Strategies to Move Us toward Greater Decarceration
“Open our mind as we cast away oppression
Open the streets and watch our beliefs
And when they carve my name inside the concrete
I pray it forever reads– freedom”Beyonce featuring Kendrick LamarBottom Line Upfront
1. The First Three Waves of “Tough on Crime”
Beginning with Nixon’s first term, the U.S. has cycled through three “tough on crime” waves, each doubling down on harsh sentencing and broken-windows policing—despite over 100 studies showing no real link between these tactics and crime reduction.
2. The Authoritarian Fourth Wave
The current administration is pursuing militarized crackdowns in Black-led cities—deploying the National Guard—under false claims of “bedlam and bloodshed,” even as violent crime rates remain at near-historical lows.
3. The Racial Toll of Our Four-Decade Drug Wars
Disparities in drug sentencing are staggering: crack cocaine punishments 100 times harsher than powder, Black users punished far more severely despite most users being White or Hispanic, and prison life sentences multiplying fivefold in three decades.
4. Courtroom Biases Run Deep
From bail decisions to jury strikes, race determines outcomes. Black defendants face higher bail, longer pre-trial detention, and reduced chances of charge dismissals, while White defendants benefit disproportionately from prosecutorial leniency.
5. Discrimination by the Numbers Across the Justice System
Studies confirm the racial skew: Black jurors excluded at triple the rate of Whites, solitary confinement imposed more harshly on Black prisoners, and death penalty sentencing dramatically more likely when Black defendants are involved.
6. Public Opinion Shifts Toward Reform
Over 90% of Americans now agree the justice system is broken; majorities across party lines support reducing prison populations, ending mandatory minimums, and reinvesting savings into mental health and drug treatment programs.
7. Sentencing and Prosecutorial Reform
Key decarceration strategies include ending mandatory minimums, three-strikes, and truth-in-sentencing laws; granting mass amnesty for nonviolent drug offenders; and reducing unchecked prosecutorial power that fuels punitive outcomes.
8. Reimagining Probation, Parole, and Pre-Trial
Reforms must shift probation and parole from surveillance to support, overhaul bail systems that criminalize poverty, and stop reincarcerating people for minor technical violations. Diversion programs can cut recidivism by tackling root causes.
9. Pathways to True Second Chances
Decriminalizing marijuana, expanding record expungement, and investing in accessible reentry tools (like Clear My Record) can open doors to jobs, housing, and education—moving the U.S. toward a justice system that restores rather than destroys.
Introduction
Our nation is about to endure its fourth wave of “getting tough on crime” since I was born:
The first started with the election of Richard Nixon and ran from the late 1960s to the mid-1970s. It accelerated in 1971 when he called drug abuse a national emergency.
The second originated with Ronald Reagan’s first term in 1982 and launched a rapid escalation of incarceration rates as part of his War on Drugs. Bush I continued these policies.
Bill Clinton launched the third wave, which followed in lockstep with the Reagan-Bush policies, but deepened the penalties for drug crimes in particular.
All waves subscribed to the idea that harsh clampdowns on lesser crimes (e.g., public drinking, window smashing, simple drug possession) would mean less crime. Cities like New York dubbed this the ‘broken windows’ policy.
More than 100 studies conducted over the past three decades have shown that cities that pursued these strategies experienced no specific reduction in crime rates compared to cities that didn’t deploy them.
Meanwhile, jail and prison populations boomed.
Incarceration rates plateaued during the Bush II and Obama years. The second Obama term and first Tr*mp term resulted in lower incarceration rates, although still sky-high compared to every other Western nation.
In fact, today, the only countries with higher rates are El Salvador, Cuba, Rwanda, and Turkmenistan.
The Fourth Wave: Tr*mp’s False Claim of Bloodshed, Bedlam, and Squalor in Our Cities
Now, even though violent crime in most large and mid-sized cities in America is at its lowest rates in decades, the Tr*mp administration plans to pursue a fourth wave primarily in Black-led cities with large incursions of the National Guard and ICE officers patrolling the streets.
We’ve already seen this in L.A. and D.C., and then last week, in Chicago. It looks like Memphis and Portland, Oregon are next this week, and the president continues to threaten Baltimore and New Orleans.
