There is a poorly understood criminal justice metric that might just be a key component of fixing a faltering system that has gotten more expensive and, arguably, less effective at protecting public safety over decades. Clearance rates are the closest metric we have to evaluating how well the criminal justice system does at catching people who commit crimes. Clearance rates measure the percentage of reported crimes that result in a suspect being arrested, in an attempt to approximate the effectiveness of police agencies at that critical job. This brief is particularly interested in how effective the police are at solving violent crimes, a top concern of the public.

The effectiveness of the U.S. criminal enforcement system in solving violent crimes—as reflected by clearance rates—has been flat with a slightly downward trend over time. When focusing just on homicides, those rates have suffered a decades-long slide since the mid-1960s, with an even more pronounced decline in the years since 2019. Even as crime rates have trended down fairly consistently since 1993, and even though police spending has dramatically increased, not declined, since 1982, the percentage of violent crimes reported that get “cleared” (solved) has been stagnant at best since about the mid-1960s.

To put a finer point on the increased spending on police, the Urban Institute concluded from analyzing census data that “[f]rom 1977 to 2021, in 2021 inflation-adjusted dollars, state and local government spending on police increased from $47 billion to $135 billion, an increase of 189%.” In addition, a study by ABC-owned television stations examining budgets of more than 100 cities and counties determined that 83% spent at least 2% more on police in 2022 than they spent in 2019.

Early indications suggest that some of the steeper declines in clearance rates that were experienced after 2019 bounced back somewhat in 2023 and 2024, but there is no conclusive data yet, and the long-term trend since the 1980s remains in place. The chaos of the pandemic years likely plays an outsize role in the data for those years so, looking back in hindsight, the accelerated decline in rates may prove those years to be outliers. Even so, the long-term trends demonstrate that vast improvement can be had in clearance rates across the criminal system.

In the mid-1960s, more than 90% of murders were solved nationally (Figure 1). By 1990, that percentage had dropped into the 60s. In 2022, only 37% of violent crimes were cleared, and just over half of murders, according to FBI data. These are historic lows for a statistic that has been collected using the same methodology since at least 1960. Meanwhile, peer nations in Western Europe and Asia reportedly performed as well as the U.S. did in the 1960s, and their numbers have remained much higher than the figures for the U.S. Note that though clearance rates for property crimes and lower-level offenses are typically much worse than those for violent crimes, they have also remained more stable over time (Figure 2). As an example, in 2022, 36.7% of violent crimes reported to police were cleared, compared with 12.1% of property crimes.

When violent crimes are not prosecuted, or perpetrators don’t face punishment, it harms public safety and causes fear in the community; if left unchecked, this can lead to rampant disrespect for the law and eventually produce chaos. The perpetrator remains unidentified and loose in the community, able to commit further crimes.

Allowing cases to languish unsolved has additional implications for deterrence. According to the U.S. Department of Justice, “Research shows clearly that the chance of being caught is a vastly more effective deterrent than even draconian punishment.” So even as our prisons and jails are bursting with people being confined for ever-longer time periods, there is evidence that our policy choices are not yielding effective deterrence, let alone crafted to achieve optimal results. Indeed, the evidence is well-established that long sentences are not the only or even best way to address crime. When roughly half of murderers can expect to get away with it, the deterrent effect of amping penalties without increasing the likelihood of being caught will be limited. With property crime, those incentives are even worse since those are less likely to be cleared.

Failing to solve cases is also a severe disservice to victims, who are rarely healed or compensated by our present system. In fact, surveys show that victims of violent crime prefer prevention strategies to long prison sentences.

So why aren’t clearance rates the most important criminal justice metric we have? Why have many members of the public not even heard of them? This brief will discuss clearance rates, their merits, and their decades-long downward trajectory. Why do clearance rates matter? How can the abysmal rates seen today be improved? Can public awareness of this crisis lead to action? What are the solutions?

Download the full policy brief below:

The post Could clearance rates be key to addressing criminal justice failures? appeared first on Reason Foundation.

However, the results of criminal-justice-related ballot initiatives indicate that crime was still a salient issue, and voters may be reacting against the more radical demands that were floated by advocates after the murder of George Floyd, like defunding or abolishing the police, as well as to the 2020 upticks in certain types of crime.

Some of the ballot measures were in keeping with a criminal justice system that balances the imperative for the protection of persons and property with a parsimonious use of state resources, minimizing the use of force and restrictions on freedoms by the state. Others were not quite as well-measured and pointed to a shift in the climate around criminal justice reform away from its previous optimistic tenor of the period between 2000 and 2020.

The optimistic climate around criminal justice reform was partially attributable to the decreasing significance of crime to the voting population. However, in 2024, even though crime was not the top issue of concern, 75% of voters indicated that it was still either extremely important or very important to their vote, with only 6% saying it was unimportant. Pew’s results, which, unlike Gallup’s, focused on violent crime specifically, found that it ranked fifth among voters’ concerns, with 61% of voters saying it was very important to their vote. Both Donald Trump and Kamala Harris campaigned on, to varying degrees and emphases, a “tough on crime” approach to mirror this attitudinal change among the public, which could be partially attributable to increases in concern about newsworthy increases in certain types of crime during the pandemic and its aftermath.

As reported by the Council on Criminal Justice (CCJ), homicide in 2021 and 2022 was about 30% higher than in the first half of 2019, as was non-residential burglary. Gun assault was 40% higher during those years. In 2023, motor vehicle theft was 102% higher than in the first half of 2019; shoplifting and carjacking were up a whopping 127%.

There was also extensive coverage of those upticks. Videos of smash-and-grab burglaries went viral, and news stories on organized retail crime increased nationally from 436 in 2019 to 925 in 2022. Voters may have linked certain reforms as leading to quality-of-life problems, property crimes, or violence. The results of the 2024 ballot initiatives related to criminal justice in five states speak to the above climate shift among the voting population. Here, we give a post-mortem of those initiatives by topic and look forward to what this portends for the next four years.

Colorado Proposition 130: Funding for law enforcement

Result: Passed 52.8% to 47.2%

Postmortem analysis

A repudiation of the 2020 “defund the police” demands through a popular vote but still signaling concerns with some police practices involving force, this successful proposition directs the legislature to provide an additional, one-time allocation of $350 million to fund recruitment, retention, and training for local police officers.

The funds, to be paid out over an indeterminate amount of time, will be distributed in the form of grants for hiring initiatives, training, and support that can come via pay increases, bonuses, educational programs such as postsecondary degrees in criminal justice, training (including in restraining use of force), and a one-million-dollar death benefit for the families of officers killed in the line of duty on top of death and disability benefits from pensions.

Proposition 130 was placed on the ballot through the signature-collection efforts of Advance Colorado, self-described as “[a]n action-based organization focused on reversing radical policies that are harming the state and restoring common sense values and principles in Colorado,” which garnered 185,000 signatures. The organization stated the purpose of Proposition 130 was in response to “a significant increase in crime, and especially violent crime, in the state of Colorado.” Violent crime did rise in Colorado between 2013 and 2022, after which it has begun to dip. Property crime increased between 2020 and 2022 but has also been declining. Noting that crime began to decrease before a massive increase in state spending will be important for any evaluation of the effectiveness of the influx of funds in the upcoming years in reducing crime.

There are two policy levers that should be exerted with the passage of this bill. One concerns the timing of the allocation of the funds. $350 million represents ten times the amount of recent state funding for law enforcement and is in addition to that funding. Colorado has a billion-dollar budget hole, and the recently passed Proposition KK, which levied taxes on firearms sales, is estimated to raise only $39 million in additional funds per year. Because it is a one-time allocation without a timeline for disbursement, legislators should consider a 10-year or slightly longer distribution period, which would allow for the funds from Proposition KK to cover the new hole. Because no new taxes were implicated in the passage of this measure, this would necessarily mean that the budget will have to shift funds away from other programs or potential intervention strategies that can help reduce crime, like substance abuse treatment.

The second policy lever is stringent attention to what types of activities the grants will be used for and how to measure their effectiveness. It is disappointing that there was no assessment mechanism included in the proposition that would mandate an accounting for the success of the funded programs, such as in increased clearance rates, which is a more direct measure of police efficacy, but this can be made a condition of the grants.

Grants should be given for initiatives with strong empirical backing for crime reduction and increases in officer well-being. For example, there is inconsistent evidence as to whether police levels (officers or spending per capita) in and of themselves reduce crime. However, there is strong support for policing strategies like “hotspot” policing, so focusing on hotspot areas where crime is concentrated would be a beneficial use of funds. If the need is demonstrated, specialized investigative teams targeting specific types of crime can be deployed, which is among the intended purposes that should be supported through this funding. Police de-escalation training and law enforcement obtaining postsecondary education also provide mixed or questionable support from reputable research for its effectiveness in various job-related outcomes.

