To Build a Better Criminal Justice System, The Sentencing Project, 2012

To Build a Better Criminal Justice System, The Sentencing Project, 2012

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To Build a Better
Criminal Justice System
25 Experts Envision the
Next 25 Years of Reform
Marc Mauer and Kate Epstein
Editors

This publication was edited by Marc Mauer,
executive director of The Sentencing
Project, and Kate Epstein, text editor.

stablished in 1986, The Sentencing
Project works for a fair and effective
U.S. criminal justice system by promoting
reforms in sentencing policy, addressing
unjust racial disparities and practices, and
advocating for alternatives to incarceration.
This publication has been supported, in
part, by a grant from the Open Society
Foundations and by the general support
that The Sentencing Project receives from
individuals and the following foundations:
Morton K. and Jane Blaustein Foundation
Ford Foundation
Bernard F. and Alva B. Gimbel Foundation
General Board of Global Ministries of
The United Methodist Church
Herb Block Foundation
JK Irwin Foundation
Public Welfare Foundation
David Rockefeller Fund
Elizabeth B. and Arthur E.
Roswell Foundation
Tikva Grassroots Empowerment Fund
of Tides Foundation
Wallace Global Fund
Working Assets/CREDO

Copyright © 2012 by The Sentencing Project.
Reproduction of this document in full or part in
print or electronic format only by permission of
The Sentencing Project.

2 5 t h A N N I V E R S A RY E S S AY S

Table of Contents
Introduction by Marc Mauer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Summoning the Superheroes: Harnessing Science and Passion to Create a More Effective and Humane Response
to Crime: Twenty-Fifth Anniversary Keynote Address by Jeremy Travis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

A Visionary Criminal Justice System: Our Unprecedented Opportunity by Alan Jenkins. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Human Rights Paradigm: The Foundation for a Criminal Justice System We Can Be Proud Of by Jamie Fellner. . . . . . . . . .

The Justice System in 2036: How States Ended the Era of Mass Incarceration by Dennis Schrantz . . . . . . . . . . . . . . . . . . . . . . . . . .

What’s Money Got to Do With It? The Great Recession and the Great Confinement by Marie Gottschalk. . . . . . . . . . . . . . . . . . . . .

Resetting Our Moral Compass: Devastated Communities Leading the Fight for a Just System by Leonard E. Noisette . . . . . . . . .

Vital Discussions: How to Stimulate a Frank National Conversation About Race by Robert D. Crutchfield. . . . . . . . . . . . . . . . . . . .

The Elephant in the Room: The Necessity of Race and Class Consciousness by Susan B. Tucker . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . .

The Promise of Prevention: Public Health as a Model for Effective Change by Deborah Prothrow-Stith, M.D.

Attica Futures: 21st Century Strategies for Prison Abolition by Angela Y. Davis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

There Is No Juvenile Crime Wave: A Call to End the War Against Children by Barry Krisberg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Juvenile Justice in 25 Years: A System That Passes the “My Child” Test by Bart Lubow. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

A Worldwide Problem: The Roots of Mass Incarceration by Andrew Coyle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Seeking Justice: A Crucial Role for Prosecutors in Reducing Recidivism by Charles J. Hynes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

What We Did in Dane County: How Reform Saved Money and Increased Public Safety by Kathleen Falk . . . . . . . . . . . . . . . . . . . .

“Remember the Ladies”: The Problem With Gender-Neutral Reform by Meda Chesney-Lind . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Retire the Leeches: The Promise of Evidence-Based Solutions by Seema Gajwani. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Reaping What We Sow: The Impact of Economic Justice on Criminal Justice by Elliott Currie. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Marching Upstream: Moving Beyond Reentry Mania by Glenn E. Martin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Addicted No Longer: Breaking Away from Incarceration as a Primary Instrument of Social Control by James Bell. . . . . . . . . . .

Prisons that Look Like America: Applying the Principles of Affirmative Action to the
Criminal Justice System by Paul Butler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Defending the Future: The Fundamental Right to Effective Defense Counsel by Randolph Stone . . . . . . . . . . . . . . . . . . . . . . . . . .

The “Iron Law” of Prison Populations: Reducing Prison Admissions and Length of Stay to
End Mass Incarceration by Todd Clear. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Surrender the War on Drugs: The Massive Impact We Can Expect From a Public Health Approach by Vanita Gupta. . . . . . . . . .

The International Challenge: The Movement Against the War on Drugs by Vivien Stern. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Light of Freedom: The Transformative Power of a Free Press by Wilbert Rideau. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

THE SENTENCING PROJECT

Introduction

n October 2011 The Sentencing Project celebrated its
25th anniversary with a forum held at the National
Press Club in Washington, D.C. That event, Criminal
Justice 2036, was designed with two ideas in mind. First,
to celebrate the accomplishments of our organization over a quarter century, of which we are indeed
proud. Our contributions to public debate and public policy on issues of crime and punishment during the
period, we hope, have helped in some measure to reduce
harm and improve lives.
Secondly, and more importantly, we used the occasion
to envision what our criminal justice system—and our
approach to public safety—should look like 25 years into the
future, in the year 2036. We did so because we believe there
is a moment of opportunity now, and therefore it is timely
to think broadly about directions for constructive reform.
In order to envision where we might go over 25 years, it is
helpful to assess where we have come from in the last 25
years. In this regard, there are two very different stories we
might tell.
The first is one of a policy climate in which punishment has
been exalted in ways unimaginable not very long ago. The
number of people in our prisons and jails has nearly tripled
during this time, a half million people are incarcerated for
a drug offense, and racial/ethnic disparities within the justice system are profound. Increasingly, we are gaining new
insight into the varied ways in which high rates of incarceration in disadvantaged communities affect family formation,
social cohesion, and life prospects.
The other story of the past 25 years is a more hopeful one.
That analysis focuses on the steep drop in crime in recent
years, the broad acceptance of the need for reentry programming, and increasing support for the concept of justice
reinvestment. We also appear to be at a point where prison

populations are finally stabilizing (albeit at world record
levels) after several decades, and are even declining substantially in a handful of states.
Both of these views are factually correct, which suggests that
it is up to us to determine in which direction criminal justice policy will proceed over the next quarter century. Both
for reasons of effectiveness and compassion, we hope that
the nation will adopt the strategy that emphasizes opportunity rather than punishment as the guiding theme of our
vision for public safety.
This volume aims to provoke a conversation about what that
vision looks like and how we can begin to put it into practice.
The collection begins with the text of Jeremy Travis’ keynote
speech at the 25th anniversary event. In this far-reaching
overview of where we should go and how we might get there,
Travis asks us to summon the “superheroes” of science and
passion to guide our way forward. As he describes it, we call
on science in our “quest for empirical truth” and passion for
“the human impulse to seek justice.” Within this framework
Travis lays out a scenario under which we can achieve five
significant goals: help victims restore their lives, pursue a scientific crime prevention agenda, develop professional standards for the justice system, rethink the role of the criminal
sanction, and fundamentally reconsider the level of imprisonment, which is “a stain on our national conscience.”
The 25 essays which follow are broad-ranging both in vision
and strategy. They contain the perspectives of leading thinkers in the field, including academics, practitioners, and policy advocates. All the contributors look to a day where public
safety is not premised on maintaining a world-record level
of incarceration. But there is a diversity of views on how we
might get to that point.
One author, for example, presents a compelling argument
for how fiscal imperatives can focus policymaker attention

2 5 t h A N N I V E R S A RY E S S AY S

on evidence-based approaches to reducing institutional
populations. But another author makes an equally compelling argument for why a reliance on fiscal arguments has
little basis for success absent a shift in the political environment in which these issues are addressed.
A number of authors promote various public education strategies designed to encourage a more rational public debate on
criminal justice. These include assessments about the potential leadership roles to be played by policymakers, practition
ers, leaders in disadvantaged communities, and individuals
who have been through the criminal justice system.
Equally significant are ideas on the means by which to convey convincing and comprehensive messages about the
need for reform. Some contributors stress disseminating
information about the success stories of recent years and
the opportunity to engage in ongoing research to identify
strategies for change. Others promote consideration of
such critical issues as the strategic role of race in addressing
criminal justice policy, the need to focus on issues specific
to women, and how to frame juvenile justice policy under a
rubric of a “my child” test that promotes compassionate and
effective treatment for all.
Intriguing ideas are also presented on the broad framework
by which we consider issues of public safety. For far too
long, that discussion has focused on criminal justice initiatives, and enhanced incarceration in particular, as the primary means of addressing public safety issues. But as many
of our contributors point out, that framework is seriously
flawed, and downplays the many ways by which social cohesion can be encouraged.
One contributor, for example, proposes that we transform
the criminal justice system by creating partnerships with the
public health community to focus on prevention. Another
suggests that it is critical to adopt a human rights framework
for justice reform so that we establish a different standard

for measuring progress. Others call for a wholesale reconsideration of national drug policy in order to reverse the
harmful impacts of recent decades. And we also hear from
commentators abroad who assess the role of the United
States in comparison to, and as influential, in developments
in other nations.
Our reasoning in putting together this collection of disparate voices is that developing and implementing a strategy
for transforming the criminal justice system is a complex
process. Just as the social and
political forces that produced
mass incarceration have been
varied, so too will be the strat- We hope that the nation
egies necessary to begin mov- will adopt the strategy
ing in a different direction.
In recent years we have seen that emphasizes
encouraging developments in opportunity rather
policy and practice that hold
than punishment as the
the potential to create a shift
both in the political environ- guiding theme of our
ment in which public safety is
vision for public safety.
addressed and in day-to-day
outcomes. At the same time,
we also recognize the still relatively modest scope of these
changes, given the scale of the problem to be addressed. It
is our hope that by contributing to public discussion about
ways to build on these changes, we can help to broaden the
conversation about crime and justice, and thereby envision
a significantly transformed justice system 25 years from now.
— Marc Mauer
March, 2012

THE SENTENCING PROJECT

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Summoning the Superheroes
Harnessing Science and Passion to Create a
More Effective and Humane Response to Crime
By Jeremy Travis

I am honored to have been invited to deliver this keynote address as we celebrate
the 25th Anniversary of The Sentencing Project. For the last quarter century, The
Sentencing Project has been a beacon of light beaming through the dark clouds
of our nation’s debates over crime policy.

nder the inspired leadership of Marc Mauer, and
Malcolm Young before him, The Sentencing Project
has been able to achieve what few other organizations in the criminal justice policy world have achieved—to
strike the right balance between hard-nosed, objective and
trustworthy research, on the one hand, and principled, logical and strategic advocacy on the other.
We can only marvel at the outsized impact of this feisty, smallbudget organization. Consider just three examples from
a larger portfolio: in large part because of The Sentencing
Project, our country has reduced the racial disparities in sentencing for offenses involving crack cocaine, begun to roll
back our felony disenfranchisement statutes, and reversed
many of the mandatory minimum sentencing schemes
that needlessly put thousands of people in prison. What an
impressive track record. We should be grateful for the work
of The Sentencing Project, and wish them many more years
of success. In very real ways, The Sentencing Project is helping us reclaim our position as a nation devoted to justice.
I have been given a challenging assignment today. While
we are reflecting on the past quarter century, Marc has
asked me to focus on the next quarter century—to envision
the world of criminal justice policy in 2036. In taking on
this assignment, one is tempted to paint a future world of
peace and harmony, where lions and lambs lie together, our
elected officials are all wise and enlightened, and debates
over crime policy are resolved rationally, by referring to

agreed upon principles, shared values and scientific evidence. I doubt this ideal world will exist in 2036. But we can
still set lofty goals for ourselves. I hope we can agree that, in
the next quarter century, we should aspire to create a crime
policy that is both more effective and more humane. By
“more effective,” I mean that we should respond to crime in
ways that produce socially desirable results—greater safety,
less fear, less suffering, greater respect for the rule of law
and less injustice—and that we do so efficiently, investing
our precious financial and human resources in ways that
maximize the results we desire. By “more humane,” I mean
we should respond to crime in ways that recognize the
humanity of those victimized by crime, those arrested and
convicted of crime, and others who experience the ripple
effects of crime and our justice system. This affirmation of
humanity, as I see it, incorporates values we hold dear in
our democracy, such as equal protection of the laws, access
to the rights guaranteed by our Constitution, and our fundamental belief in the dignity of the individual.
I need not detail for this audience the many ways our current reality falls short of these goals. Too many victims have
difficulty getting their lives back on track. Too often, our
police use excessive force, fail to follow legal dictates, and
undermine respect for the rule of law. Our system of adjudication too often coerces defendants to act against their
interests, and excludes victims from meaningful engagement. Our jails and prisons are frequently full beyond
capacity and too often resemble human warehouses rather

THE SENTENCING PROJECT

than humane places for reflection, rehabilitation and restoration. Our response to crime is marked by racial disparities that belie our commitment to equal protection of the
laws. And we have become a society with a growing population of individuals with felony records, and prison experience, a population that we marginalize through legal barriers and social stigma.
If we want our response to crime to be more effective and
more humane than this, we must summon the assistance
of two powerful superheroes—two forces that, working
together, can sweep away the cobwebs in our minds, clear
the highest organizational hurdles and move political
mountains. Our two superheroes are science—the quest for
empirical truth—and passion—the human impulse to seek
justice. People sometimes think that science and passion
are opposite human endeavors, that they must be mutually exclusive. In my view, these superheroes are not rivals.
In fact, the power of each is enhanced by the power of the
other. To advance the cause of justice by 2036, we must
be passionate about the importance of science, and must
incorporate the lessons of science in our passionate advocacy for a more effective and humane response to crime.
So, let’s think about the challenges that we face to see how
science and passion can work well together. I nominate, for
your consideration, the following five great challenges for
the next quarter century:

1. We must help crime victims rebuild
their lives.
When a crime is committed, the social contract is broken.
Our typical response to that event is to focus our resources
and energy primarily on finding the offender, prosecuting
him, and providing an appropriate criminal sanction if he
is convicted. Why do we overlook the legitimate needs of
the victim? Why does our passion for justice not extend to
those harmed by crime? What would science tell us about
the experiences, needs, and life course of crime victims?

Let’s begin with the science. First, one of the most important criminological discoveries of the past two decades
concerns the phenomenon of repeat victimization, the
research finding that for some crimes, once someone is
victimized, there is a high probability that the same individual will be victimized again.1 Indeed, the risk of re-victimization is highest in the period immediately following
the first incident. In my view, this scientific finding, which
applies to victims of burglary, sexual assault, and domestic violence, among other crimes, should create a social
obligation to intervene to prevent the next crime. Second,
science also tells us that for many crime victims, the crime
causes long-term negative effects. Victims are more likely
to experience mental illness, suicide, and substance abuse
than the general population.2 Victims of violent crimes suffer elevated levels of post-traumatic stress disorder (PTSD)
and suffer from many PTSD symptoms, such as becoming fearful and withdrawn, and experiencing difficulties
in professional, social, and intimate relationships.3 Given
these social harms, why do we not intervene to help mitigate the damage caused by crime?
Third, research also tells us that child abuse and neglect frequently create an intergenerational “cycle of violence,” to
use a phrase coined by Cathy Spatz Widom.4 Children who
suffer in this way are more likely than a comparable peer
group to engage in delinquent and criminal acts when they
grow up. Given this fact, how can we not provide special
interventions for these, our most vulnerable, to help them
secure a brighter future, while simultaneously preventing
future crimes?
Finally, we have known for decades that most victims never
see their cases go to court because most crimes do not result
in an arrest.5 In the small percentage of all reported crimes
where an arrest is made—about 20 percent—most cases are
resolved through plea bargains or result in dismissals, so
victims play a minor role, if any. Even in cases that go to
trial, where the crime victim may be a more active participant, the victim’s immediate and long-term needs are rarely

1. Graham Farrell and Ken Pease, Once Bitten, Twice Bitten: Repeat Victimization and its Implications for Crime Prevention (Crime Prevention Unit Series
Paper No. 46, Home Office Police Research Group, London, UK, 1993).
2. Dean G. Kilpatrick and Ron Acierno, Mental Health Needs of Crime Victims: Epidemiology and Outcomes (Journal of Traumatic Stress, 16, no.2, 2003)
3. Michael B. First and Allan Tasma, eds., Anxiety Disorders: Traumatic Stress Disorders, in DSM-IV-TR Mental Disorders: Diagnosis, Etiology, and
Treatment (West Sussex, UK: John Wiley & Sons, Ltd., 2004, 927-8).
4. Cathy Spatz Widom, The Cycle of Violence, Science 244, no. 4901 (1989): 162.
5. Jennifer L. Truman, Criminal Victimization, 2010 (US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, September 2011).

2 5 t h A N N I V E R S A RY E S S AY S

addressed. Given this statistical reality, why have we focused
so much attention on the role of victims in criminal proceedings, at the expense of devising a societal response to
all victims, whether or not the offender is ever arrested and
prosecuted? Where is our passion, our concern for human
suffering, our sense of justice?
My thinking on this topic has been influenced, I hasten to
acknowledge, by the work of my wife, Susan Herman, who
developed the concept of Parallel Justice.6 According to the
principles of Parallel Justice, we should not conceptualize
our response to crime victims simply as an act of charity, nor
merely through the creation of rights in criminal proceedings. Rather, the concept of Parallel Justice requires that we
respond to victims more effectively, and more humanely,
because the pursuit of justice requires it.

in the mid-1980s with the introduction of crack cocaine
in America’s cities.7 Then, as that epidemic subsided, violent crime rates started a historic decline, dropping to
rates lower than those seen in the 1960s, with another 12
percent decline from 2009 to 2010 reported by the FBI.8
Less well known is the story of property crime, which has
been in steady decline since the early 1970s. Our rates of
property crime today are half their level when the decline
started. These are remarkable stories. Who among us—particularly those working in this field for the past 25 years—
would have thought we could stand in our nation’s capital
and say that crime rates are at their lowest levels in our
professional lifetimes?

2. We must pursue a focused and
scientific crime prevention agenda.

I draw three lessons from this
story. First, we need a much
If we want our response
better understanding of why
this happened. I can think of to crime to be more
no stronger indictment of
effective and more humane,
our field than this: we do not
have a satisfactory, much less we must summon
a sophisticated, understand- the assistance of two
ing of the reasons that crime
has increased and decreased powerful superheroes…
so dramatically. Imagine science—the quest for
we were meeting at a medical convention, noting that empirical truth—and
the incidence of one type passion—the human
of cancer had dropped in
impulse to seek justice.
half since 1970, and another
type of cancer devastated
America’s inner cities, particularly its communities of
color, for several years, then dropped precipitously. Would
we not expect the medical research community to have a
deep understanding of what happened, what treatments
worked, what environmental factors influenced these
results, and which strains of these cancers proved particularly resistant? Of course we would.

We are fortunate to be meeting at a time when the crime
rates in America are at historic lows. There are two distinct narratives about crime trends in America. The story
of violent crime is well known. After a decline in the early
1980s, rates of violence in America spiked upward starting

So, the crime scientists among us need to get to work, with
appropriate funding from foundations and the federal
government, to help us understand our own history of
crime trends. And, looking forward, we need to develop a

The science is clear. A more effective response to victims
will reduce repeat victimization and future offending. It
will prevent long-lasting social harms and repair the social
fabric. We can hypothesize that a more humane response to
crime victims would enhance their respect for the rule of
law and would reduce the overall retributive mood in our
country. So we need to ask ourselves why we have not taken
the needs of crime victims seriously. Unfortunately, we have
created a two-track world that sees the interests of victims
and offenders as oppositional, that counts individuals as
either victim advocates or justice reform advocates, that pits
the suffering of prisoners against the suffering of victims.
We are a better nation than this history suggests. Between
today and 2036, we must expand our concept of justice to
embrace a societal obligation to those harmed by crime.
Our passion for justice, working in tandem with strong science, will lead the way.

6. Susan Herman, Parallel Justice for Victims of Crime (National Center for Victims of Crime, 2010).
7. Arthur S. Goldberger and Richard Rosenfeld, Editors, Committee on Understanding Crime Trends, Understanding Crime Trends: Workshop Report,
(The National Research Council, 2008).
8. Truman, 2011.

THE SENTENCING PROJECT

much more sophisticated data infrastructure to allow us
to track crime trends in real time.9 Think about this the
next time you hear about a business report on television:
If economists can tell us which sectors of the economy
were growing or declining last month, certainly we can
build a data infrastructure to help us understand crime
trends last year.
A second lesson: we need to rethink what we mean by
“crime prevention.” Too often we narrowly define “crime
prevention” only in terms of programmatic investments
in young people to help them lead more productive, prosocial lives. But clearly, over the past forty years, this historic decline in crime rates has not come about because
we invested massively in programs that helped our young
people avoid criminal activity. Other policy choices have
also made a difference. Let me give one example: according
to a provocative new book by Frank Zimring on the crime
decline in New York City, that city’s auto theft rate in 2008 is
6 percent—6 percent—of what it was in 1990.10 How were those
crimes prevented? How much can be attributed to changes
in safety practices and theft-prevention technologies developed by the auto industry, by new federal regulations
requiring marking of auto parts to deter the operation of
chop shops, and by more effective police investigations? My
point is simple: a rigorous, scientific exploration of changes
in crime rates will identify a broad set of practices that prevent crime, assign costs and benefits to those practices, and
hopefully help us invest money and political capital in those
crime prevention strategies that are proven to reduce harm.
If we are passionate about reducing our crime rates even
further by 2036, we will broaden our frame of reference
and bring many more sectors of our society to the crime
prevention table.
There’s a third, uncomfortable lesson of the great American
crime decline: we have no reason to be complacent. The
rates of lethal violence in America are still higher than in

Europe, by a factor of five. (Our rates of property crime
are, we should note, lower than in Europe.) And, if we were
ruthless about our science, we must confront the reality that
violent crime is highly concentrated in a small number of
communities of color in urban America, and in those communities is concentrated among a small number of young
men. These men are at high risk of being both victims of violence and agents of violence.
Let me cite some data that make the point. A few years
ago, John Klofas, a professor at the Rochester Institute of
Technology, examined that city’s homicide data to determine who was at the highest risk of being killed. 11 At the
time of his research, the homicide rate for the nation as a
whole was 8 per 100,000. Among those aged 15–19, it was
nearly triple that: 22 per 100,000. Among males in that
age group, it was more than quadruple the national rate,
or 36 per 100,000. For African-American males aged 15–19
in Rochester, it was 264 per 100,000. Finally, for AfricanAmerican males aged 15–19 in the “high-crime crescent,” the
most dangerous neighborhood in Rochester, the homicide
rate was 520 per 100,000, or 65 times the national rate.
More recently, Andrew Papachristos of the University of
Massachusetts, Amherst, took this approach one step further. Using a database including all young men involved
in criminally active groups in a high crime Chicago neighborhood, Dr. Papachristos calculated that the homicide
rate within these groups was 3,000 per 100,000, or 375
times the national rate.12 This kind of social network analysis is not just about victimization rates. The 1,593 people
included in Papachristos’ analysis were also responsible
for 75 percent of the homicides in this neighborhood. This
rate of killing constitutes a national crisis, yet we turn a
blind eye to this reality, lulled into inaction by our selfcongratulatory sense of progress and our collective unwillingness to get serious about the issue of violence in inner
city communities of color.

