Bipartisan Criminal-Justice Reform Is Still Very Much Alive
7 min read
Not that long ago, in the summer of 2020, the moment seemed ripe for meaningful criminal-justice reform in America. Millions of people joined demonstrations denouncing the police killings of Breonna Taylor and George Floyd, among others, and to call for racial justice. There was a feeling that real progress was about to be made in tackling the problem of mass incarceration in the United States that began in the 1970s and that disproportionately affects communities of color.
Over the four years since, a new narrative has taken hold—that criminal-justice reform is dead, certainly in its bipartisan form. “What’s now clear is that the support for criminal-justice reform was a mile wide and an inch deep,” David A. Graham wrote in The Atlantic. Kinsey Crowley concluded in USA Today that “political leaders across the country are returning to a tough-on-crime approach.” Josh Hammer remarked in Newsweek that “criminal justice reform … may have finally met its death sentence.”
But this is wrong. Much of the bipartisan agreement on criminal-justice reform is alive; its advocates continued to slowly score wins even as crime rose, and are now still pushing for reforms as it declines again.
Their victories are not always flashy, and their policy goals have become less audacious. The reform movement has entered a new era of quiet pragmatism, which focuses on practical solutions and consensus-building rather than ideological purity. Although most of the reforms are modest when compared with the gravity of the problem—1.9 million people are incarcerated in America today, and millions of formerly incarcerated people are being denied the full privileges of citizenship—they are nonetheless crucial to constructing a fairer system that treats people with dignity and where incarceration is a last resort.
I have spent the past eight years closely monitoring the passage of criminal-justice-reform policies in the states and federally, first as the head of the national ACLU’s Justice Division and then at Princeton University. I worked on the passage of dozens of criminal-justice reform laws from 2010 to 2020, a period that saw hundreds of such laws pass on a bipartisan basis, and during which nationwide incarceration rates dropped by more than 25 percent.
Although that decade of accelerated reform has passed, incremental progress continues. In my research, I have documented at least 60 policies that have been enacted in the past two years alone that will improve the lives of formerly incarcerated people, clear the records of hundreds of thousands of people, and lead to fewer people being incarcerated, including for the sole reason of being poor.
So far this year, deep-red Oklahoma passed a second-look law (legislation focused on allowing judges to review long sentences) permitting resentencing if domestic violence was a mitigating factor in a crime; Mississippi extended its parole-eligibility law; Nebraska passed an alternative-to-incarceration program for military veterans; Kansas unanimously passed civil-asset-forfeiture reform; New Hampshire passed a law prohibiting racial profiling by the police; Colorado and Tennessee passed occupational-licensing reform, allowing more formerly incarcerated people to obtain better-paying jobs; Arizona unanimously passed probation reform; Virginia Governor Glenn Youngkin issued an executive order to support successful reentry into society for formerly incarcerated people; New Jersey changed its “use of force” policy in an effort to resolve mental-health crises without violence; and more.
Last year, Arizona, Connecticut, Illinois, Minnesota, Nebraska, Pennsylvania, Texas, and West Virginia all passed some sort of criminal-justice reform, including eliminating juvenile fines and fees, expanding probation and pretrial diversion, and limiting no-knock warrants by police.
We’ve even seen some progress in a divided Congress. In May, the House passed by a vote of 392 to 2 the Federal Prison Oversight Act, legislation aimed at bringing additional accountability to the federal prison system, which has been plagued by misconduct. On July 10, the United States Senate passed the bill by unanimous consent, and President Joe Biden signed it into law on July 25, one of only 78 laws passed by the 118th Congress. The bill had been championed by Democratic and Republican lawmakers from Georgia, Illinois, West Virginia, and Indiana.