This is tearing a page straight out of the authoritarian playbook.
Tr*mp claims he is taking such actions to “reestablish law, order, and public safety.” In D.C., he looked to rescue the city from “crime, bloodshed, bedlam and squalor and worse,” [1] even though violent crime has declined precipitously there over the past 24 months.
In D.C., the crackdown has focused overwhelmingly on young, Black men.[2] Remarkably—well, not so remarkably for a pathological liar—Tr*mp declared the other day that there currently is no crime in Washington D.C. after calling in federal troops for a month.
A true miracle worker this man is—he’s amazing at fabricating statistics at an incredibly rapid rate.
The three previous “tough on crime” periods resulted in:
Unfair sentences for Blacks for cocaine possession (crack vs. powder cocaine). From 1988 to 2010, one gram of crack received an equal sentence to 100 grams of powder cocaine.[3]
Disproportionately harsher treatment for Black drug users: Blacks make up 15% of U.S. drug users, 37% of those arrested for drug violations, 59% of those convicted, and 74% of those sentenced to prison for a drug sentence.[4]
66% of crack users were White or Hispanic in the 1990s, but 85% of the defendants for crack offenses were African American.
Gross disparities in sentencing. Judges sentenced Blacks for drug possession five times more often than Whites, and wrongly convicted them ten times more often.[5]
From 1985 to 2014, the number of those serving life sentences increased from 30,000 to 150,000, a fivefold increase. Disproportionately affecting African Americans.[6]
During that time, spending on corrections increased twelve-fold (from $5 billion a year to $60 billion).
The Racial Injustices Seem to Have No End
But the injustices don’t stop here.
In 2010, The American Journal of Criminal Justice “found that race had a significant impact on judges’ decisions to release a defendant on recognizance, with black defendants less likely to receive this release status.”[7] This leads to massive rates of pre-trial detention for Black defendants, many of whom cannot access either bail or free legal help.
The Prison Policy Initiative study showed that judges nationally detained young Black men 50% more often pre-trial than White men and set bail that was double that for Whites.[8]
Further, even though those on the right fear that people of color are “replacing” them or that so-called DEI and affirmative action initiatives are placing unqualified people of color in leadership positions, 95% of prosecutors in America remain White. Thirty states don’t have a single elected Black prosecutor among their ranks.[9]
Prosecutors are far more likely to bring charges with mandatory minimum sentences against Black defendants than against White defendants accused of the same crime.[10]
White defendants have a 25% higher chance of having their most serious charge dropped and are 75% more likely than Black defendants to have charges dropped, dismissed, or reduced so as not to incur jail time.[11]
Are you weary of reading the gross disparities yet? Unfortunately, this critical list goes on.
In three studies involving nearly 900 jury pools, lawyers struck Black jurors at rates of 2:1 and 3:1 compared to White jurors.[12]
In a 2016 Yale University study across 45 states, researchers found Black male prisoners were more likely to receive solitary confinement than White male prisoners, and the disparity was even wider between Black and White women.[13]
In the death penalty, a 2014 Washington state study discovered that over 33 years, Black defendants were 4.5 times more likely to receive the death penalty than White defendants.[14] In Delaware, Blacks who kill Whites are 7 times more likely to receive a death sentence than those who kill Blacks and 3 times more likely to receive a death penalty sentence than Whites who kill Whites.[15]
Although I won’t elaborate here, you won’t be surprised to find out that these disparities persist for parole and probation as well.
The Public’s Agreement on Fixing Our Criminal Justice System
I have recapped these statistics to help you understand why I propose a range of policies that can transform our entire approach to ‘corrections and move us toward more decarceration instead of witnessing a potential uptick in incarceration.
Let me begin by sharing what the American Civil Liberties Union’s 2017 survey of Americans revealed.
91 percent of Americans say that the criminal justice system has problems that need fixing.
84 percent of Americans believe that people with mental health disabilities belong in mental health programs instead of prison.
72 percent of Americans would be more likely to vote for an elected official who supports eliminating mandatory minimum laws.
71 percent say it is important to reduce the prison population in America, including 57 percent of Republicans.
68 percent would be more likely to vote for an elected official if the candidate supported reducing the prison population and using the savings to reinvest in drug treatment and mental health programs, including 65 percent of Trump voters.
