Decarceration in the United States

According to 2018-2020 statistics, over 2.2 million people in the U.S. are incarcerated in prison, jail and detention centers,[20] with 1.3 million inmates in state prison,[20] 631,000 held in local jails under county and municipal jurisdiction,[20] 226,000 in federal prisons and jails, 50,165[20] in immigrant detention centers[21] and 48,000 in juvenile facilities.[22] An additional 4.5 million people in the United States are under custodial supervision, either probation or parole.[23] According to a survey distributed by The Pew Charitable Trusts in December 2015, "the number of accused and convicted criminal offenders in the United States who are supervised with ankle monitors and other GPS-system electronic tracking devices rose nearly 140 percent over 10 years," resulting in more than 125,000 people under electronic supervision in 2015, an increase from 53,000 in 2005.[24]

The U.S. incarceration rate increased 700%[25] between the 1970s and 2000s, when it went from 200,000 incarcerated in 1973 to its peak of 2.4 million in 2009. Initially fueled in the 70's and 80's by increases in violent crimes and property offenses, incarceration rates continued to escalate even after the crime wave subsided in the mid 1990s, with the U.S. government spending $270 billion to incarcerate prisoners in 2018.[26]

Scholars say the reasons for the continued increase in incarceration rates include: "tough on crime" legislators articulating public fears triggered by several high-profile murders;[27] the government's War on Drugs in which communities of color saw increased arrests and prison sentences; and prison system stakeholders who benefitted economically from incarceration.[28] Tough on crime campaigns led to the abolition of parole in some states, restrictions on the power of parole boards and harsher mandatory minimum sentencing laws, such as California's 1994 Three Strikes law, a ballot proposition[29] (since amended) that imposed a 25 years to life sentence for multiple felony convictions.[30]

Decarceration proponents point to the U.S.'s high incarceration rates when pushing for reforms to reduce what they call a racially skewed prison population that sees African Americans incarcerated disproportionately at five times or more the rate of whites.[31]

In the most recent comprehensive Department of Justice statistical analysis, the Bureau of Justice Statistics in 2020 issued a report[32] "Prisoners in 2018" that said between 2017 and 2018, the total prison population declined by 24,000 inmates, but still resulted in the incarceration of 1,465,200 inmates under federal and state jurisdiction. The combined state and federal imprisonment rate, excluding local jails, was 431 sentenced (federal and state) prisoners per 100,000 U.S. residents, constituting the lowest federal and state incarceration rate since 1996 when there were 427 sentenced prisoners per 100,000 residents. The report said the imprisonment rate fell 15% across the decade, dropping 28% (the lowest since 1989) among African Americans, 21% among Latinos, and 13% among whites.

In 2017, more than half (56%)[33] of state prisoners sentenced to one year or longer were serving a sentence for a violent crime.

In 2018, Minnesota, Maine, Massachusetts, Rhode Island, and Vermont had the lowest imprisonment rates in the U.S., with fewer than 200 sentenced prisoners per 100,000 residents."[32] In contrast, a total of 22 states reported imprisonment rates that exceeded the national average.

(Sentenced prisoners per 100,000 residents)[34]

At the end of 2017, fewer than 15% of sentenced state prisoners were serving time for drug sale or use (4% for possession).

Among sentenced state prisoners at year-end 2017, the most recent year for which crime-related data was available, an estimated three-fifths of Blacks and Hispanics (61% each) and nearly half of whites (48%) were behind bars for a violent offense.

At the same time, 23% of sentenced white prisoners in state prison were incarcerated for a property offense, compared to 13% of sentenced black and Hispanic prisoners. By the end of 2018, an estimated 3% of federal and state prisoners were 65 or older.

Male prisoners constituted 93% of the prison population; female prisoners 7%. Non-US citizens made up 7.7% of the prison population, comparable to 6.9% of the general population.[33]

Rikers Island Jail, New York, 2012

In 2020, the non-profit Prison Policy Initiative issued a report, "Mass Incarceration: The Whole Pie 2020", that said, based on the most recent census data and information from the Bureau of Prisons, an overwhelming majority of inmates in county and municipal jails were being held pre-trial, without having been convicted of a crime. The Pre-Trial Justice Institute noted, "Six out of 10 people in U.S. jails—nearly a half million individuals on any given day—are awaiting trial. People who have not been found guilty of the charges against them account for 95% of all jail population growth from 2000 to 2014."[35][36]

In 2017, 482,100 inmates in federal and state prisons were held pre-trial.[37]

Decarceration advocates contend the large pre-trial detention population serves as a compelling reason for bail reform anchored in a presumption of innocence.[38] "We don't want people sitting in jails only because they cannot afford their financial bail," said Representative John Tilley (D) of Kentucky, a state that has eliminated commercial bail and relies on a risk assessment to determine a defendant's flight risk.[39]

In March 2020, the Department of Justice issued its report, noting the county and municipal jail population, totaling 738,400 inmates, had decreased by 12% over the last decade, from an estimated 258 jail inmates per 100,000 U.S. residents in 2008 to 226 per 100,000 in 2018. For the first time since 1990, the 2018 jail incarceration rate for African Americans fell below 600 per 100,000, while the juvenile jail population dropped 56%, from 7,700 to 3,400.[40]