California Proposition 6 and Nevada Question 4: Forced prison labor

Result: Proposition 6 failed, 53.3% to 46.7%; Question 4 passed 60.6% to 39.4%

Postmortem analysis

These ballot initiatives, for which Reason Foundation published guides prior to the election, dealt with the question of whether to remove the exception to involuntary servitude and/or slavery (which exists as a “loophole” to the abolition of slavery in the U.S. Constitution’s 13th Amendment) in the state constitutions of California and Nevada. In California, the ballot also carried with it a prohibition against disciplining an incarcerated person for refusing a work assignment. These votes followed closely on the heels of other recent and successful ballot initiatives to end involuntary servitude in Colorado (2018), Nebraska (2020), Tennessee (2022), Vermont (2022), Alabama (2022), Utah (2022), and Oregon (2022).

Why the initiative failed in California but succeeded in Nevada has been partially and reasonably attributed to the fact that the language in the title and summary provided to voters in California did not use the word “slavery” (“slavery” doesn’t appear in its state Constitution, whereas it does in Nevada’s), but only the less-understood term “involuntary servitude,” leaving voters confused. In both instances, what is meant by involuntary servitude is forced labor, often with the threat of punishment if it is withheld. This was certainly the case in states like California and Nevada, where incarcerated people have been mandated to work, including in jobs that carry significant risk to their lives, like fighting fires, for either no wages or paltry wages. If incarcerated individuals refuse to work, they may be reprimanded and denied a range of privileges.

Some have argued that work in prison leads to better chances of employment upon reentry and less recidivism. However, most studies investigate voluntary work programs, so the true impact of forced labor on employment and recidivism is unknown. Affirmatively choosing to seek the benefits of work and gaining time credits or wages for that exchange in itself signals a likelihood of successful reentry.

The private sector has a strong, beneficial role to play here in the absence of a constitutional ban on forced labor. There can be a closer mapping of work inside to work outside, fair pay for services, and cultivation of future employees, such as is seen with the sales and marketing company Televerde, which hires women in prison, providing them with practicable sales training and access to marketing technology, as well as a workforce development program through their related foundation. There would need to be a commitment on the part of private employers, coupled with training, development, and openness to successful second chance practices, such as is seen with Nehemiah Manufacturing, which concentrates its hiring on the formerly incarcerated and provides them with wraparound services (like social workers, subsidized housing, and access to free transportation) to help with their re-entry.

From a policy perspective, there are several approaches to reducing the negative consequences of the failure of the ballot initiative. Doing away with employment restrictions and other collateral consequences is a clearer path to employment opportunities than coerced labor. Policy analysts at Reason have also noted that the California constitution should be interpreted to mean that judges can order involuntary servitude, but prison staff cannot. This would greatly reduce the availability of the tool of punishing incarcerated people for refusing work or impelling them to participate in work they do not wish to, for any reason, engage in.

Colorado Amendment 1: Constitutional bail exception for first degree murder

Result: Passed 69% to 31%

Postmortem analysis

Colorado’s Amendment 1, which passed with 69 percent of the vote, allows judges to deny bail to a person charged with first degree murder. This shouldn’t be interpreted as a rejection of bail reform but rather a return to a recent status quo. Colorado was one of 19 states that had a constitutional right to bail for all crimes except those accused of a capital offense. Colorado abandoned the death penalty in 2020, and so this meant that first degree murder, as a capital offense, was de facto eligible for bail, an interpretation upheld by the state Supreme Court.

Republican and Democratic lawmakers brought this constitutional amendment to the voters, also backed by the conservative action committee Advance Colorado, to restore the pre-2020 restriction on setting bail. Because this was in many senses a technical fix to update a statute after “capital offense” was removed as a category of crime in the state, it is hard to attach any significance to its passage. It is, of course, possible that voters intended to signal a mistrust of judges who were responsible—during the intervening period since the death penalty was abolished—for setting bail and release conditions that would prevent the pretrial release of people accused of first-degree murder.

It is helpful to understand a little context here about the significance of bail reform efforts. Through the 1960s, the only factor that judges could consider in setting bail was the likelihood of the defendant appearing in court, which made cash bail a useful tool. Then, reforms to the bail system in the 1970s and 1980s allowed judges to consider risks to public safety in their decisions as well. A point of concern remained as to how to ensure that the ability to pay bail does not determine whether someone can be released in the pretrial period, which would offend due process and justice interests.

In the 2010s and 2020s, cash bail reform began in New Jersey, spreading to New York, California, and Illinois. Cash bail reform became a controversial political flashpoint in state and local elections from “tough on crime” legislators. As reported by Reason Foundation, evidence suggests that restricting the use of cash bail among those deemed a low risk to public safety has positive effects, such as reducing the likelihood of being pressured into a plea deal, allowing defendants to keep their jobs and familial responsibilities, and “would not result in dramatic drops in court attendance or increased risk of reoffending. … There is even some evidence that pretrial reforms that reduce detention of low-risk, bond-eligible defendants may actually improve public safety.”

There is strong evidence that pretrial detention severely inhibits an individual’s ability to mount a legal defense and undermines the presumption of innocence and the ideals of due process. Pretrial determinations should, therefore, be made on an individualized basis and impose the minimum restrictions on liberty necessary to preserve the integrity of the adjudication process and to protect the community from definable threats of harm.

Colorado Proposition 128 and Arizona Proposition 313: Violent crime sentencing and parole

Result: Proposition 128 passed 62% to 38%; Proposition 313 passed 65% to 35%

Postmortem analysis

Colorado’s Proposition 128 saw a decisive win, garnering 62% of voter support. As with Proposition 130, 128 was sponsored by the conservative policy advocacy organization Advance Colorado. Unlike Proposition 130, though, it was a citizen-initiated ballot

Starting in January 2025, parole guidelines changed, requiring people convicted of certain crimes of violence, such as second-degree murder, first-degree assault, first-degree burglary, and aggravated robbery, to serve 85% of their sentences before becoming eligible for parole. It also ends earned time reductions for completing in-prison programming designed to reduce recidivism.

While these crimes are certainly far from sympathetic and create real harm and fear in the public, the marginal increase in public safety expected from the passage of this proposition is questionable. According to an analysis by the legislative council staff, 218 people per year will be affected by the change. This is out of a system that held 17,168 prisoners in 2022, an increase over the prior year. Because the average governing sentence for these crimes is a hefty 23 years, this will mean that instead of becoming eligible for parole after an average of 17 years, those convicted will serve 19.5 years. An additional, arbitrary 10 percent served towards the sentence, or 2.5 years, is unlikely to have enhanced deterrent or rehabilitative value. And although the individual is incapacitated for another 2.5 years, these years are on top of an already almost two-decades-long sentence. Each additional year beyond 10 years has a decreasing impact on recidivism.  It, therefore, is not a parsimonious use of state restriction on freedom.

It is also not an effective use of an additional $12 to $28 million per year in prison costs, which is on top of a strained Colorado budget now committed to $350 million for local law enforcement through Proposition 130. The loss of incentives through earned time credit to participate in rehabilitative programming that facilitates reentry, on the other hand, may mean that preparedness for release may decrease. Taken with Proposition 130 and Amendment 1, Prop. 128 was indicative of a pro-law-enforcement, risk-averse sentiment towards particularly violent crime that saw fiscal concerns as secondary.

Eligibility for parole after 75% of the time served, per the previous requirements, was not a guarantee of parole; in the same way, it is not a guarantee at 85% of the time served. In fact, discretionary parole has been more difficult to obtain due to pressure for punitive approaches and fear of having exceptional cases of reoffending capture public attention. The Colorado Parole Board approved 39% fewer people for parole in 2022 than in 2019. The Board is tasked with using risk-assessment tools, evidence of rehabilitation and work, and other indications of readiness to return to the community in their decisions. These methods, already conservative, allow for some individualization in determining whether a sentence has been sufficient to produce change and maintain public safety. The passage of Prop. 130 may be seen as a mandate for harsher sentencing and may result in an increase in discretionary denials of parole, no matter what percentage of time has been served.

“Second Look” legislation already enacted in Colorado, which allows for resentencing/sentencing modification for those convicted under habitual offender laws after serving at least 10 years, can provide a way to counteract the cost, both fiscal and societal, of increasing the time-served requirement for parole. However, this legislation is limited, applying only to offenses committed after 2023 and, therefore, will not have an impact until at least 2033. It should be made fully retroactive and expanded so that mandatory reviews are given after 10 years.

While Colorado’s proposition dealt with “back end” sentencing increases, Prop. 313 in Arizona addressed “front end” sentences by mandating life imprisonment for a class two child sex trafficking conviction. The previous discretionary sentence was seven years to life for the same crime. The measure passed readily with 65% of voters supporting it, unsurprising given that crimes against children, and especially sex crimes against children, are among the most instinctively reviled by the public.

While it may satisfy a deep retributive impulse, the lack of discretion means that judges are not given the opportunity to take into account the individual aggravating and mitigating factors of cases. Removing parole entirely as an option denies any possibility for successful reintegration and rehabilitation. The measure may also ensnare some of the victims of sex trafficking themselves, as they can be coerced to traffic others; in total, the measure represents an overextension of punitive power.

California Prop. 36, Florida Amendment 3, Massachusetts Question 4, Nebraska Measures 437 and 438, North Dakota Measure 5: Drug policy

Result: Proposition 36 passed 68% to 32%; Amendment 3 failed 44% to 56%; Measures 437 and 438 both passed 71 % to 29% and 67% to 33%, respectively; Measure 5 failed 52.5% to 47.5%.

