pretrial release still, in many cases, places an undue burden on low-income people — what some call “offender-funded justice” — since people who are charged with a crime have to pay fees to cover the cost of things like electronic monitoring ankle bracelets, which can be nearly $100 a week. Such conditions, like the dramatic expansion of electronic monitoring, can put people in a position to violate rules that did not exist previously, and thus they risk facing more charges and being rearrested.

“A lot of people are finding themselves on monitors who might otherwise be let out on their own recognizance,” says Maya Schenwar, who coauthored the book “Prison by Any Other Name: The Harmful Consequences of Popular Reforms.” “If you violate the terms of electronic monitoring, then the penalty is [often] incarceration in a physical institution. In certain ways, it’s a trick, especially since the terms are so restrictive, and for so many people it’s almost impossible not to violate them.”

Bipartisan legislation to end cash bail has also ignored calls from advocates to be more cautious with the use of “risk assessment tools,” which are supposed to evaluate a given individual’s likelihood of appearing at their trial or reoffending. The problem is that risk assessment tools can actually worsen racial disparities. One investigation by ProPublica, for example, found that risk assessment algorithms were twice as likely to label Black defendants as “future criminals” than white defendants, who were more likely to be labeled low-risk.

“If you are going to use data that reflects the racial disparities in arrests . . . then we are using the wrong information, we are using a bad data set, and we are going to continue to find ourselves in the system’s status quo that we’re very much trying to eradicate,” says Bennett, from The Bail Project. When New Jersey took on cash bail reform, for example, it relied on risk assessment tools instead. While the state did significantly reduce its jail population, the racial makeup of the population stuck in jail pretrial — about 50 percent Black and 30 percent white — did not change. “There are certainly pieces of reform that are positive, but no jurisdiction has yet to get it right,” Bennett said.

This is precisely one of the major flaws behind the First Step Act, the bipartisan criminal justice reform bill that Donald Trump signed into law in 2018. The law calls for the use of risk assessment tools to determine who can qualify for early release by evaluating prisoners’ risk of recidivism. Some researchers have found that the tool is producing disparate outcomes and preserving racial disparities in the incarcerated population. It identified 53 percent of Black men, for example, as having a high risk of recidivism while flagging only 29 percent of white men. It classified 30 percent of white men as “minimum risk,” a designation that only 7 percent of Black men received.

This is not to say that these bipartisan reforms have had no positive impact on people’s lives. And some states have actually made significant headway in reducing their imprisoned populations. But the reality is that many of these reforms include clauses and requirements that ultimately maintain the disparities in the criminal justice system and don’t put a major dent in the overall incarcerated population. In some cases, policies under the name of reform end up expanding the reach of the carceral state, doubling down on surveillance and requiring people to be electronically monitored in situations where they previously would not have been.

If policymakers are serious about ending America’s outsize representation in the global prison population, they have to be willing to take on more dramatic reforms that avoid a “one step forward, two steps back” approach. When it comes to cash bail, for instance, legislators should listen to advocates who warn them of the pitfalls of the expansion of risk assessment tools and electronic monitoring.

Much of the conversation around criminal justice reform revolves around drug sentencing laws. But, as Whitlock and Heitzeg point out in their book, “decriminalizing drugs, while important, will address only 20 percent of the overall prison population, and less than that if sentencing changes do not apply retroactively.” That’s not an insignificant number, but it goes to show how much further legislators need to go. Ending mass incarceration requires voters and politicians to also be compassionate with people guilty of more serious crimes, including those classified as violent.

Until then, Americans ought to be wary of bipartisan criminal justice reform bills and ask whether they’re meaningfully addressing systemic racism and contributing to ending mass incarceration. Because if you read the fine print in these pieces of legislation, the answer is almost always no.