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Criminal Justice Reform Is More than Fixing Sentencing

Experts explain how we got here and solutions that will benefit everyone.

• Changing Incentives
• Cutting Jail & Prison Populations

A single criminal conviction bars a person for life from calling a bingo game in New York State. Before you chuckle at this gratuitous prohibition, take a second to appreciate the wider context: this is one of 27,000 (!) rules nationwide barring people with criminal records from obtaining a professional license. Conviction of a crime excludes people from holding jobs from real estate appraiser to massage therapist.

In our work to end mass incarceration, the Brennan Center has focused on the length of prison sentences. As our studies have shown, 39 percent of those in prison are there without a current public safety rationale. But the reach of our criminal justice system — its inefficiencies and its unfairness — extends far beyond the time an individual is incarcerated.

We all have a stake, for example, in making sure that a person leaving prison can reintegrate into society. Instead, we throw up barriers. Getting a job, even one that does not require a professional license, becomes extremely challenging. Studies show that a criminal conviction reduces the likelihood of getting a job callback by 50 percent for a white applicant and nearly two-thirds for a black applicant. These long odds have serious consequences. Finding work is the keystone to getting housing, becoming a contributing family member, and living an independent life.

Since many people are convicted of crimes when young, the negative effects reverberate for decades. The annual reduction in income that accompanies a criminal conviction rises from $7,000 initially to over $20,000 later in life.

Today crime is rising. Public safety must be a paramount goal. When violence cascades, it affects and hurts poor and marginalized communities most. As Alvin Bragg, the new Manhattan district attorney, put it so well, “The two goals of justice and safety are not opposed to each other. They are inextricably linked.” 

Progress toward criminal justice reform was made possible, in part, by the fact that crime rates were falling for decades. Now, rising crime again creates the conditions where demagogic politics and unwise policies can recur — with potentially crushing social, economic, and racial consequences. So we need to think anew, to make sure that the reaction to rising crime does not provoke a policy response that produces neither safety nor fairness.  

A year ago, the Brennan Center set out to broaden the national discussion about criminal justice reform. Since then, through our Punitive Excess series , we have published 25 essays by diverse authors ranging from scholars to formerly incarcerated people. The ill-considered collateral consequences of criminal conviction is just one of many topics, which also include perverse financial incentives in the system, inhumane prison conditions, racism, the treatment of child offenders, and more. 

It is a trove of analysis and scholarship that deserves your attention. Today we published the concluding essay , which surveys the damage from heavy-handed tactics and offers alternatives that empower communities. We also released a new video exploring the problems caused by excessive punishment. I hope you will read, view, and share widely. 

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Reflections on Criminal Justice Reform: Challenges and Opportunities

Pamela k. lattimore.

RTI International, 3040 East Cornwallis Road, Research Triangle Park, NC 27703 USA

Associated Data

Data are cited from a variety of sources. Much of the BJS data cited are available from the National Archive of Criminal Justice Data, Interuniversity Consortium for Political and Social Research. The SVORI data and the Second Chance Act AORDP data are also available from NACJD.

Considerable efforts and resources have been expended to enact reforms to the criminal justice system over the last five decades. Concerns about dramatic increases in violent crime beginning in the late Sixties and accelerating into the 1980s led to the “War on Drugs” and the “War on Crime” that included implementation of more punitive policies and dramatic increases in incarceration and community supervision. More recent reform efforts have focused on strategies to reduce the negative impacts of policing, the disparate impacts of pretrial practices, and better strategies for reducing criminal behavior. Renewed interest in strategies and interventions to reduce criminal behavior has coincided with a focus on identifying “what works.” Recent increases in violence have shifted the national dialog from a focus on progressive reforms to reduce reliance on punitive measures and the disparate impact of the legal system on some groups to a focus on increased investment in “tough on crime” criminal justice approaches. This essay offers some reflections on the “Waged Wars” and the efforts to identify “What Works” based on nearly 40 years of work evaluating criminal justice reform efforts.

The last fifty-plus years have seen considerable efforts and resources expended to enact reforms to the criminal justice system. Some of the earliest reforms of this era were driven by dramatic increases in violence leading to more punitive policies. More recently, reform efforts have focused on strategies to reduce the negative impacts of policing, the disparate impacts of pretrial practices, and better strategies for reducing criminal behavior. Renewed interest in strategies and interventions to reduce criminal behavior has coincided with a focus on identifying “what works.” Recent increases in violence have shifted the national dialog about reform. The shift may be due to the disruptions caused by the COVID-19 epidemic or concerns about the United States returning to the escalating rise in violence and homicide in the 1980s and 1990s. Whichever proves true, the current rise of violence, at a minimum, has changed the tenor of policymaker discussions, from a focus on progressive reforms to reduce reliance on punitive measures and the disparate impact of the legal system on some groups to a focus on increased investment in “tough on crime” criminal justice approaches.

It is, then, an interesting time for those concerned about justice in America. Countervailing forces are at play that have generated a consistent call for reform, but with profound differences in views about what reform should entail. The impetus for reform is myriad: Concerns about the deaths of Black Americans by law enforcement agencies and officers who may employ excessive use of force with minorities; pressures to reduce pretrial incarceration that results in crowded jails and detention of those who have not been found guilty; prison incarcerations rates that remain the highest in the Western world; millions of individuals who live under community supervision and the burden of fees and fines that they will never be able to pay; and, in the aftermath of the worst pandemic in more than a century, increasing violence, particularly homicides and gun violence. This last change has led to fear and demands for action from communities under threat, but it exists alongside of other changes that point to the need for progressive changes rather than reversion to, or greater investment in, get-tough policies.

How did we get here? What have we learned from more than 50 years of efforts at reform? How can we do better? In this essay, I offer some reflections based on my nearly 40 years of evaluating criminal justice reform efforts. 1

Part I: Waging “War”

The landscape of criminal justice reform sits at the intersection of criminal behavior and legal system response. Perceptions of crime drive policy responses. Perceptions of those responsible for crime also drive responses. And perceptions of those responses result in demands for change. To establish context for the observations that follow, this section describes trends in crime, the population of justice-involved individuals, and the expenditures supporting the sprawling criminal justice enterprise in the United States since the mid-to-late twentieth century.

But first, my perspective: Over the last nearly 40 years, I have observed justice system reform efforts since working, while a first-year graduate student in 1983, on a National Institute of Justice (NIJ) grant that funded a randomized control trial of what would now be termed a reentry program (Lattimore et al., 1990 ). After graduate school, I spent 10 years at NIJ, where I was exposed to policy making and the relevance of research for both policy and practice. I taught for several years at a university. And, for most of my career, I have been in the trenches at a not-for-profit social science research firm. Throughout my career, I have conducted research and evaluation on a broad array of topics and have spent most of my time contemplating the challenges of reform. I’ve evaluated single programs, large federal initiatives, and efforts by philanthropies to effect reform. I’ve used administrative data to model criminal recidivism to address—to the degree statistical methods allow—various dimensions of recidivism (type, frequency, and seriousness). I’ve developed recidivism models for the practical purpose of assessing risk for those on community supervision and to explore the effects of covariates and interventions on recidivism and other outcomes. I’ve participated in research attempting to understand the shortcomings of and potential biases in justice data and the models that must necessarily use those data. While most of my work has focused on community corrections (e.g., probation and post-release interventions and behavior) and reentry, I have studied jail diversion programs, jail and pretrial reform, and efforts focused on criminal record expungement. These experiences have illuminated for me that punitiveness is built into the American criminal justice system—a punitiveness that traps many people from the time they are first arrested until they die.

Crime and Correctional Population Trends

The 1960s witnessed a dramatic rise in crime in the United States, and led to the so-called “War on Crime,” the “War on Drugs,” and a variety of policy responses, culminating with the passage of the Violent Offender Incarceration and Truth-in-Sentencing Act of 1994 (“The 1994 Crime Act”; Pub. L. 103–322). Figure  1 shows the violent crime rate in the United States from 1960 to 1994. 2 In 1960, the violent crime rate in the United States was 161 per 100,000 people; by 1994 the rate had increased more than four-fold to nearly 714 per 100,000. 3 As can be seen, the linear trend was highly explanatory (R-square = 0.96)—however, there were two obvious downturns in the trend line—between 1980 and 1985 and, perhaps, between 1991 and 1994.

US Violent Crime Rate, 1960–1994

Homicides followed a similar pattern. Figure  2 shows the number of homicides each year between 1960 and 1994. In 12 years (1960 to 1972), the number of homicides doubled from 9,100 to 18,670. By 1994, the number had grown to 23,330—but it is worth noting that there were multiple downturns over this period, including a drop of more than 4,000 between 1980 and 1984. These figures show the backdrop to the “War on Drugs” and the “War on Crime” that led reformers to call for more punitive sentencing, including mandatory minimum sentences, “three-strikes laws” that mandated long sentences for repeat offenders, and truth-in-sentencing statutes that required individuals to serve most of their sentences before being eligible for release. This was also the period when the 1966 Bail Reform Act, which sought to reduce pretrial detention through the offer of money bond, was supplanted in 1984 by the Pretrial Reform Act, which once again led to increased reliance on pretrial detention.

United States Murder and Non-negligent Manslaughter Rate, 1960–1994

The 1994 Crime Act, enacted during the Clinton Administration, continued the tough-on-crime era by enabling more incarceration and longer periods of incarceration that resulted in large increases in correctional populations. In particular, the Violent Offender Incarceration and Truth-in-Sentencing (VOI/TIS) Incentive Grant Program, funded by the Act, provided $3 billion to states to expand their jail and prisons capacities between FY1996 and FY2001 and to encourage states to eliminate indeterminate sentencing in favor of laws that required individuals to serve at least 85% of their imposed sentences.

Figure  3 shows the dramatic rise in the number of state and federal prisoners prior to passage of the 1994 Crime Act—the number of prisoners more than tripled between 1980 and 1994. 4 The increase in numbers of prisoners was not due to shifts from jail to prison or from probation to prison, given that all correctional populations increased dramatically over this 14-year period—jail populations increased 164% (183,988 to 486,474), probation increased 166% (1,118,097 to 2,981,022), and parole increased 213% (220,438 to 690,371).

State and Federal Prisoners in the US, 1960–1994

So, what happened after passage of the 1994 Crime Act? Fig.  4 shows the violent crime rate from 1960 through 2020. As can be seen, the decrease in the violent crime rate that began prior to passage of the 1994 Crime Act continued. And, notably, it preceded the influx of federal funding to put more police on the streets, build more jails and prisons, and place more individuals into the custody of local, state, and federal correctional agencies. Even with a small increase between 2019 and 2020, the violent crime rate in 2020 was 398.5 per 100,000 individuals, well below its 1991 peak of 758.2. 5

United States Violent Crime Rate (violent crimes per 100,000 population), 1960–2020

Figure  5 shows the US homicide rate from 1960 to 2020. Consistent with the overall violent crime rate, the homicide rate in 2020 remained well below the peak of 10.2 that occurred in 1981. (Rates also may have risen in 2021—as evidenced by reports of large increases in major U.S. cities—but an official report of the 2021 number and rate for the U.S. was not available as of the time of this writing.) The rise in this rate from 2019 to 2020 was more than 27%— worthy of attention and concern. It represents the largest year-over-year increase between 1960 and 2020. However, there have been other years where the rate increased about 10% (1966, 1967, 1968, 2015, and 2016), only then to drop back in subsequent years. Further, it is difficult to determine whether the COVID-19 pandemic, which has caused massive disruptions, is a factor in the increase in homicides or to know whether the homicide rate will abate as the pandemic ebbs. Finally, it bears emphasizing that during this 60-year period there have been years when the homicide rate fell by nearly 10% (e.g., 1996, 1999). From a policy perspective, it seems prudent to be responsive to increases in crime but also not to over-react to one or two years of data—particularly during times of considerable upheaval.

United States Murder and Nonnegligent Manslaughter Rate, 1960–2020

The growth in correctional populations, including prisoners, that began in the 1970s continued well into the twenty-first century—in other words, long after the crime rate began to abate in 1992. Figure  6 shows the prison population and total correctional population (state and federal prison plus jail, probation, and parole populations summed) between 1980 and 2020. Both trends peaked in 2009 at 1,615,500 prisoners and 7,405,209 incarcerated or on supervision. Year-over-year decreases, however, have been modest (Fig.  7 ), averaging about 1% (ignoring the steep decline between 2019 and 2020). The impact of factors associated with COVID-19, including policy and practice responses, resulted in a 15% decrease in the numbers of state and federal prisoners and a 14% decrease in the total number of adults under correctional control. Based on ongoing projects in pretrial and probation, as well as anecdotal evidence related to court closures and subsequent backlogs, it is reasonable to assume that some, if not most, of the decline in populations in 2020 was due to releases that exceeded new admissions as individuals completed their sentences and delays in court processing reduced new admissions. To the extent that these factors played a role, it is likely that in the immediate near term, we will see numbers rebound to values closer to what prevailed in 2019.

United States Prison and Total Correctional Populations, 1980–2020

Year-over-Year Change in Prison and Total Correctional Populations, 2981–2020

Responding with Toughness (and Dollars)

The increase in crime beginning in the 1960s led to a political demand for a punitive response emphasized by Richard Nixon’s “War on Crime” and “War on Drugs.” In 1970, Congress passed four anticrime bills that revised Federal drug laws and penalties, addressed evidence gathering against organized crime, authorized preventive detention and “no-knock” warrants, and provided $3.5 billion to state and local law enforcement. 6 Subsequent administrations continued these efforts, punctuated by the Crime Act of 1994. As described by the U.S. Department of Justice:

The Violent Crime Control and Law Enforcement Act of 1994 … is the largest crime bill in the history of the country and will provide for 100,000 new police officers, $9.7 billion in funding for prisons and $6.1 billion in funding for prevention programs …. The Crime Bill provides $2.6 billion in additional funding for the FBI, DEA, INS, United States Attorneys, and other Justice Department components, as well as the Federal courts and the Treasury Department. 7

Much of the funding went to state and local agencies to encourage the adoption of mandatory minimum sentences, “three strikes” laws, and to hire 100,000 police officers and build prisons and jails. This funding was intended to steer the highly decentralized United States criminal justice “system” towards a more punitive approach to crime; this system encompasses all levels of government (local, state, and federal) and all branches of government (executive, judicial, legislative).

The nation’s crime rate peaked in 1992. So, this “largest crime bill in the history of the country” began a dramatic increase in funding for justice expenditures just as crime had already begun to decline. Figure  8 shows that expenditures increased roughly 50% in real dollars between 1997 and 2017—from $188 billion to more than $300 billion dollars (Buehler,  2021 ). 8 More than half of that increase-—$65.4 billion additional—went to police protection. Roughly $50 billion additional went to the judiciary and corrections.

United States Justice Expenditures, 1997–2017

So, what did these increases buy? Dramatically declining crime rates (Figs. ​ (Figs.4 4 and ​ and5) 5 ) suggest that numbers of crimes also declined. That can be seen in Fig.  9 , which shows offenses known and an estimate of offenses cleared for selected years between 1980 and 2019. 9 In 1991, there were 11,651,612 known property offenses and 1,682,487 known violent offenses—these numbers declined 47% and 34% by 2019.

Offenses Known and Cleared in the US, Selected Years 1980–2019

Declining numbers of crimes and dramatic increases in expenditures on policing and justice system operation would suggest that there should have been improvements in offense clearance rates during this time. This did not happen. Crime clearance rates stayed roughly constant, which means that the numbers of offenses cleared declined by percentages like declines in the number of offenses over this period—49% for property offenses and 33% for violent offenses. More than 750,000 violent offenses and more than 2 million property offenses were cleared in 1991 compared to about 500,000 violent offenses and 1 million property offenses in 2019.

Presently, as violent crime ticks up, we are hearing renewed calls for “tough-on-crime” measures. Some opinion writers have compared 2022 to Nixon’s era. Kevin Boyle noted:

[Nixon] already had his core message set in the early days of his 1968 campaign. In a February speech in New Hampshire, he said: “When a nation with the greatest tradition of the rule of law is torn apart by lawlessness, when a nation which has been the symbol of equality of opportunity is torn apart by racial strife … then I say it’s time for new leadership in the United States of America.” There it is: the fusion of crime, race and fear that Nixon believed would carry him to the presidency. 10

Responding to the recent increase in violent crime, President Joseph Biden proposed the Safer America Plan to provide $37 billion “to support law enforcement and crime prevention.” 11 The Plan includes more than $12 billion in funds for 100,000 additional police officers through the Community Oriented Policing Services (COPS) program. This proposal echoes the “100,000 cops on the street” that was a centerpiece of the 1994 Crime Act, which created the COPS office and program. Unlike the 1994 Crime Act, however, the Safer America Plan does not include funding for prisons and jails. Both the 1994 Crime Act and the Safer America Plan address gun violence, strengthen penalties for drug offenses, and provide support for programs and interventions to make communities safer and to address criminal recidivism.

The previous 50 or 60 years witnessed reforms efforts other than these that largely focused on bolstering the justice system infrastructure. The 1966 Bail Reform Act sought to reduce pretrial detention through the offer of money bond, but subsequently was supplanted by the 1984 Pretrial Reform Act that once again promoted pretrial detention. 12 This century—as jail populations exceeded 700,000, with most held prior to conviction—there has been considerable attention to eliminate money bond, which disproportionately leads to pretrial detention for poor and marginalized individuals (and release for the “well-heeled”). Private philanthropy has led much of this focus on pretrial and bail reform. For example, the MacArthur Foundation has spent several hundred million dollars on their Safety and Justice Challenge since 2015 with a goal of reducing jail populations and eliminating racial and ethnic disparity. 13 The Laura and John Arnold Foundation (LJAF) took a different approach and has invested substantial sums in the development and validation of a pretrial assessment instrument (the Public Safety Assessment or PSA) that provides assessments of the likelihood an individual will fail to appear to court or be arrested for a new crime or new violent crime if released while awaiting trial. 14 Although assessment algorithms have been criticized for lack of transparency and for perpetuating racial bias, the PSA scoring algorithm is publicly available and has not shown evidence of racial bias in a series of local validations conducted by RTI for LJAF. New York and New Jersey are among the states that have attempted to reduce reliance on money bond. However, as violent crime has increased, these efforts have faced considerable pushback.

The bail bonds industry has been a vocal opponent of efforts to reduce or eliminate the use of money bond. This industry is not the only one that profits from the imposition of punishment. As Page and Soss ( 2021 ) recently reported, “Over the past 35 years, public and private actors have turned US criminal justice institutions into a vast network of revenue-generating operations. Today, practices such as fines, fees, forfeitures, prison charges, and bail premiums transfer billions of dollars from oppressed communities to governments and corporations.” Fines, fees, and forfeitures generally profit the governments and agencies that impose them—although supervision fees to private probation services benefit businesses, as do fees for electronic monitoring, and drug testing. The Prison Policy Institute reports that there are more than 4,000 companies that profit from mass incarceration. 15 Court and supervision fees can quickly add up to hundreds or even thousands of dollars, burdening people with crushing debt and the threat of jail if they don’t pay. 16 There can be other consequences as well. After Florida passed a constitutional amendment to restore voting rights to individuals once they had completed their carceral or community sentence, the State specified that the right to vote would not be restored until an individual had paid all outstanding fees and fines. In addition, mistakenly voting with outstanding fees and fines is a felony. 17

Other work to reform pretrial justice includes early provision of defense counsel, and implementation of diversion programs for individuals charged with low-level offenses or who have behavioral health issues. The sixth amendment to the United States Constitution guarantees criminal defendants in the United States a right to counsel. In some jurisdictions (and the Federal court system), this is the responsibility of an office of public defense. In others, private defense counsel is appointed by the Court. Regardless, public defense is widely understood to be poorly funded. As noted by Arnold Ventures, a philanthropy currently working to improve access to defense, “The resulting system is fragmented and underfunded; lacks quality control and oversight; and fails to safeguard the rights of the vast majority of people charged with crimes who are represented by public defenders or indigent counsel.” 18

Mental health problems are prevalent among individuals incarcerated in local jails and prisons. The Bureau of Justice Statistics, in a report by Bronson and Berzofsky ( 2017 ), reported that “prisoners and jail inmates were three to five times as likely to have met the threshold for SPD [serious psychological distress] as adults in the general U.S. population.” Bronson and Berzofsky further reported that 44% of individuals in jail reported being told they had a mental disorder. The Substance Abuse and Mental Health Administration’s GAINS Center has been at the forefront of efforts to implement jail diversion programs for individuals with mental health or substance use disorders and has also played a significant role in the establishment of treatment courts. 19 Crisis Intervention Training (CIT) for law enforcement to improve interaction outcomes between law enforcement and individuals in crisis. The National Alliance on Mental Illness (NAMI) notes that “The lack of mental health crisis services across the U.S. has resulted in law enforcement officers serving as first responders to most crises. A Crisis Intervention Team (CIT) program is an innovative, community-based approach to improve the outcomes of these encounters.” 20 Non-law enforcement responses—such as the CAHOOTS program that was developed in Eugene, Oregon—to certain calls for service are also being tested in multiple communities. 21 Despite multiple efforts to identify appropriate alternatives to jail, individuals with mental health disorders continue to disproportionately fill the nation’s jails.

A Recapitulation

The 1970 crime bills that passed early in Nixon’s presidency set the stage for the infusion of federal dollars that has provided billions of dollars in funding for police and prisons. Between 1970 and 1994, the number of adults in state and federal prisons in the United States increased from less than 200,000 to nearly 1 million. In 2019, that number stood at more than 1.4 million down from its peak in 2009. Another 734,500 individuals were in jail and more than 4.3 million were in the community on probation or parole. Although representing a dramatic decline since these populations peaked about 2009, this still means that more than 6 million adults were under the supervision of federal, state, and local corrections agencies in 2019.

Thus, it is important to recognize that we are at a very different place from the Nixon era. Today, the numbers (and rates) of individuals who are “justice-involved” remain at near record highs. As the progressive efforts of the twenty-first century encounter headwinds, it is worth waving a caution flag as the “remedies” of the twentieth century—more police, “stop and frisk,” increased pretrial detention—are once again being proposed to address violent crime.

Part II: Finding “What Works”

The 1994 Crime Act and subsequent reauthorizations also included funding for a variety of programs, including drug courts, prison drug treatment programs, and other programs focused on facilitating reentry and reducing criminal recidivism. Subsequent legislation authorized other Federal investments that resurrected rehabilitation as a goal of correctional policy. The Serious and Violent Offender Reentry Initiative (SVORI) provided $100 million (and some limited supplements) to agencies to develop programs that began in prison and continued into the community and were intended to improve outcomes across a range of domains—community reintegration, employment, family, health (including mental health), housing, substance abuse, supervision compliance and, of course, recidivism (see Lattimore et al., 2005b ; Winterfield et al., 2006 ; Lattimore & Visher, 2013 , 2021 ; Visher et al., 2017 ). Congress did not reauthorize SVORI but instead authorized the Prisoner Reentry Initiative (PRI) managed by the U.S. Department of Labor; PRI (now the Reintegration of Ex-Offenders or RExO program) provides funding for employment-focused programs for non-violent offenders. In 2006, a third reentry-focused initiative was funded—the Marriage and Incarceration Initiative was managed by the Department of Health and Human Services and focused on strengthening marriage and families for male correctional populations. In 2008, Congress passed the Second Chance Act (SCA) to provide grants for prison and jail reentry programs. The SCA grant program administered by the Bureau of Justice Assistance (BJA) was reauthorized in 2018; it continues to provide reentry grants to state and local agencies (see Lindquist et al., 2021 ). These initiatives all primarily focused on supporting efforts at the state and local level. The First Step Act of 2018 focused on reforms for the federal prison system. These efforts signified a substantial increase in efforts aimed at determining “what works” to reduce criminal behavior—and provided an opportunity to rebut the “nothing works” in correctional programming that followed the publication of research by Lipton ( 1975 ).

Elsewhere, I have summarized some of the research into Federal initiatives that I have conducted over the years (Lattimore, 2020 ). These studies comprise work in dozens of states, involving thousands of individuals and have included studies of drug treatment, jail diversion, jail and prison reentry, and probation. Some involved evaluation of a substantial Federal investment, such as the multi-site evaluation of SVORI.

These evaluations, as has been largely true of those conducted by others, have produced mixed results. Systematic reviews and meta-analyses focusing on the effectiveness of adult correctional programming have yielded findings of modest or negligible effects (e.g., Aos et al., 2006 ; Bitney et al., 2017 ; Lipsey & Cullen, 2007 ; MacKenzie, 2006 ; Sherman, et al., 1997 ). In an updated inventory of research- and evidence-based adult programming, the Washington State Institute for Public Policy (Wanner, 2018 ) identified a variety of programs for which evidence suggests significant if modest effect sizes. As has been identified by others (e.g., MacKenzie, 2006 ), the most effective programs focused on individual change, including, for example, cognitive behavior therapy (estimated effect size of -0.11). Treatment-oriented intensive supervision programs were found to reduce recidivism by about 15%, while surveillance-oriented intensive supervision was found to have no demonstrated effects. Several types of work and educational programs (correctional industries, basic adult education, prison-based vocational education, and job training and assistance in the community) were found to reduce recidivism between 5 and 22%. Most non-zero treatment effect sizes were between about 5% and 15%. Lipsey and Cullen ( 2007 ) also suggest 14% to 22% reductions in recidivism for adult rehabilitation treatment programs.

Two thoughts about these small effects warrant consideration. The first, of course, is why reducing criminal behavior appears to be so difficult. Second, however, is that, in recognizing the first, perhaps we should adapt more realistic expectations about what can be achieved and acknowledge that even small effects can have a meaningful impact on public safety.

Challenges: Why Is Effective Criminal Justice Reform So Difficult?

One issue with most federal funding streams is “short timelines.” For example, typical of grant programs of this type, SVORI grantees were given three years of funding. During this time, they had to develop a programmatic strategy, establish interagency working arrangements, identify program and service providers, develop a strategy for identifying potential participants, and implement their programs. Three years is a very short time to develop a program that incorporates needs assessment, provides a multiplicity of services and programs within an institution, and creates a path for continuation of services as individuals are released to various communities across a state.

The “short timelines” problem underlies, and contributes to, a variety of other considerations that can plague efforts to identify “what works.” Based on my experiences, these considerations, which I discuss further below, include the following:

• People: Justice-involved individuals have multiple needs and there is an emerging question as to whether addressing these needs is the best path to desistance.
• Programs: Interventions often lack adequate logic models and are poorly implemented.
• Methods: Evaluations frequently are underpowered and unlikely to scale the alpha 0.05 hurdle typically used to identify statistically significant effects.

First, it is important to recognize that justice-involved individuals face serious and complex challenges that are difficult to remedy. Many scholars have highlighted the myriad of challenges faced by individuals returning to the community from prison (e.g., see Petersilia, 2003 ; Travis, 2005 ; Travis & Visher, 2005 ). In interviews conducted with 1,697 men and 357 women who participated in the SVORI multisite evaluation, 95% of women and 94% of men said at the time of prison release that they needed more education. Nearly as many—86% of women and 82% of men—said they needed job training. More than two-thirds indicated that they needed help with their criminal thinking and three-quarters said they needed life skills training. They were somewhat less likely to report needing substance use disorder or mental health treatment but still—at the time of prison release—66% of the women and 37% of the men reported needing substance use treatment and 55% of the women and 22% of the men reported needing mental health treatment.

Half of these individuals had participated in SVORI programs while incarcerated and the proportions reported reflect their self-assessment of need after in-prison receipt of programming. Figure  10 shows the percentages of SVORI and non-SVORI groups who reported receiving a select set of services and programs during their incarceration. Several things standout: (1) The receipt of programs and services during incarceration was much less than the indicated need at the time of release; and (2) SVORI program participants were more likely to report receiving services than the comparison group members who were not in SVORI programs.

Self-reported service receipt during incarceration for SVORI program evaluation participants. Note: * =  p  <  = 0.05. Educ = educational programming, EmplSrv = employment-related services, CrimAtt = programs for criminal attitudes including cognitive behavior therapy, LifeSk = life skills, AODTx = substance abuse treatment, and MHTx = mental health treatment. Sample sizes were SVORI men (863), non-SVORI men (834), SVORI women (153) and non-SVORI women (204).

Source: Lattimore & Visher (2009)

More recently, Lindquist et al. ( 2021 ) completed a seven-site evaluation of Second Chance Act reentry programs that were a mix of jail- and prison-based programs. About half of the study participants reported having received substance use disorder treatment and about one-third reported having received mental health treatment. At release, they reported limited-service receipt. For example, there was no significant difference between receipt of educational programming (23% of SCA program participants compared with 17% for comparison group members). SCA program participants were more likely to report receiving any employment services (60% versus 40%), which included job assistance, employment preparation, trade or job training programs, vocational or technical certifications, and transitional job placement or subsidized employment. SCA program participants were also more likely to report receiving cognitive behavioral services (58% versus 41%). But, again, not all program participants received services despite needing them and some comparison subjects received services.

Limited access to treatment by program participants and some access to treatment by comparison subjects were also observed in a multi-site study of pre- and post-booking jail diversion programs for individuals with co-occurring substance use disorder and serious mental illness (Broner et al., 2004 ; Lattimore et al., 2003 ). Across eight study sites, 971 diverted subjects and 995 non-diverted subjects were included in this evaluation; the research found only modest differences in the receipt of services and treatment at 3- and 12-months follow-up. For example, at the 3-month interview, 26% of both groups reported receiving substance abuse counseling, and at the 12-month interview, 0.7% of those diverted versus no non-diverted participant received two or more substance abuse counseling sessions. At 3 months, 38% of the diverted subjects and 30% of the non-diverted reported mental health counseling versus 41% and 38% at 12 months, respectively.

The service needs expressed by these individuals reflect their lack of education, job experience, vocational skills, and life skills, as well as the substance abuse and mental health issues identified among justice-involved individuals. The intervention response to these needs is reflected in the variety of services prescribed in the typical “reentry program bucket.” These involve the services and programs shown in Fig.  10 , as well as case management and reentry planning to coordinate services with respect to needs.

The identification of needs followed by efforts to meet those needs underlies the Risk-Needs-Responsivity (RNR) approach to addressing justice-involved populations (e.g., Andrews & Bonta, 1994 , 2006 ; Latessa, 2020 ). The RNR approach to addressing criminal behavior is premised on the assumption that if you address identified needs that are correlated with criminal behavior, that behavior will be reduced. In other words, recidivism can be addressed by providing individuals the education and job skills and treatment they need to find gainful employment, reduce substance use, and mitigate symptoms of mental illness. Latessa ( 2020 ) recently discussed the RNR approach, reiterating the importance of assessing individual criminogenic and non-criminogenic needs to improve reentry programs. He also reiterated the importance of focusing resources on those identified as high (or higher) risk by actuarial risk assessment instruments—pointing to important work he conducted with colleagues that found that interventions reduced recidivism among high-risk individuals and increased it among low-risk individuals (Lowenkamp & Latessa, 2002 ; Latessa et al., 2010 ). This approach to reentry programming is reflected in the requirements of most federal grants—like the SVORI and SCA—that require programs to incorporate reentry planning that includes needs assessment and services that address criminogenic and non-criminogenic needs.

As noted, most justice-involved individuals have limited education and few job skills, and many have behavioral health issues, anger management issues, and limited life skills. But if addressing these deficits is the key to successfully rehabilitating large numbers of individuals caught in the carceral and community justice system, the meager results of recent research suggests two possibilities. First, this is the right approach, but poor or incomplete implementation has so far impeded findings of substantial effects (a common conclusion since the Martinson report). Second, alternatively, this approach is wrong (or insufficient), and new thinking about the “what and how” of rehabilitative programming is needed. I address the second idea next and turn to the first idea shortly.

MacKenzie ( 2006 ) and others (e.g., Andrews and Bonta, 2006 ; Andrews et al., 1990 ; Aos et al., 2006 ; Lipsey, 1995 ; Lipsey & Cullen, 2007 ) have stressed that programs focused on individual change have been found to be effective more often than those providing practical services. The SVORI evaluation also found support for this conclusion. Services we classified as “practical” (e.g., case manager, employment services, life skills, needs assessment, reentry planning, and reentry program) were associated with either no or a deleterious impact on arrest chances—although few were statistically different from a null effect. Individual-change services (e.g., anger management, programs for criminal attitudes including cognitive behavior therapy, education, help with personal relationships, and substance abuse treatment) were associated with positive impacts on arrest. The original SVORI evaluation had a follow-up period of about 2 years and findings suggested that the overall impact of SVORI program participation on rearrest and reincarceration were positive but not statistically significant. In contrast to these findings, a longer follow-up that extended at least 56 months showed participation in SVORI programs was associated with longer times to arrest and fewer arrests after release for both men and women. For the men, SVORI program participation was associated with a longer time to reincarceration and fewer reincarcerations, although the latter result was not statistically significant ( p  = 0.18). For the women, the reincarceration results were mixed and not significant.

Support for positive impacts of programs focused on individual change are consistent with theories associated with identity transformation and desistance from criminal activity. Bushway ( 2020 ) has recently discussed two alternative views of desistance, contrasting the implications of desistance either as a process (i.e., the gradual withdrawal from criminal activity) or reflective of an identify shift towards a more prosocial identity. In examining these two ideas, Bushway posits that the second suggests that individuals with a history of a high rate of offending may simply stop (as opposed to reducing the frequency of criminal acts). If individuals do (or can or will) stop, the implication is clear: policies that focus on an individual’s criminal history (e.g., for employment or parole decisions) may fail to recognize that the individual has changed. This change may be evidenced by in-prison good behavior (e.g., completing programs and staying out of trouble) or positive steps following release (e.g., actively seeking meaningful employment or engaging in positive relationships). Tellingly, Bushway ( 2020 ) notes: “Individuals involved in crime get information about how they are perceived by others through their involvement in the criminal justice system. Formal labels of ‘criminal’ are assigned and maintained by the criminal justice system. As a result, identity models are much more consistent theoretically with an empirical approach that revolves around measures of criminal justice involvement rather than criminal offending per se.” He goes on to discuss the relationship of identity-based models of stark breaks and criminal career models. In short, reflecting insights that labeling theorists have long emphasized, the labels the criminal justice system and society place on individuals may impede the desistance process that is the supposed goal of the system.

The second consideration are concerns about program design and implementation—What is the underlying logic model or theory of change? Is there adequate time to develop the program and train staff to implement it appropriately? Is the resulting program implemented with fidelity? The two or three years usually provided to implement complex programs suggest that these goals are unlikely to be met. The “notorious” findings of Martinson (1975) that “nothing works” was more appropriately interpreted as “nothing was implemented.” Unfortunately, nearly 50 years later, we largely observe something similar—not “nothing” but “something” that is far short of what was intended.

As discussed in detail by Taxman (2020), the usual approach to program development and testing skips over important formative steps, doesn’t allow time for pilot testing, and provides little opportunity for staff training or for achievement and maintenance of program fidelity (if there is even a program logic model). From an evaluator’s perspective, this short timeline imposes multiple challenges. An evaluator must identify study participants (and control or comparison subjects), follow them largely while they are in the program, and hope to have at least one year of post-program follow-up—generally without being able to accommodate the impact of likely weak implementation on evaluation power to detect effects.

Thus, it may not be surprising that effects are generally small. However, these small effects may not be negligible from a public safety perspective. In a study of the effects of non-residential drug treatment for a cohort of probationers, Lattimore et al. ( 2005a ) found that treatment reduced the number of probationers with a felony arrest by 23% during the first year and 11% over the first two years. The total number of arrests was also reduced by 17% over 12 months and 14% over 24 months. “Back of the envelope” calculations suggested that if treatment cost $1,000 per individual, it would have been cost effective to provide treatment to all members of the cohort as long as the (average) cost of arrest (and all related criminal justice processing and corrections) exceeds about $6,463.

Another example is to consider that the impact of a treatment effect in the 10% range applied across all prison releases would imply the aversion of many crimes. For example, assuming 750,000 prison releases each year over a five-year period and a 66% rearrest rate within 3 years (and no additional arrests after 3 years), then 3.75 million prisoners will be released over the five years; of these individuals, 2.475 million will be arrested at least once during the three years following release. A 10% reduction in first-time rearrests would mean 247,500 fewer first-time rearrests. To the extent that many offenders are arrested multiple times, this figure represents a lower bound on the number of averted arrests. A similar analysis could be conducted assuming 2,000,000 probation admissions each year and a 39% rearrest rate within 3 years. In this case, there would be 10,000,000 probation admissions that would generate 3.9 million first-time arrests over the three years after admission to probation. A 10% reduction in first-time rearrests would mean 390,000 fewer arrests. In total, therefore, reducing recidivism—as measured by rearrest by 10% for these hypothetical correctional populations—would translate into 637,500 averted arrests. Extrapolating further and assuming that roughly 10% of the arrests were for violent crime and 90% for property crime, and applying the inverse of the crime clearance rates for these two types of crime to generate a “crimes averted” count, we find that a 10% reduction in recidivism for these two populations would translate into 140,110 violent and 3,519,939 property crimes averted. 22 Thus, “modest” improvements in recidivism may provide substantial public benefits—in crimes averted, and lower demands on law enforcement, prosecution, and correctional resources. 23

The third consideration is the adequacy of the evaluation methods we routinely apply to this complex problem of inadequate interventions that are partially and sometimes poorly implemented. At minimum, we need to explicitly recognize the impacts of the following:

• Programs partially implemented and partially treated control conditions.
• Recidivism outcomes conditioned on an intermediate outcome.
• Follow-up periods too short to accommodate short-term failure followed by long-term success.
• Focusing on a binary indicator of recidivism ignores frequency and seriousness of offending.

The impact of partial treatment of both treatment and control groups on effect sizes and the consequential impact on statistical power is seldom discussed—either in initial estimates of needed sample sizes or in subsequent discussions of findings. As shown earlier and is true for most justice evaluations, the control or comparison condition is almost never “nothing.” Instead, it is generally “business as usual” (BAU) that means whatever the current standard of treatment entails. Thus, the treatment group may receive some services that aren’t available to the control group, but in many cases both groups have access to specific services and programs although the treatment group may get priority.

As we saw in Fig.  10 , treatment was reported by some individuals in both the SVORI and non-SVORI groups. Table ​ Table1 1 shows the implications of partial treatment using data from the SVORI evaluation. 24 The percent treated for the SVORI and non-SVORI men are shown in columns three and four. Column 2 presents the effect sizes for four interventions as identified by Wanner ( 2018 ). If we assume that the recidivism rate without treatment is 20%, 25 the observed recidivism rate for the SVORI and non-SVORI men as a result of receiving each treatment is shown in columns four and five. Column six shows that the observed differences in recidivism between the two groups in this “thought experiment” are less than two percent—an effect size that would never be detected with typical correctional program evaluations. 26

Hypothetical treatment effects with incomplete treatment of the treatment group and partial treatment of the comparison group, assuming untreated recidivism rate is 20 percent

* Estimates from Wanner ( 2018 ).

