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Locked Up

Debate Over Prison Population Turns to the States

An older inmate using a walker to get to the physical therapist’s office at California State Prison, Solano, in 2013. The United States incarcerates more people than any other country, according to Human Rights Watch. The number of inmates increased by 42 percent between 1995 and 2010, and the number of those 55 and older by 282 percent.Credit...Andrew Burton/Getty Images

Hillary Clinton and Bernie Sanders are backpedaling from their support of a 1994 anti-crime law that some blame for the large number of people in prisons.

The raging debate is starting to reveal the difficult questions at the heart of the problem.

Some 87 percent of the country’s inmates are in state prisons, so any moves to cut the country’s prison population would rely on states and counties to lock up substantially fewer people. Some states are taking steps that could lead to this outcome, but not on a scale or at a pace that would end what has been called mass incarceration.

So can Congress and the federal government come up with new laws and policies that might stop states and counties from imprisoning so many people?

Presidential candidates have staked out some ambitious-sounding policies on prisons. Mrs. Clinton wants to cut mandatory minimum sentences for nonviolent drug offenses and reduce the mandatory penalties for a second or third violent offense. Mr. Sanders proposes eliminating mandatory minimums and has called for a ban on private prisons.

The Republicans have said less. Ted Cruz has called for an overhaul of mandatory minimum sentencing but has also spoken out against a bill in the Senate that seeks to do that. John Kasich, governor of Ohio, in 2011 signed legislation allowing for some loosening of sentencing in the state. Donald Trump’s position is unclear.

An overhaul in sentencing is one of the few policy areas with bipartisan cooperation in Congress. The Senate may pass a bill to reduce mandatory minimum sentences (though its progress is now facing challenges).

But the candidates haven’t really addressed how the federal government could influence state behavior. The Senate bill, for instance, focuses on federal prisoners; the presidential candidates have not suggested specific measures to influence the states. Still, the debate over incarceration may yet turn to the question of how to lean on the states.

A clash last week between Bill Clinton and Black Lives Matter protesters focused on the 1994 federal Violent Crime Control and Law Enforcement Act, as it’s known, which Mr. Clinton pushed for and signed. Some law-and-order specialists, arguing that the law created incentives prompting states to send more people to prison, say that passing a new federal law that does the opposite could help reduce state prison numbers.

The Brennan Center for Justice’s Reverse Mass Incarceration Act, written by Lauren-Brooke Eisen and Inimai Chettiar of the center, would be such a law. The proposal from the center entices the states with a possible $20 billion of federal grants over 10 years to cut prison populations by at least 7 percent over three years. The analysts say that such an approach has a good chance of working right now because many states, in part recognizing that some sentencing has been overly strict, have already started to take steps to cut prison populations.

But other criminologists, skeptical that the 1994 law had such a big effect, are unconvinced that any new federal law would have much sway. My colleague Erik Eckholm detailed the arguments of those who question whether the 1994 bill played a decisive part in driving state imprisonment higher. (Their main argument is that the states were already sending far more people to prison before the passage of the bill.)

There are other objections to something like the Brennan proposal. Its $20 billion in grants works out to $2 billion a year, which some critics call too small to matter, given that states and counties spend some $200 billion a year on criminal justice and about $70 billion on corrections. Ms. Chettiar of the Brennan Center notes that the federal government has frequently used dollars to prod state policy.

And there are political calculations. John Pfaff, a law professor at Fordham University, contends that it makes little sense to spend the limited political capital that might exist to overhaul criminal justice on federal legislation that, in his view, is unlikely to significantly change states’ behavior. In his research, Mr. Pfaff has shown how state and county prosecutors have driven prison populations higher by filing more cases than they used to. Any measures to reduce state prison populations, according to Mr. Pfaff, need to focus on prosecutors and the prosecuted. Such measures might include making it harder for county law enforcement officials to send people to state prisons that the counties do not pay for.

Helping defendants could also reduce the number of people in state prisons, which was 1.35 million in 2014. One reason that prosecutors send more people to prison might be that many defendants don’t get competent legal help from public defenders, who have overwhelming caseloads. Mr. Pfaff proposes that the federal government spend $4 billion a year on public defenders in the state and county systems, which he says might be a shield against overzealous prosecutors.

But law enforcement data does not clarify for criminologists which types of cases prosecutors have emphasized. Did the increase in the prison population come from a more aggressive pursuit of violent offenses, or nonviolent ones? Without knowing this, it’s hard to say whether a measure that, say, seeks to press district attorneys to reduce imprisonment and sentences for nonviolent offenses would have much effect on the overall prison population.

Such questions may not be answered soon. But the debate over the large prison population has taken on such a prominence in this presidential campaign that it might not be long before the candidates start asking more detailed questions about its causes — and what can be done to address them.

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A version of this article appears in print on  , Section A, Page 3 of the New York edition with the headline: Prison Population Debate Turns to the States. Order Reprints | Today’s Paper | Subscribe

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