We are experiencing a historic moment for criminal legal reform. States legislatures are enacting sweeping revisions to criminal law. Judges are being elected and appointed from communities historically most burdened by the carceral state. Even prosecutors, long the most zealous advocates of misguided “tough on crime” policies, are pledging to combat, rather than perpetuate, mass incarceration. Reform policies range from ending cash bail to decriminalizing marijuana to raising the age of criminal responsibility. This progress, by no means sufficient to declare victory over mass incarceration, is a promising start. And there is reason to believe the trend will continue, resulting in even more robust reform—support for decarceral policies is strong, bipartisan, and growing.
This moment comes after years of declining crime rates. In the nation, and in most cities, we are in a period of historically low crime. These conditions raise concerns about the reform movement’s viability: What would happen if crime went up?
It is possible, even likely, that in the near future, crime will increase in some jurisdiction after it implements criminal legal reforms. This is not to say that decarceral policies cause increases in crime. If anything, evidence shows the opposite. But crime rates are affected by factors other than criminal legal policy. They respond to macroeconomic forces like recessions, employment rates, and housing availability. Short-term increases or decreases in crime may also be statistical noise.
When crime increases in a jurisdiction that recently imposed criminal legal reforms, we know how pro-incarceration zealots will respond. Ultra-conservative politicians will decry their opponents as “soft on crime.” Police unions will claim that reforms cause increases in violence. Media will prioritize sensationalism over data and context. Regrettably, American voters have a well-established susceptibility to such fearmongering.
Reformers must prepare to respond if crime rises after implementing a decarceral policy. They should craft a response that is most likely to preserve the policy in question and to advance the movement at large.
A successful strategy will focus on the immense benefits of reform. The United States criminal punishment system, as it exists today, is tragically defective. We overincarcerate, oversupervize, and overpolice. Interaction with the criminal punishment system, and incarceration in particular, is psychologically devastating, destroys families, dissolves economic opportunity, torpedoes children’s educations, and increases the likelihood of future incarceration. These burdens fall overwhelmingly on people of color and people living in poverty.
It follows that reducing incarceration keeps families together, prevents devastating psychological trauma, avoids interference with employment and education, averts permanent social stigma, and likely prevents crime. On a small scale, the benefits of criminal legal reform are vividly human: a family that sits together at dinner, a mother who keeps her job, a child who goes to school rather than sits in a cage. On a large scale, criminal legal reform can catalyze momentous educational, economic, and mental and physical health improvements. These advantages would empower communities most burdened by the criminal punishment system and most marginalized in American society.
Criminal legal reformers should seize every opportunity to discuss these benefits. Asked about whether bail reform caused an increase in shoplifting, the right response is that it saved 100 mothers’ jobs and 1,000 family dinners. Did decriminalizing marijuana lead to last week’s shooting? It resulted in 500 more high school degrees.
A strategy that focuses on the benefits of reform is superior to the traditional response: attempting to win the debate over whether a policy did, in fact, increase crime. That response reinforces the notion that any increase in crime is unacceptable. It hands reform opponents a strategic advantage. They do not have to argue that their position is superior, only that the reform has a flaw. It leaves reformers arguing from a defensive posture: the best case scenario is convincing the public that maybe the policy didn’t do anything wrong.
By contrast, focusing on the immense benefits of reforms invites a comprehensive discussion about whether they are worth it. This is a crucial feature of the strategy. While everyone has a different threshold for how much crime they would tolerate if it accompanied overwhelming social benefit, for most people, there is surely an answer. Framing the debate in these terms protects more than a single policy. It is also an investment in future reforms. Conditioning voters to think comprehensively about criminal legal policy inoculates them against fearmongering.
In order to reach its long term goals, the criminal legal reform movement must not depend on continuously falling crime rates. It is all but inevitable that somewhere, crime will rise following implementation of a meaningful policy. We know how fearmongers will respond; reformers must prepare an effective counterattack. The key is focusing on the benefits of reform. Massive advancements in education, income inequality, and safety are achievable, but only if mass incarceration and mass supervision come to an end. Reformers have the high ground. We should act like it.
