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Unlock ’Em Up?
The Justice Department has announced that it will begin releasing 6,000 “non-violent” inmates from federal prisons starting at the end of this month. Welcome to the era of de-incarceration. At a conference named for former New York Mayor David Dinkins (who presided over the city at a time of runaway crime), Hillary Clinton decried the number of Americans behind bars and declared, “It’s time to change our approach. It’s time to end the era of mass incarceration.”
In this, she is joined by Bernie Sanders and other Democrats, and also by Charles Koch, who wrote recently that “Overcriminalization has led to the mass incarceration of those ensnared by our criminal justice system, even though such imprisonment does not always enhance public safety. Indeed, more than half of federal inmates are nonviolent drug offenders.” Senator Rand Paul has called mass incarceration “the new Jim Crow.” And Carly Fiorina suggested during the last debate that “We have the highest incarceration rates in the world. Two-thirds of the people in our prisons are there for nonviolent offenses, mostly drug-related. It is clearly not working.”
Not exactly. The U.S. does have the highest incarceration rate in the world (that is, among nations that list these data honestly), but the assertion that most of the people incarcerated are there for non-violent crimes is false. Advocates for de-incarceration often cite the number of federal prisoners who committed non-violent drug offenses. This is highly misleading. Of the 1.6 million inmates in America, only about 200,000 are federal prisoners.
About half of federal inmates are sentenced for drug crimes, but this shouldn’t shock anyone. Nearly all violent crimes are state matters. It’s a federal crime to transport a kidnap victim across state lines, to attempt to assassinate a federal official, and so forth. But robberies, rapes, assaults, and murder are mostly state matters. Among state inmates, only one in six is a drug offender.
Among the 50 percent of “non-violent” federal drug offenders, it’s difficult to know how many were arrested for a violent crime and plea-bargained to a lesser offense. Nor do we have good data on how many were previously convicted of a violent crime. A 2004 Bureau of Justice Statistics study found that 95 percent of those who served time in state prisons for non-violent crimes had a preceding criminal history (typically 9.3 arrests and 4.1 convictions) and 33 percent had a history of arrests for violent crime.
Among state prisoners, 54 percent are there for violent offenses. Perhaps the 46 percent who are incarcerated for non-violent crimes should be punished some other way. But to design good policy on that, we’d have to grapple with a number of issues. What do you do with offenders who are placed on probation or parole but continue to offend? What about the “crime in the streets versus crime in the suites” problem? Should we sentence embezzlers, child porn dealers, and Medicaid cheats to community service but keep armed robbers behind bars? How will that affect the perception that incarceration is the “new Jim Crow”?
Many on both sides of the political spectrum are eager to leap aboard the “de-incarceration” bandwagon. It’s a way to show sympathy with African-Americans and (to much lesser degree) Hispanics who are disproportionately represented among inmates.
But the primary victims of crime are also African-Americans and Hispanics. If “unlock ’em up” becomes the new conventional wisdom, more innocent people will suffer and more businesses will flee.
We’ve become complacent about crime because the crime rate has declined drastically since 1990. According to the FBI, violent crime increased by nearly 83 percent between 1973 and 1991 – a period of criminal justice leniency. From 1991 to 2001, when incarceration rates increased, violent crime declined by 33.6 percent. The decline has persisted. There are many theories about the cause of the drop in crime (abortion, removing lead from paint, the waning of the crack epidemic, policing strategies), and some or all of those factors may have played a part, but the “incapacitation” argument – criminals who are behind bars cannot be mugging people – seems awfully strong.
It would, of course, be a better world if fewer Americans were growing up in neighborhoods where fatherlessness, intergenerational government dependency, and poor schools contribute to high rates of crime. But it’s hard to see how releasing more criminals to prey upon those very neighborhoods is the answer.
