For more than a decade, I have worked to reduce the severity of criminal punishment in the U.S. I have worked with allies across the political spectrum to cut lengthy prison sentences because they impose enormous costs on communities and families and have minimal impact on crime. However, during my years in the criminal justice reform movement, I have come to believe that merely ratcheting back punishment severity–without simultaneously increasing the probability of punishment for people who commit crimes–is both bad policy and bad politics. The results from this month’s District Attorney recall election in San Francisco demonstrate that attacking mass incarceration without a credible strategy for controlling crime and disorder is a recipe for political backlash. It’s time for a new approach.
A recent Gallup poll reported eight out of 10 Americans have at least some degree of concern about crime. There is indeed a lot of crime, so this concern is not unfounded. One study found more than 120 million crimes were committed in the U.S. in 2017 alone, including 24 million violent crimes. What’s more, most crimes committed in the U.S. go unpunished. In 2019, less than half of all violent crimes reported to police resulted in an arrest, and fewer than one in five for property crimes.
The high crime rate is at least partly due to a critical design flaw in criminal justice policy. U.S. public safety strategy has long been rooted in the hope that threats of severe sanctions will deter crime. But enforcement resources are limited, and would-be offenders know it’s impossible to follow through on those threats consistently, so they have little incentive to not commit a crime. Lawmakers respond by making already harsh sentences even more severe, hoping that this time criminals will get the message. Of course, they never do. Even if criminals know a penalty is severe–and they often don’t–it doesn’t matter if they assume they will get away with it. This decades-long cycle has resulted in intolerable levels of crime and a prison population that dwarfs those of every other wealthy democracy.
Meaningful decarceration will not be easy or quick, and it will require difficult tradeoffs. Most importantly, strong and consistent evidence suggests policies that emphasize certain punishments will deter crime in ways that randomly imposed severe penalties can’t. The key is to create credible threats that criminal behavior will be punished. Doing so will result in fewer crimes committed, and therefore fewer necessary punishments.
Unfortunately, the infrastructure for certainty-based criminal justice doesn’t exist at the scale necessary to implement it effectively. As a result, elected officials must decide between maintaining the inefficient and cruel status quo, or giving up on crime control altogether. For the enormous majority, choosing the former is trivially easy. Many lawmakers want to reduce the prison population, but the number who support decarceration at the expense of public safety could be counted on one hand.
The U.S. should build a certainty-based accountability infrastructure sufficient to raise the perceived cost of committing a crime by signaling that would-be criminals are very likely to be caught. This means investing in police and improving police effectiveness; expanding DNA databases and using DNA to investigate property crimes; incorporating location monitoring in supervised release, and improving probation and parole compliance through swift and certain sanctions. It also means identifying inefficiencies and practices that hamper effective administration and create additional costs.
Certainty-based criminal justice comes with its own potential costs. For example, more police officers on the street could lead to more low-level arrests. And effective supervision necessarily involves restrictions on the liberty and privacy of people under supervision. But these costs pale in comparison to the staggering tolls of violence and incarceration, which fall disproportionately on poor and minority neighborhoods nationwide.
Americans want the government to prevent crime and hold criminals accountable with consistency and fairness. Our modern criminal justice system fails on both counts. Still, decarceration untethered to earnest efforts to protect public safety will not only fail to fix the problem, but also risks creating a political climate favorable to the kinds of policies that led to mass incarceration in the first place. To avoid that tragic outcome, lawmakers should commit to policies that promote prevention, deterrence, and certain accountability. The result will be less crime, less punishment, and more justice.