On December 20, 2019, criminal justice advocates celebrated the news that President Trump signed the Fair Chance Act into law. Tucked into a massive defense spending bill, the law is a federal version of “ban the box,” prohibiting the government and its contractors from asking job applicants about their criminal history before extending a conditional offer of employment. Thirty-five states and over 150 cities already have versions of “ban the box” laws.
That’s not the only criminal justice success this year. 2019 has seen an outpouring of local and state efforts to stem the tide of mass incarceration, from bail reform and mass bailouts, to efforts to close jails and legislation to divert people from lengthy prison sentences. Criminal justice reform has even become a talking point for candidates seeking the presidential nomination in 2020.
But what can we expect in 2020? Will reform efforts lead to a substantial decrease in mass incarceration and criminalization across the nation? Or will mass incarceration and criminalization shift to regions with less organizing and fewer resources?
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Prison populations are dropping, but only minutely: From 2016 to 2017 (the latest year for which numbers are available), state and federal prison populations decreased 1.2 percent (or 18,766 people). In a nation where nearly 1.5 million people are in prison and at least 4.9 million people are arrested and jailed annually, the drop is not precipitous.
Wanda Bertram, communications strategist for Prison Policy Initiative, said that most of these changes are driven by declines in the federal prison population and in a handful of states. “These declines are real and those lives are important,” Bertram told Truthout. But, she noted, reforms have not taken hold in every state or even within a given state, leading to unevenly distributed progress not only between states, but also between different counties. For instance, while jail populations have been decreasing in urban areas, they have been increasing in rural jurisdictions. At the same time, law enforcement may undercut prosecutorial reforms. In Baltimore, for instance, police continue to arrest and jail people for offenses that prosecutor Marilyn Mosby has stated that she will no longer prosecute.
Reforms also seem to have left many women behind bars. While men’s incarceration — both jail and prison — has decreased, women’s incarceration has not seen similar declines and, in some states, is even increasing. “That’s because people aren’t catching onto the reality that women are [still] going to prison at higher rates and getting out at lower ones,” Justine Moore, a founding member of the National Council for Incarcerated and Formerly Incarcerated Women and Girls, told Truthout.
The contrast has been particularly striking in local jails: Since 2008, men’s jail admissions have declined by 26 percent. Women’s admissions, however, have increased both as a total number and as a proportion of all jail admissions. Today, women comprise nearly one of every four jail admissions; in 1983, they made up fewer than one in ten. As of 2013, nearly 110,000 women were in jail, accounting for approximately half of all women behind bars.
From 2016 to 2017 the number of women in prison nationwide dropped by 470 (or 0.4 percent); in contrast, the number of men in prison dropped by almost 18,300 (1.3 percent). Texas had the greatest reduction in its women’s prison population; during that same time period, Tennessee increased its women’s prison population. The imprisonment rate for women remains highest in Oklahoma (157 per 100,000 female residents of the state). Women make up over 30 percent (or 3,863 women) of Ohio’s prison population; the most common convictions are drug-related. As reported previously by Truthout, women are offered fewer alternative-to-incarceration and diversion programs than their male counterparts.
Despite these seemingly small numbers, advocates, including formerly incarcerated people, have been organizing to bring these numbers down even further. “I think we can expect legislators to remain intransigent, but grassroots movements to get stronger,” predicted Bertram.
Closing Mass Incarceration’s Front Door
In New York and California, advocates have pushed for — and won — bail reform, eliminating cash bail for certain charges (though many remain wary that risk assessment tools could lead to greater surveillance). New Jersey and Alaska largely eliminated cash bail, utilizing instead a point-based system to determine whether people should be released from custody, held in jail until trial, or subjected to other types of monitoring (such as house arrest or electronic monitoring).
But such efforts have also faced backlash: In New York, even before bail reform took effect on January 1, district attorneys, judges and legislators on both sides of the aisle charged that it endangered public safety and called for the law’s revision, if not outright repeal. During the first week of the new law, some assistant district attorneys continued to request bail; in others, prosecutors filed more serious charges, allowing judges to set bail. Both the governor, who signed bail reform into law, and the state senate majority leader have stated that they are open to re-examining the law.
In New Orleans, grassroots organizers partially stymied the sheriff’s proposal to build a 6,000-bed jail; the city council gave preliminary approval to cap the jail’s population at 1,250 people. In Arapahoe County, Colorado, voters rejected a tax increase that would build a $400 million new jail. “If people at the grassroots level can organize against jail expansion, then we can really start to close mass incarceration’s front door,” said Bertram.
Other efforts to close that front door focus on sentencing reform. In May 2019, formerly and currently incarcerated women in New York celebrated when the governor signed the Domestic Violence Survivors Justice Act into law. The Act allows judges to mete out sentences that are significantly shorter than the sentencing guidelines or divert a survivor from prison altogether if abuse played a significant factor in the conviction. The Act applies to survivors who harmed their abusers as well as those coerced into crimes by abusive partners.
In one of the first hearings after the law took effect, the judge decided against applying the law’s sentencing provisions to 26-year-old Taylor Partlow, whose manslaughter trial included five witness testimonies about her boyfriend’s abuse. “The abuse, number one, was not substantial abuse and not a significant contributing factor to your behavior,” he said at the sentencing hearing. “But I do agree there was domestic abuse.” Despite his declaration, the judge sentenced Partlow to eight years in prison, the sentence suggested for manslaughter under the Domestic Violence Survivors Justice Act, instead of the 25 years recommended by the state’s sentencing guidelines.