Postmortem analysis

California’s tough-on-crime Proposition 36 passed decisively in the liberal-leaning state, with close to 70% of the vote, a bellwether for the national climate shift towards punitiveness. The measure was wide-ranging and had many elements, including increasing penalties for various drug and theft crimes and elevating numerous misdemeanors to felonies.

In substance, Prop. 36 returns California to a harsher drug prosecution approach. It backs away from earlier commitments to shift away from incarceration and toward treatment as the prevalent response to drug possession and use offenses. Proposition proponents widely publicized the heightened sanctions as a purported solution for particularly notorious retail thefts and visible homelessness in recent years. While it is important to deploy robust law enforcement resources to address public safety disruptions, the prevailing evidence shows that increasing penalties will greatly increase incarceration but will do little to eliminate retail theft or solve homelessness. On the contrary, research shows that the length of a sentence is not a factor in deterrence, but that certainty of apprehension is.

One confusing aspect of the measure is that it created a new category called a “treatment mandated felony,” which mandates involuntary treatment (with no funding allocation to support it) for certain people with multiple drug arrests and then requires the ones who don’t successfully complete the program supplied to them to serve time in prison for up to three years. Reported estimates are that this will increase incarceration rather than treatment. Meanwhile, it is likely to exacerbate an already devastating lack of treatment beds in the state, as well as remove services that were funded through the savings gained from reducing these same penalties, which amounted to $800 million in the state (65 percent of which was allocated to treatment costs). It is worth noting that the people who received that funding had an impressively low rate of subsequent offenses, 15.3 percent, when recidivism rates upwards of 35 percent are generally seen in the state. Thus, these programs appear to be effective at reaching a population for whom rehabilitative community programming is preferable—at pennies on the dollar—to incarceration.

According to the legislature’s nonpartisan Legislative Analyst Office, Prop. 36 will likely inflate state criminal justice system costs by “hundreds of millions of dollars” a year. “Some of these costs could be offset by reductions in state spending on local mental health and substance use services, truancy and dropout prevention, and victim services due to requirements in current law.” Local governments may also see tens of millions of dollars in added costs largely from increased jail incarceration.

Proponents claimed that these costs “will be money well spent,” and of course, if the policies would substantially eliminate retail theft crime and drug overdoses, their funding would be worthwhile. But a lot of money will be wasted, and a lot of incarceration will result from these changes, and none of that money will be available for communities to offer needed services that are proven to reduce drug overdoses, crime, and homelessness. Instead, the new policies prioritize prison—which should be used sparingly because it is expensive and harmful.

In this political fight, well-resourced interests—notably, $16 million from big retailers and law enforcement—won the day, and the public returned the state to a policy focused on incarceration instead of diversion and treatment. As discussed above, even if there is a shared goal of reducing criminal activity, adding penalties for drug crimes will not eliminate drug harm.

Voters in several states also declined to legalize or decriminalize certain drugs. These results, coupled with California’s Prop. 36, suggest that any consensus about drug policy—at least for expanding marijuana legalization—may be evaporating. Massachusetts residents turned down a citizen-driven ballot measure, Question 4, to establish regulated access for adults to natural psychedelic substances like psilocybin (a.k.a. mushrooms) that show therapeutic potential in treating mental health conditions like post-traumatic stress disorder, with 57 percent voting against it.  

Only two states have passed policies allowing for legal access to psychedelics thus far: Oregon and Colorado. Massachusetts has had legal marijuana for recreational use since 2016.

Rand research shows about 3% of American adults used psilocybin in 2023. Perhaps Massachusetts voters are worried about the increased use of these drugs. That said, if the measure had passed, it might only have increased use locally for at least a novelty period since use rates of hallucinogenic drugs are quite stable over time, but it certainly wouldn’t have resulted in a proverbial mushroom cloud on every street corner in Boston.

The failure doesn’t necessarily portend a shift in broader criminal justice attitudes in Massachusetts, either. After all, mushrooms are not associated with crime in public consciousness. Opposition in the state may have been perceived as credible since several large medical associations spent money opposing the proposal and casting doubt on the medical benefits claims of proponents.

North Dakotan voters similarly rejected the legalization of marijuana narrowly by about 53% (they got closer than the last two times voters tried it). South Dakota, which had legalized marijuana by ballot in 2020 only to have the bill declared unconstitutional—and tried again in 2022, only to lose by 53%—this year lost by 56%. Not the proponents’ desired trajectory. Meanwhile, Florida’s legalization constitutional amendment, Amendment 3, despite receiving a majoritarian 56 percent of the vote, failed to reach the requisite 60 percent supermajority threshold. The measure faced strong opposition from Gov. Ron DeSantis. This is the first year since 2017 in which there will be no new states voting to permit recreational adult-use legal marijuana. This breaks a pretty good streak since 2010 when Colorado passed the first state legalization measure, but it does not necessarily spell the end of the trend.

In Nebraska, paired proposals to legalize and regulate marijuana for medical use passed handily, with one pulling 71%; however, there was a cloud (pun intended) that hung for weeks over the result because of ongoing litigation over the signatures submitted to qualify the ballot initiative, though a judge later allowed the laws to go into effect. The sanctioned use of medical marijuana brings Nebraska in line with the vast majority, becoming the 39th state (plus D.C.) to authorize medical use of the substance.

It would be wrong to interpret the result in Nebraska on medical marijuana, however, as indicative of growing support for recreational marijuana legalization in the state. Rather, Nebraska is kind of a straggler when it comes to medical marijuana. And when Nebraska’s legislature considered a bill for recreational legalization last fall, it died in committee. In this election, as has been noted, the states seeking recreational use did not fare well.

Looking forward

Ballot initiatives are enormously useful in evaluating public sentiment about specific criminal justice reform issues. Through their use of direct democracy in voting for the measures’ passage or failure, they allow us to read the pulse of the public without some of the mediating influence of politicians. That said, ballot measures are much blunter instruments than legislation and frequently can’t deliver as much detail and nuance as carefully crafted laws can, whereas sentencing is, by nature, a very intricate process that needs individuated attention. Thus, sentencing reform is often more aptly suited to legislative intervention. Moreover, ballot measures can reflect a public sentiment that may not accord with that of the governing majorities.

This year’s slate of ballot initiatives produced several results that bode ill for criminal justice reform writ large and speak to recent trends toward knee-jerk, punitive responses that are impervious to cost and don’t account for lessons learned from decades of failed policy.

Nevertheless, despite the losses on the drug legalization front, there are separate signs that the Trump administration may be favorable toward federal marijuana legalization, which would clear up a lot of confusion over the status of state-legal schemes. Coupled with the closeness of the tallies, it appears marijuana legalization is not in a retrenchment position, even though it might appear so on its face.

Additional reforms that are sorely needed in the system are not completely dead, either, though the passage of Prop. 36 in California stings. Incremental, bipartisan criminal justice reforms that prioritized public safety while seeking to reduce the collateral consequences of the overreach of punitive, ineffective, and expensive state punishments have, nevertheless, continued over the past few years in states from Oklahoma to New Jersey.

It is important for policymakers and advocates at this moment to recognize the concern reflected in their states’ votes this election and in their attempts to reform the system and balance that acknowledgment with the reality that overcriminalization and over-incarceration are participants in creating, not reducing, harm. It is critical to be locking up only the people for whom the positive effects of incarceration outweigh the costs that accompany that choice of remedy. When large groups of people are subject to additional incarceration, it is harder to get that calculation right.   

The post What election results reveal about the future of criminal justice reform appeared first on Reason Foundation.

Muhammad-McCormick said she detected remorse in her son’s shooter’s eyes in the moments after the killing and ultimately realized that the man who had killed her son “can’t give [her] back [her] son with his body.” Her story demonstrates that we need to retool a system that currently focuses almost exclusively on punishment to the exclusion of addressing the actual harm experienced by victims.

Restorative justice offers a toolbox for bringing together crime victims or their family members with the people who committed these crimes through processes designed to help offenders face the impact of their actions and help victims achieve closure. It can seem amorphous, but it is about addressing crimes individually, centering attention on the conflict between the harmed person and the person who caused the harm. It attempts to meet the needs of both parties for accountability and healing.

Many restorative processes emphasize direct encounters during which rehabilitation, repair, and forgiveness are among the desired outcomes. The restorative justice approach is based on the shared societal value of settling disputes nonviolently, a cornerstone of our legal system. The impact can be powerful: Muhammad-McCormick recounted a feeling of transcendence from seeing people “trying to put back what they took.”

The traditional prosecution process, by contrast, sidelines victims completely while purporting to act on behalf of all citizens in redressing the harm. Victims often feel left out of the whole equation, and they mostly have been. In fact, fewer than one in three victims received any compensation after they were harmed, according to a 2020 study.

To be sure, many cases are not appropriate for a restorative approach for many reasons, particularly when the parties are not interested. In some cases, a judge will determine that the offender needs to be separated from the community to prevent further offenses. However, there is no question that the use of restorative justice principles should be vastly scaled up to provide this more holistic type of resolution for many more victims who would welcome it.  

