Taking Stock: Reflections of Fifty Years of Crime and Punishment in America—Keynote Address Marking the Fiftieth Anniversary of the National Criminal Justice Association, August 12, 2024

Dear friends:I am deeply honored by your invitation to deliver the keynote address at this annual conference of the National Criminal Justice Association. I am grateful to the NCJA Board, and your Director Chris Asplen, for this opportunity to speak with you. Many years ago, when Janet Reno was attorney general, Chris and I worked together on some of the cutting-edge issues in our field involving the power of DNA evidence. Chris became Ms. Reno’s go-to person on the implications of this science for the workings of the justice system. It is no exaggeration to say that Chris changed the trajectory of those policy conversations in important ways. NCJA is lucky to have him as your director in these challenging times.I consider myself fortunate to be with you today. For people working on justice reform, this conference is one of the highlights of the annual calendar, as a meeting place for the exchange of ideas and sharing of best practices. This is different, however, from all other national criminal justice conferences because of the membership of NCJA. You represent all fifty states. Most of you work on behalf of your governors. Some of you oversee the state administering agencies and are responsible for the disbursement of sizable congressional appropriations that flow through your states. Some of you represent the statistical analysis centers and contribute to our ability to track trends in system operations. We are also joined by administrators of the residential substance abuse treatment programs. You are on the front lines of our response to substance use challenges.To put a fine point on it, you hold very important positions of influence in your communities. My fondest hope is that my remarks will encourage you to step outside your formal roles to think broadly about our history and to use your expertise and influence to encourage new thinking in our field. My talk will not be a recitation of the good work you have done, or praise for the innovations you have promoted. That is the function of the impressive breakout sessions over the next two days. Rather, I hope to challenge you to think critically about the realities of crime and punishment in America so that you can help our democracy chart a new course to a more just and humane response to crime.Today we mark fifty years since the founding of NCJA. Fifty years! As with all major life milestones, this is a good opportunity to take stock, to reflect on our history. Our history lesson starts sixty years ago, in 1964, when Barry Goldwater, the Republican nominee for president, delivered his acceptance speech. He promised to make “law and order” a campaign issue. He decried what he called “violence in the streets.” He promised, if elected, to “do all that I can to see that women can go out on the streets of the country without being scared stiff.”1Compared to today’s political discourse on crime, this may seem like mild rhetoric, but Goldwater struck a nerve. He lost his bid for president in a landslide, but the man who beat him, Lyndon Baines Johnson, was determined that his party would never again be without a strong response to the crime issue. He named a presidential commission that came up with a landmark report, The Challenge of Crime in a Free Society,2 that served as the bible for the next generation of criminal justice practitioners. One of the legacies of this commission was the creation of a new federal bureaucracy to support state and local efforts to combat crime and promote justice. Initially known as the Law Enforcement Assistance Administration,3 that federal agency is now known as the Office of Justice Programs. For many of us, we got our start in this field through projects funded by LEAA-OJP. My first job in 1971 was on an LEAA grant! I am personally grateful for the opportunity to serve as director of the National Institute of Justice when Laurie Robinson was the assistant attorney general for OJP and Janet Reno was attorney general. Those were great years of inspirational leadership and unprecedented innovation. You are lucky: you will have an opportunity to hear directly from Laurie when she addresses the conference tomorrow.Ever since the early 1970s, criminal justice policy has been a national issue, not simply relegated to state and local government. It has been a bipartisan issue. Both parties have supported a robust federal response to crime, with Democrats often echoing the tough-on-crime rhetoric of Republicans. A central feature of this vision was the creation of state planning agencies that would ensure the wise investment of congressional appropriations to promote more effective responses to crime and the pursuit of justice. Then in 1974 these state planning agencies came together to create a national association to provide support and guidance to those state efforts. We stand here today as inheritors of this remarkable history in the evolution of our country’s efforts to improve our response to crime and the administration of justice.I will leave to others the debate about the impact and effectiveness of the federal expenditures in the name of crime prevention.4 Rather I would ask that we take a big step back and look at the key indicators of the changing landscape of crime and punishment—our typical response to crime—over the past fifty years. To illustrate my points, I will be using slides prepared by our friends at the Council on Criminal Justice in their invaluable report titled The Footprint: Tracking the Size of America’s Criminal Justice System.5 (Note: I will always refer to rates, not absolute numbers, to reflect the growth of the U.S. population.)We start with the rate of violent crime, which has defined so much of our public discourse on the role of law enforcement, the courts, and our nation’s approach to punishment. As this slide illustrates (fig. 1), between 1960 and 1991, rates of reported violent crime rose rapidly, more than tripling, before taking a steep decline to a rate half the 1991 peak. Reported property crime followed a similar trend (fig. 2), more than doubling between 1960 and the peak in 1980, followed by a rapid decline to a rate in 2022 that is 63 percent lower than the 1980 peak.This is a remarkable story. The rates of violent and property crime are now at or below the rates seen when NCJA was founded. Certainly