In 2018, sixty-eight percent of jail inmates were behind bars on felony charges, about two-thirds of the total jail population was awaiting court action or held for other reasons.[41]

In 2019, the LA County Board of Supervisors voted to cancel a near $2 billion contract to build a new 3,800 bed jail opposed by Black Lives Matter and other members of the grassroots organization Reform LA Jails. Patrisse Cullors, chair of Reform LA Jails and a co-founder of Black Lives Matter, told the press, "Really what we have is people living their lives, a lot of them living on Skid Row, a cycle of poverty, a cycle of drug addiction and mental illness, and then we have jails ... We don't have an in-between infrastructure."[62] Opponents of the proposed jail asserted it would increase, rather than decrease the inmate population, and advocated for investments in services for communities of color.[63] LA County Sheriff Alex Villanueva told reporters he thought the move was irresponsible because the existing jail did not have enough room for high security inmates.[64]

Protest against police violence and murder of George Floyd. Minneapolis, Minnesota. May 26, 2020.

On June 7, 2020, in the wake of global George Floyd protests and Black Lives Matter's call to "Defund the Police", the Minneapolis City Council voted to "disband its police department" to shift funding to social programs in communities of color.[65] City Council President Lisa Bender said, "Our efforts at incremental reform have failed. Period."

Prior to the vote, Black Lives Matter circulated a petition to defund the police in response to massive nationwide protests over police violence and the murder of George Floyd, an unarmed Black man who was murdered by a white Minneapolis police officer who knelt on Floyd's neck for over nine minutes. Black Lives Matter, Critical Resistance and other grassroots organizations called on lawmakers to cut the budgets for law enforcement and invest instead in communities of color to "ensure Black people not only survive, but thrive."[66][67]

Despite rising unemployment and municipal coffers devastated by the COVID-19 pandemic, many local governments—cutting housing and health care—continued to support robust funding for police, with Los Angeles budgeting $1.8 billion, almost half of the general fund, for the Los Angeles Police Department, New York maintaining a $6 billion police budget while cutting youth programs, and Philadelphia increasing its police budget by $14 million while cutting arts, recreation and library programs.[68]

Fox News host Tucker Carlson denounced calls to defund the police, saying that while he agreed with public outrage over Floyd's murder, the United States would fall apart without law enforcement,[69] leaving "thugs" in charge to fill the power vacuum.

Depending on one's perspective, the "defund the police" demand can be interpreted as police abolition or reallocation of municipal budgets to shift some money from law enforcement to underfunded social services.[70]

Amid the COVID-19 pandemic, with thousands of immigrants locked up at 200 U.S. detention centers, Amnesty International called on Immigration and Customs Enforcement (ICE) to "grant humanitarian parole to immigration detainees except in the most extraordinary of circumstances requiring ongoing detention."[71] The global human rights organization accused ICE of concealing the number of detainees who had been exposed or contracted the virus, keeping the detainees, their lawyers, family members and general public in the dark about the spread of infections.

On March 26, 2020, ProPublica, a non-profit news agency, reported a confrontation occurred between guards and detainees at the SouthTexas Processing Facility, operated by federal contractor GEO Group, in which guards shot detainees with pepper spray after the detainees protested a lack of COVID-19 screening procedures for new arrivals. When contacted, "ICE referred reporters to a fact sheet, which provides information on how the detention center processes migrants" and said the staff daily reviews recommended guidelines from the Centers for Disease Control and Prevention on proper detention staff protocols.[72]

In a May 8, 2020, Washington Post opinion piece entitled "We were left to sicken and die from the coronavirus in immigration detention. Here's how I got out," Nicolas Morales, a 37-year old undocumented immigrant detained for five months in New Jersey's Elizabeth Detention Center, an ICE-contracted facility run by CoreCivic, a private for-profit corporation traded on the New York Stock Exchange, explains his five-month ordeal ended after a federal judge declared COVID-19 posed a serious health risk inside the detention center. "We shared toilets, showers, sinks, communal surfaces and breathing air. We did not have hand sanitizer or masks. We could not disinfect our shared surfaces. We could not maintain any meaningful distance among us, let alone six feet of distance. We were never permitted outside; there is no meaningful outdoor space," writes Morales who participated in a hunger strike to protest detention center conditions. As of May 8, 2020, ICE still had not halted transfers of immigrants from one detention center to another, according to a Politico article, "'Like Petri Dishes for the Virus': ICE Detention Centers Threaten the Rural South".[73]

On May 9, 2020, the Los Angeles Times reported that 70% or 792 of the 1,162 male inmates at Lompoc Federal Prison in California had tested positive for COVID-19, surpassing the 644 cases at the federal prison on Terminal Island, with Lompoc and Terminal Island prisons accounting for 47% of all federal inmates who tested positive. California has been the leading state in the number of cases, totaling 49,395, since June 25, 2021.

