Jonathan Lippman

Opinion contributor

Incarceration in the United States peaked in 2008. Since then, many jurisdictions have expanded alternatives for low-level offenders, decriminalized some minor offenses, and reformed police practices. As a result, the nation’s incarceration rate has declined from 1,000 inmates per 100,000 adults to 830 inmates per 100,000 adults.

The FIRST STEP Act, signed into law last year, is federal criminal justice reform that is designed to reduce sentences for nonviolent offenses — a sign that this decline will likely continue.

This is good news for those of us who care about creating a more rational and humane justice system. But because FIRST STEP will only impact federal inmates (and only a fraction of those), it won’t have a direct effect on the vast majority of the more than 2 million people who are incarcerated. Further state and local reform is needed to successfully and safely reduce the incarcerated population.

How can we get there from here? We have to acknowledge that some individuals who have been charged with violent crimes might be appropriate candidates for alternatives to incarceration. And judges need to be empowered to freely use those alternatives when they deem it necessary.

Let’s be clear: In many instances, those charged with violent crimes have committed heinous acts and need to be incarcerated because they are a continued threat.

But not all individuals charged with violence fit this description. The category of violent crime is so broad that it includes charges such as “simple assault,” which might not involve any physical harm to the victim.

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And risk assessment tools that employ scientific algorithms to make predictions about future behavior tell us that many individuals charged with violent crimes are not high-risk for future offending.

Of course, we cannot simply dispense get-out-of-jail-free cards. We need to protect public safety even as we attempt to reduce incarceration. As Greg Berman and Julian Adler argue in their book "Start Here: A Roadmap to Reducing Mass Incarceration," there are in fact community-based programs capable of reducing re-offending for more serious cases. These include a range of programs that use cognitive behavioral therapy to teach participants how to stop and think through alternative responses when conflict happens.

Cognitive behavioral therapy can reduce recidivism by as much as half.

New York City offers a potential glimpse of what can happen when the justice system invests in community-based alternatives. From a high of more than 21,000 detained people in 1991, there are now fewer than 8,200 people behind bars in New York City. And the city remains safer than ever. Lots of different actors deserve credit for this, including the police and local community groups who have worked to prevent crime.

One of the things that has long distinguished New York from other American cities is its network of alternative-to-incarceration programs. Some of these are operated by prosecutors. Some are operated by nonprofit organizations. And some are court-based programs.

For example, the Brooklyn Mental Health Court works with felony cases involving defendants with serious and persistent mental illness. Instead of being sentenced to prison, participants in the program remain in the community, where they receive treatment. Independent evaluators from the Urban Institute documented a re-conviction rate that was about 29 percent lower for program participants, compared with similar defendants who did not go to mental health court.

One of the reasons that the Brooklyn program has been successful is the active engagement of the presiding judge, Matthew D’Emic. He brings defendants back to court on a regular basis so they can report on their compliance in treatment. Just as important, he interacts with them in a way that demonstrates empathy and understanding.

In general, judges have a crucial role to play if we are going to roll back mass incarceration. Judges are the only real bulwark against overzealous prosecution that can result in too much incarceration. In many cases, lengthy prison terms do little to deter negative behavior and instead only make it more difficult for individuals to reintegrate back into our society.

Paradoxically, this can end up increasing recidivism in the long run. We need to strengthen offenders’ connections to positive role models in the community, not undermine them.

Judging can be a lonely job. The burden of responsibility can be weighty when you are the final decision-maker in a high-stakes case. We need to actively engage judges and ask them what will make it easier for them to opt for alternatives to incarceration, particularly in cases that involve violent behavior.

What judges are looking for are programs that employ evidence-based interventions, along with plans for rigorous supervision and thorough reporting back to the court.

If we follow this blueprint, it may just be possible to end mass incarceration.

Jonathan Lippman, of counsel at Latham & Watkins LLP, is a former chief judge of the state of New York.