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The writer, a former Home Office special adviser and Director of HM Courts & Tribunal Service, is a strategy consultant in Washington DC
The US locks up more criminals than any other developed country by some distance. Yet a surprising new consensus has emerged in recent years, spanning the country’s political divide and reversing the notion that prisons exist solely to cut crime. America is now an unlikely example of justice reform.
It’s a far cry from the 1990s, when Democrats and Republicans competed to outbid each other, promising increasingly punitive measures against violent and drug-related crime. Almost a million more people were in prison in 2008 compared with 20 years before as a result. In the past 15 years, however, a bipartisan approach to punishment has been forged, even as American politics has become much more polarised. And it has been conservative Republicans — traditionally the party of law and order — that have played an essential role in shifting attitudes.
Spearheaded by a coalition of evangelical Christians with a faith in redemption and fiscal hawks concerned at spiralling costs and distrustful of government over-reach, it was the red state of Texas that led the way, introducing a package of reforms to invest in alternatives to prison in 2007. These included probation and drug treatment programmes.
For supporters of such reforms, a “justice reinvestment” policy was a more efficient way of spending taxpayers’ cash than building new prisons and warehousing large numbers of people behind bars. “What happened in Texas was all about government efficiency and applying the same lens of scepticism about large government programmes and the need for a fair return on investment that is applied to other publicly-funded services,” says Marc Levin, who, as senior adviser to the campaign group Right on Crime, worked on the Texas plan and is now chief policy counsel at the Council on Criminal Justice think-tank.
This proved attractive to other Republican leaders who followed suit in their own states with measures to reverse what had seemed to be an inexorable rise in prison numbers. When this happened in concert with Democrat-run states — often driven by concern about the disproportionate numbers of Black prisoners in custody — the mass incarceration tide in the US began to turn.
This trend was given a further push by Donald Trump who, in his first term as president, signed into law the groundbreaking First Step Act. This reduced lengthy sentences for non-violent drug offences and established incentives for prisoners completing rehabilitation programmes to seek early release from federal prisons.
These reforms have had a powerful impact. After an extraordinary eightfold increase in the prison population between 1972 and 2008, peaking at more than 1.6mn prisoners, custody numbers have fallen in the past 15 years. Today, there are almost a quarter fewer people in custody. In particular parts of the system the decline has been even more dramatic. New York and New Jersey have reduced their prison populations by more than 50 per cent, and the number of juveniles held in secure facilities nationwide has fallen by three quarters. Tellingly, this has coincided with a significant reduction in crime.
Other countries are taking note. The US experience is garnering interest in the UK, where policymakers are keen to find politically palatable ways to limit the continuing upward rise in prison numbers. David Gauke, a former Conservative justice secretary, is heading the Labour government’s independent review of sentencing and is due to visit Texas this month.
For some, however, America has considerably further to go before it can be seen as an exemplar of a new approach. “The US remains a country with one of the highest incarceration rates in the world with a prison population today still more than five times higher than it was 50 years ago,” says Marta Nelson, director of sentencing reform at the Vera Institute, a criminal justice think-tank and advocacy group. “More needs to be done and it’s vital that we don’t lose the momentum for reform.”
There are also concerns that a second Trump presidency might seek to row back on the reforms of the past 15 years. Crime rose during the Covid pandemic and public concern about law and order, according to opinion polls, played an important part in Trump’s latest victory.
With the costs of incarceration running into tens of billions of dollars a year, Elon Musk’s Department of Government Efficiency, tasked with finding federal cost savings, should see “justice reinvestment” as money well spent.
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