What Have We Learned in Two Decades of Second Chances?

Jeremy, nearly 20 years ago you wrote ​“But They All Come Back,” an article that sparked contemporary study of prisoner reentry and reintegration. What inspired you to tackle this as a project?

Attorney General Janet Reno, after a meeting on another topic, pulled me and Laurie Robinson aside — Laurie was then the Assistant Attorney General for the Office of Justice Programs in the Clinton administration, and I was Director of the National Institute of Justice — and looked both of us in the eyes directly, as only she could do, and asked the following question: ​“What are we doing about all the people coming out of prison?”

The question took me aback because it was so direct and a topic that I had no expertise on. So I said to her, ​“I don’t have a good answer to your question.” And she said, ​“Well, get back to me with a better answer in two weeks.”

That exchange started me and my colleagues on this journey to have a better answer and really try to understand the processes of reentry. We went back to my office at the National Institute of Justice (NIJ), and we convened some of our colleagues and experts into a conference room, including Amy, and I told everybody that I had an assignment from the attorney general.

That meeting in the NIJ conference room was very open-ended, very wonderfully exploratory. We started talking about the numbers: How many people are coming out of prison each year? That’s when I first heard a number that at the time struck me as very large: 585,000 people per year.

It was in that meeting that we made clear to each other as colleagues that we were not talking about parole. We were not talking about the supervision of people coming out of prison, which then accounted for about 80 percent of the people coming out of prison. Rather, we were talking about how people were released, where they were going home to, and how they fared more generally.

In that meeting we started using the word reentry for the first time. So that’s how we got started.

Just a few months later we launched two small but national pilot efforts: Reentry Courts and Reentry Partnerships. Attorney General Reno gave the first national speech on the topic, Managing Prisoner Reentry for Public Safety, which Amy and I helped draft.

Fast forward five years later. At this point I had come to John Jay College and invited Ms. Reno to visit with me and the students. I had the remarkable personal privilege of handing her the book, ​“But They All Come Back,” which had just come out and represented my research on reentry since leaving NIJ. And I told her that she had asked me a question five years earlier and given me a two-week deadline, and I thought I had a pretty good answer now, and I’m sorry that I missed the deadline.

So this focus on reentry began roughly 20 years ago. What has changed in the world of reentry and reintegration since then?

I think there’s been a sea change in terms of what policymakers — and the public — want and expect here.

Twenty years ago — even 10 years ago — every Department of Corrections (DOC) commissioner in the country would have told you their job was effective incapacitation. It was care, custody, and control. It was to keep people safe and on the inside and safe on the outside by making sure people didn’t escape. On that measure, prisons did a pretty good job. But when you asked about reducing recidivism, you basically got the answer: ​“That’s not my job. Not my responsibility. That happens after people leave the DOC.”

The climate has changed so much. Now I’m sure every DOC commissioner would say that they feel responsible for reducing recidivism and improving reentry outcomes. They feel responsible for what happens when people get out. That is a game changer.

And it’s not only DOC chiefs who now care about this issue. Many governors — from red states and blue states ­— now count reentry as their responsibility and a priority of their administrations. We heard this in state of the state addresses earlier this year.

Reentry is a bipartisan priority on the Hill too, and even in the White House. This is now the fourth administration to own and advance the issue. 

So what does this ownership and advancement look like, and how are these political leaders implementing policy today?

It’s such an interesting moment in time. During the Obama administration, we had a Cabinet-level interagency reentry council devoted to making policy improvements on the reentry front – reducing barriers to employment, housing, health care, and education. [Amy served as Executive Director of the Federal Interagency Reentry Council.] It’s pretty amazing to see the Trump administration build on that progress and even take it to the next level. President Trump issued an Executive Order in 2018 to reestablish the Council and has since advocated for and signed the First Step Act, which focuses on federal reentry but pushes even further into sentencing reforms, which are so sorely needed.