Similar findings emerge when considering the effects on recidivism of interventions such as job training programs that are intended to improve outcomes intermediate to recidivism. Consider the hypothetical impact of a prison job training program on post-release employment and recidivism. The underlying theory of change is that training will increase post-release employment and having a job will reduce recidivism. 27 Suppose the job training program boosts post-release employment by 30% and that, without the program, 50% of released individuals will find a job. A 30% improvement means that 65% of program participants will find employment. Randomly assigning 100 of 200 individuals to receive the program would result in 50 of those in the control group and 65 of those in the treatment group to find employment. (This outcome assumes everyone in the treatment group receives treatment.) Table ​ Table2 2 shows the treatment effect on recidivism under various assumptions about the impact of employment on recidivism. The table assumes a 50% recidivism rate for the unemployed so, e.g., if the effect of a job is to reduce recidivism by 10% employed individuals will have a recidivism rate of 45%. If there is no effect—i.e., recidivism is independent of being employed—we observe 50% failure for both groups and there is no effect on recidivism rates even if the program is successful at increasing employment by 30%. On the other hand, if being employed eliminates recidivism, no one who is employed will be recidivists and 50% of those unemployed will be recidivists—or 25 of the control group and 17.5 of the treated group. The last column in Table ​ Table2 2 shows the conditional effect of job training on recidivism under the various effects of employment on recidivism shown in column 1. The effects shown in the last column are the same regardless of the assumption about the recidivism rate of the unemployed. So, employment must have a very substantial effect on the recidivism rate to result in a large effect on the observed recidivism rate when, as is reasonable to assume, some members of the control group who didn’t have the training will find employment. As before, this finding underscores the need to carefully consider the mechanism affecting recidivism and potential threats to effect sizes and statistical power.

Hypothetical effects of job training on employment and recidivism assuming job training increases employment by 30% and control (untreated) employment is 50%

A third concern is that follow-up periods which typically are 2 years or less may be too short to observe positive impacts of interventions (Lattimore & Visher, 2020). Although this may seem counterintuitive, it is what was observed for the SVORI multisite evaluation. The initial SVORI evaluation focused on the impact of participation with at least 21 months of follow-up following release from prison and showed positive but insignificant differences in rearrests for the SVORI and non-SVORI groups. A subsequent NIJ award provided funding for a long-term (at least 56 months) examination of recidivism for 11 of the 12 adult programs (Visher et al., 2017 ; also see Lattimore et al., 2012 ). In contrast to the findings in the original study, participation in SVORI programs was associated with longer times to arrest and fewer arrests after release for both men and women during the extended follow-up period of at least 56 months. Although untestable post hoc, one plausible hypothesis is that the early period following release is chaotic for many individuals leaving prison and failure is likely. Only after the initial “settling out period” are individuals in a position to take advantage of what was learned during program participation. In any event, these findings suggest the need to conduct more, longer-term evaluations of reentry programs.

A final consideration is the indicator of recidivism used to judge the success of a program. Recidivism, which is a return to criminal behavior, is almost never observed. Instead, researchers and practitioners rely on proxies that are measures of justice system indicators that a crime has occurred—arrest, conviction, and incarceration for new offenses—and, for those on supervision, violation of conditions and revocation of supervision. A recent National Academy of Sciences’ publication ( 2022 ) highlights some of the limitations of recidivism as a measure of post-release outcomes, arguing that indicators of success and measures that allow for the observation of desisting behavior (defined by the panel as a process—not the sharp break advanced by Bushway) should be used instead. These are valid points but certainly in the short run the funders of interventions and those responsible for public safety are unlikely to be willing to ignore new criminal activity as an outcome.

It is worth highlighting, however, some of the limitations of the binary indicator of any new event that is the usual measure adopted by many researchers (e.g., “any new arrest within x years”) and practitioners (e.g., “return to our Department within 3 years”). These simple measures ignore important dimensions of recidivism. These include type of offense (e.g., violent, property, drug), seriousness of offense (e.g., homicide, felony assault, misdemeanor assault), and frequency of offending (equivalent to time to the recidivism event). As a result, a typical recidivism outcome treats as identical minor acts committed, e.g., 20 months following release, and serious crimes committed immediately. Note too that this binary indicator fails in terms of being able to recognize desisting behavior, that is, where time between events increases or the seriousness of the offense decreases. Survival methods and count or event models address the frequency consideration. Competing hazard models allow one to examine differences between a few categories of offending (e.g., violent, property, drug, other). The only approach that appears to have tackled the seriousness dimension is the work by Sherman and colleagues (Sherman et al., 2016 ; also, see www.crim.cam.ac.uk/research/thecambridgecrimeharminde ) who have developed a Crime Harm Index that is based on potential sentences for non-victimless crimes. To date, statistical methods that can accommodate the three dimensions simultaneously do not, to my knowledge, exist. At a minimum, however, researchers should use the methods that are available to fully explore their recidivism outcomes. Logistic regression models are easy to estimate and the results are easily interpretable. But an intervention may be useful if it increases the time to a new offense or reduces the seriousness of new criminal behavior.

The last forty years or so have seen strides at identifying interventions that are promising, but much work remains to be done to find programs that result in substantial, broad-based improvements. Challenges in program development and implementation, partial treatment of treatment groups and control groups, and limited focus on recidivism as a binary indicator of failure were highlighted as some of the issues confronting practitioners and evaluators. 28 There is reason for optimism—if expectations are realistic from both a programmatic and methodological perspective: Identify promising programs, apply best practices of implementation science, calculate reasonable statistical expectations, and build on what has been tried.

Conclusions

In the past several decades, dramatic increases in crime resulted in large-scale legislative changes and expenditures. Correctional populations dramatically increased even as crime rates plunged. In addition, despite large increases in funding to law enforcement and other justice agencies, the number of offenses cleared declined. During this time, there were multiple federal initiatives focused on reducing criminal recidivism. Some, such as the Residential Substance Abuse Treatment (RSAT) programs, focused singularly on reducing drug use, while others focused broadly on addressing the multi-faceted needs of justice-involved individuals.

These changes occurred in a context of a highly decentralized approach to criminal justice, one that creates a myriad of costs and incentives. For example, if a federally funded reentry program reduces crime, the immediate agency beneficiaries are local law enforcement (due to fewer crimes to solve), prosecution (due to fewer crimes to prosecute), and the courts (due to fewer cases to try). That can reduce admissions to prison. But for cost-savings to occur, agencies have to respond to reductions in crime by reducing costs. That tends to run counter to the natural inclination of administrators, especially if it means reducing staffing. And it runs counter to what happened as crime declined over the last roughly 30 years.

We increasingly have research evidence that some programs can reduce recidivism, but many challenges, such as underpowered research designs, sometimes undermines this evidence. Even so, it is important to note that even modest reductions in recidivism imply opportunities to avert substantial numbers of crimes and subsequent criminal justice system processing and costs.

This essay suggests that it is time to embrace the modest improvements in recidivism that have been forthcoming from programs that have been subjected to the most rigorous evaluations. And it suggests that it is time to downsize our expectations for a “silver bullet” and, instead, prepare for a long-term and sustained investment in programming that will improve, refine and augment programs and approaches that “work.” By using “what works” today as the basis for the successful adaptation of multi-faceted programs that address the multiplicity of offender needs, criminal justice policy and practice will develop the tools needed to help a heterogeneous population of prisoners successfully reenter their communities.

Finally, as policymakers grapple with a recent increase in violent crime, it is important to recognize that the “tough-on-crime” responses of the twentieth century led to a 252% increase in the number of citizens under legal system control—including a 312% increase in prison populations—between 1980 and 2000. Correctional populations peaked in 2008 but in 2019 remain 255% above 1980 levels with more than 6.5 million individuals in prisons, jails, or on probation or parole. 29 As the current administration proposes the Safer America Plan, it is important that proper attention be addressed to assure that the result of these expenditures is not to reinvigorate the mass incarceration and mass supervision that followed the adaptation of the as the 1984 Pretrial Reform Act and the Violent Offender Incarceration and Truth-in-Sentencing Act of 1994. And it is important that we attend to widespread support for high-quality implementation of programs that have been shown to reduce recidivism.

is a Principal Scientist with RTI International’s Justice Practice Area. She has more than 35 years of experience evaluating interventions, investigating the causes and correlates of criminal behavior, and developing approaches to improve criminal justice operations. She was principal investigator for multi-site, multi-method evaluations including the Multi-Site Evaluation of the Serious and Violent Offender Initiative, the Second Chase Act Adult Offender Reentry Demonstration Program Evaluation, and the HOPE Demonstration Field Experiment. She is principal investigator for research examining pretrial risk assessment, policy, and practice; state-level reforms for adult probation; implementation and impact of criminal record expungement; development and implementation of dynamic risk assessment algorithms for Georgia probation and parole; and the long-term impact of a three-state RCT of the 5-Key Reentry Program Model. She is a past Chair of the American Society of Criminology Division on Corrections and Sentencing, a Fellow of the Academy of Experimental Criminology, and a recipient of the American Correctional Association Peter P. Lejins Researcher Award, the American Society of Criminology Division on Corrections and Sentencing Distinguished Scholar Award, and the Academy of Experimental Criminology Joan McCord Award. Dr. Lattimore has published extensively, has served on the editorial boards of multiple journals, and was the inaugural co-editor of the annual series Handbook on Corrections and Sentencing published by Routledge Press.

Data Availability

1 Some of the ideas presented here were initially explored in Lattimore ( 2020 ) and Lattimore et al. ( 2021 ).

2 Data 1960 to 1984 are FBI, Uniform Crime Reports, prepared by the National Archive of Criminal Justice Data; downloaded March 5, 2006; data from 1985 to 2020 are from https://crime-data-explorer.app.cloud.gov/pages/explorer/crime/crime-trend , downloaded July 12, 2022.

3 Violent crime commands the most attention and hence is the focus here, but property crimes are much more prevalent—directly affecting many more individuals. Property crime rates also increased in the 1960s and 1970s. The property crime rate increased from 1,726.3 per 100,000 in 1960 to 4,660.2 in 1994—an 170% increase. The property crime rate peaked in 1980 at 5,353.3 per 100,000—a 210% increase over 1960.

4 Data for 1960 and 1970 prisoners are from Cahalan, M.W. and Parsons, L.A. ( 1986 ). Data from 1980–2014 are from Glaze, L., Minton, T., & West, H. (Date of version: 12/08/ 2009 ) and Kaeble, D., Glaze, L., Tsoutis, A., & Minton, T. ( 2015 ). Data from 2015–2020 are from Kluckow, DSW, & Zeng, Z. (Date of version: 3/31/ 2022 ).

5 As noted in footnote 3, property crime rates also rose between 1960 and 1980—peaking at 5,353.3 per 100,000. With some minor fluctuations, the property crime rate has declined steadily since the 1980s and was 1958.2 per 100,000 in 2020.

6 The Comprehensive Drug Abuse Prevention and Control Act of 1970 (PL 91–513); the Organized Crime Control Act of 1970 (PL 91–452); the District of Columbia Court Reorganization and Criminal Procedure Act of 1970 (PL 91–358); and the Omnibus Crime Control Act of 1970.

7 https://www.ncjrs.gov/txtfiles/billfs.txt

8 The trend shown in Fig.  9 continued a trend. Between 1982 and 1997, total justice expenditures increased 125% from $84.1 billion to $189.5 billion (2007 dollars), Kyckelhahn, T. ( 2011 ).

9 Data are from the FBI Crime in the United States publications for 1980, 1991, 1995, 2000, 2010 and 2019 https://ucr.fbi.gov/crime-in-the-u.s/ . Numbers of offenses cleared were estimated by multiplying the offenses known by the offense clearance rates reported by the FBI.

10 https://www.nytimes.com/2022/07/31/opinion/richard-nixon-america-trump.html

11 https://www.whitehouse.gov/briefing-room/statements-releases/2022/08/01/fact-sheet-president-bidens-safer-america-plan-2/

12 For some thoughts on recommendations for reforms for pretrial and sentencing see Lattimore, Spohn, & DeMichele ( 2021 ). This volume also has recommendations for reform across the justice system.

13 Safety and Justice Challenge.

14 https://www.arnoldventures.org/

15 https://www.prisonpolicy.org/research/economics_of_incarceration/

16 For an example of how a minor traffic offense can result in thousands of dollars in fines and fees for extensive terms of private probation see In Small-Town Georgia, A Broken Taillight Can Lead to Spiraling Debt—In These Times.

17 See for example, https://www.propublica.org/article/florida-felonies-voter-fraud

18 https://www.arnoldventures.org/work/public-defense

19 https://www.samhsa.gov/gains-center

20 https://www.nami.org/Advocacy/Crisis-Intervention/Crisis-Intervention-Team-(CIT)-Programs

21 https://www.eugene-or.gov/4508/CAHOOTS

22 In 2005, the Uniform Crime Reports reported 1,197,089 known violent offenses and 8,935,714 known property offenses or a ratio of about 1:9. Clearance rates were 45.5% for violent and 16.3% for property crimes known to police. The estimated total number of arrests for 2005 was 14,094, 186. Thus, the violent and property arrests account for about 72% of all arrests. Of course, these estimates rest on many assumptions—in some cases, these assumptions would imply that we are estimating the lower bound, since each member of our study population is allowed only one arrest while many will have many more than one. On the other hand, to the extent that individuals are arrested who have committed no offenses, the estimates would over represent the impact of a reduction in crime. The goal here was not to generate a precise estimate but to illustrate that a 10% reduction in recidivism translates into substantial reductions in crime.

23 A model-based estimate of the effect of non-residential drug treatment on 134,000 drug-involved individuals admitted to probation in Florida showed treatment reduced arrests by more than 20% (Lattimore et al., 2005a , 2005b ). This analysis was extended to a cost-effectiveness framework in which it was shown that it would be cost effective to spend $1000 treating all drug-involved probations as long as the average cost of an arrest averted (including arrest, and the costs of judicial processing and corrections) is at least $6,463.

where R = recidivism rate for the group, r = recidivism rate in the absence of treatment, T = percentage of group that is treated, and p = the percentage reduction in recidivism due to treatment (the treatment effect). Differences in outcomes are constant with respect to the assumed recidivism rate in the absence of treatment.

25 Differences in outcomes are constant with respect to the assumed recidivism rate without treatment.

26 Lipsey ( 1998 ) discusses the issue of underpowered evaluations.

27 A similar example was presented in Lattimore, Visher, & Steffey ( 2010 ).

28 Although not addressed here because of page limitations additional important methodological considerations include whether a comparison group exists for some interventions such as incarceration (see Lattimore & Visher 2021 for a brief discussion) and, even more challenging, whether replication is even possible given the heterogeneity of context and populations. For an interesting consideration of the implications of the latter for examining the impact of incarceration see Mears, Cochran & Cullen ( 2015 ).

29 Correctional populations dropped dramatically in 2020 as law enforcement and the criminal justice system adapted to COVID-19.

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Top Trends in Criminal Justice Reform, 2022

Formerly incarcerated activists, lawmakers, and advocates achieved important changes in criminal justice policy in 2022 to challenge extreme sentencing, expand voting rights and advance youth justice. This briefing paper highlights top trends in criminal justice reform in 2022.

Related to: State Advocacy, Racial Justice, Sentencing Reform, Drug Policy, Youth Justice, Voting Rights

The United States continues to lead the world in incarceration.  More than five million people were under some form of correctional control in 2020 (the last year available) with nearly two million in prison or jail. Nationwide, an estimated 70-100 million persons have a criminal record, including at least 19 million persons living with a felony conviction.

Changes in policy and practice may help counter the impact of tough on crime rhetoric that reinforce mass incarceration policies. State lawmakers in at least 15 states and Washington D.C. adopted policy reforms in 2022 that may contribute to decarceration and addressing collateral consequences while promoting effective approaches to public safety. This briefing paper provides an overview of recent policy reforms in the areas of extreme sentencing and decarceration, drug policy, prison reform, probation and parole, guaranteeing voting rights, and youth justice.

Changes in criminal justice policy were realized for various reasons, including an interest in managing prison capacity. Lawmakers have demonstrated interest in enacting reforms that recognize that the nation’s scale of incarceration has produced diminishing returns for public safety. However, stakeholders working to reform adult and youth criminal legal system practices also encountered rhetoric on increases in violent crime which impacted the ability to adopt significant reforms like the repeal of mandatory minimum sentences and expansion of alternatives to incarceration for prison bound defendants. Consequently, legislators and other stakeholders have prioritized implementing policies that provide a more balanced approach to public safety. The evolving framework is rooted in reducing returns to prison for technical violations, expanding alternatives to prison for persons convicted of low level offenses and authorizing earned release for prisoners who complete certain rehabilitation programs.

Extreme Sentencing and Decarceration Reforms

Lawmakers enacted legal reforms to reduce prison admissions and to adjust penalties to criminal sentences that more fairly hold persons convicted of crimes accountable.

Washington D.C. council members unanimously approved B24–0416 , the Revised Criminal Code Act of 2022 (RCCA).  The bill was a major overhaul to modernize the city’s criminal code. Specifically, the comprehensive measure eliminated most mandatory minimum sentences, lowered maximum sentences to 45 years, eliminated accomplice liability for felony murder, and expanded judicial reconsideration for all persons serving long prison terms. The RCCA extends judicial reconsideration to all, allowing individuals convicted of offenses committed after their 25th birthday to submit a petition for resentencing after serving 20 years.  While local officials in the District approved the change it must survive a 60-day congressional review period as of December 2022.

Challenging Racial Disparity

Racial and ethnic disparities in the criminal justice system have been extensively documented.

California officials adopted Assembly Bill 256 , the Racial Justice Act for All. The measure allows persons with convictions or judgements prior to January 1, 2021 to petition the court and seek relief if racial bias was proven to be present in their case. AB 256 builds upon 2020 legislation (Assembly Bill 2542), which allowed individuals to challenge racial bias in criminal charges, convictions, and sentences but was limited to cases after January 1, 2021.

Drug Policy Reform

Lawmakers and advocates are revisiting policies adopted during the punitive War on Drugs era that resulted in dramatic growth in incarceration for drug offenses. Lawmakers considered sentencing alternatives for certain drug offenses while voters considered ballot measures to legalize or decriminalize certain drugs.

• Kentucky officials adopted Senate Bill 90 which authorizes the establishment of pilot behavioral health conditional dismissal programs in at least 10 Kentucky counties selected by the Kentucky Supreme Court chief justice for persons charged with certain low-level drug offenses. The measure allows someone charged with certain non-violent crimes determined to have a mental health or substance use disorder to have their case put on hold and go into treatment instead, under certain conditions. The pilot program would include access to services like outpatient treatment, cognitive and behavioral therapies, educational and vocational services and housing assistance.
• Voters in Maryland legalized recreational marijuana with 66% approval of Question 4 while Missouri authorized marijuana use with 53% support of Constitutional Amendment 3. Both ballot initiatives legalized possession of marijuana for persons 21 years of age or older. The approval of these ballot measures expands the number of states that legalize recreational marijuana use to 21 since 2012.  Voters did not approve ballot measures in Arkansas, North Dakota, or South Dakota. Nationally, these changes might reduce hundreds of thousands of marijuana arrests made every year.
• In Colorado , 54% of voters approved Proposition 122 to decriminalize certain psychedelics, including psilocybin mushrooms — a substance that is decriminalized only in Oregon and a handful of cities. Oregon became the first state to legalize the supervised use of psilocybin in 2020.

Limiting Incarceration for Probation and Parole Violations

Too many persons are admitted to prison due to technical probation and parole violations. In 2022, lawmakers advanced policies that allowed early completion of probation and parole sentences. Two states enacted legislative measures that reduce time served requirements for successful participation in rehabilitation programs that include vocational training, education, and substance abuse treatment.

• Florida officials enacted Senate Bill 752 which allows residents on probation to receive  education and workforce credits to reduce their probation terms. Individuals under this law can earn at least 30 days off their supervision terms during each six-month period they work at least an average of 30 hours per week. The measure also authorizes persons to earn 60 days off their probation term for each completed educational activity.
• Oklahoma lawmakers adopted House Bill 4369 . The law modifies the administrative parole process by allowing consideration of early termination of probation and parole for persons within one calendar year of their discharge date. HB 4369 also allows for persons under parole supervision to earn compliance discharge credits every month to reduce the length of time supervised on parole.

Prison Reform: Abolishing Involuntary Servitude and Slavery

Four states – Alabama, Oregon, Tennessee, and Vermont – adopted ballot measures to remove language from their state constitutions allowing slavery and involuntary servitude as punishment for the conviction of a crime. Louisiana voters did not approve a related initiative. Similar ballot measures were passed in Colorado in 2018 and Nebraska and Utah in 2020.

• Alabama voters approved the Alabama Recompiled Constitution Ratification Question by 77% to eliminate racist language from the state Constitution and delete an exemption that allows for involuntary servitude for certain crimes.
• Voters in Oregon approved a Measure 112 with 56% support to remove “all language creating an exception” and make “the prohibition against slavery and involuntary servitude unequivocal.” The ballot initiative also amended the Oregon Constitution to allow “programs to be ordered as part of sentencing,” including programs for education, counseling, treatment and community service.
• Tennessee voters approved Constitutional Amendment 3 by 79% to amend the state’s constitution to say slavery and indentured servitude shall be “forever prohibited.”
• Voters in Vermont approved Proposition 2 by 89% to remove text from the state’s constitution that read “no person born in this country, or brought from oversea, ought to be holden by law, to serve any person as a servant, slave or apprentice, after arriving to the age of twenty-one years, unless bound by the person’s own consent, after arriving to such age, or bound by law for the payment of debts, damages, fines, costs, or the like.”

Expanding the Vote

In 2022, 4.6 million citizens were ineligible to vote because of a felony conviction although many residents with felony convictions had regained their voting rights since 1997 due to policy reforms. During 2022, officials in Massachusetts and Washington state  approved various efforts to guarantee ballot access for incarcerated voters.

• Massachusetts Republican Governor Charlie Baker signed a comprehensive voting rights bill named the VOTES Act which included provisions guaranteeing ballot access for persons in jails. The law directs jails to “ensure the receipt, private voting, where possible, and return of mail ballots” for incarcerated people. The measure also requires sheriffs to track the number of people incarcerated in their jails who sought to vote, any complaints related to voting issues and the outcome of those requests.
• Washington officials adopted a policy to support ballot access for jail based voting. The state’s 2022 budget allocated $628,000 to the Office of the Secretary of State to distribute to county jails to help improve voter awareness, registration and voting in jails. Grants were allocated prior to this year’s August primary with plans to continue funding through the November general elections.

Promoting Youth Justice

Lawmakers adopted policies that demonstrated a commitment to protecting young defendants and expanding release options for persons sentenced in their youth. These changes in policy continue a trend that seeks to change the response to juvenile crime.

• Indiana lawmakers adopted House Bill 1359 , a comprehensive youth justice reform measure that included raising the age of detention to 12, instituting risk assessment to divert youth away from court involvement and improving data collection, among other policy changes.
• Maryland lawmakers adopted several youth justice reforms with enactment of Senate Bill 691 including rais­ing the minimum age of juve­nile court juris­dic­tion to 13 (with some rare exceptions). The measure also largely prohibits the use of secure deten­tion or com­mit­ment to the Depart­ment of Juve­nile Ser­vices for tech­ni­cal vio­la­tions of pro­ba­tion and mis­de­meanor offens­es (with exceptions for hand­gun vio­la­tions and repeat­ed mis­de­meanor offenses). The law also removes bar­ri­ers to diver­sion, includ­ing allow­ing youth with non­vi­o­lent felonies to be divert­ed with­out pros­e­cu­tor or victim approval.
• The Tennessee Supreme Court declared mandatory 51-life sentences for youth unconstitutional in Tennessee v. Booker . Tennessee is among several states where nearly 10% of the people serving a life sentence were under 18 at the time of their crime. The state supreme court ruling impacts all persons who were under 18 at the time of their offense and sentenced to mandatory life and de facto life sentences. In each of those cases, the opinion stated, the person sentenced should receive individualized parole hearings after serving a minimum of 25 years.
• Wyoming officials enacted House Bill 37 to require the Department of Family Services to collect juvenile justice data from state and local governments to standardize juvenile justice information. Compiling these data will better track outcomes, including the use of detention and commitment, as well as the transfer of youth into adult courts.

Trends that Reinforce Mass Incarceration

Despite reforms, policies were adopted that might exacerbate mass incarceration and lengthen sentences. Indiana lawmakers adopted House Bill 1004 to reverse a 2014 reform that authorized incarceration in jails rather than prison for persons sentenced to low level felonies. Tennessee officials enacted a “truth-in-sentencing” framework with Senate Bill 2248 to require 85% time served requirements for certain criminal penalties. House Bill 215 was passed in Kentucky to increase minimum time served requirements to 85% time served from 50%time served for persons convicted of trafficking fentanyl. It also makes importing those drugs from another state or country a Class C felony, subject to five to 10 years in prison, and eliminates pretrial diversion for persons charged with this offense.

Recommendations to Challenge Mass Incarceration

In 2022 Lawmakers advanced policy reforms to decarcerate, challenge racial disparities in imprisonment, guarantee ballot access for justice impacted voters, and address youth justice. Most of these measures will have a modest impact on the scale of incarceration or its consequences, and while helpful, more comprehensive reforms are needed to transform the adult and youth legal systems to meaningfully challenge mass incarceration.

To end mass incarceration transformational changes are necessary:

• Reform Extreme Sentencing Statutes : The Sentencing Project is part of a coalition of national and state-level organizations that work to end extreme sentencing practices in the United States. Recommended reforms include: limiting maximum prison terms to 20 years, except in unusual circumstances; repealing mandatory minimums; establishing “Second Look” sentencing review practices; ending Life-Without-Parole (LWOP) sentences and authorizing presumptive parole.
• Advance Policy to Address Racial Disparities : The Sentencing Project  supports state, local and national partners in advancing racial impact statements. Racial impact statements offer a specific legislative solution to forecast potential impact of proposed sentencing laws on racial disparities in imprisonment; retroactive application of racial impact statements would allow lawmakers and other stakeholders to review current policies and practices. Responsible lawmaking increases when information about the consequences of harsh punishments is available. Additional policy reforms addressing racial disparity include reducing prison admissions and enacting presumptive release policies.
• Expand Voting Rights to All Justice Involved Citizens : As of 2022, 4.6 million citizens with a felony conviction were disenfranchised from voting, most living in the community. While voter suppression laws have proliferated in recent years across the country, The Sentencing Project supports state, local and national partners in efforts to expand the franchise to justice-involved residents and guarantee ballot access for voters who are incarcerated. Much progress is being made, but millions are still denied the vote. Guaranteeing voting rights for persons completing their sentence inside and outside of prison or jail will ensure a stronger democracy for all.
• Decarcerate Youth in Custody: The Sentencing Project works with groups at the national, state and local level to minimize all involvement by youth in both the adult and youth justice systems. Significant youth justice reforms continued this year and the number of states ending juvenile life without parole increased to 25. States should continue safeguards that prevent transfers to adult court and keep youth out of adult jails while continuing to shrink the footprint of the youth justice system by diverting youth from all forms of detention in favor of community-based interventions and supports.

Related Resources

Second look laws are an effective solution to reconsider extreme sentences amidst failing parole systems.

Maryland incarcerates approximately 15,000 people in its state prisons, of which 21% are age 51 or older. The overuse of extreme sentences, limited mechanisms for reviewing these sentences, and ineffectual parole systems have resulted in a large number of aging people with no meaningful process for release.

March 21, 2024

Testimony on Michigan’s Second Look Sentencing Act

Nazgol Ghandnoosh, Ph.D. submitted testimony before the Michigan House Criminal Justice Committee in support of the Second Look Sentencing Act.

March 15, 2024

Criminal Legal Reform Advocates Host Day Of Empathy at Vermont Statehouse

Supporters push for a “second look” at extreme sentences

March 11, 2024

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The Effort to Reform the Federal Criminal Justice System

abstract. The federal criminal justice reform community scored an important victory with the passage of the First Step Act, a federal sentencing and prison reform bill that President Trump signed into law in late 2018. First Step’s passage broke many years of congressional gridlock around criminal justice reform bills, marking Congress’s departure from forty years of policies advancing the carceral state. First Step’s passage didn’t happen by accident. The federal reform community is now better funded, more prolific, and more politically diverse than ever before, and it successfully provided the political cover necessary for congressional members to vote for reform. This Essay describes the difficult movement for federal criminal justice reform and how the reform community’s efforts led to passage of the First Step Act. It also explains what risks could stall future federal reforms, while providing a normative analysis of the criteria the federal justice reform community should use in deciding whether to support particular reforms.

Introduction

The federal criminal justice system is unique in both its punitiveness and its resistance to political reform. Since the 1980s, Congress has consistently made federal criminal justice significantly more punitive. 1 With a Republican majority in the Senate and a Democratic majority in the House, the 98th Congress enacted the Sentencing Reform Act of 1984. The Act comprehensively changed federal sentencing practices by abolishing federal parole and creating the United States Sentencing Commission, 2 ultimately leading to the widely criticized federal sentencing guidelines. 3 Two years later, after the death of professional basketball star Len Bias from a cocaine overdose, 4 a Democrat-led House and a Republican-led Senate passed a slew of mandatory minimum sentences for drug crimes. 5 A Democrat-led Congress passed the infamous 1994 Crime Bill, creating new crimes, increasing mandatory minimum penalties, and ending Pell grants for those in federal prison. 6 Towards the end of the 1990s, a Republican-majority Congress passed two more criminal justice bills, one curtailing federal habeas corpus remedies and the other limiting prisoners’ ability to bring civil rights lawsuits in federal court. 7 And in the twenty-first century, Congress limited the discretion of federal judges to impose less onerous sentences. 8

As a result of these policy changes, federal sentences are now remarkably harsh by international standards, and even compared to most state systems in the United States 9 —no small feat in the most incarceration-heavy country in the world. 10 The federal prison population increased from 24,640 in 1980 to 185,617 in 2017. 11 Those in prison are serving even longer sentences than before the abolition of federal parole. While the budget of the Federal Bureau of Prisons (BOP) has grown, “crowding out” other Department of Justice (DOJ) priorities, 12 the federal prison system has still largely failed to implement evidence-based rehabilitation programs. 13

Despite the recent bipartisan agreement that this system desperately needs reform, 14 Congress has been slow to act. Eight years ago, Congress passed incredibly modest sentencing reform with the Fair Sentencing Reform Act of 2010 and applied those changes prospectively only. 15 Between 2015 and 2018, Congress could not pass the Sentencing Reform and Corrections Act, which stalled in the Senate. 16 And many other reforms died on the vine after being introduced in Senate and House committees. 17

But then, almost miraculously, Congress passed a federal prison and sentencing reform bill called the First Step Act in December 2018. 18 The First Step Act requires the BOP to provide meaningful rehabilitation programs for federal prisoners and ties those programs to earned credit time that federal prisoners can use to serve out some of their prison sentence in a halfway house or in home confinement. 19 The Act also includes a number of provisions aimed at reforming the BOP: placing prisoners within 500 driving miles of their families; 20 increasing federal good-time 21 by seven days, and thereby reducing every sentence for those persons with a release date; allocating $50 million dollars each year for five years to create rehabilitative programming; 22 improving accountability in the BOP’s use of compassionate release; 23 and prohibiting the shackling of pregnant women, 24 among several other reforms. While the bill was pending in the Senate, sentencing reform was also added, 25 including retroactive application of the Fair Sentencing Act, thereby reducing the statutory punishments for those convicted of crack cocaine offenses, 26 reducing the statutory maximums for certain drug offenses committed by those with prior drug convictions, 27 fixing the onerous stacking of 18 U.S.C. § 924(c) charges on those who carry a firearm during a drug or violent offense, 28 and expanding on the safety valve provision, which allows federal judges to sentence below the statutory mandatory minimum punishment for certain eligible offenders. 29 Yet as this Essay will show, First Step Act was an unanticipated breakthrough in federal criminal justice reform.

In this Essay, I explain how the First Step Act came about, and consider what this breakthrough could mean for the future of federal reform—as well as what risks could stall additional reforms. 30 Because federal legislation is complicated and often includes uneasy compromises, I also sketch criteria that the criminal justice reform community should use in deciding whether to support a particular reform bill going forward.

Overall, I am optimistic that Congress will continue to pass meaningful but incremental federal criminal justice reform. Criminal justice reform organizations are better funded, more prolific, and more politically diverse than ever before. Because this community has kept criminal justice reform in the public eye, Congress has more political cover to pass reforms. More Americans are becoming aware that the U.S. criminal justice system currently incarcerates more than two million people, that it’s fundamentally unfair and ineffective, and that its social costs are unsustainable. 31 There is every reason to think that more bipartisan incremental reform can be accomplished while the reform community builds national consensus for more structural and equitable reform.

I. congressional gridlock on criminal justice reform and the passage of the first step act

After the 2016 election and the appointment of Senator Jeff Sessions as Attorney General, most in the federal reform community believed we would spend the next four years playing defense against the DOJ’s bad policy preferences and a Congress that frequently treats criminal law and punishment as the only way to fix national social problems. And the reform community had legitimate reason to hold this belief. For the past three decades, federal criminal justice legislation has mostly been a one-way ratchet towards overcriminalization, longer sentences, and mostly expanding federal prison populations. 32 Although the stances of political parties can be overgeneralized when it comes to criminal justice issues, 33 Republicans controlled all levels of federal policy making in 2016, and reformers generally view Republicans as worse on these issues than Democrats. 34 Given that Attorney General Sessions had been a vocal opponent of criminal justice reform 35 and in light of some of President Trump’s campaign statements, 36 it would have been hard to convince anyone in late 2016 or early 2017 that any federal criminal justice reform was possible.

But then in May 2018, the White House began ramping up its surprising efforts to move forward with criminal justice reform generally and the First Step Act specifically. 37 The Republican-led House overwhelmingly passed federal prison reform, 38 while Republican Senator Chuck Grassley and Democrat Senator Dick Durbin championed the addition of several federal sentencing reform provisions to the First Step Act. 39 Sentencing reform was ultimately included in the First Step Act, which passed with eighty-seven votes in the U.S. Senate, before moving through the House and to the President’s desk in December 2018, where it was signed into law. 40

That Congress passed this meaningful reform can be traced to several factors. Recent political developments made space for reform, the necessity of which became apparent due to decades of consistent and powerful advocacy. Rarely has the reform community had someone in the White House who works so closely with the President and is dedicated to justice reform like Jared Kushner, whose father was incarcerated in federal prison in 2002 and who has thus been directly affected by the system. 41 Kushner and Brooke Rollins from the Office of American Innovation pushed within the White House for meaningful federal criminal justice reform even with DOJ fighting against it. 42 Conservative members of Congress were also vocal about supporting criminal justice reform, 43 while Democrats continued to vote in lockstep on the need for federal justice reform. 44 The movement for reform within this Administration and Congress, however, was and is bigger than just one person, one office, or a few congressional members.

The progress towards meaningful federal reform is the result of several decades of advocacy by those in the federal criminal justice reform community. Legal scholarship focused on mass incarceration and criminal justice reform exploded after Michelle Alexander’s book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness , 45 was published in 2012. 46 The term “mass incarceration” is now ubiquitous. Popular presses routinely publish books on criminal justice reform, 47 and there are now entire media organizations dedicated to covering the criminal justice system. 48

For years, national organizations such as the American Civil Liberties Union, the Brennan Center for Justice, and National Association for the Advancement of Colored People have used the political left to fight for reform. Upstart criminal justice reform groups like FAMM and the Sentencing Project led the opposition to more punitive federal sentencing measures through grassroots organizing, local lobbying, and the publishing of policy proposals. 49 Practitioners have also played a role; the National Association of Criminal Defense Lawyers and the Federal Public and Community Defenders have advocated for federal reform. 50

There are now more national reform organizations, 51 more justice reform campaigns, 52 and more donor money 53 to spread around to both new and established reform organizations. Consequently, more Americans are aware that the United States incarcerates its citizens at a higher rate than any other country on the planet, 54 and that criminal justice reform has already been successful in several states. 55 Any federal criminal justice reform that takes place in the current moment—the First Step Act included—owes its existence to the organizations and people who have been fighting for reform for decades.

More recently, federal criminal justice reform is no longer just a left-of-center or centrist movement. Conservative groups such as Right on Crime, the American Conservative Union Foundation’s Center for Criminal Justice Reform, the Texas Public Policy Foundation, and the Charles Koch Foundation have increased their presence in the federal reform arena. 56 In the last two years, many of these organizations have pushed back against DOJ, its practices, and its false claims, 57 whereas in the past, only left-of-center groups would have done so. And in the past year, right-of-center groups have pressed the White House and Members of Congress to pass meaningful federal prison, sentencing, and executive clemency reform. 58

The advocacy for the First Step Act differed from the past in another important respect. Many of the advocates who fought for the bill on Capitol Hill, in the White House, on panel discussions, at rallies, and in op-eds were formerly incarcerated. Those advocates brought their stories to bear before policymakers about the unique challenges faced by those entering and leaving the federal prison system. #cut50’s Topeka Sam’s explained from her personal experience, during a prison reform summit at the White House, how providing feminine hygiene products for free would provide some dignity for women in prison 59 —a provision that made it into the First Step Act. 60 FAMM President Kevin Ring engaged lawmakers on the difficulties with maintaining family ties for those in federal prison, as he explained his own struggle with being separated from his children during his incarceration. 61 Pat Nolan of the American Conservative Union Foundation often remarked in White House meetings about the morality of providing people with a second chance. 62 This was the first time that formerly incarcerated advocates had a seat at the reform table, and one could make the case that including those closest to the problem of the federal prison system moved the needle in passing a bill designed to end those problems. 63

It takes a mountain of energy from all sides of the political spectrum to push a piece of legislation through a gridlocked and divided Congress. Yet, overall, there are many reasons to believe that the fight for federal criminal justice reform will be better organized and sustainable than ever before. And public opinion is also moving towards reform, 64 even among conservatives. 65 All of this has led to a momentous first step in the form of modest but meaningful federal prison and sentencing reform.

II. potential risks to further federal criminal justice reform

Although there now seems to be some forward momentum on federal criminal justice reform for the first time in decades, there are two issues that could derail this progress. One concern is that the groups within the federal criminal justice reform community will make decisions based more on party politics than on good policy. On balance, I think this is unlikely to occur. 66 Many of the reform groups desire the same changes, even as they disagree on what is politically feasible at a given moment. From my experience, most of the people in these organizations genuinely believe in the morality of criminal justice reform and would be content with passing meaningful legislation no matter which party or president received the credit. Many groups, in fact, started supporting the First Step Act once sentencing reform was added, even though it was a bill hailed by President Trump and led by Senate Republicans. 67 And there are several bipartisan players—groups like FAMM and #cut50 68 —that will work with whichever party controls the White House.

