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The tide is turning – at last there’s progress on criminal justice in the USA

Penelope Gibbs
28 Apr 2019

In the UK our prison population doubled in twenty years and became the highest in Western Europe. It has not fallen significantly in the last five years. We have comforted ourselves that our levels of imprisonment are at least not as high as in the USA, where 2.3 million people are imprisoned – for every 100,000 people residing in the United States, 655 are behind bars at any one time. The USA still imprisons its population at an extraordinarily high rate, but the tide is turning. I have been in the States twice in the last month and every campaigner I met agreed that there has been significant progress both in individual States (each of which deals with the majority of criminal cases under legislation particular to that state) and in the national Federal government, which only deals with the most serious crimes. What is happening:

  • Philanthropy money is pouring into criminal justice reform, from both right and left leaning sources, funding established players like the ACLU (the American Civil Liberties Union) and totally new programmes and organisations like Forward.
  • States are abandoning or reforming the system of cash bail. This system has meant that defendants (despite innocent until proven guilty) can only get out of jail pre-trial if they can afford to pay a bail bond. The system penalises the poor who cannot afford to “buy” their freedom. Strategic litigation and campaigning have led to change, though there is a long way to go.
  • Many individual states have significantly reformed sentencing legislation, parole practice and the way they deal with breach (a major driver to imprisonment), in an attempt to reduce their own prison populations. Since 2007 35 states have reformed their criminal justice policies, including some which had been the keenest to imprison – Texas, Georgia, Mississippi, Louisiana.
  • The numbers imprisoned by individual states has gone down significantly – by 11% in total since the reforms began.
  • Imprisonment by the national government federal courts) has gone down too – by 15% since 2013, and the first progressive federal criminal justice legislation for fifteen years passed last year – I’ll explain how the First Step Act got through in a future blog.

So why has the tide turned? When I was in Washington DC last week the advocates I met had a range of explanations:

  • The USA had reached rock bottom in terms of its use of imprisonment. The situation was so bad, it could only improve.
  • The right, who had traditionally been tough on crime, began to buy in to reform persuaded by well framed advocacy – the “right on crime” movement – and by the cost argument. It was simply costing each state too much to imprison and supervise so many people.
  • Friends and family of those imprisoned broke through the indifference. After fifteen years of imprisoning such a high proportion of the population, nearly everyone had a close relative or friend who had been to prison, including middle class people. Though black and working class people were disproportionately affected by imprisonment, thousands and thousands of middle class people were also caught in the net. Their friends and relations then understood the injustice of the system and advocated, actively or passively, for change.
  • Well publicised incidents of police brutality to black people sowed seeds of doubt about the whole criminal justice system.  The shooting of an 18 year old black boy – Michael Brown – in Ferguson, Missouri, in 2014  fuelled local riots, public outrage and the Black Lives Matter movement.
  • The scandal of the criminal justice system inspired art and popular culture, including the best- selling book “the new Jim Crow” and the documentary “13th”.

Advocates feel there was no pivotal event which, on its own, prompted a change of heart, but that the tide gradually starting turning around five years ago. Campaigners had been doggedly, persistently advocating for change for many years before that.

In Washington DC there was hope and optimism in the air amongst all criminal justice campaigners. They know there is a very long way to go before the US stops being a pariah state for imprisonment. But they can see light at the end of the tunnel. One indication is that many of the candidates for the Democratic nomination for the presidency are espousing criminal justice reform and calling for more. Senator Cory Booker addressed a black civil rights convention last week: “We are dealing with systematic injustice in this country…What will happen to the dream of America on our watch? The dream of slaves for freedom? The dreams of suffragettes…what will become the dream of our nation?” No-one in this Democratic nomination race is calling for the US to be tougher on crime, unlike Bill Clinton in 1982.

The US system is still so much worse than ours in a myriad of ways, but the spirit of reform is alive, and prison numbers falling. Prison is a dead end. I only hope our politicians will follow the lead of many in the States by publicly espousing policies which would reduce imprisonment.