today’s political rhetoric does not reflect the reality that we live in an era of relatively low crime rates, when compared to our own national history.We must look at these figures with profound humility. We do not have a good scientific understanding of the rise or fall of these indicators of community well-being. But we do know this: crime is not the dominant issue on the minds of the public that it once was. In fact, if we look at Gallup polls6 showing the percent of Americans who said that crime was “the most important problem,” we see that crime began to register as nationally important in the 1960s and 1970s, spiked in the mid-1990s, and for the last twenty years has barely registered. Another very revealing analysis is provided by Peter Enns, a professor of government at Cornell and former executive director of the Roper Center for Public Opinion Research. In his brilliant book Incarceration Nation: How the United States Became the Most Punitive Democracy in the World,7 Professor Enns examines the rise in mass incarceration in our country and, using a variety of public opinion data, constructs a measure of “punitiveness” in America (fig. 3).Using this measure, Enns demonstrates that the American public became increasingly punitive over the consequential decades of the 1960s through the early 1990s. Very importantly—and critical to your work in your states—Enns also reveals a sharp decline in punitiveness since the mid-1990s. Enns argues that this shift in public sentiment provides a backdrop for the emergence of the bipartisan coalition supporting justice reform in the early 2000s.8Given these realities—crime at low rates not seen in decades, public opinion no longer rating crime as an important national issue, and punitive sentiment at historic lows—we have an opportunity to ask whether the time is right for our country to respond to crime in ways that are more effective and less punitive. In a recent issue of Vital City, John K. Roman and Elizabeth Glazer provide a resounding affirmative answer to that question. They offer a compelling argument that we face an unprecedented opportunity to usher in a new approach to crime, as reflected in the title of their article, “The Golden Age of Crime Reduction Is Now.”9 I agree that America stands at a crossroads where a new vision of safety and justice is possible, with this caveat: we can chart this new course only if we come to terms with the damage done by the tough-on-crime politics of the past half century.Before discussing the possibility of a different future, we should first take a close look at the second major development in our field: the unprecedented growth in imprisonment and other forms of punishment over the past fifty years. This slide (fig. 4) tells a familiar story. Beginning in the early 1970s, the rate of incarceration in state prisons started to increase and rose every year for nearly forty years, increasing more than fourfold.The story of trends in probation supervision (fig. 5) is similar, but less extreme: the rate of probation supervision in America nearly doubled between 1980 and 2007. As with state incarceration rates and probation supervision rates, the parole supervision rate (fig. 6) also rose sharply in the late 1980s, nearly doubling between 1980 and 2011. Similarly, the rate of people held in pretrial detention (fig. 7) rose rapidly over these years, reaching a peak in 2007, 220 percent above the 1980 rate. A final slide: the federal prison population (fig. 8) has skyrocketed since the early 1980s, reaching a rate in 2011 that is 600 percent above the 1980 low point.Taken together, these slides illustrate a massive expansion of state control over the lives of Americans. Granted, each of these indicators has shown a downward trend in recent years. Compared to the peak years, federal incarceration rate is down 32 percent, state incarceration rate is down 31 percent, jail incarceration rate is down 23 percent, parole is down 12 percent, and probation is down 37 percent.Notwithstanding this good news, we must still face this bottom line: twenty years after the peak in the rate of reported violent crime and forty years after the peak in reported property crime, we still live with the legacy of the tough-on-crime policies of a bygone era. One might think that there is a lag effect, that the system is simply processing old cases. But the data reveal that our courts are actually handling fewer cases. Adult arrests for violent crime are about half what they were in 1995.10 Adult arrests for property crime are down 65 percent from their peak in 1980.11 Given that far fewer cases are being processed, we must face this uncomfortable question: why are so many people still under state supervision? Shouldn’t the lower crime rates and the lower arrest rates mean that fewer people are being held in jail, sentenced to prison, and placed on community supervision?For me, the answer to this riddle is simple. We live in a time that has been dominated by the politics of punishment. Through our politics, we have constructed the machinery of punishment and that machinery—what I call the “justice juggernaut”—has taken on a reality divorced from the reality of crime. For us to move forward, to develop policies that rely less on punishment, we need to understand the dynamics, and the legacy, of the era of punitive politics.12About ten years ago, I had the honor of chairing the consensus panel of twenty scholars and experts brought together by the National Academy of Sciences to answer two questions: What caused the nearly five-fold increase in incarceration rates in the United States? And what are the consequences of this profound change in American society?13To answer these questions, the panel reviewed the available evidence from different scholarly disciplines. The answer to the first question was blunt and provocative: contrary to the popular belief that the growth in the prison population was a natural consequence of increases in the crime rate, “the best single proximate explanation of the rise in incarceration is not rising crime rates, but the policy choices made by legislators to greatly increase the use of imprisonment as a response to crime.”14To support this assertion, the NAS report pointed to laws passed in the 1980s and 1990s that expanded the prison population. It’s a familiar roster: “three-strikes” laws, “truth-in-sentencing laws,” mandatory minimum statutes, sentencing enhancements, juvenile life-without-parole statutes. The