The webinar at which Muhammad-McCormick spoke was convened to discuss the Alliance for Safety and Justice’s “Crime Survivors Speak 2024: A National Survey of Victims’ Views on Safety and Justice,” the largest commissioned survey of violent crime victims. The survey, as it has done in past years, challenges the persistent myth that crime survivors universally desire the most punitive responses to crimes.

Marlee Liss has described how after she was raped, she found her initial experiences over several years in a traditional court (in Canada) to be traumatic and as disempowering as the rape itself, including having to watch her initial police recordings and being cross-examined with invasive and insulting questions. Eventually, Liss sought therapy for her rapist and participated in a restorative justice process, which included an eight-hour face-to-face dialogue, facilitated by trained supervisors, with the man who raped her. Liss’s mother, Barbie Liss, who participated in the meeting, described the encounter “like soul vomit. Everything that had to be said, everything Marlee wanted to say to him, everything she had needed to clear, every question she wanted to ask, from ‘How could you?’ to how the patriarchal culture had impacted him.” 

Liss became more convinced after her own experience of the need to “stop cycles of dehumanization” and challenge the prominent tough-on-crime narrative. She noted that the results of the victim survey (and the prior studies as well) debunk the “misperception that survivors want punitive” responses. Liss, since her rape and restorative process, started an awareness-raising organization and speaks widely in the U.S. and elsewhere about the value of the restorative process.

The survey provides an important reminder that survivors of crime do not always, or even mostly, want to seek the most draconian punishments for the individuals who caused their loved ones harm. Indeed, the vast majority prefer options that prioritize treatment and support over punishment. Specifically, the report finds that “by a three-to-one margin, victims believe that the most effective way to reduce crime is to create more jobs and housing instead of long sentences.” It should be noted that the research on this topic backs up the victims on the ineffectiveness of long sentences. The report also found that:

Fewer than one in four victims believes that long sentences are the most effective way to stop people from committing repeat crimes. More than two in three victims believe that mental health and addiction treatment or job training and placement are more effective strategies to stop repeat crimes.

Victims often gravitate toward a more restorative approach, even in cases of capital crimes when the death penalty is a possible result. In November 2024, Alabama executed Carey Dale Grayson for murdering a hitchhiker in 1994. The victim’s daughter spoke after the execution about the futility of the punitive approach to address the systemic problems that lead to crime.

Jodi Haley noted that her mother’s killer was abused “in every possible way,” including having cigarettes put out on his skin, facing physical and sexual abuse, and being thrown out on the street as an adolescent. “I have to wonder how all of this slips through the cracks of the justice system. Because society failed this man as a child, and my family suffered because of it,” she said.

Haley pondered what kind of positive impact Grayson [the killer] could have had on lives. The “eye for an eye” justification for the death penalty is “not right,” she said. “Murdering inmates under the guise of justice needs to stop … State-sanctioned homicide needs never be listed as cause of death … I don’t know who we think we are. To be in such a modern time, we regress when we implement this punishment. I hope and pray my mother’s death will invoke these changes and give her senseless death some purpose,” Haley concluded.

Aside from the impactful healing among individual participants, many restorative justice programs report a decline in recidivism, with studies showing a range of 10-25 percent in improvements compared to traditional processes. While there are not enough samples to study and not enough rigorous research to form a comprehensive evaluation, another Department of Justice meta-study found a moderate reduction in future juvenile delinquent behavior from available research and generally noted a positive impact in many studies, particularly with respect to participant satisfaction with the process.

The victims’ survey, which the organization has repeated annually for 10 years, explores the views on the justice system of more than 15,000 crime victims. The survey is a valuable tool, but the availability of restorative programs is sparse at best. Policymakers must allocate more resources to restorative justice, and judges and prosecutors must refer cases to these programs. Simply expanding the use of these approaches will go a long way toward truly serving victims and delivering justice. 

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When the sentence is over, however, there is a cascade of perpetual impacts—which function as additional punishment—that occurs as a result of most convictions. These impacts are not imposed by the judge, and they are not individually tailored to address the specific conditions of the crime the person committed. These perpetual punishments include debilitating and cumulative impacts on a person’s ability to secure housing, jobs, and education and to fully participate in many aspects of civic life.

The official name for these extra punishments is “collateral consequences,” though they are hardly collateral, and they are littered throughout our state and federal codebooks. Some have referred to these additional consequences as “invisible punishments.”

At the federal level, some overbroad examples are a law that retracts certain loans for anyone who is convicted of a drug trafficking offense, another that makes them ineligible for government benefits, and nobody with any drug conviction can get federal student loans. Many states, such as Illinois, take away state contracts or cause termination from certain jobs for anyone with any drug conviction. In Florida, you are ineligible to serve as a personal representative in a person’s estate if you have been convicted of any felony. There are consequences for parents (even as simple as not being able to volunteer at your child’s school). 

According to the Brennan Center for Justice, “roughly 600,000 people leave prisons every year” and are subject to the flood of consequences that crop up after their sentences have ended. It feels to these individuals, rightly, that they are never free again and that they are set up for failure.

The extent of these perpetual punishments had only ballooned since the 1970s, when there were already almost 2,000 statutes limiting the professional licensing of people with convictions. Today, just in the licensing arena, there are more than 27,000 licensing limitations on record. And these are not just for felonies—more than 6,000 of those apply to misdemeanor convictions. What’s more, many of these are permanent, and more than 11,000 are mandatory. And to add insult to injury, other than some immigration consequences that courts have required a defendant to be apprised of before a plea or trial, the American Bar Association Criminal Justice section notes in its Collateral Consequences of Criminal Convictions Judicial Bench Book, “defendants are generally not entitled, as a matter of due process, to be warned of these consequences, either before accepting a plea or upon conviction.”

The formidable barriers to success are reflected in the rates at which people are accused of new crimes—three-year average state recidivism rates are around 68 percent. Barred from most housing and jobs, returning to crime may often seem like the only option.

What can be done to give people a fair chance to succeed after completing the court-imposed punishment? It would make sense if these “collateral” consequences were considered to be additional punishment, but unfortunately, courts have almost uniformly held that collateral consequences are not punishment. Many advocates and scholars think the courts have gotten this wrong.

With the courts punting, the gold standard would be for the judge to build into the actual sentence the length of any period during which the conviction would remain on the person’s record—so the sentence would include a date certain for expungement. In practice, an expungement removes the record and relieves all collateral consequences. But expungements are few and far between. Meanwhile, many sealing provisions merely remove the conviction from public databases so that a person can more easily obtain employment and housing. Ideally, sentencing guidelines or laws would set parameters for how long certain crimes are able to be open on an offender’s record and/or criteria for judges to consider when setting that part of the sentence.

Another promising approach, so far adopted by 12 states, is to automatically wipe a conviction from a person’s record (expungement) some reasonable period after the crime if they have not committed any new crimes, or at least to seal the record so it is not visible to non-law-enforcement officials. Unfortunately, however, “most states limit record clearing to less serious convictions, with lengthy waiting periods and complex procedural requirements that discourage record relief even for those who are eligible,” according to the Collateral Consequences Resource Center (CCRC). Among the states that have passed automatic record-clearing laws, a plethora of implementation issues have arisen in state after state, ranging from data quality to difficulties calculating waiting periods.

By contrast with the U.S. system, many European countries successfully provide for automatic or close-to-automatic expungements. The U.S. should follow the examples set by these countries.

While automatic expungements after the expiration of a judge’s determination of the appropriate time or after a set amount of time set by statute are the best policies, other measures are also valuable. They could be widely adopted to offer relief to those who have served their sentences. One option is to allow judges or departments of corrections officials to provide certificates of relief, which are not expungements but improve a person’s ability to succeed before being eligible for expungement or sealing. These certificates, offered by different states under various names, serve to remove various mandatory bars imposed as a result of the conviction or, in some cases, supply a court order declaring the subject to be rehabilitated. The National Conference of State Legislatures explains that these certificates—which go by different names in different jurisdictions—can help people overcome the obstacles to employment, housing, and other needs, as well as offering “some reassurances to employers or landlords about the person’s rehabilitation and employability.”

The chief difference between these kinds of certificates is that they do not conceal or erase the conviction from public view. Different states allow the certificates to be issued by different authorities—courts, parole boards, corrections agencies, or other entities. The aim is to restore rights forfeited upon conviction, but the effect depends on the circumstances: the specific rights restored depend on a multitude of factors, including the state, the offenses of conviction, and the time elapsed since the sentence was completed. Some states restore rights to be considered for employment or housing; in North Carolina, occupational licensing boards are instructed to weigh a certificate favorably in their consideration of the candidate. So far, only about two dozen states offer any of these types of options.

CCRC and some partners established a national inventory of collateral consequences in 2017, and the Uniform Law Commission has proposed a model bill that would require judges to consider and individually tailor the application of consequences for each defendant and allow “certificates of rehabilitation” to be provided by the department of correction a reasonable period after conviction.