There are, however, reasons to be concerned. One way that hyperpoliticization can create discord is when reform groups, because of party politics, start revering individuals who do not deserve their reverence. To take one example, there has recently been a national movement among criminal justice reformers to target prosecutors . 69 Reformers are currently studying the ways to hold punitive prosecutors accountable for our country’s mass incarceration of its citizens. 70 But unlike many state and local prosecutors, federal prosecutors cannot be voted out of office. Thus, the only real check on bad DOJ policymaking officials comes from the career consequences that person experiences after leaving the DOJ. Holding these officials accountable through such consequences is appropriate. If a reform organization disagrees with former Attorney General Jeff Sessions’s policy decisions, then those reform groups should naturally not provide him with awards once he is out of office.

Despite the movement to hold prosecutors accountable, a top DOJ prosecutor who used her power to deny meaningful criminal justice reform has been celebrated merely because she opposed the Trump Administration on an issue separate from criminal justice reform. Sally Yates spent most of her career as a federal prosecutor in Georgia until she was promoted to Deputy Attorney General by President Obama. While in that position, Yates’s record on criminal justice reform was appalling. As Deputy Attorney General, she was responsible for making final recommendations on clemency petitions during President Obama’s clemency initiative. 71 Pardon Attorney Deborah Leff resigned in protest, in part because Yates had specifically overridden many of her clemency recommendations. 72 Not only had Yates changed positive clemency recommendations to negative, her office at DOJ also denied Leff access to the White House. 73 As a result, President Obama was unaware of the differing opinions regarding the merits of clemency petitions. 74 In her resignation letter, Leff said, “I believe that prior to making the serious and complex decisions underlying clemency, it is important for the president to have a full set of views.” 75 It seems that Yates was more concerned with protecting DOJ’s policy prerogatives then advancing favorable recommendations for clemency petitions.

Yates choose to prioritize DOJ prerogatives over reform again when she testified against broad retroactive application of the U.S. Sentencing Commission’s Amendment 728 “drugs minus two” provision 76 because of “public safety concerns that arise from the release of dangerous drug offenders, and from the diversion of resources necessary to process over 50,000 inmates”—even though retroactive application would simply have brought these prisoners’ sentences in line with current law. 77 She further testified that the amendment should “be limited to lower-level non-violent drug offenders without significant criminal histories” because otherwise DOJ would have to use too many resources to release people from federal prison. 78 Fortunately, the U.S. Sentencing Commission made Amendment 728 broadly applicable, 79 and Yates’s fears about releasing, in her words, “dangerous drug offenders,” proved to be wrong. The U.S. Sentencing Commission recently issued a report stating that those released under Amendment 728 recidivated at the same rate as those who had served their full sentences before Amendment 728 was made retroactively applicable. 80

Despite this clear history of opposing criminal justice reform, Sally Yates was recently honored with a Champion of Justice Award by the National Association of Criminal Defense Lawyers. 81 But her actual record raises the question why. If Yates is given awards by the reform community, they should be based on her criminal justice reform record and not simply her party affiliation; otherwise, accountability for former federal prosecutors and DOJ policy officials becomes impossible. 82 Even beyond accountability, when directly impacted prisoners and their families see criminal defense lawyers honor the same prosecutors who opposed reform, they think the criminal justice system is a rigged game by elites, thereby undermining their faith in the criminal justice system and ultimately their lawyers. 83

The second way federal reform progress could be stymied is by criminal justice reform organizations holding out for comprehensive reform, or the perfect bill, when the politics of the moment will only allow for incremental reform. 84 While there have been many reforms at the state and local level in the past few years, 85 people incarcerated in the federal prison system have not experienced the same relief. As noted above, the very modest Sentencing Reform and Corrections Act was stalled in Congress for years, 86 and until the First Step Act, the last time Congress passed a federal prison-reform bill was in 2007—with the even more modest Second Chance Act. 87 In my lifetime, federal criminal justice reform has moved only incrementally, because it is exceedingly difficult to obtain broad consensus on criminal justice issues in Congress. 88 When Congress has actually tackled comprehensive reform, the results have been mixed, no matter which party was in the majority. 89 If this Congress tried tackling bold and comprehensive reform, I would have grave concerns. Imagine the tradeoffs that would have to be attached to any bill for it to successfully clear the Senate. 90

While public opinion is rapidly moving towards reform, Congress has not moved at the same pace. Even when it does move on reform, the inevitable political compromises often produce bad policy. Many in the federal reform community, for example, advocated against the list of exclusions from the First Step Act’s earned-time credit. 91 These exclusions prevent those who have committed certain crimes—such as violent, sexual, and certain white-collar crimes—from obtaining the earned-time credit and serving part of their sentence in home confinement rather than a federal prison. 92 The First Step Act’s exclusions will negatively affect public safety because those who have committed violent crimes will not be incentivized to successfully complete meaningful rehabilitation programming. But that does not mean they will never be released; it just means that fewer of those convicted of violent crimes will come out of federal prison rehabilitated as a result. 93 The exclusions were a compromise to which many in the House quickly acceded—some Democrats included—even as the reform community pressed for reducing the exclusion list, and even though many other parts of the bill changed substantially. In the current political climate, the best evidence-based practices are often excluded from legislation; in this, the First Step Act was no different.

After spending a year speaking with lawmakers on Capitol Hill, I did not see significant consensus—particularly from members elected from states in the Midwest and South—to pass comprehensive reform. And holding out for comprehensive reform will only prevent those currently in the federal system from receiving any relief while serving long sentences in deplorable conditions with little hope of accessing meaningful rehabilitative programs. Those in federal prison and their families should not have to wait for the perfect administration, the perfect Congress, and the perfect bill. The way forward is through incremental and bipartisan reform. 94

III. what criteria should the reform community use in deciding whether a reform bill is meaningful and worthy of support?

Deciding which tradeoffs, compromises, and bills to support is no easy task. When many of the federal reform groups convened for a meeting about First Step in fall 2018, we were told by congressional staffers that most of the sentencing reform would be applied prospectively only. That was hard to hear. Many of those in federal prison (including some friends of mine) would benefit from retroactive application of these sentencing provisions, which is why I argued for retroactivity at every meeting I attended. Yet at a certain point, when the votes for retroactive application just weren’t there, the question remained: support the First Step Act without retroactive application, or don’t support it at all? In the end, I supported the bill because, even while it was chock full of compromises, the Act met my criteria for “meaningful” reform.

In considering whether a federal criminal justice reform bill represents meaningful reform worth supporting, the following factors guide my decision-making: 1) whether the bill supports the goals of increasing fairness and public safety while also reducing reliance on prison as a sanction; 2) whether it reduces racial disparities in the criminal justice system; 3) whether those directly affected by the legislation support it; 4) whether there is a realistic probability of passing a better alternative in the near future; and 5) whether passage will lead to further reform. The First Step Act satisfied every one of those criteria.

The First Step Act reduces the imprint of the federal prison system, because it will reduce the time served by those who will be sentenced in federal court and those currently in the system. The First Step Act only contains sentencing provisions that reduce sentences. This is not a bill like the Sentencing Reform and Corrections Act, which, if it had passed, would have removed mandatory minimum punishments for some crimes while creating new mandatory minimums for other crimes. 95 On the prison reform side, the Act increases public safety by forcing the BOP to provide evidence-based rehabilitation programs that will reduce recidivism rates while at the same time moving people out of federal prison and into home confinement to serve part of their sentence. 96

I support legislation that reduces the worst forms of custody—such as incarceration in prison, which often fails to rehabilitate people and is criminogenic in and of itself 97 —even if the legislation simply moves people to reduced forms of custody, such as parole or home confinement. Oftentimes legislators are not comfortable with passing legislation leading to outright release, so moving people to home confinement is often the second-best option in our current political climate. To use a concrete example, I supported the Act’s earned-time provisions, which lead to release on monitored home confinement, even as I advocated for expanded good time that would result in outright release. One criminal justice reform organization, JustLeadershipUSA , opposed the First Step Act in part because it does not provide prisoners with outright release and instead expands home monitoring, thereby opening “the door wide open for the federal government to use these tools to expand mass supervision into communities across the country.” 98 Michelle Alexander, while not taking a public stance on the First Step Act, also argued that expansion of “e-incarceration” is difficult to call “progress.” 99 But the Act does not introduce these measures. The federal criminal justice system already employs halfway houses and home confinement while someone is serving their sentence, and most judges impose a period of supervised release to be served after a prison sentence. 100 So the First Step Act doesn’t expand “e-incarceration,” except to the extent that those currently incarcerated can serve more of their sentence in a halfway house or home confinement.

Certainly, we don’t want to replace a system of mass incarceration with a system of mass supervision. But the more immediate goal is not to remove supervision; it’s to move over 180,000 people out of the worst form of custody—prison. When people go to prison, they are exposed to a much greater risk of serious bodily injury, death, and suicide, and they are often delayed or even denied medical care. 101 Their children are at greater risk of developing health and psychological issues, and they often slip into lower socioeconomic statuses while achieving lower levels of educational attainment. One study estimated that children of incarcerated parents are six times more likely to become incarcerated themselves. 102 By moving some people out of federal prison and into home confinement, the First Step Act significantly reduces these harms. Home confinement—where at least families can be reunited, and people can sleep in their own bed without fear of assault—simply does not rise to the same level of harm as a prison sentence. If outright release is not politically feasible in this moment, the reform community should support bills that remove or reduce some of the greatest harms of the criminal justice system even as we move for more reform.

The Act will also reduce some, though not all, racial disparities in incarceration. The sentencing provisions of the First Step Act, both the retroactive and prospective provisions, will largely benefit African Americans. 103 At the same time, the earned-time provision will likely lead to more racial disparities because non-citizens who have been ordered deported, most of whom are Hispanic, 104 were excluded from the ability to earn credits towards early release. 105 In addition, the First Step Act excludes certain categories of offenses, which will have further racial consequences. For example, white defendants make up a large percentage of those charged and sentenced to federal sex offenses. 106 Because those who have committed sex offenses are precluded categorically from receiving earned time, that largely white group of prisoners will be excluded from early release. 107 With the different exclusions, from non-citizens to certain categories of offenders, predicting the racial aftermath is not currently possible. As to the earned-time provision, the Act includes a requirement that DOJ create a risk-assessment tool that is given independent review. This review will hopefully help to prevent future racial disparities for those released through the earned-time provision, and also track those that do occur, leading to refining of the risk-assessment tool until no unwarranted disparities remain. 108

When evaluating the First Step Act’s earned-time provision, I give ample deference to the views of those who are currently in prison. I’m in email contact with hundreds of people in federal prison and with their families through Facebook, in addition to serving on the board of FAMM, which remains in email contact with 35,000 of those incarcerated in federal prison. To my knowledge, an overwhelming majority of those in federal prison and their families support the Act, including a system of earned time that moves them from federal prison to home confinement. 109 The few in prison against the First Step Act were opposed not because it could lead to home confinement, but because most of the sentencing reform provisions will not be applied retroactively, meaning they will continue serving needlessly long sentences. 110 An evaluation of what represents best policy—especially when the policy choice consists of moving those in prison to lesser forms of custody—must consider and give great deference to the views of those currently and directly impacted. 111

Any evaluation of the First Step Act should be also mindful of the political climate in Congress. As noted above, that climate does not currently lead to policies providing outright release of those in federal prison. 112 Several reform groups pushed for Congress to create a system of expanded good-time credits that cut sentences short, rather than a system of earned-time credits that allow people to serve part of their sentence in home confinement. There was little appetite for more good time in Congress, especially from many conservatives. As noted above, federal reform opportunities rarely occur because of the enormous compromises that a majority of lawmakers must agree upon before a bill even comes to the floor for a vote. Reformers shouldn’t risk holding up a bill that moves people out of prison, without any provisions creating longer sentences, on the off chance that a preferred reform can pass several years from now. And, in fact, reform groups that publicly opposed the Act could not point to a potentially better alternative that is politically feasible in the near future.

There is also reason to believe that if the First Step Act’s passage will lead to further reform. If the earned-time provisions lead to lower recidivism rates, states will take notice and pass similar reforms. For better or worse, state governments look to the federal system as a model of best practices. Several states, including Florida, Tennessee, Kentucky, Alabama, and Illinois, have reached out to the reform community in the wake of the First Step Act passing, asking about using the bill as a model for their respective state prison systems. 113 That is no coincidence. When Congress passed and President Trump signed the First Step Act into law, it gave sufficient political cover for conservative state legislatures and governors to create their own reforms. The Act thus could ultimately bring about even more meaningful reforms in the state criminal justice systems, which hold the majority of the 2.2 million people held in U.S. jails and prisons.

The First Step Act will ultimately affect every person confined in federal prison and their families, even if the sentencing and earned-time provisions do not provide particular prisoners with earlier release. The Act will force changes in rehabilitative programming, and it provides other incentives that will be available to many in federal prison. For those who do obtain earlier release—whether by way of the earned-time, sentencing, or compassionate-release provisions—their release should alleviate some of the overcrowding and staffing issues currently in the federal prison system, creating improvements affecting everyone. Put differently, the Act might be modest, but it is also meaningful reform—undoubtedly the best reform bill to be passed by the Congress in the past forty years. 114

Three years ago, those of us in the criminal justice reform community would have been shocked to hear about a bill like the First Step Act passing. Congress had an almost a forty-year track record of either making criminal justice more punitive or stalling on any potential reform. But with the efforts of the criminal justice reform community pushing from all sides of the political aisle, Congress finally broke the logjam and passed meaningful reform. That incremental and modest reform will provide meaningful relief to those in federal prison and their families, while leading to a decrease in recidivism, making all our communities safer. And with a reinvigorated, newly powerful, and better-funded federal criminal justice reform community, hopefully the bipartisan and incremental second step won’t take so long.

Associate Professor of Law, Georgetown University Law Center. I’d like to thank the editors of the Yale Law Journal for inviting me to participate in this unique Collection of Essays highlighting the voices of the formerly incarcerated and for providing wonderful editorial advice. I’d also like to thank my research assistant, Margaret Rusconi , for her tireless research and wise comments on this Essay.

Volume 133’s Emerging Scholar of the Year: Robyn Powell

Announcing the eighth annual student essay competition, announcing the ylj academic summer grants program, this essay is part of a collection, critical voices on criminal justice: essays from directly affected authors.

People who have experienced incarceration have unique insights into the criminal system—insights that are often missing from legal scholarship and criminal justice policy. This Collection begins to bridge that gap.

What Break Do Children Deserve? Juveniles, Crime, and Justice Kennedy’s Influence on the Supreme Court’s Eighth Amendment Jurisprudence

Transcending the stigma of a criminal record: a proposal to reform state bar character and fitness evaluations, ending the incarceration of women and girls.

There are a few notable exceptions where Congress tried to make the federal criminal justice system more effective and less punitive. See Second Chance Act of 2007, Pub. L. No. 110-199, 122 Stat. 657 (2008) (providing resources for reentry); Prison Rape Elimination Act of 2003, Pub. L. No. 108-79, 117 Stat. 972 (establishing provisions to deter the sexual assault of prisoners).

Sentencing Reform Act of 1984 (SRA), Pub. L. No. 98-473, tit. II, ch. 2, 98 Stat. 1837, 1987.

See, e.g. , Frank O. Bowman, III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis , 105 Colum. L. Rev . 1315, 1315 (2005) (arguing that “the federal guidelines have failed due to structural flaws that cannot be mended without fundamental reform”); Paul Hofer, After Ten Years of Advisory Guidelines, and Thirty Years of Mandatory Minimums, Federal Sentencing Still Needs Reform , 47 U. Tol. L. Rev. 649, 657 (2016) (critiquing the Sentencing Guidelines because, taken together with mandatory minimums and congressional directives, they encourage judges to “impose sentences far greater than necessary to achieve the purposes of sentencing”); Michael Tonry , Federal Sentencing “Reform” Since 1984: The Awful as Enemy of the Good , 44 Crime & Just. 99, 100 (2015) (“What began as a modest, technocratic reform proposal . . . resulted in the most radical, controversial, and disliked sentencing system in American history.”); Brian Barnett Duff, Book Review, 47 Fed. Law. 52, 52 (2000) (reviewing Kate Stith & José A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts (1998)) (“The U.S. Sentencing Guidelines represent one [of] the most fallow and arcane failures of intended reform in the history of Congress.”).

See Radley Balko, America’s Drug War: 30 Years of Rampaging Wildebeest , Wash. Post (Oct. 28, 2016), https://www.washingtonpost.com/news/the-watch/wp/2016/10/28/americas -drug ‌‌ -war-30-years-of-rampaging-wildebeest [https://perma.cc/4LXH-8S4K].

See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207.

Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796.

See Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I, 110 Stat. 1214, 1217-26; Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, tit. VIII, 110 Stat. 1321-66 (1996) (codified at 42  U.S.C.  § 1997e).

See, e.g. , Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act, Pub. L. No. 108-21, § 401, 117 Stat. 650, 667 (2003) (limiting downward departures from sentencing guidelines for child exploitation offenses). The U.S. Sentencing Guidelines are no longer mandatory due to the Supreme Court’s finding that binding application of the guidelines to federal sentencing judges was unconstitutional. See Booker v. United States, 543 U.S. 220 (2005).

Shon Hopwood, Improving Federal Sentencing , 87 UMKC L. Rev . 79, 83-84 (2018); Ronald F. Wright, Federal or State? Sorting as a Sentencing Choice , 21 Crim. Just ., Summer 2006, at 16, 16-18 (“Roughly speaking, federal sentences are tougher than state sentences for most overlapping crimes.”). For some of those harsh sentences, see, for example, United States v. Okafor, 602 F. App’x 108, 109 (4th Cir. 2015), which rejected an Eighth Amendment challenge to Okafor’s 360-month sentence for eleven charges of possessing a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c), and Shon Hopwood, Clarity in Criminal Law , 54 Am. Crim. L. Rev . 695, 707 (2017), which describes Adam Clausen’s 213-year sentence for Hobbs Act robbery and the use of firearms in committing the robberies.

See Amanda Petteruti & Jason Fenster, Finding Direction: Expanding Criminal Justice Options by Considering Policies of Other Nations , Just. Pol’y Inst. 3 (Apr. 2011), http://www.justicepolicy ‌ .org/uploads/justicepolicy/documents/finding_direction-full_report.pdf [https://perma.cc ‌ /V8MU-38C7]; Peter Wagner & Wendy Sawyer, States of Incarceration: The Global Context 2018 , Prison Pol’y Initiative (June 2018), https://www.prisonpolicy.org/global/2018.html [https://perma.cc/TP23-QT9P].

Statistics: Past Inmate Population Totals , Fed. Bureau Prisons (Oct. 18, 2018) , https:// ‌ http://www.bop.gov/about/statistics/population_statistics.jsp#old_pops [https:// ‌ perma.cc ‌ /SEN5 ‌ -S4D3].

Sally Q. Yates, Deputy Att’y Gen., U.S. Dep’t of Justice, McNamara Memorial Lecture at Fordham University (Nov. 14, 2016), https://www.justice.gov/opa/speech/deputy-attorney -general ‌ -sally-q-yates-delivers-mcnamara-memorial-lecture-fordham [https://perma.cc ‌ /BA8U-7Y99] (“The Justice Department’s prison and detention costs have increased by almost three billion dollars in the past decade alone and now account for roughly one third of the department’s budget. This comes with significant public safety consequences because the growing [Bureau of Prisons] budget is crowding out everything else we do at the department.”).

The BOP’s one evidence-based rehabilitation program, called the Resident Drug Abuse Program, is the only current program to incentivize participation with earned-time credits that reduce a federal prisoner’s sentence. See Transforming Prisons, Restoring Lives: Final Recommendations of the Charles Colson Task Force on Federal Corrections , Charles Colson Task Force on Fed. Corrections 46 (Jan. 2016), https://www.urban.org/sites/default/files/publication ‌ /77101 ‌ /2000589-Transforming-Prisons-Restoring-Lives.pdf [https://perma.cc/47AT -WTQD].

Groups as diverse as the American Civil Liberties Union, the Heritage Foundation, the Brennan Center for Justice, and the American Conservative Union Foundation all support federal criminal justice reform. The push for federal criminal justice reform is one of the few bipartisan issues left in the Congress. See Ed Chung & Jason Pye , Congress Has a “Second Chance” for Bipartisan Criminal Justice Reform , Hill (Apr. 12, 2018, 6:00 AM), https://thehill.com /opinion ‌ /criminal-justice/382706-congress-has-a-second-chance-for-bipartisan-criminal -justice-reform [https://perma.cc/V3SA-EYAX] (noting that Republican Senators Chuck Grassley and Mike Lee and Democrat Senators Dick Durbin and Cory Booker “have stood united in their desire to address our ballooning prison population—and they still do”). The same bipartisan approach has worked for state-level criminal justice reform. See Promising Beginnings: Bipartisan Criminal Justice Reform in Key States , Am. C.L. Union 5-6 (2012), https:// ‌ http://www.aclu.org/sites/default/files/field_document/promising_beginnings _-_ ‌ bipartisan_criminal_justice_reform_in_key_states.pdf [https://perma.cc/QPP7 -BYPM]. While there might be bipartisan agreement that the criminal justice system needs reforming, that does not mean both sides of the political divide agree on why reform is needed or how to carry it out. See Benjamin Levin, The Consensus Myth in Criminal Justice Reform , 117 Mich. L. Rev . 101, 105 (2018) (describing the bipartisan consensus and arguing that it is more myth than fact).

Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (codified as amended in scattered sections of 21 and 28 U.S.C.) (reducing the crack-to-powder cocaine disparity needed to trigger mandatory minimum sentencing provisions, but applying those changes prospectively only). The Act was a modest reform because it did not reduce other mandatory minimum penalties, and the changes it made to the federal sentencing system were not made retroactively applicable to those who had already been sentenced. See Kara Gotsch , Opinion, Thousands Are Stuck in Prison—Just Because of the Date They Were Sentenced , Wash. Post (Jan. 31, 2018), https://www.washingtonpost.com/opinions/thousands-are-stuck-in-prison--just -because-of-the-date-they-were-sentenced/2018/01/31/0c1629e2-fd68-11e7-ad8c-ecbb6 ‌ 20 ‌ 1 ‌ 9 ‌ 393_story.html [https://perma.cc/8GAN-8A4Y].

See Sentencing Reform and Corrections Act of 2017, S. 1917, 115th Cong. (2017); Sentencing Reform and Corrections Act of 2015, S. 2123, 114th Cong. (2015); Carl Hulse, Why the Senate Couldn’t Pass a Crime Bill Both Parties Backed , N.Y. Times (Sept. 16, 2016), https://www .nytimes ‌ .com/2016/09/17/us/politics/senate-dysfunction-blocks-bipartisan-criminal -justice-overhaul.html [https://perma.cc/TE22-ECGL]. While Congress has gridlocked in passing sentencing reform, the states have taken the lead on criminal justice reform. See Rebecca Silber et al., Justice in Review: New Trends in State Sentencing and Corrections 2014-2015 , Vera Inst. Just. 3 (2016) https://storage.googleapis.com/vera-web-assets/downloads /Publications/justice-in-review-new-trends-in-state-sentencing-and-corrections-2014-2015 ‌ /legacy_downloads/state-sentencing-and-corrections-trends-2014-2015-updated.pdf [https:// ‌‌ perma.cc/QLE9-7E49] (“In 2014 and 2015, 46 states enacted at least 201 bills, executive orders and ballot initiatives to reform at least one aspect of their sentencing and corrections systems.”).

See, e.g., Reverse Mass Incarceration Act of 2017, S. 1458, 115th Cong. (2017). Part of the reason federal reform is so difficult is that for too long Congress has listened to only one stakeholder in creating federal criminal justice legislation: DOJ. But DOJ’s policy positions are often intended to only maintain or further prosecutorial power, as if that were the only legitimate goal of the criminal justice system. See Rachel E. Barkow & Mark Osler, Designed to Fail: The President’s Deference to the Department of Justice in Advancing Criminal Justice Reform , 59 Wm. & Mary L. Rev. 387, 392 (2017) (“The Department [of Justice] is the agency charged with prosecuting federal criminal laws, and its views on reform are inevitably colored by its prosecutorial functions and a bureaucratic preference for maintaining a status quo that favors the interests of prosecutors. In many areas, reform would require the Department to second-guess its own prior actions.”).

See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194.

Good time credits are earned for good behavior and they shorten the sentence a person in federal prison must serve. See 18 U.S.C. § 3624(b) (2018).

First Step Act § 104(a).

Id. § 403(b). “Compassionate release allows prisoners facing imminent death, advancing age, or debilitating medical conditions to secure early release when those developments diminish the need for or morality of continued imprisonment.” Mary Price, Everywhere and Nowhere: Compassionate Release in the States , FAMM 6 (2018), https://famm.org/wp-content/uploads ‌ /Exec ‌ -Summary-Report.pdf [https://perma.cc/JM9T-S9ME].

First Step Act § 301. Shackling is still permitted in the event of flight risk or dangerousness, if an appropriate medical professional determines it is safe. Id.

Ames Grawert & Tim Lau, How the FIRST STEP Act Became Law — and What Happens Next , Brennan Ctr. for Just. (Jan. 4, 2019), https://www.brennancenter.org/blog/how-first -step ‌‌ -act-became-law-and-what-happens-next [https://perma.cc/26US-ZARU].

First Step Act § 404.

Id . § 403.

My first experience with the federal criminal justice system was serving ten years in federal custody because I had committed several armed bank robberies. While serving my prison sentence, I assisted other prisoners in challenging their convictions and sentences, filed lawsuits challenging the lack of constitutionally adequate medical care, and urged prison staff to help incarcerated men with their reentry back into society. See generally Shon Hopwood, Law Man: Memoir of a Jailhouse Lawyer (2017). As a licensed attorney, I’ve litigated cases on behalf of criminal defendants and civil rights plaintiffs in all levels of the federal judiciary. As a legal scholar, I write about federal criminal law issues, including criminal procedure, sentencing, and prison reform. As an advocate, I’ve represented those seeking executive clemency. See Shon Hopwood, Why Matthew Charles Should Be Granted Clemency , Prison Professors (June 7, 2018), https://prisonprofessors.com/why-matthew-charles-should-be-granted -clemency [https://perma.cc/3ZXK-2XZ8]. In the past year, I’ve been blessed to work on federal reform legislation as a board member with FAMM and, informally, as an advisor to the White House’s Office of American Innovation and to Members of Congress. But the views espoused here are solely my own. During my time on Capitol Hill, I’ve spoken with representatives from most every major organization involved with federal criminal justice reform. My views in this Essay have been shaped by all of these experiences.

See, e.g ., Barack Obama, Commentary, The President’s Role in Advancing Criminal Justice Reform , 130 Harv . L. Rev. 811, 816 (2017) (noting that the United States has “an estimated 2.2 million incarcerated people, more than any other country on Earth”).

See supra notes 1-8 and accompanying text.

See Arthur Rizer & Lars Trautman, The Conservative Case for Criminal Justice Reform , Guardian (Aug. 5, 2018), https://www.theguardian.com/us-news/2018/aug/05/the-conservative -case-for-criminal-justice-reform [https://perma.cc/6QSB-QZKU] (noting that “[c] onservatism is not a “monolith” and that while many Republicans have long claimed to be for “law and order” and “tough on crime” policies, this has changed with the rise of the American Conservative Union Foundation and Freedom Works, both right-of-center groups that are fighting for criminal justice reform).

Republicans politicians are generally considered pro-law enforcement and have run political campaigns as being “tough on crime.” See David Dagan & Steven M. Teles , Prison Break: Why Conservatives Turned Against Mass Incarceration 18-29 (2016). And the most recent platform by the Republican Party in the 2016 presidential election was less reform-friendly than the Democratic plank. See Maurice Chammah , Two Parties, Two Platforms on Criminal Justice , Marshall Project (July 18, 2016, 9:51 PM), https://www .themarshallproject ‌ .org/2016/07/18/two-parties-two-platforms-on-criminal-justice [https:// ‌ perma.cc/56BZ-PVHH]. But both parties bear responsibility for some of the worst policies on federal criminal justice issues. Neither Republicans nor Democrats have had much success in creating effective and fair federal criminal justice policy. See Rachel E. Barkow , Clemency and Presidential Administration of Criminal Law , 90 N.Y.U. L. Rev. 802, 819 (2015) (“Elected officials responded to this public fear and dissatisfaction [with a ‘too lenient’ justice system] by taking ever-tougher stances on crime. Republicans embraced the strategy first, but Democrats quickly followed. Key interests have also pushed for more expansive and tougher criminal laws, including prosecutors, victims’ rights organizations, rural communities that may depend on prisons for jobs, private prison companies, and corrections unions.”). The root of the problem is the politics of crime. See generally William J. Stuntz , The Pathological Politics of Criminal Law , 100 Mich. L. Rev. 505 (2001).

See Ames C. Grawert , Analysis: Sen. Jeff Sessions’s Record on Criminal Justice , Brennan Ctr. for Just. , https://www.brennancenter.org/sites/default/files/analysis/Senator ‌ JeffSessions ‌ RecordonCriminalJustice.pdf [https://perma.cc/L5R8-WKRB].

See Josh Zeitz , How Trump Is Recycling Nixon’s ‘Law and Order’ Playbook , Politico (July 18, 2016), https://www.politico.com/magazine/story/2016/07/donald-trump-law-and-order -richard-nixon-crime-race-214066 [https://perma.cc/MW63-DF4V]; see also German Lopez, Donald Trump Wants to Bring Back the “Tough on Crime” Policies that Helped Cause Mass Incarceration , Vox (Sept. 21, 2016, 3:25 PM), https://www.vox.com/2016/5/25/11737264/donald -trump-criminal-justice-republican-president [https://perma.cc/K3CV-8TNS].

In May 2018, President Trump held a prison reform summit in the East Wing of the White House with many formerly incarcerated advocates of all political stripes, myself included. See Gregory Korte, Trump Pushes for Prison Reform at White House Summit. Will Some Reform Lead to More? , USA Today (May 18, 2018, 12:20 AM), https://www.usatoday ‌ .com ‌ /story ‌ /news ‌ /politics ‌ /2018/05/18/prison-reform-trump-pushes-bipartisan-solution/621534002 [https:// ‌ perma.cc/3HWC-J9TJ]. And the President commuted the sentence of Alice Marie Johnson, a woman who had served over twenty-one years of a life-without-parole-sentence for a federal drug offense. See Peter Baker, Alice Marie Johnson Is Granted Clemency by Trump After Push by Kim Kardashian West , N.Y. Times (June 6, 2018), https://www.nytimes.com ‌ /2018 ‌ /06/06 ‌ /us ‌ /politics/trump-alice-johnson-sentence-commuted-kim-kardashian-west.html [https:// ‌ perma.cc/H67V-M6AA].

H.R. 5682, 115th Cong. (as passed by House, May 22, 2018); supra note 25 (noting that this initial version of the First Step Act lacked sentencing reform “passed the House of Representatives by a wide margin of 360 to 59”).

See Jordain Carney, Grassley: Sessions Should ‘Stay out of’ Criminal Justice Debate After I Helped Him Keep His Job , Hill (Aug. 2, 2018, 1:39 PM), https://thehill.com/homenews/senate ‌ /400114 ‌ -grassley-sessions-should-stay-out-of-criminal-justice-debate-after-i-helped [https:// ‌‌‌ perma.cc/U5XX-XQMN]; Carl Hulse, Why Some Senators Who Want a Criminal Justice Overhaul Oppose a Prisons Bill , N.Y. Times (May 26, 2018), https://www.nytimes.com ‌ /2018 ‌ /05/26/us/politics/criminal-justice-overhaul-prison-bill.html [https://perma.cc ‌ /M7QC ‌‌ -WRHA]. At one time, Senator Grassley was opposed to sentencing reform, but he changed his views after watching reform occur in the states. See Nick Pinto, Why Can’t We End Mass Incarceration? , Rolling Stone (Oct. 26, 2015, 3:03 PM), https://www.rollingstone ‌ .com/politics/politics-news/why-cant-we-end-mass-incarceration-166420 [https://perma ‌ .cc ‌ /3BAZ-Q3MU].

First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194; see Grawert & Lau, supra note 25. The First Step Act is still incredibly modest reform that hardly scratches the surface of mass incarceration in the federal system. And yet, no prior federal criminal justice reform has tackled some of the unique problems faced by those confined in the BOP system. The Act does not go nearly far enough, but it is also the best federal reform bill of my lifetime. See Shon Hopwood, Why I Support the First Step Act , Prison Professors (May 22, 2018), https:// prisonprofessors.com/why-i-support-the-first-step-act [https://perma.cc/DR8B-7Y9L].

See Jordyn Phelps, Inside Jared Kushner’s Personal Crusade to Reform America’s Prisons , ABC News (Apr. 8, 2018, 6:29 AM). In my interactions with Jared Kushner, he has been knowledgeable about criminal justice policy and passionate about creating reform. And I’ve heard several members of Congress, from both parties, say that Jared Kushner was the single most important person in the fight for the Act’s passage (besides, of course, the politicians that voted for the Act).

See Andrea Drusch , Fort Worth’s Rollins Joins Kushner-Run White House Post , Fort Worth Star-Telegram (Feb. 16, 2018, 12:05 PM), https://www.star-telegram.com/news/politics -government/article200525239.html [https://perma.cc/RT3T-7C4V]; Glenn Thrush & Danielle Ivory, Turf War Between Kushner and Sessions Drove Federal Prisons Director to Quit , N.Y. Times (May 24, 2018), https://www.nytimes.com/2018/05/24/us/politics/mark-inch -kushner ‌‌ -sessions-federal-prisons.html [https://perma.cc/GBE6-YX8Z].

See, e.g. , Doug Collins, 05 22 18 Collins Advocates for FIRST STEP Act , YouTube (May 22, 2018), https://www.youtube.com/watch?v=qjeWC04dSCk (showing Rep. Doug Collins, a Republican from Georgia, speaking on the House floor in favor of the First Step Act); see also Obama, supra note 31, at 822 (“[U] nlike so many issues that divide Washington, D.C., criminal justice is an area in which there is increasing bipartisan agreement. A number of Republicans have been vocal and sincere advocates for reform efforts even as they were otherwise frequent critics of my Administration.”).

See, e.g. , John Wagner & Karoun Demirjian, Senate Overwhelmingly Backs Overhaul of Criminal Justice System , Wash. Post (Dec. 18, 2018), https://www.washingtonpost.com/politics /senate ‌ -overwhelmingly-backs-overhaul-of-criminal-justice-system/2018/12/18/89efffb6 -02e7-11e9-9122-82e98f91ee6f_story.html [https://perma.cc/Y9ER-PJJZ] (noting that all forty-nine Democratic Senators voted for the First Step Act).

See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012).

See Levin, supra note 14, at 117 (noting a “spike in criminal justice reform literature following the release of The New Jim Crow ”).

See , for example, Paul Butler, Chokehold: Policing Black Men (2017); James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America (2017), which won the 2018 Pulitzer Prize for nonfiction; and John F. Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (2017).

Former New York Times executive editor Bill Keller became editor-in-chief of The Marshall Project, and several prominent conservatives started the Right on Crime network. See Bill Keller, Prison Revolt: A Former Law-and-Order Conservative Takes a Lead on Criminal-Justice Reform , New Yorker (June 29, 2015), https://www.newyorker.com/magazine/2015/06 ‌ /29 ‌ /prison-revolt [https://perma.cc/M7RZ-WEDH]; Ravi Somaiya, Bill Keller, Former Editor of the Times, Is Leaving for News Nonprofit , N.Y. Times (Feb. 9, 2014), https://www.nytimes ‌ .com ‌ /2014 ‌ /02/10/business/media/bill-keller-former-editor-of-the-times-is-leaving-for-news -nonprofit.html [https://perma.cc/T3AY-CWE5].

See, e.g. , FAMM Launches Groundbreaking Campaign to Organize Families of the Incarcerated in Pennsylvania , FAMM (Sept. 25, 2018), https://famm.org/famm-launches ‌ -groundbreaking -campaign-to-organize-families-of-the-incarcerated-in-pennsylvania [https://perma.cc ‌ /QZ75 ‌ -D5H2]; About Us , Sent’g Project , https://www.sentencingproject.org/about-us [https://perma.cc/B46P-LS92]. FAMM once stood for Families Against Mandatory Minimums, and the Sentencing Project is a small reform shop started by Executive Director Marc Mauer. Both organizations advocate for sentencing reform and alternatives to incarceration.

See Victims’ Rights Amendment: Hearing on H.J. Res. 45 Before the Subcomm . on the Constitution and Civil Justice of the H. Comm. on the Judiciary , 114th Cong. 101-22 (2015) (written statement of Amy Baron-Evans on behalf of Federal Public and Community Defenders); Mission & Vision , Nat’l Ass’n Crim. Def. Law. , https://www.nacdl.org/about/mission-and-values [https:// ‌ perma.cc/V7CE-H3ZU].

Just Leadership USA, #cut50, and Civil Rights Corps are examples of new organizations dedicated to criminal justice reform. See About Us , Just Leadership USA , https://www .justleadershipusa.org/about-us [https://perma.cc/UZ2T-2GD4]; Our Mission & Work , # cut50 , https://www.cut50.org/our_mission [https://perma.cc/DX24-S4JD]; Our Work , C.R. Corps , https://www.civilrightscorps.org/work [https://perma.cc/S3ZD-KSZT].

See, e.g ., Smart Justice , ACLU , https://www.aclu.org/issues/smart-justice/campaign ‌ -smart -justice [https://perma.cc/EZ6Z-Y3FQ].

See, e.g ., Scott Bland, George Soros’ Quiet Overhaul of the U.S. Justice System , Politico (Aug. 30, 2016), https://www.politico.com/story/2016/08/george-soros-criminal-justice-reform -227519 [https://perma.cc/ZB3E-LVW8]; Jackie Borchardt, Facebook Founders Among Backers of Ohio Criminal Justice Reform Amendment , Cleveland.com (Aug. 23, 2018), https://www ‌ .cleveland.com/metro/index.ssf/2018/08/facebook_founders_among_backer.html [https:// ‌ perma.cc/7XSR-KCVH]; Camila Domonoske , Art Collector Sells a Lichtenstein for $165 Million to Fund Criminal Justice Reform , NPR (June 12, 2017), https://www.npr.org/sections/thetwo -way ‌ /2017/06/12/532597956/art-collector-sells-lichtenstein-for-165-million-to-fund -criminal-justice-reform [https://perma.cc/2ENU-JVV2]; Drew Lindsay, F usion of Old and New Supporters Drives Record $60 Million Campaign for Group Seeking Criminal-Justice Reform , Chron. Philanthropy (Apr. 12, 2018), https://www.philanthropy.com/article/Fusion-of - OldNew /243083 [https://perma.cc/3VJ3-DLUS]; Jim Trotter & Jason Reid, Players Debating NFL’s Proposed Donation to Social Justice Organizations , ESPN (Nov. 29, 2017), http:// ‌ www ‌ .espn ‌ .com/nfl/story/_/id/21606390/nfl-offers-100-million-plan-social-justice -organizations ‌ -partnership-players [https://perma.cc/797V-LYSM].

See sources cited supra note 10.