The First Step Act also reauthorizes the Second Chance Act, which was passed in 2008 to help state, local, and tribal governments reduce recidivism and improve outcomes. It was inspired by a George W. Bush State of the Union speech in 2004 where he talked about America as ​“the land of second chance, and when the gates of the prison open, the path ahead should lead to a better life.” 

Wow, I remember jumping off the couch when I heard that — shocked and elated — to call Jeremy from my kitchen landline!

One connection I would make in looking at this political history is the fact that the reentry agenda, by which we mean support for people coming out of prison, has survived four administrations of both parties. That survival was not a given.

The longer history of reentry is the history of bipartisanship support. The Second Chance Act passed the Senate without a dissenting vote and overwhelmingly passed the House. The support continues in a time when it’s hard to find the middle ground in so many other policy domains. Here we have a very big middle ground. The larger criminal justice reform coalition has been sustained through the Trump administration when many people thought it would falter. It was really formed back in those days when we had the Second Chance Act and the Republicans and conservatives came together with the progressives and Democrats to recognize that this reentry phenomenon had a very pragmatic agenda that was nonpartisan — just to underscore one more time how remarkable this is in a time when so many other social policy issues don’t have the same record of sustainability.

It’s also worth underscoring that when Attorney General Reno posed her question to Jeremy and Laurie [Robinson], this issue was not on the radar at all. If it had been put on the radar screen as rehabilitation, there would have been no traction. Jeremy, Joan Petersilia, and a small working group reframed this issue, not as rehabilitation, not as parole, but as reentry – a phenomenon that was inevitable (because almost everyone gets out) and addressable. He engaged the public safety angle, the cost issues, and all of the other dimensions to this — health, housing, employment, education, family, community. It was all so logical once it was laid out that it was easy for people to see it and get on board. That was early stage momentum for criminal justice stakeholders.

There was a huge bump in momentum about 10 years later during the financial crisis when governors began to look at their very tight budgets and saw that prisons and corrections costs were taking up a large and growing part of those budgets. They began to think about how they could reduce their state corrections costs and get better public safety returns. This spurred the important ​“justice reinvestment” efforts that continue to this day. Some 35 states have both reduced incarceration and crime rates over the last decade.

And we’re in an altogether different moment now — it’s rather a movement, a public awakening, at least partly due to the fact that so many people have been touched by the justice system. One in three people have some kind of record on their own, one in two people have a family member who’s been incarcerated, and almost everyone has been touched by the justice system in some way. There’s a reform movement underway, and hearts and minds have clearly changed on this issue.

In the book, Jeremy draws a distinct line between an age of indeterminate sentencing and then an age of determinate sentencing. Now it seems like we’re headed into something new. Do we have a name for this age we’re living through right now? Amy used the phrase ​“public awakening,” and sometimes it feels like we’re in this great awakening of criminal justice.

We live in the era of mass incarceration. The language has changed significantly over the past three decades, and maybe more intensely over the last five years. But now there’s a recognition that the country has gone off track in terms of its use of prisons as a response to crime, and that the fourfold increase in the rate of incarceration in America is not consistent with our history. It places us far outside of the international norms, hence the phrase mass incarceration. That’s that the rallying cry: to end mass incarceration.

Now, fortunately, the most urgent part of the reform agenda in this new era is to reduce the use of prisons. Even as we make progress on reducing prisons, however, we still need to focus on the reentry agenda. We must remember what I call the iron law of incarceration: Everybody we send to prison comes home. Therefore, we owe it to them to make sure their time in prison is well spent, that they are safe and healthy, and they are prepared for their return home. But the question on the table now is really a more fundamental question, which is: Who should go to prison? Why? And for how long?

To end the era of mass incarceration requires a significant rethinking about the purposes of punishment.

