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TREND WATCH: What’s Happening? Over the past few years, criminal justice reform has become a major talking point on both sides of the political aisle. Democrats and Republicans alike are advocating policies that would reduce the prison population, along with sentencing reforms and increased funding for rehabilitation programs. These efforts recently culminated in the first major criminal justice bill to pass Congress in eight years. Our Take: The bill is the culmination of a decades-long plunge in crime and incarceration rates. After being pushed to record heights by young Boomers and Xers in the ‘80s and ‘90s, crime began its historic decline just as risk-averse Millennials entered on the scene. As crime rates have fallen, so has Americans’ desire for punitive policies. This shift leaves Democratic politicians with tough-on-crime histories in an awkward position. It also puts progressives on the left dangerously out of touch with Democratic moderates. Both sides will continue pushing for reform, but it’s Republicans who are most likely to make it happen without alienating their base in the process. |
BIPARTISAN REFORMS MEET INTRAPARTY TENSIONS
On March 5, activists gathered from coast to coast for the third annual National Day of Empathy, a nationwide event that brings lawmakers together with people "impacted" by the criminal justice system. The event was organized by #cut50, a nonpartisan group that aims to cut the national prison population in half over the next decade.
Unlike so many movements of our time, criminal justice reform has plenty of crossover appeal. On Capitol Hill, there’s a broad consensus among Democrats and Republicans alike that the current system is costly and unfair. Late last year, lawmakers came together across the ideological spectrum to pass the First Step Act, which allows federal prisoners to earn an earlier release from prison and eases mandatory minimum sentences, among other provisions. It was backed by an unusual coalition of activists and advocacy groups, including Trump family members, the American Civil Liberties Union, the National Urban League, FreedomWorks, and the Koch brothers-backed Right on Crime.
But the bill also divided each party. On the right, the legislation was championed by supporters such as Senators Mike Lee, Chuck Grassley, and Rand Paul. But they faced pushback from a hard-charging group of Republicans led by Senator Tom Cotton, who is a longtime opponent of criminal justice reform and argued that the bill would give a green light to violent criminals. The clash was so fierce that Mitch McConnell was initially reluctant to bring the bill to a vote.
Most Democrats supported the First Step Act. But early on, a cadre of leading Senate Democrats, including Cory Booker, Kamala Harris, and Dick Durbin, objected to its limited scope. They issued a letter that called the bill “a step backwards” and demanded additional changes to sentencing laws that were later added. All the Senate Democrats ended up voting for it. Yet the dissatisfaction with the bill lingered, and several Democrats explained that their vote wasn’t so much an endorsement as it was an acknowledgment that more substantive reforms were unlikely. Ideally, what they wanted was a complete overhaul. As their party has drifted to the left, Democrats’ insistence that the criminal justice system is totally broken has gotten stronger—and the proposed solutions have grown more radical, as evidenced by the “abolish ICE” movement last summer.
This issue is emerging as a key differentiator for the jam-packed 2020 Democratic field. Several contenders are coming under fire from progressives for their role in shaping the tough-on-crime policies they’re now trying to dismantle—in particular Harris, who has perhaps the longest history in the criminal justice system as a prosecutor, district attorney, and state attorney general. Also facing backlash are Amy Klobuchar, who aggressively prosecuted drug crimes as a district attorney, and Joe Biden, who as a senator led the charge for the 1994 crime bill that helped balloon the prison population.
The increased scrutiny is resulting in a campaign trail that is as heavy on apologies as it is self-promotion. Just about the only Democrat treating his or her record on criminal justice as an asset is longtime reform advocate Booker, who recently became the first candidate to unveil a comprehensive reform plan: the Next Step Act.
SO WHY NOW?
As 2020 nears, the issue of criminal justice reform is only going to loom larger. Since the First Step Act was enacted, multiple states have passed or begun considering similar legislation. A growing chorus of lawmakers and activists are calling for an end to the death penalty, an idea that’s gaining traction even in deep-red states. As the term “first step” suggests, more reform legislation is likely to come soon—whichever party runs the nation’s capital. So why is this movement gaining momentum? And why is it happening now?
Most of the reforms under consideration target laws that took effect in the 1980s and ‘90s. At the time, crime rates were surging to all-time highs, a growing share of Americans were fearful of being victimized, and politicians on both sides rushed to embrace punitive policies to stem the tide. Since then, rates of violent crime have dropped dramatically, by anywhere between half and three-quarters. Historically, when crime goes down, the public becomes more receptive to a gentler approach. In short, criminal justice reform is becoming an issue because crime is less of an issue.