Partnering with epidemiologists, mathematicians and statisticians, the American Civil Liberties Union (ACLU) presented an epidemiological model suggesting that as many as 200,000 people could die from COVID-19—double the government estimate—if federal, state and local governments dismiss prison and jail inmates in the public health response. The ACLU predicted thousands of lives could be saved, as many as 23,000 people in jail and 76,000 in the larger community, if law enforcement stopped arrests for all but the most serious offenses and doubled the rate of release for those already arrested.[74]

In a Washington Post editorial, Rosa Brooks, a law professor, author and former police reserve officer in Washington, D.C., described the job-related health risks when making an arrest:[75]

I put my hands into strangers' pockets during searches; ran my fingers inside waistbands, bra bands and shoes; put handcuffs onto wrists and held those I was arresting by the arm as I escorted them to the patrol car. People coughed, sneezed, vomited and bled on me.

Brooks argued police agencies should immediately "suspend enforcement measures that require physical contact between law enforcement personnel and members of the public", unless not arresting or detaining someone poses an immediate danger of death or grave injury.

Several police departments adopted strategies to reduce arrests: Los Angeles,[76] Seattle, San Francisco, Chicago, Philadelphia, Fort Worth, Denver, Miami, Nashville, Tucson[77] and Rockford, with departments issuing citations and court summons, rather than making arrests for low-level or non-violent crimes ranging from "narcotics to theft to prostitution".[78]

Decarceration proponents advocate for "cite and release" police protocols to become the post-COVID-19 norm in order to reduce the pretrial jail population.[79]

The COVID Prison Project, composed of a group of public health scientists, is a database that provides real-time data on the state of the coronavirus pandemic within correctional facilities in the United States.[80] According to the database, as of April 26, 2022, there had been 582,946 cases of COVID-19 among incarcerated persons in the US and 198,921 COVID-19 cases among staff working in prisons.[81] From those cases, there had been 2,875 deaths of incarcerated individuals in prisons due to COVID-19 and 277 deaths of staff in prisons due to COVID-19.[81]

According to data from the Prison Policy Initiative published in February 2022, while states' prison populations are lower than they have been in past years, the number of people released from prison has decreased. Nationwide, prisons released 10% fewer people in 2020 than in 2019 despite the pandemic.[82] The PPI's data shows that the decrease in population size within prisons is not because of increased decarceration but instead can be attributed to reduced prison admissions as a mostly unintended consequence of delays within the court system.[82]

The PPI's data also shows that despite policy changes at the beginning of the pandemic that engendered a decrease in jail populations, as of December 2021, jail populations were increasing, and in some cases populations were higher than they were before March 2020.[82]

In May 2020, the Prison Policy Initiative reported dozens of counties had purposefully decreased their jail populations to stop the spread of COVID-19 among inmates, guards and their families who could be exposed to the virus. Examples of non-violent jail population reductions included: Hennepin County, Minnesota: 44%; Denver, Colorado: 41%; LA County, California: 30%; Maricopa County, Arizona: 30%; Mulltnomah County, Oregon: 30%; Anderson County, Tennessee, and Franklin County, Ohio: more than 30%; Philadelphia, Pennsylvania: 17%; Washington, D.C.: 21.8%. To reduce their jail populations in order for inmates, normally living in close quarters, some sharing cells and double-bunked, to practice social distancing, county law enforcement released inmates nearing the end of their sentences on misdemeanor charges; inmates held on low-level and non-violent offenses; people over 60; pregnant women; inmates with health conditions; people held for technical violations of probation and parole.[83]

Chesa Boudin, SF District Attorney, wearing a The Future is Female shirt at 2019 Women's March San Francisco

San Francisco District Attorney Chesa Boudin, son of imprisoned Weather Underground member David Gilbert, said he reduced his city's jail population by 40%[84] during the COVID-19 outbreak. Boudin told Forbes magazine (March 2020),[85] "We can move to quickly and safely reduce the jail population so that jails are only holding people who are presenting an active threat of violence to the community." During the COVID-19 pandemic, Boudin joined 30 other prosecutors, including Rachel Rollins, Suffolk County, Massachusetts; Larry Krasner, Philadelphia, Pennsylvania; and Joe Gonzales, Bexar County, Texas, in calling on local officials to "stop admitting people to jail absent a serious risk to the physical safety of the community."[86]

Attorney General William Barr announces the establishment of the Presidential Commission on Law Enforcement and the Administration of Justice.

Boudin campaigned for D.A. on a platform of eliminating cash bail, establishing a unit to re-evaluate wrongful convictions and refusing to assist Immigration and Customs Enforcement (ICE) with raids and arrests.[87] The San Francisco Police Officers Association and other law enforcement groups spent $650,000 in an unsuccessful effort to defeat Boudin.[88] Attorney General William Barr criticized Boudin and like-minded DA's, accusing them of undermining the police, letting criminals off the hook and endangering public safety.[89] In an interview during the COVID-19 pandemic, Boudin questioned whether the nation "can safely continue the national system of mass incarceration. Why do we need to take people to jail for non-violent offenses if what they really need is drug treatment or mental health services?"[87]

The Manhattan Institute, a pro-free market think tank espousing welfare and tort reform, opposes mass decarceration on the grounds that violent criminals must be incapacitated. Rafael Mangual, the institute's Deputy Director of Legal Policy,[90] argues most inmates are held in state prisons, where a majority of inmates are serving time for violent crimes (murder, assault, rape, robbery or burglary), dwarfing the number of inmates convicted of drug and property crimes. Dramatically reducing the prison population to match the incarceration rates of Western Europe, Mangual argues, would require freeing large numbers of violent and repeat offenders for crimes the American public agrees should lead to incarceration. Reducing or eliminating sentences for violent criminals would endanger society, exposing the American people to criminals who are only likely to commit more violent acts once released.[91]

The Department of Justice in its "2018 Update on Prisoner Recidivism: A 9-Year Follow-up Period (2005-2014)"[92] examined the cumulative percentage of prisoners convicted of violent crimes who, upon release in 2005, were re-arrested during the following nine years for an offense of an equally violent nature.