What I describe in my book, but more fulsomely in the National Academies of Sciences report that I edited, is to recognize that during the ​“tough-on-crime” era we’re still in, prison has become a default. Even arrest and prosecution has become the default for a lot of societal problems. The result is that we have built a huge prison industry that is gobbling up resources and doing enormous damage to poor communities, particularly communities of color. The return on that investment in terms of public safety is negligible.

So the era we’re in right now is, fortunately, challenging our country to not only ask what are we doing about people coming out of prison, but also two related questions: Why should we use prison at all? And if someone must be sent to prison, why do we send people to prison for such a long time?

Those questions are front and center of the criminal justice reform discussion right now. It’s been articulated in sentencing changes and in federal legislation. Many states are now working — governors, corrections commissioners, and legislators — to figure out how to reduce the number of people in prison so that those resources can be spent on other more important purposes and so that we reduce the level of harm that’s caused by mass incarceration.

As we start to answer these questions, do you have some kind of specific vision in mind of what we’re aiming toward?

Well some people think about this in terms of numbers — that’s one way to think about it. For example, The Cut 50 movement would cut the prison population in half over a certain period of time.

I like to think about this as being a more fundamental question as to the value of an incarcerative sentence. Incarceration does very little for public safety — particularly long sentences. Mandatory minimums we know are ineffective in terms of public safety. The War on Drugs, which ramped up our use of prison, has basically been proven to be counterproductive, and the money could have been spent better with a stronger public health response.

We start there and try to reduce long sentences, cut back mandatory minimums, and reduce prison sentences significantly for drug crimes. Then we can end up with a prison system that is much more parsimonious, much more cost effective, doesn’t do harm the way the current system does, and over time — this will take a long time — we will return to the levels of incarceration that we saw a generation ago in the 1970s, which were, as I said before, about a quarter of what they are today. And we would be doing that at a time when crime is at a very low level in America.

What we’ve seen is that we can reduce prison populations with no significant impact on crime rates.

The role of prison in our democracy needs to be rethought from a very fundamental point of view so that we use prison only when necessary. That question of when it’s necessary is a question of the first order that our elected officials, and to some extent judges, need to answer.

I would only add that even though there’s public and political buy-in for sentencing and reentry reform, we’ve got a long way to go when it comes to high-end implementation or implementation at scale.

When you look at some of the most ambitious demonstration programs that are trying to do reentry well, you still see that agencies have trouble delivering the right mix of services to people both in prison and after release. This is hard because it’s just so far from business as usual and what prisons were designed to do.

We’ve got an $80 billion corrections system that was designed to warehouse people. We need a lot more than a program here and a program there, but really some wholesale shift. We need to incarcerate fewer people for shorter stays, but also change the prison environment so that everything that happens on the inside is geared to improving well-being and increasing the prospects for successful reentry. And then when people get out, it’s got to be easier to get a job, education, and housing — and to vote — so that people can be a part of a civic society, be productive, support themselves, support their families and their communities.

I recently participated in a study trip to Germany, and was struck by their approach to punishment. Not only is prison considered an option of last resort, but when it is used it’s generally for short terms, with the sole objective of rehabilitation — so that people will return home as better parents and children, neighbors and colleagues. This model is possible here in the United States, too, and we’re seeing the first pilot efforts in states as varied as Connecticut, South Carolina, North Dakota, and here in D.C.

Where do you see the opportunities to enact the significant transformation that’s going to have to happen to accomplish these goals?

As Amy alludes to, it is the quality of life in our prisons and the extent to which the people who work there and are incarcerated there have an environment that is respectful, dignified, and safe. The experience of those who are incarcerated should be seen as a precursor to their successful reintegration back with their families and communities, rather than a punishment by itself — that the experience is not an opportunity for punishment harsher than the deprivation of liberty.

I think there’s a way in which the National Academies report has been a clarion call for opening up a public discussion about our prisons. Through journalism, legal access, research, transparency, and accountability, we need to address the age-old idea of exile — that people who are convicted of crimes can be sent away and never thought of. It is so important that we remember the individuals who are sent away are members of our community, citizens in our country who have basic rights, and one of the rights is to be treated with dignity. We think there is an openness right now through work being done by the Vera Institute and many corrections commissioners who are talking differently about the prison as an institution, and we can help support that reform agenda at Arnold Ventures.