Expanding Opportunities to Come Home
Advocates have also worked to expand opportunities for release. New York’s Domestic Violence Survivors Justice Act also allows imprisoned survivors to petition for resentencing if they can provide evidence that abuse was a significant factor in their conviction. Advocates are currently working with incarcerated survivors to apply for and gather evidence of abuse to bolster their petitions for resentencing.
Organizers with Release Aging People in Prison (RAPP) and the Parole Preparation Project have demanded that New York’s governor not reappoint parole commissioners known to be punitive and instead appoint new commissioners with backgrounds outside of law enforcement, resulting in the appointment of six new commissioners in June 2017. The previous month, according to RAPP, New York parole commissioners had released only 24 percent of those applying for parole.
The board’s new composition seems to be increasing the number of releases: By December 2018, the parole rate had increased to 40 percent. Among those released were people who had been denied parole repeatedly, including Jose Saldana, who was imprisoned 38 years and denied parole four times; and two former Black Panthers — Herman Bell, who was imprisoned 45 years and denied parole seven times, and Robert Seth Hayes, who was imprisoned 45 years and denied parole 10 times. In 2019, the parole rate hovered between 36 and 45 percent.
This month, parole justice advocates will again head to Albany to push for the Elder Parole bill, which would require an immediate parole interview for people ages 55 and older who have served at least 15 years. Of New York’s 45,986 prisoners, 5,767 (or 12 percent) are ages 55 or older.
Saldana, now the director of RAPP, notes that many people currently aging in New York’s prisons have sentences leaving them ineligible to apply for parole for decades. He points to 61-year-old Valerie Gaiter, who died in prison in August 2019. During her 40 years in prison, Gaiter trained service dogs for wounded veterans, ran the photography program, facilitated the prison’s anger management program, earned multiple degrees and mentored other women. Gaiter had been sentenced to 50 years to life, rendering her ineligible to appear before the parole board until she had spent half a century in prison. She died of cancer 10 years before reaching that date. “That’s why it’s so important that this bill is passed, because if it isn’t, we’re going to have more tragedies like Val Gaiter’s,” Saldana said.
In Missouri, advocates with the Smart Sentencing Coalition pushed HB192, which changed the state’s minimum prison terms for people with prior prison records. Previously, people with prior prison sentences were required to serve 40 to 80 percent of their sentences before becoming parole eligible. Signed into law in July 2019, HB192 changed that requirement for people sentenced to Missouri state prisons for nonviolent convictions; it also made the change retroactive. “We’ve been working on this for a few years,” said Patty Berger, an organizer with the St. Louis chapter of All of Us or None, a nationwide advocacy network of formerly incarcerated people, whose members met with Missouri legislators to convince them of the bill’s importance. Between September and December, approximately 200 people were released early due to HB192. Next year, the coalition will be advocating for the Primary Caretakers Act, which encourages judges to consider non-prison sentences for parents and caregivers. (Similar laws have already passed in Massachusetts and Tennessee.)
In California, where more than 5,000 people are serving life without parole (LWOP), organizers with the Drop LWOP campaign are pushing Gov. Gavin Newsom to commute LWOP sentences into parole-eligible sentences. Among these organizers is Kelly Savage who, in 1998, was sentenced to LWOP after her husband killed her 3-year-old son. In December 2017, Savage learned that then-Gov. Jerry Brown had commuted her sentence to 25 years to life, making her eligible to appear before the parole board. She recalls walking back to her unit, thinking, “I’m not gonna die here.” Eleven months later, she was released.
Now the program coordinator for Drop LWOP, Savage is organizing to push the new governor to extend the same opportunity for a second chance to the thousands in California’s prisons. She’s also educating legislators about the issue as well as engaging and organizing with family members whose voices, she said, “have been silenced for so long. We’re trying to show them that it is possible to engage and speak up for their loved ones and educate people around them.”
Not every state is embracing reform. Alaska lawmakers are currently unraveling the state’s recent reforms. Alaska passed Senate Bill 91, a 2016 bill that reduced the use of both cash bail and incarceration, decreasing the number of people behind bars by 7 percent (or 430 people). In 2018, however, Republican Mike Dunleavy swept into the governor’s office under the slogan “Make Alaska Safe Again” and began efforts to repeat Senate Bill 91. He also signed a new crime bill making simple drug possession an arrestable offense and increasing prison time for offenses whose sentences had been previously reduced. These efforts have already increased the prison population by 5 percent. The increase, coupled with a shortage of prison staff, has spurred officials to consider contracting with private prison corporations to imprison people in other states, a contrast to other states’ elimination of private prison contracts. “It seems like the whole country except Alaska is moving forward on prison reform,” “Kayla,” currently in an Alaska prison and who asked that her real name not be used, wrote in a letter to Truthout. “We’re moving terrifyingly backwards.”
That’s why Bertram and others believe that stopping mass incarceration needs to come from grassroots organizing, not politicians. “There’s always new opportunities for lawmakers to garner support with their constituents by appearing tough on crime,” Bertram said. “To really bring down incarceration, we’re going to have to collectively force the people that represent us to stop relying on that kind of pandering. I think we can expect legislators to remain intransigent but grassroots movements to get stronger.”
From Missouri, Berger agrees. Noting the significance of prison reform in a red state, Berger said, “Not only is it good for incarcerated people, but it was good for us to have a victory.”