Findings were as follows:

Danielle Sered, author of Until We Reckon: Violence, Incarceration and the Road to Repair serves as the Executive Director of Common Justice, a New York organization that suggests alternatives to prison for those charged with felonies. In her book, Sered writes, "If incarceration worked to secure safety, we would be the safest nation in all of human history. We would not be a nation where, by the most conservative estimates available, every year nearly three thousand young men of color are murdered before their twenty-fifth birthday; more than 57,000 children survive sexual violence; nearly half a million women are beaten in their relationships; nearly three million men are robbed or assaulted ..." In a March 2019, interview on radio show Democracy Now, Sered urged the nation to pursue new solutions—restitution, community service, amends to the victim—to the problem of violent crime, adding that the core drivers of violence: shame, isolation, exposure to violence and economic struggle are only accentuated in prison, perpetuating a criminogenic cycle of violence that allows no one, not the perpetrator nor the victim, to heal.[93]

In "The Prison Paradox: More Incarceration Will Not Make Us Safer" Loyola University (Chicago) criminology professor Don Stemen argues that "in states with high incarceration rates and neighborhoods with concentrated incarceration, the increased use of incarceration may be associated with increased crime" resulting from a breakdown in family bonds, income deficit due to parental incarceration and greater resentment of law enforcement. According to Stemen, there is no evidence to show that higher incarceration rates lower violent crime rates.[94] Whether prison itself is criminogenic is a question debated among criminologists,[95] though Stemen argues prison may perpetuate criminal behavior because in prison inmates learn criminal habits and connect with criminal networks, only to eventually return to their communities without jobs or housing to face families torn asunder.

In 2016, psychologist, researcher and writer Dr. Stephanie Covington began working with male inmates at California's Corcoran State Prison to address childhood trauma and its impact on the inmates' criminal behavior. The program, titled "Building Resilience", employed cognitive behavioral therapy (CBT), a therapeutic approach to identify triggering events and develop coping skills, in facilitated peer-groups to help inmates understand their early childhood trauma and the wounding effects of their adult traumatization of others. Together with therapist Robert Rodriguez, Covington authored "Exploring Trauma: A Brief Intervention for Men" which became the basis for the "Building Resilience" curriculum that Covington says guides inmates through examining their guilt, shame and anger to construct healthy relationships inside the prison walls and outside once they are released.

In addition to working with male inmates, Dr. Covington developed a multi-week gender-responsive curriculum for California Institute for Women inmates (and other penal institutions) suffering psychological trauma from abusive relationships (2017)[103][104]

Although women only constitute 7% of prison and jail inmates in the United States, the incarcerated female population of 231,000 (2019) is growing in recent decades at twice the rate of male incarceration.[105] Even though 80% percent of women (113,000) in jails are mothers and primary caretakers, Yale law professor Judith Resik writes women are incarcerated further from their homes and families than male inmates, only to face the threat of sexual assault by male guards.[106] These anxiety-producing conditions, according to mental health service providers, can compound pre-existing trauma experienced by female inmates, who are more likely than their male counterparts to have been the victims of physical or sexual abuse.

Comparison of female vs. male prison inmates

(Published at National Resource Center on Justice Involved Women, based on statistics from 2005 to 2015)[107]

According to Covington, women in custody are five times more likely than men to wrestle with mental health challenges, one in three female inmates is a victim of sexual abuse, more than one in two a victim of domestic violence and half tried to commit suicide.[108] Covington believes in the ideal world only a handful of the most dangerous women inmates would be confined in prisons and jails; those who had been victimized would learn to live in the general population, grounding themselves in the present and learning to self-soothe.

The "Beyond Trauma" female gender-specific trauma therapy curriculum includes:

• Educating inmates about abuse; they may be unaware that they were victimized
• Normalizing reactions (It's okay to feel anger and resentment.) to abnormal abusive behavior
• Creating a safe environment to develop self-soothing skills to better cope with challenging behavior and avoid being re-triggered
• Affirming boundaries[109]

Formal evaluation of trauma-informed therapy in correctional institutions is limited, though in a 2016 UCLA-sponsored pooled study of three sample groups (one using Covington's CBT curriculum) of racially diverse incarcerated women with an average of 14 prior arrests and exposure to at least two traumatic events (assault by a family member or stranger, serious/life-threatening accident or illness), social scientists Christine Grella and Nena Messina concluded gender-responsive trauma-based cognitive behavioral therapy showed significant improvements for the participants on scales measuring self-efficacy, substance use and community re-entry, stressing the importance of a continuing care model involving treatment in prison and upon release."[110]

The Bureau of Prisons, at its women's prison in Danbury, Connecticut, offered a gender-responsive trauma treatment program.[50]