report also pointed to changes in parole policies that slowed prison releases and the launch of the War on Drugs. These and other legislative enactments contributed to the nearly fivefold increase in incarceration rates. In the bracing words of the NAS report, this explosion in the number of people in prison was “historically unprecedented and internationally unique.”15 These “policy choices” were the result of the politics of punishment. Elected officials ran on “tough-on-crime” platforms, often fueled by racist rhetoric. Punishment, and more punishment, became the default answer to crime.Tragically, however, as the NAS report also concluded, these policies did not significantly reduce crime. Let’s pause for a moment to consider the importance of this conclusion. Many in the general public, and indeed, some of our criminal justice colleagues, look at the rise in incarceration rates and the decline in crime rates and see a causal connection. Shouldn’t we conclude, they ask, that more prison leads to less crime? Not true, according to the National Academy of Sciences, reporting on a robust body of research. Any crime prevention effects of the unprecedented expansion of prisons were “highly uncertain” and “unlikely to have been large.”16 Yet, this was the core message of the politics of punishment, often driven by racist beliefs and delivered with racialized rhetoric: if you want safety, we must put more people, especially people of color, in prison and keep them there longer.The expansion of state control over people’s lives extended far beyond the growth in the prison population. The scope of the criminal law itself was enlarged as more behaviors were criminalized. The powers of the police to engage in surveillance were enhanced. Electronic monitoring and drug testing became more common. State and federal legislatures created a pernicious regime of collateral sanctions—laws that restrict the autonomy and freedom of people convicted of crimes. They also imposed burdensome fines and fees on people under justice supervision, sometimes requiring them to pay for their own probation, drug testing, public defenders, or even their time in prison. Virtually every coercive tool available to the state under the operation of the criminal law has been deployed by government officials, all in the name of crime prevention. Where is the justice in this new regime of punitive policies?I firmly believe that now is the time to take a step back from the policies we have adopted over the past half century.17 We have an obligation to undertake a sober assessment of the costs of these policies. We must reckon with financial costs, the human costs, and the societal costs. We must squarely face the history of racism that fuels these policies. I firmly believe that these policies have weakened our democracy, undermined respect for the law, and created obstacles to our pursuit of racial justice. Perhaps most ironic, our relentless focus on punishment as the default to crime has distracted us from pursuing responses to crime that the by the ability to the next crime, and support the of those who have the were by law professor in recent of the of called this era of punitive of the great of American legacy of the past fifty years is for sober We have the damage caused by rapidly rising crime rates. many and have been to with their and their without support from their government. We have also the power of punitive the call for law and out the policies that would actually more safety and We have seen the effects of punishment. many lives have been lost to many of our Americans live lives of We have seen that of have the of crime rates and incarceration rates. we have that more punishment does not more we to rely on the coercive powers of the state than a more humane approach to justice and people in this are to the in this on the You are also the experts who can point the country to a different to offer some about the my we have important of I to my to my at the One who have my thinking on this we must that the era of punitive has caused This with our in us to make a to never again engage in punitive policies. We must also take to these I know it is for criminal justice to that the policies we have caused But when we look at the evidence and see that so many people have held in prison or under no compelling public safety I think we have no but to the human costs of our on punishment. We must also that the of the policies has on of color, our for a democracy and a legacy of that we can only to As criminal justice I believe we must take a critical look at the impact of a generation of punishment, to those and to to never again on as experts in the justice we have an obligation to the we should not default to the criminal justice system to public I am not that the criminal justice system has no role in our response to crime. the I believe we should the of these agencies to respond to crime when it to crime, and to the public with Rather, we should that simply up the machinery of punishment does to crime and damage to our for racial and the of our We must the development of safety that the power of communities. We must other government as and in pursuit of public We must to the of people who crime. We must and to provide support for and of crime. Those who and those by crime, public support in their would like to to you the recent by and Justice at in as of Public which provides an for this and a for the work of your we must promote core that have been by our relentless campaign of punishment. The pursuit of justice should on these we should to respect the human of people who are and convicted of and and the public as police and who take an to justice. we should honor the of which that the state may restrict our only to the to a we should public safety that the of racial and to not of we should hold every of the justice system to the of justice by that these promote our for a agencies are to for a reform to with new that reflect these and to support that our understanding of the role of in justice have much work of us, but this is the time to an The American system of criminal justice stands at a low crime rates, public support for less punitive responses to crime, and an call from the next generation to do no more and the call for racial a of opportunity has I can think of no of justice to this I believe with all my that this is a The of and the for a democracy, in the It may take fifty years, but now is always the best time to you.