Maintaining Momentum on Mass Incarceration – by John S. Kiernan

President’s Column, February 2017

Major law reform changes sometimes require planets to align, consensus to build, and decision-makers with different priorities and perspectives to find com­mon ground. As detailed in the recently released report by our Task Force on Mass Incarceration (chaired by John Savarese), entitled “Mass Incarceration: Where Do We Go From Here,” the period beginning just a few years ago and apparently continuing to find momentum now suggests that this is such a moment in time, for our system of punishing criminals. The relentlessly disconcerting message that the United States is by far the world’s greatest imprisoner among nations not ruled by despots, with 4% of the world’s population but 21% of its prisoners (and with enormous racial imbalance in that population), has coalesced with broad rec­ognition that mass imprisonment carries enormous economic, community, and human costs without discernibly reducing crime or preventing recidivism. While prisoners have historically been a low priority for politicians, policy-makers from a broad array of political persuasions are on the case. As the Task Force’s update recognizes, recent periods have seen enormous changes in focus, with some obvious areas of continued need for further change.

The effects of the changes in focus have already been significant. New York State has reduced both the number of people entering jail and the duration of their stays, to the point of falling to the 12th lowest incarceration rate in the country, and New York City has reduced its jail population by half in the last 20 years and 14% in the last two years, so that it is now the lowest incarcerator of the country’s ten largest cities. These changes have been accomplished largely through sentencing reform, increased diversions for people who are better candidates for correction through diversion than through imprisonment, and increases in releases on recognizance or bail reform. In the meantime, jailed or imprisoned juveniles are being more rigorously sepa­rated from adults, and major reductions have taken place in the use of solitary confinement (as a result of both policy changes and two litigation consent de­crees). Increased efforts to prepare pris­oners for reentry, coupled with changes in the rules regarding collateral conse­quences of a criminal conviction (includ­ing more openings for former offenders to obtain licenses and implementation of “ban the box” restrictions on employers’ or universities’ obtaining up-front disclo­sure of criminal convictions), are aiming to increase the prospect that people can emerge from prison with a path to mak­ing a life that works on the outside.

The past few years have also witnessed significant movements toward reform at the national level, often with enough strong bipartisan support to present reasons for continuing the push for reform federally. The Second Chance Pell program for education of prisoners, re­entry reforms, the elimination of solitary confinement for juveniles and substan­tial reduction of such confinement for others, moves toward deprivatization of prisons, the promulgation of rules limit­ing collateral employment consequences of conviction, the numerically small but emotionally important grants of clemen­cy to over 1,000 individuals convicted of non-violent crimes and serving sentences far longer than they would receive for the same crime today, and other changes have achieved important positive results. A major sentencing reform legislative package with substantial bipartisan sup­port in both the Senate and the House of Representatives ended up founder­ing on disagreements about, among other things, whether the new law must include a universal mens rea element for all federal crimes. However, the consen­sus about the appropriateness of some significant changes to sentences (particu­larly including mandatory minimum sen­tences for low-level drug offenders) was sufficiently strong to provide hope that a form of this legislation will proceed even in the changed current political climate.

The priorities for further changes that should be pursued in New York are well-recognized, and Governor Cuomo and Mayor de Blasio have identified some of those priorities as important for them, too. With about 47,000 New York City residents expected to stay in jail before trial in 2017 solely because they are un­able to pay the costs of bail – of whom over 400 in detention on any given day have been detained on bail of less than $2,500 – bail reform is essential. In ad­dition, New York should end in 2017 its status as one of only two U.S. states that prosecute and punish juveniles aged 16- 18 as adults. Proposals to issue civil rather than criminal summonses for low-level in­fractions should be pursued, reducing the number of “criminal” matters by more than 150,000 a year in New York City.

More programs for the mentally ill – in a context where almost 40% of Rikers Island inmates (and an estimated 400,000 prisoners nationwide) have been diag­nosed with some form of mental illness, but only a small minority are receiving treatment – seem like an essential step in New York’s long-range slow adaptation to the effects of its “de-institutionaliza­tion” movement of the late 1970s. Diver­sion programs for non-violent offenders (especially including substance abusers), some of which have shown spectacular success rates, should get the resources they need to effect a potential transfor­mation in the thinking about how these offenders should be treated. Opportu­nities for early release, Second Chance statutes, and reformation of parole should be pursued to increase and refine the incentives for prisoners to direct their prison experiences toward good behavior, rehabilitation, and preparation for reentry. Collateral consequences of convictions should be reduced further. Ongoing important consideration about the role of jails like Rikers Island, and about the appropriate structure and na­ture of prisons around the state, should continue.

Similarly on the Federal level, the Sen­tencing Commission should continue its ongoing re-evaluation of guidelines penalties, especially for drug offenses in which low-level participants in illegal enterprises receive sentences intended for the leaders of those enterprises, and should work with the Justice Department to develop new rules permitting early release of appropriate candidates who earn consideration. The Justice Depart­ment’s “Roadmap to Reentry” program, and pilot projects on diversion (including the Pretrial Opportunity Program in the Eastern District of New York) should be continued. Increased focus on treat­ment for substance abuse and mental illness could transform the federal prison experience by addressing causes of the criminal behavior (and often of discipline issues within prison) and ways to enable the prisoners to function after complet­ing their terms. Mechanisms should be developed to evaluate prisons based on their success in reducing recidivism by their inmates – a measure not currently in place for any federal or state prison.

The momentum for significant and far-sighted change continues. As the Task Force’s latest report powerfully demonstrates, some of the appropriate next steps are clear, particularly given the continuing evidence that these measures have not increased (and in some instanc­es, like certain diversion programs, have discernibly decreased) crime. Now is the time to applaud the measurable progress achieved through concentrated attention on mass incarceration, and to proceed with the next steps.

The Task Force on Mass Incarceration’s report can be read here.

John S. Kiernan is President of the New York City Bar Association.