Most Americans recognize racial bias in the criminal justice system—only one in three agree Black people are treated fairly by the criminal justice system.[16]
Most Americans realized some time ago the unfairness of our current justice system.
Strategies Toward Greater Decarceration
Now it is time to pursue strategies that move us toward greater decarceration—finding effective ways to reduce the number of people subject to imprisonment—in the U.S. But we should not just do this by reducing the number of people held in custody in our prisons and jails and those under custodial supervision (parole and probation). Any progress on decarceration will require collaborative efforts of justice system stakeholders throughout the country at the local, state, and national levels. Such collaboration will need to be encouraged and exhorted by community-level citizen activism, coordinated and supported by groups and leaders across the nation.
Any genuine decarceration effort in the near term (next three to five years) must include these strategies:
Sentencing Reform, including the elimination of certain practices:
o Mandatory minimums, especially when applied to nonviolent drug offenders. Prosecutors hold too much power to mete these out. Judges have too little power to use their discretion.[17]
o Three-strikes laws deem those who have committed three felonies or petty crimes to be beyond rehabilitation, leading to lengthy sentences. The law “can result in government spending of $500,000 to incarcerate someone for committing three $500 crimes.”[18]
o Truth-in-sentencing laws used to ensure that those who committed crimes served the full sentence issued by a judge, eliminating early parole earned through good behavior.[19]
o Unequal treatment between crack and powder cocaine offenses, equalizing the penalties largely received by Blacks (for crack) and Whites (for powder).[20]
I also strongly support a blanket amnesty for all inmates currently serving time in prison or on parole for nonviolent drug offenses and a pardon for all who have completed their time for such crimes.[21] Many European countries use mass amnesty to manage prison populations with few significant issues.
Prosecutorial Reform, taking back the unprecedented power given to prosecutors, especially their power of unreviewable discretion (that is, they have no oversight) in bringing charges against a defendant. This undermines the right to trial for those charged and makes the system ruthlessly punitive.[22]
Probation Reform, shifting away from a surveillance and monitoring model. Probation, which originates in social work and rehabilitation, should pursue future reform using evidence-based interventions that “improve treatment for offenders and reduce future offenses.”[23]
Parole Reform, shifting from a mostly punitive stance to one that leans more toward better ways to support people to live productive, crime-free lives (and better ways of handling technical violations). The current system re-incarcerates individuals for breaking minor rules, rather than providing supervision (e.g., violating a curfew or traveling outside a specified zip code).[24]
Decriminalization of Marijuana used for personal consumption, which means no arrest, prison time, or criminal record for possessing a small amount of the drug or for low-level drug sales. As of 2023, recreational marijuana is legal in twenty states. Nearly 90 percent of 1.6 million drug arrests annually are for possession. Decriminalization would free up law enforcement to address more serious criminal activity and reduce prison and jail costs.[25] President Biden pardoned all those in 2022 who the federal government convicted for simple possession. Massachusetts followed suit in 2024 by pardoning thousands with misdemeanor marijuana possession convictions.[26]
Expansion in Expunging Criminal Records, following the lead of thirty-one states that have expanded the permanent removal of arrests and convictions from one’s criminal record and options for sealing records (removal from public access but accessible through court action). Recent research shows that those with sealed or expunged records commit fewer crimes than the average adult. Expungement can provide new pathways to jobs, postsecondary education, and public assistance funds. Some states have found that expungement reduces barriers, thus helping individuals pursue occupational licenses.[27]
However, expunging one’s record can also be very expensive for those with serious financial constraints. LISC funded the development of an app, Clear My Record, in Kansas City, which has helped hundreds of residents haunted by previous criminal charges to expunge their records, creating a pathway to finding sustainable jobs and housing.[28] We need to see far more efforts locally like this to help millions with previous charges to get a genuine second chance in life.
Overhaul of Bail and Pre-Trial Detention Systems, which have practices that violate the Constitution’s Sixth (speedy trial rights), Eighth (excessive bail prohibition), and Fourteenth (due process rights) Amendments. (I touched upon this last week) These systems also benefit bail bond and insurance companies and cause too many Americans without the funds to spend weeks, months, or longer in jail before they face charges (known as pre-trial detention).