Two grams of crack cocaine

Passed by Congress in 2010, the federal Fair Sentencing Act reduced the 100-to-1 sentencing disparity for crack versus powder cocaine offenses, with crack more common among African Americans and powder cocaine more prevalent among whites. The Act eliminated the five-year mandatory minimum for possession of crack cocaine.[111]

The First Step Act, signed by President Trump in 2018, shortens mandatory minimum sentences for nonviolent drug offenses, easing a federal "three strikes" rule by imposing a 25-year sentence as opposed to life sentence for three or more drug convictions. The First Step Act makes the 2010 Fair Sentencing Act, signed by former President Obama, retroactive to help reduce racial disparities in the sentencing of crack and powder cocaine use, applying the Fair Sentencing Act to 3,000 people convicted of crack offenses prior to that law taking effect.[112] The First Step Act also expands compassionate release for inmates who are terminally ill.[112]

In 2011, the U.S. Supreme Court ruled in Brown v. Plata that California's overcrowded penitentiaries violated the Eighth Amendment's protections against cruel and unusual punishment. Built to house 85,000 inmates, the state prison population numbered 156,000, almost twice the appropriate amount in facilities where "lines for prison health clinics often snake 50 men deep" and "prison gymnasiums and classrooms are packed with three-tier prisoners' bunks."[113] Upholding an order issued by a three-judge panel in a prisoner class action lawsuit, the Court ordered California to reduce its prison population by 46,000 inmates. In its decision, the Court concluded that overcrowding was the main cause for the inmates' inferior medical and mental health care. To comply with the ruling, the California Department of Corrections and Rehabilitation (CDCR) sent inmates to private prisons in other states like Mississippi, transferred inmates back to local jails, diverted inmates to rehabilitation and treatment programs and halted incarceration of parolees for noncriminal technical parole violations.[114]

Since the prison expansion era, 23 states have enacted laws to either revise downward mandatory minimum sentences or repeal laws related to non-violent offenses, such as drug use and sale. In addition, states have increased opportunities to earn good-time credit for early release and established specialized courts to sentence defendants to rehabilitation and treatment, rather than prison, for crimes resulting from mental health, domestic violence or drug problems. While some states like New York and New Jersey decreased their prison population, other states such as Louisiana and Alabama increased their incarceration rates.[115]

Advocates of decarceration credit Maryland's 2016 Justice Reinvestment Act for dramatically reducing the state's incarceration rate. Under the legislation, nonviolent offenders are diverted from prison into drug treatment and other programs and mandatory minimums for drug offenses are eliminated.[116][117] Below is a more detailed account of reforms adopted by states and local governments, as well as non-profit criminal justice organizations:

In 2018, the American Civil Liberties Union launched the ACLU Smart Justice Campaign, a multi-year initiative to cut the U.S. prison population in half while addressing what it called racial disparities that in 2014 found the incarceration rate disproportionate for African Americans, with Black men incarcerated at nearly six times the rate of white men, and Black women incarcerated at twice the rate of white women.[118] The campaign unveiled 50-State Blueprints,[119] a "comprehensive, state-by-state analysis of how states can transform their criminal justice system and cut incarceration in half,"[120] noting that each state is different so a "one size fits all approach" will not be effective. Blueprint reforms include:

• Diversion for drug possession
• Reduction of average time served for various offenses
• Implementation of restorative justice programs to reduce juvenile confinement
• Publication of prosecution data to surface racial disparities[121]

The Sentencing Project, a non-profit criminal justice reform organization, highlights front end reforms "decreased prison admissions" and "reductions in criminal penalties" as key decarceration strategies adopted by Connecticut, Michigan and Rhode Island,[122] all states that in 2016 had reduced their prison populations and decriminalized marijuana.

Medical Marijuana Shop in Denver, Colorado

In response to public outcries over the criminalization, arrest and incarceration of marijuana-related offenses, 50 localities and dozens of states—including Alaska, California, Colorado, Delaware, Illinois, Maine, Massachusetts, Mississippi, Missouri and Nebraska—have either legalized or decriminalized marijuana possession—often resulting in no arrest, prison time, or criminal record for the first-time possession of a small amount of marijuana for personal use.[123] Despite the changes in state laws with a majority[124] legalizing medical marijuana, marijuana remains illegal under federal law, the Controlled Substances Act (CSA) (21 U.S.C. § 811), which classifies cannabis as a highly addictive Schedule I drug (joining heroin and cocaine on that list) of no medical value[125] that carries a possible misdemeanor or felony charge regardless of the amount of possession or sale.[126]

According to the FBI, arrests for marijuana nationwide were on the rise in 2018,[127] even though many states had legalized or decriminalized its use.[128][129] Recreational marijuana use and sale was still illegal in most states.

The American Civil Liberties Union—charging Blacks are almost four times as likely as whites to be arrested for marijuana use—calls not only for legalization of marijuana but also expungement of drug offenses from criminal records, with reinvestment of public dollars in the communities most damaged as a result of the War on Drugs,[130] a government initiative that dramatically increased the sentences for drug use and sale.