BOTH CRIME AND INCARCERATION RATES ARE DOWN SHARPLY
The story of crime in the United States over the past quarter-century is one of dramatic decline. According to the FBI, which tracks crimes reported to police, violent crime fell 49% between 1993 and 2017. Over the same period, property crime fell 50%. Data from the Bureau of Justice Statistics, which surveys American households on whether they’ve been victims of crime, are even more striking: Violent crime and property crime were down 74% and 69%, respectively, during this span. (Criminologists consider these latter data series more reliable because many people don’t report their victimization to the police, especially in regions or in years when criminal activity is high and rising.)
The long-term decline in crime hasn’t been uninterrupted. In 2015 and 2016, increases in violent crime and murder rates, particularly in big cities, raised alarm and spurred warnings about a possible “Ferguson effect.” But according to the latest FBI numbers, these upticks may have been temporary: Preliminary data for the first half of 2018 indicate that rates of violent crime, murders, and property crime are all falling again.
As crime has declined, so have arrest and incarceration rates. The arrest rate has fallen steadily: In 2016, there were 3,300 arrests per 100,000 Americans. Throughout the ‘90s, this figure was closer to 6,000. The incarceration rate began falling more recently. The rate rose sharply throughout the ‘90s and early ‘00s before peaking at 1,000 per 100,000 Americans in 2008. Since then, it has fallen every year and as of 2016 had dropped to 860—the lowest incarceration rate in 20 years.
To some extent, the drop in incarceration is the result of state-level efforts to provide nonviolent offenders alternatives to prison and other reforms. Since 2007, 35 states have made policy changes to reduce their incarceration levels. State prisons hold the majority of the total prisoners in America (56%), followed by local jails (27%) and federal prisons (10%). Mostly, though, the drop reflects the decline in sentencing linked to the decline in the number of crimes, arrests, and convictions. And, as we might expect, the drop has happened with a lag of roughly ten years as the imprisoned criminals complete their prison sentences or (if re-convicted) “age out” of their most crime-prone phase of life.
One further observation points directly to the cause of ebbing criminality (and we will return to it shortly): The decline in the incarceration rate has not occurred equally across age groups. The overall rate is down 14% since its peak, but more than all of this decline is due to much larger drops among the young. From 2001 to 2016, incarceration rates among men in state and federal prisons plunged in every age bracket under 30—by a remarkable 71% for men ages 18 and 19 and by 39% for people in their 20s. Over the same period, incarceration rates rose in every age bracket over 40: for ages 40 to 44, by +29%; ages 45 to 54, by +77%; and 55 and older, by +200%. Fully 11% of inmates are now age 55 or older, up from just 3% in 2001.
For many years, it appeared as if the public was unaware of the falling crime rate. In polls through the ‘00s, Americans regularly reported that crime around the country had worsened. Yet when asked to distinguish between crime at the national and local levels, they were far more likely to say that crime was up nationally than in their area, suggesting that people are aware of what’s happening in their own neighborhoods. And recently, this perception has begun to broaden out. In Gallup’s latest annual poll, the share of Americans who consider crime a serious problem in the United States fell below 50% for the first time since 2005.
WHY? MOSTLY, IT’S GENERATIONAL CHANGE
Experts have put forth many theories to explain the plummeting crime rate. One prominent theory links less crime with better economic conditions. Other theories credit more effective policing. The rest cover a huge range of environmental and social factors, including decreased lead exposure, less drinking, more effective use of psychiatric drugs, and more would-be offenders spending their time indoors playing video games. One theory will be familiar to fans of Freakonomics: that legalized abortion resulted in fewer births of children at the highest risk of committing crimes.
But most of these theories either lack research or haven’t held up in the face of opposing evidence. The decline in crime, for example, continued both before and after the Great Recession and across cities that implemented wildly different approaches to policing. The abortion rate explanation, while plausible for crime-rate declines in the late 90s and early 00s, no longer fits the continuation of that decline over the last decade. As for more supervision and protection of youth—and less risk-taking by youth—sure, there are plenty of trends that seem to point in this direction. But are all these just random behavioral deltas that just happened to occur at the same time?
Let us propose a more general explanation that both extends and encompasses all of the above: generational change. Historically, there has been a close relationship between the coming of age of each generation and major inflections in the crime rate. Youth crime rates started to rise in the mid-1960s, just as first-wave Boomers entered the youth age bracket. For the next three decades, Boomers and Xers drove a huge surge in youth violence.
