1. What can be improved upon or changed that would make the policy better. 2. What problem do believe will emerge with the current policy. 3. What issues do you see concerning right to privacy?
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POLICY BRIEF 2014-03
A New Approach to Reducing Incarceration
While Maintaining Low Rates of Crime
POLICY BRIEF 2011-02 | MAY 2011
MAY 2014
W W W. H A M I LT O N P R O J E C T. O R G
ADVISORY COUNCIL
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A New Approach to
Reducing Incarceration
While Maintaining Low
Rates of Crime
The U.S. incarceration rate today exceeds both
its own historical norms and the rates of all other developed
countries. The current U.S. incarceration rate is roughly
three times its rate in 1980, and six times the rate of a typical
developed country. This high incarceration rate has generated
momentum for reform of incarceration policy at the federal
and state levels.
Incarceration reform naturally raises concerns about its
potential impact on crime; there are trade-offs that must be
seriously considered. There is little disagreement about the
social benefits of imprisoning the most dangerous, violent
offenders. However, a national debate persists around whether
incarcerating low-risk, nonviolent criminals—such as many
of those convicted of petty theft or low-level drug activity—
provides better returns than alternative forms of punishment,
such as enhanced parole. On the other hand, fewer offenders
behind bars could translate into higher crime rates, especially
if fiscal savings from reduced incarceration are not funneled
into other crime-reduction programs.
Incarceration imposes heavy fiscal costs on government
budgets, and on state and local budgets in particular.
The United States spent over $80 billion on corrections
expenditures in 2010, with the bulk of the cost borne by state
and local governments. These costs translate into higher
tax burdens for American workers and diminished funding
for other fiscal priorities. Savings on these expenses could
potentially be used for other, potentially more-effective crimefighting strategies, such as increased police funding.
High rates of incarceration can also have devastating effects
on families and communities. Incarceration hampers
employment and marriage prospects among former prisoners,
increases poverty depth and behavioral problems among their
children, and amplifies the spread of communicable diseases
among disproportionately impacted communities. These
effects are especially prevalent among those demographic
groups that are more likely to face incarceration, namely
young minority males. For nonviolent criminals and those
who are unlikely to offend again, there are serious questions
as to whether the benefits of incarceration outweigh its
associated costs.
In a new Hamilton Project discussion paper, Steven Raphael
of the University of California, Berkeley and Michael A. Stoll
of the University of California, Los Angeles suggest that there
is substantial room to reduce U.S. incarceration rates without
significantly impacting crime rates. Drawing on evidence from
recent policy experiences, the authors offer proposals to reform
sentencing practices and alter fiscal incentives. Specifically,
their proposal has three parts: (1) reforms to state truth-insentencing laws that lengthen sentences, (2) revisions to federal
and state mandatory minimums that can result in unduly
harsh prison stays, and (3) the creation of fiscal structures that
require localities to share the cost of incarceration with state
governments.
Raphael and Stoll assert that effective, evidence-based
sentencing reform can spur broad-based economic growth by
improving opportunities for social mobility, enhancing family
stability for the children of the incarcerated, and limiting skill
depreciation among inmates.
The Challenge
The incarceration rate in the United States is now at an
unprecedented level, far above the rates typical of other
developed countries. Though lengthy sentences and largescale imprisonment reduce crime by removing offenders from
society and by deterring individuals from criminal behavior,
recent increases in the prison population have resulted
in considerably less crime reduction than in years past. If
American incarceration is now so vast that the marginal cost
of incarceration exceeds its marginal benefit, the challenge
becomes finding effective alternatives to incarceration
that, combined with more-efficient uses of public funds,
can maintain or lower crime rates, and lower the social and
economic costs of incarceration.
Incarceration rates in the United States were not always as high
as they are today. For much of the twentieth century, the U.S.
prison population per capita closely mirrored the rates currently
seen in Europe. For example, pre-1980 U.S. incarceration rates
were close to those seen in European Union countries in recent
years—roughly 60 to 160 inmates per 100,000 residents. In
the 1980s, however, more-stringent sentencing guidelines led
to increased prison admission rates and longer average prison
sentences. For instance, between 1984 and 2009 the number of
annual admissions to state prison for drug crimes increased
from 9 to 47 per 100,000 residents. Furthermore, the expected
time served in state prisons for convicted persons increased by
roughly five years for murder, three years for sexual assault,
The Hamilton Project • Brookings
3
eighteen months for robbery, and six months for burglary.
