Editor's Note: (Brandon Garrett is the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law. His new book is "End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice," published by Harvard University Press. The views expressed in this commentary are solely those of the author. )
(CNN) It is time to retire the phrase "tough on crime." There is nothing tough about the harsh punishments that contributed to mass incarceration in this country. In fact, the opposite is true; as the latest data show, a nationwide push in the past decade to move away from these failed approaches has coincided with a remarkable decline in crime. Instead of being "tough," we need to be smart.
Multiple states have passed laws to end cash bail, reduce mandatory sentences, invest in addiction and mental health treatment, and divert convicts toward alternatives to incarceration. Even states such as Louisiana, with the highest incarceration rate in the world, just passed reforms and is currently reviewing 16,000 sentences for possible reduction. Cities such as Oklahoma City and Houston have taken new steps to reduce jail populations.
And crime continues to fall.
According to a Brennan Center report released on Wednesday, violent crime is back down again so far in 2017, after a spike in 2015-16 in certain cities. This year is projected to be the year with the second-lowest crime rate in 25 years. Murder rates are down 2.5%, with declines in cities such as Chicago that accounted for the blip in 2015 and 2016.
So contrary to what some politicians say, there is no national crime wave; it is more like a lake drying up. Even the localized crime bumps in a handful of cities seem to be subsiding.
We don't need a new war on crime when we are winning the peace.
The decline in death sentences is a case in point. The death penalty is the ultimate punishment, and in America we have not shied away from imposing it, particularly during the 1980s and 1990s, when death sentences skyrocketed. Yet, there is no evidence that capital punishment ever reduced murders. Instead, the decline in murders seems to have helped the death penalty to wither away on the vine.
In my new book, I report the results of statistical analysis of data on all death sentencing, by county, from 1990 through 2016.
Murder rates steadily declined, beginning in the mid-1990s. That trend, I have found, is statistically connected to the decline in death sentencing across the US. Over time, counties in death penalty states that experienced sharper declines in murders have sentenced fewer and fewer people to death. A consistent statistical correlation exists between murder rates and death sentences.
What explains that connection is more complex. It's possible there's a smaller number of murders that qualify for the death penalty. It's also possible that the decline in murders overall has affected public opinion or the views of prosecutors, judges and juries about the death penalty.
But whatever the reasons undergirding the correlation, death sentences did not follow the same steady decline as murder rates during those years. Death sentences plummeted by 90%, from over 300 death sentences a year to just 31 people sentenced to death in the entire country in 2016.
Localities such as Harris County, Texas (home to Houston), which used to lead the country in death sentences, are not imposing any death sentences at all -- it has been more than two years since there has been a death sentence in Houston. Or take Virginia, which routinely sentenced five to 10 people to death each year in the 1990s, and has executed more people, 113, since the 1970s than any state except Texas, has not sentenced anyone to death since 2011 and has just four people on death row.
As crime fell, the public's feelings about the death penalty also shifted. Jurors have rejected death sentences to the point that many prosecutors have stopped seeking them. This has saved localities massive amounts of money. Local government spends millions on just a single death penalty trial, and states spend hundreds of millions, even billions of dollars, on keeping the death penalty.
Along with the decline in crime, prison populations are finally starting to fall. More than 30 states have enacted reforms designed to reduce incarceration and invested the cost savings in rehabilitation.
California, New York and New Jersey have led the country in prison population reductions, reducing incarceration by 20% or more — and they have seen violent crime rates fall at greater rates than the national average. A 2015 report concluded that some of the contributors of the crime decline included growth in income, aging and new policing strategies. No wonder more states, including Alaska, Georgia, Ohio, Oklahoma, Kentucky, Maryland, Mississippi and Texas, are adopting smart-on-crime reforms.
These changes show we do not need mass incarceration to prevent crime. We don't need harsh punishments like the death penalty. We will always have new criminal justice challenges and someday these crime trends may, in fact, change. But we can fight new challenges, like the horrifying opioid epidemic, using aggressive efforts to treat addiction, rather than resorting to harsh punishment.
Now is the time to redouble efforts to focus on deeper reductions in imprisonment, charging, sentencing and release and reentry of prisoners. Even if the President and the attorney general are trying to redouble the war on drugs, as if we were still living in the 1980s, those days are far behind us.
Reform is working and crime is still falling. We need to push it farther to shrink our bloated criminal justice system. That is the smart way to get "tough" about crime.