The ‘Hard Tradeoffs’ of Shrinking America’s Prisons

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Policies aimed at reducing prison populations could produce “modest” increases in crime, even as they reduce America’s overreliance on incarceration, according to a forthcoming paper in 33 Stanford Law & Policy Review.

Policymakers must therefore accept some of the “hard tradeoffs” of decarceration strategies if they are shown to contribute to a long-term improvement in the health and wellbeing of communities most affected by mass incarceration, writes Duke University Law Professor Ben Grunwald.

In his forthcoming paper for the Duke Law School Public Law & Legal Theory Series, Grunwald argues that a review of the variety of decarceration strategies proposed by policymakers and criminologists shows that many of those strategies “overestimate” their impact on the size of the population.

“Scaling down the prison population may modestly increase the incidence of crimes that most often result in prison admission,” he wrote.

“This finding reinforces the abolitionist call not only to reduce the footprint of criminal law but also to expand social policies that reduce poverty, inequality, and crime.”

Grunwald observed that the debate over how to most effectively decarcerate— from halving the prison population to reducing prison admissions — obscures the many metrics used to measure decarceration.

His review was an attempt to address these empirical inconsistencies by proposing metrics that measure the merits of competing decarceration strategies. Although the results indicate that the optimal approach to decarceration depends on which metrics researchers value most, Grunwald develops several substantive conclusions.

For one, decarcerating a substantial number of people convicted of violent offenses (as opposed to the often-discussed drug offenders) will dramatically shrink prisons.

But “race-neutral” decarceration strategies will likely exacerbate, rather than mitigate, racial disparities, Grunwald writes.

While discussions of decarceration often prioritize a single metric — such as minimizing increases in crime — Grunwald argues that multiple metrics are needed to develop effective decarceration strategies.

“At bottom, this article brings both good news and bad,” he writes. “In providing an empirically grounded analysis of the policy choices for decarceration, it shows how hard are some of the tradeoffs we face.

“But the harms of prison are enormous, and so too are the potential gains from rectifying them. The conceptual tools, methodologies, and results in this article can help scholars and policymakers optimize these difficult tradeoffs.”

After analyzing multiple metrics (labeled, in Grunwald’s short-hand, “crime,” “social harm,” “racial disparity,” and “timing”), Grunwald determined that many decarceration strategies can achieve the same reduction in the prison population.

“The optimal approach depends on what metrics we value most,” he writes.

For instance, cutting prison admissions by 100 percent for low-level offenses and by 50 percent for drug offenses would diminish the social harms of incarceration, one metric Grunwald defines. But shortening time served by 75 percent for all prisoners convicted to drug and low-level offenses would most effectively minimize increases in crime, another metric.

Regardless of the chosen metric, Grunwald determined that policymakers will have an uphill struggle to dramatically shrink state prisons without significantly substantially reducing the number of individuals imprisoned for violent offenses.

“Indeed, my models suggest that, to halve the prison population without reducing admissions, we would need to reduce time served by 75 percent for both non-violent and less serious violent offenses,” he writes.

Additionally, Grunwald found that policymakers may struggle to reduce racial disparities in prison through race-neutral decarceration strategies alone.

In other words, decarceration could exacerbate racial disparities among those “left behind bars.”

“To reduce racial disparities, we need a broader range of policy solutions, like changing law enforcement patterns, combatting racial profiling, and making large investments of social, economic, and political resources in communities of color,” he wrote.

Because Black prisoners are admitted at higher rates than white prisoners for violent crimes, decarcerating only non-violent offenses increases racial disparities.”

Thus, Grunwald found that the only decarceration strategies that would reduce racial disparities are those that would decarcerate violent offenses far more than non-violent ones.

“Decarcerating violent offenses thus provides the opportunity both to shrink the prison population and limit racial disparities, at least to some extent,” Grunwald writes.

“So, how could we do it?”

One answer is diverting low-level offenders, particularly those from Black neighborhoods, from criminal court by investing in infrastructure, education and community programs. Another strategy is to shorten overly long sentences and decrease admissions for some offenses.

Unfortunately, the public debate about criminal justice has amplified what Grunwald calls the “violent-offender trope”― which he defined as  “a monolithic image of the ‘violent offender’ as dangerous and irredeemable.”

Grunwald argues that policymakers should push back on these representations by emphasizing that poverty, not behavioral issues, is often the driving force behind incarceration.

Such messaging may generate public support for the decarceration of violent offenders — a strategy that could significantly shrink the prison population.

“Taken together,” he writes, “these messages could help nudge government officials and the public to consider shortening time served for violent offenses, particularly those that already have long sentences.”

To read the full paper, click here.

Eva Herscowitz is a TCR contributor.