Those seeking change in the US criminal justice system, whether incremental or radical, have long had to march forward despite the ever-present threat of the ground swiftly shifting beneath them, of having their often Sisyphean efforts halted or swallowed by unstable political and social landscapes. Hope and optimism have been tempered by a sense of impending tragedy, of caution, of pessimism born of realist knowledge of how, as crime waves or headline-catching incidents come and go, so too does the general public’s appetite for more humanistic and less carceral responses to violence and harm. Few are so naïve as to believe that when it comes to crime and punishment, tipping points mean that regression is impossible. The criminal justice system metes out punishments meant to “change” individuals in sentences lasting decades or even lifetimes, but the climate around criminal justice reform can be transformed in months.
I began work on this book in late 2019, in the four months before COVID would roil the world. It was less than a year after the feel-good story of the bipartisan passage of the federal First Step Act—a time of numerous state-level victories for reformers, of low salience of crime for voters, of an unprecedented flood of philanthropic donations to reform-minded organizations, and of a hopeful sentiment that with the nearly 20-year slow retreat away from a widespread “lock ’em up!” sensibility, the history of which is documented in this book, the tide had turned. Nevertheless, in 2019 advocates would point out the precarity of their successes. As one interviewee observed, “there’s always going to be a next terrible crime, right?” There was always the threat of an uptick in crime, the political weaponization of “worst of the worst” crimes, or of a reform having easily exploitable instances of failure.
In the first half of 2020, it seemed possible that the national criminal justice reform movement would not experience such a threat imminently. In fact, it seemed to some in the movement that it might have reached an inflection point that would propel it forward. The moment of the crisis of the pandemic presented itself as one of exciting opportunity. The ravages of COVID brought unimaginable social change, disruption, and death. With the prospect of the incarcerated facing a bloodbath in prisons, where physical distancing to avoid contagion was impossible, the question of how many people need be in prison became an urgent concern. It was one that was answered with a dramatic reduction in the jail population through lowered arrests and release of those held on low-level charges. During the same period, the horrific video of George Floyd’s murder under the knee of a White police officer in Minneapolis, sparked unprecedented engagement by nearly 10 percent of Americans in nationwide protests against racism and police brutality—arguably the largest in the nation’s history. Polls conducted at the time indicated widespread support for reforming policing and belief in racial bias in policing.1
This fleeting time of hope disappeared as it appeared, in a matter of months, ushering in some of the worst fears of reformers. Though the vast majority of the 140 protests against police brutality across the US did not entail violence, where riot violence, vandalism, arson, and looting did break out, leading to the biggest insurance payouts for civil unrest in US history, they fractured support.2 Violent crime—in particular the most visible and attention-getting of crimes, homicide—increased dramatically. Murder rose across red and blue cities, in suburbs, and in rural areas beginning in the summer of 2020,3 up 29 percent from the prior year, reaching a level last recorded in the late 1990s, along with an increase in aggravated assaults.4 Those rates remained well below their historical peaks, and other violent crimes like robbery and rape declined, and sustained decreases were seen in property crimes. But the issue of crime and reform measures became rapidly more toxic, divisive, and recentered in public and political discourse, especially as the slogan “defund the police” took center stage. The high-profile recall of progressive prosecutorial reformer Chesa Boudin, San Francisco district attorney in 2022; the 2021 election of former police officer Eric Adams as New York City mayor, running on a public safety platform; crime reemerging as a major concern nationally for voters; pushback against decarceratory measures like bail reform at the state level—these seemed to portend a worrisome trend for reformers. The whiplash in penal climate led to a drastic, premature querying in the media: “Is criminal justice reform dead?”5
