The cool kids in public policy circles these days are all about “criminal justice reform.” Their most immediate cause célèbre is the passage of the Sentencing Reform and Corrections Act of 2015 (S.2123) [my analysis on the old version can be viewed here]. While we’ve covered this issue from many angles in the past, I felt a need to summarize the basic problems with its entire premise, as well as the specific legislation that, barring an outcry from the public, will come to the House and Senate floors this spring.
Astoundingly, some Republicans are trying to make the case that this is really part of a conservative agenda. Here is a list of talking points from their playbook to allure conservatives into supporting this bill and the broader effort in regards to criminal justice “reform.”
Myth # 1: The prison population keeps growing even though crime is declining.
The D.C. intelligentsia argues our criminal justice system is in dire need of reform. But ask anyone outside the beltway, and they’ll give you a different definition of “broken.” Many Americans would agree that current laws are too lenient on criminals and disregard the victim all too often. It was the tough reforms put into place during the Reagan years and in the ‘90s that produced the sharpest decline in violent crime on record. Those reforms, coupled with more aggressive policing, led to the only positive social trend in public policy in recent memory. That trend is now being reversed precisely as incarceration rates decline and Obama and his allies ratchet up the war against law enforcement. While correlation doesn’t necessarily prove causation, the correlation is indeed striking, and in conjunction with the defanging of local police departments, the release of tens of thousands of federal prisoners can only result in exacerbating this negative trajectory.
The sentencing aspect of our criminal justice system is not broken. What is broken is the legal profession that exploits existing loopholes to plead down a number of serious charges and endanger society. Add in the revolving door and recidivism of criminals, especially for juveniles who all too often receive a slap on the wrist, and you get a criminal justice system that is more lenient on criminals than it should be. There are major issues with the collapse of the civil society, but incarceration didn’t precipitate that societal collapse; it is merely a reflection of the collapse. There are countless violent criminals who are not in prison thanks to the legal profession.
Let’s examine history: Violent crime began exploding in the ‘60s, rising from 161 violent crimes per 100,000 people in 1960 to 597 in 1980. It was around this time that the prison population began rising sharply, but mainly on a state level. The federal mandatory minimum laws pushed by President Reagan were implemented in 1984 and 1986. There is always a lag time between the rise in incarceration and the drop in crime, but the correlation is striking. Violent crime kept rising for another decade, topping out at 758 in 1991 before the fever finally broke. But the years of tougher sentencing finally paid off. Crime dropped like a rock for two decades and stood at 376 per 100,000 people in 2014. While that is a dramatic drop, it is still historically high and has not erased the full growth in crime that began in 1960. But the important question is where the trajectory is headed. While crime has consistently dropped through 2014, there are signs of a turnaround. At the same time, incarceration peaked about eight years ago and has steadily gone down both on a state and federal level.
Also, further portending a downward trajectory of incarceration in the coming years, according to the Transactional Records Access Clearinghouse (TRAC), federal prosecutions have dropped 25.4 percent from November 2010 through November 2015.
Hence, the pattern is continuing. The spike in crime precipitated the rise in incarceration, which helped decrease crime. Now that the prison population is decreasing, with another 46,000 federal inmates (one-fourth of the entire federal prison population) and countless state inmates slated for early release over the next year or two, it would not be surprising if we experience another era of rising crime. Either way, the notion that we could just revert to pre-1980 incarceration levels without first healing our broken and violent society is plain suicide.
Myth # 2: There are millions of people incarcerated in American prisons for no good reason.
While there are approximately 1.5 million people incarcerated in American jails, prisons, and other institutions, only 195,900 are federal inmates (a ten-year low). And only 159,000 in the federal system are housed in actual prisons. The rest are in privately managed facilities, home confinement, short-term detention, long-term boarders, residential reentry centers, pre-trial/pre-sentence holding, etc. At least 25% of the federal prison population is comprised of illegal aliens and possibly more who are noncitizens. We should save money by releasing those criminals and deporting them. It is extremely misleading to conflate state numbers when promoting federal legislation dealing with the federal criminal code and the federal prison population. Moreover, as this is being written the Justice Department is already in the process of releasing over 46,000 federal prisoners in one of the largest prison releases in American history, even without this legislation. This comes on the heels of several waves of releases since 2007, which has engendered a steady drop in the federal prison population.
Incidentally, the two decade-long drop in violent crime is showing signs of reversing as jailbreak initiatives succeed throughout the country. In the nation’s 25 largest cities, the murder rate jumped 14.6% in 2015, which is the largest single-year spike since 1960, according to the left-leaning Marshall Project.
That Republicans would be promoting legislation to release many of the remaining 150,000 of the most hardened federal criminals by using the talking point of mass incarceration is dishonest, illogical, and irresponsible.
And as for the 1.3 million in state and local prisons, only 15.7 percent have been convicted on drug charges and 75% of those are for trafficking, not possession. Thus, just 3.6 percent of the total state prison population is comprised of individuals convicted for simple drug possession.