9. At a minimum, a robust national data infrastructure to track crime trends would include: an expanded National Crime Victimization Survey
(NCVS) so that the victimization trends could be tracked in the 75 largest cities of America; an expanded Arrestee Drug Abuse Monitoring
(ADAM) system in those 75 cities, as proposed by the Department of Justice fifteen years ago, to track trends in drug use, gun use, intergroup
violence and other variables among the arrestee population; and federally-administered annual recidivism reports for all 50 states to track
arrest rates among those under community supervision.
10. Franklin E. Zimring, The City that Became Safe: New York and the Future of Crime Control (Oxford: Oxford University Press, 2011).
11. John M. Klofas, Christopher Delaney, and Tisha Smith, Strategic Approaches to Community Safety Initiative (SACSI) in Rochester, NY (US Dept. of
Justice, National Institute of Justice, 2005) as referenced in: Jeremy Travis, New Strategies for Combating Violent Crime: Drawing Lessons from Recent
Experience (Testimony before the U.S. Senate Judiciary Committee, Washington, DC, September 10, 2008).
12. Andrew Papachristos, The Small World of Murder (retrieved from the World Wide Web on October 7, 2011:
http://www.papachristos.org/Small_World.html).

2 5 t h A N N I V E R S A RY E S S AY S

To reduce rates of violence in America over the next quarter century, we must tackle this phenomenon head on. I
strongly recommend that we embrace and replicate the
focused deterrence strategies developed by David Kennedy,
a Professor at John Jay College of Criminal Justice.13 First
tested in Boston 15 years ago to address youth violence, then
expanded to drug markets in High Point, North Carolina,
and now being implemented in 70 cities across the country through the National Network for Safe Communities,
these strategies have been proven highly effective at reducing group violence—typically by 40–50 percent—and virtually eliminating overt drug markets. These strategies have
two other benefits—they reduce incarceration rates, and
promote a process of racial reconciliation between police
and communities of color. If we are serious about creating
communities that are safer and more just, we will insist that
these strategies are replicated nationwide.14

mantra with gusto. The Office of Justice Programs in the
Justice Department has joined the chorus. George Mason
University now hosts a Center for Evidence-based Crime
Policy. With some reservations, I applaud this development.
Rather than discuss my reservations, however, I would like
to challenge us to imagine
the world of 2036, when we
hopefully will have much
One of the most
more evidence about what
works and what doesn’t, and important recent
ask ourselves this question: developments in social
How will we enforce the science of effectiveness? How do policy generally—
we ensure that practice fol- and in crime policy
lows research, and criminal
justice agencies are held to specifically—has been
evidence-based standards?
the embrace of the

A scientifically based crime prevention agenda would
simultaneously expand our vision to incorporate the many
ways crimes are prevented, while focusing laser-like on the
neighborhoods and individuals at highest risk of the most
extreme violence. On this latter point, strong science will
direct us, but passionate advocacy is necessary to win the
day. Unfortunately, American society is not sympathetic to
the argument that, because young African-American men,
many of them involved in crime themselves, are at greatest
risk of being killed, we should therefore devote our greatest resources to preventing those crimes. To advance that
agenda we must overcome barriers of racism, fear, and
stereotyping. But if our crime policy is to be more effective
and more humane, we must bring all our tools—science and
passion—to the task.

In imagining this new world,
we are immediately con- based practices.”
fronted with the realities
of our federal system in which the states are primarily
responsible for criminal justice operations. Granted, we
have some national standards of practice imposed by federal courts through constitutional interpretations—think of
the Miranda warnings, required of all police agencies. We
have other standards imposed by federal oversight agencies—think of the FBI’s reporting guidelines for the Uniform
Crime Reports. Yet, as a general matter, we shy away from
federally imposed standards of practice. Must it always be
so? Can we create a national framework in which certain
standards of practice, validated by strong science, have
equal force and effect across the country?

3. We must use science to develop
professional standards for the
justice system.

This dilemma was highlighted recently by a court ruling in
New Jersey15 and a research report issued by the American
Judicature Society.16 Both examined the same issue—the unreliability of eyewitness memory. As we know from hundreds
of exonerations based on DNA analysis, errors attributable to
faulty eyewitness memory can result in serious miscarriages
of justice. Hundreds—perhaps thousands—of individuals
have spent years in America’s prisons for crimes they did not

One of the most important recent developments in social
policy generally—and in crime policy specifically—has been
the embrace of the notion of “evidence-based practices.”
The Office of Management and Budget has adopted this

notion of “evidence-

13. David Kennedy, Don’t Shoot: One Man, A Street Fellowship, and the End of Violence in Inner-City America (New York: Bloombury USA, 2011).
14. The National Network for Safe Communities, housed at John Jay College for Criminal Justice, is dedicated to working with jurisdictions to
implement these focused deterrence strategies and to incorporating them into national practice. See www.nnscommunities.org.
15. State v. Larry R. Henderson (A-8-08)(062218) (2011).
16. Gary L. Wells, Nancy K. Steblay, & Jennifer Dysart, A Test of the Simultaneous vs. Sequential Lineup Methods: An Initial Report of the AJS National
Eyewitness Identification Field Studies (American Judicature Society, 2011).

THE SENTENCING PROJECT

commit. Some may have been put to death. But we also know
from strong scientific studies that eyewitness evidence can be
gathered in a way that reduces the likelihood of error, without compromising our ability to identify the true suspect.17
This method is called “sequential, double-blind,” meaning
that the witness sees possible suspects (either in lineups or in
photos) one after another, and that the procedure is administered by someone with no connection to the investigation.
The power of this method was conclusively demonstrated in
the field experiment conducted by AJS.
But now we face a significant question: How do we, as a
nation, ensure that all investigations involving eyewitness
evidence are conducted according to this proven procedure?
In the Henderson case, the New Jersey Supreme Court established standards for that state, with commendable reference
to the strong scientific basis for those standards.18 Perhaps
the U. S. Supreme Court will issue a similar, Miranda-like
ruling, but let’s not count on this outcome. In the meantime,
what should be the rule in states other than New Jersey? In
those states, will we allow innocent defendants to be convicted and sentenced to prison terms based on faulty eyewitness identification as our sacrifice on the altar of federalism?
In less dramatic terms, we have faced this question before.
To cite well-known examples, we continue to fund DARE,
“scared straight” programs, and batterers’ interventions
long after research has shown they are ineffective. On a
broader scale, we fund programs of unknown effectiveness
that have never been rigorously tested. And even when we
have competent evaluations in hand, we care little about
effect sizes (does the program make a big or small difference?) and even less about cost-benefit analysis (did the
positive program effects more than offset the cost of the
program?). In making the case for strong crime science, I
turn again to the medical model for an analogy. Imagine
that medical research had found an effective treatment of
migraines. Wouldn’t we expect the entire medical profession to adopt that procedure? Wouldn’t we be shocked if a

migraine patient in Washington was told that, even though
the treatment is available in New Jersey, we will wait until we
validate it in Washington? Imagine if the Washington doctor said something we hear too often in the criminal justice
world: “Well, migraines in Washington are just different and
anything they learn in New Jersey won’t work here.”
We cannot alter our federalist structure of government, but
we can develop a robust concept of justice professionalism,
in which policies and practices of proven effectiveness are
adopted by police, prosecutors, judges, corrections, service
and treatment providers. We need a professional ethic that
views failure to adopt those proven policies and practices
as a form of justice malpractice.19 As our science becomes
stronger, and our evidence base becomes deeper, we need
to be passionate about demanding that the agencies of justice follow the dictates of science.

4. We must rethink the role of the
criminal sanction.
One of the great advances in our profession came nearly a
half century ago when the President’s Commission on Law
Enforcement and Administration of Justice specified, for
the first time, the complex interactions of the agencies that
comprise the “criminal justice system.” 20 This system is now
depicted in the famous chart, resembling a funnel, with the
number of crimes committed on the left hand side, the operations of police, prosecutors, and courts in the middle, and
prisons and community corrections on the right hand side.
This portrayal of the criminal justice system may have
clarified the working relationships of those agencies, but
it created a new problem: the “case” has become our unit
of analysis. We focus our attention on the cases that move
down the assembly line of the justice system, from the outbox of one agency to the inbox of another.21 Over the past
20 years, another metaphor has emerged, one that stands
in stark contrast to the image of the assembly line. In this

17. Elizabeth F. Loftus, James M. Doyle, & Jennifer E. Dysart, Eyewitness Testimony: Civil and Criminal (Newark, NJ: Lexis Nexis, 2007).
18. State v. Larry R. Henderson (A-8-08)(062218) (2011).
19. Christopher Stone, Guggenheim Professor of Practice at Harvard’s Kennedy School of Government, and I outlined a similar approach to
professionalism in policing. One of the cornerstones of this “new professionalism” is the emergence of a framework of “national coherence”
in the work of police agencies. Christopher Stone, Jeremy Travis, Toward a New Professionalism in Policing (Harvard: Harvard Kennedy School of
Government, 2011).
20. The President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society (Washington, DC:
Government Printing Office, February 1967).
21. Jeremy Travis, Building Communities with Justice: Overcoming the Tyranny of the Funnel (Keynote address delivered at the Marquette Law School
Public Service Conference on the Future of Community Justice in Wisconsin on February 20, 2009).

2 5 t h A N N I V E R S A RY E S S AY S

metaphor, the agencies of the justice system are organized
around a problem, not a case. Rather than the assembly
line, this approach envisions a collaborative table at which
the assets of various agencies are deployed to address an
underlying problem, not just to determine the outcome in a
criminal prosecution.
This new approach was first championed by the police,
inspired by the pioneering work of Herman Goldstein, titled
Problem-Oriented Policing.22 Professor Goldstein said the unit
of analysis for effective policing was a community problem,
not a 911 call. This powerful insight led directly to the concept
of “hot spots policing,” which focuses police resources on
addressing crime problems that are spatially concentrated.23
In a broader sense, the problem-centered approach to crime
lies at the heart of community policing, with its emphasis on
community partnerships to address community problems.
A problem-oriented focus also led to the creation of the first
drug court in Miami in 1989, the first community court in
Manhattan in 1993, and a generation of innovative problem-solving courts addressing issues such as mental health,
domestic violence, and drunk driving.24 This new way of
thinking informs the work of David Kennedy, whose strategies were designed to address the problems of group violence and overt drug markets. It undergirds the premise of
Project Hope, a highly successful project first launched in
Hawaii designed to reduce drug use and crime among the
community corrections population.25 It lies at the heart of
the restorative justice movement, which convenes victims,
offenders, and other stakeholders to address harms and
repair relationships. Finally, this pragmatic approach to
problems, not cases, provides the framework for the reentry
movement, which is bringing new partners to the table to
address the challenges faced by individuals leaving prison.26
In this new world, everyone’s role is changing. In the
focused deterrence work, probation officers are part of a
strategy designed with police, prosecutors and community

members in which their supervisory authority is used to
achieve certain behavioral outcomes for probationers. In
drug courts, prosecutors and defense attorneys collaborate
with judges to impose minor criminal penalties on participants who violate their treatment terms. In Project Hope,
drug tests are used explicitly to prevent drug use and cut
recidivism, only secondarily to detect drug levels.
These initiatives challenge conventional wisdom. They
envision a very different system, one that is more collaborative than adversarial. But they are even more revolutionary than that. At their core,
they envision a very different
role for the criminal sanction
We should consider
and the relationship between
the criminal sanction and our current level of
individual behavior. If, as
imprisonment a stain on
in the case of drug courts,
the behavior of drug addicts our national conscience.
changes because of the possibility of the imposition of a criminal sanction, why would
we not defer more prosecutions and suspend more sentences? If, as in the case of the focused deterrence model,
gang members and drug dealers no longer engage in violence (or drug dealing) because of the combination of peer
pressure, community influence, and a credible threat that
they will be arrested if the violence and drug dealing continues, why would we not package the criminal sanction this
way more frequently?
I believe we are on the verge of a fundamental conceptual
breakthrough. These problem-oriented innovations are
showing us that if we apply the criminal sanction in a very
parsimonious way, in combination with other interventions, we can reap enormous benefits in crime reduction and
enhanced legitimacy of the justice system. These innovations,
in turn, require us to reconsider our approach to sentencing,
to become less rigid and less punitive. Finally, these problemsolving approaches show us how to engage more effectively

22. Herman Goldstein, Problem-Oriented Policing (New York: McGraw-Hill, 1990).
23. David Weisburd and Cody W. Telep, Spatial Displacement and Diffusion of Crime Control Benefits Revisited: New Evidence on Why Crime Doesn’t Just Move
Around The Corner (in N. Tilley and G. Farrell (eds.), The reasoning criminologist: Essays in honour of Ronald V. Clarke, New York: Routledge,
2011). This body of research was highlighted at the 2010 Stockholm Criminology Symposium at which time Professor David Weisburd received
the Stockholm Prize in Criminology.
24. For a discussion of the problem-solving court movement, see: Greg Berman and John Feinblatt, Good Courts: The Case for Problem-Solving Justice
(New York: The New Press, 2005).
25. Mark A.R.Kleiman, When Brute Force Fails (Princeton, NJ: Princeton University Press, 2009)
26. Jeremy Travis, Reflections on the Reentry Movement (Federal Sentencing Reporter, 20, no. 2, 1-4, 2007).

THE SENTENCING PROJECT

the forces of informal social control—such as family, positive
peer pressure, and community supports—so we can rely less
on the forces of formal social control, such as arrest, prosecution and prison. In the future, if the science continues to support these interventions, and we are passionate about applying these lessons, the criminal justice system, as a mechanical
assembly line, may be a relic of our past.

5. We must rethink a venerable American
institution, the prison.
Anyone who follows the work of The Sentencing Project
knows the sobering facts. The rate of incarceration in America
nearly quadrupled between 1980 and 2009.27 America holds
one quarter of the world’s prisoners, even though we constitute only 5 percent of the world’s population.28 An AfricanAmerican man faces a 1-in-3 lifetime chance of spending at
least a year in prison.29 In 1972, there were 200,000 people in
our nation’s prisons; we now have over 140,000 people serving
life sentences alone.30 In California, 20 percent of the prison
population is serving a life sentence. In 2007, we spent $44 billion on corrections, up from $10.6 billion in 1987.31 The number of people incarcerated in state prisons on drug offenses
has increased at least by 550 percent over the past 20 years.32
This year, approximately 735,000 individuals will leave state
and federal prison, compared to fewer than 200,000 in 1980.33
We should quickly acknowledge that the era of prison
growth in America might have ended. For the first time in
nearly 40 years, the state prison population has actually
declined.34 In some states prison populations have actually

declined substantially, led by California, Michigan, and New
York, which have seen declines of 4,257, 3,260, and 1,699
respectively between 2008 and 2009.35 We should also note
that a number of states have significantly reduced their
juvenile detention rates.36 But these slight decreases should
not be a cause for celebration. We have a long way to go to
bring our incarceration rate into line with other Western
democracies, or even our own history.
As Americans, we should be deeply troubled by the current
state of affairs. In fact, I think we should consider our current
level of imprisonment a stain on our national conscience.
We can certainly criticize our high rate of incarceration on
any number of policy grounds: Prisons are a very expensive
response to crime. As a crime control strategy, imprisonment is highly inefficient, requiring lots of resources for very
little benefit in terms of crime control. They have become
part of the national landscape—literally, scattered throughout the land—and have become embedded in local economies. They are supported by powerful unions, fueled by
corporate interests and perpetuated by the reality that some
elected officials have become dependent on the economic
and political benefits of having prisons in their districts.
But I would hope that our critique of the American experiment with high rates of incarceration would begin with a
consideration of the human cost—a recognition that we have
wasted hundreds of thousands of lives, subjected thousands
of our fellow citizens to the inhumane treatment of solitary
confinement, separated families in a modern version of the
slave auction block, and consigned millions of Americans to

27. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Incarceration rate 1980-2009 (retrieved from the World Wide Web
on October 7, 2011: http://bjs.ojp.usdoj.gov/content/glance/tables/incrttab.cfm).
28. The Pew Charitable Trust Center, 1 in 100: Behind Bars in America 2008. (Retrieved from the World Wide Web on October 7, 2011:
http://www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FINAL_2-1-1_FORWEB.pdf.)
29. Thomas P. Bonczar and Allen J. Beck, Prevalence of Imprisonment in the U.S. Population, 1974-2001. Washington DC: U.S. Department of Justice;
Office of Justice Programs; Bureau of Justice Statistics Special Report, 2003).
30. Ashley Nellis and Ryan S. King, No Exit: The Expanding Use of Life Sentences in America (The Sentencing Project, 2009, retrieved from the World Wide
Web on October 7, 2011: http://www.sentencingproject.org/doc/publications/publications/inc_noexitseptember2009.pdf).
31. The Pew Charitable Trust Center, 2008.
32. Amanda Petteruti, Nastassia Walsh, and Tracy Velázquez, Pruning Prisons: How Cutting Corrections Can Save Money and Protect Public Safety
(Justice Policy Institute, May 2009, retrieved from the World Wide Web on October 7, 2011: http://www.justicepolicy.org/images/upload/09_05_
REP_PruningPrisons_AC_PS.pdf).
33. The National Reentry Resource Center, Reentry Facts (retrieved from the World Wide Web on October 7, 2011:
http://www.nationalreentryresourcecenter.org/facts#foot_3).
34. The Pew Center on the States, Prison Count 2010: State Population Declines for the First Time in 38 Years (The Pew Research Center, retrieved from the
World Wide Web on October 7, 2011: http://www.pewtrusts.org/uploadedFiles/Prison_Count_2010.pdf).
35. Ibid.
36. Jeffrey A. Butts and Douglas N. Evans, Resolution, Reinvestment, and Realignment: Three Strategies for Changing Juvenile Justice (John Jay College of
Criminal Justice Research and Evaluation Center, September 2011).

2 5 t h A N N I V E R S A RY E S S AY S

a state of marginalized life, cut off from meaningful work,
benefits, political participation and family support. Many
years ago, as the system of apartheid was just being installed
in South Africa, Alan Paton, a white South African author,
wrote a novel describing the racial realities in that society with the memorable and powerful title, Cry the Beloved
Country. When we look at our current imprisonment practices, we should have the same reaction: what has happened
to our beloved country?
Turning around this quarter century experiment will take
enormous help from our superheroes. We need strong science to show the impact of imprisonment on the people
held in prisons, their families, and the communities they
left behind. We need strong science to demonstrate the
effectiveness of alternatives to incarceration, in-prison programs, reentry initiatives, and new approaches to community supervision.
But this is a policy area where even the strongest science will
not be enough. We need to call upon our second superhero,
passion, to play a primary role in promoting a system that is
more humane. We need to remind people that prisons hold
people, that millions of children are growing up without
their parents, that corrections officers also live in prisons
and must endure challenging circumstances, and that victims are not helped if the person who harmed them is simply incarcerated and neither the victim’s nor the offender’s
needs are addressed.
Of the five challenges I have offered this morning, this is the
toughest. I would suggest that we start with a clean slate,
asking the deepest philosophical and jurisprudential questions. Why should anyone be sent to prison? Under what
circumstances is the state authorized to deprive someone
of their liberty? How long is long enough? If we had fewer
prisons, how could the money saved be better invested—to
help victims recover, provide alternatives to incarceration,
to fund the tougher work of solving the problems that give
rise to crime? Our biggest challenge will require our greatest feat of imagination. It will require the very best of our
two superheroes, science and passion. It will require deep
and sustained political work to persuade our elected officials that we need to reverse course and abandon our overreliance on prison as a response to crime.
The work that lies ahead builds on some sobering lessons
from the past 25 years. We punish too much and heal too
little. Too often, we isolate, rather than integrate, those who

have caused harm. Too often, we neglect, rather than comfort, those who have been harmed. Our over-reliance on
the power of the state rather than the moral voice of family and community undermines the promise of our democracy. Yet, despite these realizations, we still face the next
quarter century with hope—a fervent hope that in the next
chapter of our history we can be more effective, and more
humane, as we respond to crime; we can address the compelling problem of violence in our inner cities while reducing rates of incarceration and promoting racial reconciliation between the police and the policed, and we can return
to rates of imprisonment that are consistent with our values
as a nation. We have every reason to be optimistic about our
future. In fact, when you think about it, the greatest reason
for optimism is that so many Americans, like the people in
this room, working around the country with organizations
like The Sentencing Project, are so fiercely committed to
justice. Keep up the good work.
Thank you.

Jeremy Travis is President of John Jay College of Criminal Justice.
Formerly, he directed the National Institute of Justice, the research
arm of the U.S. Department of Justice, and was Senior Fellow affiliated with the Justice Policy Center at the Urban Institute.