Eliminating bail for many nonviolent crimes would mean paying nothing to stay out of jail for misdemeanors as they await their trials. Judges and prosecutors disproportionately judge Black people as either a risk to their communities or themselves. Too often, those held in pre-trial detention will plead guilty only to avoid further detention.[29]
Prioritizing Diversion Programs gives options to those charged with a crime, allowing them to pay restitution, perform community service, or finish treatment rather than serving jail time and being burdened with a permanent record. Diversion strategies focus on the inherent problem those committing crimes are facing rather than placing them in jail, reducing the chance of recidivism.[30] Especially for substance abusers (which nearly half of all state prisoners are), diversion has been cost-effective, leading to fewer crimes committed and less drug use by those in treatment programs.[31]
On their own, each of these reforms is a significant change to the justice system. United together, they create a transformative path toward decarceration, with a transformative and positive impact on the lives of more than a million of African Americans over a period of years. But, as we’ve seen in places with forward-thinking district attorneys (think Philadelphia and Los Angeles), the forces against such progress are fierce and relentless.
Next week, I will include my focus on rethinking our criminal justice system by reimagining community safety and exploring the investments we need in rehabilitation and reentry services and programs.
Footnotes
[1] Both quotes come from the president’s August 11th press conference at the White House.
[2] Olivia George, et al, “Who was arrested in Trump’s D.C. crime emergency? We analyzed 1,273 records.” The Washington Post, September 14, 2025, https://www.washingtonpost.com/dc-md-va/2025/09/14/trump-dc-crime-arrests-data-federal-takeover/.
[3] “U.S. Supreme Court Weighs 100-To-1 Disparity In Crack/Powder Cocaine Sentencing,” American Civil Liberties Union, October 7, 2007, https://www.aclu.org/press-releases/us-supreme-court-weighs-100-1-disparity-crackpowder-cocaine-sentencing.
[4] Deborah J. Vagins and Jesselyn McCurdy, “Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law,” ACLU, October 2006, p. i, https://www.aclu.org/sites/default/files/pdfs/drugpolicy/cracksinsystem_20061025.pdf.
[5] Samuel R. Gross, Maurice Possley, and Klara Stephens, “Race and Wrongful Convictions in the United States,” National Registry of Exonerations, University of California, Irvine, March 7, 2017, p. 3, https://www.law.umich.edu/special/exoneration/Documents/Race_and_Wrongful_Convictions.pdf.
[6] Life sentence statistics are drawn from The Sentencing Project,
https://www.sentencingproject.org/
. Sources the Sentencing Project drew from include the Bureau of Justice Statistics, International Centre for Prison Studies, and the National Association of State Budget Officers.
[7] Tina L. Freiburger, Catherine D. Marcum, and Mari Pierce, “The Impact of Race on the Pre-trial Decision,” American Journal of Criminal Justice, 2010, 35:1, p. 76, http://libres.uncg.edu/ir/asu/f/Marcum_CD_2010_Impact_of_Race.pdf.
[8] “How race impacts who is detained pre-trial,” Prison Policy Initiative, https://www.prisonpolicy.org/blog/2019/10/09/pre-trial_race/.
[9] “White Men Dominate Elected Prosecutor Seats Nationwide; 60% Of States Have No Elected Black Prosecutors,” Women’s Donor Network, July 7, 2015, https://womendonors.org/wp-content/uploads/2015/07/press-release.pdf.
[10] Sonja B. Starr and M. Marit Rehavi, “Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker,” The Yale Law Journal, Vol. 123, No. 1, https://www.yalelawjournal.org/article/mandatory-sentencing-and-racial-disparity-assessing-the-role-of-prosecutors-and-the-effects-of-booker.
[11] Carlos Berdejó, “Criminalizing Race: Racial Disparities in Plea Bargaining,” Boston College Law Review, vol. 59, 2018, pp. 57–61, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3036726.
[12] Catherine M. Grosso and Barbara O’Brien, “A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials,” Digital Commons at Michigan State University College of Law, pp. 1533–1534, 1548, https://www.prisonpolicy.org/scans/msu/A%20Stubborn%20Legacy_%20The%20Overwhelming%20Importance%20of%20Race%20in%20Jury%20Se.pdf.
