Joe Biden campaigned openly on decarceration and reducing racial disparity in criminal justice and rehabilitation. No other presidential candidate in recent history has done so and won.
Now President Biden has the unique task of making good on promises that may appear to be “soft” on crime. It would be easy to put criminal justice reform on the back burner in the case of COVID, the economy and climate change. It would be easy to view criminal justice reform as a debt that could be paid in due course to a particular interest group– African Americans and Latinx communities– as President Trump did in describing the First Step Act. But this would be misguided given that there are Black and Brown people in this country.
And it would be especially easy for a new President — despite post-election promises to represent those who voted for him as well as those who did not– to forget the millions of disenfranchised formerly and currently incarcerated individuals who need help reintegrating into society with education, jobs and healthcare services. President Elect Biden must make this a critical element of his criminal justice reform.
The pandemic, job losses, small business closures and healthcare costs will mean that many American families and businesses will need federal assistance and some may wonder why helping the formerly incarcerated is important given the scarcity of resources. Criminal justice reform that delivers second chances and enables reintegration must be among the priorities of the transition agenda because we have committed a wrong that must be made right. It is a moral urgency based on a problem that we have helped to cause.
It is now commonly known that despite modest progress in recent years, the United States boasts one of the highest incarceration rates in the world. Although the U.S. has 5% of the world’s population, it has 25% of the world’s prison population. Consistent with the spirit of American reformation and reinvention, this is a problem that is slowly getting better. Although the incarceration rate is lower now than it was at its high point in 2009, even at the current pace of decline, it would still take 75 years to cut the prison population by half. We can’t wait that long to solve a problem we helped to create.
Make no mistake. We are complicit. And few know this better than Joe Biden who authored the 1994 Crime Bill signed by Bill Clinton. That law along with the Anti-Drug Abuse Act of 1986 signed by Ronald Reagan were the key pieces of legislation leading to the mass incarceration problem.
Over the last 10 years our nation has begun to acknowledge our own bi-partisan complicity in the U.S. incarceration rate — as well as recognize the fallacy of our reliance on “tough on crime” rhetoric. Long-overdue reforms like the readjustment of sentencing guidelines for crack cocaine, the expanded use of clemency and pardons by the executive branch to reduce the prison and supervised populations, and more recently, the First Step Act are implicit confessions that we have jailed too many people for far too many years for too little reason. State efforts to lower incarceration rates and reduce prison populations are an acknowledgment as well that locking people up is a costly salve but not a permanent solution.
Our society is slowly coming to grips with the importance of smarter sentencing and anti-crime policies. But we must also reckon with the millions of people and their family members whose lives are forever changed by our zeal for imprisonment.
And we should not be lulled into mistakenly equating punitiveness with lower crime rates, as we have been in the past. Even as the crime rate declined over the last 30 years, the incarceration rate continued to climb steadily. Higher incarceration rates cannot be credited with a reduced crime rate. Nor has a reduction in imprisonment led to an increase in crime. The rhetoric of tough on crime policies to ensure public safety has fallen flat.
While most persons convicted of crimes have made grave mistakes and must take responsibility for their actions, our over-reaching sentencing regime has been our mistake and we too must take responsibility. The opportunity for true reintegration into society is a debt we owe to former offenders.
Society has more to gain than to lose by reintegrating formerly incarcerated individuals. There are countervailing public safety concerns on both sides of the issue. Reducing recidivism would do more for public safety than increasing sentences. Recidivism rates are very difficult to ascertain because recidivism is measured differently in various states and in the federal government. But the two most prominent studies conducted by the Bureau of Justice Statistics show that approximately 47% released prisoners are arrested and convicted of another crime within 3 years of release. That number could be reduced significantly if formerly incarcerated people received rehabilitative support in the form of treatment, housing, training and employment. A meta-analysis of recidivism showed that doubling down on punitive approaches like boot camps, strict supervision and the threat of reincarceration do not work to reduce recidivism while rehabilitation does.
The Biden-Harris administration should be held to their campaign promise to “offer second chances” as part of a plan “to create a more just society, and make our communities safer.” The stakes are high– for those of us who face the challenges of rejoining a society that sought to discard us and those of us charged with rebuilding a better society with the contributions and talents of all of us.
Margareth Etienne is a criminal law professor and serves as the Associate Dean and the Nancy Snowden Research Scholar at the University of Illinois College of Law. She is a former criminal defense attorney and a Public Voices Fellow of The OpEd Project.