THE SENTENCING PROJECT

A Visionary Criminal Justice System
Our Unprecedented Opportunity
By Alan Jenkins

I believe that the U.S. criminal justice system of 2036 will be a visionary one, rooted
in pragmatic solutions and positive values. It will keep us safe, promote rehabilitation
and redemption, and uphold basic human rights like due process, equal protection
under law, and freedom from unnecessary confinement.

t will be built on facts and reason, rather than on political whims or sensational headlines. It will be smaller,
smarter, and drastically less expensive—in large part
because it will no longer be a substitute for social services,
mental health care, drug abuse prevention, or immigration policy. And it will treat the people and communities it
touches fairly and without bias. What a person looks like,
her income or accent, will have no bearing on the justice
she receives.
When people emerge from this modern system, they will
have stronger skills and inner resources than when they
entered, and they will have affirmative opportunities to
succeed. Obstacles to higher education, affordable housing, gainful employment, and political participation that
make up today’s status quo will have toppled. And systems
will exist affirmatively to aid in people’s transition into free
society. The American public will demand these changes as
crucial to upholding our national values and advancing our
societal interests.
Today, we are clearly far from that vision. Yet, research and
experience show that we now have the best chance in generations of achieving it. American public opinion, political
will, and media discourse are more open to transformative,
positive reform of our justice system than anyone could
have predicted at the end of the 20th century.
A 2006 survey by the National Center for State Courts, for
example, showed that crime was regarded as the country’s

top problem by only 2 percent of Americans, while another
2 percent considered illegal drugs to be the top problem. By contrast, in 1993, crime topped a majority of the
U.S. public’s list.
According to the NCSC survey, and others, 58 percent of
Americans favor prevention and rehabilitation as the best
way to deal with crime over enforcement and punishment,
and 8 in 10 believe something can be done to turn someone
into a productive citizen after they’ve committed a crime.
By a huge margin (76 percent vs. 19 percent), the public prefers to spend tax dollars on programs that prevent crime
rather than building more prisons.
While the death penalty remains popular standing alone, a
2010 poll commissioned by the Death Penalty Information
Center found that 61 percent of voters favor clear alternatives like life in prison with restitution to victims’ families.
And, more so than in past years, significant segments of the
public also see bias based on race and income as real and
troubling problems. Large majorities, moreover, see socioeconomic bias in the system. These are still tough debates,
but ones we can win.
Low crime rates, diminished crime reporting by many news
outlets, rising budget pressures, and smart communications by advocates have driven this shift in public opinion.
That mix has made possible changes that seemed unthinkable a decade ago: reform of New York’s Rockefeller drug

2 5 t h A N N I V E R S A RY E S S AY S

laws, reentry and drug treatment alternatives in Texas, restoration of voting rights in Rhode Island, abolition of the
death penalty in multiple states, lessening of federal crack/
powder cocaine sentencing disparities, and the bipartisan
Second Chance Act.
Moving toward a model criminal justice system, then, is
more achievable today than at any time in recent memory.
Now is the time to build on public support and channel it
toward more transformative change. That means adding a
more effective and collaborative communications strategy to
the innovative advocacy, organizing, litigation, research,
and policy analysis that reformers are already pursuing
around the country.
While the details of a 21st century communications strategy
are beyond the scope of this essay, research and experience
point to a number of important elements:
First is a compelling narrative rooted in shared values. A
narrative is an overarching Big Story in which diverse audiences can see their own values. Through most of the last
half-century, a law and order, “tough on crime” narrative
dominated. A new, positive narrative would be rooted in
the themes of prevention, rehabilitation, public safety, and
opportunity. Values like equal justice, due process, redemption, and human rights also have a role in this new Big Story,
as does a positive role for government. The new narrative
must be informed by public opinion research and a rapidly
evolving media landscape, but it must ultimately be crafted
by advocates, experts, and people directly affected by the
system, linking their values and experiences with those
of their audiences.
Second is an echo chamber that repeats the basic narrative,
in different forms and through different vehicles, to key
audiences, conveying to Americans why it’s in their interest to demand smart reform. Criminal justice advocates and
our allies include major civic organizations, faith and business leaders, high-ranking officials in both parties, scholars, law enforcement officers, celebrities, and others with a
broad reach and significant credibility.
Third is being rigorously solution-oriented. Americans are
in no mood to hear about new, unsolvable problems. But if
offered understandable, positive approaches that connect
with their values and advance genuine public safety, most
will come to support those approaches over the status quo.

Fourth, is speaking explicitly and effectively about racial
inequality and its solutions. Research by Drew Westen and
others shows that while many Americans are uncomfortable talking about race, their conscious values around racial
equality are far more positive and productive than their
subconscious fears and biases. Americans are more aware
of, and concerned about, racially disparate treatment in the
criminal justice system than
they are of bias in any other
sector. Because opponents
Americans are more
of criminal justice reform so
often play on implicit biases, aware of, and concerned
reformers must explicitly
about, racially disparate
invoke the public’s conscious
values of equal opportunity treatment in the criminal
and the fair administration of
justice system than
justice in order to win the day.

they are of bias in any
other sector.

The final point is remembering the power of culture.
Throughout America’s history, cultural change has helped to usher in transformative
policy change. Whether from books like The Jungle, icons
like Jackie Robinson, images like those from Gordon Parks,
or lyrics like those of Billie Holiday, culture has played an
invaluable role in building movements and inspiring action.
Today’s artistic landscape includes its own cultural pathfinders, and those of us in the profession of policy change
must work harder to engage and support them, just as they
clear the path for our own efforts.
The road toward a visionary criminal justice system is a
rocky one, and could be washed away by changing events
or attitudes. But I see an unprecedented opportunity to traverse it, and to achieve transformative change.

Alan Jenkins is Executive Director and Co-Founder of the Opportunity
Agenda, a public interest organization dedicated to building the
national will to expand opportunity in America. He has previously
held positions at the Ford Foundation, the U.S. Department of Justice,
and the NAACP Legal Defense and Education fund.

THE SENTENCING PROJECT

The Human Rights Paradigm
The Foundation for a Criminal Justice System
We Can Be Proud Of
By Jamie Fellner

Criminal justice reformers are optimists. Every day we confront misguided policies
rooted in politics, prejudice, anger, and fear. Without optimism we would throw up
our hands in despair.

ur optimism is, of course, tempered by skepticism.
We have learned that politicians are loath to give up
being “tough on crime.” They too often resist an honest cost-benefit analysis of the country’s decades-long experiment in mass incarceration. They refuse to acknowledge that
many anti-drug law enforcement practices undermine rather
than empower vulnerable minority communities.
In recent years, the dire straits of state budgets have begun
to push public officials in the United States to consider costsaving changes in the criminal justice system. Low crime
rates help to provide political cover for such changes. It
would be nice to think that aggressively (and senselessly)
punitive crime policies may be nearing an end.
But I hope that in 25 years we will have accomplished more
than a series of policy changes prompted by fiscal austerity. I
hope we will also have persuaded the country that the nation
deserves a criminal justice system it can be proud of, and
that respect for human rights is the only way to get there.
As those who have read them know, the dry language of
international human rights treaties isn’t riveting. But, the
treaties express the inspired—and inspiring—affirmation of
the dignity of every human being. Most important in terms
of criminal justice, they affirm dignity for those on either
side of the law.
But are human rights really needed for criminal justice
reform if the United States has constitutional rights? The

short answer is yes. Constitutionally protected rights are
narrower in scope than human rights and they have been
eviscerated by courts all too willing to defer to legislators, public officials, and those they claim to represent.
For example:
1. Race discrimination. Both international human rights
law and U.S. constitutional law prohibit racial discrimination. While both are violated by laws that explicitly permit
or require adverse distinctions on the basis of race, only
human rights law recognizes that de facto discrimination
can and does occur without conscious intent. For example,
unwarranted racial disparities in arrests for drug law violations may constitute prohibited discrimination even if no
law enforcement official consciously seeks to treat black and
white people differently.
In contrast, under U.S. constitutional jurisprudence, the
absence of malign intent precludes a finding of unlawful
discrimination. In an era of structural racism and guarded
speech, how often can racist intent be proven? The constitution as interpreted in the courts thus offers scant protection against discriminatory law enforcement.
2. Excessive sentences. Within a human rights paradigm, a
criminal conviction is not a license for whatever length sentence legislators choose. The human rights to liberty and to
be free of cruel punishment would have little meaning if they
could be sacrificed willy-nilly to lawmakers’ whims. Sentences
that are greatly disproportionate to the seriousness of the

2 5 t h A N N I V E R S A RY E S S AY S

crime and the culpability of the offender offend human
rights. In contrast, under constitutional law, legislators have
nearly unbridled discretion to mandate prison sentences.
The U.S. Supreme Court has upheld as constitutional a
mandatory sentence of life without parole for a first offense
of selling a pound of cocaine and a 25-to-life sentence for a
third offense of stealing a handful of videos.
3. Wretched prison conditions. Human rights law
requires prison conditions to honor the basic humanity of
those confined, prohibits torture and other cruel, inhuman
or degrading treatment or punishment, and sets rehabilitation as a primary goal of incarceration. The dangerous and
dehumanizing prisons and prolonged solitary confinement that are all too prevalent in the United States don’t
pass muster.
In contrast, under constitutional law, prisoners’ dignity is
protected almost solely by the Eighth Amendment’s prohibition against cruel and unusual punishment. Deliberate
brutality may be prohibited, but officials are free to impose
punitive regimes of deprivation, idleness, extreme isolation
and misery. Rehabilitation is an option officials can adopt or
discard as budgets, political climate, and their own preferences dictate.
4. Disenfranchisement. Human rights law affirms the
importance of being able to participate in a country’s political life. Everyone has the right to vote, including those who
are in prison or who have served prison sentences. While
reasonable restrictions on the right to vote are permitted,
broad brush disenfranchisement of everyone in prison or
previously convicted of a felony is not. Although such felony
disenfranchisement laws may be constitutional, they are a
form of banishment from the polity that cannot be squared
with human rights.
No doubt some who know little about international human
rights law may suspect it is “soft on criminals” and fails to
ensure justice for victims. But letting the bad guys off easy is
not a feature of human rights. Human rights law insists on
accountability for crime, but as importantly, it recognizes
the difference between justice and egregiously disproportionate or discriminatory punishment. The rights and dignity of victims are not vindicated by laws that trample the
rights and dignity of their victimizers.
The virtues of human rights law are unassailable. It is politically unbiased, comprehensive, sensible, internationally

respected and grounded in a rich historical understanding
of the strengths and weaknesses of humanity.
In the United States, however, human rights have not been
fully integrated in the criminal justice system. Although the
United States is a party to important international human
rights treaties, it has insisted the treaties do not create
judicially-enforceable rights. Although they on rare occasion look to human rights treaties when interpreting constitutional standards, U.S. courts do not provide redress for
human rights violations and
do not insist public officials
comply with their human
Human rights are
rights obligations.

unmatched as

We do not have to wait for
guideposts toward
the courts, however, to bring
human rights home. Human a truly just criminal
rights are unmatched as
justice system.
guideposts toward a truly
just criminal justice system.
Advocates can look to them for a dignity-affirming template for progress. We can urge officials to turn to them for
guidance in crafting policies that emphasize restraint in the
exercise of the state’s penal powers. We can teach the public
how they offer a vision of justice that is truly for all.
I am optimistic enough to believe the country will eventually embrace not just cost-effective criminal justice policies,
but human-rights respecting policies as well. The skeptic in
me recognizes this will not be easy and 25 years may not be
enough time. Let’s hope the skeptic is wrong.

Jamie Fellner is senior advisor to the U.S. Program at Human Rights
Watch. She has written extensively on U.S. criminal justice issues
including felony disenfranchisement, racial disparities in drug law
enforcement, sentencing policies and prison conditions.

THE SENTENCING PROJECT

The Justice System in 2036
How States Ended the Era of Mass Incarceration
By Dennis Schrantz

DATELINE 2036: Since the Era of Mass Incarceration ended in 2020, all 50 states have
reduced their prison populations and the nation’s incarceration rate is the lowest
in recorded history. Driven by extraordinary budget pressures and proof that the
prison system was not delivering bang for the buck, governors elected in the 2016
election cycle spent less on the justice system then ever before recorded.

hirteen states such as Michigan, New York, and New
Jersey led the way. By 2012 they had proven that an
investment at the beginning of the governor’s election cycle in facilitated planning and implementation of evidenced based corrections practices will reap massive budget dividends. The Democratic and Republican Governors
Associations jointly led newly elected governors and executive budget leaders through a series of policy agreements
and sound implementation activities that led to the end of
the long era of massive prison buildups. The associations
and their partners realized that unless they did something
different, corrections costs would continue to soar. The
two associations obtained federal and foundation funding to gain the needed additional, long term competency
and capacity to make the changes that were required—thus
swinging the political pendulum toward smarter, sustainable corrections spending.

public safety, and use taxpayer dollars more effectively.
The Association of Prosecuting Attorneys and the National
Association of Chiefs of Police—which wanted funds for
strategies that truly reduced crime—rounded out the
national collaborative.

As a result of the 2016 Joint Resolution for Justice Reinvestment
and Crime Reduction, the two gubernatorial associations,
joined by the National Coalition of Criminologists and
the National Association of University Presidents—which
joined the effort after corrections spending surpassed university and research spending combined—worked with all
states that had new governors taking office in January 2017.
Using lessons learned from states with a history of successful corrections reforms, the associations mobilized a base
of policy and political advocates to create individual state
action plans that hold offenders accountable, improve

The chair of the Association’s Joint Resolution Committee,
political elder Newt Gingrich, stated,

This unprecedented political base used the experience of
13 states that discovered that evidence-based approaches
to reduce crime could save millions of dollars when
coupled with individualized performance- and resultsfocused state management plans. Subsequently, corrections spending in every state that joined the effort was
dramatically reduced in the eight-year political cycle from
2016 through 2024. More than $2 billion was shifted from
corrections to education and re-building states’ crumbling
infrastructure, creating hundreds of thousands of jobs
across the United States.

Our success required an honest assessment of what was
needed, both external to each state’s department of corrections and internal to their operations. Helping states
achieve the competency and capacity they needed was the
key to our success. We focused on new business models for
the justice system and used the science and technology that
was at our disposal to push the nation to the tipping point.
There is no going back.

2 5 t h A N N I V E R S A RY E S S AY S

Together, in 2016, all newly elected governors and their state
budget offices determined how to demand the changes in
their state systems and deliver budget savings to the taxpayers in their first two years in office. These new governors inherited the reins of state government during an
all-out budget panic. No one wanted to raise taxes. States
faced unprecedented axing of programs critical to health
and education. Lawmakers were stymied. Executive offices
had said for years that without legislative action, there was
nothing more they could do. Corrections budgets continued to increase even though the promise of investing in
public safety was not being met. Newly elected governors
demanded answers from their corrections departments
and were told more prison space was needed—not less.
The new governors had only a general sense of what was
needed to reverse the trends and were immediately sobered
by the question of how to define, plan, and implement
the reforms. The Democratic and Republican Governors
Associations led the effort by working with them on a strategy
of reforms and a plan to implement the reforms.
Three conditions existed in each of the states that succeeded
in dramatically reducing corrections spending: 1. they were
in the first of a four- to eight-year political cycle, giving
them the time to plan and execute the reforms; 2. they documented the need to reduce corrections spending in ways
that were supported by a base of reform advocates starting with universities, victims’ rights organizations and law
enforcement; and 3. they understood the need for competent assistance to plan and implement. The new governors
were provided with the assistance needed during their transitions from candidate to leader. And thus the cycle began.

transition. These services ranged from high-end strategic planning and education to further assessment of the
various offender populations and specific implementation planning.
4. Based on this review, they each developed a work plan to
reverse the trends that were driving the prison population higher and higher.
The governors first established their political will to reduce
corrections costs and then established the competencies and capacity to plan, implement, monitor, adapt, and
evaluate
evidence-based
approaches that improved
performance and cut costs.
The United States
Each state began reforming its corrections system to once led the country
require evidence-based proin mass incarceration;
grams that increased reliance on community supervi- in 2036 it emerges as a
sion rather than long prison paradigm for the entire
terms. There were three
points of reference: the front developed world.
end (e.g. community corrections
activities—focused on reduced admissions); custody, control,
classification and programming activities inside institutions—
improving and reducing the length of stay of prisoners and
work on the back end (e.g. prisoner re-entry and improvement in
parole supervision and offenders’ post-prison performance).
These three areas control the size of prison populations, and
addressing them led to unprecedented reform. The United
States once led the country in mass incarceration; in 2036 it
emerges as a paradigm for the entire developed world.

Each state developed an aggressive action plan that began
by engaging in four simple steps:
1. Examining their stated, documented need of record to determine the corrections and political environments. Nearly
all states had established a level of need.
2. Determining the degree of competency and capacity that
the state’s department of corrections had in order to
perform significant assessment, analysis, planning, and
implementation.
3. Considering with the newly elected governor’s Transition
Team the range and timing of consultancy services that
would help facilitate the change process as part of the

Dennis Schrantz is the Vice President of Strategic Planning for
Northpointe, Inc. He has served as the Executive Director of the
Office of Community Corrections for the Michigan Department of
Corrections, and led community corrections and jail populations
control efforts in Wayne County (Detroit), Michigan.

THE SENTENCING PROJECT

What’s Money Got to Do With It?
The Great Recession and the Great Confinement
By Marie Gottschalk

The Great Recession has sparked a major rethinking of U.S. penal policies and
raised expectations that the United States will begin to empty its prisons and jails
because it can no longer afford to keep so many people locked up.

ut mounting fiscal pressures will not be enough on
their own to spur deep and lasting cuts in the incarceration rate over the next 25 years. The construction of the carceral state was the result of a complex set of
developments. No single factor explains its rise, and no single factor will bring about its demise.
If history is any guide, rising public anxiety in the face of persistent economic distress and growing economic inequalities
might, in fact, spur more punitiveness. Spreading economic
despair may fortify the “culture of control” that sociologist
David Garland identified as the lifeblood of the prison boom
launched nearly four decades ago. In his account, societal
angst stemming from deep structural changes in the U.S.
economy and society ushered in a new era of harsh punishment and extensive surveillance. Widespread perceptions
of the government’s impotency to mitigate the economic
upheavals of the 1970s further bolstered the punitive turn.
Washington’s failure to tame the economic demons in the
current economic crisis (and its alleged culpability in releasing those demons) has once again cast doubt on the government’s efficacy, legitimacy, and raison d’être. This doubt has
already tempted some public officials to promote highly
punitive measures for their immediate symbolic value, such
as Arizona’s new law permitting the police to arrest people
suspected of being undocumented immigrants.
The same process leads government to exploit the popular
stereotype of a marauding underclass. This helps explain
why imprisonment rates tend to rise with the unemployment rate, even when the crime rate hasn’t increased.

Crime does not necessarily rise during periods of economic
distress, but protests, strikes, and civil unrest often do.
During the Great Depression, huge numbers of Americans
took to the streets, fueling fears that the social and economic fabric of the United States was coming apart. It is
still too early to tell whether the Tea Party and Occupy Wall
Street movements herald the opening acts of wider civil
unrest. But if they do, such unrest will likely be used to
justify expansions of law enforcement and to delegitimize
challenges to the prevailing political order.
The Depression provided an opportunity to legitimize
the expansion of a number of federal and state powers,
ranging from government control of the economy to law
enforcement. The public was highly susceptible to calls
from President Franklin D. Roosevelt and other government officials to get tough on criminals—whatever the cost—
even as crime rates fell in the 1930s. Government officials
also touted prison construction and the expansion of law
enforcement as public works programs that would boost
the flailing economy.
Likewise, in pushing the economic stimulus package in
2009 and the jobs proposal in fall 2011, the White House and
other supporters highlighted how these measures would
help law enforcement. Some states and communities used
their economic stimulus money to maintain or expand their
penal capacity.
The way to reduce spending on corrections is to incarcerate fewer people and to shut down penal facilities. But
those who attempt to close penal facilities face powerful

2 5 t h A N N I V E R S A RY E S S AY S

interests that profit politically and economically from
mass imprisonment. Thus, public officials have been
making largely symbolic budget cuts that do little to
reduce the incarcerated population—or save much
money. Reports of inmates being fed spoiled or inedible
food are rising nationwide. Charging prisoners fees for
services like meals, lodging, and visits to the doctor is
becoming more common. Budget cutters have also targeted prison-based educational, substance abuse, and
vocational programs, which were already grossly underfunded. These cuts render life in prison and life after
prison leaner and meaner.
These developments are part of a new war on the poor, as
poverty is increasingly criminalized. A recent study by the
National Law Center on Homelessness and Poverty found
that the number of ordinances against the poor for acts of
vagrancy, panhandling, and sleeping on the street has been
rising since 2006, as has their enforcement. At the same
time that poverty is being criminalized, states and the federal government are slashing social services for the poor,
which is likely to fuel higher crime rates.
The current economic crisis presents an opportunity to
redirect U.S. penal policy that opponents of the prison
boom should exploit. But framing this issue as primarily
an economic one will not sustain the political momentum
needed over the next couple of decades to drastically reduce
the prison population. Economic justifications also ignore
the fact that successful decarceration will cost money. The
people re-entering society after prison need significant
educational, vocational, housing, health, and economic
support, as do their communities.
Real change can only come from sentencing reform. We
need to reduce the number of people who are sent to jail
or prison in the first place and to reduce the time served
of many of those who are sent away. This means ending
mandatory minimums, repealing life without parole statutes, and establishing a meaningful parole process for all
offenders. If we are to do this, economic arguments will
not be sufficient.
Criminal justice is fundamentally a political problem, not
an economic or crime-and-punishment problem. Framing
the carceral state primarily as an economic issue may yield
some short-term benefits. But we need more compelling
arguments against the prison buildup and a durable movement to propel these arguments.

Focusing too heavily on the economic burden draws attention away from how the vast penal system has begun to fundamentally alter the operation of key social and political
institutions and to pervert what it means to be a citizen in
the United States. It also undercuts the compelling civil- and
human- rights arguments
that the carceral state raises
as it removes wide swaths of
Criminal justice is
African Americans, Latinos,
and poor people from their fundamentally a
neighborhoods. Mass incarpolitical problem,
ceration raises troubling
questions about the fairness not an economic or
and legitimacy of not only the crime-and-punishment
criminal justice system but
also of the political system problem.
more broadly.
To see a substantial change by 2036, we need a resilient
reform movement. Efforts to substantially reduce the incarceration rate will inevitably spark a backlash. The Great
Recession does not spell the beginning of the end of mass
incarceration in the United States. To borrow from Winston
Churchill, “It is not even the beginning of the end. But it is,
perhaps, the end of the beginning.”

Marie Gottschalk is a Professor of Political Science at the University
of Pennsylvania. She is the author of The Prison and the Gallows:
The Politics of Mass Incarceration in America, and is completing a book on the future of penal reform.