See, e.g. , Maura Ewing, Philadelphia’s New Top Prosecutor Is Rolling Out Wild, Unprecedented Criminal Justice Reforms , Slate (Mar. 14, 2018, 5:47 PM), https://slate.com/news-and-politics ‌ /2018/03/phillys-new-top-prosecutor-is-rolling-out-wild-unprecedented-criminal-justice -reforms.html [https://perma.cc/V85K-RGS6]; Michelle Mark, Texas Is Shedding Its Lock-’ Em -Up Image Thanks to a 37-Year-Old Tattooed Lawyer and an Unlikely Political Alliance , Bus. Insider (July 29, 2017, 4:03 PM), https://www.businessinsider.com/texas-criminal-justice -reform-conservatives-liberals-bipartisan-alliance-2017-7 [https://perma.cc/DR3M-J5CQ]; Reform in the States: A Survey for Success , Charles Koch Inst ., https://www .charleskochinstitute ‌ .org/blog/reform-states-survey-success [https://perma.cc/MNH7 -35TK]; Silber et al., supra note 16 (discussing trends in state-level criminal justice reform). Recent polling has consistently shown that Americans’ attitudes about criminal justice reform are changing. See C.J. Ciaramella , Poll Shows Wide Support for Criminal Justice Reform Bill in Congress , Reason (Oct. 18, 2018), https://reason.com/blog/2018/10/18/poll-shows-wide -support-for-criminal-jus [https://perma.cc/7BDQ-GK8S]; Lydia Wheeler, Poll: ¾ of Americans Support Criminal Justice Reform , Hill (Jan. 25, 2018) https://thehill.com/regulation ‌ /370692-poll-3-4-of-americans-support-criminal-justice-reform [https://perma.cc/D7NB -YK2T].

See, e.g ., Andrea Drusch , Koch Network, Texas Think Tank Team up on Criminal Justice Reform , Fort Worth Star-Telegram (Jan. 24, 2018), https://www.star-telegram.com/news /politics ‌‌ -government/article196455774.html [https://perma.cc/EA6P-RB2U]; Justin George , Can Bipartisan Criminal-Justice Reform Survive in the Trump Era? , New Yorker (June 6, 2017), https://www.newyorker.com/news/news-desk/can-bipartisan-criminal-justice -reform-survive-in-the-trump-era [https://perma.cc/HD38-824E]; Emma Loop, Conservative Criminal Justice Advocates Try to Change the System—Even in the Trump Era , BuzzFeed News (Feb. 24, 2017), https://www.buzzfeednews.com/article/emmaloop/conservative -criminal ‌ -justice-advocates-try-to-change-the-sy [https://perma.cc/E6Z5-7EWH].

See, e.g ., Sarah Anderson, DOJ Overtly Attempts to Undermine President Trump’s Prison Reform Agenda , FreedomWorks (Aug. 1, 2018), https://www.freedomworks.org/content/doj -overtly ‌‌ -attempts-undermine-president-trumps-prison-reform-agenda [https://perma.cc ‌ /8MPB-F7PA]; Statement from Mark Holden on DOJ Charging and Sentencing Policy , Freedom Partners (May 12, 2017), https://freedompartners.org/latest-news/statement-mark-holden ‌ -doj ‌ -charging-sentencing-policy/ [http://perma.cc/56NT-BNZH]; Jon Meadows, FreedomWorks on Attorney General Jeff Sessions’ Sentencing Memo , FreedomWorks (May 12, 2017), https://www.freedomworks.org/content/freedomworks-attorney-general-jeff-sessions -sentencing-memo [https://perma.cc/W46F-5DB6].

See Gregory Korte, Kardashian Effect: Trump White House Tries to Tame a Chaotic, Celebrity-Driven Approach to Pardons , USA Today (Sept. 10, 2018, 2:19 PM), https://www.usatoday ‌ .com ‌ /story/news/nation/2018/09/09/kardashian-effect-white-house-looks-beyond -celebrity-clemency-pleas/1076355002 [https://perma.cc/L9VU-4E3A] (noting that the Koch Institute has coordinated the compilation of a list of candidates for pardons or commutations, and that Paul Larkin from the Heritage Foundation and Leonard Leo from the Federalist Society attended a White House meeting on executive clemency reform); Elana Schor, Criminal Justice Deal Faces Steep Senate Hurdles Despite Trump’s Push , Politico (Aug. 17, 2018), https://www.politico.com/story/2018/08/17/senate-criminal-justice-deal-trump-781876 [https://perma.cc/V559-XU87] (noting that FreedomWorks and Koch Industries were advocating for a prison and sentencing reform bill in the Senate).

See Dignity for Incarcerated Women at the White House Prison Reform Summit , C-SPAN (May 18, 2018), https://www.c-span.org/video/?c4754995/dignity-incarcerated-women-white -house-prison-reform-summit.

First Step Act of 2018, Pub. L. No. 115-391, § 611, 132 Stat. 5194

See Kevin Ring, I Once Wrote Mandatory Minimum Llaws . After Ties to Abramoff Landed Me in Prison, I Know They Must End. , USA Today (Oct. 16, 2018, 8:17 PM ET), https://www .usatoday ‌ .com/story/opinion/policing/spotlight/2018/10/16/abramoff-lobbyist-mandatory -minimums-prison-reform-policing- usa /1652192002 [https://perma.cc/B6DU-8MVJ].

I was present for many of those meetings in which Pat rather forcefully reminded everyone of the moral imperative to pass reform and give those coming out of prison a second chance. Pat has long been a leader in moving conservatives to support criminal justice reform for decades.

See Glenn E. Martin, Those Closest to the Problem Are Closest to the Solution , Appeal (Sept. 22, 2017), https://theappeal.org/those-closest-to-the-problem-are-closest-to-the-solution-555e ‌ 0 ‌ 4317b79 [https://perma.cc/Q9NS-G5P4]. Glenn Martin coined the phrase that “those closest to the problem are closest to the solution.”

See 91 Percent of Americans Support Criminal Justice Reform, ACLU Polling Finds , ACLU (Nov. 16, 2017), https://www.aclu.org/news/91-percent-americans-support-criminal-justice -reform ‌‌‌‌ - aclu -polling-finds [https://perma.cc/32YP-XM2Q]; Wheeler, supra note 55.

See Kindred Motes, Conservatives—and Trump Voters—Overwhelmingly Support Criminal Justice Reform, New Poll Says , Vera Inst. Just. (Apr. 29, 2017), https://www.vera.org/blog /conservatives-trump-voters-overwhelmingly-support-criminal-justice-reform-new-poll -says [https://perma.cc/8RYN-DFGQ].

I am thankful for groups that pressed for sentencing reform to be included in the bill. Ultimately, sentencing reform was added to the First Step Act. See Alexander Bolton, GOP Loads Up Lame-Duck Agenda as House Control Teeters , Hill (Oct. 11, 2018, 6:00 AM), https:// ‌ thehill ‌ .com ‌ /homenews/senate/410882-gop-lame-duck ‌ -agenda-grows-as-house-control-teeters [https://perma.cc/P38Z-CHYR] (explaining that bipartisan sentencing reform provisions would be added to the First Step Act in the Senate). But I don’t think the addition of sentencing reform resulted from the stance of advocacy groups. Unfortunately, the criminal justice reform lobby does not have the same power with politicians that groups such as the insurance and big pharma lobby possess. The decision to add sentencing reform to the First Step Act was a White House decision, and the fact that many left-leaning groups took a stance of “sentencing reform or nothing” likely had little impact on that decision. The person who most effected that decision was Senator Chuck Grassley, who held out for sentencing reform as Chairman of the Senate Judiciary Committee. Senator Grassley had success in moving President Trump’s judicial nominees through the confirmation process, and in the summer of 2018, Grassley had ample political capital to burn with the White House. It was his influence that led to the White House to include sentencing reform in the Act despite then-Attorney General Jeff Sessions’s opposition to sentencing reform. In addition, some in the White House had always planned for sentencing reform to be added to the bill once it advanced out of the House of Representatives in May 2018. All of the reform groups that advocated for the First Step Act’s passage should share in the credit, but it is important for the advocacy community to know what strategies were successful and why. Yes, the strategy of holding out for sentencing reform was successful, but it was only successful because the Republican leader of the Senate Judiciary Committee backed that play. One could also make the argument that it was bad strategy to secure the initial First Step Act vote in the House before sentencing reform was added. See Letter from The Leadership Conference on Civil and Human Rights to Representatives 4 (May 21, 2018), http://civilrightsdocs.info/pdf/policy/letters/2018/Short_Oppose ‌ %20FIRST%20STEP%20Act_5.21.18_FINAL.pdf [https://perma.cc/V2U8-TLJ6]. But if a bill had not advanced out of the House and provided the White House some forward momentum, I don’t think the compromise adding sentencing reform (as happened in the Senate) would have occurred, and the Act would have likely failed to pass.

See Phillip M. Bailey, ACLU: McConnell is the ‘One Person’ Blocking Criminal Justice Reform , Courier J. (Nov. 27, 2018), https://www.courier-journal.com/story/news/politics/2018 ‌ /11 ‌ /27 ‌ /aclu-tells-mcconnell-stop-obstructing-criminal-justice/2117816002/ [https://perma.cc ‌ /D46Z-G2RX]; Ed Chung, The Dilemma of Endorsing the FIRST STEP Act During the Trump Administration , Ctr. Am. Progress (Nov. 20, 2018), https://www.americanprogress.org /issues ‌ /criminal-justice/news/2018/11/20/461279/dilemma-endorsing-first-step-act-trump -administration [https://perma.cc/9HFC-8S4C]; Tim Lau, Congress Is Poised for a Major Step on Sentencing Reform , Brennan Ctr. Just. (Nov. 14, 2018), https://www.brennancenter ‌ .org ‌ /blog/congress-poised-major-step-sentencing-reform [https://perma.cc/6U5H-3BNN].

#cut50 is a bipartisan criminal justice advocacy group dedicated to reducing the prison population while making communities safer; Van Jones and Jessica Jackson Sloan lead the organization. See Our Mission & Work , # cut50 , https://www.cut50.org/our_mission [https:// ‌ perma ‌ .cc/NBT8-DLA5].

See, e.g. , Abbe Smith, Good Person, Good Prosecutor in 2018 , 87 Fordham L. Rev. Online 3 (2018); Paige St. John & Abbie Vansickle , Prosecutor Elections Now a Front Line in the Justice Wars , Marshall Project (May 23, 2018), https://www.themarshallproject.org ‌ /2018/05 ‌ /23 ‌ /prosecutor-elections-now-a-front-line-in-the-justice-wars [ https://perma.cc/WEL8 -FQT7 ].

See, e.g. , Maura Ewing, New York’s Prosecutorial Misconduct Review Panel Could Be Groundbreaking , Slate (Aug. 28, 2018), https://slate.com/news-and-politics/2018/08/new-yorks -prosecutorial-misconduct-review-panel-could-be-groundbreaking.html [ https://perma.cc ‌ /FYY9-QEFU] ; St. John & Vansickle , supra note 69 ; UNC School of Law Launches Prosecutors and Politics Project , UNC Sch. L. (Feb. 27, 2018), http://www.law.unc . ‌ edu/news ‌ /2018/02/27 ‌ /school-launches-prosecutors-and-politics-project [ https://perma.cc/F4F8-WRLK ].

See Office of the Inspector Gen., U.S. Dep’t Justice, Review of the Department’s Clemency Initiative (Aug. 2018), https://oig.justice.gov/reports/2018/e1804.pdf [https:// ‌ perma ‌ .cc/N84S-BJW2] (“Once [the Office of Pardon Attorney (‘OPA’)] completes its investigation and prepares a proposed recommendation to the White House, staff in the Office of the Deputy Attorney General assess the petition and provide it to the Deputy Attorney General. If the Deputy Attorney General disagrees with OPA’s proposed recommendation, the Deputy Attorney General can either request OPA to provide a different recommendation based upon the Deputy Attorney General’s assessment or submit to the White House both the Deputy Attorney General’s position and the Pardon Attorney’s position on the petition. Thereafter, the Deputy Attorney General signs and presents the recommendation to the White House Counsel, who reviews it prior to presenting it to the President.”).

See Mark Osler, Obama’s Clemency Problem , N.Y. Times (Apr. 1, 2016), https://www.nytimes ‌ .com/2016/04/01/opinion/obamas-clemency-problem.html [https://perma.cc/S5GA -GHX8] (“When the pardon attorney, Deborah Leff , resigned in January, she complained in her letter of resignation that meritorious clemency cases had been thwarted by those above her. She noted in particular that some of her own recommendations had been overruled by the deputy attorney general, Sally Quillian Yates.”). Ms. Yates’s negative recommendations might have included Alice Marie Johnson’s clemency petition. Ms. Johnson had a life sentence for a federal drug offense and she applied three times during the Obama Administration for a commutation of her sentence, with her last attempt on January 6, 2017. See Jeremy Diamond & Caitlan Collins, Trump Commutes Sentence of Alice Marie Johnson , CNN (June 6, 2018), https:// ‌ http://www.cnn.com/2018/06/06/politics/alice-marie-johnson-commuted-sentence /index ‌ .html [ https://perma.cc/AFA2-AYSV ]. She was denied three times. President Trump commuted her sentence to time served. See Peter Baker, Alice Marie Johnson Is Granted Clemency by Trump After Push by Kim Kardashian West , N.Y. Times (June 6, 2018), https://www .nytimes.com/2018/06/06/us/politics/trump-alice-johnson-sentence-commuted-kim -kardashian-west.html [ https://perma.cc/JFY9-F4MF ].

See Gregory Korte, Former Administration Pardon Attorney Suggests Broken System in Resignation Letter , USA Today (Mar. 28, 2016, 2:48 PM EST), https://www.usatoday.com/story/news ‌ /politics/2016/03/28/former-administration-pardon-attorney-suggests-broken-system -resignation-letter- obama /82168254/ [https://perma.cc/G2SZ-BW4C].

See Christopher Zoukis, Drugs Minus Two FAQ: Everything You Need to Know About Amendment 782 , HuffPost (Sept. 16, 2014), https://www.huffingtonpost.com/christopher - zoukis /drugs-minus-two-faq-every_b_5831876.html [https://perma.cc/E5Q4-S6SZ] (explaining that the U.S. Sentencing Commission adjusted its Drug Quantity Table downward by two levels under Amendment 728).

Public Hearing on Retroactivity of 2014 Drug Amendment , U.S. Sentencing Comm’n 110-11 (June 10, 2014), https://www.ussc.gov/sites/default/files/transcript_1.pdf [https://perma.cc ‌ /D92V-DX9T].

See  U.S. Sentencing Guidelines Manual app. C supp., amend. 782 (U.S. Sentencing Comm’n 2014).

See U.S. Sentencing Comm’n , Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment 1 (2018), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research -publications/2018/20180328_Recidivism_FSA-Retroactivity.pdf [https://perma.cc/8TTN -VGJM ] (“The Commission finds no difference between the recidivism rates for offenders who were released early due to retroactive application of the FSA Guideline Amendment and offenders who had served their full sentences before the FSA Guideline Amendment reduction retroactively took effect.”).

See Champion of Justice Awards , Nat’l Ass’n Crim. Def. Law., https://www.nacdl.org ‌ /awards ‌ /championofjustice [ https://perma.cc/PU28-CQAE ]. I am a proud member of the National Association of Criminal Defense Lawyers (NACDL) and have tremendous respect for the organization and the people who operate it; and my disagreement with giving Sally Yates an award does not in any way diminish that respect for NACDL or its role on criminal justice reform matters.

Sally Yates was my colleague at the Georgetown University Law Center, and we met while receiving awards from the Bar of the District of Columbia. I wish her nothing but success in her new career. I simply disagree with the notion that her DOJ record should be venerated with awards. My guiding principle is to work with anyone who will meaningfully reform the criminal justice system. Needless to say, if Ms. Yates’s views have evolved, this certainly includes her. See Sally Q. Yates, Opinion, Don’t Let Trump’s Use of Celebrities Distract You from His Criminal-Justice Failures , Wash. Post ( Oct . 16, 2018), https://www.washingtonpost ‌ .com ‌ /opinions/dont-let-trumps-use-of-celebrities-distract-you-from-his-criminal-justice -failures ‌ /2018/10/16/2bfd7b14-d096-11e8-a275-81c671a50422_story.html?utm ‌ _term= ‌ .1a0de ‌ 1c614e6 [ https://perma.cc/Z9EK-NC7P ] (criticizing the Trump Administration’s record on criminal justice and advocating reforms including “ restor [ ing ] proportionality to drug sentencing”).

The reform community, and especially the progressive reform community, will be pressed quickly to decide whether to provide political support to former prosecutors with troubling records who are now running for office. See Lara Bazelon, Opinion, Kamala Harris Was Not a ‘Progressive Prosecutor , ’ N.Y. Times (Jan. 17, 2019), https://www.nytimes.com/2019/01 ‌ /17 ‌‌ /opinion ‌‌ /kamala-harris-criminal-justice.html [https://perma.cc/KDB8-RVVK]; Ed Krayewski , Kamala Harris: No Friend to Criminal Justice Reform , Reason (Jan. 12, 2018, 11:15 AM), https://reason.com/blog/2018/01/12/kamala-harris-is-not-smart-on-crime [https:// ‌ perma ‌ .cc/F2QW-5SPD]. The criminal justice system’s breadth and impact on American communities is massive. One recent study estimates that 113 million people in the United States have a close family member who has been incarcerated. See Christal Hayes, ‘This Isn’t Just Numbers – but Lives’: Half of Americans Have Family Members Who've Been Incarcerated , USA Today (Dec. 6, 2018, 6:10 AM ET), https://www.usatoday.com/story/news/politics/2018 ‌ /12 ‌ /06 ‌ /half-americans-have-family-who-have-been-jailed-new-study-shows/2206521002/ [https://perma.cc/PBH9-BYPR]. Mass incarceration is the single most important liberty and civil rights issue of our day, and those running for elected office with backgrounds of supporting the carceral state have a high bar in convincing me to vote for them.

See Shon Hopwood, Those in Federal Prison and Their Families Can’t Wait for the Ideal Reform Bill. A Response to Just Leadership , Prison Professors (July 26, 2018), https:// prisonprofessors ‌ .com/first-step [ https://perma.cc/AQZ3-CG4K ].

See Silber et al., supra note 16; Charles Koch Inst ., supra note 55.

See Hulse, supra note 16.

See generally , Michael M. O’Hear , The Second Chance Act and the Future of Reentry Reform , 20 Fed. Sent. R. 75 (2007).

Other legal scholars also believe there is little support for a movement to completely reform the federal criminal justice system. As Professor Douglas A. Berman notes,

I would like to see reform that goes beyond the FIRST STEP Act. But broader reforms have been stalled by leaders in DC who are likely to be in place at least until 2020 if not later. Hoping and waiting for something better leaves current prisoners and their families waiting and waiting and waiting. And if the politics are really behind “overhauling and wholly transforming our criminal justice system” now or later, passage of the FIRST STEP Act seems very unlikely to change those politics.

Douglas A. Berman, Another Attack on the FIRST STEP Act Failing to Acknowledge Modern Political Realities , Sent’g L. & Pol’y (July 21, 2018), https://sentencing.typepad.com/sentencing ‌ _law_and_policy/2018/07/another-attack-on-the-first-step-act-failing-to-acknowledge -modern-political-realities-.html [ https://perma.cc/443U-D9YX ].

See Sentencing Reform Act of 1984 (SRA), Pub. L. No. 98-473, 98 Stat. 1987; see also discussion supra notes 2-3 and accompanying text.

Republican Senator Tom Cotton would likely attempt to load any reform bill with new mandatory minimum punishments. See Rachel Roubein , GOP Senators Push Tougher Sentencing for Synthetic Opioid , Hill (Mar. 22, 2018), https://thehill.com/policy/healthcare/379761-gop ‌ -senators-push-tougher-sentencing-for-powerful-synthetic-opioid [https://perma.cc ‌ /6RHL ‌ -J8BS] (explaining how Senator Cotton introduced a bill that would reduce the amount of fentanyl required for mandatory minimum sentences to apply). Senator Cotton has a long history of opposing reform and has claimed that the United States has an “ underincarceration problem.” Nick Gass , Sen. Tom Cotton: U.S. Has ‘Under-incarceration Problem,’ Politico (May 19, 2016), https://www.politico.com/story/2016/05/tom-cotton-under -incarceration-223371 [https://perma.cc/ZB5X-75AR]; see also Megan Keller, Cotton: Reducing Mandatory Minimum Sentencing Isn’t Reform, It’s Jailbreak , Hill (Aug. 16, 2018), https:// ‌ thehill ‌ .com/homenews/news/402145-cotton-striking-mandatory-minimums-isnt-criminal -justice-reform-its-jailbreak [https://perma.cc/3FDB-5LRG].

See Letter from the Leadership Conference on Civil and Human Rights to the House Judiciary Comm. (May 8, 2018), http://civilrightsdocs.info/pdf/policy/letters/2018/not-retroactive -Sign ‌ -On-Letter-Oppose-First%20Step%20Act-5.8.18-FINAL.pdf [https://perma.cc ‌ /NA8B ‌ -82RY].

See First Step Act, H.R. 5682, 115th Cong. § 3632(d)(4)(D) (as passed by House of Representatives, May 22, 2018).

See Shon Hopwood, Beyond First Steps: How to Reform the Federal Bureau of Prisons , Fed. Sent. R. (forthcoming 2019) (on file with author).

See Obama, supra note 31, at 822 (“But because the current system reflects years of changes and policy developments, I am also clear-eyed about the fact that change will likely happen gradually, with an emphasis on evidence-based reforms and incremental approaches that enjoy broad support.”).

See Sentencing Reform and Corrections Act of 2017, S. 1917, 115th Cong. § 109 (proposing new mandatory minimum sentencing provisions for fentanyl offenses).

First Step Act of 2018, Pub. L. No. 115-391, §§ 101, 602, 132 Stat. 5194.

See Martin H. Pritikin, Is Prison Increasing Crime? , 2008 Wis. L. Rev . 1049 (arguing that incarceration may be causing a net increase in crime).

See POLICY BRIEF: FIRST STEP Act and Sentencing Reform and Corrections Act , JustLeadershipUSA , https://www.justleadershipusa.org/wp-content/uploads/2018/11/First-Step-Act ‌ _Policy ‌ -Brief_-112019.pdf [https://perma.cc/7CCS-6J8U].

Michelle Alexander, Opinion, The Newest Jim Crow , N.Y. Times (Nov. 8, 2018), https:// ‌ www ‌ .nytimes.com/2018/11/08/opinion/sunday/criminal-justice-reforms-race-technology.html [https://perma.cc/99Y4-SX25].

See 18 U.S.C. § 3621(b) (2018) (providing the BOP may designate “any available penal or correctional facility that meets minimum standards of health and habitability”); 18 U.S.C. § 3624(c)(1) (2018) (providing that for every term of imprisonment, BOP shall “afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community. Such conditions may include a community correctional facility.”); 18 U.S.C. § 3583(a) (2018) (authorizing supervised release after imprisonment); Frequently Asked Questions About Federal Halfway Houses & Home Confinement , Families Against Mandatory Minimums (Apr. 24, 2012), https://famm.org/wp-content/uploads/FAQ-Halfway-House-4.24 ‌ .pdf [https://perma.cc/83HP-8V8C]; Number of Offenders on Federal Supervised Release Hits All-Time High , PEW (Jan. 2017), https://www.pewtrusts.org/-/media/assets/2017/01 /number ‌ _of_offenders_on_federal_supervised_release_hits_alltime_high.pdf [https:// ‌ perma ‌ .cc/H5E6-SH59].

See Hopwood, supra note 10, at 80-81.

Id . at 82.

See Sentence and Prison Estimate Summary of First Step Act , U.S. Sent. Comm’n (Jan. 2019), https:// ‌ http://www.ussc.gov/sites/default/files/pdf/research-and-publications/prison-and -sentencing-impact-assessments/January_2019_Impact_Analysis.pdf [https://perma.cc ‌ /HW2W-CH6R] (noting that 89.1 percent of defendants to whom the Fair Sentencing Act of 2010 will apply retroactively are Black, and that 48.5 percent of the defendants who will be impacted by the broadening of the safety valve are Black).

According to the Department of Homeland Security, 245,306 of the 340,056 people who were removed from the United States in fiscal year 2016 were Mexican nationals. Table 41. Aliens Removed by Criminal Status and Region and Country Of Nationality: Fiscal Year 2016 , Dep’t Homeland Security, https://www.dhs.gov/immigration-statistics/yearbook/2016/table41 [https://perma.cc/YV9F-8WX9]. And at the U.S.-Mexico border, apprehensions of Central Americans exceed those of Mexicans. Gustavo López et al., Key findings About U.S. Immigrants , Pew Res. Ctr. (Nov. 30, 2018), http://www.pewresearch.org/fact-tank/2018/11/30/key -findings ‌ -about-u-s-immigrants [https://perma.cc/NF49-2KZU].

First Step Act § 101. If the sole criterion for reform were whether a law introduces any new sources of racial disparity, the Act would not be supportable because it excludes these noncitizens from receiving any earned time towards earlier release, which might lead to Hispanics serving more time than other racial demographics. But providing federal tax money to pay for rehabilitation programs and early release for those who will be deported had no chance of passing in the current Congress. This is why the majority of the reform community supported the Act’s passage even though it might lead to some racial disparities.

See Mandatory Minimum Penalties for Sex Offenses in the Federal Criminal Justice System , U.S. Sent. Comm’n 21 (Jan. 2019), https://www.ussc.gov/sites/default/files/pdf/research-and -publications/research-publications/2019/20190102_Sex-Offense-Mand-Min.pdf [https://perma.cc/ETZ8-9XBD].

First Step Act of 2018, Pub. L. No. 115-391, § 101(4)(D), 132 Stat. 5194.

Id. § 101. For an analysis of why the First Step Act’s risk-assessment and earned-time provisions will not create unacceptable racial disparities, see Joshua Hoe, First Step & Risk Assessment: Why RAI’s Are Not a Reason to Oppose Criminal Justice Reform , Medium (Dec. 15, 2018), https://medium.com/@ypsifactj/first-step-act-risk-assessment-1b521190b6a9 [https:// ‌ perma ‌ .cc/X3MY-XVWP].

See Hopwood, supra note 84; see also Wheldon Angelos (@ weldon_angelos ), Twitter (Dec. 16, 2018, 11:15 AM), https://twitter.com/weldon_angelos/status/1074382650742255617 [https:// ‌‌ perma.cc/5FRA-S6JK] . Mr. Angelos is a former federal prisoner who was sentenced to fifty-five years in federal prison under the sentencing provisions amended by the First Step Act. See Jacob Sullum , Fairer Sentencing Laws Won’t Free Murderers and Muggers , Chi. Sun Times (Nov. 21, 2018, 10:34 AM), https://chicago.suntimes.com/columnists/federal -sentencing-reform-first-step-act- donald -trump [https://perma.cc/8G87-5QRC] (discussing Wheldon Angelos’s case in relation to the First Step Act).

See Hopwood, supra note 84.

See, e.g. , Matthew Charles, I was Released under The First Step Act. Here’s What Congress Should Do Next. , Wash. Post (Feb. 1, 2019), https://www.washingtonpost.com/opinions/i-was -released-under-the-first-step-act-heres-what-congress-should-do-next/2019/02/01 ‌ /1871 ‌ f1 ‌ f0 ‌‌‌ -24bb-11e9-ad53-824486280311_story.html?utm_term=.76d7f3940366 [https:// ‌ ‌ perma ‌ .cc ‌ /EP5V-4YV9].

Congress, for example, has never passed a sentencing reform bill that is retroactively applicable to those contemporaneously serving time in custody. The First Step Act, however, changes that pattern by applying the Fair Sentencing Act of 2010 retroactively. See Justin George, What’s Really in the First Step Act? , Marshall Project (Nov. 16, 2018), https://www .themarshallproject.org/2018/11/16/what-s-really-in-the-first-step-act [http://perma.cc ‌ /2S5H-3TFV].

See Lawrence Mower, Sen. Jeff Brandes Says He’ll File a ‘First Step Act’ for Florida , Tampa Bay Times (Jan. 23, 2019), https://www.tampabay.com/florida-politics/2019/01/23/sen-jeff - brandes ‌ -says-hell-file-a-first-step-act-for- florida / [https://perma.cc/D3H4-JZEM]; John Sharp, Could Federal Criminal Justice Reform Spur Action in Alabama? , AL.com (Dec. 13, 2018), https://www.al.com/news/2018/12/could-federal-criminal-justice-reform-spur-action-in -alabama.html [https://perma.cc/6TDC-MCXS].

The First Step Act is the best federal reform bill Congress has passed in forty years, even though implementation of the Act has not gone as smoothly as the reform community had hoped. There might have been a drafting error in the Act that is leading to a delay in the application of good-time credits. See Doug Berman, Spotlighting Problems with Immediate Application of Expanded Good Time Credit in the FIRST STEP Act , Sent’g L. & Pol’y (Jan. 9, 2019), https://sentencing.typepad.com/sentencing_law_and_policy/2019/01/spotlighting -problems-with-immediate-application-of-expanded-good-time-credit-in-the-first-step-act ‌ .html [https://perma.cc/44AN-5YUE]. Despite some of the implementation delays, people are being released under the Act’s sentencing and compassionate-release provision. See, e.g ., Julieta Martinelli, Released from Prison Again, After Criminal Justice Reform Became Law, NPR (Jan. 3, 2019, 5:13 PM ET), https://www.npr.org/2019/01/03/681979139/released-from ‌ -prison-again-after-criminal-justice-reform-became-law [https://perma.cc/9C4X-DRAX] (discussing my client Matthew Charles, released under the First Step Act’s retroactive application of the Fair Sentencing Act); Mitch Smith, A New Law Made Him a ‘Free Man on Paper,’ but He Died Behind Bars , N.Y. Times (Feb. 15, 2019), https://www.nytimes.com ‌ /2019 ‌ /02 ‌ /15/us/criminal-justice-reform-steve-cheatham.html [https://perma.cc ‌ /2LBA-9F2M] (telling the story of Steve Cheatham, who obtained compassionate release under the First Step Act but, tragically, passed away before returning home).

The President’s Role in Advancing Criminal Justice Reform

A Commentary by President Barack Obama

• Barack Obama
• January 2017
• See full issue

Introduction

Presidencies can exert substantial influence over the direction of the U.S. criminal justice system. Those privileged to serve as President and in senior roles in the executive branch have an obligation to use that influence to enhance the fairness and effectiveness of the justice system at all phases. How we treat citizens who make mistakes (even serious mistakes), pay their debt to society, and deserve a second chance reflects who we are as a people and reveals a lot about our character and commitment to our founding principles. And how we police our communities and the kinds of problems we ask our criminal justice system to solve can have a profound impact on the extent of trust in law enforcement and significant implications for public safety.

Criminal justice reform has been a focus of my entire career — even since before my time at the Harvard Law Review . As a community organizer, I saw firsthand how our criminal justice system exacerbates inequality. It takes young people who made mistakes no worse than my own and traps them in an endless cycle of marginalization and punishment. More than twenty years ago, I wrote about my experience in neighborhoods where “prison records had been passed down from father to son for more than a generation.” 1 As a state legislator in Illinois, I worked with law enforcement and civil rights leaders to push for reduced sentences, videotaped police interrogations, and other reforms, including legislation in favor of second chances and against racial profiling. 2 As a candidate for President, I called for addressing unwarranted disparities in criminal sentencing, emphasized the harms of profiling, and set out new initiatives to help the formerly incarcerated earn second chances. 3

Throughout my time in office, using an array of tools and avenues, I have pushed for reforms that make the criminal justice system smarter, fairer, and more effective at keeping our communities safe. I have tried to bring that case directly to the American people in a number of unprecedented ways. I sat down in the Oval Office with rank-and-file police officers 4 and saw up close how a new way of policing has brought hope to cities written off for being among the country’s most dangerous. 5 As the first sitting President to go inside a federal prison, I heard directly from prisoners and corrections officers. 6 I consoled the families of fallen police officers and the families of children killed by gun violence. 7 I met with men and women battling drug abuse, rehab coaches, and those working on new solutions for treatment. 8 I have sought to reinvigorate the use of the clemency power, commuting more federal sentences than my eleven predecessors combined. 9 I launched programs that have expanded opportunity and mentoring for young people, including boys and young men of color who disproportionately suffer from our current system’s failings. And I signed sentencing reform legislation and met with members of Congress from both parties who share my belief that criminal justice reform is a priority. 10 At the same time, I also made a point of emphasizing the importance of maintaining a strong justice system and underscored how that system depends on public servants who devote their lives to promoting the rule of law and ensuring public safety. 11

Criminal justice is a complex system, administered at all levels of government and shaped by a range of actors. Thanks to the dedicated efforts of so many in my Administration, the bipartisan push for reform from federal, state, and local officials, and the work of so many committed citizens outside government, America has made important strides. We have reduced overlong sentences for offenders and removed barriers for those with criminal records. We have made progress in helping people, especially young people, avoid getting entangled in the justice system in the first place. This Commentary talks about those achievements — and the tools Presidents can use to effect meaningful change throughout the system. And it emphasizes the continuing historic opportunity to make further progress.

Part I details the current criminal justice landscape and emphasizes the urgent need for reform. It would be a tragic mistake to treat criminal justice reform as an agenda limited to certain communities. All Americans have an interest in living in safe and vibrant neighborhoods, in raising their children in a country of equal treatment and second chances, and in entrusting their liberty to a justice system that remains true to our highest ideals. We simply cannot afford to spend $80 billion annually on incarceration, to write off the seventy million Americans — that’s almost one in three adults — with some form of criminal record, 12 to release 600,000 inmates each year without a better program to reintegrate them into society, or to ignore the humanity of 2.2 million men and women currently in U.S. jails and prisons 13 and over 11 million men and women moving in and out of U.S. jails every year. 14 In addition, we cannot deny the legacy of racism that continues to drive inequality in how the justice system is experienced by so many Americans.

Part II shows how the President can drive significant reform at the federal level. Working with Congress, my Administration helped secure bipartisan sentencing reform legislation reducing the crack-to-powder-cocaine disparity. As an executive branch, we’ve been able to make important changes to federal charging policies and practices, the administration of federal prisons, and federal policies relating to reentry. And through the presidential pardon power, I have commuted the sentences of more than 1000 prisoners. Even though there are important structural and prudential constraints on how the President can directly influence criminal enforcement, these changes illustrate that presidential administrations can and do shape the direction of the federal criminal justice system in lasting and profound ways.

Part III details the approaches that Presidents can take to promote change at the state and local level, recognizing that the state and local justice systems tend to have a far broader and more pervasive impact on the lives of most Americans than does the federal justice system. While the President and the executive branch play a less direct role in these systems, there are still opportunities — as my Administration’s work demonstrates — to advance reform through a combination of federal-local partnerships, the promulgation of best practices, enforcement, federal grant programs, and assembling reform-minded jurisdictions struggling with similar challenges.

Part IV highlights some of the work that remains, focusing on reforms that are supported by broad consensus and could be completed in the near term. These include passing bipartisan criminal justice reform legislation in Congress, adopting commonsense measures to keep firearms out of the hands of those who are a threat to others or themselves, finding better ways to address the tragic opioid epidemic in this country, implementing critical reforms to forensic science, improving criminal justice data, and using technology to enhance trust in and the effectiveness of law enforcement.

I. The Urgent Need for Reform

It’s hard to deny the urgent need for reform. In 1980, there were less than half a million inmates in U.S. state and federal prisons and jails. 15 Today, that figure stands at an estimated 2.2 million, more than any other country on Earth. 16 Many people who commit crimes deserve punishment, and many belong behind bars. But too many, especially nonviolent drug offenders, serve unnecessarily long sentences. With just 5% of the world’s population, the United States incarcerates nearly 25% of the world’s prisoners. 17 We keep more people behind bars than the top thirty-five European countries combined, and our rate of incarceration dwarfs not only other Western allies but also countries like Russia and Iran. 18

F IGURE 1. I NCARCERATION R ATE BY C OUNTRY , 2016: I NMATES PER 100,000 R ESIDENTS 19

There is a growing consensus across the U.S. political spectrum that the extent of incarceration in the United States is not just unnecessary but also unsustainable. 20 And it is not making our communities safer. The federal government spends more than $7 billion a year to house prisoners, nearly a third of the Department of Justice’s budget and a figure that crowds out spending on other critical public safety initiatives. 21 As Deputy Attorney General Sally Yates noted recently, every dollar that the Department of Justice spends on excessive sentences for nonviolent drug offenses represents “a dollar we don’t have for investigating emerging threats, from hackers to home-grown terrorists. And it’s a dollar we don’t have to support state and local law enforcement with more cops on the street and crucial programs for prevention, intervention and reentry.” 22 If one includes the cost of jail and prison at the state and local level, the total U.S. budget for incarceration rises to a staggering $81 billion, 23 enough to fund transformative initiatives like universal preschool for every three- and four-year-old in America 24 — initiatives that can change the odds for so many kids, including by keeping them out of the juvenile and criminal justice systems in the first place.

Total expenditures on incarceration, moreover, only begin to capture the true costs of our flawed approach to criminal justice. An estimated seventy million Americans — roughly a third of the adult population — have some type of criminal record, which can trigger a whole host of stigmas and restrictions, including barriers to employment, voting, education, housing, and public benefits. 25 Each year, more than eleven million Americans cycle in and out of jails, 26 impairing their ability to work and support their families. And in too many communities — especially communities of color and those struggling with poverty and addiction — the justice system has touched almost every family. The costs of maintaining this system are nothing short of breathtaking. We sacrifice billions of taxpayer dollars and waste untold human capital on a system that shuffles too many young people into a pipeline from underfunded schools to overcrowded jails. 27 And even as violent crime has plummeted over the past two decades, the evidence indicates that our massive levels of incarceration have not made us safer. 28

How we got to this point is a complicated story. The policies of the 1980s and 1990s occurred against a backdrop of criminal activity that was ravaging our communities, especially our poor neighborhoods and communities of color. 29 The push in that period for stricter laws, longer sentences, and more vigilant policing was not limited to one party or one community. 30 Unfortunately, the impact of those policies has been anything but evenly distributed. 31 If we are to chart honestly the path for criminal justice reform, we must confront the role of race and bias in shaping the policies that led us to this point. 32

It was no accident that the setting for my most expansive public address on this topic was the NAACP. 33 That’s because many of the most tragic failings of the justice system are disproportionately felt by communities of color. 34 A large body of research finds that, for similar offenses, members of the African American and Hispanic communities are more likely to be stopped, searched, arrested, convicted, and sentenced to harsher penalties. 35 Rates of parental incarceration are two to seven times higher for African American and Hispanic children. 36 Over the past thirty years, the share of African American adults with a past felony conviction — and who have paid their debt to society — has more than tripled, and one in four African American men outside the correctional system now has a felony record. 37 This number is in addition to the one in twenty African American men under correctional supervision. 38

The system of mass incarceration has endured for as long as it has in part because of the school-to-prison pipeline and political opposition to reform that insisted on “a stern dose of discipline — more policy, more prisons, more personal responsibility, and an end to welfare.” 39 Today, however, much of that opposition has receded, replaced by broad agreement that policies put in place in that era are not a good match for the challenges of today. 40 And even as budgets for social services are under increasing political pressure and our criminal justice system continues to too often serve as the default response for mental illness and addiction, over the past decade, many states — including so-called “red states” like Georgia, Texas, and Alabama — have led and innovated with new approaches. By reducing sentences and reinvesting some of the savings in other public safety initiatives — especially programs that actually address substance abuse and support for those with mental illness — these states have improved outcomes, enhanced trust, and thus ultimately made better use of taxpayer dollars. 41

For some people, the problems described in this Part will sound familiar. But these issues don’t always get the attention they deserve, and they haven’t translated into real reform in vast portions of our country. 42 As President, I felt a unique responsibility to highlight the compelling economic and policy arguments for justice reform as well as the human toll of a failing system. Through my own actions and the policies of my Administration, I supported evidence-based solutions to these longstanding problems. What’s more, unlike so many issues that divide Washington, D.C., criminal justice is an area in which there is increasing bipartisan agreement. A number of Republicans have been vocal and sincere advocates for reform efforts even as they were otherwise frequent critics of my Administration. 43 Buoyed by these bipartisan calls for change, I continue to be confident that we can see meaningful reform in the coming years. But because the current system reflects years of changes and policy developments, I am also clear-eyed about the fact that change will likely happen gradually, with an emphasis on evidence-based reforms and incremental approaches that enjoy broad support. 44

II. Reforming the Federal Criminal Justice System

Every week, I receive letters from people across the country urging me to address issues involving state and local justice systems, about which there is often frustratingly little that anyone in the federal government can do. State and local officials are responsible for most policing issues, and they are in charge of the facilities that hold more than 90% of the prison population and the entire jail population. 45

Even at the federal level, there are important limits on the President’s authority. 46 The Constitution separates the executive, legislative, and judicial powers into three coequal branches of government, all of which have independent roles in shaping the criminal justice system. 47 And within the executive branch, the President’s direct influence is subject to constraints designed to safeguard the fair enforcement of the law.