There had been a similar rush to check the pulse of the criminal justice reform movement and pronounce its untimely demise with a kind of schadenfreude only a few years earlier. Seven years before, the year 2015 “came to symbolize a nightmare of exploding crime.”6 There had been a large uptick in homicide from the previous year. Then-candidate Donald Trump reported fake statistics showing murders at their highest rate in 45 years, running on a promise to “restore law and order,” while a majority of Americans said that they were personally worried a “great deal” about crime. Former FBI director James Comey had created a national stir with his pronouncement that a “chill wind” across law enforcement due to antipolice hostility explained and portended a continued increase in violent crime. In 2016, an article in New York Magazine opined that with Donald Trump’s Attorney General Jeff Sessions in power, “a painfully constructed bipartisan and cross-ideological movement to “de-incarcerate” many people . . . could soon completely fall apart.” Indeed, the article’s title proclaimed: “Criminal Justice Reform Is Dead.”7 There was a perception that the momentum especially for bipartisan federal reform may have fizzled out, that the reform “moment” had passed with a whimper. Still, Lenore Anderson, president and cofounder of the Alliance for Safety and Justice, as well as the Heritage Foundation’s John-Michael Seibler,8 argued through op-eds against such a reading of the reform movement’s demise. “Criminal Justice Is Dead? Not So Fast” Anderson wrote,9 describing the momentum seen in state-level initiatives, while Seibler pointed to bipartisan lawmakers still pushing reform in Washington. They were correct. And it’s likely that those who pushed back against the “reform is stone-cold dead in the mainstream” reading in 2022, like the Nolan Center for Justice’s David Safavian, are also correct.10
Upticks in crime are difficult to portend. Are they going to be a limited aberration or part of a longer-term pattern? It is similarly difficult to augur what the post-2020 shift in the tone and tenor of media and public response to crime and “reform” will mean for the reform movement in the decades to come. The 2015–2016 pessimism about federal and even state-level reform cautions against cynicism and hopelessness. Public opinion data from 2022 does not fatalistically determine a long winter of retreat from transformative changes. Approximately 5 percent of Americans in 2022 listed crime as the most important problem facing the country, well below economic considerations. Historical surveys showed the percentage of those who said they would be afraid to walk within a mile of their own home at night to be around the same as it had been in 2019. A majority, 53 percent, said they worried about crime a “great deal,” but this was the same percentage as in 2016. Fifty-one percent said they had seen more crime in their area than in the previous year, but 51 percent also said this in 2006, 2007, and 2009.11
The criminal justice reform movement, more so than almost any other movement for social change around human rights and humanitarian principles, has never had a linear path forward or even a universally accepted teleological aim among participants. The reform ecosystems of states, where most decarceratory and ameliorative change needs to happen, vary tremendously. The relationship between federal-level policy shifts and state-level changes is also complex. All is subject to uncertain political tides.
I don’t think these observations reflect a kind of fatalism, that reform is inexorably tied to the whims of social trends and so therefore the movement is merely riding these waves, helpless to steer the ship. What I’ve documented in this book is the post-2000 movement’s mainstreamed character, its nationalized alliances, as well as its harnessing of successful stories appealing to the values of individuals across the political spectrum. These changes mean that it has a greater reach and mobilizing capacity than at any point in US history. Looking forward, there is no reason to see that regressing significantly. However, what I also explore are the characteristics of the national movement that can render it fragile, fractured, and of limited efficacy in making significant dents in mass incarceration. These are considerations that help in evaluating how to ensure its longevity and resilience despite changing headwinds.
Colleen P. Eren, October 2022
1. A. Philip, “George Floyd Protests Have Made Police Reform the Consensus Position,” CNN, June 9, 2020; L. Buchanan, Q. Bui, and J. K. Patel, “Black Lives Matter May Be the Largest Movement In U.S. History,” The New York Times, July 3, 2020.
2. J. A. Kingson, “$1 Billion-Plus Riot Damage Is Most Expensive in Insurance History,” Axios, September 16, 2020.
3. P. G. Cassell, “Explaining Recent Homicide Spikes in U.S. Cities: The ‘Minneapolis Effect’ And The Decline In Proactive Policing,” Federal Sentencing Reporter 33 (2020): 83–127.
4. A. Grawert and N. Kim, “Myths and Realities: Understanding Recent Trends in Violent Crime,” Brennan Center, July 12, 2022, http://www.brennancenter.org/our-work/analysis-opinion/how-first-step-act-became-law-and-what-happens-next.
5. A. Chabria, “No, The Criminal Justice Reform Movement Isn’t Dead. But It May Need to Grow Up,” Los Angeles Times, June 9, 2022.
6. J. J. Donohue, “Comey, Trump, and the Puzzling Pattern of Crime In 2015 and Beyond,” Journal of Labor Economics 117, no. 5 (2017): 1297–345.
7. E. Kilgore, “Sessions as AG Means Criminal Justice Reform Is Dead,” Intelligencer, November 2016.
8. J. M. Seibler, “No, Jeff Sessions as Attorney General Won’t Mean Criminal Justice Reform Is Dead,” Daily Signal, December 12, 2016.
9. A. Lenore, “Criminal Justice Reform Is Dead? Not So Fast,” Governing, November 23, 2016, https://www.governing.com/gov-institute/voices/col-criminal-justice-reform-state-ballot-measures-legislation.html.
10. D. Safavian and C. Culver, “Is Criminal Justice Reform Dead?” Washington Times, July 6, 2022.
11. Gallup, “Crime,” poll, 2022, https://news.gallup.com/poll/1603/crime.aspx.