David Mineta, Deputy Director with the government's National Drug Control Policy, says the criminalization of drug use and sale serves more than a punitive purpose. "Penalties, or even the threat of them, frequently spur individuals struggling with addiction or substance use to get the treatment they might never seek or receive on their own." Mineta points out that referrals to substance use recovery programs are often the result of court referrals.[131] Law enforcement opponents of marijuana legalization argue recreational users too often drive under the influence, risking roadside safety, and that legalization creates a criminal black market for distributors exporting marijuana to states where it is still illegal.[132][133]

Proponents of eliminating cash bail for misdemeanors and non-violent offenses argue cash bail creates two tiers of justice, one for the rich who can either pay the bail themselves or pay a bonds person a percentage,10-15% in cash, the rest in collateral, to put up the bail; the other for poor people—often marginalized people of color—who struggle to pay rent and cannot afford to pay bail or a bonds person, leaving the less advantaged to live behind bars for days before being charged with a crime; for months, even years while they wait to be charged and tried in court.[134] According to the non-profit Prison Policy Initiative, in 2016, 70% of the 646,000 people locked up in more than 3,000 local jails throughout the U.S were being detained pretrial.[135] Advocates of no cash bail argue that money should not determine who can be released and who must remain behind bars, but whether the court deems the defendant's release poses a risk to the community's safety.

States the American Bar Association, "Deprivation of liberty pending trial is harsh and oppressive, subjects defendants to economic and psychological hardship, interferes with their ability to defend themselves, and, in many instances, deprives their families of support.[136]

An alternative to cash bail enables judges to release defendants on their own recognizance, sometimes conditioning the release on the defendant's participation in a diversion program, but requiring the defendant to sign an agreement promising to show up in court as required or face possible arrest or fine.

Former California Governor Jerry Brown signed major bail reform legislation.

On August 28, 2018, former California Governor Jerry Brown signed into law the California Money Bail Reform Act, which directs local courts to rely on risk assessment tools, not cash bail, to decide whether to release felony arrestees on their own recognizance. Additionally, the law says the courts, with few exceptions, must allow pre-trial release for those arrested or detained for misdemeanors.[137]

Opponents of the 2018 California Money Bail Reform Act have qualified a referendum for the November 2020 ballot to overturn the law that replaced bail for misdemeanors with a system based on public safety risk. Referendum supporters charge the bail reform law affords judges too much discretion in determining if bail is necessary and allows dangerous criminals to re-enter the community.[138]

For most misdemeanors and nonviolent felonies, judges in New York are required to release people with the "least restrictive conditions necessary to reasonably assure" the person will appear in court on a specified date. For misdemeanors and non-violent crimes, cash bail is prohibited, unless the crimes involve sex trafficking, sex offenses, witness tampering, child pornography, vehicular assault or a charge that is alleged to have resulted in the death of another person.

In other cases, it is a matter of judicial discretion to release or detain people, with or without pretrial conditions, such as electronic monitoring, participation in drug treatment programs or payment of bail.[139]

On December 2, 2020, Hennepin County Attorney, Mike Freeman, announced that beginning January 1, 2021, he will no longer request bail for 19 felony level crimes including: fifth degree possession or sale of Narcotics, dishonored check, and counterfeiting currency.[140]

Decarceration advocates charge that prison guards unions have fueled escalating incarceration rates by contributing to initiative campaigns to repeal bail and parole reform.[141] as well as to politicians who support tough on crime legislation, increased pay for guards and prison expansion. To address correctional officers union's concerns about job security, advocates of decarceration posit that "ensuring economic justice for those who lose their jobs, must go hand and hand with curtailing incarceration"[15] and call on the government to ensure mass employment and job guarantees for displaced workers.

In 2019, proponents of decarceration allied themselves with environmentalists to oppose the construction of a new prison on a mountaintop in Letcher County, Kentucky, jointly celebrating when the Trump administration deleted from its proposed 2020 budget $500 million to build the prison in Appalachia. In AJPH, a publication of the American Public Health Association, assistant professors Brett Story and Seth Prins write, "The devastation wrought by blowing up mountaintops to extract buried fossil fuels parallels the community ruin caused by forcibly removing residents from their neighborhoods to be warehoused in massive, faraway, high-security institutions." In their article "Connecting the Dots Between Mass Incarceration, Health Inequity, and Climate Change", the authors call for an alliance between opponents of mass incarceration and environmentalists to support a Green New Deal for decarceration that would redirect money for prisons and jails into housing and mental health. For rural cities and towns—where prisoners outnumber farmers and incarceration brings jobs to depressed coal mining areas,[142] Story and Prins argue the economic benefits of prisons are questionable, fostering a dependence on carceral institutions and increased incarceration rates to the detriment of developing a more diverse economy.[143]

In highlighting states (Connecticut, Michigan, Mississippi, South Carolina, and Rhode Island) that reduced their prison population 14-25% in 2016, The Sentencing Project emphasized the importance of "creation or expansion of specialty courts and/or other alternatives to incarceration."[122]

The State of Michigan in a 2018 annual report described its 188 problem solving courts as vehicles to provide substance use treatment, mental health and intense supervision as alternatives to sentencing offenders to state prison or local jails.[144] In lauding the success of the problem-solving drug courts, the report notes that of the 2,984 2018 participants in a drug or sobriety program 65 percent had successfully completed the treatment, while 29 percent were discharged because they did not follow the rules or committed a new offense. Maintaining a steady job was a critical factor in whether the participants were successful. Graduates of the drug courts were two times less likely to be convicted of a new crime during the following three years.