Nowhere are these limits more important than in the administration of the criminal law. For good reason, particular criminal matters are not directed by the President personally but are handled by career prosecutors and law enforcement officials who are dedicated to serving the public and promoting public safety. 48 The President does not and should not decide who or what to investigate or prosecute or when an investigation or prosecution should happen. To avoid even the appearance of politicization, a series of internal White House rules and prudential practices sharply restrict contact with the Department of Justice and other enforcement agencies on specific matters. 49 These practices make things difficult when the public looks to the President to opine on a particular case, but they are critical to ensuring the rule of law as well as the integrity and independence of the justice system.

Nevertheless, there is still much that Presidents can do to make the justice system better serve the public. In my Administration, that has meant starting with the federal system — which has not only directly affected those in federal custody, but also made federal practice a model that can drive and accelerate change at the state and local levels. This Part shows how my Administration has used the tools at its disposal to effect change at the federal level: from the legislative reforms we’ve advanced, to the policies we’ve changed in the executive branch, to the second chances we’ve given to those who received clemency, we have brought our system more in line with the values that define us.

Working with Congress and the U.S. Sentencing Commission, my Administration has made reforms to federal charging and sentencing practices. These reforms have allowed us to use our federal criminal laws wisely, reduce excessive sentences, and better ensure that the punishment fits the crime. I have also used my clemency power to a degree unmatched in modern history 50 to address unfairness in the federal system. These changes mean that I will be the first President in decades to leave office with a federal prison population lower than when I took office 51 even as my Administration saw the rate of violent crime fall to its lowest point in decades. 52

1. Charging Policies and “Smart on Crime.” — From the beginning of my Administration, the Department of Justice has made important changes to federal charging policies, starting first and foremost with the “Smart on Crime” initiative begun under Attorney General Eric Holder and continued under Attorney General Loretta Lynch, both of whom were longtime career prosecutors. 53 In 2010, the Department reversed a policy requiring prosecutors in every case to bring charges that could result in the most severe possible sentence. 54 The new policy instead instructed that cases should be charged based on the individual circumstances of the defendant, stressing that “[p]ersons who commit similar crimes and have similar culpability should, to the extent possible, be treated similarly,” and that “equal justice depends on individualized justice, and smart law enforcement demands it.” 55 As part of the Smart on Crime initiative, Holder revised the Department’s charging policies to avoid triggering excessive mandatory minimums for low-level, nonviolent drug offenders. 56 Subsequently, the Department of Justice put in place new policies instructing federal prosecutors to no longer use so-called “851” enhancements — which trigger longer sentences based on prior drug convictions — to gain leverage on defendants in plea negotiations 57 and to no longer require, as a part of plea agreements, that defendants waive their right to appeal based on ineffective counsel. 58

Some warned that these types of reforms would undermine cooperation, making it more difficult to obtain evidence against kingpins and cartel leaders and putting public safety at risk. 59 Now that these changes have been in place for several years, however, it has become increasingly clear that the opposite is true: since Smart on Crime was announced, federal prosecutors have used mandatory minimums more carefully, and the result has been a focus on more serious cases and more significant offenders. 60 In other words, the Department is better able to prioritize and devote resources where they matter most. In 2013, we saw the first reduction in the federal prison population in thirty-three years, 61 a trend that has continued in the years since. 62 The proportion of drug offenders convicted of an offense carrying a mandatory minimum penalty is now the lowest it has been since 1993. 63 Yet despite the fears of some, defendants are pleading guilty at the same rates as they were before Smart on Crime, and cooperation rates have at least been stable, and may have even slightly increased. 64

2. Sentencing Reform Legislation. — Any lasting, broad-based reform to federal sentencing can only be addressed through legislation. That’s why I’ve consistently called on Congress to pass bipartisan sentencing reform and build on the progress we’ve made in recent years. In August 2010, I signed the Fair Sentencing Act 65 (FSA), which reduced the disparity in the amounts of powder cocaine and crack cocaine required for the imposition of mandatory minimum sentences and eliminated the mandatory minimum sentence for simple possession of crack cocaine. 66 In doing so, the FSA reduced a disparity between crack cocaine and powder cocaine that had resulted in excessive and unwarranted punishments that fell disproportionately on defendants of color. 67 Beyond its specific impact, passage of this bill demonstrated that it was possible for Congress to come together on a bipartisan basis and pass reforms that reduced excessive federal sentences and gave additional support to the efforts of the Department of Justice and the U.S. Sentencing Commission to do the same.

One promising proposal in my second term was the Smarter Sentencing Act, 68 an ambitious bipartisan bill that advanced out of the Judiciary Committee by a significant margin. 69 Introduced in 2013 by Senators Dick Durbin and Mike Lee, and supported by a bipartisan group of twenty-five Senators including Ted Cruz and Cory Booker, the bill included provisions that would have reduced but not eliminated mandatory minimum sentences for certain nonviolent drug offenses — from twenty years to ten years, ten years to five years, and five years to two years. 70 The bill would also have eliminated mandatory life imprisonment for a drug crime and enlarged eligibility for “safety valve” relief for certain drug offenders (which allows judges to make exceptions to otherwise applicable mandatory minimums 71 ) and would have made the FSA retroactive. 72 The Congressional Budget Office scored this bill as potentially saving taxpayers as much as $4 billon over ten years, funds that could be reallocated from prisons to other public safety measures. 73 Despite broad support, the bill was viewed skeptically by some Republicans and was not brought to the floor. 74

Encouragingly, the following year, even as the Senate shifted to Republican control, cooperation across party lines on this issue continued in search of an alternative. I met several times at the White House with Democrats and Republicans from the House and the Senate who are dedicated to these issues. The culmination of these efforts was the Sentencing Reform and Corrections Act of 2015, 75 a bill voted out of the Senate Judiciary Committee by a strong, bipartisan majority. (A largely parallel set of proposals later advanced in the House with broad support. 76 ) While not going as far on mandatory minimum reform as the Smarter Sentencing Act would have, the bill still would have reduced mandatory minimum prison sentences for thousands of nonviolent drug offenders 77 and also would have made the sentencing changes in the FSA retroactive. 78 Moreover, it would have helped current prisoners turn their lives around by offering “credits” for participating in certain beneficial programming while incarcerated, which could have enabled inmates to leave prison earlier (and go into home confinement or halfway houses). 79 In addition, and reflecting a sustained focus on juvenile justice by Senator Booker, among others, the bill would have provided new authority for judges to seal and expunge the records of nonviolent juvenile offenders. 80 By reducing overlong sentences, moreover, the bill would have freed up additional resources available for investments in other public safety initiatives, including additional resources for law enforcement.

Some on the Hill and in the advocacy community were initially disappointed that the proposed legislation did not go further. But the bill would have made the system fairer for thousands of inmates and defendants and saved more than $1 billion in the process. 81 As I often tell my team, “better is good.” So even though the bill was imperfect — in particular, it did too little to address the five-year mandatory minimum for drug offenses that can often be a source of excessive and counterproductive punishment — we were convinced that it represented a historic step forward. Senior officials from the Department of Justice supported the legislation in strong terms, 82 and my team worked to push it forward. The legislation ultimately garnered the support of everyone from Families Against Mandatory Minimums 83 to the bipartisan Coalition for Public Safety, 84 the International Association of Chiefs of Police, 85 the Major County Sheriffs’ Association, 86 the National District Attorneys Association, 87 civil rights organizations, faith organizations, and over 160 influential law enforcement leaders. 88

Although the reform bills appeared to have majority support in the Congress, including among many conservatives, Republican leaders have not yet allowed them to come to the floor for a vote. 89 Nevertheless, I continue to believe that a historic moment exists to embrace the bipartisan momentum on this issue. There is no growing crime wave. We should all be able to agree that our resources are better put toward underfunded schools than overfilled jails and that many of those in our criminal justice system would be better and more humanely served by drug treatment programs and the receipt of mental health care. That kind of reform is good politics as well as good policy.

We’ve also been able to make progress on helping to rehabilitate those in the federal prison system — which not only improves lives but also promotes public safety. One important step in that direction is how we approached reforming policies on “restrictive housing,” a practice more commonly described as solitary confinement. 90 It is estimated that as many as 100,000 inmates in U.S. prisons are currently held in solitary confinement — a figure that includes juveniles and people with mental illness. 91 Of these, as many as 25,000 are in long-term solitary confinement, which involves months if not years with almost no human contact. 92 I believe strongly that solitary confinement is overused and can be counterproductive. 93 Studies suggest it can have profound negative consequences, exacerbating mental illness and undermining the goals of rehabilitation. 94 That is why in 2015, I directed my Attorney General to review the use of restrictive housing 95 and in January 2016, I directed DOJ to implement important reforms — including a series of concrete “guiding principles” — to the way that solitary confinement is used in the federal prison system. 96 These reforms include banning solitary confinement for juveniles, prohibiting its use as a response to low-level infractions, expanding treatment of those with mental illness, increasing the amount of time inmates spend out of their cells, and ensuring inmates are not released into communities directly from solitary confinement. 97 These steps will affect almost 10,000 federal prisoners — and are expected to serve as a model for state and local facilities. 98 In addition, DOJ is working to encourage states to reduce their use of solitary confinement. 99

Since those reforms were announced, we have seen others follow suit. Of particular note, the American Correctional Association issued new standards in August 2016 that mirror many of DOJ’s guiding principles. 100 Earlier this year, the Los Angeles Board of Supervisors approved sweeping restrictions on the use of solitary confinement for juveniles, using language from DOJ’s guiding principles. 101 In July 2016, the Nebraska Department of Correctional Services enacted a new regulation prohibiting the use of restrictive housing as a disciplinary sanction. 102 In September 2016, the North Carolina Department of Public Safety enacted a policy limiting the use of restrictive housing for inmates with mental illness and banning its use for youthful offenders. 103 We are hopeful that these changes will continue to accelerate as it becomes clear that they promote better outcomes and also better comport with our values.

While restrictive housing is an important example, the Department of Justice has focused on reforming federal prisons on a variety of fronts. This has included a critical reform directing the Federal Bureau of Prisons (BOP) to reduce and ultimately end the Agency’s use of private for-profit prisons, facilities that not only resulted in worse conditions for prisoners but were also found to be less safe and not to yield meaningful cost savings. 104

These reforms have also included a new emphasis on prison education and on working toward reentry. Studies have shown that inmates who participate in correctional education programs have significantly lower odds of returning to prison than those who do not, and that every dollar spent on prison education saves four to five dollars on the cost of reincarceration. 105 As a result, in 2016, the Department of Justice announced that BOP was building a semiautonomous school district within the federal prison system — one that blends face-to-face classroom instruction with education software on mobile tablets. 106 At the same time, BOP has been developing standardized, evidence-based programs to reduce recidivism, focusing on the core behavioral, mental health, and substance abuse issues that give rise to criminality. 107

Additionally, in 2016, the Department of Justice led an Administration-wide, inaugural “National Reentry Week” 108 during which Attorney General Lynch released the Roadmap to Reentry, a strategic plan for overhauling the federal prison system to reduce recidivism and improve outcomes for the formerly incarcerated. 109 Subsequently, the department released a memo from Deputy Attorney General Yates on reforms to residential reentry centers, popularly known as “halfway houses,” including creating new, more exacting standards, improving data collection, and covering the cost of obtaining state-issued IDs for inmates prior to their release from custody. 110 In addition to improving outcomes for those leaving prison, these types of reforms represent a good use of resources to promote public safety.

Beyond prison and sentencing reform, we need to do more as a country to help people who have served their time put their lives back on track. Not only is it the right thing to do, but giving former inmates the tools they need to lead law-abiding lives is also a direct investment in public safety. This is an area where the federal government can and should lead the way, and it is only growing in importance. Even as the national prison population has leveled off, the population of those with a felony record outside prison has reached almost 20 million. 111 Studies suggest that this number represents over 6% of adults and over 25% of African American men, and these figures do not include those with misdemeanors or with felony records who are on bail or parole. 112 The obstacles to this population finding gainful employment, obtaining public benefits, pursuing higher education, and reintegrating into the workforce are staggering. This means millions of Americans have difficulty even getting their foot in the door to try to get a job, much less actually hanging onto that job. That doesn’t just deprive those individuals of opportunity, it deprives businesses of talented workers, and it deprives communities in desperate need of more role models who are gainfully employed.

Attorney General Holder started, and Attorney General Lynch has continued, a cabinet-level working group on reentry. 113 The group brings all relevant departments and agencies to the table to support the government’s work on the rehabilitation and reintegration of individuals returning to their communities from prisons and jails. 114 And in April 2016, I signed a Memorandum formally establishing that group as the “Federal Interagency Reentry Council” to ensure its important work continues. 115 This group continues to work tirelessly to address needlessly harsh collateral consequences that make it difficult for the formerly incarcerated to get a fair chance. 116 For example, the Office of Personnel Management finalized a rule to “ban the box” — which would prohibit federal agencies from asking questions about criminal and credit history of applicants for tens of thousands of jobs in the competitive service, as well as the career senior executive service, until a conditional offer of employment has been made. 117 The Department of Housing and Urban Development released guidance on the use of criminal records by providers of housing and guidance for public housing authorities. 118 The guidance explained that a criminal-history screening policy may violate the Fair Housing Act 119 if it disproportionately excludes individuals of a particular race or other protected characteristic and is not shown to be necessary to achieve a substantial, legitimate, nondiscriminatory purpose that could not be served by a less discriminatory alternative. 120 The Department of Education has emphasized the importance of going “beyond the box” in college applications — because unnecessarily broad questions about criminal history can often deter and discourage qualified students from pursuing a college degree. 121

Because change at the federal level is not nearly enough, Presidents should also serve as conveners, helping to foster change in the private and educational sectors. That is why the White House launched its “Fair Chance Business Pledge” 122 and “Fair Chance Higher Education Pledge.” 123 The business pledge calls on employers to commit to reduce barriers to a second chance by taking actions such as “banning the box,” ensuring information regarding an applicant’s criminal record is considered in the proper context, and engaging in hiring practices that do not unnecessarily place jobs out of reach for those with criminal records. 124 Over 300 companies and organizations that employ well over five million people have taken this pledge, including Walmart, Intel, PepsiCo, Google, American Airlines, CVS Health, Koch Industries, Starbucks, the Hershey Company, the Johns Hopkins Hospital and Health System, and the University of Pennsylvania. 125 The education pledge encourages colleges and universities to commit to taking action to reduce barriers to a fair shot at a second chance, especially through expanding educational opportunity. 126 To date, sixty-one higher education institutions representing 172 individual campuses serving over 1.8 million students have signed on. 127 Our hope is that this kind of public-private effort will be a model not only for future administrations, but also for state and local leaders who are trying to address these issues.

Through considering grants of clemency to individuals in the federal system, the President gains a unique vantage point into the fairness of federal sentences. While not a substitute for the lasting change that can be achieved by passage of legislation, the clemency power represents an important and underutilized tool for advancing reform. The Framers gave the President this authority to remedy individual cases of injustice, 128 and the Supreme Court has made clear that this power is entrusted to the President’s discretion, unimpeded by congressional limits. 129

At one point in our nation’s history, it was a power used frequently — for example, on average 222 times per year between 1885 and 1930. 130 In large measure, clemency during this period functioned more akin to parole. 131 By the end of the 1930s, a new system of federal parole had displaced clemency as the primary means of releasing prisoners before the end of their sentences, and the number of clemency grants declined. 132 The tough-on-crime rhetoric of the 1980s and the political push in that period for “truth in sentencing,” however, ushered in an era in which a power already in decline fell largely into disuse. 133 From 1990 to 2008, the number of federal prosecutions rose dramatically as did (predictably) the number of clemency requests. 134 And yet the number of clemency petitions granted continued to fall in absolute numbers as well as in percentage terms. 135 As one scholar recounted, by the time I took office clemency grant rates had “plummeted to such low levels that . . . it ha[d] become ‘hard to tell what distinguishe[d] the handful of lucky winners from the thousands of disappointed suitors’; in the end, the process seem[ed] to ‘operate[] like a lottery.’” 136

That’s why I asked my team to look more systematically at how clemency could be used to address particularly unjust sentences in individual cases. This led to an unprecedented effort to identify the types of inmates who deserve particular consideration for clemency — and to encourage individuals who have demonstrated good behavior in the federal system to seek clemency if they were sentenced under outdated laws that have since been changed and are no longer appropriate to accomplish the legitimate goals of sentencing. 137

As of this writing, I have commuted the sentences of over 1000 individuals — more than the previous eleven Presidents combined. 138 The vast majority of those commutation recipients had already served far more time than the sentence they would receive today, and 342 were serving life sentences. 139 Each of them earned a second chance — whether by obtaining a GED, taking vocational programming to learn skills for future employment, or addressing the substance abuse that so often had led to their criminal conduct.

This is an effort that has touched me personally, and not just because I could have been caught up in the system myself had I not gotten some breaks as a kid. In March 2016, I met in the Roosevelt Room of the White House with five commutation recipients from three different Presidents. 140 While these men and women had very different life experiences, they told remarkably similar stories about receiving clemency.

One, Ramona Brant, was convicted of involvement in a conspiracy to distribute crack and cocaine. Her boyfriend led the conspiracy, and as she later described it, maintained “emotional control [and] physical control” over her through tragic and sometimes violent abuse. 141 Although prosecutors offered her a plea deal that carried a reduced sentence, Ramona proceeded to trial and was found guilty. Her Sentencing Guidelines range, which at the time was mandatory, was life imprisonment. The judge in Ramona’s case had no choice but to impose a life sentence even though Ramona was a first-time offender, and he candidly conceded “that it would be counterproductive for society to keep [Ramona] in prison for the rest of [her] life.” 142 Ramona’s case is in many ways emblematic of the problems with overly harsh mandatory sentences in the federal system.

Another clemency story that will stay with me involves a defendant (whose name I will withhold) convicted over a decade ago of conspiracy to transport drugs seized from his car. Because of the way the defendant was charged and his two prior drug convictions, the judge in his case had no choice but to sentence him to a term of life imprisonment. After his commutation was announced in the summer of 2016, the district judge who presided over the criminal case wrote me a heartfelt and gracious note. The life sentence that he had been obligated to impose on that defendant had haunted him for years, he told me, and the commutation finally eased his conscience.

It is stories like these that are at the heart of the clemency initiative. In recent years, granting clemency has been perceived as a politically risky decision. By shifting the narrative to the way clemency can be used to correct injustices in the system — and reminding people of the value of second chances — I worked to reinvigorate the clemency power and to set a precedent that will make it easier for future Presidents, governors, and other public officials to use it for good. 143 These actions are no substitute for achieving lasting changes to federal sentencing law through legislation, but they are a way to restore a degree of justice, fairness, and proportionality to the system.

III. Tools and Actions to Drive State and Local Reforms

As important as it is to reform the federal criminal justice system, doing so will not address the much broader challenges in our state and local systems — as mentioned above, states and localities oversee most policing, as well as 90% of the prison population. That is why I’ve been so committed to finding ways to encourage continued state and local government ingenuity and to highlight those state reforms that should be models for others to follow. 144 Not every solution to these issues can or should be mandated by the federal government. Instead, we have focused on using other levers of the federal government — such as grants 145 and other funding incentives, 146 promulgating guidelines and best practices, 147 establishing communities of reform-minded jurisdictions, 148 enforcement from the Department of Justice in the case of violations of civil rights and other federal law, 149 and my own use of the bully pulpit 150 — to draw attention to the need for reform.

During my time in office, we have seen many states make important strides on a host of issues — from sentencing reform to policing reform to expanding alternatives to incarceration for addiction and mental illness. These include states such as Oklahoma, Georgia, and Texas in which Republican governors and legislatures have been vocal proponents of promising and important reforms. 151 Given that the vast majority of Americans who interact with the justice system do so at the state and local levels, it is critical that this kind of bipartisan leadership continues and that states continue to demonstrate ways that others (including, at times, the federal government) can strive to achieve better outcomes.

Police officers are the heroic backbone of our communities. They hold significant civic and law enforcement responsibilities and put their lives at risk to protect us each day, at times facing some of the most adverse circumstances imaginable. As I have emphasized time and again, the overwhelming majority of police officers are fair, dedicated, and honest public servants who strive daily to cultivate and sustain positive relationships with the communities they serve and protect. 152 Yet, as many tragic events in my presidency have illustrated, there are still too many places in America where these relationships are strained and where officers and community members have struggled to build and maintain trust.

Social science research has found that trust — and a general belief that “police and court procedures are in accord with people’s sense of a fair process” — plays a central role in improving police-community relations and ultimately motivates people to lead law-abiding lives. 153 We need to do more as a country to build trust so that when the next incident occurs that captures national attention, there is a sense that it will be handled fairly — and that it is not representative of the way the police and the community interact.

That’s why in December 2014, in the wake of events in Ferguson, Cleveland, and New York City, we launched the Task Force on 21st Century Policing to identify best practices and offer recommendations on how law enforcement agencies can promote effective crime reduction while ensuring the public’s trust in our institutions. 154 Members included civil rights leaders, youth leaders, law enforcement leaders, academics, and rank-and-file officers. In a report issued in May 2015, the Task Force outlined a series of recommendations for law enforcement agencies. 155 I was heartened by the seriousness with which the members of the Task Force approached their work. Despite drawing from different backgrounds, the Task Force unanimously came together behind one platform. 156

The report is too extensive to describe fully here, but it laid out a concrete blueprint for reform. It recommended steps for transparency, 157 including having police collect and make available information about stops, arrests, and other encounters; 158 steps to maintain trust, including policies and procedures for policing mass demonstrations that prioritize de-escalation and avoid provocative tactics; 159 steps to ensure police forces better reflect the communities they serve, 160 including strategies to achieve a diverse workforce and a proposal for the federal government to sponsor a diversity initiative; 161 steps to promote accountability, including an emphasis on independent investigations of incidents and a hard look at expanding civilian oversight; 162 steps to address implicit bias, 163 including through the types of training programs now provided by the Department of Justice to federal prosecutors and law enforcement agents; 164 steps to institute policies prohibiting racial profiling, 165 just like we did across the federal government; 166 steps to reach out to at-risk youth, including creating opportunities in schools and communities for positive, nonconfrontational interactions with police; 167 smarter ways to integrate new technologies, like social media, to enhance public trust and public safety; 168 approaches to better keep our officers safe, including equipping all officers with individual tactical first-aid kits and antiballistic vests; 169 strategies to promote mental and physical officer wellness; 170 and creation of a “Blue Alert” warning system to enlist the public’s help in locating suspects when a law enforcement officer is harmed in the line of duty. 171

While the Task Force laid out specific recommendations for actions the federal government could take to advance the ball, most of its recommendations were directed at the 18,000 state, local, tribal, and other nonfederal law enforcement agencies in our country. To move those ideas forward at every level, I directed my team to adopt the Task Force’s federal recommendations and to work with state and local jurisdictions across the country to ensure the entire report was put into action. Since that time, we have worked with communities across the United States to encourage them to adopt these reforms. 172 The Department of Justice put over $100 million in grants toward Task Force–related projects. In addition to outreach by my Attorney General and others on my team, we brought nearly 1400 officers to the White House from over 900 jurisdictions to ensure the Task Force’s message was directly reaching communities across the country. 173

While that was happening, we took an important step, working closely with law enforcement and civil rights organizations, to reform the various federal programs that provide equipment (and funding for equipment) to state and local law enforcement agencies. A review had found that the federal government lacked consistent policies regarding what types of equipment could be provided with taxpayer dollars and under what conditions. 174 In light of the potential of military-style equipment to undermine community trust, my Administration put in place a series of safeguards to strengthen accountability and enhance transparency of programs that provide such equipment while at the same time ensuring we were meeting the needs of law enforcement. 175 This included creating federal government–wide lists of “prohibited” and “controlled” items that apply across all such programs. 176

Another sustained focus of my Administration has been on addressing excessive fines and fees, inadequate legal representation, the imposition of excessive bail, and other egregious abuses in too many state and local justice systems that Attorney General Lynch has argued “amount to nothing less than the criminalization of poverty.” 177 These practices destroy trust, deprive our fellow Americans of their fundamental rights, and have too often led to a two-tiered system in which the poor are not accorded the equal protection under the laws to which they are entitled under the U.S. Constitution. We should all be able to agree that the justice system should never be used as a source of revenue. Even in a time of budget shortages, there is simply no excuse for the proliferation of “user fees” 178 that charge defendants — innocent or guilty — for everything from paperwork to legal representation, consigning those who cannot afford to pay to a cycle of debt, incarceration, and prolonged poverty. I agree with Attorney General Lynch that this is “an unconscionable state of affairs in a nation that outlawed debtors’ prisons in 1833.” 179

The most glaring example, but by no means an outlier, is what the Department of Justice found in its investigation into the Ferguson Police Department. 180 The city used its justice system as a cash register, imposing steep fines for a range of minor offenses, including $302 for jaywalking and $531 for untended lawns. 181 These fines were most often enforced against African American community members. 182 Those who did not or (more often) could not pay found themselves facing ever-escalating penalties and even jail time, destroying the community’s faith in the justice system and law enforcement. 183 Research collected by my Council of Economic Advisers has shown that these kinds of barriers have profoundly negative economic consequences (including ultimately costing the jurisdictions more money) and undermine public safety. 184

In keeping with these findings, the Department of Justice and the rest of my Administration have made it a priority to prevent these types of financial obligations from undercutting a defendant’s opportunity to have a fair day in court and from interfering with the reintegration into society of those with criminal convictions. The Department of Justice launched the Office for Access to Justice (ATJ) in March 2010 with a mission “to help the justice system efficiently deliver outcomes that are fair and accessible to all, irrespective of wealth and status.” 185 The White House hosted a convening of bipartisan thought leaders from around the country to raise attention to this set of issues. 186 The Department of Justice issued guidance to state governments advising of the constitutionality of fees and fines. 187 And finally, my Administration is providing support to local communities wishing to reform their justice system so that they do not rely on fees and fines for revenue. 188 But these steps are only the beginning. 189 States and communities must continue to examine their own policies so that they do not criminalize poverty.

At the state level, we are increasingly seeing tough-on-crime rhetoric recede, replaced by a call for better public safety at a lower cost. The Justice Reinvestment Initiative (JRI) is one example of how the federal government can accelerate these types of reforms in the states. 190 A public-private partnership between the Department of Justice and the Pew Charitable Trusts, JRI was formally launched in 2010 to help states devise better policies and practices to manage those who break their laws. 191 Through JRI, over two dozen states have enacted a wide range of reforms to make their criminal justice systems operate more efficiently and effectively. 192 Many have found ways to expedite release from prison by expanding parole eligibility, 193 streamlining administrative processes, 194 and implementing or expanding earned time credits that allow individuals in prison to earn time off of their sentences for good behavior. Collectively, it is estimated that these states saved on the order of $1 billion — with more savings to be realized in the years to come. 195 These changes, moreover, have also enhanced public safety. For example, in Louisiana, individuals spent less time in prison following supervision revocations with no harm to public safety, 196 and in Kentucky, mandatory supervision reduced the risk of recidivism for individuals released to the community within the first year. 197

One way that I tried to change the narrative on criminal justice reform was to openly and honestly address it as often as I could. In July 2015, in a speech in Philadelphia in front of the NAACP, I made the comprehensive case for reform. 198 To highlight the human impact of the system, I became the first sitting President to visit a federal prison while in office when I traveled to the El Reno correctional institution in Oklahoma. 199 There, I sat down with six inmates who made mistakes that aren’t all that different from mistakes I made. 200 They suffered from not having the kinds of support structures, second chances, and — perhaps most importantly — resources that would have allowed them to move beyond those mistakes. 201 My team brought formerly incarcerated individuals to the White House to celebrate former prisoners’ contributions to the arts and how arts education helps reentry, 202 to recognize employers who have helped the formerly incarcerated in the job sector, 203 and to discuss how incarceration impacts girls and women, 204 members of the LGBT community, 205 and Americans with disabilities. 206 My team convened clemency recipients, 207 and I took a group of them for lunch at a local restaurant to listen to their stories and the challenges they face. 208 I wrote an op-ed that highlighted the heartbreaking consequences of placing young people in solitary confinement. 209

Of course, there are limits to this approach. Presidents are not private citizens. We need to be careful about speaking about legal matters before all the facts are in — even if it appears that everyone else in the United States is commenting on them. Public attention to criminal justice (particularly in the arena of policing) is often driven by pending investigations and cases in which the facts are still being gathered. Oftentimes, it is a viral YouTube video that leads the evening news, incites protests, and drives calls for reform. Like millions of others, I would watch these videos, but the office makes it difficult to comment the way a journalist or activist would without being accused of prejudging the facts or influencing the legal process.

The White House’s Data-Driven Justice Initiative (DDJ) and Police Data Initiative (PDI) are two examples of how the federal government can advance solutions at the state and local level by supporting innovation and bringing together committed reformers.

The focus of DDJ is on reducing unnecessary jail stays. 210 Over eleven million people move through the country’s 3100 local jails each year, many of whom are charged with low-level, nonviolent misdemeanors. 211 Keeping this population in jail costs local governments an estimated $22 billion a year in incarceration costs alone, in part because of the high number of jail inmates who are in need of treatment for mental illness, a substance use disorder, or chronic health problems. 212

Much of this cost is driven by a comparatively small population. Studies have shown that “a relatively small number of highly vulnerable individuals cycle repeatedly not just through local jails, but also hospital emergency rooms, shelters, and other public systems.” 213 The fragmented care that these so-called “super utilizers” receive while caught in this cycle leads to poor outcomes and comes at a great cost to taxpayers. 214 Nationwide, slightly more than one in twenty individuals have some form of mental illness. In 2005, more than half of the incarcerated population did. 215 Data from 2012 finds that 15% of prisoners and 26% of jail inmates experience serious psychological distress. 216

Across the country, communities are recognizing that there are better and more cost-effective solutions. A good example of reform can be found in Miami-Dade County, Florida, where the county combined data across their health care and criminal justice systems and discovered that just ninety-seven people with serious mental illness accounted for $13.7 million in services between 2010 and 2014. 217 These few dozen people spent more than 39,000 days not in treatment, but in jails, emergency rooms, state hospitals, or psychiatric facilities in their county. 218 In search of a better way, and recognizing that this population frequently came into contact with law enforcement, the county provided key mental health de-escalation training to their police officers and 911 dispatchers. Over the last five years, police in Miami-Dade County have responded to almost 50,000 calls for service for people suffering from mental health issues, but have made only 109 arrests and have directed more than 10,000 people to services or safely stabilized situations without arrest. 219 The jail population fell from over 7000 to just over 4700, and the county was able to close an entire jail, saving nearly $12 million a year. 220

DDJ allowed the White House to bring together a bipartisan coalition of city, county, and state governments, with the support of a broad range of nonprofit organizations, private sector entities, philanthropies, and universities in an effort to expand these kinds of better alternatives. 221 The response to DDJ has been overwhelming. At this time, a total of 139 states, counties, and cities, covering almost 100 million Americans, have agreed to participate and to begin putting these strategies into practice. 222 The initiative is a good example of what can be accomplished simply by bringing together committed representatives of different communities so they can learn from one another — and see that they are not alone in trying to address these issues. I expect its work will be carried forward by those in government and by the private, academic, and philanthropic sectors. 223

Separately, the White House created PDI as a way to help improve police-community relations by giving communities insight into the policing activities of their law enforcement agencies. 224 My Administration has made transparency a priority, and we have seen enormous gains in the area of policing. Through PDI, more than 130 law enforcement agencies with jurisdiction over forty million Americans have volunteered to participate in this effort. 225 These agencies have already released more than 175 machine-readable data sets disaggregated by race and gender on subjects including use of force, officer-involved shootings, citations, and complaints. 226 For example, Louisville, Kentucky, is releasing every citation issued in real time, 227 Orlando, Florida, is releasing full data on every police-involved shooting, 228 and a federal judge in New Orleans, Louisiana, has described the police department’s release of data as “a miraculous transformation.” 229 Participating agencies describe this transparency as helping to improve relations with the community, making the data more accurate, and reducing costs related to public-records requests. As expected, outside organizations are using this newly released data to better understand police activities and the impact those activities are having on different communities. 230 The Office of Community Oriented Policing Services at the Department of Justice will continue this work along with private businesses and nongovernmental organizations.

As Americans, we have a shared responsibility to ensure that all children are given a fair shot at life, including a quality education and equal opportunities to pursue their dreams. 231 Yet each year, an alarming number of students are diverted from pursuing their dreams as a result of unnecessarily harsh school discipline policies and practices, such as suspensions, expulsions, and even arrests for minor infractions. “Zero-tolerance” policies — however well-intentioned — often make students feel unwelcome in their own schools. They can disrupt the learning process and have significant and lasting negative effects on the long-term well-being of our youth — increasing their likelihood of future contact with juvenile and criminal justice systems. 232

In 2011, my Administration launched the Supportive School Discipline Initiative, a collaborative project between the Departments of Justice and Education to revamp school discipline policies and support underfunded schools so that our education system serves as a pathway to opportunity, rather than a pipeline to prison. 233 We have worked to assist states, schools, and law enforcement partners in assessing the proper role of school resource officers and campus law enforcement professionals. 234 And we have celebrated where there are strong relationships between law enforcement and youth. 235

Additionally, my Administration released a policy statement against the use of suspension and expulsion in preschool settings 236 — which disproportionately affects children of color — and is working to build better diversion policies to screen and treat youth for substance abuse, trauma, and unmet mental, emotional, and behavioral needs. 237 A few years ago, the Department of Justice also launched the Smart on Juvenile Justice Initiative to advance system-wide reforms that improve youth outcomes, providing services (such as job training and substance use disorder treatment and counseling) for youth in juvenile facilities while expanding the use of effective community-based alternatives to youth detention. 238 While the number of juvenile arrests has fallen sharply over the past decade, roughly one million juvenile arrests were made in 2014. 239 An overwhelming majority of these arrests were for nonviolent crimes. Children of color, particularly black and Hispanic males and Native American youth, continue to be overrepresented across all levels of the juvenile justice system. 240

Unfortunately, far too many juveniles become involved with the adult criminal justice system each year — including in five states where seventeen-year-olds are prosecuted as adults regardless of the crime, and two where sixteen-year-olds are as well. 241 Children in the adult system have less access to rehabilitative services and often face higher recidivism and suicide rates. 242 South Carolina 243 and Louisiana 244 have very recently raised the age at which juveniles may be tried in adult court so that sixteen- and seventeen-year-olds are not unnecessarily tried in adult courts, and many states are reforming sentencing laws and expanding access to age-appropriate transition services upon reentry. To build on these efforts, Congress should reauthorize the Juvenile Justice and Delinquency Prevention Act of 1974 245 to increase protections for youth and limit the number of minors held in adult jails and prisons. 246 Reauthorizing this legislation would “promote evidence-based practices, quality education, and trauma-informed care for incarcerated youth, while reducing punishments for things such as breaking curfew and truancy.” 247

In 2014, I launched the My Brother’s Keeper (MBK) initiative to help all young people reach their full potential, no matter what their background or the circumstances into which they were born. 248 For almost three years, the MBK Task Force has been focused on promoting policies that will help connect young people to mentoring, support networks, and the skills they need to find a good job or go to college. Through this work, we’ve been able to make some significant progress at the federal level to promote community-oriented policing practices, improve trust between law enforcement and the communities they serve, and reform the juvenile and criminal justice systems to limit unnecessary interactions with law enforcement while providing alternatives to incarceration and enforcing the rights of incarcerated youth to a quality education. For instance, in 2015, the Departments of Justice and Education established the “Second Chance Pell” pilot program, enabling incarcerated Americans to receive Pell Grants to finance postsecondary education and training. 249 And we’ve also helped eliminate barriers to reentry through fair chance hiring practices. 250

How communities across the country have responded to the MBK initiative is just as promising as the work itself. In September 2014, we launched the MBK Community Challenge and called on communities to develop their own comprehensive plans to expand opportunities for young people — plans that should ensure children are able to succeed in school, graduate, get a job, and stay safe from violent crime. 251 Nearly 250 cities, towns, counties, and tribal nations, representing all fifty states, have accepted the challenge, met with local stakeholders to design these kinds of plans, and started taking steps to implement them. 252 For example, in Detroit, Michigan, a new initiative matches police officers, who serve as mentors, with baseball and softball teams. 253 In New York, leaders inspired by MBK are pursuing an evidence-based literary intervention program for elementary school students and are helping to connect thousands of students transitioning into middle school or high school with mentors. 254 In Indianapolis, Indiana, the city has encouraged input from a variety of officials and community leaders to develop action plans to improve youth outcomes. 255

In addition, the White House Council on Women and Girls (CWG) has sought to highlight the unique challenges facing women and girls in the criminal justice system. 256 In 2014, the CWG published Women and Girls of Color: Addressing Challenges and Expanding Opportunity to ensure that policies and programs across the federal government advance outcomes for all women and girls, including those of color and from marginalized communities. 257 Girls and young women represent a growing share of juvenile arrests and delinquencies. As a subsequent report highlighted, the most common offenses for which girls are arrested include running away and truancy, behaviors that are also “the most common symptoms or outcomes of trauma and abuse.” 258 In addition, studies suggest that African American girls are trafficked at younger ages and witness and experience multiple forms of violence at higher rates. 259 My Administration has taken a series of actions to make improvements for all youth, including girls and young women of color, beginning with a focus on evidence-based programs that emphasize the importance of second chances. 260

IV. Work Unfinished

Even as I am proud of what we accomplished, I am aware of how much work is left unfinished. Our criminal justice system took a long time to build and will take a long time to change. Here are commonsense steps that I am hopeful could be accomplished in the next few years, especially because they reflect compelling policy arguments and engender broad consensus. 261

We still need to pass meaningful sentencing reform legislation. No number of commutations will ever achieve lasting structural reform of our sentencing laws, and there remains too much bipartisan goodwill and cooperation on this issue to let progress stall. The Sentencing Reform and Corrections Act, discussed above, would be a good start. The bill would represent a historic step forward and demonstrate continued bipartisan commitment on this issue, affecting thousands of current inmates and making the system fairer well into the future. In addition, it is vitally important that we accelerate the trend in favor of sentencing reform at the state and local levels through the kinds of thoughtful, evidence-based reforms promoted by JRI. We have seen these reforms work in so many states across the country, and each state that pushes forward with positive results makes it easier for others to follow.