THE SENTENCING PROJECT

Resetting Our Moral Compass
Devastated Communities Leading the Fight
for a Just System
By Leonard E. Noisette

For 2036, I envision a criminal justice system that embodies the American notion of
equal justice for all. Such a system would impose sanctions that are measured and
proportional to the harm caused; would not try to use the courts to solve problems
of poverty, mental illness, and other social issues; would deem far fewer behaviors as
criminal; and would incarcerate people only under the rarest of circumstances.

o be sure, getting there will be no easy task. Over
the last quarter century, our nation has grown a vast
carceral infrastructure that reflects and reinforces
a distinctly punitive and vengeful conception of justice, one
that permeates our national psyche. We now live in a country
where, in a nationally televised debate, the audience cheers
a leading presidential candidate for having presided over a
record number of executions as governor. We live in a country where it is readily accepted in the name of order and safety
that hundreds of thousands of mostly black and brown young
people every year must endure the indignity of being illegally
stopped, questioned, and searched by the police. In today’s
America the absurd prosecution of one mother for the tragic
accidental death of her child due to jaywalking and another
for enrolling her daughter in the wrong district in desperate pursuit of a good education becomes little more than
fodder for the tabloids, and a life sentence for shoplifting a
bottle of vitamins or for a non-violent marijuana offense,
due to prior convictions, barely raises an eyebrow. These are
not anomalies or isolated incidents. They are part of a system
that feeds off punishing people harshly, catering to a mindset
that dismisses collective responsibility for the least among us
and tells vast numbers of people in communities all over this
country that they don’t matter.
Changing this mindset requires more than expert policy
analysis. Exhaustive research has been done. It requires

more than the recognition, made obvious by our current
national recession, that wasted dollars could be better spent.
And it requires more than championing evidence-based
or promising practices, however sound they may be. All of
these components are necessary, but they are not enough
to right the course. Our nation must confront the harshness
and unfairness that we have allowed to seep into and define
our current conception of justice. To accomplish this, those
upon whom the system wreaks its havoc, the people and
communities most severely affected by this conception of
justice and its practice, must be central to the movement.
This is so not only because they have the most at stake. This
is so because only their stories can reset our moral compass.
Recent progress on a number of fronts gives me hope. In places
as diverse as Boston, Cincinnati, and Kalamazoo, the movement to “Ban the Box,” which gives people who have been
convicted of crimes an equal opportunity at employment,
has gained legitimacy. Led in large part by formerly incarcerated people demanding a fair shake, this seemingly narrow
issue has forced an evaluation of our willingness to impose
lifetime punishments by banishing individuals with criminal records from the work world. In Oakland, the Ella Baker
Center’s “Books Not Bars” campaign is, at its core, a movement
of families outraged at the systemic abuses in California’s
youth prisons, and equally outraged at a lack of investment
in California’s youth. This frustration and anger has been

2 5 t h A N N I V E R S A RY E S S AY S

channeled into concrete local and statewide policy victories.
Directly affected individuals and families played a key role in
the successful effort to modify the racially disparate federal
crack/powder cocaine sentencing scheme, breathing life into
a struggle that could have been about the science of narcotics,
but instead was—rightly—about how racially based ignorance
and indifference destroyed lives, manifested unfairness, and
caused communities to lose faith in our system.
With our country’s growing willingness to talk about our
failed practices over the past quarter century, we have an
opportunity to engage in a debate about the meaning of justice in a democratic society and make concrete reforms. In an
encouraging sign, the NAACP’s recent resolution to End the
War on Drugs sends an unequivocal message that the broadbased constituency of this venerable institution understands
that current criminal justice policies represent the major civil
rights issue of our time. It is clear that the harms imposed on
communities of color can no longer be ignored.
While to date efforts to roll back the war on drugs have been
largely limited to advocating for treatment as an alternative
to incarceration, the requirement within national healthcare reform legislation that access to substance abuse treatment be made more available presents the opportunity
to build a response to drug use and misuse outside of the
criminal justice system. The Supreme Court’s recognition
in Brown v. Plata that there are indeed limits to abuse and
mistreatment of prisoners, and its order that California
dramatically reduce its prison population, provides the
opportunity—and challenge—to demonstrate how to begin
to de-populate a massive prison system.
In pursuit of these short-term objectives, however, we must
continue to have community-based stakeholders at the
center of the effort, otherwise small incremental improve-

ments could obscure our long-term transformational goals.
When the economy regains its footing (and we can, once
again, “afford” to lock people up on a mass scale), or when
a highly sensationalized crime
prompts calls for systemic retribution, it is the communiOur nation must
ties that will suffer most who
must be the bulwark against confront the harshness
a return to—or retrenchment
and unfairness that we
of—criminal justice policies
and practices that have so have allowed to seep
clearly failed so many. It is into and define our
these voices we must elevate
because they will be our best current conception
hope to remind us of the mis- of justice.
steps and mistakes of the past.
It is them who we must not
ignore, and whose strength we must foster, if we are to reimagine and reinvent what justice means.

Leonard E. Noisette is the director of the Criminal Justice Fund at the
Open Society Foundations, US Programs, where he oversees criminal
justice system reform efforts. Previously, he was the executive director
of the Neighborhood Defender Service of Harlem.

THE SENTENCING PROJECT

Vital Discussions
How to Stimulate a Frank National Conversation About Race
By Robert D. Crutchfield

In 25 years, the demography of the U.S. Criminal Justice System should reflect the
racial/ethnic distribution of the American population. This will produce a much
smaller and more just system, and have ramifications for racial justice outside of
the system as well.

o accomplish this goal we must address two issues:
racial and ethnic differences in criminal involvement, and disparities in the system’s treatment of
those arrested. We must be willing to have a frank conversation about race and ethnicity in America.
Part of that conversation would focus on discussing the
well-documented and yet still controversial factors that
produce disparate imprisonment of some racial minorities. Some observers insist that there are virtually no meaningful racial differences in criminal involvement, while
others strongly believe that the reason is that black and
brown people commit more crimes than white people. Both
positions are wrong.
African Americans do have higher rates of criminal violence, but do not have higher rates of property crimes, and
good evidence shows that the racial and ethnic distributions
of both users and dealers of illicit drugs mirror the general
population. The picture for Latinos is even more complex.
Among first generation immigrants violence rates are lower,
but this may not be the case for subsequent generations.
Puerto Rican rates of criminal involvement tend to resemble those of African Americans. Asian Americans have been
labeled the “model minority” because of the perception of
low crime rates (among other things), but crime rates vary
considerably among Asian American groups, being higher
among more recent immigrants. Research about Native
Americans remains too thin to have confidence in our
assessments of criminal involvement.

These differences in criminal involvement will persist until
the United States gets serious about inequalities in education, labor market participation, housing, and income.
This is unlikely to happen as long as we blame individuals
for their social circumstance, turning blind eyes to the very
real consequences of racially and ethnically different social
structural realities. This must be an important part of a real
discussion of race/ethnicity in America.
But addressing these disparities alone will not solve the
problem of unequal incarceration. A wealth of research that
takes into account differences in rates of offending shows
there are significant racial/ethnic population differences
in U.S. prisons that reflect disparate treatment of minorities. Across police contacts, arrest, prosecution, sentencing, and imprisonment, differential treatment of minorities has been documented. The evidence regarding drug
offenses is instructive. Drug offenses have been important
in the quintupling of the American prison population in
recent decades. Based on good data, we know that there
are not significant differences in drug use across races,
and no meaningful racial/ethnic differences in drug sales
have been reported. But according to the Bureau of Justice
Statistics in 2009, of those incarcerated in state prisons
for drug offenses more than 50 percent were black and 17
percent were Hispanic.
Our society cannot change the composition of prisons until
we frankly and honestly discuss race. Now, in what some have
called a post-racial America, meaning that “we’ve taken care

2 5 t h A N N I V E R S A RY E S S AY S

of that problem, after all we have a black President,” many
believe the problems of the past have been resolved—or
they’d like to believe it. And yes, there are still those among
us who are simply bigots. Bigots are hard to reach, but we
can have a meaningful conversation without them.
The rest of America must begin to realize that when they act
as if America’s historic and contemporary problems with
race have been resolved, even though substantial racial/ethnic inequalities remain, they are participating in what sociologists refer to as modern racism. These social ostriches
are more of an impediment to addressing both differential
criminal involvement and racial/ethnic disparities than
are the outright bigots. Bigots will never support rectifying
these problems, but many more Americans are modern racists. These modern racists need to realize that they too pay a
price for continuing inequalities. Crime and our collective
response to it are tremendously expensive for our society,
and outside of communities where prisons are located, this
is a nonproductive expense. They are drags on state and
local governments, and on the general economy. How do we
change their view? That is why we need frank and honest
conversations about race.
How can this happen? President Clinton tried to begin such
a conversation, but did not substantially shift the way the
public thinks about race or ethnicity. President Obama can
use the bully pulpit of the presidency to challenge us, and he
did in his campaign speech responding to the controversy
about his former pastor, Reverend Wright.
Fundamentally we need broader conversations, and there
are three groups that should take responsibility in leading them. The first is university and college faculties. For
too long we have been content to quietly do our research,
remaining too silent outside of our classrooms. The second are the churches. None of the three great monotheistic
religions allow believers to blindly turn their back on the

dispossessed. Within their theology is ample basis for calling our society to account for racial/ethnic disadvantages
and inequalities. The third group who can help us be more
honest about race are the people who work in the criminal
justice system. They need to
become less defensive about
the institutions they serve;
Differences in criminal
they need to step up and
forthrightly talk about sys- involvement will
temic failings. And because
persist until the United
they regularly confront the
bitter fruits of our society’s States gets serious
shortcomings, they need to
about inequalities in
call us out on them.

education, labor market

We will be a lesser nation if
participation, housing,
our criminal justice system
looks in 2036 demographi- and income.
cally as it does in 2011. We
must do something different, and that will not happen until
we are willing to acknowledge the problem, and then talk
about it, and then act.

Robert D. Crutchfield is a Professor of Sociology at the University of
Washington. His research focuses on labor markets, disadvantage,
and crime, and racial disparities in the criminal justice system. He
is a former probation and parole officer and is on The Sentencing
Project’s Board of Directors.

THE SENTENCING PROJECT

The Elephant in the Room
The Necessity of Race and Class Consciousness
By Susan B. Tucker

Twenty-five years from now, when my grandsons are 26, will a third of black men
their age be incarcerated or under some form of government control? Will mass
incarceration continue to be the number one civil and human rights issue of the
U.S. in the 21st century?

ragically, history suggests this could well be so. As
Michelle Alexander and Ian Haney Lopez, most
recently, have reminded us, structural racism,
inequality and exclusion are alive and well in the United States,
written into our laws, social, economic and political policies
and practices since before the beginning of the nation. On top
of the solid foundation built by slavery and Jim Crow, in our
lifetime, under our watch, and in spite of the best efforts and
not insignificant accomplishments of The Sentencing Project
and its many allies, the U.S. prison and punishment system
has exploded since 1970. A determined and vehement backlash to the promises of the civil rights movement has relentlessly criminalized, stigmatized, and marginalized increasing
numbers of people who are black, brown, poor, mentally ill,
young and now undocumented. The harm is collective, as well
as individual. Mass incarceration and the addiction to harsh
punishment of poor people of color have disenfranchised and
impoverished whole communities across multiple generations. Today, the resulting, race-based, rationalizing apparatus to “govern through crime,” as Jonathan Simon points out,
extends far beyond the ghetto.
Given this existing reality, it’s difficult to imagine what a
criminal justice system not structured by race and class
might look like. Yet as philosopher Slavoj Žižek argues, it is
an ethical imperative to make “the political miracle a part of
our (Western) imagination.”
As we seek to create a political miracle that re-imagines the
criminal justice system, we should look for ways to join the

rising global demand for justice and equality, not as a special
interest add-on issue, but because the “criminalization of the
ghetto” and the “ghettoization of crime,” as Loic Wacquant
puts it, are blatant sites of injustice and inequality.
Some recent attempts to address and redress the effects
of racialized (in)justice may be promising, if implemented
fully and true to their originating visions. The Sentencing
Project’s proposed Racial Impact Statement legislation is an
excellent example of using race conscious instruments to
pinpoint disparate racial effects of penal policies and practices; it should be implemented nationally at all levels of
government. I’d like to think that Justice Reinvestment, with
which I’ve been involved, and two related reinvestment initiatives, hold promise, as well.
Justice Reinvestment is a mechanism to repair and rebuild the
human resources and physical infrastructure—the schools,
healthcare facilities, parks and public spaces—of neighborhoods devastated by criminal justice policies. It grew from a
recognition that a disproportionate number of U.S. prisoners
come from a handful of poor, black communities, the “million dollar blocks” that have suffered a massive disinvestment
in basic infrastructure while millions have been spent on
incarceration. Now a national initiative, Justice Reinvestment
has succeeded in reducing state prison populations and budgets, averting new prison construction, and redirecting state
resources, albeit mostly to community corrections systems,
but also on occasion to strengthen civil society institutions.

2 5 t h A N N I V E R S A RY E S S AY S

The Civic Justice Corps (CJC), the first national service initiative to affirmatively recruit young people with criminal
convictions, exemplifies the Justice Reinvestment principle of seeking community level solutions to community
level problems. Along with their neighbors, corps members
(ages 16–24) work to improve the health, safety, beauty, and
sustainability of their neighborhoods. They do work that is
visible and valuable, establishing themselves as community
assets. By participating in events such as The Dream Reborn
Conference sponsored by Green for All in 2008, CJC members join other youth of color working for racial justice and
climate justice.
The New York City Model of Probation, adopted in 2010–2011,
is a two-part Justice Reinvestment strategy that matches
supervision to clients’ needs, interests, and level of risk to
public safety, and reinvests in the communities where they
live. The Model’s signature reinvestment initiative is the
Neighborhood Opportunity Network (NeON), which redefines how and where probation officers work with clients.
At the heart of the NeON idea is a local network of partners—
individuals and organizations, public and private—working together to create safe, vibrant, engaged communities.
The first five NeONs are located in five million dollar block
neighborhoods with high concentrations of people on probation. By 2013, clients will be served in community settings
agency-wide. The Department of Probation has already
begun to leverage additional public and private investment
to strengthen local capacity to provide education, work and
civic engagement opportunities.
New Zealand, Australia, and England, all countries where
race has functioned in a similar way as in the United States,
have begun to borrow the Justice Reinvestment model
explicitly as a way to address and redress the plight of their
racialized and criminalized indigenous and immigrant
minorities. This kind of explicit race consciousness will be
key to their (and our) success in transforming criminal jus-

tice systems, which will also require vigorous, organized
demands for reinvestment from affected communities and
civil society institutions.
As we create a strategy for the next 25 years, it is imperative
not to seek compromise by refraining from talking about
race. To achieve and sustain change, we may need to create
mechanisms akin to the kind of transitional justice systems
put in place where national
conflicts have produced massive repression, trauma, family disruption and community We have to believe that
dislocation. The perpetual leg- a criminal justice system
acy of slavery, Jim Crow, and
mass incarceration requires a not structured by race
formal, organized process of and class is possible.
testifying and bearing witness.
What’s the alternative?
The way forward may require
official acknowledgment and
atonement, and active commitment to repair the deep
wounds and multiple sorrows of gross inequality. The penal
policies targeting residents from poor communities of color
are national, state and local; transitional justice strategies
should be implemented at all levels of government and
include related social, economic and political system actors.
We have to believe that a criminal justice system not structured by race and class is possible. What’s the alternative?
Working toward that “political miracle,” as a courageous
friend once told me, is, after all, the only game in town.

Susan B. Tucker is Director of Justice Reinvestment Initiatives with
the NYC Department of Probation. She was previously the founding
director of The After Prison Initiative, a Justice Fund Program of the
Open Society Foundations.

THE SENTENCING PROJECT

The Promise of Prevention
Public Health as a Model for Effective Change
By Deborah Prothrow-Stith, M.D.

As a physician in training in a Boston emergency room in 1978, I realized that
stitching people up and sending them out without addressing the violence that
caused their injury violated any prevention agenda we had. Similarly, schools
were suspending and expelling students and police and courts were arresting
and incarcerating youth, all without attention to prevention.

aving made this connection I was intrigued in
1985, when Surgeon General Koop hosted the first
conference addressing violence as a public health
problem. Public health resources have been increasingly
allocated to preventing violence since that conference,
with remarkable results. The vision for the criminal justice
system over the next 25 years has to build on what public
health has learned.
We can’t address the many challenges in the criminal justice
system without reducing the number of people entering the
criminal justice system in the first place. This means prevention must be on par with law enforcement and punishment.
As a nation, we already promise to respond to violence with
expensive and sometimes harsh solutions. We need a companion promise, the promise of prevention.
As a nation, we can prevent crime and violence, improve
outcomes for individuals and communities, and reduce
the burden on the criminal justice system through a complementary public health approach. We can save lives and
money while build thriving communities. One of the contributions public health has made since the Koop conference is to evaluate prevention activities. We know what to
do to prevent violence and are standing on some firm science as to what works.

Noteworthy examples:
• Public health-based programs such as CeaseFire Chicago,
Baltimore’s Safe Streets program, and the Urban Networks
to Increase Thriving Youth (UNITY) programs have made
significant impacts in violence and changed community
norms. Baltimore saw a reduction in homicides of more
than 50 percent, and Minneapolis showed a 40 percent
drop in juvenile crime in its most violent neighborhoods
in just two years after implementing UNITY’S four-point,
public-health based approach.
• As documented in the American Journal of Preventive
Medicine in 2007, schools can reduce violence by an average of 15 percent in as little as six months through universal school-based violence prevention efforts.
• The U.S. Department of Health and Human Services
reported in 2001 that the Boys and Girls Clubs and the Big
Brothers Big Sisters of America programs have effectively
reduced violence among youth and violence-related outcomes; evaluations show reductions in occurrences of
vandalism, drug trafficking, and youth crime.
• According to the national nonprofit Fight Crime: Invest
in Kids, the Nurse Family Partnership decreased arrest
rates by age 15 by half. The program trains public health
nurses to make regular home visits to low-income, firsttime mothers.

2 5 t h A N N I V E R S A RY E S S AY S

In our efforts to prevent violence, we have learned important lessons. These can inform our efforts not only to prevent violence but also to improve the criminal justice system.
The first lesson is to invest now in prevention instead of paying much more later. In these tough economic times, costs
are often cited as the reason we are unable to do something.
Fortunately, we’re getting more and more scientific documentation of the monies that are saved by investing in prevention. I remember a 14-year-old patient of mine whose
mother wanted him to get into an after school program, but
was having trouble finding one she could afford. I reflected
that if he were shot his medical care would cost the state at
least $100,000, and prosecuting the shooter would double
the toll. But I could not get him into a $4,000 after school
program. A RAND study of the Nurse Family Partnership
mentioned above demonstrated that the program saves at
least $4 for every $1 spent.
The second lesson is that all violence is connected. Gang
violence is connected to bullying is connected to school
violence is connected to intimate partner violence is connected to child abuse is connected to elder abuse. Across
the country, people working on child abuse are right across
the hall from people working on violence against women
without working together, even though the co-morbidity of
the two problems is at least 30 percent. Many young men in
prison for violent behavior have witnessed significant violence during their developmental years and have been victims of violence. Effective prevention activities must reflect
the connections between the different types of violence and
respond holistically.
The third lesson is that we have to offer young people an
alternative to violence with healthy responses to the anger
they feel about the social injustices they witness and the
personal victimization they experience. Using my Violence
Prevention Curriculum for Adolescents in a school in the Boston
area I asked my students to list the things that made them
angry. A young man said that his friend had been stabbed
over the weekend and that it took the ambulance 20 minutes to get there and his friend died. His neighborhood had
the longest 9-1-1 response times of any neighborhood in the
Boston metropolitan area.
The class listed unhealthy things he could do with that
anger: beat up the ambulance driver; take it out on somebody else; or, do nothing. Healthy responses included talking with someone who understands issues of race and class

about it, or writing the mayor a letter. However, the depth of
his anger did not seem to be adequately addressed in those
responses. The class decided that he should get so angry
that he decides to finish high school, become an ambulance
driver, and become an ambulance dispatcher.
As a society, if this is the outcome we want, then we need a
school system that will prepare him to graduate and pass the
test to become an emergency medical technician. The system has to hire and promote
him. Affirming the option is
an important start; then we As a nation, we already
have to make it possible for
promise to respond to
him to do it.

violence with expensive

The time is right for a national
violence prevention agenda and sometimes harsh
supported by criminal jus- solutions. We need a
tice, public health, and those
companion promise, the
concerned about the expense
and efficacy of overcrowded promise of prevention.
prisons. There is a growing
evidence base, grounded in research and community practice that confirms that violence is preventable. Through
UNITY, we have been working with cities all over the country to implement approaches informed by public health. In
partnership with them, we have developed a roadmap for
what it takes, and identified strategies that prevent violence
before it occurs. Communities have successfully reduced
violence through strategic planning and coordinated efforts
by many partners and with the community. In fact, cities
with the most coordination and collaboration across multiple sectors have lower rates of violence.
It is time to transform our criminal justice system and build
the partnerships with public health that focus on prevention
and ensures that the criminal justice system is our last resort.

Deborah Prothrow-Stith broke new ground by defining youth violence as a public health problem. She served as Massachusetts Public
Health Commissioner and is a member of the Institute of Medicine.
She is currently a consultant at Spencer Stuart and adjunct Professor
of Practice at Harvard School of Public Health.