The combination of higher crime rates and harsher sentencing explains why we saw such an impressive rise in incarcerations during those years. And the fact that these generations are continuing, at older ages, to commit crimes at higher rates than earlier generations well into their 40s and 50s and 60s has actually retarded the fall in both the crime rate and the incarceration rate. (See chart below. Although the age of the criminal in victimization surveys is not known, there is a close and well-established correlation between the age of victimizers and victims.)
In other words, prisons are adding geriatric wings not just because all these Boomers and Xers are growing old in prison due to crimes they committed decades ago—but also because they are still committing crimes at a historically high rate for people their age.
It wasn’t until the late ‘90s and early ‘00s, when Millennials began coming of age, that crime and victimization rates began falling. Unlike Boomers and Xers, Millennials as children were increasingly sheltered, supervised, and urged not take risks. As they grew older, Millennials began to behave accordingly. The proportion of a population involved in crime tends to peak in adolescence or early adulthood and then decline—and Millennials, in their peak crime years, are committing crimes and being incarcerated at much lower rates than earlier generations of youth.
The differences by age are astonishing. To measure this shift by the reform standard of the #cut50 movement, consider this: If we just look at all Americans under age 25, we have already cut the male incarceration rate by more than 50% since its 2008 peak. Due to simple generational aging, we will soon be able to say the same about all males at progressively older benchmarks.
Even prisons themselves have become much less violent in recent decades. Back in 1980, the BJS reported a homicide rate of 54 per 100,000 inmates. Today, that rate is down to 4 per 100,000 (a decline of over 90%)—which is actually lower than for most ordinary Americans out of prison. Much of this decline, according to penal scholar David Skarbek, is due to the growth of prison gangs by Boomers and Xers that first took hold when the penal population was exploding and now are a major force maintaining order. For the typical Millennial inmate, prison is a much safer experience that it was for their Boomer or Xer parent.
GETTING THE FACTS STRAIGHT ON CRIMINAL JUSTICE
As the debate over criminal justice reform continues, the public should not only know the facts about crime, but also the truth behind oft-repeated talking points. Examples:
Myth #1: Harsh penalties for drug offenses is what led to our high incarceration rate. Politicians on both sides of the aisle have made this claim to support the legalization of marijuana. But nonviolent drug crimes—the vast majority of which are possession and use, with a smaller share coming from sales and manufacturing—account for only 20% of those behind bars. This is roughly the same as the share imprisoned for property crimes (19%, which include burglary, larceny, theft, and arson) or for public order crimes (19%, which include disorderly conduct, drunkenness, prostitution, etc.). The largest category (42%) comprise inmates who are locked up for committing violent crimes. These include murder, rape, robbery, and aggravated assault.
Myth #2: Poorly run private prisons are the heart of what’s wrong with the criminal justice system. Reformers often cite private prisons as a source of corruption and say they create incentives to incarcerate people. Pressure from protesters recently convinced JPMorgan Chase to stop financing the industry. In fact, however, the vast majority of inmates are held in prisons and jails that are publicly owned and run. A mere 8% of prisoners are held in private facilities. Furthermore, because it's hard to compare the performance of different prisons, there isn’t much evidence to support the claim that private prisons are worse in quality or more expensive than public prisons.
Myth #3: Institutional racism explains the overrepresentation of blacks in prison. Part of what’s driving the reassessment over criminal justice today is awareness of the outsize impact that tough-on-crime policies have had on black communities. In her landmark 2010 book The New Jim Crow, author Michelle Alexander argues that these harsh laws effectively constitute a racial caste system.
But in his 2017 book Locking Up Our Own, Yale Law School professor James Forman Jr. tells a more complicated story. He explains that many black elected officials, including D.C. mayor Marion Barry and federal prosecutor Eric Holder, took the lead in imposing harsh sentences in majority-black jurisdictions. Their intention was not racial apartheid--but rather to save poor communities devastated by crime and drugs. To weigh the impact on black communities, in other words, it’s a mistake to focus only on the cost of tough crime enforcement without also focusing on the cost of crime itself.
Myth #4: Blacks are overrepresented in prisons because they are underrepresented in law enforcement. The many high-profile incidents involving white police officers and black citizens in recent years have spurred calls to increase diversity within the police force. To be sure, blacks are significantly underrepresented in many local law enforcement agencies across the country, including in New York City and Philadelphia. But in other cities—like New Orleans, Miami, and Washington, D.C.—they are overrepresented. Overall, across America’s ten largest cities, the share of blacks on police forces pretty much matches their share of the population.
Yes, whites are indeed overrepresented on police forces. But that’s because Hispanics and Asians, not African Americans, are greatly underrepresented compared to their share of the population. The difference is especially large in several major cities, including Chicago, Atlanta, and Los Angeles. Asians—strikingly—are both the most underrepresented on police forces and the most underrepresented among prison inmates.
