A “ratchet … not a pendulum”?: taking stock of latest round of criminal justice reforms

USA Today has this notable lengthy new piece reviewing recent criminal justice reforms that are taking a tougher approach to crime and punishments.  The piece, which i recommend in full, is headlined “‘A stunning turnabout’: Voters and lawmakers across US move to reverse criminal justice reform.”  Here are some excerpts, along with a closing quote that informs the title of this post:

Less than four years after George Floyd’s murder sparked a mass awakening to the inequities of the criminal justice system, political leaders across the country are returning to a tough-on-crime approach. In some cases, voters and lawmakers are opting to reverse reforms passed years ago.

San Francisco voted Tuesday in support of two propositions that give more power to police and require addiction treatment as a condition for welfare assistance. D.C. Council members also passed a package of public safety measures Tuesday, including bringing back “drug-free zones.” The Tuesday votes follow movements to roll back reforms in Louisiana and Oregon.

“It’s a stunning turnabout, especially so soon after the wave of national protests against the system for being too harsh,” says Adam Gelb, President and CEO of the nonpartisan think tank Council on Criminal Justice. Though the 50-year-pattern of reform and restrictions for may seem like we are headed back to highly punitive policies, Gelb said that isn’t the full picture. “I think there’s very little chance that we return fully to the notion that we can arrest and punish our way to safety.”

Gelb said the pattern like a pendulum swinging between restriction and reform starts as early as the 60s when a wave of reform led into a spike in crime in the 70s. The 80s brought in the crack crisis and a “get tough era,” Gelb said. Over the next three decades, mandatory sentencing, a boom in prison development and harsher drug enforcement tactics led to a ballooning in the prison population….

Efforts to reduce those populations had bipartisan support, as can be seen by the 2018 First Step Act to improve criminal justice outcomes while keeping crime low, which former President Donald Trump signed into law. But even before that, the Pew Trust reported that more than 30 states had passed laws to reduce the prison populations between 2007 and 2017….

While national data on crime rates is notoriously difficult to track, statistics collected and analyzed from cities across the U.S. show a spike of violent offenses and drop in property crime during the pandemic. But that data, compiled by the CCJ, suggests that most types of crime are reverting back towards pre-pandemic levels. Gelb said the goal should actually be the recent lows in 2014, before the death of Michael Brown in Ferguson, Missouri further ruptured public trust in police….

Gelb also says that even though this wave of tough-on-crime laws may seem like that pendulum is headed back to that era, he doesn’t think it will be that extreme. “It is a ratchet. It’s not a pendulum,” Gelb said. “They’re not going back to the way it was before. They’re shaving off the most aggressive edges and dialing things back rather than completely rejecting a balanced approach.”

I largely agree with the notion that recent reforms represent more of a racheting back rather than a major pendulum swing.  In the 1980s and 1990s, it was quite common to see significant “tough on crime” legislation pass every two years in the run-up to major elections, but that trend abated in recent decades and seems unlikely to return in full form.  Notably, in this new Hill commentary, Austin Sarat predicts that “Crime and the fear of crime will play a prominent role in the 2024 presidential campaign.”  But I sense that Donald Trump is going to talk far more about what he calls “migrant crime” than about reversing reforms like the First Step Act that he signed and helped to get passed through Congress. 

Notably, after what appears to have been a historic decline in homicides nationwide in 2023, the homicide data over the first few months of 2024 have been even more enouraging in cities like Chicago, New York, Philadelphia and even Washington DC (which had an awful 2023).  If homicides and other crimes keep trending down, it seems likely that other issues will be at the center or more political talk and action.