There are other ways to reduce some of these invisible punishments. Pardons eliminate the structural barriers to reentry and could play a bigger role. That said, executive clemency has been vastly underused, with only 17 states even having a regular process that results in a significant number of grants.

Judges can play a much greater role in ensuring defendants are aware of the consequences they will suffer in addition to the ones included in their sentences. Judges can also take the initiative to craft the sentence, from the beginning to the end, by building in the restoration of civic privileges at a certain time, such as the end of a custodial sentence or after a period of supervision in the community.

Defense counsel can (and more frequently does, especially since there has been an accessible resource to discern applicable sanctions) negotiate with prosecutors for charges that don’t carry as many penalties.

Keeping people with a criminal record (which is one in three adults) from fully reintegrating into community life is dangerous and unsound. It puts people who have made mistakes in the past in a permanent state of civil exclusion and limits our neighbors from pursuing legal employment and gaining stability. Justice and economic success demand that we set a course to abandon the wide application of additional impacts on people who have completed their court-imposed sentences.

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Arizona Proposition 313 would impose a mandatory life with no possibility of release on every person convicted of any sex trafficking of a child crime. There are no exceptions, and judges do not have the discretion to override the minimums if they believe a life sentence would not be appropriate in particular cases. 

Fiscal Impact  

According to the bill, there is no anticipated fiscal impact.  

This is not credible when all convictions under the law will add many years of incarceration compared with the current penalties, and that incarceration time costs money. To illustrate, if there are 40 convictions per year and each person’s sentence is lengthened by only 17 years (the difference between the current minimum for a first offender and the current minimum for a multiple offender), multiplying that by the annual cost of incarceration in Arizona suggests a conservative estimate of increased incarceration costs to the tune of roughly $28 million each year. 

Proponents’ Arguments 

The sponsor, Rep. Selina Bliss (R-Prescott), explained the rationale for the measure. “We’re sending a strong message here in Arizona that our children are not for sale. Not now, not ever,” Bliss said. This May, a study posted by the governor’s office found that there have been 113 child victims in Arizona from 2021-2023.  

Opponents’ Arguments 

One argument offered against this measure is that it is too draconian. As written, it would subject people who were forced into trafficking to the same life sentence with no parole, with no option for the judge to lessen the sentence if they believe the defendant was forced or threatened to participate in the crime. 

Discussion 

Child sex trafficking is abhorrent and deserves severe punishment. But at the same time, the law has to recognize that every case is unique. Sex trafficking is an arena where many participants are themselves victims, forced to participate by others. So, a law with no ability for a judge to adjust the sentence if the accused is a victim or was forced to participate can create its own injustices. There were attempts in the legislature to amend this measure so it would not apply to victims who are also perpetrators, but those attempts were unsuccessful. 

Current penalties range from a minimum of 13 years for a first offense to a minimum of 30 years in prison for a third offense, reflecting that there are often complicating and mitigating factors in some cases but allowing severe punishment where merited.  

Also, consider the empirical fact that longer sentences demonstrably do not improve public safety—an imprisoned offender can’t commit a crime while in prison but is more likely to commit a crime after release. The proponents are seeking to “send a message,” but there is no evidence that increased penalties deter sex trafficking or that current punishment is inadequate. 

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California Proposition 36 is wide-ranging and has many elements:

• Increases penalties for various drug and theft crimes and elevates numerous misdemeanors to felonies

• Adds fentanyl to a list of drugs that carry additional enhancements, which themselves will tack on from 3 to 25 years, depending on the quantity of the drugs

• Creates a new “treatment-mandated felony,” which allows certain defendants to plead guilty, enter a treatment program, and get their cases dismissed if they successfully complete the program

• Adds new theft criteria that allow prosecutors to add together the value of separate thefts to turn misdemeanors into felonies

• Requires judges to warn people convicted of drug crimes that they can be prosecuted for murder if a recipient of the drugs they sell (or even give) dies

Fiscal Impact  

According to the legislature, Prop. 36 would likely inflate state criminal legal system costs by “hundreds of millions of dollars” a year. According to the Legislative Analyst and Director of Finance, “Some of these costs could be offset by reductions in state spending on local mental health and substance use services, truancy and dropout prevention, and victim services due to requirements in current law.” Local governments would also experience tens of millions of dollars in added costs.  

Proponents’ Arguments 

Proponents argue that increases in retail theft and fentanyl use require harsher penalties. The main proponents are law enforcement officials and large retailers. They claim reforms adopted a decade ago took needed tools from prosecutors and have caused twin crime and homelessness crises. “Over the past couple of years, our cities have been impacted by retail crime, drug-related activities and homelessness,” said Marcel Rodarte, executive director of the California Contract Cities Association. “We have also seen the fentanyl epidemic increase, killing hundreds of Americans every day. Yet, law enforcement lacks the tools to hold traffickers and dealers accountable…” Proponents also claim that the new laws would reduce homelessness.  

Opponents’ Arguments 

A principal objection by opponents is the enormous cost, both financially and to communities that have benefited from the lower sentences and amped-up services that came with California Proposition 47. Opponents are wary of returning to high sentences for these offenses, which are not effective in addressing therapeutic needs or preparing individuals to return to the community more stable than when they were removed. Mandatory enhancements lead to unnecessary incarceration and take away discretion from judges to impose lower sentences in the interests of justice in individual cases. 

California Attorneys for Criminal Justice, a statewide organization of criminal defense lawyers and allied professionals, called the provisions in the proposition “draconian.” In particular, opponents point to ample evidence that longer sentences are ineffective at reducing crime, and that evidence shows incarcerating people for drug crimes doesn’t reduce drug use. 

The Vera Institute of Justice concludes that the theft provisions in Prop. 36 are “so broad that some provisions would even increase prison time for failing to return a rental car on time. However, studies show that increasing charges and punishments (including for repeat offenses) does not meaningfully deter crime. Neither does lowering felony theft thresholds work.” Moreover, the drug treatment programs created in this measure would be mandatory, and it is well established that coerced treatment is not effective.   

The proponents don’t have any evidence that relaxed drug penalties impacted homelessness. The Vera Institute of Justice argues that tougher drug laws reducing homelessness “is unlikely given the evidence on harsher penalties and mandated treatment, as well as the well-documented likelihood of becoming homeless after incarceration.” 

Discussion 

In expressing his opposition to Prop. 36, California Governor Gavin Newsom noted: “It’s really drug policy reform that brings us back decades. I’m very concerned about that. I hope people take a close look at what they’re proposing.” The ideas in this proposition are squarely in the tough-on-crime vein.  

Diverting spending from upstream, preventative tactics such as treatment and dropout prevention into incarceration costs is a counterproductive idea as it would compound problems rather than be an effective solution to the harms sought to be addressed by this measure. 

In fact, the provisions in this measure are so harsh precisely as they are largely intended to roll back Proposition 47, which passed in 2014. According to the Vera Institute of Justice, Prop. 47 “reclassified six minor felony offenses to misdemeanors, including shoplifting and simple drug possession, and funneled cost savings into safety measures like drug and mental health treatment, homelessness prevention, and victim services centers. These changes aligned with research concluding that addressing these offenses with jail or prison time is both expensive and ineffective.” The current threshold for felony theft, $950, is already lower than in many other states indicating the threat of felony conviction isn’t much of a deterrent. 

The Vera Institute also notes that “[s]tudies have concluded that [Prop. 47] reduced recidivism, saved the state more than $800 million, and reduced both the prison population and its racial disparities. Multiple reports have shown that it did not increase violent crime.” 

But the climate around criminal legal reform has changed a lot since a decade ago when Prop. 47 came into being, most notably because the country (and the world) experienced the COVID-19 pandemic. During the early part of 2020 and into the pandemic, there was an increase in several categories of violent crimes in all parts of the country. While that violent crime uptick has subsided and crime is falling again, the politics of crime has become newly fraught. Many states are rolling back reforms, even when those reforms had been working, because people perceive that crime is worse and worry about it.  

At the same time, numerous unhelpful and inaccurate narratives surrounding public safety have been circulated. Some retailers have blamed store closures on shoplifting—particularly organized smash-and-grab-style thefts—though these claims have been widely debunked.  

Ironically, Prop. 36 is the same number as a ballot measure famously passed in 2000. That Prop. 36 was a groundbreaking achievement in California, moving the state’s policy away from reflexive incarceration and toward a treatment approach to drugs.  

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Colorado Amendment I would add first-degree murder to the category of cases for which a person is able to be held in jail without bail pending trial in Colorado.  

Fiscal Impact  

According to the state’s final fiscal note, “If approved, the resolution may increase state and local workload” and therefore calls for no appropriation. The report concludes that there will be longer bail hearings in murder cases but that the extra workload will be minimal. For a sense of scale, there were 366 murders in Colorado in 2023.  

Proponents’ Arguments 

Proponents see this measure as a simple fix to an unintended result of an unrelated law change and a way to improve public safety and help victims. In 2020, Colorado abolished the death penalty. Until then, murders were non-bail-eligible under the Colorado Constitution, meaning people accused of murders would not be allowed to get out of pretrial detention at a stage in a criminal case when people are presumed innocent.  