THE POLITICS OF REFORM
The main driver behind today’s criminal justice reform movement is, again, the dramatic recent decline in crime itself. Law enforcement is inevitably a blunt instrument, requiring some people to be wrongly or excessively punished in order bring the guilty to justice. Enforcement policy, accordingly, is always a balancing act. It weighs voters’ fears of being victimized by crime (and their compassion for the victims) against their compassion for those whose lives are victimized by excessive arrests, convictions, and sentencing. When crime is rising, the balance tilts toward harsher enforcement. When it is falling, it tilts toward greater leniency.
This isn’t the first time we’ve seen incarceration rates track crime rates (with a lag) in an era of harsher or more lenient enforcement. Data from the early 20th century show that the incarceration rate rose steadily during the 1920s and 1930s, decades which followed a long era of rising crime and stricter laws. That era that climaxed with the “roaring twenties” and the celebrity gangsters (like John Dillinger and Bonnie and Clyde) of the early 1930s. The crime rate thereafter fell during the rest of the Great Depression, World War II, and through the postwar American High.
Starting in the mid-1960s, it was rinse and repeat. The crime began to rise again, and roughly a decade after that, during the “Dirty Harry” 1970s, the incarceration rate began to rise as well. The next thirty years witnessed additional crime surges, harsh “three-strike” laws, and a meteoric further rise in the incarceration rate—which peaked at nearly ten times what it was a century ago. Now, following the crime rate with a lag, the incarceration rate is falling again. And policy changes are following suit.
These trends in crime and incarceration lessen the controversy surrounding a middle-ground path to reform. The fact that crime is going down makes it difficult for hardline conservatives to stonewall any discussion of reform. Yet the fact that incarceration has been falling for a decade makes it difficult for hardline progressives to claim that “mass incarceration” is a juggernaut that has yet to be turned around.
The reform movement is also being shaped by trends in the electorate. Both parties are pursuing criminal justice reform. But while Democrats are doing so with increasing gusto and enthusiasm, Republicans are expressing a growing degree of caution. This difference may reflect how their electoral bases are shifting.
Since the 2016 election, nonwhite voters (especially Hispanics and Asians) have grown more likely to lean toward the Democratic Party. Nonwhites are historically less trusting than whites of the criminal justice system. Democratic voters have also trended increasingly female, more suburban, more educated, and more likely to self-identify as “liberal.” These voters are less likely to fear criminal victimization—and more likely to empathize with the victims of enforcement.
Meanwhile, Republican voters have trended in the opposite direction: The arrival of Trump has tilted the party more toward whites and gained them blue-collar, working-class voters who used to support Democrats. The changing rhetoric about crime mirrors what’s happened to rhetoric about immigration: Many Democratic leaders who used to push for limiting immigration in support of their blue-collar constituencies have reversed position—in part, because their constituencies have changed.
The growing “education” tilt in favor of Democrats may be steepening the partisan gradient on this issue. According to analysis by The Wall Street Journal, Democrats hold 81% of House districts with the highest shares of bachelor’s degrees, up from 50% in 1998. (See: "The Next Big Thing: The 2018 Midterms: A Tale of Two Americas.") As it turns out, educational level is a critical driver of attitudes toward crime. According to a 2014 analysis by The Opportunity Agenda, perceptions of whether crime is rising or falling differ little by gender, age, race, or geographic region—but greatly by educational level. The less educated (or affluent) you are, the more likely you are to believe that crime is increasing.
These shifts help explain why Republican leaders have not adjusted their tone on criminal justice reform as much as Democrats have. Their arguments are designed to persuade libertarians and Tea Partiers who distrust the criminal justice system because they fear an authoritarian state and government overreach. But for the most part, they’re addressing a base that is disproportionately white, older, and less educated. While this group can go along with reform so long as it’s mainly focused on nonviolent offenders, they continue to be cautious about any reform that might re-ignite violent crime. For moderates in the political center, this is a fairly safe position.
Democrats are in a more vulnerable position. As their most progressive leaders pull the party toward more radical (and racialized) positions on criminal justice reform, slogans that may do well among primary voters on the left—like "mass incarceration," "abolish ICE," and "black lives matter"—are likely to threaten moderate voters in a general election.
The passage of the First Step Act proved that the parties can come together on a basic reform agenda. But the very zeal expressed by many Democrats on this issue may be turning it into a wedge opportunity for Republicans. Ironically, the “law and order” party may be getting the better political tailwind out of prison reform—though it’s their colleagues across the aisle who want the bigger overhaul.