[13] Ryan T. Sakoda and Jessica T. Simes, “Solitary Confinement and the U.S. Prison Boom,” Criminal Justice Policy Review, Sage Publications, 2019, pp. 2, 27–28, https://law.yale.edu/sites/default/files/area/center/liman/sakoda_simes_2019.pdf.
[14] Katherine Beckett and Heather Evans, “The Role of Race in Washington State Capital Sentencing, 1981–2014,” University of Washington, https://files.deathpenaltyinfo.org/legacy/documents/WashRaceStudy2014.pdf.
[15] Johnson, et al., “The Delaware Death Penalty: An Empirical Study,” Iowa Law Review, Cornell Legal Studies Research Paper No. 12–24, March 2012, available at SSRN: https://ssrn.com/abstract=2019913 or http://dx.doi.org/10.2139/ssrn.2019913.
[16] “91 Percent of Americans Support Criminal Justice Reform, ACLU Polling Finds,” American Civil Liberties Union, November 16, 2017, https://www.aclu.org/press-releases/91-percent-americans-support-criminal-justice-reform-aclu-polling-finds.
[17] James Cullen, “Sentencing Laws and How They Contribute to Mass Incarceration,” Brennan Center for Justice, October 5, 2018, https://www.brennancenter.org/our-work/analysis-opinion/sentencing-laws-and-how-they-contribute-mass-incarceration.
[18]. Ibid.
[19]. Ibid.
[20]. Ibid.
[21]. Jonathan Simon, “Amnesty Now! Ending Prison Overcrowding through a Categorical Use of the Pardon Power,” University of Miami Law Review, 70:444, 2016, pp. 474–477, https://lawreview.law.miami.edu/wp-content/uploads/2016/03/Amnesty-Now-Ending-Prison-Overcrowding-through-a-Categorical-Use-of-the-Pardon-Power.pdf.
[22]. Ibid, p. 445.
[23]. Campbellsville University, “A majority of offenders end up back in prison. Here are steps we can take to improve the criminal justice system,” Business Insider, March 23, 2020, https://www.businessinsider.com/sc/heres-why-the-us-needs-probation-and-parole-reform-2020-3.
[24]. Megan Quattlebaum and Juliene James, “As candidates search for criminal justice talking points, parole and probation reform should top list,” USA Today, July 3, 2019, https://www.usatoday.com/story/opinion/policing/2019/07/03/probation-parole-criminal-justice-candidates-policing-the-usa/1643628001/.
[25]. “Drug Decriminalization,” Drug Policy Alliance, 2020, https://www.drugpolicy.org/issues/drug-decriminalization.
[26] Mike Deehan, “Massachusetts pardons all misdemeanor marijuana possession convictions,” Axios Boston, April 3, 2024, https://www.axios.com/local/boston/2024/04/03/massachusetts-pardon-misdemeanor-marijuana-convictions.
[27]. Kenny Lo, “Expunging and Sealing Criminal Records: How Jurisdictions Can Expand Access to Second Chances,” Center for American Progress, April 15, 2020, https://www.americanprogress.org/issues/criminal-justice/reports/2020/04/15/483264/expunging-clearing-criminal-records/.
[28]. “This App is Giving Kansas Residents with Criminal Records a Second Chance,” LISC, January 3, 2024, https://www.lisc.org/our-stories/story/web-app-giving-kansas-city-residents-criminal-records-second-chance/.
[29]. “End to Pre-trial Detention and Money Bail,” Movement for Black Lives, https://m4bl.org/policy-platforms/end-pre-trial-and-money-bail/.
[30]. Micah W. Kubic and Taylor Pendergrass, “Diversion Programs Are Cheaper and More Effective Than Incarceration. Prosecutors Should Embrace Them,” American Civil Liberties Union, December 6, 2017, https://www.aclu.org/blog/smart-justice/diversion-programs-are-cheaper-and-more-effective-incarceration-prosecutors.
[31]. “Study: Replacing Prison Terms with Drug Abuse Treatment Could Save Billions in Criminal Justice Costs,” RTI International, January 8, 2013, https://www.rti.org/news/study-replacing-prison-drug-treatment-could-save.