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.