But after the death penalty repeal, because of the wording in the constitution, murders became technically bail-eligible offenses in 2020. Because the language of the constitution used “capital offenses” to preclude murder cases from bail, the law no longer technically exempted first-degree murders after the state repealed the death penalty. Last year, a court confirmed that the law as written did not apply to first-degree murders.   

In the meantime, defendants have been seeking bail determinations in some of the 500 murder cases that have been brought since. The proponents seek to “fix” the constitution to match the original intent to deny bail to first-degree murderers. They note that it is really just a restoration to the status before 2020, when all murders were non-bail-eligible.  

Opponents’ Arguments 

A person can only be eligible to be held without bail if “proof is evident or presumption is great” that the person would be found guilty at a subsequent trial, a legal standard that is higher than “probable cause” but lower than “beyond a reasonable doubt.” State Rep. Javier Mabrey (D-Denver) remarked in opposition to the measure:

“I felt that it could impact the principle of innocence until proven guilty. If a judge makes a determination that someone is likely guilty before the trial, I worry about the signal that could send to the jury, the prosecution and the defense.”  

Discussion 

This ballot amendment was sent to the voters by the legislature because the state’s constitution must be amended in order to expressly add first-degree murders to the bail exceptions. If the provisions were contained in the regular penal code of the state, this change might have been made by the legislature alone. Also, because it is a constitutional amendment, a 55% vote is required for passage. 

Bail is designed as a way to ensure that people return to court to answer for their alleged crimes and don’t commit more crimes before answering for the current one. Bail hearings are supposed to be a process in which a judge evaluates the risk of an accused person failing to return to court or committing additional crimes. For high-risk individuals, pretrial release should be denied, while for low-risk individuals, the pretrial release should be the decision. Bail is a tool to incentivize good behavior by individuals for whom the judge is concerned. Along with conditions of release, bail is the payment of money that is forfeited if the person doesn’t come to court or is re-arrested.  

Some jurisdictions have moved away from or reduced the use of money bail because the practice can be unfair. In practice, many courts often impose bail on virtually all accused persons. Since bail costs money, it allows people with financial means to get out of jail until their trial, while people who are poor are often consigned to jail incarceration even if they are likely to return to court and pose no danger to the community. Holding people in jail who are presumed innocent and not likely to flee or commit more crimes is fundamentally unjust. With capital crimes, the risk of flight is likely greater, and in some cases, the danger to the community is greater as well, so bail is always much more rare in such cases. 

That said, in cases where the judge determines there is a low risk of flight or additional criminal behavior, bail should be available to people accused of murder and still presumed innocent to allow them to assist in their defense for a serious charge and to avoid the consequences of being unable to work and care for a family. 

Nevertheless, the change here seems in line with the intent of the legislature and prior law, and the category of crime with which these people are charged (first-degree murder) is often associated with public safety risks, so this is among the population most appropriate for detention. It would be preferable to allow an individuated determination for each case rather than having a categorical exclusion, but this is a reasonable balancing of resources.  

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West Virginia Amendment 1 prohibits any medical professional from taking part in medically assisted suicide, also known as euthanasia or mercy killing.  

Fiscal Impact  

No fiscal information was located, though it is likely that this amendment’s fiscal impact would be minimal, other than possibly some prosecution and incarceration costs.  

Proponents’ Arguments 

Proponents state the measure’s purpose is “to recognize that West Virginians shall not have medically-assisted suicide or euthanasia forced upon them by prohibiting such actions.” Americans United for Life believes the amendment could help protect the elderly and disabled, calling it a “proactive measure that informs decision-makers and counters any momentum achieved by those asserting that suicide and death are America’s answers to illness, disease, disability, or suffering.” 

Opponents’ Arguments 

Opponents say patients have the right to die with dignity, and they note that a ban is already in West Virginia statute, so this measure is not needed. Indeed, House Delegate Joey Garcia (D-Marion) argues there is no need to put this in the state constitution when it is already state law.  

Discussion 

Interestingly, this is the first time a state has initiated a vote to ban medically assisted suicide via constitutional amendment. Nine states and the District of Columbia expressly permit it, and one additional state decriminalized the practice through a court ruling.  

While suicide is no longer considered a crime, all states prohibit assisted suicide, with exceptions in the states where medically assisted suicide has been authorized.  

The organization Death With Dignity states, “Our goal is to ensure people with terminal illness can decide for themselves what a good death means in accordance with their values and beliefs, and that should include having an option for death with dignity.” 

Criminalizing conduct is not always the best way to express societal disapproval of the conduct. Many would argue that people should be able to make those decisions for themselves, and the state should not prevent doctors from treating patients in accordance with the patient’s preferences.  

However, the American Medical Association’s Code of Medical Ethics frowns on physician-assisted suicide. Its provision on the matter underscores that “[t]houghtful, morally admirable individuals hold diverging, yet equally deeply held and well-considered perspectives about physician-assisted suicide.” Nevertheless, that guidance ultimately finds the practice “fundamentally incompatible with the physician’s role as healer, [and notes that it] would be difficult or impossible to control, and would pose serious societal risks.” 

Whatever one’s view on physician-assisted suicide, it is worth keeping in mind that West Virginia law already bans medically assisted suicide, and this attempt to put the ban in the state constitution indicates opponents are worried the people of the state will change their minds in the future and want to make it harder to change the law.  

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Unfortunately, the decades since Manning’s prediction saw a further explosion of criminal overreach, pulling more and more people and types of conduct into the system to the point where today, one in three adult Americans has a criminal record, and U.S. incarceration rates dwarf those in most of the world. Even worse, more than one-third of people in prisons have a diagnosed mental illness, and an even larger share reports mental health concerns. And people with substance use disorders are overrepresented in the prison populations, to the tune of 49% in state prisons and 32% in federal ones.    

When we arrest people who are struggling with their mental health or substance use disorder, we are not properly carrying out any valid criminal law function. We have decades of research that shows us that arresting and imprisoning people does not address the root problems they are facing, and yet that is what our churning system does, decade after decade, with few intervening to apply common sense.

Some people must be dealt with in the criminal legal system to keep us all safe and uphold the rule of law. But for too long punitive measures have been administered to huge populations categorically not suitable for criminal sanctions and interventions. Addressing the expensive, unwieldy, and ineffective overapplication of criminal legal sanctions is the way to meet the moment.

The drug war ramps up criminal sentences

Despite the already bloated criminal codes Manning decried in 1977, the 1980s and 1990s saw a juggernaut of prison-building (and prison-filling), with added fuel in the form of ever more criminal laws and amped-up penalties. These muscular, weaponized laws included “three strikes” laws (life sentences for repeat offenders, often for minor offenses), enhanced penalties, and mandatory minimums. Between 1990 and 1995, every state except Maine increased their prison populations, some by as much as 130 percent.

During this same period, the federal government used funding streams to reinforce incentives to arrest and imprison more people—such as providing funding for arrests and prison building and offering incentive grants to states that require people to stay behind bars longer. The Anti-Drug Abuse Act of 1986, for example, dedicated more than $1 billion to “increased funding for law enforcement and mandated harsher penalties in federal drug cases, including life imprisonment.” It is relatively easy to pass criminal laws when people believe they deter crime because public safety arguments—usually propounded by law enforcement officials—are remarkably persuasive.

At the time these heavy-handed policies were ascendant in the ’80s and ’90s, the culture was increasingly accepting of the notion that there are people who are irredeemable—meaning there is little point in attempting rehabilitation. It turns out that we have strong evidence that people who receive education, support, training, and mental health and substance abuse treatment (not to mention stable housing) can, in many cases, stay successful and be productive in the community without committing crimes.

In 1980, 315,974 people were held in U.S. prisons (state and federal). By 2021, that number had ballooned to 1.2 million. From 1973 through 2009, the prison population multiplied by seven. These figures do not include federal and state jails, which hold mostly pretrial populations and people serving short sentences—these had reached 636,000 in 2021. And in 2021, there were almost four million additional people on probation or parole. From another perspective, in 2024, we incarcerate 583 per 100,000 people in the U.S., more per capita than any other country, when in the 1970s, we were about in line with many other countries. In 1980, the U.S. incarcerated just 139 people per 100,000.

By the high point in the prison boom, we had spent trillions incarcerating people for decades and mushroomed the number of people we put behind bars, earning us the distinction of being the world’s highest incarcerator. The War on Drugs was fully underway, and a heavy focus was placed on crack cocaine. Lawmakers glommed onto a myth of “superpredators” as if crack conferred some kind of enhanced capabilities to that era’s lawbreakers.

During the same timeframe, homelessness emerged as a problem, partly as a consequence of the emptying of mental hospitals that had warehoused an alarmingly large number of people (in the range of half a million at one point). As NPR explains, “In the mid-to-late 20th century, America closed most of the country’s mental hospitals. The policy has come to be known as deinstitutionalization. Today, it’s increasingly blamed for the tragedy that thousands of mentally ill people sleep on our city streets. Wherever you may stand in that debate, the reform began with good intentions and arguably could have gone much differently with more funding.”