We’ve also begun investing in reforms in the community supervision area. Probation was intended to be an alternative to incarceration and parole was set up to help people reintegrate back after prison. But they have become massive systems that are often oriented to catch failure rather than promote success. As a result, failure on community supervision is a major driver of prison admissions in many states. We are supporting projects that we hope will reverse these trends and focus on incentivizing crime prevention and success in the community.

I imagine that the work on fines and fees is connected to this as well.

One of the areas where Arnold Ventures has made significant contributions is elevating public awareness on the practice of assigning excessive fees for justice participation, probation, parole, and the like. One of the realities of reentry is that many people are not able to get back on their feet because they are burdened with excessive fines and fees and other financial obligations.

As we saw in the report on Ferguson, Mo., by the Justice Department, these financial penalties are often used to finance the operations of government — the criminal justice operations of government. When people don’t pay their fees they are subject to being arrested and placed back in jail or having their supervision terms unduly extended. That does nobody any good.

So for reentry to be successful means that if you’ve paid your debt to society with your probation term or your prison sentence, that should be it. At that point you should be welcomed back and able to participate fully, which is difficult if there’s always this financial millstone around your neck. Arnold Ventures has been a leader for the past five or six years in elevating public attention and awareness to the abusive practices of fines and fees that act as barriers to reintegration.

That’s the way to think of them — it’s just hard to get back to work if you don’t have a driver’s license. It’s hard to pay your rent if you owe money to the county for your probation supervision. The intersection of the justice system and deeply embedded poverty is particularly acute when we think about these financial obligations.

One of the big challenges to implementing these reforms isn’t necessarily getting the data or knowing the right thing to do, but breaking through a political barrier. The bipartisan consensus at a national and state level has been astounding, but voters and officials are still hesitant when incarceration reform projects are rolled out and people say: ​“Well they’re bad guys. They broke the law. Shouldn’t this be punitive?”

What’s the proper response?

Punishment should be proportional to the offense. What we’ve developed in this country are punishments that are wildly out of proportion to the harm that was caused. California’s three strikes law was a good example. You could be sent away to prison for life for a misdemeanor if it was your third offense.

As the National Academies has pointed out, we’ve strayed so far from a common sense notion of what’s the right level of punishment or accountability. You have to ask why. There’s no doubt, there’s no quarrel, there’s no disagreement that this era of ​“tough on crime” has really taken us far away from your commonsense observation. Yes, people should be held accountable if they’ve caused serious harm. But we tend to throw a lot of punishment for a little bit of harm.

What you see with fines and fees is a financial penalty for people who can’t pay it. You ask yourself: What is the lesson that somebody is supposed to take away from that in terms of their own personal culpability? ​“No matter how hard I try, I keep getting knocked down.”

So what is the lesson that you’re taking from society if that’s the way you’re being treated by society?

What advice would you give to someone who’s 18 years old, just going off to college and decides that this is the thing that they want to study?

We need as much help as we can get! This is still, I hope, the beginning of a reform moment. We need as many different perspectives and skill sets and talents as we can get. So many people have been touched by the justice system, and they — and young people generally — come with a lot of a ideas, experiences, solutions, and creativity. We need all of it.

So much of the leadership today is being provided by people who’ve been incarcerated, people who’ve been arrested, people who are victims of crime, people whose family members have been incarcerated and know what it’s like to have a dad in prison. The urgency and the language that describes the ways in which the country has done damage is now coming from the lives, the experiences, the voices of people who know that damage firsthand. And that has made this issue much more than an issue for criminologists who would study it from a different point of view or any other academic discipline. It has an urgency and a reality because of the ways in which our democracy is responding with their voices, led by those who have been directly affected.