Wednesday, March 16, 2016

What can the feds do to reduce mass incarceration in the states?

Grits agrees with John Pfaff that discussions of mass incarceration in presidential campaigns, mostly on the Democratic side, have been facile and off point, since most incarceration occurs at the state level outside the President's purview. But I've noticed a couple of recent suggestions for how the feds could meaningfully engage the topic and thought I'd record them here for future reference.

For starters, Zoe Carpenter at The Nation offered up this analysis:
funding for public defense is one area where the federal government could make a big impact. For instance, Pfaff suggests, if the feds put $4 billion into public defense grants, it would triple budgets nationwide, yet still account for less than half of 1 percent of the nation’s total discretionary spending. 
That would make a huge difference. After all, the right to counsel derives from the federal Constitution and US Supreme Court rulings, so it makes sense that the feds would contribute to what, in effect, is an unfunded mandate. The trick would be to structure the funding as a matching program so that state and local governments would not reduce their own funding when the federal money came in, but that's not an insurmountable barrier. That's a really good idea.

Meanwhile, last fall the Brennan Center proposed a "Reverse Mass Incarceration Act" which would pay states to reduce incarceration and crime. Here's how they described the notion:
Just as Washington encouraged states to incarcerate, it can now encourage them to reduce incarceration while keeping down crime. It can encourage state reform efforts to roll back prison populations. As the country debates who will be the next president, any serious candidate must have a strong plan to reform the justice system.

The next president should urge Congress to pass the Reverse Mass Incarceration Act. It would encourage a 20 percent reduction in imprisonment nationwide.
Such an Act would have four components:
  • A new federal grant program of $20 billion over 10 years in incentive funds to states.
  • A requirement that states that reduce their prison population by 7 percent over a three-year period without an increase in crime will receive funds.
  • A clear methodology based on population size and other factors to determine how much money states receive.
  • A requirement that states invest these funds in evidence-based programs proven to reduce crime and incarceration.
Such an Act would have more reach than any of the other federal proposals. It could be implemented through budgeting procedures. It could be implemented as a stand-alone Act. Or, it could be introduced as an amendment to a pending bill.
One of the report's authors, Inimai Chettiar, will be speaking in Austin at the LBJ School next week.

The Brennan Center's suggestion is similar to what Texas did on the juvenile side to reduce the youth prison population by 80 percent - the state paid counties to divert offending youth into community based programs instead of state facilities, and it worked to a greater extent than anyone would have thought possible a decade ago. 

Both these proposals have merit. Of the two, federal funding for indigent defense is the more expensive idea, but also IMO the one which more directly confronts the root problems in the criminal justice system. Federal incentives contributed to mass incarceration, but they weren't the primary cause. The lack of adequate indigent defense, though, arguably greases the skids for prosecutors to maximize government control over the judicial process and evening the playing field be giving the defense side more resources could well be a game changer.


texasyankee said...

Since I've not researched Federal funding of local law enforcement agencies, this may be off base, but being out in left field doesn't stop others on the internet. Instead of starting another Federal program and spend money for public defenders. why not reduce grants to state and local governments. Eliminate joint Federal state local task forces such as those that entrap men into sex crimes or in drug busts. Fewer people arrested means less demand for public defenders. Fewer arrests also reduce the need for prosecutors, judges, jailers, etc. Also, eliminate funds for urban assault vehicles that are just toys for local police. I've seen the tank that sits behind the Ft Bend County Jail waiting for a riot to break out. That has to cost thousands of dollars a year to maintain but I'm sure the millionaires who live on the Shadow Hawk Golf Course sleep better knowing the county can stop rioters from tearing up the greens.

My very serious point is that reducing Federal funding to local police will force them to prioritize which laws to enforce and that should reduce arrests and therefore reduce other costs of the criminal justice system.

Anonymous said...

Where can I find a summary of the federal financial programs which encourage convictions and imprisonment?

Anonymous said...

So if I live in Ohio and Louisiana wishes to imprison people for 2 years due to spitting on the sidewalk, I should pay for their legal defense? You say "the feds" created the "unfunded mandate." Peal back the onion and the feds turn out to be me and you and our tax dollars. Funding state's folly is not a solution.

Keep in mind that each of is both a state citizen and a US citizen (mostly anyway). As such, the key question is how do we divide the government instruments which ensure our liberty? It seems reasonable that Federal law provide for protections related to the Constitution. As such, imposing rules on law enforcement and state courts that ensure transparency and diminished corruption would seem the logical approach to federal participation in reducing mass incarceration.

Gritsforbreakfast said...

@Texasyankee, I've been singing that song for years, particularly on Byrne/JAG grants and the fund to give local cops military equipment.

@7:25, there are a ton of them, many of them originating in the 1994 federal crime bill. I don't immediately have to hand a comprehensive list.

@7:56, you're talking out of both sides of your mouth. You want federal law to provide "protections related to the Constitution" and this is one of them. That's an "unfunded mandate," though, if the feds mandate protection but make the states pay for it. The only reason most states provide indigent defense at all is because of SCOTUS decisions that made them do it. In Texas, the state passes that unfunded mandate along to counties, which portray it as such all the time.

As for the rest of your argument, Ohio pays for border patrol in Texas, so what? Texans pay for ethanol subsidies in Iowa without a remotely comparable connection to the constitution. There are a million such examples. Why would that objection only apply to protecting constitutional rights but not pork barrel politics?

Anonymous said...

Since petty marijuana possession is legal in Colorado and still illegal under federal law, it would be interesting to see how much Colorado has saved by not arresting and prosecuting those crimes. There was talk at one time of the win-fall Colorado received off the marijuana taxes. Since Texas is anti-tax (oh, but we sure do love our fees and surcharges), perhaps the argument that funding for indigent defense could come from taxes on legalized personal-use marijuana sales could grease the rusty wheels of thought in Austin.

Peter.Marana said...
This comment has been removed by the author.
Peter.Marana said...

Incarceration as it exits is hugely wasteful. It costs the Texas taxpayer $25,000 per year for one offender. Little is spent on training or air conditioning for that matter. And the incarcerated population in Texas is 35% higher that the national average and that's roughly 50,000 inmates ($1.25 billion).

But you also need to add in the lost income and safes tax revenue, turning out an unemployable offender (criminal record and no skills) and the economic and social costs related to their families.

The current system does not acknowledge the lifetime costs for the offender and society. I sit in on some of the criminal justice hearings at the capital and occasionally it's encouraging but mostly it is watching this huge bureaucracy (local police, prosecutors, judiciary, corrections and probation/parole) just roll along. Maybe when most everyone has a family member or friend in prison candidates claiming they are "smart on crime" will get elected.

Anonymous said...

Have common law courts where the people of the community participate and know whats going on. A tribal council atmosphere.

ladywpaint said...

Gary Young, DA of 6th District court in Lamar county pushes for maximum sentence for all. If you can't afford an attorney and you have to go with court appointed might as well plead guilty. Sure don't want to go to jury trial with court appointed.

ladywpaint said...

Gary Young, DA of 6th District court in Lamar county pushes for maximum sentence for all. If you can't afford an attorney and you have to go with court appointed might as well plead guilty. Sure don't want to go to jury trial with court appointed.