Published in Law, Policing
Great post. It’s interesting to look at the revisionist history of this “new Jim Crow” because the biggest single advocate of our current drug laws was a tough-as-nails former federal prosecutor that ousted a corrupt machine hack in a primary by promising to draft and enforce these laws — Charley Rangel put Adam Clayton Powell, Jr. out of office back when The Godfather paradigm was popular, that drugs were “the man’s” plot to keep the black community down.
That is absolutely correct. And regarding Hispanics, the same can be said for the federal government’s failure to secure the border, for it is they who suffer greatest from the ensuing lawlessness.
I made this point on another thread recently, one of those “how could this possibly happen?” type threads. For me – since I have worked as a public defender and am at least partially familiar with the system – the idea that these numbers mean anything valuable is implausible. But we fall prey to a confirmation bias that also leads to a causation vs. correlation fallacy where because the numbers fit with our preexisting bias, we cite them as proof. You see this all the time with things like “blacks are arrested at a higher rate than whites, therefore racism.” It is pretty easy in this instance to point out that Al Capone was only ever in jail for tax evasion – so if I’m trying to make an anti-tax argument and can rely on nobody having any other knowledge of Al Capone, that story can turn into quite the sobby example.
Someone on the member feed posted a video of Ted Cruz asking questions to the Sierra Club’s president, who pathetically fell back on his appeals to authority (and to the masses) in never answering any of Cruz’s questions. Cruz demonstrated something of which conservatives are often quite mindful – you say 97% of scientists agree; ok, so what does that mean? Who is included in the 100%? What questions were asked? What constitutes a consensus? A few of these questions are all that is required to show that the statement is utterly bogus, but then we hear from the stauncher libertarian crowd those same types of easy statistics to show that drug laws do more harm than good, that prison cannot help society, etc…
If only we could have the courage (for lack of a better word) to maintain consistency in our skepticism, even (or especially) when faced with numbers that seem to support our biases.
Precisely the question being dealt with in California. By court order thousands of prisoners are being released in the state, referred to in a rather Orwellian fashion as criminal justice realignment. What have the results been?
Of course this only covers a single year and only those who were actually caught. Perhaps as a side effect there was some reduction in the expense of incarceration? No.
There is certainly an argument to be made that many non-violent offenses are given excessive prison sentences, but the large scale release of prisoners who are simply going to reoffend is not an optimal solution.
The rigorousness by which the Justice Department has reviewed cases is paramount, did they correct genuine miscarriages of justice? Or will 3000+ of these prisoners end up right back behind bars?
Good post. But they are not completely wrong.
Yes, we should be putting fewer people in prison. But the solution is not to undo or shorten punishments already in progress, nor to turn a blind eye to non-violent crimes.
First, deregulate and repeal many laws. When even the best lawyers don’t know half and every citizen is in violation of something, we have too many laws.
Second, stop using imprisonment as punishment for every crime. Start incorporating shorter, cheaper sentences like corporal punishment. Briefly hurting someone is much more humane than locking him in a concrete cage for years, away from every good influence; and often more effective for people who focus on short-term pleasure and pain.
There are reasonable steps that can be taken without giving convicted felons a pass.
That the war on drugs is crazy does not mean we should let drug dealers go free. One doesn’t acquire perch in the business by being non violent. That the only evidence is possession isn’t evidence of non violence. The issue is serious and requires serious people if there are any.
Personally I feel the best social program to help the poor is to get (and keep) the criminals off the streets. People in all neighborhoods deserve the chance to send their kids to school without having to encounter drug dealers. They deserve the chance to walk to the store without being robbed. In short they deserve the opportunity to raise their families in a safe environment so their kids grow up to be honest, productive people. If that happens, then may be we will have less need for prisons in the future.
Drug dealers may be non-violent, but guns and clubs aren’t the only things that can ruin people’s lives. Pills and needles do a pretty good job of it too.
Such a worry wart! They’ll apply the same rigorous screening process as they’ve been using for aliens coming from Mexico, Central America and now Syria. sarc/
What harm would come to society from this:
We release everyone convicted of drug possession, prostitution, gambling, and other offenses where no other human was injured or lost property.
I can certainly see the savings.