Michigan's drug courts have changed over time to include a variety of models:

• Drug courts that address drug-related non-drunk driving felonies (Ten Key Components of Drug Courts)[145]
• Sobriety courts that only take offenders driving under the influence (Ten Guiding Principles of Sobriety Courts)[146]
• Hybrid courts using both an adult drug court and sobriety court model
• Juvenile drug court
• Healing to Wellness courts, with a cultural awareness component, in Native American communities
• Family dependency courts target child abuse and neglect cases involving parental substance use

Decarceration advocates refer to "prison churn" or the revolving door in which at least one in four people who go to jail are arrested again within the same year—often those struggling with mental illness, substance use and poverty, problems that only worsen with prison time.[20] Technical violations of probation or parole—missing an appointment with a parole officer, staying out past curfew, unpaid fees or fines—are the primary reasons for recidivism.[147]

In response to the outsized role of technical violations, California implemented Senate Bill 678, which gives grants to county probation departments to implement restorative justice programs to reduce the number of people on probation who are sent back to prison.[148]

The Chronicle for Social Changes, a non-partisan criminal justice news publication, reports that in the first year of implementation, the state probation violation rate declined by 23 percent or 6,182 prisoners, saving the state $179 million.[149]

Creekside Adult School graduation ceremony at Mule Creek State Prison in northern California

In 2012, researchers with the Indiana Department of Corrections conducted a longitudinal five-year (2005-2009) follow-up study to analyze the role of an offender's education and post-release employment on recidivism among various categories of offenders (i.e., violent, non-violent, sex, and drug offenders).[150] The research involved 6,561 offenders, which constituted 43.2 percent of a total of 15,184 offenders released from the Indiana Department of Correction (IDOC). Research results revealed that recidivist offenders were more likely to be unemployed or under-educated—and that the employment status, age, and education level were the most significant predictors of recidivism, regardless of whether the offender had been convicted of a non-violent or violent offense. Of utmost importance was the offender's level of formal education because that was a critical factor in obtaining and sustaining employment to prevent a return to prison. The "post-release recidivism rate among offenders who had an education below high school was 56.4 percent among violent offenders, 56.8 percent among nonviolent offenders, 63.6 percent among sex offenders, and 51.7 percent among drug offenders."

In 2018, the Trump Administration's Department of Justice issued a skeptical review of the success of job-based re-entry programs, calling for randomized control trials to prove the effectiveness of programs touted as successful in reducing recidivism.[151] The reviewer, David B. Muhlhausen, head of the National Institute of Justice—the research, development, and evaluation arm of the U.S. Department of Justice—identified several potential case management alternatives to job based re-entry programs, commenting, however, that more rigorous research and evaluation was needed to evaluate the efficacy of the case management programs.[152]

Restorative Justice, adopted in schools and communities, rejects traditional retributive punishment—suspension, expulsion, humiliation—to focus on the rehabilitation of offenders through reconciliation with victims and the larger community that was harmed. In response to efforts to improve school safety through the use of metal detectors, video cameras, random backpack sweeps, uniformed police and referrals to other law enforcement[165] in what critics term the "school-to-prison pipeline",[166] large school districts in Los Angeles, Oakland and Denver, among others, have shifted from suspension and expulsions to restorative justice. Predicated on the belief that offenders can transform to become better people, the reconciliation process involves bringing the victim, offender and community members, professionals and volunteers, together to talk about what happened from multiple points of view and to create consensus on what the offender can do to make up for the harm caused and prevent similar future offenses and destructive patterns of behavior. Elements of restorative justice programs may also include: teen court, family conferencing, community-building circles, formal apologies, community service or personal service to the victim.

Minneapolis Protest of Officer Shooting of Jamar Clark, November 15, 2015

Restorative justice advocates say the process allows victims to exercise an active role in the resolution process, thus reducing feelings of anxiety and powerlessness.[167]

One of the 13 guiding principles of the Black Lives Matter movement is a commitment to restorative justice.[168] Activists with Black Lives Matter at Schools, a coalition of students, teachers, parents and community members, want to end school zero tolerance policies that expel students for a single disruptive incident, and instead promote restorative justice. Black Lives Matter at Schools organized a national week of action in February 2018, to teach lessons about "structural racism" and the school to prison pipeline that it described as "more invested in locking up youth than in unlocking their minds."[169]

In 2019, The West Ed Justice and Research Center published an evaluation of restorative justice after conducting a "comprehensive review" of research, interviewing experts and administering a survey to educators in the schools. The Center concluded published research "lacks the internal validity necessary to exclusively attribute outcomes" to restorative justice. The Center added, however, that preliminary evidence suggests the program may improve outcomes related to discipline, attendance, graduation, climate, and culture.[170]

A Department of Justice 2017 study, "Effectiveness of Restorative Justice", concluded restorative justice programs demonstrated a moderate reduction in future delinquent behavior when compared to more traditional punitive juvenile approaches.[171]