This story of a policy change being launched with good intentions only to fail to follow through with the investments needed to make the policy successful is echoed in other experiences in our country’s history. The same narrative is true for many who enter our criminal justice system: If the right investments had been made in their success earlier in their lives, they would probably have never gotten to the crisis level that led them to commit crimes. In our short history as a nation, we have too often failed to follow through on investments of money and effort that were foreseen as necessary to truly address a problem.

For example, in housing policy, following the profusion of criminal penalties, lawmakers failed to provide ways for people—already disrupted by incarceration and the loss of income, debt from fines and fees, and other economic hits—to access safe places to live and services, such as job training and treatment for substance use, when needed. People were set up to fail, and many ended up incarcerated again.

These continuing policy failures that have morphed into long-term intractable problems come across as a lot of déjà vu to anyone who has been watching this space for decades. In order to reverse overcriminalization safely, it is necessary to decriminalize and invest in care infrastructure and build economic opportunity in communities that have been heavily overpoliced. But an essential part of the policy prescription—the reinvestment piece—was never implemented.

The long-term project of facilitating better lives for individuals and the community has to include eliminating the unnecessary, costly, and counterproductive use of prison and jail as reflexive responses to public instability. A recent five-year randomized controlled study found that supportive housing “effectively ended chronic homelessness for participants and lowered the public cost of the homelessness-jail cycle.”

Based on recent scholarship, it is a matter of criminological fact that incarceration is not conducive to reducing future crime. So we must be especially critical of the use of public spending for incarceration when compared to other forms of public spending that are tailored and responsive to the problems driving much incarceration, such as poverty and lack of opportunity, untreated mental health conditions, substance use issues, and traumas.

The increase in incarceration in the slipstream of deinstitutionalization was perhaps inevitable, as it coincided with a shift in the system’s focus from rehabilitation to punitive incarceration, and “‘dangerousness’ became the category of primary importance and the key determinant of incarceration.” During this time, the question of whether to employ incarceration did not change, merely the explanation for the incarceration.

A similar view was baked into the federal Sentencing Guidelines, which, when they were adopted in 1987, were structured so as to ensure that incarceration would be the default approach to all sentencing. The enshrinement in the guidelines all but cemented our path to mass incarceration, as federal practices often serve as models for states (though some states and localities have initiated innovative practices that are leading the way toward more scalable solutions). 

Reform is needed, or in another 50 years we will still be in the same situation we are now (and were back in the days of the original Hyperlexis). Manning’s warning failed to prevent a shift toward incarceration as the default way to respond to societal problems. At this point, there is general agreement across the aisles as to the overarching wrongness of overcriminalization and even some of the remedies. As Brett Tolman, Executive Director of Right on Crime, testified: “Overcriminalization offends both sides of the aisle.”

The consequences of overcriminalization

Failing to correct for the overreach of our system is causing grave harm. Evidence is pointing away from the punitive criminalization approach: After all, if tough on crime were a winning strategy, we wouldn’t have high rates of recidivism (people getting in criminal legal trouble again after serving their sentences) and wouldn’t still be spending ever-larger portions of budgets at every level of government on crime enforcement and punishment.  

In fact, our record on recidivism is dismal—a DOJ study found that “82 percent of individuals released from state prisons were rearrested at least once during the 10 years following release. Within one year of release, 43 percent of formerly incarcerated people were rearrested.” And our spending is way out of line with the rest of the world’s. “A comparative overview of government expenditures on prisons across 54 countries shows that penitentiary budgets usually amount to less than 0.3 percent of their gross domestic product (GDP),” according to Penal Reform International. The United States spends about three times that amount of our GDP each year on incarceration, estimated at more than $182 billion annually.

Overcriminalization also undermines the legitimacy of our system. According to Patrick Purtill, director of legislative affairs for the Faith & Freedom Coalition, the current system “tilts the playing field too far in favor of the prosecutor. … Ninety-eight percent of cases in federal court end with a plea, and there is substantial evidence that innocent people are coerced.” Purtill further points to overcharging as a problem because there are so many options for prosecutors, whose success on the job is typically evaluated based on how many convictions they obtain.

Purtill added that originally criminal laws were only passed to hold people accountable for “inherently blameworthy crimes” like murder or assault or taking other people’s property, but the proliferation of laws in the tough-on-crime era has criminalized so many forms of conduct that there is no longer a meaningful correlation between breaking laws and being a blameworthy person or a scofflaw. We should not want a complicated criminal code or one that ensnares a large portion of our population. We should aim for something quite easy to understand and follow, and that doesn’t criminalize common behavior.

Overcriminalization also hurts our ability to effectively address violent crime by criminalizing non-violent and even non-blameworthy behaviors. Consider how drug arrests—because they almost always involve a suspect in custody—require fast processing of the confiscated contraband. Accordingly, when drugs are brought to crime labs, they often jump the line over unsolved murders and untested rape kits. This contributes to slower investigations and lower solve rates of violent crimes.  For example, in the mid-1960s, more than 90% of murders were solved. By 1990, that percentage fell into the 60-percent range.

Solve rates have continued to decline. By 2020 the national clearance rate dropped to about 50 percent for the first time ever. There is good reason to attribute some of our failures to solve murders and other violent crimes to the dilution of purpose that the last 50 years have wrought in our criminal law.

Another downside of excessive criminalization is that it creates huge bureaucracies, is expensive to run, and gums up the works of the economy. The “buildup of crimes slows economic growth,” says Patrick McLaughlin, senior research fellow and director of policy analytics at the Mercatus Center at George Mason University. One study pegs spending incarcerating people in the US at 6% of GDP and estimates that for every dollar spent on incarceration, we generate $10 in social costs. Scholars have estimated that mass incarceration has increased poverty nationwide by 20 percent.

What to do

Given the length of time we have been grappling with this problem, we know about fairly sophisticated ways to address it. In the ’70s and ’80s, we didn’t know a lot of things we do now, like how brain development impacts crime and the harms of incarceration. Now, we have a wealth of data over decades that tells us what works and doesn’t work to hold people accountable. This entails taking the many people whose conduct can be safely addressed without imposing incarceration and instead providing rehabilitative programming, treatment, job, and housing support, and other interventions that respond to the criminogenic needs of the individual in the community. Such a response allows them to maintain stability in housing, jobs, childcare, and other parts of life that would be interrupted by prosecution.

But instead, we keep ratcheting up the punishment side without following through on prevention and addressing root causes. Incarceration sentences are imposed in the vast majority of cases for which incarceration is an option under the law. Only a sparse and largely siloed fraction of federal and state jurisdictions formally pursue any alternatives to incarceration—in fact, in 2023, 92.4 percent of all federal cases that ended in a sentence included an incarceration term as part of that sentence. The judges and prosecutors that regularly dispense non-carceral sanctions uniformly report that these programs are suitable for much larger swaths of people currently being consigned to confinement. Somehow prison went from being an option to being the presumption. We need to go back to first principles and get clear about how to realize our vision.

Reversing the presumptive resort to the punishment and incarceration model will mean interrogating even the things we have done for a long time reflexively. For example, not everyone whose conduct leads to incarceration today needs any punishment at all, let alone a prison sentence.    

There are numerous ways to strip down our system to the essentials. Some low-hanging fruit, of course, is to get rid of conflicting and silly relic laws that have stayed on our books—laws along the lines of writing checks for less than $1 or owning a ferret. Criminal laws are not the kinds of things you want to be littered around and not being used. They are blunt, heavy-handed instruments.

But to make a difference, it will be necessary to wrestle with the extent of criminalization of behavior that is not inherently harmful, like drug possession, sex work, or (in some jurisdictions) camping in a public place such as a park. A law prohibiting that conduct in Grants Pass, Oregon, was just upheld by the U.S. Supreme Court, even where people were homeless without available shelter space.

Another example of overuse of the system for non-criminal conduct is the huge number—fully one-quarter of prison admissions nationwide—of people held in our prisons and jails for non-criminal, “technical” violations of parole or probation.

For people sentenced to prison, there should be a process for reviewing all criminal cases after a set number of years (or a percentage of the sentence), letting a new judge reassess the sentence in light of present circumstances, including rehabilitation post-sentencing. These so-called “second look” laws are proliferating at the state level as a way to clear prisons of longtime residents whose continued incarceration serves no valid objective, instead costing states hundreds of thousands of dollars and extending unnecessary family separations.

Another helpful tool would be to provide for a periodic automatic “sunset” review for at least a subset of criminal laws. This, of course, would not solve the problem alone but would attune legislators to the idea that these laws should only be retained if they are working as intended to address penological functions like deterrence, rehabilitation, and protecting the public.

Instead of criminalizing poverty and applying the crudest and most costly tool we have at our disposal, a demonstrably better approach would create rehabilitative and restorative and preventative spaces, such as supportive housing; boosts in educational opportunity and attainment; and guarantees of access to mental health/substance abuse treatment to all seeking it, as well as health care, so communities can address many problems before they can lead to criminal system involvement.