We also need to do everything we can to keep our children and communities safe from gun violence. Addressing the country after mass shootings has been one of the most frustrating and disheartening responsibilities of being President — and it’s something I’ve had to do far too often. The names of so many places that should be remembered for their great contributions and strong communities — places like Tucson, Aurora, Newtown, Charleston, and Orlando — still conjure up for me the deep sadness of so much unnecessary violence and loss.

There should be no mistake that gun violence is an epidemic playing out across the country every day. Over the past decade alone, more than 100,000 people have been killed as a result of gun violence — and millions more have been victims of assaults, robberies, and other crimes involving a gun. 262 Over the same period, nearly 200,000 of our neighbors, friends, and family have committed suicide with a gun. 263 Hundreds of law enforcement officers have been shot to death protecting their communities. 264 And too many children have been killed or injured by firearms, often by accident. 265 We have a responsibility to come together as a country to address this epidemic. 266

I’ve tried to remind the country of how much common ground we can find on these issues. After a tragic shooting, we always come together to wrap those who are grieving with our prayers and love. But as I’ve said many times: “[O]ur thoughts and prayers are not enough.” 267 They alone won’t “capture the heartache and grief and anger we should feel,” and they do “nothing to prevent this carnage from being inflicted someplace else in America.” 268 We have a responsibility to act. And like the vast majority of Americans — including the vast majority of gun owners 269 — I believe we can take commonsense steps to reduce gun violence that are consistent with the Second Amendment.

As an Administration, we’ve made some meaningful progress on keeping guns out of the wrong hands through background checks — whether it’s making clear that anyone in the business of selling firearms must get a license and conduct background checks, or dedicating more resources to ensuring those background checks are conducted on time. 270 We’ve also jumpstarted the development of smart gun technology. 271 As long as we’ve got technology to prevent a criminal from stealing and using your smartphone, then we should be able to prevent the wrong person — including kids — from pulling the trigger on a gun.

But there’s a great deal of work left to be done. Congress should pass the kinds of commonsense reforms supported by most of the American people — from investing in access to mental health care, to expanding background checks, to making it possible to keep guns out of the hands of suspected terrorists. The actions we take won’t prevent every act of violence — but if even one life is spared, they will have been well worth it.

Opioid use disorder, or addiction to prescription opioid pain relievers or heroin, is a disease that touches too many of our communities — big and small, urban and rural — and devastates families, all while straining the capacity of law enforcement and the health care system. Each year, more Americans die from drug overdoses than from traffic accidents, 272 and more than three out of five of these deaths involve an opioid. 273 Since 1999, sales of prescription opioid pain medications have quadrupled. 274 In 2012, 259 million prescriptions were written for these drugs, which is more than enough to give every American adult their own bottle of pills. 275 As their use has increased, so has their misuse. At the same time, we’ve seen a dramatic rise in the use of heroin, which belongs to the same class of drugs as opioid painkillers. 276 In fact, four in five new heroin users started out by misusing prescription drugs and then transitioned to heroin. 277

My Administration has worked to combat this epidemic through targeted enforcement activities; funding new and unprecedented networks of law enforcement and public health partnerships to address the heroin threat; targeting heroin and prescription opioid traffickers and the illegal opioid supply chain; and thwarting doctor-shopping and disrupting so-called “pill mills.” 278

At the same time, my Administration has been very clear that the opioid epidemic is a public health problem that requires a public health response. That is why we are working with physicians, nurses, pharmacists, and others to improve opioid prescribing practices and reduce opportunities for misuse of opioids. 279 As part of this effort, doctors, dentists, advanced-practice registered nurses, physician assistants, physical therapists, and educators have committed to opioid prescriber training. 280 And at a White House meeting in April 2016, more than sixty medical schools, nearly two hundred nursing schools, and more than fifty pharmacy schools committed to prescriber training. 281 We also continue to support communities across America in ridding their medicine cabinets of unused or outdated prescription drugs, to reduce the opportunities for misuse. National Take Back Days provide a safe, convenient, and responsible way of disposing of unneeded prescription drugs. 282

We’re also working with law enforcement to help people get into treatment instead of into jail. We have expanded access to substance use disorder treatment through the Affordable Care Act. 283 We have invested in getting first responders the tools they need, like the opioid overdose reversal drug naloxone, to help them respond to the opi oid crisis in their communities. 284 We have changed the rules to allow more types of health care providers to provide evidence-based opioid treatment, called medication-assisted treatment, to more patients. 285

It is imperative that we continue to make progress on these issues in the years ahead by investing in evidence-based treatment programs that save money and lives, all at a fraction of the cost of building new prisons. Millions of Americans are already in recovery from opioid and other substance use disorders because they got the treatment and care they needed. In passing the 21st Century Cures Act 286 in December 2016, Congress provided $1 billion in new funding that I called for in my budget to expand treatment for those with an opioid use disorder. 287 Now the crucial next step is putting those resources to work so that every American who wants treatment can get it and start on the road to recovery.

Contrary to the perception on TV dramas, forensic science disciplines are subject to varying degrees of uncertainty and misinterpretation. A 2009 report from the National Academy of Sciences brought to light many of the challenges that the forensic sciences face in reliability and validity. 288 Continuing advancements in DNA analysis and other forensic science disciplines will improve the reliability of forensic evidence and assure that justice is served, both in contributing to the convictions of perpetrators of crimes and in exonerating those falsely accused or wrongfully convicted.

My Administration has supported a wide range of research and policy initiatives to strengthen the forensic sciences, spanning disciplines from DNA analysis and fingerprints, to tire and tread marks, ballistics, handwriting, trace-evidence and toxicological analyses, and digital evidence. 289 In 2013, DOJ and the Commerce Department’s National Institute of Standards and Technology (NIST) established the first-ever National Commission on Forensic Science, a federal advisory committee to provide recommendations on how to strengthen the validity and reliability of the forensic sciences. In response to recommendations from the Commission, DOJ announced several actions it will take to improve its policies, including requiring the Department’s forensic labs to obtain and maintain accreditation and requiring all Department prosecutors to use accredited labs to process forensic evidence when practicable within the next five years. 290

In 2015, NIST established a $20 million Forensic Science Center of Excellence at Iowa State University to solidify the statistical foundation for disciplines including fingerprint, firearm, tool mark, and other pattern-based evidence analyses. 291 NIST also administers, in collaboration with DOJ, the Organization of Scientific Area Committees for Forensic Science, 292 a collaborative body of more than 500 forensic practitioners and other experts working to develop consensus-based forensic science standards and guidelines. In the last year, the President’s Council of Advisors on Science and Technology has also focused on these important issues. 293

The FBI not only supports forward-looking forensic-science research and technology development, but has also undertaken an unprecedented examination of previous casework and testimony. In 2012 the FBI, assisted by the Innocence Project and the National Association of Criminal Defense Lawyers, launched a review of testimony about microscopic hair evidence. 294 This review was the result of a series of high-profile exonerations of wrongfully convicted individuals that indicated that testimony exceeded the scientific capabilities of the technique. 295 The FBI reviewed more than 21,000 cases in which the FBI provided testimony on microscopic hair analysis between 1972 and 1999. 296 This review helped lead to at least two exonerations, with several cases still pending. Earlier this year, DOJ also established a Forensic Science Discipline Review to institutionalize quality assurance in the practice of other forensic science disciplines across the Department. 297

Strengthening the forensic sciences is a complex challenge that will continue to require work and a sustained commitment on the part of the federal government as well as the broader forensic science, legal, and judicial communities. Ongoing work to develop a research and development agenda for the forensic sciences will require the continued collaboration of federal, state, local, and tribal governments; academia; law enforcement; and industry experts to advance the scientific underpinnings of the forensic evidence and analyses used in courtrooms around the country.

My Administration has taken significant steps to improve the collection and release of criminal justice data, but we continue to have too little information to inform our policies. The Uniform Crime Report (UCR) is the leading source for National Crime Data. Historically, the UCR has relied primarily on the Summary Reporting System, which collects an aggregate monthly tally of crimes in just ten offense categories. But for decades there has been a more comprehensive and detailed collection, the National Incident-Based Reporting System (NIBRS), that has not been used broadly. 298 NIBRS significantly improves the quality of our crime data by providing much richer details, including the date, time, location, and circumstance of the crime as well as characteristics about the victim and offender and any relationship between them. 299 Yet only about a third of the nation’s law enforcement agencies, covering 30% of the U.S. population, report to the FBI using NIBRS. 300 It is critically important to get the rest of the nation reporting in the same way. Four major law enforcement organizations — the International Association of Chiefs of Police, the Major Cities Chiefs Association, the Major County Sheriffs’ Association, and the National Sheriffs’ Association — recognize the importance of better crime data and have agreed that NIBRS should be the sole method of collecting data. 301 DOJ’s Office of Justice Programs is currently working with DOJ FBI’s Criminal Justice Information Services Division to further improve NIBRS and to help states and localities move to NIBRS by 2021. 302

As Attorney General Lynch has argued, we also need accurate and comprehensive data on the use of force by law enforcement. 303 While it is clear that most interactions between law enforcement and civilians do not involve any use of force, it is important to ensure that every use of force is necessary and legal. The enactment of the Death in Custody Reporting Act of 2013 304 and the Department of Justice’s efforts to implement that law 305 will help us monitor how many people die while incarcerated or detained, but every use of force is significant and should be understood and measured. In order for us to better understand when, how, and against whom force is used, the FBI has announced that it is going to start collecting use-of-force data. 306 It is crucial that we paint an accurate picture of what is actually happening. This voluntary collection has the potential to make the use of force even more rare and the devastating consequences of force even less likely.

More than six million Americans — disproportionately people of color — cannot vote because of a felony conviction that disenfranchises them. 307 Of these, half reside in just twelve states that restrict voting rights even for those who have completed their prison sentence and are no longer under correctional supervision. 308 As I’ve said before: “[I]f folks have served their time, and they’ve reentered society, they should be able to vote.” 309 That is important to help those released from prison truly return as citizens. One of the most important rights in a democracy is the right to vote and participate in self-governance, and we should not be denying that right to those who have paid their debt to society. 310

Among the most significant of the recommendations of my Task Force on 21st Century Policing were insights on how jurisdictions could utilize technologies such as body-worn cameras to improve community trust, transparency, and accountability. Body-worn cameras have been proven to have several benefits for law enforcement agencies, officers, and the community, and my Administration has been an early proponent of expanded use. 311 U.S. Customs and Border Protection (CBP) was an early federal proponent of the use of body-worn cameras. 312 In several research studies, body-worn cameras are shown to help decrease reported complaints about officers. In Rialto, California, community reports against law enforcement officers dropped nearly 88% after officers began using body-worn cameras. 313 Likewise, complaints about Phoenix Police Department officers decreased by 23% once the department’s officers began using body-worn cameras, while other precincts whose officers did not use cameras saw a 45% increase in complaints during the same time frame. 314

There is also emerging research that body-worn cameras can provide evidence for criminal prosecution. In the same study of the Phoenix Police Department, researchers found that domestic violence cases were more likely to be prosecuted and result in guilty verdicts when the officers at the scene were wearing cameras. 315 Issues of law enforcement accountability and community trust cannot be addressed solely through providing officers with body-worn cameras and asking them to activate their devices. As the Task Force described in its recommendations, this technology must be implemented (and the footage obtained stored) in cooperation with thoughtful policies, initiatives, and technological safeguards to ensure that civil rights are upheld, privacy interests are respected, and cameras are part of a cost-effective approach to transparency and public safety. 316 Departments whose officers are using body-worn cameras must also institute substantial community engagement efforts to help demonstrate to the public the necessity of the cameras and promote open communication about what the videos show.

My Administration has invested millions of dollars in not only deploying thousands of body-worn cameras to our law enforcement officers, but also promoting research and education so we can identify and scale the programs and policies that best enable our law enforcement officers to serve their communities and promote public safety. We built a comprehensive Body-Worn Camera Toolkit 317 to help communities implement body-worn camera programs. The federal government and our state and local partners must continue to work together to ensure that adequate funding is provided for body-worn cameras for the women and men that police our cities and towns. Government officials, law enforcement leadership and officers, advocates, and community members will also need to continue this dialogue as the technology of body-worn cameras evolves so that law enforcement can most effectively utilize this technology in ways that benefit departments and the communities they serve.

There is so much work to be done. Yet I remain hopeful that together, we are moving in the right direction. Crime remains near historic lows, prison populations are decreasing, taxpayer dollars are being better spent, and more Americans are landing on their feet and taking advantage of the second chances they’ve earned. It’s critical we build on this in the ways I’ve outlined above. But at the end of the day, those entrusted with influence over the direction of the criminal justice system must also remember that reform is about more than the dollars we spend and the data we collect. How we treat those who have made mistakes speaks to who we are as a society and is a statement about our values — about our dedication to fairness, equality, and justice, and about how to protect our families and communities from harm, heal after loss and trauma, and lift back up those among us who have earned a chance at redemption.

Disclaimer: The journal’s copyright notice applies to the distinctive display of this Harvard Law Review Commentary, in both print and online forms, and not the President’s work or words.

^ B ARACK O BAMA , D REAMS FROM M Y F ATHER : A S TORY OF R ACE AND I NHERITANCE 252 (2d ed. 2004).

^ J OHN K. W ILSON , B ARACK O BAMA : T HIS I MPROBABLE Q UEST 145 (2008); President Barack Obama, Remarks by the President in Address to the Illinois General Assembly (Feb. 10, 2016), https://www.whitehouse.gov/the-press-office/2016/02/10/remarks-president-address-illinois-general-assembly [ https://perma.cc/EH44-ZSN7 ] (describing professional relationships as a state senator and work on ethics reform and racial profiling issues); see also D AVID A XELROD , B ELIEVER : M Y F ORTY Y EARS IN P OLITICS 140–41 (2015) (describing negotiations over racial profiling bill).

^ B ARACK O BAMA , T HE B LUEPRINT F OR C HANGE : B ARACK O BAMA’S P LAN FOR A MERICA 49 (2007), http://www.slideshare.net/USelections/the-blueprint-for-change-barack-obama-s-plan-for-america-presentation [ https://perma.cc/6LKD-4VQ9 ].

^ See Ron Davis, What 21st Century Policing Means , W HITE H OUSE : B LOG (Mar. 2, 2015, 4:16 PM), https://www.whitehouse.gov/blog/2015/03/02/what-21st-century-policing-means [ https://perma.cc/EXW2-U6N8 ]; Justin Ray, New Jersey Officer Meets President Obama , NBC 10 (Feb. 26, 2015, 1:39 PM), http://www.nbcphiladelphia.com/news/local/New-Jersey-Officer-Canden-President-Obama-Oval-Office-294229141.html [ https://perma.cc/ALX6-9NJY ].

^ See, e.g. , President Barack Obama, Remarks by the President on Community Policing (May 18, 2015), https://www.whitehouse.gov/the-press-office/2015/05/18/remarks-president-community-policing [ https://perma.cc/4VXH-BF3P ] (describing how reforms to the police department and other initiatives helped transform “a city trapped in a downward spiral”); see also Jim Walsh, Report: Camden Dangerous, but Crime Down , C OURIER -P OST (Feb. 8, 2016, 8:53 PM), http://www.courierpostonline.com/story/news/crime/2016/02/01/camden-neighborhoodscout-crime-dangerous/79649266 [ https://perma.cc/TX35-8ZFE ] (noting declines in Camden’s crime rate).

^ See President Barack Obama, Remarks by the President After Visit at El Reno Federal Correctional Institution (July 16, 2015), https://www.whitehouse.gov/the-press-office/2015/07/16/remarks-president-after-visit-el-reno-federal-correctional-institution [ https://perma.cc/5LFX-GM79 ].

^ See President Barack Obama, Remarks by the President at the 122nd Annual IACP Conference (Oct. 27, 2015), https://www.whitehouse.gov/the-press-office/2015/10/27/remarks-president-122nd-annual-iacp-conference [ https://perma.cc/FFE9-KZPD ].

^ See , e.g. , President Barack Obama, Remarks by the President at Community Forum at East End Family Resource Center (Oct. 21, 2015), https://www.whitehouse.gov/the-press-office/2015/10/21/remarks-president-community-forum-east-end-family-resource-center [ https://perma.cc/534B-GYKC ]; Press Release, Office of the Press Sec’y, FACT SHEET: President Obama Announces New Actions to Promote Rehabilitation and Reintegration for the Formerly-Incarcerated (Nov. 2, 2015), https://www.whitehouse.gov/the-press-office/2015/11/02/fact-sheet-president-obama-announces-new-actions-promote-rehabilitation [ https://perma.cc/YN4X-7TS8 ].

^ See Neil Eggleston, President Obama Grants Another 98 Commutations in the Month of October , W HITE H OUSE : B LOG (Oct. 27, 2016, 4:00 PM), https://www.whitehouse.gov/blog/2016/10/27/president-obama-grants-another-98-commutations-month-october [ https://perma.cc/2LBA-YTQX ].

^ See, e.g. , Juliet Eilperin & Mike DeBonis, Obama Convenes Meeting on Criminal Justice Reform to Buoy Bipartisanship , W ASH . P OST (Dec. 3, 2015), https://www.washingtonpost.com/politics/bipartisan-criminal-justice-reform-coalition-holds-white-house-meeting/2015/12/03/98cb7dde-99fa-11e5-b499-76cbec161973_story.html [ https://perma.cc/8E92-8BDT ]; Jordan Fabian, Obama Huddles with Key Republicans on Criminal Justice Reform , T HE H ILL (Feb. 5, 2016), http://thehill.com/blogs/blog-briefing-room/news-other-administration/268427-obama-met-with-grassley-goodlatte-on [ https://perma.cc/P4NQ-YRJ9 ]. In addition to signing the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (codified at scattered sections of 21 and 28 U.S.C.), I also signed legislation that helps protect our men and women in uniform who are faced with threats, injuries, and death, see Rafael Ramos and Wenjian Liu National Blue Alert Act of 2015, Pub. L. No. 114-12, 129 Stat. 192 (to be codified at 42 U.S.C. §§ 14165–14165b), as well as an important expansion of federal hate-crime laws that covers crimes committed because of a victim’s sexual orientation or gender identity, see Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, Pub. L. No. 111-84, 123 Stat. 2835 (codified at scattered sections of 18, 28, and 42 U.S.C.). See also President Barack Obama, Remarks by the President at Signing of the Rafael Ramos and Wenjian Liu National Blue Alert Act of 2015 (May 19, 2015), https://www.whitehouse.gov/the-press-office/2015/05/19/remarks-president-signing-rafael-ramos-and-wenjian-liu-national-blue-ale [ https://perma.cc/CT5K-4GCP ]; The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 , U.S. D EP’T J UST . (Aug. 6, 2015), https://www.justice.gov/crt/matthew-shepard-and-james-byrd-jr-hate-crimes-prevention-act-2009-0 [ https://perma.cc/9QAX-9G4F ].

^ President Barack Obama, Remarks by the President at the NAACP Conference (July 14, 2015), https://www.whitehouse.gov/the-press-office/2015/07/14/remarks-president-naacp-conference [ https://perma.cc/27GZ-7FJM ] (“Our communities are safer, thanks to brave police officers and hardworking prosecutors who put those violent criminals in jail.”); see also Obama, supra note 7 (“[Y]our work and your service really has helped make America safer than it’s been in decades, and that’s something for which every American should be proud.”); President Barack Obama, Remarks by the President at Memorial Service for Fallen Dallas Police Officers (July 12, 2016), https://www.whitehouse.gov/the-press-office/2016/07/12/remarks-president-memorial-service-fallen-dallas-police-officers [ https://perma.cc/XV64-YHGJ ] (“Like police officers across the country, these men and their families shared a commitment to something larger than themselves. They weren’t looking for their names to be up in lights. They’d tell you the pay was decent but wouldn’t make you rich . . . . [T]he reward comes in knowing that our entire way of life in America depends on the rule of law; that the maintenance of that law is a hard and daily labor; that in this country, we don’t have soldiers in the streets or militias setting the rules. Instead, we have public servants — police officers . . . .”).

^ T HE S ENTENCING P ROJECT , A MERICANS WITH C RIMINAL R ECORDS 2 (2015), http://www.sentencingproject.org/wp-content/uploads/2015/11/Americans-with-Criminal-Records-Poverty-and-Opportunity-Profile.pdf [ https://perma.cc/8E96-WBJV ].

^ Peter Wagner, Jails Matter. But Who Is Listening? , P RISON P OL’Y I NITIATIVE (Aug. 14, 2015), https://www.prisonpolicy.org/blog/2015/08/14/jailsmatter [ https://perma.cc/JD33-5F7Q ] (compiling data retrieved from the Bureau of Justice Statistics’ Jail Inmates at Midyear Series 2007–2014).

^ T HE S ENTENCING P ROJECT , F ACT S HEET : T RENDS IN U.S. C ORRECTIONS 2 (2015), http://sentencingproject.org/wp-content/uploads/2016/01/Trends-in-US-Corrections.pdf [ https://perma.cc/9Q5W-7GVG ].

^ W HITE H OUSE C OUNCIL OF E CON . A DVISORS , E CONOMIC P ERSPECTIVES ON I NCARCERATION AND THE C RIMINAL J USTICE S YSTEM 23 (2016) [hereinafter E CONOMIC P ERSPECTIVES ON I NCARCERATION ], https://www.whitehouse.gov/sites/default/files/page/files/20160423_cea_incarceration_criminal_justice.pdf. [ https://perma.cc/L7SW-34LH ].

^ P EW C HARITABLE T RS ., C OLLATERAL C OSTS : I NCARCERATION’S E FFECT ON E CONOMIC M OBILITY 7 fig.1 (2010), http://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_assets/2010/collateralcosts1pdf [ https://perma.cc/U6H8-QGB4 ].

^ Data obtained from Inst. for Criminal Policy Research & World Prison Brief, Highest to Lowest — Prison Population Rate , P RISON S TUDIES.ORG , http://www.prisonstudies.org/highest-to-lowest/prison_population_rate?field_region_taxonomy_tid=All [ https://perma.cc/7MGA-RAR7 ]. This ranking excludes territories and countries with populations of less than 200,000. See also E CONOMIC P PERSPECTIVES on I NCARCERATION , supra note 17, at 24 fig. 18 (compiling the same statistics from 2015).

^ See, e.g. , W ILLIAM J. S TUNTZ , T HE C OLLAPSE OF A MERICAN C RIMINAL J USTICE 13 (2011) (“The consequence of those trends is an unsustainably large prison population, disproportionately composed of young African American men from poor urban neighborhoods.”).

^ See Sally Q. Yates, Deputy Att’y Gen., U.S. Dep’t of Justice, Deputy Attorney General Sally Q. Yates Delivers McNamara Memorial Lecture at Fordham University (Nov. 14, 2016), https://www.justice.gov/opa/speech/deputy-attorney-general-sally-q-yates-delivers-mcnamara-memorial-lecture-fordham [ https://perma.cc/7TGM-6ZZV ] (“The Justice Department’s prison and detention costs have increased by almost three billion dollars in the past decade alone and now account for roughly one third of the department’s budget. This comes with significant public safety consequences because the growing [Bureau of Prisons (BOP)] budget is crowding out everything else we do at the department.”); see also C HARLES C OLSON T ASK F ORCE ON F EDERAL C ORRECTIONS , T RANSFORMING P RISONS , R ESTORING L IVES 14 (2016), http://www.urban.org/sites/default/files/alfresco/publication-pdfs/2000589-Transforming-Prisons-Restoring-Lives.pdf [ https://perma.cc/R24X-PK2N ] (“The BOP’s growth and size have created a tremendous financial burden for the federal government, requiring significant investment in basic housing and infrastructure and leaving few resources for the important work of supporting rehabilitation and successful reentry.”).

^ Yates, supra note 21.

^ T RACEY K YCKELHAHN , U.S. B UREAU OF J USTICE S TATISTICS , J USTICE E XPENDITURE AND E MPLOYMENT E XTRACTS , 2012 — P RELIMINARY tbl.1 (2015), http://www.bjs.gov/index.cfm?ty=pbdetail&iid=5239 [ https://perma.cc/RH4C-SUJG ]; see also D IANE W HITMORE S CHANZENBACH ET AL ., T HE H AMILTON P ROJECT , T HE B ROOKINGS I NST ., T WELVE F ACTS A BOUT I NCARCERATION AND P RISONER R EENTRY 4 (2016), https://www.brookings.edu/wp-content/uploads/2016/10/thp_20161020_twelve_facts_incarceration_prisoner_reentry.pdf [ https://perma.cc/XVB7-AGL6 ] (estimating total expenditures in 2012 based on U.S. Bureau of Labor Statistics and Bureau of Justice Statistics data); Does the U.S. Spend $80 Billion a Year on Incarceration? , C OMM. FOR A R ESPONSIBLE F ED. B UDGET (Dec. 23, 2015), http://crfb.org/blogs/us-spends-80-billion-year-incarceration [ https://perma.cc/WN4K-BM4V ] (fact-checking a similar estimate from 2010).

^ U.S. D EP’T OF E DUC ., S TATE AND L OCAL E XPENDITURES ON C ORRECTIONS AND E DUCATION 5 exhibit 1 (2016), https://www2.ed.gov/rschstat/eval/other/expenditures-corrections-education/brief.pdf [ https://perma.cc/GAJ8-5LVN ].

^ E CONOMIC P ERSPECTIVES ON I NCARCERATION , supra note 17, at 45–51 (2016).

^ Wagner, supra note 14.

^ See generally S ARAH E. R EDFIELD & J ASON P. N ANCE , A M. B AR A SS’N, S CHOOL-TO- P RISON P IPELINE : P RELIMINARY R EPORT (2016), https://www.americanbar.org/content/dam/aba/administrative/diversity_pipeline/stp_preliminary_report_final.authcheckdam.pdf [ https://perma.cc/2TWQ-LGW2 ].

^ See, e.g. , Timothy Head & Grover Norquist, The High Costs of Over-Incarceration , N AT ’ L R EV . (Aug. 13, 2015, 4:00 AM), http://www.nationalreview.com/article/422476/over-incarceration-not-making-america-safer [ https://perma.cc/3S2U-ZHB2 ]. See generally S TEVEN R APHAEL & M ICHAEL A. S TOLL , D O P RISONS M AKE U S S AFER ? T HE B ENEFITS AND C OSTS OF THE P RISON B OOM (2009).

^ See generally N AT’L R ESEARCH C OUNCIL OF THE N AT’L A CADS. , T HE G ROWTH OF I NCARCERATION IN THE U NITED S TATES 70–103 (2014) [hereinafter G ROWTH OF I NCARCERATION ]. The FBI calculates that the rate of violent crime was 372.6 per 100,000 people in 2015, compared to 469.0 in 2005, 684.5 in 1995, and 620.1 in 1986; the murder and manslaughter rate was 4.9 per 100,000 people in 2015, 5.6 in 2005, 8.2 in 1995, and 8.6 in 1986. See FBI, U.S. D EP’T OF J USTICE , U NIFORM C RIME R EPORTS tbl.1 (2015), https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/tables/table-1/table_1_crime_in_the_united_states_by_volume_and_rate_per_100000_inhabitants_1996-2015.xls [ https://perma.cc/A4Q2-WM56 ]; FBI, U.S. D EP’T OF J USTICE , U NIFORM C RIME R EPORTS tbl.1 (2005), https://ucr.fbi.gov/crime-in-the-u.s/2005 [ https://perma.cc/5MCS-49AS ]; see also U.S. B UREAU OF J USTICE S TATISTICS , C RIMINAL V ICTIMIZATION , 2015 (2016), http://www.bjs.gov/content/pub/pdf/cv15_sum.pdf [ https://perma.cc/XEY8-3QTJ ] (“From 1993 to 2015, the rate of violent crime declined from 79.8 to 18.6 victimizations per 1000 persons age 12 or older.”).

^ See G ROWTH OF I NCARCERATION , supra note 29, at 70–103; see also Rachel E. Barkow, Clemency and Presidential Administration of Criminal Law , 90 N.Y.U. L. R EV . 802, 819 (2015) (“Elected officials responded to . . . public fear and dissatisfaction [with a ‘too lenient’ justice system] by taking ever-tougher stances on crime. Republicans embraced the strategy first, but Democrats quickly followed. Key interests have also pushed for more expansive and tougher criminal laws, including prosecutors, victims’ rights organizations, rural communities that may depend on prisons for jobs, private prison companies, and corrections unions.”).

^ Bryan Stevenson, a member of my Task Force on 21st Century Policing, has said that under the current justice system, it is often “better if you’re rich and guilty than if you’re poor and innocent.” Bryan Stevenson, We Need to Talk About an Injustice , TED (Mar. 2012), https://www.ted.com/talks/bryan_stevenson_we_need_to_talk_about_an_injustice/transcript?language=en [ https://perma.cc/UEQ2-YUEK ]; see also B RYAN S TEVENSON , J UST M ERCY 18 (2014) (“[T]he opposite of poverty is not wealth; the opposite of poverty is justice.”).

^ For example, studies have suggested no statistically significant difference in the rate of current drug use across races and ethnicities though the arrest and conviction rate for African Americans for drug crimes is significantly higher. See U.S. D EP’T OF H EALTH & H UMAN S ERVS ., R ESULTS FROM THE 2013 N ATIONAL S URVEY ON D RUG U SE AND H EALTH : S UMMARY OF N ATIONAL F INDINGS 26 (2014), http://www.samhsa.gov/data/sites/default/files/NSDUHresultsPDFWHTML2013/Web/NSDUHresults2013.pdf [ https://perma.cc/LZ4X-MZ38 ].

^ Obama, supra note 11.

^ E CONOMIC P ERSPECTIVES ON I NCARCERATION , supra note 17, at 4; see also J ESSICA E AGLIN & D ANYELLE S OLOMON , B RENNAN C TR. FOR J USTICE , R EDUCING R ACIAL A ND E THNIC D ISPARITIES IN J AILS 10–13 (2015), https://www.brennancenter.org/sites/default/files/publications/Racial%20Disparities%20Report%20062515.pdf [ https://perma.cc/DTZ4-8VBA ]; L YNN L ANGTON & M ATTHEW R. D UROSE , B UREAU OF J USTICE S TATISTICS , U.S. D EP’T OF J USTICE, P OLICE B EHAVIOR D URING T RAFFIC AND S TREET S TOPS , 2011 (2013), http://www.bjs.gov/content/pub/pdf/pbtss11.pdf [ https://perma.cc/Y4X3-XRU6 ]; T HE S ENTENCING P ROJECT , R EPORT OF THE S ENTENCING P ROJECT TO THE U NITED N ATIONS H UMAN R IGHTS C OMMITTEE R EGARDING R ACIAL D ISPARITIES IN THE U NITED S TATES C RIMINAL J USTICE S YSTEM 1 (2013), http://sentencingproject.org/wp-content/uploads/2015/12/Race-and-Justice-Shadow-Report-ICCPR.pdf [ https://perma.cc/89FU-NUZA ]; R AM S UBRAMANIAN ET AL ., V ERA I NST. OF J USTICE , I N O UR O WN B ACKYARD : C ONFRONTING G ROWTH AND D ISPARITIES IN A MERICAN J AILS 12–13 (2015), http://www.safetyandjusticechallenge.org/wp-content/uploads/2015/12/incarceration-trends-in-our-own-backyard-report.pdf [ https://perma.cc/HEA4-U6RL ]; M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Sen-tences , 122 J. P OL. E CON . 1320 (2014).

^ E CONOMIC P ERSPECTIVES ON I NCARCERATION , supra note 17, at 5.

^ See Sarah K.S. Shannon et al., The Growth, Scope, and Spatial Distribution of People with Felony Records in the United States, 1948 to 2010 , D EMOGRAPHY (forthcoming) (manuscript at 25), http://users.soc.umn.edu/~uggen/former_felons_2016.pdf [ https://perma.cc/YS3H-EJVN ] .

^ Id . (manuscript at 26).

^ B ARACK O BAMA , T HE A UDACITY OF H OPE 253 (1st ed. 2006); see also Am. Psychological Ass’n Zero Tolerance Task Force, Are Zero Tolerance Policies Effective in the Schools? An Evidentiary Review and Recommendations , 63 A M . P SYCHOLOGIST 852, 853–54 (2008) (documenting and challenging the “key assumptions of zero tolerance policies”).

^ See L AUREN -B ROOKE E ISEN & I NIMAI C HETTIAR , B RENNAN C TR. FOR J USTICE , T HE R EVERSE M ASS I NCARCERATION A CT 6, 10 (2015), http://www.brennancenter.org/sites/default/files/publications/The_Reverse_Mass_Incarceration_Act%20.pdf [ https://perma.cc/W62K-5BK6 ] (describing state approaches to reducing crime and incarceration); see also B RENNAN C TR. FOR J USTICE , S OLUTIONS : A MERICAN L EADERS S PEAK O UT ON C RIMINAL J USTICE (Inimai Chettiar & Michael Waldman eds., 2015), http://www.brennancenter.org/sites/default/files/publications/Solutions_American_Leaders_Speak_Out.pdf [ https://perma.cc/Q5XX-Y8JX ] (compiling proposals for criminal justice reform from bipartisan public leaders); I NT’L A SS’N OF C HIEFS OF P OLICE , P ARTNERSHIPS IN P RETRIAL J USTICE (2016), http://www.iacp.org/Portals/0/documents/pdfs/IACP_ParnersinPretrialJustice_Final.pdf [ https://perma.cc/DC9K-YKTZ ] (detailing state efforts to adopt risk-based reforms).

^ In Georgia, after criminal justice reform in 2012, prison admissions fell 8%, and the violent crime rate dropped to its lowest since 1980. B UREAU OF J USTICE S TATISTICS , U.S. D EP’T OF J USTICE , I N B RIEF : E XAMINING THE C HANGING R ACIAL C OMPOSITION OF T HREE S TATES’ P RISON P OPULATIONS 2 (2015), https://www.bja.gov/Publications/CSG-RacialPrisonPop.pdf [ https://perma.cc/HUU4-CHCD ]; Statewide Crime Rates per 100,000 Population 1980–2015 , G A. B UREAU I NVESTIGATION , https://gbi.georgia.gov/sites/gbi.georgia.gov/files/related_files/site_page/Statewide%20Crime%20Rates%20per%20100,000%20Population.pdf [ https://perma.cc/UWM3-RVP8 ]. In Texas, after reforms in 2007 that reduced sentencing terms for drug offenders, the violent crime rate declined by 20% between 2007 and 2011. See Sally Q. Yates, Deputy Att’y Gen., U.S. Dep’t of Justice, Remarks at the National District Attorneys Association on Prosecution Integrity (July 21, 2015), https://www.justice.gov/opa/speech/deputy-attorney-general-sally-quillian-yates-delivers-remarks-national-district-attorneys [ https://perma.cc/7ULA-RYPZ ]. Alabama has had a similar experience. See Press Release, Office of the Governor of Ala., Governor Bentley Addresses Congress on Alabama’s Prison Reform Efforts (July 14, 2015), http://governor.alabama.gov/newsroom/2015/07/governor-bentley-addresses-congress-alabamas-prison-reform-efforts [ https://perma.cc/XDB6-ATYD ] (“In 2014, Alabama launched the Justice Reinvestment Initiative (JRI), a comprehensive study of the state’s criminal justice system to identify ways to implement more cost effective criminal justice policies. The goal of JRI is to generate state savings that can be reinvested in evidence-based strategies that will increase public safety while holding offenders accountable for crimes. . . . The legislation is expected to reduce the state’s prison population by more than 4200 people, avert more than $380 million in future costs and provide supervision for 3000 more people upon release from prison.”).

^ See, e.g. , T HE S ENTENCING P ROJECT , L IFE G OES O N : T HE H ISTORIC R ISE IN L IFE S ENTENCES IN A MERICA 3, 15–16 (2013), http://sentencingproject.org/wp-content/uploads/2015/12/Life-Goes-On.pdf [ https://perma.cc/WG7B-ZF66 ] (noting that, even amid broad policy reform, there is little debate about the use of and appropriateness of life sentences, and that “[l]ife without parole is a mandatory sentence upon conviction under three strikes laws in 13 states and the federal government,” id . at 16).

^ Within Congress, the supporters of criminal justice reform include Senators John Cornyn, Mike Lee, and Rand Paul, as well as Congressmen James Sensenbrenner and Trey Gowdy, among others. See Criminal Justice Reform Initiative , H OUSE J UDICIARY C OMMITTEE , https://judiciary.house.gov/issue/criminal-justice-reform-initiative [ https://perma.cc/K6S9-UKUD ]; see also Seung Min Kim, Compromise Struck on Criminal Justice Reform , P OLITICO (Apr. 28, 2016, 11:03 AM), http://www.politico.com/story/2016/04/criminal-justice-reform-senate-222577 [ https://perma.cc/CGJ2-AGT8 ]. There are also a host of Left-Right coalitions in this space. Most notably, in 2015, a group called the Coalition for Public Safety launched with a mission “to make our criminal justice system smarter, fairer and more cost effective.” About the Coalition , C OALITION FOR P UB . S AFETY (2015), http://www.coalitionforpublicsafety.org/about [ https://perma.cc/Z8G5-BZKB ]. The organization partners with many of the nation’s most prominent conservative and progressive organizations — including organizations backed by Grover Norquist and the Koch brothers. See The Importance of Action , C OALITION FOR P UB . S AFETY (2015), http://www.coalitionforpublicsafety.org [ https://perma.cc/5DCV-75Y7 ] (listing partner organizations). On March 27, 2015, the Bipartisan Summit for Criminal Justice Reform brought together more than ninety speakers in Washington, D.C., in an event hosted by Pat Nolan and former Speaker of the House Newt Gingrich, among others. See Edgar Saavedra, A Bipartisan Summit on Criminal Justice Reform , #C UT 50 (Mar. 27, 2015), http://www.cut50.org/summit1 [ https://perma.cc/JPK5-QD6Q ]. Governor Nathan Deal of Georgia, a state that has led on these issues, spoke at the event about the impact drug courts can have on the lives of those struggling with addiction and seeking to earn their second chance. See Bipartisan Summit: Georgia Governor Nathan Deal , Y OU T UBE (Mar. 26, 2015), https://www.youtube.com/watch?v=uGa45JNw7kU [ https://perma.cc/6FGP-EQSN ].