THE SENTENCING PROJECT

Attica Futures
21st Century Strategies for Prison Abolition
By Angela Y. Davis

The most radical futures we can imagine are never entirely severed from their
moorings in the past. So it can be instructive to revisit past struggles for major
change in the policies and practices of imprisonment as we speculate about
possible futures of the U.S. justice system.

his year, the 25th anniversary of The Sentencing
Project, also marks the 40th anniversary of the Attica
rebellion. A major turning point in the history of the
U.S. criminal justice system, the Attica rebellion erupted in
the aftermath of the Folsom prisoner strike and the killing of
George Jackson at San Quentin. While Attica sharply focused
public attention on the contemporary prison crisis, and especially its race and class dimensions, it also generated muchneeded discussion on the relationship between urgent prison
reforms and long-range strategies of prison abolition.
We should not forget that it was the radical activism of prisoners themselves that created the contours of this important historical conjuncture. Activists in prisoner rights and
prison abolition struggles should always call attention to the
considerable contributions prisoners themselves have made
to the movement—from the Attica Uprising to the exposure
by California women prisoners of the expansionist agenda
underlying the strategy of “gender responsive prisons” and
the most recent prisoner strikes in Georgia and California.
The four-day occupation of Attica—as brief as it may
have been—anticipated, along with the Native occupation of Alcatraz and the U.K. feminist peace movement at
Greenham Commons, the contemporary Occupy Wall Street
Movement. The connection of the Attica Uprising with the
OWS movement resides not only in the fact that there was
a literal “occupation” of the prison but also in the way the
analysis offered by the prisoners linked immediate demands
like food, healthcare, and education for prisoners to global

struggles against capitalism. Moreover, in their efforts to
create a functioning activist community within the four
short days they controlled the prison, the Attica activists
produced a precedent for future efforts to build small-scale
radical democratic communities. Symbolically, the Attica
Rebellion stood for and encouraged bold moves on the part
of the anti-prison movement throughout the country, especially in the (unfortunately temporary) transformation of
the prison system in Massachusetts, when guards walked off
the job at Walpole in March 1973 and prisoners actually took
over the day-to-day operations of the facility. Further, the
occupation of Attica and surrounding developments constituted an essential moment in the evolution of the prison
abolitionist movement and prefigured the ways later calls
for abolition would be linked to campaigns against capitalism and for democracy.
During the late ’60s and early ’70s, prisoners’ movements
both reflected and contributed to struggles for economic,
racial, and gender equality in the free world. They understood the importance of the labor movement and, in many
cases, modeled their struggles after the most radical sectors of labor. One of the prominent demands raised by
Attica activists and taken up during that era by prisoners in
California and in other parts of the country focused on the
unionization of prisoners. In the Attica Manifesto presented
to Russell Oswald, Commissioner of Corrections, and to
Governor Nelson Rockefeller some two months before the
uprising, prisoners petitioned for the right to organize
and join labor unions. In the 11th—and related—demand of

2 5 t h A N N I V E R S A RY E S S AY S

the manifesto, prisoners asked that “all institutions using
inmate labor be made to conform with the state and federal
minimum wage laws.”
While the actions of Attica activists helped to publicize
the importance of labor organizing among prisoners, the
United Prisoners Union in California was highly effective
with respect to recruiting members and supporters, and
the Walpole prisoners in Massachusetts demonstrated that
labor takeovers by prisoners could lead to innovative strategies for prison abolition. Included in the Bill of Rights of
the Convicted Class, as formulated by the United Prisoners’
Union, was the claim that “the conditions of labor and
employment for the Convicted Class shall include all the
rights of working class union members in the outside world,
e.g. minimum wage, disability compensation, vacation from
work, vacation pay, retirement benefits, pension plans,
retirement benefits, life insurance. Involuntary servitude must
cease!!” In Massachusetts, Walpole prisoners organized the
National Prisoner Reform Association along the lines of a
labor union.
Inspired by radical movements on both sides of the walls,
North Carolina prisoners became involved in a court case
that examined their right to recruit members into the
Prisoners Labor Union. Having won at the District Court
level, they were barred from further unionizing when the
decision was overturned by the Supreme Court. Justice
Thurgood Marshall’s dissent [Jones v. North Carolina Prisoners
Labor Union, Inc., 433 U.S. 119 (1977)] provides an implicit
message regarding the value of labor organizing within the
context of the prison abolitionist movement:
Today…the Court, in apparent fear of a prison reform
organization that has the temerity to call itself a “union,”
takes a giant step backwards… “A prisoner does not shed…
basic First Amendment rights at the prison gate. Rather,
he ‘retains all the rights of an ordinary citizen except those
expressly, or by necessary implication, taken from him by
law.” I therefore believe that the tension between today’s
decision and our prior cases ultimately will be resolved not
by the demise of the earlier cases, but by the recognition that
the decision today is an aberration, a manifestation of the
extent to which the very phrase “prisoner union” is threatening to those holding traditional conceptions of the nature
of penal institutions.
I respectfully dissent.

Unfortunately, not even the “free” labor movement has recognized the importance of granting prisoners the right to
organize labor unions. The most widespread tendency has
been to regard prisoners exclusively as a threat to free labor.
In this sense the opposition to prison labor recapitulates the
historical animosity toward black workers, understood by
the then overwhelming white labor movement to be potential strikebreakers and therefore a threat to labor unity.
As late twentieth century labor history demonstrates, the
widespread organization of black workers was eventually a
major boost for the labor movement. In the same way, the
creation of prisoner labor
unions today would help to
strengthen a weakened labor During the late
movement. At the same time,
prisoner unions could lead ’60s and early ’70s,
to such vital changes within prisoners’ movements
punishment facilities as prisoners’ capacity to earn mini- both reflected and
mum wage and to support contributed to struggles
their families on the outside,
as well as to provide restitu- for economic, racial,
tion to people who may have and gender equality
been their victims. The recin the free world.
ognition of prisoners’ First
Amendment rights and the
move toward a measure of economic equality that allows
prisoners to enjoy the same rights as organized workers in
the free world can help us imagine and work toward futures
unpolluted by the pervasive presence of jails and prisons.

Angela Y. Davis is Distinguished Professor Emerita of History of
Consciousness and Feminist Studies at the University of California,
Santa Cruz. She is known internationally for her political activism
and longstanding commitment to prisoners’ rights and prison abolition.

THE SENTENCING PROJECT

There Is No Juvenile Crime Wave
A Call to End the War Against Children
By Barry Krisberg

We need to declare an end to the War against the Young that has dominated
criminal justice policy over the past several decades. Disingenuous or simply misinformed criminal justice officials, elected leaders and the media have promoted the
myth that young people are responsible for the vast majority of violent crime.

he facts are otherwise. Teenagers commit about
the same proportion of the most serious and violent crimes as their share in the population. In fact,
young adults aged 25–35 years of age are the perpetrators
of most violent crimes, especially homicide and armed robberies. Indeed, teenagers are the most likely demographic
group to be victims of violent crime. Further, juvenile crime
rates have been on a steady decline for over 15 years—there
is no juvenile crime wave.
The images presented to the public are disturbing. The picture is that of out-of-control, disrespectful youngsters who
obsess on hip hop music and violent videos. Boys who wear
their pants below their waistlines and young girls who dress
provocatively, both increasingly violent and sexually promiscuous. When teens do commit very serious crimes, feckless
politicians such as the current Mayor of Philadelphia employ
exaggerated and dangerous rhetoric to portray these children as less than human, their crimes as more than rare.
The moral panic over the young has led to more police on
school grounds, metal detectors, closing off school campuses as well as the funding of untested, ineffective, and
expensive anti-bullying, anti-drug and anti-violence curricula. While school districts cut budgets for school counselors, science classes, and sports and music programs, they
preserved the new “crime fighters” on school campuses.
Worse yet, many school districts enacted “zero tolerance”
policies imposing automatic suspensions and expulsions

that disregard due process rights, parental participation,
and individual consideration of the circumstances surrounding the alleged infractions. Research suggests that
most suspensions and expulsions are applied to youth of
color and that the “crimes” generally involve defiance of
teachers. School officials and teachers are increasingly willing to call police to make arrests for behavior that was previously dealt with by counselors or other school personnel.
Many jurisdictions have enacted laws and policies enforcing harsh penalties for truancy. There has been a rise in
curfew laws that limit the movement of young people. Drug
enforcement, especially those activities aimed at curbing
marijuana use, has focused on arrests and searches of teenagers. Ironically, as the rate of arrests of juveniles for serious
and violent crimes has gone down dramatically, referrals
to the juvenile court have gone up—mostly for minor drug
crimes, violations of school rules, truancy, and violations of
probation. In order to transform the criminal justice system
over the next 25 years, we need to rediscover some of the
basic policy principles that guided juvenile justice reform
over the past 50 years. First, that young people are protected by the Bill of Rights and that, in the words of Justice
Abe Fortas in 1967, “the status of being a boy does not justify
a kangaroo court.” Second, that pulling minor offenders
into the juvenile justice system will increase any propensity to commit crime and that juvenile correctional
facilities and detention centers are abusive and toxic for
our youth. Third, that children are not little adults and
that treating youngsters as if they were adults is morally

2 5 t h A N N I V E R S A RY E S S AY S

bankrupt and imposes cruel and unusual punishment.
Fourth, that arresting more young people cannot solve
the problems of gangs and community violence. We need
to have the police focus on the most dangerous adult violent
offenders and major dealers in drugs, illegal guns, and commercialized vice. Fifth, we need to understand that children
are more often the witnesses to and victims of violence
in their homes than the perpetrators of violence in their
schools or on the streets. Finally, prevention is the key and
we need to reduce the budgets of bloated criminal justice
agencies and reinvest in community-based programs and
services for at-risk families.
The federal Juvenile Justice and Delinquency Prevention Act
(JJDPA) of 1974 was enacted to encourage the expansion of
what Lamar Empey called the Four D’s—Decriminalization,
Diversion, Deinstitutionalization and Due Process.
Decriminalization was primarily focused on removing from
the purview of the juvenile court status offenses such as truancy, curfew violations, running away and chronic conflicts
with parents. There was also a movement to downgrade penalties for simple possession of small amounts of marijuana.
Diversion meant creating options for police, prosecutors
and the courts to refer youth to neighborhood programs
in lieu of formal system processing. Deinstitutionalization
involved removal of status offenders and other minor
offenders from secure detention facilities, jails, and state
youth facilities. In some cases, such as Massachusetts, Utah,
and Missouri this meant the closure of traditional juvenile
lockups. Expanding Due Process involved providing sufficient legal protections for the rights of children.
As an immediate step to achieving my vision, the JJDPA must
be reauthorized by the Congress. The Office of Juvenile
Justice and Delinquency Prevention should be spared deep
budget cuts and it needs to be returned to a preeminent
national leadership role. In addition, we need passage of
the Youth Promise Act, written by Representative Bobby

Scott, to encourage local community-based delinquency
prevention planning. Moreover, the hundreds of millions
of federal funds for youth development programs that were
slashed during the George W. Bush years should be restored.
The U.S. Department of Education needs to challenge the
current abuses of zero tolerance practices and use its civil
rights enforcement powers to move schools away from zero
tolerance policies. There needs to be training and technical assistance for teachers on
evidence-based strategies to
manage disruptive classroom How would we treat
behavior. Similarly, there is
a need to better define an vulnerable children if
appropriate and constructive we thought of them
role for law enforcement in
as ours and not “other”
responding to school-based
problems.
peoples’ children?
The highest priority must be given to reducing the shocking
disparities of how children of color are treated by the juvenile
justice, child welfare and education systems. The horrible
treatment of youth is wrapped up with issues of poverty and
race. How would we treat vulnerable children if we thought
of them as ours and not “other” peoples’ children? We would
not tolerate long term incarceration for our children. We
would not tolerate the current dropout and school failure
rates. We would want the best for our children and would
provide them with the compassionate care that they deserve.

Barry Krisberg is the Research and Policy Director for the Chief
Justice Earl Warren Institute on Law and Social Policy at the
University of California Berkeley School of Law.

THE SENTENCING PROJECT

Juvenile Justice in 25 Years
A System That Passes the “My Child” Test
By Bart Lubow

When the first juvenile court was established in Cook County, Illinois, a little more
than a century ago, expectations were great that the new system, based upon the
notion that children are inherently different from adults—less culpable for their
actions and more amenable to rehabilitation—would emphasize the very things
that parents want for their kids.

ndeed, the new court was explicitly expected to serve
as “a kind and just parent,” dispensing individualized
justice in a non-adversarial setting, helping delinquent
youth find pathways to happy, productive adulthood.
Reality, unfortunately, proved more complicated. From
the beginning, youth were denied fundamental legal protections, including the right to an attorney. Juvenile court
judges, as recently as the 1960s, were, as often as not, lay
people with no special training or understanding of adolescent development. Probation—the primary intervention—
was under-funded and inevitably embraced the ineffective
surveillance tactics dominant in adult community supervision for decades. Unnecessary and inappropriate reliance
on secure detention centers and “reformatories” became
commonplace, with conditions of confinement often brutal
and largely unregulated. As the system descended further
and further from its original vision, another profoundly
disturbing characteristic became clear. Despite the fact that
delinquency is almost universal among American adolescents, the formal juvenile justice system handled almost
exclusively the cases of the nation’s most disadvantaged
children, primarily poor youth of color. Parents with any
resources, connections, or wiles manage to keep their kids
out of this system’s clutches.
Could there be stronger evidence that this system fails the
“my child” test? Our ambition in 25 years must be to operate a system where all parents can find positive interven-

tions if their sons or daughters are hauled before the court.
Fortunately, winds of change are blowing strongly again
in juvenile justice, driven by a growing consensus that the
current system fails to reduce juvenile crime or to redirect
delinquent youth. For example, recent studies reveal rearrest rates for incarcerated youth of approximately 75 percent within three years of release (despite annual average
expenditures of $88,000 per bed), while also exposing the
system’s miserable failure to address the disproportionate
educational, health and mental health problems presented
by its wards. As convincing as the critique of the status quo
has become, it has been amplified by a growing body of
knowledge about what works to change youth behavior and
the related recognition that greater emphasis on evidencebased programs, practices, and policies could fundamentally alter outcomes.
While the United States has uniquely embraced mass
incarceration of adults as the key to public safety, there
is now a movement for fundamental change in juvenile
justice focused on reducing confinement. Practitioners,
policy makers, community activists, and researchers have
all fueled a substantial trend to limit juvenile incarceration—be it in local detention centers prior to adjudication or in state-operated correctional facilities following a
delinquency finding—has emerged in the past decade. The
(almost 150) jurisdictions that participate in the Juvenile
Detention Alternatives Initiative, for example, have reduced
reliance on local detention by an average of 41 percent and

2 5 t h A N N I V E R S A RY E S S AY S

lowered their commitments to state corrections facilities
by approximately one-third. A growing number of states,
led by California’s astounding drop of almost 85 percent in
ten years, have reduced youth incarceration dramatically.
Between 1997 and 2007, the rate at which youth were confined in long-term secure institutions nationally decreased
41 percent. In the next five years, this trend should gain
additional momentum, especially given the tough economic
conditions faced by most state and local governments.
The movement away from wholesale reliance on confining
juveniles is not merely promising: it is essential if a future
juvenile justice system is ever to pass the “my child” test. It is
essential that we begin that transformation by overcoming
the current addiction to incarceration. Why? At least four
reasons seem relevant.
First, incarceration is costly. As long as states spend the lion’s
share of their limited juvenile justice funds on confinement,
dreams of better prevention and early intervention strategies
will remain unfulfilled. How else, for example, can we scale
up evidence-based interventions so that more than the current scant 5 percent of eligible youth actually receive them?
Second, as the best recent de-incarceration efforts have
demonstrated, safely reducing confinement depends on
multiple, inter-connected reforms that alter policy and
practice up and down the case processing continuum. We
can’t change incarceration just by adding programs to the
dispositional end of the system. Reducing incarceration, in
other words, demands fundamental, broad system reforms,
including limiting which cases require formal court involvement, improving community supervision, and implementing data-driven, structured decision making. Significantly
limiting incarceration will force such changes.
Third, reducing incarceration is key to unleashing the creativity that the juvenile justice system has been missing.
Incarceration is a safety net for juvenile justice practitioners. When all else fails—when kids violate probation rules,
continue to misbehave despite treatment referrals, abscond
from lousy group homes—the system always has an option:
lock them up, even though they will be back in the community relatively soon. What would happen if that option were
greatly restricted? What new approaches would practitioners invent? What innovations would emerge?
Finally, juvenile justice transformation triggered by reduced
reliance on confinement will, at last, hold the system account-

able for results that really matter. As things now stand, the
system measures success, or failure, by admissions to detention or corrections, by successful probation terminations,
by restitution collected and urine tests failed. These are
relevant indicators, but they are poor substitutes for what’s
really important: whether kids are well-behaved, learning,
connected to the labor market, and prepared to be contributing members to families and communities. The current
system has forsaken responsibility for improving the wellbeing of the youth it works
with. But, if it can’t incarcerate them, it will have to work
to improve those long-term The movement away
outcomes.

from wholesale reliance
on confining juveniles is
not merely promising:
it is essential if a future
juvenile justice system
is ever to pass the “my
child” test.

Ten years from now we should
find half as many youth
incarcerated as we do today.
Though the United States’
juvenile incarceration rate
would still far exceed comparable nations, this downsizing
would be a profound shift in
the right direction. By then,
the stage should have been set
to bulldoze the last of America’s old-style, large youth corrections facilities, burying forever the scent of scandal and
abuse that permeates their history. And, with this kind of
trajectory, it would be less hard to imagine a system that, a
quarter of a century from now, addresses far fewer cases,
much less punitively, and with far greater capacity to truly
help troubled youth and their families. Reformers, by then,
should have shifted their focus, too, from getting the system
to do less harm to helping the system “do good.” That paradigm shift will be the key to juvenile justice’s passing the “my
child” test.

Bart Lubow is the Director of the Juvenile Justice Strategy Group
for the Annie E. Casey Foundation. He has previously served as the
Director of Alternatives to Incarceration and Deputy Director of
Probation for New York State.

THE SENTENCING PROJECT

A Worldwide Problem
The Roots of Mass Incarceration
By Andrew Coyle

The work we do in the International Centre for Prison Studies (ICPS)
transcends many national boundaries and so my comments will deal
with an international landscape.

ur most recent research has discovered that today
there are over ten million men, women and children in prisons around the world. This is an
increase of one million since ICPS began publishing the
World Prison Population list in 2005. This is not the place to
enter into a detailed academic analysis of why this increase
has occurred, nor of why some countries lock up a greater
proportion of their citizens. However, there are some useful
indicators to help us in a discussion about what the criminal
justice system should look like 25 years from now.
In the first place, there is little evidence that increased
rates of imprisonment in many countries are a reflection of
increased crime rates. In England and Wales, for example,
the overall crime rate has been falling consistently since
1995, while the rate of imprisonment has been rising equally
consistently. Nor can one argue that it is the increase in the
rate of imprisonment which has led to the fall in crime since
one can point to several countries where imprisonment
rates have fallen or remained stable while crime rates have
also fallen.
There are a number of interlinked factors which have contributed to the increase in prisoner numbers. The first
is the use of the criminal justice system as one of the first
responses to major social problems. This helps to explain
why one finds a disproportionate number of people from
minority groups inside prison in most countries: ethnic and
cultural minorities, the disadvantaged and the marginalized. One of the results of globalization in recent years has
been the increased movement of large numbers of people
across international boundaries. An unforeseen conse-

quence of this is that in a number of countries, for example,
of Western Europe, over 50 percent of prisoners are nationals of another country. The use of the criminal justice system
as one of the major “weapons” in the “war against drugs” has
been a major contributor to increased numbers in prison. In
a similar manner, lack of health and welfare provision in the
community for those who suffer from mental illness means
that the criminal justice system is very often left to deal with
them, with imprisonment being the default option.
Another factor is the manner in which governments have
responded to the above issues. In the absence of a more
strategic approach to these complicated challenges, the
response has often been recourse to punitive legislation.
Throughout most of the 20th century successive governments in the United Kingdom would introduce a major
new criminal justice act every five years or so. In the decade
between 1997 and 2007, the government enacted 23 of these
acts, in the course of which it created 3,000 new criminal offenses, almost half of which included a provision for
imprisonment. One example was an Education Act which
provided for the imprisonment of parents of a child who
refused to go to school.
All of these factors have meant a significant increase in
the number of people who are being sent to prison for
offenses which would not previously have attracted a
prison sentence. In addition, in many cases the length
of prison sentences has increased, with the obvious outcome that people are serving longer sentences. Linked to
that is an increased reluctance on the part of the relevant
authorities to approve conditional release for those who

2 5 t h A N N I V E R S A RY E S S AY S

are not considered to be a risk. A variation on this is the
tendency on the part of parole and probation authorities
to recall persons to prison for technical violations of their
conditions of supervision. In some countries, including
the United States, a significant number of those now being
admitted to prison fall into this category.
In early September 2011 the U.K. Justice Secretary Kenneth
Clarke referred to the “broken penal system.” If this is a true
description, the reason for it is not hard to find. It is that the
penal system has been overloaded and is now expected to
deal with a wide variety of social and other problems which
are beyond the purview of criminal justice. If the penal
system is to be repaired then it will have to be relieved of
matters which are much better dealt with elsewhere. In any
democratic society there is an important role for the criminal justice system, but it is a very narrow role. The criminal
justice system can be used to reinforce and to support the
values of a society and to strengthen the bonds that hold a
society together. However, it cannot and should not be used
to replace these values and bonds.
So, the answer to the question as to what the criminal justice
system should look like 25 years from now is that it should
look much smaller and leaner. It should be used only when
the use of other public mechanisms are inappropriate. It
should be used as the ultimate means of expressing society’s disapproval of serious acts of criminality and to protect
society from those who are a demonstrable threat to its well
being. It should not be used as the default mechanism for
dealing with health and social challenges.
In terms of laying the groundwork for that fundamental
change, it may be that the current global economic crisis will
force governments to make less use of the expensive criminal justice system and to find more innovative and inclusive
means of ensuring public safety. There are already signs that
this is happening. If this approach is to gain momentum,

the debate must be taken beyond the usual criminal justice
agencies to involve a much wider audience at governmental
and local level. That will be a real challenge for reformers
and advocates over the next three to five years. It will not be
easy, but the prize in terms of public confidence and safety
will be well worth the effort.

Andrew Coyle is Emeritus Professor of Prison Studies in the
University of London and Visiting Professor in the University
of Essex. He was founding Director of the International Centre
for Prison Studies and was for many years a Warden in the U.K.
Prison Services.

There are a number of
interlinked factors which
have contributed to
the increase in prisoner
numbers. The first is
the use of the criminal
justice system as one
of the first responses to
major social problems.