Advocates of transformative justice believe government responses to crime—prisons, jails, police, courts—often lead to more violence, traumatizing what they describe as marginalized communities of color already targeted by the police. One of the tenets of transformative justice is that society must accept collective responsibility for violent crime; individuals are not born knowing how to murder, rape or torture–these are learned behaviors, not the product of a few bad apples. Rather than rely on a system that reproduces more violence inside the prisons and jails, as well outside in the community, advocates of transformative justice say they hope to prevent crime by addressing the social conditions that undergird criminal behavior while building the capacity of individuals and communities to address inequality and injustice.[172]

Activists with Generation Five, an organization working to end inter-generational child sexual abuse, write in their 2007 report "Toward Transformative Justice" of the importance of survivor empowerment, public education, prevention and "cross movement building" in ending child abuse. The report stresses the significant role of the collective—a group of select community members engaged in ending child abuse by naming and defining child abuse, raising consciousness about what constitutes child abuse, developing a personal safety strategy for the child (food, shelter, freedom from physical abuse), as well as a political safety strategy (freedom from deportation, racist, sexist and homophobic attacks), an economic safety strategy (access to money) and public safety strategy (protection from the state and community violence),[172] holding the child abuser accountable (amends) and supporting healing for all those involved in a specific case.

Increased prison and jail populations, and the attendant costs to house inmates who, according to the Department of Justice (2010), too often return to prison within three years,[173] has spurred lawmakers to tap into federal dollars under the Justice Reinvestment Initiative[174] to rethink ever-expanding correctional budgets that consume dollars needed for other state priorities. Hence, the data-driven policy of justice reinvestment has gained traction, with states increasing funding for community programs—housing, substance use treatment, employment training, and family support for released offenders—that reduce recidivism and end crime.[175] State Legislatures magazine reports a dozen states that pursued justice reinvestment have reduced their prison and jail populations, with Alabama, Idaho, Mississippi, Nebraska and Utah implementing reforms in 2014 and 2015 that collectively avoided estimated costs of more than $1.7 billion over the next 20 years.[176] Darris Young, a former 17-year prison inmate and organizer with the Oakland-based Ella Baker Center—a group behind the "Books not Bars"[177] network to close California's youth prisons—worked on the Justice Reinvestment Initiative to fund counseling, housing, employment and life skills training for offenders re-entering their community. "Why not invest in the resources that will help give people dignity and pride? If you have a stake in your community, you're less likely to be trying to tear down your community," said Young.

Abolish ICE Protest, Minneapolis, Minnesota, June 30, 2018

While some decarceration proponents call for reducing the number of detainees in federal detention centers[178] that detain 50,165 immigrants on an average day,[179] other decarceration advocates want the detention centers closed and ICE abolished, charging that immigrant detention, an historic anomaly, strips migrants of their dignity.[180]

Sign hoisted by #Never Again during protest outside GEO Group's Century City office building in Los Angeles. August 5, 2019.

Demands to abolish the agency gained traction in the summer of 2018, at the height of public outrage over the Trump administration's "zero tolerance" immigration policy that led to thousands of children separated, some permanently, from their mothers and fathers at the U.S-Mexico border. Calls to abolish ICE, the agency that works with the U.S. Border Patrol to implement the Trump Administration's deportation orders, grew louder as New York Representative Alexandria Ocasio-Cortez rode to victory over an entrenched Democratic Party incumbent on the issue of immigrant rights. Declared Ocasio-Cortez, "It's time to abolish ICE, clear the path to citizenship, and protect the rights of families to remain together."[181][182][183]

While most prisons are government-run facilities, ICE relies on private profit-making corporations to operate detention centers. ICE spent over $6 billion in 2019 to contract with publicly traded GEO Group, Core Civic and Management and Training Corporation to operate detention centers, some of them in California where a new California law—that went into effect after the contracts were signed—bars the operation of private prisons.[184]

Politico reported in 2018 that, according to polls, a majority of voters—aside from the activist base of the Democratic Party—did not support calls to abolish ICE.[185] Republicans in Congress passed a resolution in support of ICE, saying "calls to abolish ICE are an insult to these heroic law enforcement officers who make sacrifices every day to secure our borders."[186]

Protesters block doorway to GEO Group offices in Century City. August 5, 2019.

On August 5, 2019, the Jewish organization Never Again Action protested outside ICE contractor GEO Group's Century City headquarters, shutting down the building for five hours, resulting in several arrests. During the protest, a banner hung from a nearby parking garage read, "GEO Group runs concentration camps for ICE. #Never Again."

Activists—conducting similar protests in several U.S. cities—charged the largest private for-profit detention contractor with detaining immigrants under inhumane conditions.

GEO Group, under the "social responsibility" tab on its website, says the company "has always been committed to respecting the human rights of the persons entrusted to its care." In addition, GEO Group's website states the company acts "in compliance with all relevant governmental standards, national accreditation and certification standards."[187]

Due to the controversies surrounding mass incarceration of immigrants in private for-profit detention centers, several banks, including Bank of America, Wells Fargo and JPMorgan Chase, announced they would no longer offer $2.4 billion lines of credit and term loans to GEO Group and CoreCivic.[188] In November 2018, CalSTRS, the $220 billion California teachers pension fund, voted to divest from GEO Group and CoreCivic because of teacher member concerns about human rights violations in the contractors' detention centers. In November 2019, CalPERS, the $370 billion public employee pension fund, quietly divested from GEO Group and CoreCivic, as well.[189]