^ President Barack Obama, Remarks by the President in Arm Chair Discussion on Criminal Justice with Law Enforcement Leaders (Oct. 22, 2015), https://www.whitehouse.gov/the-press-office/2015/10/22/remarks-president-arm-chair-discussion-criminal-justice-law-enforcement [ https://perma.cc/HR4Q-KN7U ] (“[T]his is a staged process. We will lose the public if we try to do everything at once without having data and evidence . . . . If, on the other hand, we do it systematically, methodically, . . . [and] we’re not telling prosecutors you’re going to be promoted based on how many maximum sentences you get, but rather based on how wise your use of prosecutorial discretion — if all those things prove that we’re still doing a good job controlling crime, then I think we’ve got something to build on.”).

^ Peter Wagner & Bernadette Rabuy, Mass Incarceration: The Whole Pie 2016 , P RISON P OL’Y (Mar. 14, 2016), https://www.prisonpolicy.org/reports/pie2016.html [ https://perma.cc/N4WB-4T8C ].

^ “Resolution of prosecutorial questions usually is conceived as lying at the heart of the executive power vested in the President,” then-Professor Elena Kagan observed in a seminal article on presidential administration. Elena Kagan, Presidential Administration , 114 H ARV . L. R EV . 2245, 2357 (2001). “But it is in this area, because so focused on particular individuals and firms, that the crassest forms of politics . . . pose the greatest danger of displacing professionalism and thereby undermining confidence in legal decisionmaking.” Id . at 2357–58.

^ See, e.g. , Rachel E. Barkow, Separation of Powers and the Criminal Law , 58 S TAN . L. R EV . 989, 1017 (2006).

^ See Kate Andrias, The President’s Enforcement Power , 88 N.Y.U. L. R EV . 1031, 1051 (2013).

^ See id . at 1070–72; see also Kagan, supra note 46, at 2357–58.

^ See Eggleston, supra note 9.

^ See Past Inmate Population Totals , F ED. B UREAU P RISONS (Dec. 1, 2016), https://www.bop.gov/about/statistics/population_statistics.jsp [ https://perma.cc/GZ3R-TSVY ] (providing historical inmate totals from 1980 to 2016); see also P ATRICK A. L ANGAN ET AL ., B UREAU OF J USTICE S TATISTICS , U.S. D EP’T OF J USTICE , H ISTORICAL S TATISTICS ON P RISONERS IN S TATE AND F EDERAL I NSTITUTIONS , Y EAREND 1925–86, at 12 (1988), https://www.ncjrs.gov/pdffiles1/digitization/111098ncjrs.pdf [ https://perma.cc/Y9HS-A24R ] (presenting historical data that suggests the last President to see a decrease in the federal inmate population while in office was President Jimmy Carter).

^ There were historic decreases in violent crime in 2014. While the most recent FBI Uniform Crime Report (UCR) data suggests that crime increased overall in 2015, it is important to remember that 2015 still represented the third-lowest year for violent crime in the past two decades. See Crime in the United States 2015 , FBI, https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/home [ https://perma.cc/WFQ5-55S3 ]; Crime in the United States 2014 , FBI, https://ucr.fbi.gov/crime-in-the-u.s/2014/crime-in-the-u.s.-2014 [ https://perma.cc/7YB8-P98F ].

^ These actions were undertaken not at my direction, but because of the strong, principled leadership of Eric Holder and Loretta Lynch, the two outstanding Attorneys General who served in my Administration. In many respects, the most consequential actions I took in this area were my decisions to entrust these dedicated public servants (and other senior officials in the Department of Justice) with the authority to use their discretion wisely and to provide guidance and set an example for the thousands of federal prosecutors across the United States. This point is consistent with recent scholarship that demonstrates the important role prosecutors have played in escalating the length of sentences and can play in easing them. See, e.g. , John. F. Pfaff, The Micro and Macro Causes of Prison Growth , 28 G A . S T. U. L. R EV . 1239, 1242 (2012) (describing the important role county prosecutors have played in prison population growth).

^ Memorandum from Eric Holder, Jr., Att’y Gen., U.S. Dep’t of Justice, to All Federal Prosecutors (May 19, 2010), http://subjecttoinquiry.default.wp1.lexblog.com/files/2013/09/Holder-Charging-Memo-5-19-10.pdf [ https://perma.cc/D599-RPVA ]; see id . at 3 (“This memorandum supersedes previous Department guidance on charging and sentencing including the September 22, 2003 memorandum issued by Attorney General John Ashcroft . . . , the July 2, 2004 memorandum issued by Deputy Attorney General James Comey . . . and the January 28, 2005 memorandum issued by Deputy Attorney General James Comey . . . .”).

^ Id . at 1.

^ See Memorandum from Eric Holder, Jr., Att’y Gen., U.S. Dep’t of Justice, to the United States Attorneys & Assistant Attorney General for the Criminal Division 1 (Aug. 12, 2013), https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/ag-memo-department-policypon-charging-mandatory-minimum-sentences-recidivist-enhancements-in-certain-drugcases.pdf [ https://perma.cc/9UMG-B3L9 ]. A footnote in the memo notes that “[a]s with every case, prosecutors should determine, as a threshold matter, whether a case serves a substantial federal interest. In some cases, satisfaction of the . . . criteria [for declining to charge under a mandatory minimum statute] meant for low-level, nonviolent drug offenders may indicate that prosecution would not serve a substantial federal interest and that the case should not be brought federally.” Id . at 2 n.3.

^ Memorandum from Eric Holder, Jr., Att’y Gen., U.S. Dep’t of Justice, to Department of Justice Attorneys (Sept. 24, 2014), https://www.justice.gov/oip/foia-library/ag_guidance_on_section_851_enhancements_in_plea_negotiations/download [ https://perma.cc/VWW7-9CCK ].

^ Memorandum from James M. Cole, Deputy Att’y Gen., U.S. Dep’t of Justice, to All Federal Prosecutors (Oct. 14, 2014), https://www.justice.gov/file/70111/download [ https://perma.cc/V772-EVBU ].

^ See, e.g. , N AT’L A SS’N OF A SSISTANT U.S. A TT’YS, T HE D ANGEROUS M YTHS OF D RUG S ENTENCING “R EFORM ” 10–11 (2015), https://www.naausa.org/2013/images/docs/Dangerous-Myths-of-Drug-Sentencing-Reform.pdf [ https://perma.cc/FZ8D-H8W9 ] (predicting that lower mandatory minimums would inhibit a prosecutor’s ability to dismantle criminal organizations); Letter from Robert Gay Guthrie, President, Nat’l Ass’n of Assistant U.S. Att’ys, to Senator Patrick Leahy, Chairman, and Senator Charles Grassley, Ranking Member, Senate Judiciary Comm. (Jan. 31, 2014), http://www.naausa.org/2013/images/docs/MandMinSentencingLegOppose013114.pdf [ https://perma.cc/ZSX5-3QBU ].

^ See Press Release, Office of Pub. Affairs, U.S. Dep’t of Justice, New Smart on Crime Data Reveals Federal Prosecutors Are Focused on More Significant Drug Cases and Fewer Mandatory Minimums for Drug Defendants (Mar. 21, 2016), https://www.justice.gov/opa/pr/new-smart-crime-data-reveals-federal-prosecutors-are-focused-more-significant-drug-cases-and [ https://perma.cc/67U4-6Z2N ] (noting that “the percentage of defendants with an aggravating role steadily increased” while the number of drug cases with mandatory minimums has fallen).

^ See B UREAU OF J USTICE S TATISTICS , U.S. D EP’T OF J USTICE , C ORRECTIONAL P OPULATIONS IN THE U NITED S TATES , 2013 (2014), http://www.bjs.gov/content/pub/pdf/cpus13.pdf [ https://perma.cc/2FQ2-T48B ].

^ See B UREAU OF J USTICE S TATISTICS , U.S. D EP’T OF J USTICE , C ORRECTIONAL P OPULATIONS IN THE U NITED S TATES , 2014, at 2 (2015), http://www.bjs.gov/content/pub/pdf/cpus14.pdf [ https://perma.cc/VG8R-PPQR ].

^ See U.S. S ENTENCING C OMM’N , O VERVIEW OF F EDERAL C RIMINAL C ASES F ISCAL Y EAR 2015, at 7–8 (2016), http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2016/FY15_Overview_Federal_Criminal_Cases.pdf [ https://perma.cc/BY29-6H87 ]. The U.S. Sentencing Commission attributed this significant reduction to “a change in the policy of the Department of Justice in 2013 as to how to charge drug cases.” Id . at 8; id . at 12 n.8 (providing data from fiscal years 2013 and 2014).

^ See Yates, supra note 21.

^ Pub. L. No. 111-220, 124 Stat. 2372 (2010) (codified as amended in scattered sections of 21 and 28 U.S.C.).

^ Id . § 3 (codified at 21 U.S.C. § 844(a) (2012)).

^ Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity: Hearing Before the Subcomm . on Crime & Drugs of the S . Comm . on the Judiciary , 111th Cong. 2–3 (2009) (Statement of Sen. Richard J. Durbin, Chairman, S. Subcomm. on Crime & Drugs).

^ Smarter Sentencing Act of 2014, S. 1410, 113th Cong.; see also Smarter Sentencing Act of 2015, S. 502, H.R. 920, 114th Cong. (a similar bill introduced in 2015).

^ Id . § 4.

^ Id .§ 2.

^ Id . § 3(b).

^ C ONG . B UDGET O FFICE , C OST E STIMATE , S. 1410 S MARTER S ENTENCING A CT OF 2014 (Sept. 11, 2014), https://www.cbo.gov/sites/default/files/113th-congress-2013-2014/costestimate/s141000.pdf [ https://perma.cc/8ETY-KHS9 ].

^ See, e.g. , 161 C ONG . R EC . S1378–80 (daily ed. Mar. 10, 2015) (statement of Sen. Grassley); 160 C ONG . R EC . S4449–50 (daily ed. July 14, 2014) (statement of Sen. Grassley); 159 C ONG . R EC . S6511–13 (daily ed. Sept. 17, 2013) (statement of Sen. Grassley).

^ S. 2123, 114th Cong.

^ H.R. 3713, 114th Cong. (2015).

^ See S. 2123 § 101.

^ See id . § 106.

^ Id . § 202(a)(6)(A).

^ Id . § 211.

^ See C ONG . B UDGET O FFICE , C OST E STIMATE , S. 2123 S ENTENCING R EFORM AND C ORRECTIONS A CT OF 2015 (2016), https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/costestimate/s2123-r.pdf [ https://perma.cc/RF8A-W6PJ ] (estimating cost savings of over $1 billion over ten years).

^ See, e.g. , Sentencing Reform and Corrections Act of 2015: Hearing on S. 2123 Before the S. Comm. on the Judiciary , 114th Cong. (2015) (statement of Sally Quillian Yates, Deputy Att’y Gen., U.S. Dep’t of Justice).

^ See Press Release, Families Against Mandatory Minimums, Senate Judiciary Committee Approves the Sentencing Reform and Corrections Act (Oct. 22, 2015), http://famm.org/senate-judiciary-committee-approves-the-sentencing-reform-and-corrections-act [ https://perma.cc/T7LH-GQL7 ].

^ Press Release, Coal. for Pub. Safety, Statement by Deputy Director Jessica Berry on Senate Judiciary Committee Approval of Sentencing Reform and Corrections Act (Oct. 23, 2015), http://www.coalitionforpublicsafety.org/statement-by-deputy-director-jessica-berry-on-senate-judiciary-committee-approval-of-sentencing-reform-and-corrections-act [ https://perma.cc/G9QA-FH89 ]. Members and funders of the Coalition for Public Safety include the American Civil Liberties Union (ACLU), Americans for Tax Reform, the Center for American Progress, the Faith and Freedom Coalition, the Ford Foundation, Freedom Works, Koch Industries, Inc., the Laura and John Arnold Foundation, the Leadership Conference Education Fund, the MacArthur Foundation, the NAACP, and Right on Crime. About the Coalition , supra note 43.

^ Press Release, Int’l Ass’n of Chiefs of Police, IACP Announces Support for the Sentencing Reform and Corrections Act (May 11, 2016), http://www.iacp.org/ViewResult?SearchID=2658 [ https://perma.cc/YF3G-759G ].

^ Letter from Michael J. Bouchard, Vice President of Gov’t Affairs, Major Cty. Sheriffs’ Ass’n, to Mitch McConnell, Majority Leader, U.S. Senate, and Harry Reid, Democratic Leader, U.S. Senate (May 11, 2016), http://www.mcsheriffs.com/pdf/news/mcsa_support_s_2123_sentencing_reform_and_corrections_act.pdf [ https://perma.cc/KC95-Q7EJ ].

^ Letter from William Fitzpatrick, President, Nat’l Dist. Att’ys Ass’n, to Mitch McConnell, Majority Leader, U.S. Senate, and Harry Reid, Democratic Leader, U.S. Senate (Apr. 26, 2016), http://www.ndaa.org/pdf/NDAA%20Support%20Letter%20on%20Sentencing%20Reform%20and%20Corrections%20Act.pdf [ https://perma.cc/HC99-FA78 ].

^ See Letter from Ronal Serpas, Co-Chairman, Law Enf’t Leaders to Reduce Crime & Incarceration, et al., to Mitch McConnell, Majority Leader, U.S. Senate, et al. (Jan. 20, 2016), http://lawenforcementleaders.org/wp-content/uploads/2016/01/Law-Enforcement-Leaders-SCRA-Letter-of-Support.pdf [ https://perma.cc/SJ3M-JLNU ] (signed by over seventy leaders of law enforcement agencies on behalf of a group that represents more than 160 law enforcement leaders).

^ Despite broad support, there was vocal opposition from some while others pushed for the reform legislation to be paired with proposals such as mens rea reform that could undermine public safety and harm progressive goals. See, e.g. , James Hohmann, Why Criminal Justice Reform May Actually Get Done This Year — If These Two Hurdles Can Be Overcome , W ASH . P OST : T HE D AILY 202 (May 9, 2016), https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2016/05/09/daily-202-why-criminal-justice-reform-may-actually-get-done-this-year-if-these-two-hurdles-can-be-overcome/572ff07c981b92a22d6c6553/?utm_term=.269814bf1714 [ https://perma.cc/SM5Z-LA2L ] (describing the “uphill battle” facing legislation in Congress despite broad support in Congress and from outside organizations).

^ O FFICE OF THE D EPUTY A TT’Y G EN ., U.S. D EP’T OF J USTICE , R EPORT AND R ECOMMENDATIONS C ONCERNING THE U SE OF R ESTRICTIVE H OUSING 6 (2016), https://www.justice.gov/dag/file/815551/download [ https://perma.cc/R8SR-QZRH ].

^ A SS’N OF S TATE C ORR . A DM’RS , T IME -I N -C ELL : T HE ASCA L IMAN 2014 N ATIONAL S URVEY OF A DMINISTRATIVE S EGREGATION IN P RISON 3 (2015), https://www.law.yale.edu/system/files/area/center/liman/document/asca-liman_administrativesegregationreport.pdf [ https://perma.cc/M9L2-PSTU ].

^ Barack Obama, Opinion, Why We Must Rethink Solitary Confinement , W ASH . P OST (Jan. 25, 2016), https://www.washingtonpost.com/opinions/barack-obama-why-we-must-rethink-solitary-confinement/2016/01/25/29a361f2-c384-11e5-8965-0607e0e265ce_story.html [ https://perma.cc/3Y3V-XUMS ].

^ Id .; see also Davis v. Ayala , 135 S. Ct. 2187, 2210 (2015) (Kennedy, J., concurring) (“[R]esearch still confirms what this Court suggested over a century ago: Years on end of near-total isolation exact a terrible price.” (citing Stuart Grassian, Psychiatric Effects of Solitary Confinement , 22 W ASH . U. J.L. & P OL’Y 325 (2006))).

^ Press Release, Office of the Press Sec’y, FACT SHEET: Department of Justice Review of Solitary Confinement (Jan. 25, 2016), https://www.whitehouse.gov/the-press-office/2016/01/25/fact-sheet-department-justice-review-solitary-confinement [ https://perma.cc/G27J-XB9A ].

^ Obama, supra note 92.

^ See generally O FFICE OF THE D EPUTY A TT’Y G EN ., supra note 90.

^ R ESTRICTIVE H OUS. C OMM. , A M . C ORR . A SS’N , R ESTRICTIVE H OUSING P ERFORMANCE B ASED S TANDARDS (2016), <a href=" http://www.aca.org/ACA_Prod_IMIS/ACA_Member/Standards___Accreditation/Standards/Restrictive_Housing_Committee/ACA_Member/Standards_and_Accreditation/Restrictive_Housing_Committee/Restrictive_Housing_Committee.aspx [ https://perma.cc/4G4J-Q5TM ].

^ C TY. OF L.A. B D. OF S UPERVISORS , M EETING T RANSCRIPT OF THE L OS A NGELES C OUNTY B OARD OF S UPERVISORS (2016), http://file.lacounty.gov/SDSInter/bos/sop/transcripts/243452_050316C.PDF [ https://perma.cc/CED4-N5M3 ]; see also Abby Sewell & Garrett Therolf, L.A. County Severely Restricts Solitary Confinement for Juveniles , L.A. T IMES (May 3, 2016), http://www.latimes.com/local/lanow/la-me-ln-juvenile-solitary-20160503-story.html [ https://perma.cc/M8W6-PWGZ ].

^ 72 N EB . A DMIN . C ODE § 83-173.03 (2016).

^ See Rose Hoban, Ending Solitary for Juveniles, Prison Commissioner Cites Use of Evidence-Based Alternatives , N.C. H EALTH N EWS (June 21, 2016), http://www.northcarolinahealthnews.org/2016/06/21/ending-solitary-for-juveniles-prison-commissioner-cites-use-of-evidence-based-alternatives [ https://perma.cc/9BU8-XGBL ].

^ Sally Q. Yates, Phasing Out Our Use of Private Prisons , U.S. D EP’T J UST .: J UST . B LOGS , (Aug. 18, 2016), https://www.justice.gov/opa/blog/phasing-out-our-use-private-prisons [ https://perma.cc/6SPA-65RR ]; see also O FFICE OF THE I NSPECTOR G EN ., U.S. D EP’T OF J USTICE , R EVIEW OF THE F EDERAL B UREAU OF P RISON’S M ONITORING OF C ONTRACT P RISONS (2016), https://oig.justice.gov/reports/2016/e1606.pdf [ https://perma.cc/D73V-36QA ].

^ L OIS M. D AVIS ET AL ., R AND C ORP ., E VALUATING THE E FFECTIVENESS OF C ORRECTIONAL E DUCATION : A M ETA -A NALYSIS OF P ROGRAMS THAT P ROVIDE E DUCATION TO I NCARCERATED A DULTS (2013), https://www.bja.gov/Publications/RAND_Correctional-Education-Meta-Analysis.pdf [ https://perma.cc/77HC-G538 ] (“[O]n average, inmates who participated in correctional education programs had 43 percent lower odds of recidivating than inmates who did not. . . . This translates into a reduction in the risk of recidivating of 13 percentage points for those who participate in correctional education programs versus those who do not.” (emphasis omitted)).

^ Press Release, Office of Pub. Affairs, U.S. Dep’t of Justice, Justice Department Announces Reforms at Bureau of Prisons to Reduce Recidivism and Promote Inmate Rehabilitation (Nov. 30, 2016), https://www.justice.gov/opa/pr/justice-department-announces-reforms-bureau-prisons-reduce-recidivism-and-promote-inmate [ https://perma.cc/3QL7-7AQR ].

^ Prison Reform: Reducing Recidivism by Strengthening the Federal Bureau of Prisons , U.S. D EP’T J UST ., https://www.justice.gov/prison-reform (last updated Dec. 2, 2011) [ https://perma.cc/WZB3-377E ].

^ National Reentry Week: April 24–30, 2016 , U.S. D EP’T J UST ., https://www.justice.gov/reentry/reentry-week [ https://perma.cc/8KZL-WUUW ].

^ U.S. D EP’T OF J USTICE , R OADMAP TO R EENTRY (2016), https://www.justice.gov/reentry/file/844356/download [ https://perma.cc/7TWY-N7PG ].

^ Memorandum from Sally Q. Yates, Deputy Att’y Gen., U.S. Dep’t of Justice, to Thomas R. Kane, Acting Dir., Fed. Bureau of Prisons (Nov. 30, 2016), https://www.justice.gov/dag/page/file/914051/download [ https://perma.cc/S9LA-YUS5 ].

^ J AMES E LWELL , A MY F RIEDER , N IRUPAMA R AO & A ARON S OJOURNER , C OUNCIL OF E CON . A DVISERS , N EW E STIMATES OF P OPULATIONS A FFECTED BY C RIMINAL J USTICE BY S TATE , R ACE , AND Y EAR 2 (2016).

^ Press Release, Office of the Press Sec’y, Presidential Memorandum — Promoting Rehabilitation and Reintegration of Formerly Incarcerated Individuals (Apr. 29, 2016), https://www.whitehouse.gov/the-press-office/2016/04/29/presidential-memorandum-promoting-rehabilitation-and-reintegration [ https://perma.cc/CNW5-WPPD ].

^ See generally F ED . I NTERAGENCY R EENTRY C OUNCIL , A R ECORD OF P ROGRESS AND A R OADMAP FOR THE F UTURE (2016), https://csgjusticecenter.org/wp-content/uploads/2016/08/FIRC-Reentry-Report.pdf [ https://perma.cc/VD3G-ZHL2 ] (describing work of the Federal Interagency Reentry Council in its first five years).

^ Beth Colbert, “ Banning the Box” in Federal Hiring , O FF. OF P ERSONNEL M GMT .: D IRECTOR’S B LOG (Apr. 29, 2016), https://www.opm.gov/blogs/Director/2016/4/29/Banning-the-Box-in-Federal-Hiring [ https://perma.cc/9G9N-L2DX ].

^ H ELEN R. K ANOVSKY , U.S. D EP’T OF H OUS . & U RBAN D EV ., O FFICE OF G ENERAL C OUNSEL G UIDANCE ON A PPLICATION OF F AIR H OUSING A CT S TANDARDS TO THE U SE OF C RIMINAL R ECORDS BY P ROVIDERS OF H OUSING AND R EAL E STATE –R ELATED T RANSACTIONS (2016), http://portal.hud.gov/hudportal/documents/huddoc?id=HUD_OGCGuidAppFHAStandCR.pdf [ https://perma.cc/5JC7-FZP7 ].

^ 42 U.S.C. §§ 3601–3619 (2012).

^ K ANOVSKY , supra note 118 .

^ U.S. D EP’T OF E DUC ., B EYOND THE B OX : I NCREASING A CCESS TO H IGHER E DUCATION FOR J USTICE -I NVOLVED I NDIVIDUALS 4 (2016), https://www2.ed.gov/documents/beyond-the-box/guidance.pdf [ https://perma.cc/TCQ5-GD8U ].

^ Press Release, Office of the Press Sec’y, FACT SHEET: White House Launches the Fair Chance Business Pledge (Apr. 11, 2016), https://www.whitehouse.gov/the-press-office/2016/04/11/fact-sheet-white-house-launches-fair-chance-business-pledge [ https://perma.cc/W6QJ-RK6B ].

^ Press Release, Office of the Press Sec’y, FACT SHEET: White House Launches the Fair Chance Higher Education Pledge (June 10, 2016), https://www.whitehouse.gov/the-press-office/2016/06/10/fact-sheet-white-house-launches-fair-chance-higher-education-pledge [ https://perma.cc/JLE9-RND8 ].

^ Press Release, supra note 122.

^ See Press Release, Office of the Press Sec’y, FACT SHEET: White House Announces New Commitments to the Fair Chance Business Pledge and Actions to Improve the Criminal Justice System (Nov. 30, 2016), https://www.whitehouse.gov/the-press-office/2016/11/30/fact-sheet-white-house-announces-new-commitments-fair-chance-business [ https://perma.cc/EMF7-KPAV ] (“Today’s signatories to the Fair Chance Business Pledge bring the total number of pledged employers to over 300.”); Press Release, Office of the Press Sec’y, FACT SHEET: White House Announces New Commitments to the Fair Chance Business Pledge (Aug. 16, 2016), https://www.whitehouse.gov/the-press-office/2016/08/16/fact-sheet-white-house-announces-new-commitments-fair-chance-business [ https://perma.cc/7WW7-EBPL ]; Press Release, supra note 122.

^ Press Release, supra note 123.

^ Press Release, U.S. Dep’t of Educ., FACT SHEET: White House Announces New Commitments to Fair Chance Higher Education Pledge (Sept. 14, 2016), http://www.ed.gov/news/press-releases/fact-sheet-white-house-announces-new-commitments-fair-chance-higher-education-pledge [ https://perma.cc/86AV-3LQS ].

^ The Pardon Clause vests the President with “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” U.S. C ONST . art. II, § 2, cl. 1.

^ See United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1871) (“To the executive alone is intrusted the power of pardon; and it is granted without limit.”); see also Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866) (“This power of the President is not subject to legislative control.”).

^ See Barkow, supra note 30, at 814.

^ See Margaret Colgate Love, The Twilight of the Pardon Power , 100 J. C RIM . L. & C RIMINOLOGY 1169, 1188–89 (2010).

^ Cf . Clemency Statistics , U.S. D EP’T J UST ., http://www.justice.gov/pardon/statistics.htm (last updated Oct. 28, 2016) [ https://perma.cc/W5DW-YBTX ] (outlining the number of clemency petitions received and granted in each Administration beginning with President William McKinley).

^ See id . (indicating the number of petitions for pardons rose from 206 to 555 and the number for commutations from 148 to 1770).

^ See Barkow, supra note 30, at 818.

^ Id . (quoting Love, supra note 132, at 1201–02 (third alteration in original)).

^ Under the initiative, DOJ prioritizes clemency applications from inmates who meet all of the following factors: (1) They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today; (2) They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels; (3) They have served at least 10 years of their prison sentence; (4) They do not have a significant criminal history; (5) They have demonstrated good conduct in prison; and (6) They have no history of violence prior to or during their current term of imprisonment. Clemency Initiative , U.S. D EP’T J UST ., https://www.justice.gov/pardon/clemency-initiative (last updated Jan. 13, 2016) [ https://perma.cc/S5V2-N4UA ].

^ A Nation of Second Chances: President Obama’s Record on Clemency , W HITE H OUSE (Nov. 22, 2016), https://www.whitehouse.gov/issues/clemency [ https://perma.cc/RZ5S-AHTD ].

^ See Neil Eggleston, President Obama Has Now Commuted the Sentences of 348 Individuals , W HITE H OUSE (June 3, 2016, 3:30 PM), https://www.whitehouse.gov/blog/2016/03/30/president-obama-has-now-commuted-sentences-348-individuals [ https://perma.cc/THV7-779N ].

^ Casey Tolan, How a First-Time Drug Charge Became a Life Sentence for this Mother of Two , F USION (Dec. 10, 2015, 11:18 AM), http://fusion.net/story/243253/ramona-brant-life-sentence-drug-charge [ https://perma.cc/9D8C-97JT ].

^ I also wanted to set an example of how, working with other partners, it is possible to give clemency recipients the support they need to take full advantage of a second chance. See Terry Nagel, Stanford Law School Announces Prisoner Reentry Program to Support White House Clemency Initiative , S TAN . L. S CH . (Dec. 18, 2015), https://law.stanford.edu/press/stanford-law-school-announces-prisoner-reentry-program-to-support-white-house-clemency-initiative [ https://perma.cc/J2V4-DM94 ].

^ See , e.g. , National Forum on Youth Violence Prevention , O FF . J UST . P ROGRAMS , http://ojp.gov/newsroom/youthviolenceforum.htm [ https://perma.cc/F4AQ-6GHD ] (designed to reduce youth violence and gang activity); U.S. Department of Justice’s Violence Reduction Network , O FF . J UST . P ROGRAMS , https://www.bja.gov/Programs/VRN.html [ https://perma.cc/KDF9-F5KU ] (linking police departments with federal resources in some of the country’s most violent cities).

^ In 2015, after numerous meetings with local governments, law enforcement, and advocates, DOJ updated its Byrne Memorial Justice Assistant Grant (JAG) Accountability Measures to better ensure success-oriented funding. See Denise E. O’Donnell, New JAG Accountability Measures: Encouraging Success , O FF . J UST . P ROGRAMS : OJP B LOG (July 30, 2015), https://ojp.gov/ojpblog/Byrne.htm [ https://perma.cc/E3NA-W3SS ]. Byrne JAG funding is the “largest source of federal assistance for state, local, and tribal criminal justice programs.” Id . Through the updates, the Bureau of Justice Assistance (BJA) asked grantees for data on how they are applying evidence-based approaches and how they are involving the community in their work. Id . In addition, BJA removed “perceived and unintended incentives, such as arrest counts, which are not a true measure of success.” Id .

^ E.g ., Press Release, Office of the Press Sec’y, supra note 8 (“The Department of Education will award up to $8 million . . . to 9 communities for the purpose of supporting educational attainment and reentry success for individuals who have been incarcerated.”).

^ E.g ., Memorandum from Elaine Kaplan, Acting Dir., U.S. Office of Pers. Mgmt., to Chief Human Capital Officers (May 15, 2013), http://www.cdse.edu/documents/toolkits-psa/opm-contractor-fitness-guidance.pdf [ https://perma.cc/9EPE-QRNV ] (providing a best-practices guide that “addresses employment fitness adjudication for contractor applicants and employees who support Federal agencies”).

^ E.g ., Press Release, Office of the Press Sec’y, FACT SHEET: Enhancing the Fairness and Effectiveness of the Criminal Justice System (July 14, 2015), https://www.whitehouse.gov/the-press-office/2015/07/14/fact-sheet-enhancing-fairness-and-effectiveness-criminal-justice-system [ https://perma.cc/V7DX-X8AR ].

^ See Vanita Gupta, Head of the Civil Rights Div., U.S. Dep’t of Justice, Remarks at the Howard University School of Law Annual Wiley A. Branton Symposium (Oct. 14, 2016), https://www.justice.gov/opa/speech/head-civil-rights-division-vanita-gupta-delivers-remarks-howard-university-school-law [ https://perma.cc/FB8Q-22YP ].

^ E.g ., President Barack Obama, Remarks by the President on Criminal Justice Reform (Nov. 2, 2015), https://www.whitehouse.gov/the-press-office/2015/11/02/remarks-president-criminal-justice-reform [ https://perma.cc/LT2P-H9C2 ].

^ E.g ., Greg Bluestein, Georgia to Embark on New Phase of Criminal Justice Reform , AJC. COM (Apr. 27, 2016), http://politics.blog.ajc.com/2016/04/27/georgia-to-embark-on-new-phase-of-criminal-justice-reform [ https://perma.cc/Q3EQ-HWSS ] (“The overhaul started in [Governor] Deal’s first term with changes that allowed Georgia to push more nonviolent offenders toward alternative programs and away from expensive prison beds and gave judges more discretion to depart from mandatory sentences. The second part involved similar legislation that’s aimed at keeping young offenders out of juvenile lockups who were convicted of drug crimes and other nonviolent offenses.”); see also Dick DeVos, Smart Justice Reforms Find Unlikely Ally in Business Community , D ET . F REE P RESS (Dec. 1, 2016, 9:44 PM), http://www.freep.com/story/opinion/contributors/2016/12/01/michigan-parole-reform/94075318 [ https://perma.cc/SXB7-ZF7S ] (“Gov. Rick Snyder energized the audience when he was asked about the prospects for justice reform, stating that supporting tough-on-crime rhetoric that would see many prisoners serve more time is ‘the dumbest thing you can do.’”).

^ See, e.g. , Press Release, Office of the Press Sec’y, Statement by the President on the Shooting of Police Officers in Des Moines, Iowa (Nov. 2, 2016), https://www.whitehouse.gov/the-press-office/2016/11/02/statement-president-shooting-police-officers-des-moines-iowa [ https://perma.cc/E79V-TZVJ ] (“All across the country, our police officers go to work each day not knowing whether they’ll come home at night. Their families live each day with the same fears. So as Americans, we owe them our respect and gratitude for their efforts to safeguard our families and our communities.”); Obama, supra note 7 (“It’s why so many of you wear the badge. Every day, you risk your lives so that the rest of us don’t have to. You serve and protect to provide the security so many Americans take for granted. And, by the way, your families serve alongside you.”); see also Melanie Garunay, President Obama Awards the Medal of Valor to 13 Public Safety Officials (May 16, 2016, 6:47 PM), https://www.whitehouse.gov/blog/2016/05/16/president-obama-awards-medal-valor-13-public-safety-officials [ https://perma.cc/SDN7-VCTH ] (“The men and women who run toward danger remind us with your courage and humility what the highest form of citizenship looks like. When you see students and commuters and shoppers at risk, you don’t see these civilians as strangers. You see them as part of your own family, your own community. The Scripture teaches us, you love your neighbor as yourself. And you put others’ safety before your own. In your proud example of public service, you remind us that loving our country means loving one another.”).

^ See T OM R. T YLER & Y UEN H UO , T RUST IN THE L AW , at xiv (2002); see also Wesley G. Skogan & Tracey L. Meares, Lawful Policing , A nnals A M . A CAD . P OL . S OC . S CI ., May 2004, at 66; Jason Sunshine & Tom R. Tyler, The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing , 37 L AW & S OC’Y R EV . 513, 535 (2003); Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law , 30 C RIME & J UST . 283 (2003).

^ David Hudson , President Obama Creates the Task Force on 21st Century Policing , W HITE H OUSE : B LOG (Dec. 18, 2014, 5:28 PM), https://www.whitehouse.gov/blog/2014/12/18/president-obama-creates-task-force-21st-century-policing [ https://perma.cc/T8KC-HGS8 ].

^ P RESIDENT’S T ASK F ORCE ON 21 ST C ENTURY P OLICING , F INAL R EPORT OF THE P RESIDENT’S T ASK F ORCE ON 21 ST C ENTURY P OLICING (2015) [hereinafter 21 ST C ENTURY T ASK F ORCE R EPORT ], https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf [ https://perma.cc/TQ2Q-FRM9 ].

^ Id . at 12.

^ Id . at 13 (recommending that law enforcement agencies “regularly post on the department’s website information about stops, summonses, arrests, reported crime, and other law enforcement data aggregated by demographics”).

^ Id . at 25 (endorsing practices such as engaging in respectful conversations with demonstrators).

^ Id . at 51–52 (advising basing hiring decisions “on both educational achievements and socialization skills,” id . at 51 — qualifications that look not only at race, but also more importantly at “character traits that support fairness, compassion, and cultural sensitivity,” id . at 52).

^ Id . at 16–17 (suggesting that the diversity initiative should “evaluate and assess diversity among law enforcement agencies around the country and issue public reports on national trends” in order to “improve the diversity as well as the cultural and linguistic responsiveness of law enforcement agencies,” id . at 17).

^ Id . at 26 (urging continued research “to find evidence-based practices to implement successful civilian oversight mechanisms”).

^ Id . at 10.

^ Memorandum from Sally Q. Yates, Deputy Att’y Gen., U.S. Dep’t of Justice, to All Department Law Enforcement Agents and Prosecutors (June 27, 2016), https://www.justice.gov/opa/file/871116/download [ https://perma.cc/K8NM-695T ].

^ 21 ST C ENTURY T ASK F ORCE R EPORT , supra note 155, at 28.

^ See Press Release, U.S. Dep’t of Justice, Attorney General Holder Announces Federal Law Enforcement Agencies to Adopt Stricter Policies to Curb Profiling (Dec. 8. 2014), https://www.justice.gov/opa/pr/attorney-general-holder-announces-federal-law-enforcement-agencies-adopt-stricter-policies-0 [ https://perma.cc/A2V8-GGVM ] (“U.S. Attorney General Eric Holder announced Monday that the Justice Department will take new steps to bar profiling by federal law enforcement agencies, building upon a 2003 policy that had previously only addressed the consideration of race and ethnicity in conducting federal investigations. The new policy will address the use of other characteristics as well [as race and ethnicity] — including national origin, gender, gender identity, religion, and sexual orientation — and applies a uniform standard to all law enforcement, national security, and intelligence activities conducted by the Department’s law enforcement components.”).

^ 21 ST C ENTURY T ASK F ORCE R EPORT , supra note 155, at 20 (describing, as an example, the Los Angeles Police Department’s Community Safety Partnership, which sends officers into housing projects “ not to make arrests but to create partnerships, create relationships, hear the community, and see what they need — and then work together to make those things happen”).

^ Id . at 32–33 (citing, as an example, the Boston Police Department’s use of Twitter in its investigation following the Boston Marathon bombing).

^ Id . at 66 (noting that these first-aid kits are designed to save lives by controlling hemorrhaging and that they would cost less than $50 each and require two hours of training).

^ Id . at 61.

^ Id . at 63 (noting that while similar warning systems exist on the state level, there were gaps that a national system could help fill). On May 19, 2015, I signed the Rafael Ramos and Wenjian Liu National Blue Alert Act of 2015, Pub. L. No. 114-12, 129 Stat. 192 (to be codified at 42 U.S.C. §§ 14165–14165b), which provides for the creation of such a system, adding that the bill “represent[ed] . . . the best of a bipartisan support for law enforcement.” Obama, supra note 10.

^ See P RESIDENT’S T ASK F ORCE ON 21 ST C ENTURY P OLICING , O NE -Y EAR P ROGRESS R EPORT 9–16 (2016), https://cops.usdoj.gov/pdf/taskforce/TaskForce_Annual_Report.pdf [ https://perma.cc/6WZR-9394 ].

^ Jerry Abramson, Bringing Our Nation’s Law Enforcement Officials Together for a Conversation on Community Policing , W HITE H OUSE : B LOG (Aug. 10, 2016, 11:30 AM), https://www.whitehouse.gov/blog/2016/08/10/bringing-our-nations-law-enforcement-officials-together-conversation-community [ https://perma.cc/P6L3-ZQA9 ] (describing where these efforts stood as of August 2016).

^ See E XEC . O FFICE OF THE P RESIDENT , R EVIEW : F EDERAL S UPPORT FOR L OCAL L AW E NFORCEMENT E QUIPMENT A CQUISITION 3–5 (2014), https://www.whitehouse.gov/sites/default/files/docs/federal_support_for_local_law_enforcement_equipment_acquisition.pdf [ https://perma.cc/V7N7-UVNW ].

^ The new policies we put in place reflected the recommendations of a working group — led by the Departments of Justice, Defense, and Homeland Security — that completed an extensive review of federal programs that support the acquisition of equipment by state, local, and tribal law enforcement agencies. See Law Enf’t Equip. Working Grp., R ECOMMENDATIONS P URSUANT TO E XECUTIVE O RDER 13688: F EDERAL S UPPORT FOR L OCAL L AW E NFORCEMENT E QUIPMENT A CQUISITION 6–9 (2015), http://ojp.gov/docs/LE-Equipment-WG-Final-Report.pdf [ https://perma.cc/GG4P-48WM ].