Even the EQUAL Act, which would end the sentencing disparities between crack and powder cocaine, one of the big drivers of racial disparities in the federal prison system, has 10 Democratic and 10 Republican co-sponsors in the House, and five Democratic and five Republican co-sponsors in the Senate. One of the bill’s greatest champions is Representative Kelly Armstrong, a Republican from North Dakota who will likely be the state’s next governor. He is working with the bill’s other main champion in the House, Minority Leader Hakeem Jeffries, a Democrat from New York. Many advocates expected the legislation to pass in the preceding Congress, and its failure to do so is a sign of shifting politics on the issue, but the legislation still garners strong bipartisan support.
Many of these developments are modest and don’t receive major news coverage, but they collectively show that a lot of reform is still popular in both parties, and is in fact happening—regularly—across America.
To be clear, the past couple of years have also seen heartbreaking setbacks, with numerous tough-on-crime bills passing at the state level. Louisiana repealed many of the historic sentencing reforms it passed in 2017. I worked on those reforms and was devastated to see them collapse. Oregon ended its three-year experimentation with drug decriminalization, and Maryland reversed some of its juvenile-justice reforms. San Francisco passed ballot initiatives to expand policing powers and screen public-assistance recipients for drug use. Last year marked the deadliest year for police-involved killings in the United States in more than a decade, and nationwide incarceration rates rose in 2022 for a second consecutive year. The backlash is real, and some of the political rhetoric is dangerous.
But a new approach is taking hold—one that works to insert more fairness and evidence-driven reforms into a system that has long prioritized punitiveness with little regard for effectiveness. Changes to the criminal-justice system that tend to receive the most bipartisan support are back-end reforms. Back-end reforms focus on the post-conviction period and aim to improve outcomes for people already in the system, including by supporting their reintegration into society. These reforms seek to shorten long sentences through parole, good-behavior credits, or second-look laws; improve conditions and support systems for incarcerated people while in prison; and begin to chip away at the 40,000 legal restrictions faced by formerly incarcerated people.
Voters and advocacy organizations on the left and the right widely agree that it is unjust and certainly counterproductive to treat people miserably while they are in prison or once they are out, because such practices not only violate principles of human dignity but also increase recidivism rates.
Front-end reforms, by contrast, focus on diverting people away from the criminal-justice system in the first place. This approach gained ground in the summer of 2020, when advocates pushed to decriminalize drug use and remove certain responsibilities from the police. Jurisdictions across the nation are now experimenting with alternative first-responder models for mental-health crises, for instance, and many progressives continue to believe that avoiding or even replacing the criminal-justice system whenever possible with alternative mechanisms while investing more resources into addressing the root causes of crime is the most effective way to build more safety in America. But many tough-on-crime opponents disagree, believing that harsher penalties like long mandatory minimum sentences and mandatory arrests without the option of diversion are the best approach to creating more public safety.
The quiet pragmatism that many advocates and policy makers on both sides of the aisle are still pushing is a reflection of a different and more complex understanding of law-and-order issues that has developed among Americans in recent years. As Peter Enns concluded in Incarceration Nation, his study of 60 years of public-opinion data on criminal-justice policy, the public has been moving in a less punitive direction (after first increasing in punitiveness from the 1960s to the 1990s), and in response, policies have begun to change. Over the past year, I’ve reviewed 41 polls and 15 focus groups to better understand American attitudes on criminal-justice reform, and data continue to support the conclusion that Americans are moving toward agreement on many reforms. Remarking on the status of bipartisanship on criminal-justice reform, David Safavian and Courtland Culver, both of the Conservative Political Action Coalition, wrote, “There is plenty that Republicans and Democrats agree on, and this is a chance to improve our criminal justice system.”
Today, the public expects progress to continue. When I tell my students that, following the decade of reform, the United States no longer has the highest incarceration rate in the world (we are now fifth, with El Salvador at the top spot) and that racial disparities in the criminal-justice system are beginning to narrow, they are pleasantly surprised and encouraged by the progress.
That said, there is still a long way to go. The United States continues to be an anomaly among wealthy democratic nations, with six times the incarceration rate of Canada and 7.5 times the rate of Germany. We haven’t seen anywhere near the reforms we need. But the momentum continues, even if more slowly for now.