A libertarian view on crime and punishment argues that “[T]he proper role of government is limited to restraining the use of force and fraud in the conduct of human affairs, thus preserving the maximum scope for freedom of action for all persons governed by the legal order.” This view has been roundly rejected by the United States, as can be seen by the prevalence of carceral responses that emerged during the mid-twentieth century.

Nevertheless, the case for parsimony in our use of criminalization, incarceration, and even punishment itself, is gaining ground in the most thoughtful criminal law policy circles. In the seminal 2023 book, Parsimony and Other Radical Ideas About Justice, editors Jeremy Travis and Bruce Western define parsimony as the principle “that the state is entitled to deprive its citizens of liberty only when that deprivation is reasonably necessary to serve a legitimate social purpose.”

We should fully oust (at least some) non-violent crimes from the criminal pantheon; most notably, all drug possession laws. The logical endpoint has to be shifting away from responding to disruptions in public safety and toward treating public health problems and “crimes” that stem from economic desperation.

The unrealistic expectation of eliminating all crime

The drastic response to crime in the ’80s and ‘90s ushered in a politics in which both major political parties supported amped-up penalties and endless addition of criminal sanctions to broad categories of behavior. In such an environment, it becomes difficult to initiate reform unless that reform could virtually eliminate crime. While that viewpoint thawed measurably beginning in the early years of this century, the past five years have seen a political regression back toward this stance. In recent years, criminal legal reforms, especially pretrial reforms, have been blamed for almost every violent crime in major cities, even when the data squarely refute that connection and cities that did not undertake these reforms saw similar jumps in crimes.

Even today, many legislators worry about blowback if they support any reductions in the use of punitive incarceration, and this skews policymaking toward overcriminalization and over-incarceration. If we have a chance to move the conversation to robust solutions, we need to collectively free lawmakers from the prison of that hackneyed “tough-on-crime” model.  

Policymakers across the political spectrum today would agree that some penalties adopted in the prison-building decades went further than was needed to serve valid public goals and that there is no logic nor utility to imprisoning people for life for nonviolent crimes such as possessing small amounts of drugs for personal use. That said, it is a chilly climate for even modest reforms in most legislatures—indeed, many jurisdictions have been rolling back reforms and ratcheting up penalties again with barely revamped and warmed-over rhetoric from the superpredator era. Policymakers across the political spectrum contributed to this oversized monster of overcriminalization, and it will likely take bipartisan efforts to curb its excesses.

Even as lawmakers dismiss the solutions, people in American communities understand that incarceration is not always the best approach and that we are criminalizing more people and incarcerating them for longer than was ever intended. In 2022, 75% of victims of violent crime said they would prefer non-carceral treatment or restorative justice to prison. In another more recent poll of all likely voters, 78 percent support criminal justice reform, remaining roughly flat from 2022. According to another study, 77% of American adults believe that alternatives to incarceration are the most appropriate sentence for non-serious offenses, as opposed to prison or jail. And in a 2024 poll, six in 10 respondents said they would not penalize—and would instead be more likely to vote for—politicians who supported reform.

In rolling back the excesses of the current system, our biggest danger is the baseless fears promulgated by entrenched law enforcement and other officials opposed to reform. And politicians are loathe to step in based on those same stoked fears.

Can we find a way to let go of our fears and embrace the overcriminalization discussion that is truly, monumentally before us? If not, we will continue to give up on larger and larger percentages of our people, removing them from society and the opportunities to productively reenter that society later. In other words, when it comes to making our criminal justice system better, we have nothing to fear but fear itself.

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All four men entered Rikers jails as pretrial detainees (three could not pay the assessed bail, and one was remanded to custody) with serious mental health diagnoses and histories. Nevertheless, the report recounts many instances in which guards contributed to these deaths by failing to properly check on the men, being absent from their posts, allowing windows to be covered, and not following procedures.

The deaths recounted in this report are far too familiar. Given the overall condition of jails and prisons across the country, it is hard to fathom how agencies continue to get away with operating them—especially ones plagued with as much violence and bleak and intolerable conditions as Rikers Island—in the face of obvious failures to provide adequate care.

For context, the Board of Correction report acknowledged that The New York Times has described Rikers Island as New York’s largest mental institution and reported that “half the people in City custody have been diagnosed with a mental illness.” The report also noted that “All of the individuals whose deaths are covered in this report had self-reported mental health histories prior to incarceration, and some described drug use and treatment in the community.”

Incarcerated people are entitled to adequate medical and mental health care treatment. Unfortunately, as the populations in prisons and jails have exploded over decades, care and individualized attention have suffered. Even when doctors are available, missed appointments and delayed care are endemic to prison settings. In one case in this report, an EKG was rescheduled 50 times.

The report explained:

“Another concern highlighted throughout this report is the number of medical visits individuals missed while they were in DOC [Department of Corrections] custody. People often come into custody suffering from chronic diseases, mental health issues, addiction problems, or lack of access to quality care outside of confinement. This makes access to healthcare while incarcerated all the more important… In two of the cases covered in this report, a patient missed more than one medical appointment in the month prior to their deaths.”

Intolerable results of overcrowding and poor medical care are nothing new in U.S. prisons. In the Brown v. Plata decision in 2011, the U.S. Supreme Court affirmed an order requiring California to reduce the population of its prisons by up to 46,000 because overcrowding was leading to so many deaths. The opinion noted “needless suffering and death have been the well-documented result” of overcrowding. Testimony heard by the lower court also highlighted major issues in California’s prison system.

In upholding the order to reduce the population of California prisons, the Supreme Court confirmed that the Constitution cannot allow overcrowding when the results are death, infection, and inhumane conditions.

The beginning of the COVID-19 pandemic nearly a decade after the Brown v. Plata decision offered a unique opportunity to address overcrowding in prisons. Many jurisdictions reduced the number of people sent to incarceration or released people. At the federal level, a natural experiment took place in the form of the release of 13,204 individuals to home confinement under the CARES Act because they were low-risk individuals especially vulnerable to COVID-19. Three years later, only 22 of those released (less than 1% of the total number of released prisoners) had been arrested on new charges, the vast majority of which were nonviolent offenses. This proves that many individuals who are in prison could be safely released into the community and that prison space, personnel, and programming would be better devoted to those whose incarceration fulfills the purposes of sentencing.

Harms from incarceration are well-documented, and it has now been established by a comprehensive meta-analysis that, concerning reducing recidivism, there is a “null effect of custodial compared with noncustodial sanctions.” Given that incarceration does not reduce future crime, and in light of the clear dangers inherent to custodial settings, various policies should be explored to improve the system.

Divert people from confinement

People who present with mental health or substance use disorders should be diverted away from carceral settings, precisely to avoid the kinds of preventable deaths that are outlined in the New York City Board of Correction report. On top of the fact that appropriate and timely medical care is routinely lacking in American jails and prisons, it is impracticable—and improper—to put people with medical needs in non-therapeutic environments and fail to deliver standard-of-care treatment.

Hope for the federal system has emerged through President Joe Biden’s Executive Order 14074 on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety and the actions of the U.S. Sentencing Commission. The executive order included strong support for alternatives to incarceration, and the attorney general and Sentencing Commission have both taken actions to underscore the need to expand non-carceral sanctions and avoid unnecessary incarceration. 

Boost judicial and public awareness of conditions

Out of sight is out of mind. Most people, even judges and prosecutors, haven’t experienced incarceration themselves. Visiting prisons and jails is one way for judges to become more attuned to the conditions to which they are sending people when sentencing them to incarceration. Former federal district court judge Mark Bennett, now a professor, personally visited more than 400 individuals he had sentenced to incarceration while he sat on the bench. Bennett reflected at a George Washington University Law School summit in October 2023 that visiting inmates taught him “something I knew intuitively, but didn’t understand at an emotional level, and that was that these … sentences that the guidelines and the mandatory … minimums required were draconianly harsh.”

Improve conditions and wellness for incarcerated individuals and correctional staff

The conditions in America’s prisons and jails have long been notorious, and today they are marked by unprecedented staffing shortages, overcrowding, antiquated facilities, violence, and other challenges. As COVID-19 taught us, carceral facilities are porous, not closed, and are hotbeds for disease spread, including among staff who go regularly into the community.

In February, the United States Department of Justice (DOJ) Office of the Inspector General issued a report reviewing 344 inmate deaths at Federal Bureau of Prisons (BOP) institutions from 2014 through 2021. According to The New York Times, the report demonstrates that the BOP “routinely subjects prisoners to conditions that put them at heightened risk of self-harm, drug overdoses, accidents and violence.”

There is no question that poor conditions and treatment, while prevalent today, are unacceptable for not only the incarcerated individuals but also for correctional staff, whose life expectancy was found in a study to be an eye-poppingly-low 59 years. Indeed, there is a growing recognition that improving wellness for correctional staff must be an integral part of efforts to improve conditions for incarcerated people.

Conclusion

Deaths in any large system are expected, but it is unacceptable when they routinely result from neglect or worse. If a hospital had this many preventable deaths, it would not be allowed to continue to operate. It is important to ensure that we don’t permit our prisons and jails to deliver torture and undue danger of death. That is the mandate of the prohibition on cruel and unusual punishment in the U.S. Constitution, and the mark of moral governance.

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