THE SENTENCING PROJECT

Seeking Justice
A Crucial Role for Prosecutors in Reducing Recidivism
By Charles J. Hynes

The ultimate goal of our criminal laws and criminal justice system is to ensure that
people are safe in their persons and property. While improvements in the system
may help to cut crime, a nation truly committed to ameliorating public safety must
tackle those many adverse social conditions, such as insufficient medical care,
poor education, lack of housing and jobs, among others, which shred the fabric of
community, provide an environment in which crime can take root, and exacerbate
crime’s destructive impact on individuals, families, and neighborhoods.

hat said, a criminal justice system which better recognizes how social conditions are linked with criminal behavior and which addresses those linkages can
have a significant positive impact on public safety. In this
regard, criminal justice practitioners (those in law enforcement, the courts, and corrections) have already taken a big
step forward from where they were 25 years ago. We need
to continue moving the system in that same direction, especially so that 25 years from now, the system will respond
better to reduce what has been called the “hard core of the
crime problem”—namely, crime by repeat offenders.
Movement on two fronts will be crucial if the criminal justice system is to improve at curbing criminal recidivism—
first, the efforts of criminal justice practitioners to involve
community members, including non-profit social services
providers, in achieving the goal of public safety; and second,
the readiness of criminal justice practitioners to embrace
scientific research and technological advances and incorporate these in how they do business.
On the first front, community engagement can be done in
several different ways, and can have positive effects at several stages of the criminal justice process—from the investigation stage, all the way to a former inmate’s re-entry
into the community. Community policing, community

prosecution, problem-solving courts, re-entry partnership programs for the formerly incarcerated, and crime
prevention programs for at-risk youth—with all these
approaches, we can integrate the community, both individuals and organizations, in the overarching endeavor of
enhancing public safety.
As to the second front, scientific research and technological advances have already had an enormous positive impact
on every stage of the criminal justice process. For example,
DNA evidence has increased the accuracy of arrests and convictions and has led to the exoneration of those wrongfully
convicted. Social science research on such disparate subjects as identification procedures and risk assessments have
helped criminal justice practitioners adopt better procedures and make smarter decisions. Technological advancements have revolutionized the criminal justice process by
easing the recording of, access to, sharing of, and preservation of information.
While all types of criminal justice practitioners must
engage on both these fronts, prosecutors, with their
close ties to law enforcement as well as to the courts, are
uniquely positioned to forge partnerships. Prosecutors
have a mandate to “seek justice,” and by vigorously pursuing that goal through a proactive, holistic, and technologi-

2 5 t h A N N I V E R S A RY E S S AY S

cally- and scientifically-savvy approach to crime, they can,
and should, take a leadership role.
In Brooklyn we emphasize community relations and partnerships with community-based service providers. We look
to social science research for new practices that we might
want to adopt and for ways to improve our existing programs. Three crime-reduction projects in Brooklyn draw
their success from involving community and incorporating
scientific research/technological advancements, and they
show how a prosecutor’s office like mine can lead the way
for further system-wide improvement.
Diversion into treatment can be more effective and less
costly than imprisonment in reducing the criminal recidivism rates of drug offenders. In 1990, guided by a then small
but growing body of diversion research, we developed the
Brooklyn Drug Treatment Alternative-to-Prison (DTAP)
program, partnering closely with two community-based
residential treatment providers, as well as with the court
system, division of parole, and defense bar. The program’s
early success garnered the interest of the National Institute
on Drug Abuse, which then funded a program evaluation
by the National Center on Addiction and Substance Abuse
(CASA) at Columbia University. The 2003 CASA report validated DTAP as an effective means to reduce crime and drug
use. The program’s sustained results spurred other district
attorneys to recognize the crime-fighting value of this alternative to incarceration and it laid the groundwork for the
proliferation of drug courts throughout New York State.
Community justice centers seeks to resolve cases in ways
that recompense the community, address the needs of victims, and change defendants’ behavior. My office helped
plan the Red Hook Community Justice Center in Brooklyn,
which opened its doors in 2000. At the Center, most cases
result in sentences that incorporate one or more of the myriad programs and/or services available on site—intensive
drug and alcohol treatment, mediation, anger management
classes, GED classes, youth groups, and more. Prosecutors
staffing the Center are active in the community, attending community meetings, participating in local events, and
performing such roles as coaching Little League. The Center
brings justice, as well as a slew of services, directly to neighborhood residents—about 70 percent of whom live in public
housing. The Center uses computer technology to operate
efficiently, keep track of the progress of all the defendants
in various programs, and stay connected with the rest of the
court system in Brooklyn. Because of the Center’s success,

we’re planning a similar community justice center in the
Brownsville section of Brooklyn, where the persistence of
youth crime is especially troubling.
Reentry programs are crucial to reducing recidivism.
ComALERT (Community and Law Enforcement Resources
Together), is a collaborative reentry program run by the
Kings County District Attorney’s Office to address the
needs of the formerly incarcerated in Brooklyn. In partnership with an outpatient
substance abuse treatment
provider, a non-profit tranDiversion into treatment
sitional work and housing
agency, Medgar Evers College can be more effective
of the City University of New
and less costly than
York, and over a dozen other
community-based social ser- imprisonment in
vice providers, ComALERT
reducing the criminal
delivers intensive treatment
and services designed to meet recidivism rates of
the individualized, often com- drug offenders.
plex needs of its clients. An
evaluation by Professor Bruce
Western of Harvard University found the program to be
effective in slashing the recidivism rates of parolees who
complete it. That validation by a social scientist has helped
us greatly in securing continued funding for the program
and in convincing other jurisdictions to replicate the collaborative re-entry model. Social science research has also
helped us further improve ComALERT.
These three programs demonstrate how a prosecutor’s
office, by involving community and embracing research
and technology, can enhance the criminal justice system’s
ability to reduce recidivism. And if we really succeed in
reducing recidivism, the nation will be a much safer place
25 years from now.

Charles J. Hynes has been the District Attorney of Kings County
Brooklyn, New York, since 1990. He is the Immediate Past Chair
of the Criminal Justice Section of the American Bar Association,
and also an Immediate Past Vice President of the National District
Attorneys Association.

THE SENTENCING PROJECT

What We Did in Dane County
How Reform Saved Money and Increased Public Safety
By Kathleen Falk

In my 14 years as Dane County Executive in Wisconsin, responsible for the annual
budgets for the courts, the sheriff and the district attorney, I implemented
reforms in the criminal justice system that I believe, if implemented broadly,
could significantly improve the criminal justice system in the future.

’m not an academic expert or a professional working in
the system, and I hold these groups in utmost respect—
but my particular lens on the system allowed me to
make some very useful changes.

If alcohol, drug, and mental health treatment each cost
about $7000 a person, while it costs about $31,000 a year
to incarcerate, where should we invest in order to prevent
recidivism?

I didn’t get into politics to make these reforms. I got into politics after practicing law for almost 20 years because I wanted
to make a difference in the lives of kids in my community. As
the county executive, I was able to improve human services
programs that make a difference, but I immediately faced a
growing jail population and a County Board resolution calling for the construction of a $46 million addition to the jail
at annual additional costs of about $10 million.

I quickly saw it wasn’t smart to invest a lot of money in a
system that doesn’t do enough to keep us safe, when less
expensive and more effective sanctions exist.

My parents taught me early on about frugality. I vetoed that
resolution so that I could do the homework to figure out
who was in jail, what it cost, and whether we were getting
our public safety goal of bang for the buck. That homework,
which included dialogue with folks in the criminal justice
system and community, collection and analysis of data, and
lots of thinking, produced many questions, including:
Would the one out of five inmates with mental illness get the
health care needed in jail and were our deputies trained to
protect themselves and inmates from the behavior of mentally ill persons?
If almost half the sentenced inmates were in jail because of
driving while intoxicated and had a significant recidivism
rate, how had we made the community safer?

For the next 14 years, I invested a lot of my time, energy,
and agenda to changing the system. I funded more detailed
studies of the entire system, with even more follow up of
key components, such as the Sheriff’s department. We created targeted programs for mentally ill persons to get them
into care and created a unique program for young Latino
offenders whose language barrier problems too often lead to
incarceration. We expedited and implemented efficiencies in
the court system to reduce trial delays and save jail costs. We
improved automation, scheduling, and discovery processes
in the District Attorney’s Office. We added more than 100 new
deputy positions and we significantly expanded electronic
monitoring of offenders so that a larger number of offenders
would live in the community, instead of jail, while working
and caring for their families. We expanded our drug court
for first-time offenders and created a unique new program
for repeat alcohol offenders that involves some jail-time followed by six to nine months of treatment, with significant
success in preventing re-offending and with securing housing and jobs. All in all, we have over a dozen such targeted
“criminal sanction programs.”

2 5 t h A N N I V E R S A RY E S S AY S

Given that few of us like to change—and the criminal justice
system is no different—how did we do this?
As we came up with these ideas, we went straight to the
500,000 citizens in my county, speaking to Rotary groups
over lunch, visiting with editorial boards and opinion makers,
presenting the case for being “smart on crime” and why we
weren’t getting our moneys’ worth with the existing system.
People got it; citizens are always ahead of politicians. Citizens
gave me a chance and in doing so, they held other elected officials’ feet to the fire to change, too. The reforms are working
and they are lasting. The community “buy in” was key.
Now 14 years later, despite the fact that the population of the
county grew by more than 20 percent during that period,
our jail population is the same size as it was in 1997. There
are multiple reasons for this, including that crime is down
nationwide and in Wisconsin, but the changes in our local
system have made a profound difference in improving public safety and reducing costs.
The reforms we implemented in Dane County provide evidence and hope that the system as a whole can be changed
nationwide. The system as a whole cries out for answers to
the bookended questions of how we can prevent crime and
reduce recidivism.
If we focus on prevention, we can reduce crime and we can
save money in the future. This is because we know more
about how to help people succeed than we do about how
to change them after they have failed. And with the advent
of new thinking from conservatives such as Newt Gingrich
and former Attorney General Edwin Meese launching
“The Conservative Case for Reform” last December, we can
improve this 200 year old system.
I have hope that what appears to be a growing trend across
the nation to adopt best practices, to create pilot programs

of reform, to improve the use of risk assessments to better
distinguish between those that need to be behind bars from
those that don’t, that America can have a cost-effective and
fair criminal justice system in the next 25 years.

Kathleen Falk served as Dane County Executive in Wisconsin for 14
years. She was elected a record four times by 500,000 citizens.

We know more about
how to help people
succeed than we do
about how to change
them after they
have failed.

THE SENTENCING PROJECT

“Remember the Ladies”
The Problem With Gender-Neutral Reform
By Meda Chesney-Lind

As criminal justice advocates look forward to the next 25 years, it’s vital that we
keep in mind Abigail Adams’ 1776 admonition to her husband to “remember the
ladies.” Girls and women’s situations have long been ignored in discussions of
law, justice, and crime.

hat has meant that their experiences of victimization, crime, and punishment (sometimes extremely
harsh) have been rendered invisible by long
accepted patterns of sexism.

in prison to over 100,000. While the number of men incarcerated continues to dwarf the number of women, failing
to address women’s needs in the next 25 years will limit our
ability to create a fair and effective penal system by 2036.

Instead of promoting safer families and communities for
girls and women, the criminal justice system in the United
States has been involved in a far more deeply troubling project—the enforcement of racial privilege. Hijacked by politicians interested in pursuing racist goals largely for political
gain in the last half of the twentieth century, crime became a
code word for race, with dire consequences for our country.

Recent figures suggest that with little fanfare, the “war on
drugs” has contributed to the explosion in women’s prison
populations. Women in state prisons are considerably more
likely to be serving time for a drug offense than men, 25.7
percent compared to 17.2 percent, as of 2009. In a related
development, more accurate drug testing of parolees has
compounded the impact of incarcerating drug users on
women’s prisons. Many women parolees are being returned
to prison for technical parole violations because they fail to
pass random drug tests, guilty of only of drug relapse, not a
new crime.

Largely as a result of these political forces, the U.S. now
imprisons more people, in aggregate, than any other nation
in the world. And, predictably, the burden of incarceration
has fallen most dramatically upon African Americans. The
disparate impact of incarceration on African American men
was the first consequence of this terrible distortion of justice to come to national attention since the numbers there
were so shocking.
Activists’ and reformers’ concern about the plight of young
men of color, while understandable, has tended to obscure
the dramatic impact that mass incarceration has had on girls
and women, particularly girls and women of color. More
than one million women in the U.S. are under some form of
criminal justice supervision in the U.S. By 2009, the number
of women imprisoned in the U.S. had increased 800 percent
over the past three decades, bringing the number of women

Race as well as gender figures prominently in women’s
imprisonment. The numbers indicate that nearly half the
women in the nation’s prisons are women of color; notably 27 percent are African American and 17 percent are
Hispanic. The number of Latinas incarcerated increased by
65 percent in the first decade of this century, a figure that
reflects a general population increase, but also the increasing involvement of the criminal justice system in the criminalization of immigration, as well as policies and practices
relating to the war on drugs.
Nor has this pattern of punitive incarceration been restricted
to the adult criminal justice system. Arrests of girls have been

2 5 t h A N N I V E R S A RY E S S AY S

soaring in recent decades; now girls account for about one in
every three juvenile arrests, up from one in every five in the
1970s, due largely to increases in arrests for simple assault.
And, girls, particularly girls of color, are increasingly incarcerated for what turn out to be relatively minor offenses,
such as shoving parents or getting in school yard tussles.
According to federal data, between 1995 and 2005, girls’
detention commitments grew by 48.6 percent compared
to 7.3 percent for boys. The evidence is also very clear that
African American girls are dramatically over-represented
among those detained and incarcerated. The National
Council on Crime and Delinquency reviewed juvenile incarceration rates in 2003 and found that African American and
Native American girls were held in custody at three times
the rate of white girls. Latino girls were also more likely to
be incarcerated than their white counterparts.
A policy of remembering the ladies would clearly need to
interact with sensitivity to racial issues. For activists and
advocates, remembering the ladies could take on any number of forms—for example, whether we are designing treatment programs in a public health approach to drug use that
could replace the war on drugs or restructuring parole, it is
essential to design programs that work for people who may
be the primary caretakers of children. When we design work
programs to address the hopelessness and poverty that can
exacerbate criminality, we need to be aware of the jobs that
traditionally employ women as well as those that traditionally employ men. If sentencing is to be truly equitable, it
must take into account the “girlfriend” problem—women
who become involved in criminal activity as adjuncts to
their more connected and involved boyfriends—as well as
the particular circumstances of women who may have a history of being abused and an obligation to minor children.
Remembering the ladies holds promise for activism as well.
The American people are not particularly conscious of girls
in the juvenile justice system. Drawing attention to the sexual and physical abuse scandals that have recently haunted
facilities jailing girls would be very compelling. Groups
advocating for girls as well as those concerned with the
rights of African Americans constitute a huge and untapped
resource for those seeking reform in the criminal justice
system and re-directing it to focus on public safety instead
of race and gender privilege.
It is hard to think our way out of a criminal justice system
that has lost its way. Nonetheless, it is important that those

of us who imagine a better world, try to enlist the aid of
women’s advocacy organizations as well as organizations
committed to racial equality to help return our criminal
justice system to integrity. Some of this work has already
begun in the area of gender responsive programming and
culturally informed programming within the juvenile and
criminal justice systems, both policy and programmatic
shifts that have strong support in many states. Building on
that momentum, we need to continue to push for gender
and race informed approaches that acknowledge the harms
of victimization and crime while also seeking responses
that minimize further social damage. By doing so, we can
increase individual and community safety while restoring
justice to both public and private life by 2036.

Meda Chesney-Lind is Professor and Director of Women’s Studies
at the University of Hawaii at Manoa. Nationally recognized for
her work on women and crime, she has just published Fighting for
Girls: Critical Perspectives on Gender and Violence.

Girls and women’s
situations have long
been ignored in
discussions of law,
justice, and crime.

THE SENTENCING PROJECT

Retire the Leeches
The Promise of Evidence-Based Solutions
By Seema Gajwani

Four hundred years ago, doctors treated epileptic patients with leeches, heat blisters
and induced vomiting. Two hundred years ago, “bleeding patients to health” was
the most common medical practice performed by physicians around the world.

nly a few decades ago, medical experts believed
that all pregnant women should be X-rayed to
measure their pelvic bones. Of course, doctors
used the best information they had at the time. And every
surviving patient reaffirmed the efficacy of the treatment.
But just because something has been used for years does not
mean it works. And what doctors used to think was the best
thing to do might, in fact, have been harmful.
Not surprisingly, when researchers study a disease, they look at
many more patients than individual doctors will ever treat.
Over time, the medical profession abandoned antiquated
practices and embraced evidence, evaluation, and research
to improve treatment outcomes and relieve pain. Now, using
their version of evidence-based practices, medical researchers deduce methods and policies that produce the best outcomes for large populations given limited resources.
Today, the criminal justice system is moving beyond leeches
as well, and this change holds promise for the next 25 years.
Emerging research shows that we can assess the chances of
an arrestee returning to court after a first appearance, of a
probationer committing another crime, and—under a given
type of supervision—of a parolee engaging in new criminal
activity. Using risk analysis, criminologists can make predictions with increasing certainty about how much supervision and what types of intervention for which offenders can
reduce the level of recidivism in a population of probationers and parolees.
Some community corrections systems already use evidence-based practices and risk analysis to substantially

reduce recidivism, and thus incarceration rates. These concepts are not limited to just the back end of the system. Risk
analysis can predict the likelihood of pretrial defendants
returning to court. Judges and prosecutors can improve
the odds that defendants will not commit more crimes by
using evidence-based sentencing. Faithful implementation
of evidence-based principles throughout a criminal justice
system can reduce jail and prison populations, save money,
and decrease victimization.
More importantly, implementing evidence-based principles
can limit the degree to which low-risk offenders become
future medium- or high-risk offenders. Rigorous, long-term
studies of hundreds of thousands of offenders show that
locking up low-risk offenders with medium- to high-risk
offenders, while also separating them from their families and
communities, turns low-risk offenders into more serious
offenders, not the other way around. Some estimates show
that up to one third of the offenders in federal prison are lowrisk. We are likely making them worse by locking them up.
In fact, research shows that people with a low risk of recidivism often have the ability and the resources to change on
their own. When we over-supervise them, we disrupt many
positive behaviors that make them low-risk, such as tending
to their children or working at a job. By adding to their burden, we make it more difficult for them to address whatever
problems contributed to their entry into the criminal justice system. We’re causing more harm than good.
Some practitioners are paying attention. The director of
the probation agency in Austin, Texas, realized that her

2 5 t h A N N I V E R S A RY E S S AY S

department was putting too many low-risk probationers under supervision for too long. Using a validated risk
assessment analysis tool to determine the risk profile of
her population, she assigned her low-risk offenders to
probation officers with caseloads of 400 and stripped all
supervision requirements. Recidivism rates dropped by 77
percent with no associated increase in crime. The director used the money saved by reducing staff to provide
the medium- and high-risk probationers with intensive
supervision and cognitive behavior therapy. Recidivism
rates among that population decreased by 50 percent and
9 percent, respectively. Six years later, those rates remain.
Overall, felony revocations dropped by 20 percent, saving
the state almost $5 million in jail costs.
Science and evidence-based practices might not solve all
the problems with the criminal justice system. But, looking 25 years ahead, broad adoption of these concepts would
reduce the prospects of low-level offenders becoming
involve in more serious crime—and reduce both costs and
incarceration rates to boot. It’s time to retire the leeches.

Seema Gajwani is the Program Officer for Criminal Justice at the
Public Welfare Foundation. Prior to her work at the Foundation, she
spent six years as a trial attorney at the Public Defender Service in
Washington, DC.

Some community
corrections systems
already use evidencebased practices and risk
analysis to substantially
reduce recidivism.

THE SENTENCING PROJECT

Reaping What We Sow
The Impact of Economic Justice on Criminal Justice
By Elliott Currie

The most important change we could make in our criminal justice system over
the next 25 years would be to bring our level of incarceration down to something
resembling that of the rest of the advanced industrial world. Whether we can do
that, however, is an open question.

ur exceptional incarceration rate is driven primarily by two things—unusually punitive sentencing policies, especially towards low-level offenses,
and high levels of serious crime, especially violent crime.
With respect to the possible futures of criminal justice in
America, there is moderately good news on the first front
and mostly worrisome news on the second. Some states—
most notably Michigan—have taken significant steps to
reduce prison populations in the past few years, primarily by lightening up on low-level offenders, especially drug
offenders. That trend is positive, long overdue, and potentially enduring. But there are more troubling trends as well.
For one thing, the same budget crises that have finally fostered the willingness of some state governments to reduce
prison populations have also decimated resources for already
meager programs in rehabilitation and crime prevention.
The savings from prison population declines have thus
mainly been swallowed up in the black hole of gaping budget deficits. And so the people we send out of prisons are, as
always, mainly going back to bleak futures in the communities from which they came, but now with even less help.
That problem is enormously exacerbated by the current
economic crisis, which has rendered those communities
even more bereft of resources, opportunities, and social
supports than they were before, while simultaneously
eroding our already minimal efforts to address the longstanding social sources of America’s extraordinary level of
violence—including wide and growing economic inequal-

ity, the advanced industrial world’s deepest and most concentrated poverty, and mass joblessness that is only partly
captured by our conventional unemployment rate. In a
very real sense, our swollen prison system has functioned
as a costly and ineffective alternative to serious efforts to
address those enduring social deficits. And it isn’t easy to
discern much movement today to change that reality.
The latest Census Bureau figures on poverty are genuinely
bleak, with the number of poor people in America at its highest since we began collecting these statistics in 1959. Those
figures are all the more troubling because they are driven
heavily by stubborn long-term unemployment, suggesting that we are in real danger of pushing more and more
Americans into the ranks of the permanently excluded, who
are precisely the people who have filled our prisons from the
beginning. It is sometimes argued, especially in the media,
that the fact that violent crime has not risen even in the
face of increasing poverty and joblessness means that these
social disadvantages have nothing to do with crime. But that
position is shortsighted and misguided. The impact of concentrated poverty and long-term unemployment on crime
mostly happens in the long-term, not in the short, as their
corrosive effects on families and communities begin to shape
the values and behavior of the next generation. We are very
likely to reap what we have sown some time down the road.
What does this mean for the future of criminal justice in
America? It’s always risky to try to predict the future when
it comes to crime and violence, because there are so many,

2 5 t h A N N I V E R S A RY E S S AY S

often conflicting, factors involved in producing a nation’s
(or city’s) crime rate at any given point. But the long-term
prognosis is not pretty. Whatever the specifics of our crime
rate 25 years from now, in the absence of fundamental shifts
in our social priorities, the United States will likely still be
the most violent of advanced industrial societies. At worst,
we could see significantly growing violence in an even more
deprived and insecure America 25 five years on. If that happens, we could see, in turn, renewed demands to “get tough”
on crime and a reversal of the mild progress some states have
made in inching towards more rational sentencing policies.
Is that future avoidable? Yes, of course: if we seriously invest
in some fundamental strategies that, so far, we have mostly
rejected or ignored—strategies to reduce the deepening poverty, widening inequality, growing concentration of disadvantage and obliteration of opportunities for a productive
and inclusive life for too many of our citizens. Chief among
those policies must be a commitment to full employment at
living wages—a commitment that, as we increasingly understand, is highly unlikely to be fulfilled by the private economy
alone. That means we will need a publicly funded employment program that centrally includes direct job creation as
well as relevant training. We know from recent program evaluations that we can give people, even those who have been
out of the labor force for a long time or who have never joined
it, the skills and motivations that would enable them to take
on a serious job. But we also know that these gains turn out to
be short-lived and meaningless if the jobs don’t exist.
Building a movement that can finally put these issues at the
forefront of political debate and action is necessarily a longterm process. But it is never too soon to get started. There is
a self-defeating tendency in our public life to put off dealing with these crippling disadvantages—whose magnitude
continues to mark off the United States from every other
advanced industrial society—in the name of deficit reduction, military intervention, or tax cuts. But if we truly want a

criminal justice system that a quarter century from now will
play a smaller, more effective, and more honorable role in
our collective life, we will need to begin here and now.

