Takeaway: The bipartisan momentum behind criminal justice reform is growing, a trend that reflects long-term declines in crime and incarceration.

TREND WATCH

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. Over the past few years, criminal justice reform has become a major talking point on both sides of the political aisle. This newfound interest in reform is the culmination of a decades-long plunge in crime and incarceration rates due to generational change.

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.

Most of the reforms now 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.

Indeed, 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.

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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. 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.

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Experts have put forth many theories to explain the decline in criminality. (See: “What’s Behind the Decline in Crime?”) But one explanation stands above all others: 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.

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The differences by age are astonishing. More than the entire decline in the U.S. incarceration rate since 2001 has occurred within younger age brackets. Fully 11% of inmates are now age 55 or older, up from just 3% in 2001. (See: “Growing Old Behind Bars.”) 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.

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.

Nevertheless, reform strategies do differ by party. For the most part, the GOP is 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. 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.

TAKEAWAYS

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.

  • 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.
  • 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.
  • Criminal justice reform 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 Kamala Harris, who has perhaps the longest history in the criminal justice system. Also facing backlash are Amy Klobuchar, who aggressively prosecuted drug crimes as a district attorney, and Joe Biden, who led the charge for the 1994 crime bill that helped balloon the prison population. Just about the only Democrat treating his or her record on criminal justice as an asset is Cory Booker, who recently became the first candidate to unveil a comprehensive reform plan: the Next Step Act.