These policy shifts, in turn, resulted in a swelling of the U.S.
incarceration rate.
Raphael and Stoll suggest that the crime-reduction gains from
higher incarceration rates depend critically on the incarceration
rate itself. When the incarceration rate is low, marginal gains
from increasing the incarceration rate are higher because
when prisons are used more sparingly, they are reserved for
the highest-risk, most-serious offenders. By contrast, when
the incarceration rate is high, the marginal crime-reduction
gains from further increases in incarceration tend to be lower
since the offender on the margin between incarceration and an
alternative sanction tends to be less of a threat. In other words,
the crime-fighting benefits of incarceration diminish as the
scale of the prison population increases.
We can clearly see these diminishing marginal returns from
incarceration when comparing the experiences of Italy and
California. In 2006, with Italian prisons filled to 130 percent of
capacity, Italy’s Parliament passed the Collective Clemency Bill,
which reduced the sentences of most prison inmates by three
years. The effect of the collective pardon was clearly visible in
the sharp decline in incarceration rates; the effect on crime was
also clearly visible, with a corresponding sharp increase.
Italy’s experience contrasts sharply with reforms in California
in 2011; the state’s reforms halted the practice of revoking the
paroles of individuals and sending them back to prison for
technical violations, and diverted many less-serious offenders
to county jails or to some form of community corrections.
Although not as sudden as the reduction in Italy’s prison
population from the Collective Clemency Bill, the reduction
in California’s prison population from its reform was larger
in magnitude. In California, the reforms resulted in 20,000
individuals who would have otherwise been in prison being on
the streets.
Raphael and Stoll find little evidence of an increase in violent
crime associated with the reduction in the state’s prison
population. They argue that there was little increase because
California is stricter than Italy in terms of who is sent to prison
and for how long. The prepardon incarceration rate in Italy
stood at roughly 103 per 100,000 residents; in California, the
prereform incarceration rate was between 425 and 430 per
100,000, more than four times that of Italy. Consequently, the
average prereform inmate in California was less criminally
prone than the average inmate in Italy, where prison is used
more sparingly.
In summary, Raphael and Stoll find that incarceration
significantly lowers crime rates when incarceration rates are
low, but these effects diminish rapidly with scale. They therefore
conclude that a new approach to incarceration is called for in
the current context of mass incarceration in the United States.
4
A New Approach
Raphael and Stoll lay out a three-part proposal to reform state
truth-in-sentencing laws, revamp federal and state mandatory
minimum sentencing policies, and incentivize local authorities
to reserve prison only for those who pose the greatest risk. They
argue that these policies would reduce incarceration while
keeping U.S. crime rates near their historic lows.
Reform Truth-in-Sentencing Laws
State truth-in-sentencing laws extend prison time served by
requiring that offenders convicted of certain types of crimes
serve a minimum proportion of their sentence. Starting in
1984, states began adopting truth-in-sentencing laws requiring
that inmates serve a specified proportion of their sentences. In
the mid-1990s, state take-up of these laws accelerated with a
federal provision tying grants for state correctional facilities
to a minimum 85 percent time-served threshold for serious
violent crimes. By 2008, twenty-eight states had truth-insentencing laws. However, truth-in-sentencing laws also
reduce the discretion of parole boards, keeping some inmates
who seem unlikely to recidivate behind bars. Evidence suggests
that parole boards can effectively discriminate between highand low-risk inmates; these laws prevent them from exercising
their judgment and releasing prisoners who pose a relatively
low recidivism risk and show signs of having reformed their
behavior.
Raphael and Stoll propose that states strengthen the discretion
of parole boards by weakening the impact of these laws or
abandoning truth-in-sentencing practices entirely. States
could relax the constraints these laws impose by lowering the
fraction of a sentence that an inmate is required to serve from
85 percent down to a lower portion, reducing the scope of the
crimes that are subject to these constraints, or applying the
regulations only to repeat offenders. Any of these approaches
would increase the discretion of parole boards. An additional
benefit of this added discretion is that it incentivizes inmates
to reform their behavior: if a parole board has discretion
to release an inmate early, that inmate has an incentive to
behave well in prison and engage in behavioral reforms that
demonstrate readiness for release.