Elliott Currie is Professor of Criminology, Law and Society at the
University of California, Irvine. He is the author of Confronting
Crime, Crime and Punishment in America, and The Roots of
Danger, among other works on crime and social policy.

Whatever the specifics
of our crime rate
25 years from now,
in the absence of
fundamental shifts in
our social priorities,
the United States will
likely still be the most
violent of advanced
industrial societies.

THE SENTENCING PROJECT

Marching Upstream
Moving Beyond Reentry Mania
By Glenn E. Martin

Poverty and addiction are treated as incurable diseases in the United States, and
prisons are the fear-driven quarantine facilities that have allowed us all to sleep
at night, but they are not solutions.

hile reentrymania has created renewed
momentum for progressive criminal justice
reform advocates, it’s a downstream strategy.
For every body we’re able to pluck out of the river and save,
thousands of others are swept away. In the next 25 years, we
must think and act more boldly, and recognize that mass
incarceration will be judged by our children as an indelible
stain on our generation’s legacy.
The United States currently has the highest documented incarceration rate and highest total prison population in the world.
The magnitude of incarceration and the stark disparity in rates
of incarceration by race means that a black man in this country
has a one in three chance of going to prison during his lifetime. While women are incarcerated at lower rates, the rate of
incarceration of women of color has been on the rise in recent
decades. To our shame, these rates do not correlate with criminal behavior along racial lines and reflect real injustice.
We, as a society, have made—and continue to make—a deliberate choice to address a history of poverty, neglect, racism,
and classism by creating penal codes rather than addressing
these fundamental inequities. As one segment of America
is taught to learn and earn, another segment of society gets
stopped and frisked. While there has been some measurable progress in recent years, including the passage of the
Second Chance Act and the successful reduction of the
crack/cocaine sentencing disparity, the nation has schizophrenically persisted in tough on crime policies.
Furthermore, our nation’s thirst for punishment and
revenge does not end when people leave prison. There are

700,000 people due to be released from incarceration this
year and try as they may to reintegrate into mainstream
society, these individuals will face a maze of policies and
regulations that keep them from accessing the very things
they need to rebuild their lives and become functioning
members of society. Legal and statutory restrictions, inadvertent and deliberate discrimination practices, and the
cultural stigma associated with having a criminal record
restrict formerly incarcerated people from filling their
basic needs.
The story of my former client Teresa is illustrative. After 32
arrests for drug possession and prostitution, Teresa had
decided to change her life. Within five years, Teresa earned
her GED on Rikers Island and overcame her drug addiction.
She did not stop there. She went on to earn her undergraduate degree at Baruch College and a Masters Degree in Social
Work at New York University. She put these hard-earned
credentials to work at a job helping others regain their lives
and dignity. Teresa was great at her job and her supervisor promoted her to a management position, a role that
required a social work license from the State of New York.
Teresa applied for the license and was denied because of
her criminal history. After years of taking the positive, affirmative steps she was told would change her life, and giving
back to society, she was told she lacked good moral character.
The State of New York got it wrong.
Teresa was lucky in that she was even able to access higher
education. Individuals in prison are now ineligible for Pell
grants, which leaves them with no significant federal program

2 5 t h A N N I V E R S A RY E S S AY S

to fund education. Other legal barriers include barriers in
accessing public housing, other public benefits, and the right
to vote. When reentering individuals fail to reintegrate, they
are not the only ones who suffer. Much of American society is
impacted by the consequences of over-incarceration as hundreds of thousands return each year to millions more family
members, many of whom are already burdened by poverty
and neglect. Every year there is an exponential impact as
valuable lives are wasted, communities are strained, the public is less safe, and dreams are deferred.
In his 2004 State of the Union address, President George Bush
provided a ray of hope and transcended traditional partisan
rhetoric when he announced his Prisoner Reentry Initiative
and declared that “America is the land of the second chance,
and when the gates of the prison open, the path ahead should
lead to a better life.” That important pronunciation led to a
number of meaningful shifts in the distribution of scarce
resources, and in local and national policy. Bipartisan dialogue in Congress culminated in the passage of the Second
Chance Act, states and localities adopted reentry as a critical component of efforts to increase public safety, and many
jurisdictions began to revisit the myriad collateral consequences that mostly serve to alienate and unfairly diminish
opportunities for formerly incarcerated people.
Over the eight years since that important speech, reentrymania swept across our nation as people hoped reentry
programs might cure our country’s addiction to mass incarceration. Bipartisan attention to reentry was inspiring; it
could have signaled a tipping point on the way to a redefined, race-neutral, and equitable criminal justice system
in America, one that viewed victimization and subsequent
incarceration as not just the failure of the defendant, but
also as a failure of society. But reentry programs, if not combined with front-end strategies, rely on the banks downstream to collect and mend the bodies of young, poor, black
and Latino men and women who are chewed up and spit out
by our unforgiving prison system. We need to march upstream.
In the same communities in which government officials
and law enforcement have embraced a new focus on reentry, policing, enforcement, prosecution, and incarceration
policies remain racialized and class-biased. For example,
law enforcement’s approach to certain communities designated as “high crime” is often fear-driven, short sighted,
and sends a strong message about the devaluation of the
residents of certain communities. These communities are
composed of residents who could help law enforcement to

maintain safety, but instead are seen as threats, and stopped
regularly and frisked. These policing strategies reinforce
mass-incarceration and centuries of story-telling about the
legitimization of racism by law enforcement.
Over the next 25 years, we must take on this bigger
“upstream” challenge even at a time when we are at a critical juncture and risk backsliding. It is critically important
that as we fight to sustain and build on the reentry momentum, we demand that reentry be a concern at all junctures
of the criminal justice system.
At sentencing, we must ask
our judges, “And then what?”
As one segment of
When the head of our police
department decides that America is taught to
aggressive policing is the way learn and earn, another
to public safety, we must ask
“And then what?” When our segment of society gets
governors tinker around the stopped and frisked.
edges by right-sizing prisons
instead of downsizing the system, we must ask “And then what?” We should all ask ourselves this question and begin our next 25 years of criminal
justice reform advocacy by first marching upstream. If not,
the ultimate indictment will come from our children.

Glenn E. Martin is Vice President of Development and Public
Affairs for The Fortune Society and Director of the David Rothenberg
Center for Public Policy. He works to support policy reform initiatives intended to remove roadblocks facing individuals reintegrating
into their communities.

THE SENTENCING PROJECT

Addicted No Longer
Breaking Away from Incarceration as
a Primary Instrument of Social Control
By James Bell

The people that first landed on these shores from across the Atlantic brought with
them deeply embedded beliefs that inform our jurisprudential system today. Those
beliefs were filled with dialectics that are clearly difficult to overcome.

or example, they believed the state should have limited power over individuals, but that it should mete out
retribution and punishment to maintain social control. They also believed in “Spare the rod and spoil the child.”
Our jurisprudence as created and maintained by society’s
elites has lurched in fits and starts between mercy and
revenge. Throughout history reformers have tried to intercede against and mitigate the forces of retribution, but the
alchemy is too powerful.
John Augustus, considered the father of probation, was
one of the first to fight against the American addiction to
retributive justice. He believed that the object of the law
was to “reform criminals, prevent crime and not punish
maliciously, or from a spirit of revenge.” Between 1841 and
1858 he provided bail for almost 2,000 people and acted as
their volunteer probation officer. Jane Addams and Lucy
Flowers of Hull House in Chicago interceded on behalf of
children in the late 19th century by creating the first juvenile court whose mission was to rehabilitate rather than
punish. While historic and forward thinking, neither of
these efforts was sufficient to prevent retributive interests
from becoming dominant.
Today, the “tough on crime” mantra and its related legislative agenda have led to unprecedented levels of incarceration in the United States. Public policies and practices
entrench racial disparities. By their very nature these policies and practices, embedded in federal, state and local laws,

are drivers into the youth justice system with disparate and
high impacts on youth of color. In practice, drug free school
zone laws, the identification and handling of gangs, zero tolerance in schools, and the transfer of youth to adult court
all have greatest impact on youth of color. Indeed, youth of
color represent 39 percent of the overall youth population
but 69 percent of youth in detention facilities.
Expenditures for incarceration for all populations in the
United States have increased exponentially since 1970.
These rising costs have naturally led to cuts elsewhere,
including agencies that serve children and the mentally
ill. Practitioners in the justice community have noted the
increase in young people with behavioral health issues.
Indeed, child serving agencies have been gutted, and
there are more mentally ill people in jails and prisons
than in hospitals.
If the justice system is to become more effective in the
next 25 years, we need to create and implement a different
vision. For young people we must move to break the addiction to using incarceration as a primary instrument of social
control. As with any addiction we must take small but strategic steps away from the addictive substance.
First, we must enact legislative barriers to the use of detention as a first resort. That means that entire cohorts of minor
offenses would be directed away from the justice system and
towards community case managers and program supports.
Indeed, approximately 60 percent of referrals to the youth

2 5 t h A N N I V E R S A RY E S S AY S

justice system would be handled informally or through case
managers located in the community. Services to young people and their families would be provided by social workers.
Case managers would be required to demonstrate how
using incarceration benefits a child, his family, and his community, before using it as a tool. Youth serving professionals
would be rewarded for keeping youth out of detention and
for improving their life outcomes as measured by employment, school attendance, reduced family disruption, and
violence reduction.
For those cases that are more serious, we would strengthen
community mediation and arbitration. In almost all cases
a hearing process would involve professionals, community members, and the perpetrator and the victim to try to
resolve the matter with restorative principles that require
accountability without destroying human dignity.
Except perhaps in cases of sexual assault, child molestation,
or domestic violence, restorative methods would precede
court processes. The court processes would vary significantly from our current practice. Hearings would be before
a combination of judicial officers and community members. The focus would be to make decisions about appropriate services that the young person needs and to determine
which community service provider is most appropriate.
In 2010, the Bureau of Justice Statistics released a report
documenting abuse of young people in secure confinement facilities, reminding us in stark detail that incarcerating youth is expensive, unproductive and harmful. In 25
years we will no longer implement retributive policies that
we know do not work. Public policy will reflect that using
locked cells to change the behaviors of teenagers is ineffective, expensive, and more likely to increase crime.

As the numbers of youth of color and the resources needed
to confine them increase at astronomical rates it is time to
re-examine how we as a society respond to young people in
trouble with the law. There is no need for us to be addicted
to a system that is structurally incapable of meeting the
needs of youth and families. Let’s imagine and construct a
new system of justice for youth that is equitable, effective,
restorative and appropriate.

James Bell is the Director of the W. Haywood Burns Institute. Since
2001, he has been spearheading a national movement to address
racial and ethnic disparities in the juvenile justice system.

We must enact
legislative barriers to
the use of detention
as a first resort.

THE SENTENCING PROJECT

Prisons that Look Like America
Applying the Principles of Affirmative Action
to the Criminal Justice System
By Paul Butler

Of course there are too many people of every race in prison in the United States.
For African-Americans, though, the numbers are particularly reprehensible.
We have one black president and nearly one million black people in prison.

ur twin goals for the next 25 years should be the
reduction of all incarcerated persons in the United
States, and the dramatic reduction of the number
of black inmates. Accomplishing the second goal will go a
long way towards achieving the first.
Some of our criminal laws are, or have been, based on raceconscious constructs of criminality. The “black codes” that
punished crimes by African-Americans more than the same
crimes by whites are a historical example, and the more
severe punishment for crack cocaine than powder cocaine
is a contemporary one.
Simply reducing anti-black bias in the law will not be
enough to make our criminal justice system racially just.
As U.S. Supreme Court Justice Harry Blackmun said, “In
order to get beyond racism, we must first take account
of race. There is no other way.” The goal of creating, for
the first time in American history, prisons that reflect
the diversity of the nation will require a new, race-conscious way of thinking about public safety and individual morality.
The idea of using a progressive race-consciousness as a
super-remedy against discrimination, and as a way to
compensate for race discrimination in the past, and as a
way to create more diverse public spaces is not new. It is
the inspiration for affirmative action, which is probably
the most successful racial justice intervention of the postcivil rights era.

Affirmative action created the new black professional class,
and probably deserves some of the credit for the circumstances that lead to the election of the first non-white president in U.S. history. It demonstrated that to promote racial
justice, standards sometimes have to change, but that they can
be changed in a way that doesn’t defeat their purpose; indeed
the change might even be for the good. When, for example,
Harvard Law School placed less emphasis on LSAT scores in
order to admit more African-American and Latino students,
the result created a better legal education for all students.
What would it mean to change the standards for who qualifies for prison, with the goal of ending the extreme racial
disparities that now exist? First, we would have to evaluate
the utility of those criminal laws that are now, through overt
or unconscious bias, selectively applied to minorities. The
war on drugs and the criminalization of immigration law
are the most obvious examples. Both have had devastating
consequences for racial disparities in incarceration.
So decriminalization of both drugs and immigration would
be a good first step. Beyond that, we might think more
broadly about where the threats to our health and safety
come from, which could led to criminalization of some torts
like product liability or professional malpractice.
To be sure, I think we need fewer criminal laws, not more.
But I also cannot imagine that the United States would actually incarcerate white people at anywhere near the rate that
we lock up blacks. This is why working explicitly to reduce

2 5 t h A N N I V E R S A RY E S S AY S

the mass incarceration of African-Americans ultimately
would benefit all Americans by dramatically reducing mass
incarceration generally (although, it is a worthy goal even
without this benefit).
The current administration’s strategy to reduce mass incarceration, and its attendant racial disparities, is based on the
theory that “a rising tide lifts all boats.” The hope is that if the
President fixes social and economic problems like unemployment, lack of access to health care, and failing schools,
then the crime rate will fall, and, along with it, the number of incarcerated African-Americans. While these kinds of
interventions are important, and the problems they address
do disproportionately burden African-Americans, they will
not significantly reduce racial disparities in incarceration,
possibly not at all, and certainly not within 25 years.
To understand why not, let’s return to the affirmative action
context. Let’s say that the goal was to increase the number of
African-Americans at elite medical schools. We can imagine
that one approach might have been to try to improve factors,
like lower standardized test scores or inferior preparatory
education, that caused the low numbers of black students. The
most effective strategy, however, has been to change the admissions criteria of the medical schools themselves. It worked.
Medical schools are now much more diverse than they were
before affirmative action, and by all reports there has been no
diminution in the quality of the doctors they train.
To accomplish this, medical school leaders had to be
thoughtful about the changes they made. They kept their
eye on their core mission, but broadened their vision of
what was necessary for accomplishing it. The same kind of
careful planning would be necessary to revise the “qualifications” for prison. If punishment really can protect life
and property, we need it to continue (or start) doing that,

but with a broader vision of how this goal might be accomplished, a vision more attuned to racial justice.
In Canada, for example, where native peoples are disproportionately incarcerated, judges sentencing native defendants
are required to consider the effect on the native community. In the United States, we might impose such a requirement for sentencing of African-American defendants. Since
African-Americans do not disproportionately commit drug
offenses, but they are disproportionately arrested, prosecuted, and incarcerated for
these offenses, prosecutors
might be forbidden from
Simply reducing anticharging more cases against
black defendants than their black bias in the law
percentage of the local pop- will not be enough to
ulation. Studies have conclusively proved that black make our criminal justice
defendants convicted of kill- system racially just.
ing white victims are most
likely to get the death penalty.
To prevent race discrimination that kills, literally, we could
forbid imposition of the death penalty in these cases (substituting life without parole instead).
These proposals would be as controversial as affirmative
action in education and employment. I submit they would
also be as effective. Affirmative action has helped us understand that if we are blind to race, we are blind to justice.
Criminal law is no exception.

Paul Butler is the Carville Dickinson Benson Research Professor of
Law at George Washington University. A former federal prosecutor,
he is the author of the award-winning Let’s Get Free: A Hip-Hop
Theory of Justice.

THE SENTENCING PROJECT

Defending the Future
The Fundamental Right to Effective Defense Counsel
By Randolph Stone

Twenty-five years from now, every indigent person accused of crime will be defended
by a lawyer who provides zealous and loyal representation. Depending on your familiarity with the American legal system, you probably either assume such representation already occurs—or that the prospect is a pipe dream. Either way, you’re wrong.

riminal defense for the poor is chronically ineffective, a product of institutional racism. It exhibits
inadequate funding, high caseloads, sketchy training
and supervision, failure of vision, and insufficient structural
support. In too many instances, the defender is a cog in the
plea bargain assembly-line, processing convictions and sentences. Despite the chronic inadequacies, there are beacons
of light pointing to effective criminal defense for all and, further, a fair, functional, and rational criminal justice system.
What will be the key ingredients of an effective indigent
defense system in 2036? In most jurisdictions, a professionally administered system of appointed private counsel will
supplement an institutional public defender office. Keeping
the private bar involved (through appointments and/or pro
bono programs) increases the possibilities for client choice
of counsel and safeguards the integrity of the criminal justice system. To exercise the privilege of defending the poor,
all lawyers will meet minimum standards of performance.
Required rigorous and periodic training will focus on advocacy skills, cultural competency reflecting changing demographics, and client centered representation. Lawyers with
a commitment to the clients will be recruited and encouraged to join public defender offices aided by expanded
student loan forgiveness programs. The administrative
structure of the indigent defense system will ensure appropriate caseload limits, supervision, and sufficient investigative, clerical, social service, and other support. An effective
system will feature early entry and vertical representation
(meaning a single attorney represents a client from arraign-

ment through trial). Finally, staffing of the public defender
office will reflect the diversity of the community.
The chief public defender and other leaders of indigent
defense systems will provide vision and leadership by participating in the public conversation regarding crime policy, crime prevention, and social justice. Indigent defense
offices will more actively involve non-governmental organizations and community groups in their operations by situating their offices in the community and utilizing community representatives on their advisory boards and as staff.
Public defenders will educate the public about the theory
and practice of criminal justice policy, the collateral consequences of criminal conviction, the importance of the role
of the defense lawyer in a democratic system defined by the
rule of law, and the potential racial implications of incarceration. The public defender will be at the table in a leadership position with other institutional players of the criminal
justice system in developing, reforming, and defining criminal justice policy.
By 2036, partly as a result of a dynamic, vision driven, and
articulate defense function, the criminal justice system
will have dramatically reversed its impulsive reliance on
incarceration. The prison population will be in continual
decline and the recidivism rate will be at an all time low.
Prison construction will cease and in fact many states will
close prisons, relying instead on alternatives to incarceration
for non-violent offenses, drug cases, and property crimes.
Restorative justice programs will be a common and effective

2 5 t h A N N I V E R S A RY E S S AY S

option for violent offenders. Reentry programs will prohibit
housing, employment, and educational benefit discrimination against ex-offenders. Opportunities for participation
in treatment and counseling will be mandated for most
offenders prior to release and available to all. Racial impact
statement requirements for all criminal justice legislation
and the involvement of an informed community in law
enforcement policy will be among measures decreasing disproportionate minority confinement.
Some strides in the direction of effective indigent defense
representation are already emerging. The Public Defender
Service for the District of Columbia delivers quality defense
services; heavy emphasis on training, national recruitment
of attorneys committed to its mission, reasonable caseloads, a community satellite office, a systemic reform litigation unit, a social services unit, and other innovations have
been transformative. Further, the Neighborhood Defender
Service of Harlem and the Bronx Defenders have expanded
the concept of quality legal representation to reflect client
and community needs. The Knox County Public Defender
Community Law Office is noted for its emphasis on holistic
representation. The Racial Disparity Project of the Defender
Association in Seattle addresses the disproportionate impact
of drug law enforcement on minorities. The Southern
Public Defender Training Center recruits, trains, and mentors young public defenders in the south and in conjunction with Equal Justice Works has launched a national initiative to place dedicated public defenders across the country.
There are many other examples of innovative programs in
the public defender community.
What can we do in the short term to make these examples
the rule rather than the exception? Many have argued we
need a movement to dismantle our system of mass incarceration and reform the criminal justice system. What better
place to start such a movement than in the public defender
community? As we educate each other and our constituents, we can influence our politicians and policymakers to
recognize effective indigent defense representation as an
integral piece in restoring integrity to the criminal justice
system and eliminating mass incarceration and its attendant human and economic costs.
Leveraging support from the federal government should
be another short-term objective and there is precedent.
In the 1970’s the Justice Department funded an experimental alternative neighborhood public defender office
in Chicago. Recently, Attorney General Eric Holder (and

in the 1990s Attorney General Janet Reno) expressed support for an effective system of indigent defense, recognizing the costs to the integrity of the system and the likelihood
of injustice when the defense is ineffective. Now is the time
to resurrect the office of Defender General with a federal
mandate to provide support to the states in creating model
indigent defense delivery systems.
Another step in the short term would be increased collaboration between the National Legal Aid and Defender
Association, the American Bar Association, the National
Association of Criminal Defense Lawyers and other relevant organizations in creating a strategic plan demonstrating to states and counties the
human and economic costs
inherent in a dysfunctional
Many have argued we
and ineffective system of
indigent defense.
need a movement to
Finally, the foundation world
and the social justice research
community
should
be
encouraged to look anew at
the relationship between the
failure to provide quality,
client centered, and holistic
representation to the poor
and the collateral consequences of criminal justice
system involvement.

dismantle our system
of mass incarceration
and reform the criminal
justice system. What
better place to start
such a movement than
in the public defender
community?

