Ending Mass Incarceration: The Need for Federal Incentives


The jail and prison population in the United States has increased from 300,000 to 2.3 million in the past 40 years, creating a costly mass incarceration crisis that policymakers are now beginning to address. Federal incentives contributed to mass incarceration by paying states billions of dollars to lengthen prison sentences and keep thousands of people in prison. Now, the federal government should act to ease prison overcrowding by offering states financial incentives to release prisoners who pose no threat to public safety.

In 1994, President Bill Clinton signed the Violent Crime Control and Law Enforcement Act (Crime Act), which allotted $12.5 billion to states to increase incarceration, in large part by building prisons and jails. About half of that funding was earmarked for states that enacted stringent “truth-­in-sentencing” laws, which required offenders to serve at least 85 percent of their prison sentences.

By 1999, 29 states had transitioned from “indeterminate sentencing” policies, under which parole boards with broad discretion released offenders after they had served, on average, 44 percent of their sentences, to harsher sentencing policies that met the Crime Act’s 85 percent criterion. Eight states (Arizona, Delaware, Kansas, Mississippi, Ohio, Virginia, Washington, and Wisconsin) abolished parole boards entirely the same year the Crime Act passed, and by 2001 eight more states did the same. In return, the federal government awarded states $2.7 billion in grants to construct, expand, or renovate correctional facilities between 1996 and 2001. Although no funds were appropriated under the Crime Act after fiscal year 2001, states continued to spend the money through 2009. And the tough sentencing laws states enacted in order to get those federal dollars continue to keep people in prison today.

The federal government’s funding of mass incarceration was driven by a climate of fear and anger that was especially pervasive in the early 1990s. Sensationalist media accounts of “soaring” crime rates in the 1980s and early 1990s combined with extraordinary resentment about rehabilitation programs within prisons to create a political environment in which every elected official sought to be tough on crime. President Clinton epitomized this when he signed the Crime Act, saying, “Gangs and drugs have taken over our streets and undermined our schools. Every day, we read about somebody else who has literally gotten away with murder.”

Today, attitudes have changed. Violent crime rates are at a 40-­year low, a third of what they were in 1994 when President Clinton signed the Crime Act, and the mass incarceration of over two million people is costing the nation $80 billion per year. Further, that figure does not take into account the collateral costs of incarceration. The real cost of incarceration is likely in the hundreds of billions. Some estimate that incarceration accounts for 20 percent of the nation’s poverty rate because it removes primary earners from families, constrains employment opportunities, and breaks up informal mechanisms of social support. These skyrocketing costs have created a new political climate in which Congress is seriously considering significant sentencing reform legislation.

Federal sentencing reform alone will not solve the nation’s mass incarceration dilemma. If the Bureau of Prisons released every federal prisoner tomorrow, two million people would remain behind bars in the 50 states. To end mass incarceration, the federal government should offer states financial incentives to release more people and help them stay out of prison. The Brennan Center for Justice has proposed a “Reverse Crime Bill,” which would allocate $20 billion over ten years in incentive funds to states that reduce their prison populations by 20 percent without increasing crime. States would receive grants in three-­year increments and would be expected to reduce incarceration by 7 percent every three years.

Similar proposals from other organizations and legislators have emerged and should be fully considered. Without massive spending by the federal government to build prisons, abolish parole, and increase the lengths of sentences across a wide range of offense categories, the United States would likely not have the world’s highest incarceration rate today. It will be necessary for Congress to commit federal dollars to help states recover and retreat from the wasteful and unnecessary incarceration of people who are not a threat to public safety.

There is evidence that funding decarceration can have a substantial impact. Between 2006 and 2012, California reduced its prison population by 23 percent and simultaneously reduced violent crime by 21 percent. That success led to additional parole and probation reforms that further reduced incarceration by 9 percent and crime by 7 percent in 2014.

Federal incentives contributed to mass incarceration by paying states billions of dollars to lengthen prison sentences and keep thousands of people in prison.