^ Id . at 11–16.

^ Loretta Lynch, Att’y Gen., U.S. Dep’t of Justice, Remarks at the Eighth Annual Judge Thomas A. Flannery Lecture (Nov. 15, 2016), https://www.justice.gov/opa/speech/attorney-general-loretta-e-lynch-delivers-remarks-eighth-annual-judge-thomas-flannery [ https://perma.cc/SQF5-GNZQ ].

^ See C IVIL R IGHTS D IV ., U.S. D EP’T OF J USTICE , I NVESTIGATION OF THE F ERGUSON P OLICE D EPARTMENT 52 (2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf [ https://perma.cc/LR7F-Q6DF ].

^ Id .; see also Lynch, supra note 177.

^ C IVIL R IGHTS D IV ., supra note 180, at 62–63.

^ Id . at 54–62.

^ See E CONOMIC P ERSPECTIVES ON I NCARCERATION , supra note 17, at 45 (noting that the crime-reducing impact of increasing incarceration is lower than the benefits that accrue from investments in police, education, and jobs programs); O FFICE OF E CON . P OLICY ET AL ., O CCUPATIONAL L ICENSING : A F RAMEWORK FOR P OLICYMAKERS 8 (2015), https://www.whitehouse.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf [ https://perma.cc/W4AP-BLB6 ].

^ About the Office , U.S. D EP’T J UST . (Sept. 29, 2016), https://www.justice.gov/atj/about-office [ https://perma.cc/5RAF-BEQ5 ]. To address deficiencies in our indigent defense and civil legal aid system, ATJ has pursued a variety of strategies to improve the justice system for those unable to afford lawyers. This has included filing statements of interest to support access-to-justice litigation, see Court Filings in Support of Access to Justice , U.S. D EP’T J UST ., https://www.justice.gov/atj/court-filings-support-access-justice (last updated Nov. 18, 2016) [ https://perma.cc/6KGM-2ZGH ], and the creation, discussed infra note 189, of a federal interagency roundtable committed to increasing access to civil legal services, see W HITE H OUSE L EGAL A ID I NTERAGENCY R OUNDTABLE , E XPANDING A CCESS TO J USTICE , S TRENGTHENING F EDERAL P ROGRAMS 5 (2016), https://www.justice.gov/atj/page/file/913981/download [ https://perma.cc/4JTN-Z463 ].

^ Press Release, Office of Pub. Affairs, U.S. Dep’t of Justice, Fact Sheet on White House and Justice Department Convening — A Cycle of Incarceration: Prison, Debt and Bail Practices (Dec. 3, 2015), https://www.justice.gov/opa/pr/fact-sheet-white-house-and-justice-department-convening-cycle-incarceration-prison-debt-and [ https://perma.cc/WQE2-49RF ].

^ See OJP D IAGNOSTIC C TR ., R ESOURCE G UIDE : R EFORMING THE A SSESSMENT AND E NFORCEMENT OF F INES AND FEES 2–3, http://ojp.gov/docs/finesfeesresguide.pdf [ https://perma.cc/SZ7R-EZJK ].

^ See B UREAU OF J USTICE A SSISTANCE , O FFICE OF J USTICE P ROGRAMS , U.S. D EP’T OF J USTICE , T HE P RICE OF J USTICE : R ETHINKING THE C ONSEQUENCES OF J USTICE F INES AND F EES FY 2016 C OMPETITIVE G RANT A NNOUNCEMENT 1 (2016), https://www.bja.gov/funding/JRIpriceofjustice.pdf [ https://perma.cc/ZYU3-CFVC ].

^ Another way that my Administration sought to address these issues was through the creation of the White House Legal Aid Interagency Reentry Roundtable. Cochaired by Attorney General Lynch and Director of the Domestic Policy Council Cecilia Muñoz, and staffed by the DOJ Office for Access to Justice, this body was established to help provide legal assistance to Americans in need and to ensure that agencies across the federal government are working together to integrate legal aid into their programs, policies, and initiatives. See Press Release, Office of the Press Sec’y, Presidential Memorandum — Establishment of the White House Legal Aid Interagency Roundtable (Sept. 24, 2015), https://www.whitehouse.gov/the-press-office/2015/09/24/presidential-memorandum-establishment-white-house-legal-aid-interagency [ https://perma.cc/BZ3P-ZHT8 ].

^ FAQs , O FF . J UST . P ROGRAMS : J UST . R EINVESTMENT I NITIATIVE , https://www.bja.gov/programs/justicereinvestment/faqs.html [ https://perma.cc/P4JZ-J696 ].

^ JRI Sites , O FF . J UST . P ROGRAMS : J UST . R EINVESTMENT I NITIATIVE , https://www.bja.gov/programs/justicereinvestment/jri_sites.html [ https://perma.cc/Q2P2-A7DH ].

^ See, e.g. , Betsy Z. Russell, With Justice Reinvestment Initiative, More Idaho Prisoners Getting Out on Parole . . .  , S POKESMAN -R EV .: E YE ON B OISE (Mar. 9, 2016, 8:16 AM), http://www.spokesman.com/blogs/boise/2016/mar/09/justice-reinvestment-initiative-more-idaho-prisoners-getting-out-parole [ https://perma.cc/7VF8-TR6F ].

^ See, e.g. , Prison, Sentencing Reforms Under Way , A MERICAN P RESS.COM (June 25, 2016, 11:32 AM), http://www.americanpress.com/20160625-ed-Prison-reforms [ https://perma.cc/LXB2-C6YY ].

^ See JRI Executive Summary and Conclusion (on file with the White House) (“As of 2016, states have documented more than $964 million in savings and averted costs and reinvested more than $460 million in JRI reform efforts. As most states are still in the process of implementing reforms, the full impact of JRI has yet to be realized.”).

^ See P EW C HARITABLE T RS ., R EDUCING I NCARCERATION FOR T ECHNICAL V IOLATIONS IN L OUISIANA 3 (2014), http://www.pewtrusts.org/~/media/assets/2014/11/psppreducingincarcerationfortechnicalviolationsinlouisiana.pdf [ https://perma.cc/PF88-5FB7 ].

^ See P EW C HARITABLE T RS ., M ANDATORY R EENTRY S UPERVISION : E VALUATING THE K ENTUCKY E XPERIENCE 3 (2014), http://www.pewtrusts.org/~/media/assets/2014/06/pspp_kentucky_brief.pdf [ https://perma.cc/GT37-S75D ].

^ See President Barack Obama, Remarks by the President at El Reno Federal Correctional Institution (July 16, 2015, 11:25 AM), https://www.whitehouse.gov/the-press-office/2015/07/16/remarks-president-after-visit-el-reno-federal-correctional-institution [ https://perma.cc/4ND4-3CPE ].

^ See Shane Smith, Fixing the System: An Interview with President Obama on Prison Reform , V ICE (Oct. 5, 2015), http://www.vice.com/read/fixing-the-system-0000760-v22n10 [ https://perma.cc/7M8Z-5XCU ].

^ Cf . M ICHELLE A LEXANDER , T HE N EW J IM C ROW 215 (rev. ed. 2012) (“All people make mistakes. All of us are sinners. All of us are criminals. All of us violate the law at some point in our lives. In fact, if the worst thing you have ever done is speed ten miles over the speed limit on the freeway, you have put yourself and others at more risk of harm than someone smoking marijuana in the privacy of his or her living room. Yet there are people in the United States serving life sentences for first-time drug offenses, something virtually unheard of anywhere else in the world.”).

^ Press Release, Ted Lieu, U.S. Representative, Congressman Lieu & Tim Robbins to Take Part in White House Event on Arts, Innovation & Prison Reform (Dec. 17, 2015), https://lieu.house.gov/media-center/press-releases/congressman-lieu-tim-robbins-take-part-white-house-event-arts-innovation [ https://perma.cc/6KLB-3T8T ].

^ See Champions of Change: Reentry and Employment , W HITE H OUSE , https://www.whitehouse.gov/champions/reentry-and-employment [ https://perma.cc/CR8J-KBNK ].

^ Press Release, Office of the Press Sec’y, FACT SHEET: Advancing Equity for Women and Girls of Color (Nov. 13, 2015), https://www.whitehouse.gov/the-press-office/2015/11/13/fact-sheet-advancing-equity-women-and-girls-color [ https://perma.cc/2CG2-97RH ].

^ See White House Hosts Historic Meeting on LGBTQ People and People Living with HIV in the U.S. Criminal Justice System , L AMBDA L EGAL (Sept. 20, 2016), http://www.lambdalegal.org/blog/20160920_white-house-historic-meeting-lgbtq-hiv-criminal-justice-system [ https://perma.cc/8X86-R659 ].

^ See White House Forum on Criminal Justice Reform and Disability , W HITE H OUSE (July 18, 2016), https://www.whitehouse.gov/photos-and-video/video/2016/07/18/white-house-forum-criminal-justice-reform-and-disability [ https://perma.cc/Z87P-VHZC ].

^ See The White House, White House Briefing on Life After Clemency , Y OU T UBE (Mar. 31, 2016), https://www.youtube.com/watch?v=hHrjOmbi0Yw [ https://perma.cc/45W6-8TZA ].

^ President Obama Meets with Former Inmates in the Langston Room , B USBOYS & P OETS (Mar. 31, 2016), http://www.busboysandpoets.com/blog/president-obama-meets-with-former-inmates-in-the-langston-room [ https://perma.cc/DVY4-QSSN ].

^ Press Release, Office of the Press Sec’y, FACT SHEET: Launching the Data-Driven Justice Initiative: Disrupting the Cycle of Incarceration (June 30, 2016), https://www.whitehouse.gov/the-press-office/2016/06/30/fact-sheet-launching-data-driven-justice-initiative-disrupting-cycle [ https://perma.cc/55E3-RYHR ].

^ See, e.g. , Chris Halsne, Super Utilizers Place Huge Burden on Health Care System , FOX31 D ENV . (Feb. 26, 2014, 10:00 PM), http://kdvr.com/2014/02/26/super-utilizers-place-huge-burden-on-health-care-system [ https://perma.cc/K98N-A6FN ].

^ E CONOMIC P ERSPECTIVES ON I NCARCERATION , supra note 17, at 33.

^ Press Release, Office of the Press Sec’y, supra note 210.

^ Growing Number of Communities Are Using Data to Improve Policing and Criminal Justice , U.S D EP’T J UST .: J UST . B LOGS (Oct. 13, 2016), https://www.justice.gov/opa/blog/growing-number-communities-are-using-data-improve-policing-and-criminal-justice [ https://perma.cc/9F8C-JSP8 ].

^ The White House joined with Stanford University and the Chan Zuckerberg Initiative in December 2016 to discuss ways to move forward. See Alex Shashkevich, New Stanford Lab Will Create Technologies that Help Alleviate Poverty in America , S TANFORD : N EWS (Dec. 6, 2016), http://news.stanford.edu/2016/12/06/new-stanford-lab-will-create-technologies-help-alleviate-poverty-america [ https://perma.cc/LN22-DU5U ].

^ Press Release, Office of the Press Sec’y, FACT SHEET: White House Police Data Initiative Highlights New Commitments (Apr. 21, 2016), https://www.whitehouse.gov/the-press-office/2016/04/22/fact-sheet-white-house-police-data-initiative-highlights-new-commitments [ https://perma.cc/HS9S-3KAL ].

^ Growing Number of Communities Are Using Data to Improve Policing and Criminal Justice , supra note 222.

^ See Crime Data 2016 , L OUISVILLE O PEN D ATA , https://data.louisvilleky.gov/dataset/crime-data/resource/3d20faa7-c004-4737-abe1-ee754eec439b [ https://perma.cc/KKP8-N8BK ].

^ See Police Data Initiative , C ITY O RLANDO , http://www.cityoforlando.net/police/police-data-initiative [ https://perma.cc/5TQP-NPG7 ].

^ See Matt Sledge, Federal Judge Praises NOPD's Push for More Open Data but Says More Progress Needed , N EW O RLEANS A DVOC ., (Nov. 7, 2016), http://www.theadvocate.com/new_orleans/news/crime_police/article_4be5b7aa-ad22-11e6-920d-6b4f47e93f14.html [ https://perma.cc/QS7J-C62U ].

^ See, e.g. , P HILLIP A TIBA G OFF ET AL ., T HE S CIENCE OF P OLICING E QUITY 1–2 (2016), http://policingequity.org/wp-content/uploads/2016/10/Austin_PDI_Report_2016_Release.pdf [ https://perma.cc/D5FM-K5EG ].

^ See Proclamation No. 9512, 81 Fed. Reg. 69,379 (Sept. 30, 2016).

^ See Eric Holder, Att’y Gen., U.S. Dep’t of Justice, Remarks at the Department of Justice and Department of Education School Discipline Guidance Rollout at Frederick Douglass High School (Jan. 8, 2014), https://www.justice.gov/opa/speech/attorney-general-eric-holder-delivers-remarks-department-justice-and-department-education [ https://perma.cc/39FJ-8G3Q ].

^ U.S. D EP’T OF E DUC. , S UPPORTIVE S CHOOL D ISCIPLINE I NITIATIVE , http://www2.ed.gov/policy/gen/guid/school-discipline/appendix-3-overview.pdf [ https://perma.cc/HGX3-7BRU ].

^ Press Release, U.S. Dep’t of Educ., Obama Administration Releases Resources for Schools, Colleges to Ensure Appropriate Use of School Resource Officers and Campus Police (Sept. 8, 2016), http://www.ed.gov/news/press-releases/obama-administration-releases-resources-schools-colleges-ensure-appropriate-use-school-resource-officers-and-campus-police [ https://perma.cc/ERM7-B7RM ].

^ See The White House, Champions of Change: Building Bridges Between Youth and Law Enforcement , Y OU T UBE (Sept. 21, 2015), https://www.youtube.com/watch?v=KJjASvUk0CU [ https://perma.cc/2LKM-DJYC ].

^ Early Childhood Dev. , Reducing Suspension and Expulsion Practices in Early Childhood Settings , U.S. D EP’T H EALTH & H UM . S ERVICES , http://www.acf.hhs.gov/ecd/child-health-development/reducing-suspension-and-expulsion-practices (last updated Nov. 4, 2016) [ https://perma.cc/K9FV-T6RS ].

^ See SAMHSA’s Efforts on Criminal and Juvenile Justice Issues , S UBSTANCE A BUSE & M ENTAL H EALTH S ERVICES A DMIN ., http://www.samhsa.gov/criminal-juvenile-justice/samhsas-efforts (last updated Mar. 7, 2016) [ https://perma.cc/225J-WC9R ].

^ See OJJDP Announces New Smart on Juvenile Justice Funding Opportunities , O FF . J UV . J UST . & D ELINQUENCY P REVENTION (June 25, 2014), https://www.ojjdp.gov/enews/14juvjust/140625b.html [ https://perma.cc/6J7L-HKC9 ].

^ OJJDP Statistical Briefing Book , O FF . J UV . J UST. & D ELINQUENCY P REVENTION (Dec. 13, 2015), https://www.ojjdp.gov/ojstatbb/crime/qa05101.asp?qa [ https://perma.cc/T5R3-2ULX ].

^ See generally J OSHUA R OVNER , T HE S ENTENCING P ROJECT , D ISPROPORTIONATE M INORITY C ONTACT IN THE J UVENILE J USTICE S YSTEM (2014), http://www.sentencingproject.org/wp-content/uploads/2015/11/Disproportionate-Minority-Contact-in-the-Juvenile-Justice-System.pdf [ https://perma.cc/S8LP-28KL ].

^ See Erik Eckholm, States Move Toward Treating 17-Year-Old Offenders as Juveniles, Not Adults , N.Y. T IMES (May 13, 2016), http://www.nytimes.com/2016/05/14/us/states-move-to-treat-17-year-old-offenders-as-juveniles.html [ https://perma.cc/7RWY-9RY9 ]; see also Rich Williams, South Carolina Raises the Age of Juvenile Court Jurisdiction, Louisiana to Follow , N at’l C ONF . S T . L EGISLATURES (June 7, 2016), http://www.ncsl.org/blog/2016/06/07/south-carolina-raises-the-age-of-juvenile-court-jurisdiction-louisiana-to-follow.aspx [ https://perma.cc/MJZ2-DPMG ].

^ D AVID G OTTESMAN & S USAN W ILE S CHWARZ , N AT’L C TR . FOR C HILDREN IN P OVERTY , J UVENILE J USTICE IN THE U.S.: F ACTS FOR P OLICYMAKERS 3 (2011), http://www.nccp.org/publications/pub_1038.html [ https://perma.cc/AQ44-UUKD ] (“[J]uveniles will be even less likely to receive the necessary therapeutic and rehabilitative services than they would in juvenile residential facilities.”).

^ Williams, supra note 241.

^ Raise the Age LA Becomes Law! , L A . C TR . FOR C HILDREN’S R TS . (June 14, 2016), http://www.laccr.org/news/raise-the-age-la-becomes-law [ https://perma.cc/9CDY-QJE4 ].

^ Pub. L. No. 93-415, 88 Stat. 1109 (codified as amended in scattered sections of 5, 18, and 42 U.S.C.).

^ See History of the JJDPA , C OALITION FOR J UV . J UST ., http://www.juvjustice.org/federal-policy/juvenile-justice-and-delinquency-prevention-act [ https://perma.cc/96QM-25PR ].

^ Proclamation No. 9512, 81 Fed. Reg. 69,379, 69,379 (Sept. 30, 2016).

^ Creating and Expanding Ladders of Opportunity for Boys and Young Men of Color, 79 Fed. Reg. 12,923 (Feb. 27, 2014).

^ Press Release, U.S. Dep’t of Educ., 12,000 Incarcerated Students to Enroll in Postsecondary Educational and Training Programs Through Education Department’s New Second Chance Pell Pilot Program (June 24, 2016), http://www.ed.gov/news/press-releases/12000-incarcerated-students-enroll-postsecondary-educational-and-training-programs-through-education-departments-new-second-chance-pell-pilot-program [ https://perma.cc/9KTH-JJMD ].

^ See Press Release, supra note 122.

^ Press Release, Office of the Press Sec’y, FACT SHEET: The White House Launches the “My Brother’s Keeper Community Challenge” (Sept. 30, 2014), https://www.whitehouse.gov/the-press-office/2014/09/30/fact-sheet-white-house-launches-my-brother-s-keeper-community-challenge [ https://perma.cc/HPQ7-C6YP ]; see also My Brother’s Keeper , W HITE H OUSE , https://www.whitehouse.gov/my-brothers-keeper [ https://perma.cc/U8GU-5F2R ].

^ T HE W HITE H OUSE , M Y B ROTHER’S K EEPER 2016 P ROGRESS R EPORT : T WO Y EARS OF E XPANDING O PPORTUNITY AND C REATING P ATHWAYS TO S UCCESS 4 (2016), https://www.whitehouse.gov/sites/whitehouse.gov/files/images/MBK-2016-Progress-Report.pdf [ https://perma.cc/G47S-6P48 ].

^ M Y B ROTHER’S K EEPER D ETROIT , R ECOMMENDATIONS FOR A CTION 5 (2015), http://www.detroitmi.gov/Portals/0/docs/MyBrotherKeeper/MBK-Report.pdf [ https://perma.cc/MV59-4W9L ].

^ T HE W HITE H OUSE , supra note 252, at 10.

^ See M Y B ROTHER’S K EEPER T ASK F ORCE , O NE -Y EAR P ROGRESS R EPORT TO THE P RESIDENT 16 (2015), http://www.mbkchallenge.org/pdf/mbk-task-force-one-year-progress-report-to-the-president.pdf [ https://perma.cc/NY34-K2HD ].

^ In September 2015, I spoke of the need to do more about the “sinister sexual abuse-to-prison pipeline.” President Barack Obama, Remarks by the President at the Congressional Black Caucus 45th Annual Phoenix Awards Dinner (Sept. 20, 2015), https://www.whitehouse.gov/the-press-office/2015/09/21/remarks-president-congressional-black-caucus-45th-annual-phoenix-awards [ https://perma.cc/Z3H6-9XY3 ].

^ See T HE W HITE H OUSE C OUNCIL ON W OMEN & G IRLS , W OMEN AND G IRLS OF C OLOR : A DDRESSING C HALLENGES AND E XPANDING O PPORTUNITY (2014), https://www.whitehouse.gov/sites/default/files/docs/cwg_women_and_girls_of_color_report_112014.pdf [ https://perma.cc/C4X8-65JM ].

^ T HE W HITE H OUSE C OUNCIL ON W OMEN & G IRLS , A DVANCING E QUITY FOR W OMEN AND G IRLS OF C OLOR 5 (2015), https://www.whitehouse.gov/sites/whitehouse.gov/files/documents/ADVANCING_EQUITY_FOR_WOMEN_AND_GIRLS_OF_COLOR_REPORT.pdf [ https://perma.cc/L6R4-JB57 ].

^ See, e.g. , R IGHTS 4G IRLS , D OMESTIC C HILD S EX T RAFFICKING AND A FRICAN A MERICAN G IRLS , http://rights4girls.org/wp-content/uploads/r4g/2015/02/Af-Am-Girls-Trafficking-July-2016.pdf [ https://perma.cc/FH4V-ZSY2 ].

^ See T HE W HITE H OUSE C OUNCIL ON W OMEN & G IRLS , supra note 258 (stressing the importance of “[e]nhancing programmatic responses by integrating evidence-based trauma-informed and trauma-sensitive perspectives into youth serving systems and organizations,” id . at 6, and expanding data collection to gain “a better understanding of the population of those affected through research and the release of data disaggregated by race, gender, and other variables,” id . at 6–7).

^ The White House and the Presidency do not exist in a political vacuum, and the politics around criminal justice reform can often be challenging. Even as long-term trends in violent crime are on the decline, there will inevitably be some areas that experience an uptick in violent crime, giving rise to understandable and legitimate fears in the community and political risks to the momentum behind reform.

^ See, e.g. , B UREAU OF J USTICE S TATISTICS , U.S. D EP’T OF J USTICE , S PECIAL R EPORT : F IREARM V IOLENCE 1993–2011, at 1 fig.1, 2 fig.2 (2013), https://www.bjs.gov/content/pub/pdf/fv9311.pdf [ https://perma.cc/CP2Y-45RR ] (showing firearm homicides and nonfatal victimizations). More recent data is available from the Centers for Disease Control and Prevention’s WISQARS database. Injury Prevention & Control: Data & Statistics (WISQARSTM) , http://www.cdc.gov/injury/wisqars/index.html (last updated May 4, 2016) [ https://perma.cc/DG57-9ER6 ]. According to the most recent data, there were 117,368 firearm homicides in the United States from 2005 to 2014. Id . (numbers obtained by searching for homicide-related firearm fatal injuries from 2005 to 2014 in the Fatal Injury Reports database).

^ According to the most recent data available through WISQARS, there were 190,752 suicides by firearm between 2005 and 2014. Id . (numbers obtained by searching for firearm suicides from 2005 to 2014 in the Fatal Injury Reports database).

^ According to the most recent data available through WISQARS, there were 6026 unintentional deaths by firearm between 2005 and 2014 — 968 of which were of children under the age of 18. Id . (numbers obtained by searching for unintentional firearm deaths from ages 0 to 17 in the Fatal Injury Reports database). Over the same period, more than 8500 children under the age of 18 were killed by a gun in a homicide. Id . (numbers obtained by searching for firearm homicides from ages 0 to 17 in the Fatal Injury Reports database).

^ See, e.g. , N AT’L L AW E NF’T O FFICERS M EM’L F UND , 2016 M ID -Y EAR L AW E NFORCEMENT O FFICER F ATALITIES R EPORT (2016), http://www.nleomf.org/assets/pdfs/reports/2016-Mid-Year-Officer-Fatalities-Report.pdf [ https://perma.cc/UEV6-Z93M ]; see also Causes of Law Enforcement Deaths , N AT’L L. E NFORCEMENT O FFICERS M EMORIAL F UND , http://www.nleomf.org/facts/officer-fatalities-data/causes.html (last updated July 18, 2016) [ https://perma.cc/UJ58-FZSA ].

^ Coming together on this issue could also help stem the cycle of violence that exists in too many communities. To take just one indicator, it’s estimated that 79% of juveniles who receive the harshest prison sentences witnessed violence in their homes and more than half “witnessed weekly violence in their neighborhoods.” A SHLEY N ELLIS , T HE S ENTENCING P ROJECT , T HE L IVES OF J UVENILE L IFERS : F INDINGS FROM A N ATIONAL S URVEY 2 (2012), http://sentencingproject.org/wp-content/uploads/2016/01/The-Lives-of-Juvenile-Lifers.pdf [ https://perma.cc/MBY5-EUJU ].

^ President Barack Obama, Statement by the President on the Shootings at Umpqua Community College, Roseburg, Oregon (Oct. 1, 2015), https://www.whitehouse.gov/the-press-office/2015/10/01/statement-president-shootings-umpqua-community-college-roseburg-oregon [ https://perma.cc/9DUG-EXJ8 ].

^ See , e.g. , Press Release, Quinnipiac Univ. Poll, Overwhelming Support for No-Fly, No-Buy Gun Law, Quinnipiac University National Poll Finds; Support for Background Checks Tops 90 Percent Again (June 30, 2016), https://poll.qu.edu/national/release-detail?ReleaseID=2364 [ https://perma.cc/U8BM-84Y5 ] (finding that among voters in households with a gun, 92% support “requiring background checks for all gun buyers” and 83% believe “those on the government’s terrorist watch list should not be allowed [to] purchase guns”).

^ Press Release, Office of the Press Sec’y, FACT SHEET: New Executive Actions to Reduce Gun Violence and Make Our Communities Safer (Jan. 4, 2016), https://www.whitehouse.gov/the-press-office/2016/01/04/fact-sheet-new-executive-actions-reduce-gun-violence-and-make-our [ https://perma.cc/RB69-EKBV ].

^ Id .; D EP’TS OF J USTICE , H OMELAND S EC ., AND D EF ., R EPORT TO THE P RESIDENT O UTLINING A S TRATEGY TO E XPEDITE D EPLOYMENT OF G UN S AFETY T ECHNOLOGY (Apr. 2016), https://www.whitehouse.gov/sites/default/files/docs/final_report-smart_gun_report.pdf [ https://perma.cc/UBT8-HDH8 ]; N AT’L . I NST . OF J USTICE , B ASELINE S PECIFICATIONS FOR L AW E NFORCEMENT S ERVICE P ISTOLS WITH S ECURITY T ECHNOLOGY (Nov. 2016), https://www.ncjrs.gov/pdffiles1/nij/250377.pdf [ https://perma.cc/8CGX-9SDG ].

^ D RUG E NF’T A DMIN ., U.S. D EP’T OF J USTICE , 2015 N ATIONAL D RUG T HREAT A SSESSMENT S UMMARY (2015), https://www.dea.gov/docs/2015%20NDTA%20Report.pdf [ https://perma.cc/3RSG-UEDS ] (“Drug overdose deaths have become the leading cause of injury death in the United States, surpassing the number of deaths by motor vehicles and by firearms every year since 2008.” Id . at iii.).

^ Rose A. Rudd et al., Increases in Drug and Opioid Overdose Deaths — U.S. 2004–2014 , C ENTERS FOR D ISEASE C ONTROL & P REVENTION (Jan. 1, 2016), http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6450a3.htm?s_cid=mm6450a3_w [ https://perma.cc/3XHE-27M2 ].

^ Leonard J. Paulozzi et al., Overdoses of Prescription Opioid Pain Relievers — United States 1999–2008 , C ENTERS FOR D ISEASE C ONTROL & P REVENTION : V ITAL S IGNS (Nov. 4, 2011), http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6043a4.htm [ https://perma.cc/46JL-6APZ ] (“Sales of [opioid pain relievers] in 2010 were four times those in 1999.”).

^ Opioid Painkiller Prescribing , C ENTERS FOR D ISEASE C ONTROL & P REVENTION , http://www.cdc.gov/vitalsigns/opioid-prescribing (last updated July 1, 2014) [ https://perma.cc/9V7F-ZLM6 ].

^ Christopher M. Jones, Heroin Use and Heroin Use Risk Behaviors Among Nonmedical Users of Prescription Opioid Pain Relievers — United States, 2002–2004 and 2008–2010 , 132 D RUG A LCOHOL D EPENDENCY 95, 95 (2013).

^ Id . at 98.

^ Press Release, Office of the Press Sec’y, FACT SHEET: President Obama Proposes $1.1 Billion in New Funding to Address the Prescription Opioid Abuse and Heroin Use Epidemic (Feb. 2, 2016), https://www.whitehouse.gov/the-press-office/2016/02/02/president-obama-proposes-11-billion-new-funding-address-prescription [ https://perma.cc/79JW-D4NY ].

^ Press Release, Office of the Press Sec’y, FACT SHEET: Obama Administration Honors Americans Leading Efforts to Stop the Prescription Opioid and Heroin Epidemic (Apr. 29, 2016), https://www.whitehouse.gov/the-press-office/2016/04/29/fact-sheet-obama-administration-honors-americans-leading-efforts-stop [ https://perma.cc/3WRF-JS74 ].

^ Press Release, Office of the Press Sec’y, supra note 278.

^ Office of Nat’l Drug Control Policy, Exec. Office of the President, Substance Abuse and the Affordable Care Act , W HITE H OUSE , https://www.whitehouse.gov/ondcp/healthcare [ https://perma.cc/8VJB-U2S4 ].

^ H.R. 34, 114th Cong. (2016) (enacted).

^ See id .; see also Press Release, Office of the Press Sec’y, supra note 278.

^ C OMM. ON I DENTIFYING THE N EEDS OF THE F ORENSIC S CI . C MTY ., NAT’L R ESEARCH C OUNCIL OF THE N AT’L A CADS ., S TRENGTHENING F ORENSIC S CIENCE IN THE U NITED S TATES : A P ATH F ORWARD (2009), https://www.nap.edu/catalog/12589/strengthening-forensic-science-in-the-united-states-a-path-forward [ https://perma.cc/JTF5-RWPP ].

^ Tania Simoncelli, National Commission Begins Works to Strengthen Forensic Science , W HITE H OUSE : B LOG (Feb. 3, 2014, 7:48 AM), https://www.whitehouse.gov/blog/2014/02/03/national-commission-begins-work-strengthen-forensic-science [ https://perma.cc/B82P-TBJK ].

^ Press Release, Office of Pub. Affairs, U.S. Dep’t of Justice, Justice Department Announces New Accreditation Policies to Advance Forensic Science (Dec. 7, 2015), https://www.justice.gov/opa/pr/justice-department-announces-new-accreditation-policies-advance-forensic-science [ https://perma.cc/PX2S-PTXP ].

^ New NIST Center of Excellence to Improve Statistical Analysis of Forensic Evidence , N AT’L I NST . S TANDARDS & T ECH . (May 26, 2015), https://www.nist.gov/news-events/news/2015/05/new-nist-center-excellence-improve-statistical-analysis-forensic-evidence [ https://perma.cc/ZQ67-2FTQ ].

^ Organization of Scientific Area Committees for Forensic Science , N AT’L I NST . S TANDARDS & T ECH ., https://www.nist.gov/forensics/organization-scientific-area-committees-forensic-science (last updated Nov. 18, 2016) [ https://perma.cc/79E5-TXR4 ].

^ See P RESIDENT’S C OUNCIL OF A DVISORS ON S CI . & T ECH ., E XEC . O FFICE OF THE P RESIDENT , F ORENSIC S CIENCE IN C RIMINAL C OURTS : E NSURING S CIENTIFIC V ALIDITY OF F EATURE -C OMPARISON M ETHODS (2016), https://www.whitehouse.gov/sites/default/files/microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf [ https://perma.cc/GJV2-6A9V ].

^ FBI/DOJ Microscopic Hair Comparison Analysis Review , FBI, https://www.fbi.gov/services/laboratory/scientific-analysis/fbidoj-microscopic-hair-comparison-analysis-review [ https://perma.cc/T347-V3PL ].

^ Press Release, Fed. Bureau of Investigation, FBI Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of Cases in Ongoing Review (Apr. 20, 2015), https://www.fbi.gov/news/pressrel/press-releases/fbi-testimony-on-microscopic-hair-analysis-contained-errors-in-at-least-90-percent-of-cases-in-ongoing-review [ https://perma.cc/5FW6-VMCM ].

^ Spencer S. Hsu, FBI Admits Flaws in Hair Analysis over Decades , W ASH . P OST (Apr. 18, 2015), https://www.washingtonpost.com/local/crime/fbi-overstated-forensic-hair-matches-in-nearly-all-criminal-trials-for-decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html? [ https://perma.cc/BXH2-WZCD ].

^ Notice of Public Comment Period on the Presentation of the Forensic Science Discipline Review Framework, 81 Fed. Reg. 20,675 (proposed Apr. 8, 2016).

^ Data Collection: National Incident-Based Reporting System (NIBRS) , B UREAU J UST . S TAT ., http://www.bjs.gov/index.cfm?ty=dcdetail&iid=301 [ https://perma.cc/38T7-BUTL ] (“[T]he FBI stated that for 2012 a total of 6,115 law enforcement agencies reported their UCR crime statistics via NIBRS, out of 18,290 total police agencies participating in the UCR program. In 2012 NIBRS-contributing agencies served approximately 30 percent of the U.S. . . . .” (footnote omitted)).

^ A Word About NIBRS , FBI, https://ucr.fbi.gov/nibrs/2012 [ https://perma.cc/E3FR-9CPV ].

^ Data Collection: National Incident-Based Report System (NIBRS) , supra note 298.

^ Letter from James B. Comey, Dir., Fed. Bureau of Investigation, to State Uniform Crime Reporting (UCR) Program Managers (June 10, 2016), https://www.bjs.gov/content/pub/pdf/nibrs.pdf [ https://perma.cc/B74A-2C43 ].

^ Press Release, Office of Pub. Affairs, U.S. Dep’t of Justice, Justice Department Outlines Plan to Enable Nationwide Collection of Use of Force Data (Oct. 13, 2016), https://www.justice.gov/opa/pr/justice-department-outlines-plan-enable-nationwide-collection-use-force-data [ https://perma.cc/KE8H-K5RL ].

^ Pub. L. No. 113-242, 128 Stat. 2860 (to be codified at 42 U.S.C. §§ 13727–13727a).

^ Press Release, Office of Pub. Affairs, supra note 303 (describing “several steps by the Department of Justice to enable the nationwide collection of data on law enforcement interactions with civilians, including data related to the use of force by law enforcement officers”).

^ National Use-of-Force Data Collection , FBI, https://ucr.fbi.gov/use-of-force [ https://perma.cc/57TC-ZBHY ].

^ J EAN C HUNG , T HE S ENTENCING P ROJECT , F ELONY D ISENFRANCHISEMENT : A P RIMER , http://www.sentencingproject.org/publications/felony-disenfranchisement-a-primer (last updated May 10, 2016) [ https://perma.cc/3JNX-GP8H ].

^ Currently, two states go further and allow persons currently incarcerated for felony convictions to vote. Felon Voting Rights , N AT ’ L C ONF . S T . L EGISLATURES (Sept. 29, 2016), http://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx [ https://perma.cc/U6F9-SF7E ].

^ Roy L. Austin, Jr., Mike Brown Law Requires All State, County, and Local Police to Wear a Camera , W HITE H OUSE (Aug. 13, 2014), https://petitions.whitehouse.gov/petition/mike-brown-law-requires-all-state-county-and-local-police-wear-camera [ https://perma.cc/RQ6U-S75Q ].

^ Press Release, U.S. Customs & Border Prot., CBP Announces Way Forward on the Use of Body-Worn Cameras (Nov. 12, 2015), https://www.cbp.gov/newsroom/national-media-release/cbp-announces-way-forward-use-body-worn-cameras [ https://perma.cc/Q5TK-R7UA ].

^ Barak Ariel et al., The Effect of Police Body-Worn Cameras on Use of Force and Citizens’ Complaints Against the Police: A Randomized Controlled Trial , 31 J. Q UANTITATIVE C RIMINOLOGY 509 (2015).

^ C HARLES M. K ATZ ET AL ., C TR . FOR V IOLENCE P REVENTION & C MTY . S AFETY , E VALUATING THE I MPACT OF O FFICER W ORN B ODY C AMERAS IN THE P HOENIX P OLICE D EPARTMENT 8–9 (2015), https://publicservice.asu.edu/sites/default/files/ppd_spi_feb_20_2015_final.pdf [ https://perma.cc/WV3U-TNY2 ].

^ 21 ST C ENTURY T ASK F ORCE R EPORT , supra note 155, at 31–33.

^ See Body-Worn Camera Toolkit , B UREAU J UST . A SSISTANCE , https://www.bja.gov/bwc [ https://perma.cc/TA2C-YZZW ].

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Criminal Justice Reform and Inequality

• Published: 14 December 2022
• Volume 47 , pages 1186–1203, ( 2022 )

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• Sara Wakefield   ORCID: orcid.org/0000-0002-1120-4266 1  

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The criminal legal system is a “stratifying institution” insofar as it reflects inequalities by selecting already marginalized people into the system, worsens existing inequalities via a host of criminal punishment and conditions of confinement mechanisms, and creates new inequalities through patterns of isolation for formerly incarcerated people and spillover effects for those close to them. Because it is impossible to separate mass criminalization from the patterns of inequality that precede it and ill-advised to treat inequalities created by mass criminalization as somehow separate from much longer legacies of marginalization and social exclusion, the prospects for criminal justice reform are difficult to predict. This essay suggests that criminal justice reform strategies centered on harm reduction might reasonably reduce how much criminal justice involvement worsens existing inequalities or creates new ones. Dramatically reducing inequalities in initial contacts with the system will be more difficult because that would require significant investments and improvements in other social systems. Moreover, because the criminal legal system is not a system at all, reform efforts must be multi-pronged and target all parts of the system to appreciably reduce inequality.

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Acknowledgements

The author greatly appreciates critical feedback on this essay provided by Daniel Mears, Robert Apel, and Christopher Wildeman.

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Wakefield, S. Criminal Justice Reform and Inequality. Am J Crim Just 47 , 1186–1203 (2022). https://doi.org/10.1007/s12103-022-09717-1

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Opinion | preakness 2024: seize the grey goes wire-to-wire, outruns mystik dan in 149th running, opinion | maryland’s step backwards in criminal justice for kids | reader commentary.

Gov. Wes Moore should have vetoed House Bill 814 , a hastily cobbled-together bill. I’m particularly confused and saddened by the difference between Moore’s campaign rhetoric (“No child left behind!”) and his support of a bill that allows 10-to-12-year-olds to be incarcerated for minor offenses and put in jail before court, rather than giving them and their families the therapeutic and educational support that has shown to work.

Governor Moore should be ending archaic policies like automatically charging children as adults, rather than supporting legislation like H.B. 814. He can do better and we need better policies for a safer, more just Maryland that cares about all of its children.

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