The right to counsel is a fundamental, constitutional and
human right essentially denied to poor people every day in
this country. The ramifications of that denial are deep and
meaningful, affecting not only the life and liberty of the
accused, but also family, community, and society. We can
and must do better.

Randolph Stone is a Clinical Professor of Law at the University of
Chicago Law School providing students the supervised opportunity
to participate in policy reform and to defend accused persons. He is
on the board of directors for The Sentencing Project.

THE SENTENCING PROJECT

The “Iron Law” of Prison Populations
Reducing Prison Admissions and Length of Stay
to End Mass Incarceration
By Todd Clear

Any desirable vision for a new penal system over the next quarter-century will start
with the premise that the penal system must shrink in size. To do that, both laws
and policies have to change in ways that we have long recognized.

ive years ago, there was little reason for optimism
that changes needed to really reduce the size of the
penal system would be feasible. But in this country, change can be astonishing. We have seen, over the last
couple of years, some early steps toward a significant reduction in the size of the penal system. For the first time in 35
years, the size of all correctional populations—prisons, jails,
and probationers/parolees—is dropping, at about 2 percent
annually for the last two years. A lot of people have hoped
for this kind of change, but few of us had any reason to think
it was on the horizon.
No doubt the current fiscal crisis is a main driver of this
turn-about. States face dire fiscal choices, and big prison
populations increasingly look like luxuries that need to be
trimmed back. But the fiscal realities have just been the
wake-up call. For a decade, evidence has mounted that the
massive penal system was not only costly, but also ineffective (and in important ways, counterproductive). These
arguments have been persuasive to people on all points
along the political spectrum. They were central to the conservative Right on Crime position paper, where they carried
more weight than mere cost arguments. So I think it is fair
to say that a combination of fiscal and empirical realities has
brought us to this moment.
The question is, how do we get the most out of this opportunity?
The answer to this question is simple but daunting. The
principle Jim Austin and I have dubbed the “Iron Law of

Prison Populations” holds that prison populations are
entirely produced by two statistics: flow, how many people
go to prison, and LOS, their length of stay. The corollary,
then, is that to reduce prison populations one must reduce
either the number of people who go to prison, how long
they stay, or (for maximum effect) both.
The current emphasis on strategies that address imprisonment after an initial conviction and imprisonment
addresses these two factors, but unfortunately has a low ceiling for producing potential large and sustained reductions
in the penal system. These strategies attempt to decrease
LOS by speeding up release for specially designated groups
who are behind bars (such as those who are “low-risk”) and
to reduce flow by reducing their rates of return to prison.
There are several mechanisms now in play to speed up
the release of people from prison. For example, states are
experimenting with accelerated parole of certain subgroups, increased rates of “good time” or other sentence
reduction strategies, and special early releases of cohorts of
near-end-of-term prisoners. There are important distinctions among these strategies, of course, but they all are vulnerable to two limitations; one political, the other, practical.
The political limitation is that any policy or practice that
puts a person on the streets before the end of the sentence
is held responsible for any crimes that person commits after
release. This is a hard-learned lesson of a quarter century
of crime politics. Since no imaginable system of release will

2 5 t h A N N I V E R S A RY E S S AY S

prevent all crimes by those who leave prison, release-based
programs are a kind of political Russian roulette. No matter how well-conceived and run, it is only a matter of time
before someone placed in the community will commit the
kind of brutal, senseless crime that has (in the past) always
brought these release programs down.
The practical limitation is a product of mere math. Many—
about half—of those released from prison end up recycling
back there quite rapidly. If an especially aggressive early
release program reduces a prison population by, say, 10
percent, the recycling effect will mean that effective reduction in population is actually only 5 percent or thereabouts.
Indeed, policies such as intensive supervision and mandatory drug testing, often necessary to sell early release programs, can accelerate recycling. Moreover, advocates often
assure the public that these early release strategies are used
for only the “low-risk” people who are behind bars. Fair
enough. But this sort of low-hanging-fruit approach soon
runs out of fruit.
Release strategies also promise to reduce the rate of returnto-prison through treatment programs. This, too, has a low
ceiling of possibilities. A solid body of research now tells us
that the most effective programs reduce recidivism rates by
only around 20 percent. That means that a return-to-prison
rate of 50 percent becomes, through treatment programs, a
40 percent rate. It will take a long time to build large reductions of prisons systems through treatment programming
alone, even under the most optimistic assumptions of program effectiveness and availability.
These strategies are welcome, and I applaud those reformers
who have built them. They have given us a largely unforeseen and dramatic start on the agenda for the next quarter
century. But if we are to build on their work, we need more
aggressive strategies to address both flow and LOS.
Some of the work on reducing flow is being done for us
by the continuing drop in crime. Absent compensatory
changes elsewhere in the system, fewer people convicted of
crimes will naturally lead to fewer people behind bars. But
nothing will pack the punch of a new emphasis on the front
end, on imposing fewer and shorter prison sentences. In
1972, three-quarters of those convicted of felonies received
sentences to probation. Today, only one-fourth get probation. There is a lot of room to work on the front end, and an
aggressive front-end strategy can make rapid and deep cuts
into the prison population.

Average length of stay today is about double what it was in
the 1970s. Even a modest reduction in LOS would translate into substantial near-term reductions in the size of
the prison population. Reducing sentences would be a
less politically vulnerable way to reduce LOS than releasebased strategies. The massive increase in LOS has been quite
recent. A team of criminologists recently calculated that a
return to the LOS of 1980, for example, would reduce the
prison population by more than one-fourth.
The bottom line of this discussion is not surprising. If we
want to reduce the size of the penal system, we have to
accomplish sentencing reform that reduces sentence length
and increases the rate of non-custodial sentences. But we
already knew that.

Todd Clear is Dean of the School of Criminal Justice at Rutgers
University. He is the author of Imprisoning Communities: How
Mass Incarceration Makes Disadvantaged Places Worse.

Since no imaginable
system of release will
prevent all crimes by
those who leave prison,
release-based programs
are a kind of political
Russian roulette.

THE SENTENCING PROJECT

Surrender the War on Drugs
The Massive Impact We Can Expect from a
Public Health Approach
By Vanita Gupta

In 2003, I represented dozens of African-Americans who were charged and convicted
of very low-level cocaine offenses in Texas. My clients received sentences of 20,
40, 60, and even 90 years. They spent four years in prison for crimes they did
not commit while we worked to clear their names against a stubborn backdrop of
entrenched racial bias and fear-driven drug war policies. Several of my clients
suffered from serious depression upon their release from prison and developed
significant substance abuse problems.

he director of the only drug treatment center in the
region for indigent patients told me he had no available beds and that I should perhaps have my exonerated clients re-incarcerated to get them treatment. The
absurdity was apparent: it was harder to find a treatment
center in West Texas than a prison.
The path to an effective and just criminal justice system in
25 years is to end the “war on drugs.” Abolishing harsh state
and federal sentencing schemes would dramatically diminish the staggering racial disparities in our criminal justice
system. Removing police and prosecutors’ perverse incentives to arrest and convict low-level offenders in order to
keep their numbers high would drastically reduce incarceration. We would end draconian mandatory minimum and
habitual offender sentencing schemes that send nonviolent
drug offenders to prison in this country for longer terms
than people might get for murder in other countries.
Texas’ example is instructive. From 1993 to 2003 Texas spent
billions of dollars to build new prisons. By 2007, severe budget shortfalls created the impetus for the state to cease building new prisons, stabilize its incarceration rate, and invest in
drug treatment and alternatives for drug offenders. Texas

saved $2 billion in just five years, and is now experiencing
its lowest crime rates since 1973. Historically notoriously
“tough on crime,” Texas embraced a more compassionate and effective policy. Unfortunately, 2010 saw a spike
in prison beds in Texas thanks apparently to a state law
that requires excess capacity to protect against crowding.
Because empty beds invariably get filled, this development
threatens to undermine recent progress. Yet advocates continue to push for deeper reforms that would put the Lone
Star state back on track.
Policies calibrated to addressing substance abuse and addiction that are based in science had begun to transform Texas
and could transform the rest of the United States. In such
a system we would treat substance abuse as a public health
problem, and try to combat it using science-based interventions, just as we do with other forms of addiction such
as alcoholism. We would have effective policies that would
strengthen families and communities, increase high school
graduation rates, expand employment opportunities, and
build the capacity of community-based supervision to treat
those with substance abuse. The new agenda for public
safety would involve a broader approach to keeping communities safe and healthy that would not rest purely on

2 5 t h A N N I V E R S A RY E S S AY S

criminal justice sanctions. And we would cease restricting
access to housing, education, the ballot, and public benefits to those with drug convictions in recognition that they
make us less, rather than more, safe.
Texas is not the only state in which lawmakers seem to be
coming to a consensus that the war on drugs needs to be
reoriented. Some politicians are beginning to recognize
that we can better protect public safety using data-driven,
science-based policies over the fear-fueled ones that have
relied almost exclusively on criminal justice sanctions
and cost our society a great deal, financially and morally.
Evidence-based arguments have begun to overshadow fearful anecdotes in policy making.
The recent fiscal crisis has persuaded a wider scope of policy
makers to set aside fears and accept that the United States
could incarcerate fewer people without raising crime rates.
Politicians are talking about being “smart on crime” and legislators are enacting bills supporting evidence-based programs—like diverting people charged with lower-level drug
offenses into treatment and imposing non-prison sanctions
on those who violate the technical terms of their probation
and parole instead of simply returning them to prison.
But cost-based arguments alone cannot result in a more
rational, racially just, and fair criminal justice system.
We need more moral outrage on the part of the public to
reverse decades of overly punitive policy making. Thus far
mobilization has centered on particular cases. We’ve failed
to inspire multiracial masses to march in the streets around
the country for a sustained period of time to demand new
criminal justice policies. Yet, there is no doubt that breaking
our decades-long addiction to incarceration and our complacent attitudes to the racial disparities in the system will
require nothing short of a seismic shift in thinking.

If we abandon our futile “war” it won’t take 25 years for the
criminal justice system to be a fraction of its current size.
Crime rates would decrease as well. It would be commonly
understood that mass incarceration is not necessary to protect public safety. If prisons
became an option of last,
not first, resort, we could
decrease the prison popula- We need more moral
tion by at least half. We have
outrage on the part of
had a 40-year failed experiment in mass incarceration, the public to reverse
and we now have evidence
decades of overly
that we can be more effective
using alternatives to criminal punitive policy making.
justice sanctions. What we are
missing is sufficient courage
and outrage to produce the level of change we need to see.
For criminal justice reform and civil rights advocates, that is
the work ahead.

Vanita Gupta is Deputy Legal Director of the ACLU, overseeing the
organization’s criminal justice work. She is also an adjunct clinical
professor at NYU Law School. Prior to the ACLU, she was assistant
counsel at the NAACP Legal Defense Fund.

THE SENTENCING PROJECT

The International Challenge
The Movement Against the War on Drugs
By Vivien Stern

After an unrelenting rise in the prison population in the United States there is at
last a slight downturn. The imprisonment rate per 100,000 of the U.S. population
in 2007 was 758. By 2010 it was 731.

he battle to show that the U.S. experiment in mass
incarceration is unjust, racist, costly, and self defeating is beginning to reap rewards. We have every reason to hope that the next 25 years will signal a move away
from mass incarceration and consequently a safer and more
just society.
It is no coincidence that the mass incarceration experiment has coincided with the expansion and intensification
of the U.S.-led war on drugs, legitimated by the U.N. Single
Convention on Narcotic Drugs signed 50 years ago and
heavily influenced by the U.S. government of the time. The
war on drugs and the rapid rise in the number of prisoners
in the U.S. and many other countries are very clearly linked.
Yet just as the growth of incarceration in the United States
seems to be slightly in retreat at last, so the regime of the
U.S.-backed U.N. drug conventions is being seriously challenged. An initiative with extremely eminent supporters recently hit the headlines. The Global Commission on
Drug Policy brought together a heavyweight list of public
figures. Former presidents of Colombia, Brazil, Mexico,
and Switzerland joined Kofi Annan, George Schultz, Javier
Solana, Paul Volcker, Mario Vargas Llosa and others in signing a report published in June, 2011, with an unequivocal message: the war on drugs is a failure. Huge expenditures on repressive measures have not reduced supply or
consumption. When one source of supply or supplying
organization is eliminated another rapidly takes its place.
Criminalizing those who use drugs hinders health efforts
to curb the spread of infections, and reduce deaths by
overdoses. Public money spent on reducing supply and on

incarceration lessens the money available for investment in
demand and harm reduction.
The report goes on to make some rather radical recommendations. It proposes an end to criminalizing, marginalizing,
and stigmatizing people who use drugs or are at the lower
levels of cultivation, production, and distribution. It suggests that governments should put more accurate information in the public domain about drug markets, drug use,
and dependence. It recommends more treatment services
for those in need, such as methadone and other substitutes,
and needle exchanges, as well as respect for the human
rights of drug users. Most radically, it proposes experimentation with models of legal regulation of drugs, particularly
but not only for cannabis.
Over the years these ideas have appeared in many
reports and have been expressed at many conferences. In
some countries they have been implemented in part. In
Switzerland, for instance, in 2008 two thirds of voters supported a proposal to implement throughout the country
projects to provide heroin to addicts on prescription under
medical supervision. In Portugal in 2001 the possession and
use of all illegal drugs was decriminalized. These ideas are
certainly not new. What is new is the standing of the eminent persons making these proposals and their willingness
to speak out and put their names to what is often said in private but less often in public by well-known political figures.
It is perhaps also a sign of the changing times that a 2011
issue of Time Magazine had a large feature on Mexico (“The
drug war is Mexico’s tragedy”), carrying an article by a for-

2 5 t h A N N I V E R S A RY E S S AY S

mer Mexican Foreign Minister calling for a more receptive approach by the Americans to the case for legalization.
It seems that South American politicians are beginning to
wonder whether their countries have to go on suffering so
much because of the demand for these illegal substances in
the great power to the north.
Ending the war on drugs would reduce violence and corruption worldwide. It would also decrease incarceration
and improve conditions behind bars. Filling prisons with
people who are drug dependent, and with utterly disposable small vendors (who are replaced on the streets before
the day is out) creates a broader drug market within the
walls and increases the spread of deadly diseases through
injection needles. The battle to stop the illegal drugs entering the facility requires the authorities to take measures that
greatly worsen the treatment of prisoners and respect for
their human rights.
The worldwide movement to end the war on drugs has many
powerful supporters. In the United Kingdom, for instance,
a former head of the domestic security service and a former
Director of Public Prosecutions are leading proponents of
drug policy reform. Many law enforcement officials speak out
once they have left office about the damage caused by the policies they were required to implement. No other single policy
change would have so much impact on the vast machine of
the criminal justice system, on the wastefulness, human misery, damage to health, and destruction of communities that
the current system produces. Criminal justice reformers
would do well to give their support to this vital movement.
If the next 25 years witnesses a serious improvement in the
penal system in the United States, United Kingdom, and elsewhere, it will be a credit to this movement’s success.

Vivien Stern is a Visiting Professor at Essex University and a member of the House of Lords, the upper house of the British Parliament.

Ending the war on
drugs would reduce
violence and corruption
worldwide.

THE SENTENCING PROJECT

The Light of Freedom
The Transformative Power of a Free Press
By Wilbert Rideau

I spent most of my life in the Louisiana State Penitentiary (“Angola”), once the
bloodiest prison in the nation. Nothing in my life had prepared me for the kind
of savagery I found there: from 1972 to 1975, 67 prisoners were stabbed to death
and more than 350 others suffered serious knife wounds. Homosexual rape and
enslavement were common.

nd I will tell you this: it is because prisons operate in secrecy that abuses thrive and violence
flourishes. If we are to transform the penal system in the next 25 years, allowing freedom of expression to
those who live and work in prison is the single reform that
will produce the most dramatic improvement for the overall good of both the inmates and the staff.
America’s penal institutions are cloaked by censorship, and
prisoners are routinely denied the freedom to speak critically about their keepers or the conditions of their confinement. Although no evidence has ever been presented to
demonstrate a security need for censorship, courts have
upheld this practice out of deference to prison authorities who are keeping over two million individuals locked in
silence behind closed prison gates.
For one 20-year period at Angola, we had transparency and
freedom of the press. At the nation’s largest maximum security
prison, censorship was lifted and freedom of expression—for
both inmates and staff—flourished. There was no public information officer: every employee was instructed to answer reporters’ questions truthfully. Prisoners had confidential mail communications with the media and governmental agencies, just
as they have with their attorneys, which enabled any inmate to
blow the whistle on abuses or wrongdoing without fear of reprisal by the prison administration. There were 5,000 inmates and
2,000 employees empowered to report problems. Bad behavior
began to decline and morale improved almost immediately.

Even more remarkable was the existence of a free press in
prison. It came into being in the wake of a federal court
order requiring penal authorities to end the rapes, the murders, and the gang warfare, and to operate Angola in a constitutional manner.
I had already been assigned to The Angolite as its editor when C.
Paul Phelps became warden of Angola and the state’s director
of corrections in 1976. A remarkable visionary and politically
astute man, he thought that trying to hide the horrific conditions in the overcrowded prison was both stupid and counterproductive. He felt that if the public knew the ugly realities of
life at Angola, they might be moved to improve things.
Phelps thought a free press could serve the same role inside
prison that it does in outside society: be a credible source of
information for all, help dispel misconceptions, and transfer the power that comes from possessing information from
a criminal grapevine to a more legitimate and accountable
avenue. I agreed, we shook hands, and I became the first
prison editor in American history to operate without censorship. The Angolite’s staff of self-taught journalists were
free to photograph, investigate, and publish any story they
could substantiate.
Freedom of the press depends on reliable information. My
staff and I were given unprecedented access to all data about
the prison and its prisoners, except what directly concerned
security operations or contained private, personal informa-

2 5 t h A N N I V E R S A RY E S S AY S

tion about prisoners or employees. Employees were required
to answer any question we asked about the prison or their job.
In the beginning, of course, we met resistance from employees and prison officials, who balked at the idea of answering questions put to them by inmates. But as we established
ourselves as responsible and fair to both sides—the keepers
and the kept—we got cooperation from inmates, prison personnel, governmental agencies, law enforcement officials,
anybody. In 1989, we extended our reach into radio and
broadcast journalism. We were blessed to have a succession
of wardens who believed in the value of what we were doing
and, when asked why they allowed us such freedoms, told
the media that they had “nothing to hide.”
Responsible journalism contributed to the overall safety of the
prison by dispelling rumors and by educating and humanizing those who lived and worked in prisons. Employees and
administrators gained a better understanding of the problems—both physical and psychological—that prisoners cope
with. Prisoners got to see the human being beneath the
employee’s uniform and got to know the difficulty that personnel faced because of budget cuts or short-staffing. Our
journalism fulfilled Phelps’s vision of reducing the us-againstthem tension that prevails in most prisons and his goal of giving the public a window into our hidden society.
Our greatest satisfaction came from being able to help solve
a lot of problems and make a difference in the quality of life
in our caged world. For example, our reports on mentally
ill and mentally retarded inmates got them treatment and
services; we impacted the quality of medical care at all penal
facilities in the state; by telling the truth about it, we helped
change the culture that made rape and enslavement acceptable “macho” behavior.
The absence of censorship during that 20-year period caused
no deaths, no escapes, and no disturbances. In fact, America’s

most violent maximum security prison became the safest;
and freedom of expression, along with improved security
and a crackdown on violence, played an important role.
The public has a right to know what is going on inside its
public institutions, But when it comes to prisoners, both
the media and the public get
distracted by official rhetoric that prisoners don’t have
Prison censorship is
“rights,” or that some mysterious security need would not only needless,
be jeopardized if inmates
it is also dangerous.
were allowed to express their
views, unfiltered, to the pub- Unchecked, arbitrary
lic. Muzzling prisoners is not
power exercised in
necessary for security. The
only purpose of suppress- secret over a generally
ing information going out despised class of people
of a prison, especially to the
media, is to shield officials is a recipe for abuse,
from accountability and pub- brutality, and worse.
lic scrutiny.
Prison censorship is not only needless, it is also dangerous.
Unchecked, arbitrary power exercised in secret over a generally despised class of people is a recipe for abuse, brutality,
and worse. History has shown time and again that the surest
remedy for the evil that thrives in darkness is the light of
freedom, and if we do that the next 25 years will witness a
true transformation of American justice.

Wilbert Rideau is the author of In the Place of Justice (Knopf),
which recounts his 44 years in Angola and his 25 year editorship of
The Angolite. He lectures at legal conferences and universities, and
is a consultant to capital defense teams.

THE SENTENCING PROJECT

he Sentencing Project was founded in 1986 to provide defense lawyers with sentencing advocacy
training and to reduce the reliance on incarceration. Since that time, The Sentencing Project has become a
leader in the effort to bring national attention to disturbing
trends and inequities in the criminal justice system with a
successful formula that includes the publication of groundbreaking research, aggressive media campaigns and strategic advocacy for policy reform.
As a result of The Sentencing Project’s research, publications and advocacy, many people know that this country is
the world’s leader in incarceration, that one in three young
black men is under control of the criminal justice system,
that five million Americans can’t vote because of felony convictions, and that thousands of women and children have
lost welfare, education and housing benefits as the result of
convictions for minor drug offenses.
The Sentencing Project is dedicated to changing the way
Americans think about crime and punishment.

25
CELEBRATING 25 YEARS OF WORKING FOR
A FA I R A N D E F F EC T I V E C R I M I NA L J U S T I C E S Y S T E M

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