Revise Mandatory Minimum Sentencing
Practices
Raphael and Stoll also propose that states and the federal
government reevaluate the legislatively mandated minimum
sentences that tend to limit discretion over whether an offender
should be sentenced to prison and over the amount of time
that an offender sentenced to prison must serve. Between 1975
and 2002, every state and the District of Columbia adopted
some form of mandatory minimum sentencing targeted
at a specific offense. Likewise, federal law is riddled with
mandatory minimum sentences, with the most prominent of
A New Approach to Reducing Incarceration While Maintaining Low Rates of Crime
these likely being the mandatory minimums for the possession
or distribution of crack cocaine.
Raphael and Stoll argue that repeat offender laws that impose
minimum sentences based on an individual’s prior criminal
record also require more scrutiny. By tying the hands of judges,
these laws result in sentences that are often disproportionately
and unjustifiably harsh given the offense committed. In
California, for example, “three strikes” legislation can result
in sentences of twenty-five years to life for an offense of petty
theft. These laws deserve, at a minimum, careful scrutiny
across a number of dimensions; in certain cases, they should
be eased and even outright repealed.
Raphael and Stoll propose that states and the federal
government take inventory of their mandatory minimum
sentencing laws and ask the following questions on a statuteby-statute basis:
1. Does existing state or federal law (not inclusive of the
mandatory minimum in question) already allow for
the incarceration of offenders convicted of the targeted
offense?
2.
Does the mandatory minimum introduce horizontal
inequity in sentencing for offenders convicted of similar
crimes?
3.
Are the specified sentences disproportionate to the
offense?
4.
Does the law often result in a prison sentence for relatively
low-risk offenders?
An answer of yes to any or all of these questions, they suggest,
indicates a sentencing statute may be unnecessary, indefensibly
harsh, and/or not particularly cost-effective.
At the federal level, there is already movement under way
to modify mandatory minimums with the passage of the
Fair Sentencing Act of 2010, which amended the mandatory
minimum sentences for drug offenses involving crack cocaine.
There is also bipartisan movement in both the House and the
Senate for additional sentencing reforms.
Better Align Incentives Faced by Counties
States and localities play very different roles in the criminal
justice system. Local police tend to make arrests and local
courts tend to generate jail admissions, but state governments
are typically responsible for the costs of incarceration. If,
however, counties were forced to bear some portion of the
costs generated by each prison admission, local officials
might become more selective in their use of incarceration as
punishment for criminal behavior. Changes in state policy
that ensure that counties have some “skin in the game” would
likely motivate efforts at the local level to be more sparing in the
use of incarceration, especially for low-risk offenders. Raphael
Roadmap
• States take a hard look at the truth-in-sentencing laws
that now prevent the lowest-risk prisoners from exiting
incarceration and returning to society. If they decide
to reform these laws, they can do so by decreasing
the fraction of a sentence that a prisoner must serve
in order to meet the “truth” threshold, narrowing
the scope of crimes covered by these statutes, or
modifying the statutes so that they cover only repeat
offenders. State parole boards would then be able to
use their expertise to sort through high- and low-risk
inmates, releasing those who no longer pose serious
threats to society.
• 
States take inventory of their mandatory minimum
sentencing policies and ask four questions: (1) Does
existing state law already allow for the incarceration
of offenders for the targeted offense? (2) Does the
mandatory minimum introduce horizontal inequity in
sentencing for offenders convicted of similar crimes?
(3) Are the specified sentences disproportionate to
the offense? (4) Does the law often result in a prison
sentence for relatively low-risk offenders? An answer
of yes to any of these questions indicates a sentencing
statute may be unnecessary, indefensibly harsh, and/
or not particularly cost-effective.
• 
The federal government continues to reevaluate
mandatory minimum sentences. In particular, the
federal government will reassess the mandatory
minimum sentencing guidelines for nonviolent drug
offenses. If it finds that those guidelines violate criteria
for efficacy and equity (as laid out in the preceding
bullet), the schedule will be amended to allow for more
measured sentencing.
• States offer incentives to counties so that local officials
become more s …
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