Further, the entire notion of focusing on the prison population instead of protecting society and decreasing crime is inherently a far left principle. Sure, we have a lot of people in prison, but there are even more criminals left on the streets. That is because we have systemic social problems in this country. As Heather MacDonald noted last year in her testimony before the Senate Judiciary Committee, “the U.S. homicide rate is seven times higher than the combined rate of 21 Western nations plus Japan.” This needs to be dealt with at the systemic level instead of treating the symptom by letting everyone out of jail and endangering the public.
Myth # 3: Incarceration costs so much money and criminal justice “reform” will save billions.
While incarceration costs have grown with the increase in the prison population (which is already on a downward trajectory), how much money have we saved as a society from the massive decrease in violent crime corresponding with the same time period? Jeffrey L. Sedgwick, former Director of the Bureau of Justice Statistics, wrote in the Washington Post in 2008:
The cost of new crimes goes beyond prisons. The most conservative estimate for the cost of violent and property crimes in the United States is $17 billion a year — and that’s just direct, immediate cost. This leaves out such costs as crime victims’ struggle to be made whole.
In April, during National Crime Victims’ Rights Week, the Senate passed a resolution including this very finding from Sedgwick. Even CBO admitted that an earlier version of the bill would have increased the deficit on net by $1 billion.
Just look at the effects of California’s Proposition 47, which reduced penalties retroactively for drug and property crimes and led to the release of 30,000 criminals. According to a new report, California wound up spending $2.2 billion more on prison costs per year. At the same time, violent crime spiked by 12.9 percent and property crime rose by 9.2 percent in California’s largest cities. Shoplifting is now rampant in the Golden State. And remember, state convicts are on average not as violent as those sitting in federal prisons.
The reality is that the recidivism of criminals not only costs human lives; its fiscal costs outweigh the price tag of incarceration: In the 2011 case, Brown v. Plata, the Supreme Court upheld an activist lower-court mandate that California reduce its inmate population to alleviate overcrowding. Justice Samuel Alito dissented due in part to public-safety concerns, citing a prisoner-release program carried out in Philadelphia in the 1990s.
Although efforts were made to release only those prisoners who were least likely to commit violent crimes, that attempt was spectacularly unsuccessful. During an 18-month period, the Philadelphia police rearrested thousands of these prisoners for committing 9,732 new crimes. Those defendants were charged with 79 murders, 90 rapes, 1,113 assaults, 959 robberies, 701 burglaries, and 2,748 thefts, not to mention thousands of drug offenses. [Brown, (Alito, J., dissenting, slip op. at 14)]
Myth # 4: This bill will only release low level, non-violent drug offenders.
This is one of the biggest falsities of the leniency industrial complex (as Sen. Grassley used to refer to them before he became one of them). This bill will retroactively release thousands of hardened criminals, many of whom are illegal aliens. In fact, it doesn’t address simple possessions at all. Those in the soft-on-crime caucus are dishonestly conflating state reform efforts dealing with simple marijuana possession with high-level federal offenses. They want to give the impression that there are thousands of people rotting in federal prison for simply smoking a joint. These politicians are well aware of the fact that those serving time in federal prison on drug offenses are either illegal aliens or big time traffickers of large quantities of dangerous drugs, including cocaine, meth, and heroin.
Consider the following:
- According to data from the U.S. Sentencing Commission, as of March 2016, there were 514 federal inmates serving a sentence for “simple possession,” of which 95.5% are non-citizens — meaning only 24 U.S. citizens are serving federal sentences for simple possession, and many, if not all, likely involved more serious charges that were pled down.96.7% of all “simple possession” defendants were sentenced in the southwest border districts — virtually all in Arizona. No mandatory minimum penalty applied in any of these cases, and the median sentence was 6 months. The median weight of the drugs involved in the border district cases was 21,700 grams, or approximately 48 pounds. This demonstrates that these individuals were not simple possessors or users, but rather traffickers convicted of lesser charges. Even on a state level, as noted above, drug possession accounts for only 3.6% of state prisoners in light of recent efforts to go soft on drug possession on multiple fronts.
- Only 17 possession cases were sentenced in non-border districts; of those, a mandatory minimum penalty applied in only 8 cases, and the median sentence was 24 months.
- In FY 2015, 52.7 percent of those sentenced for federal crimes were Hispanics, even though blacks account for 52% of violent crime in the country. This indicates that much of the problem with the federal prison system is related to immigration.
- Many of those convicted on drug charges have plead down to lesser charges but have been involved in violent crime. There is a reason increased incarceration has contributed to at least 25% of the two-decade long reduction in crime. A relatively small population of criminals commit most of the crimes and by locking them up for drug trafficking, these same individuals predisposed to commit violent crimes were taken off the streets.
- Under current law, there is a “safety valve” that has allowed 80,000 convicted drug offenders to escape the mandatory minimums. In FY 2014, 28.5% of all drug trafficking offenders escaped the mandatory minimum via the safety valve. This is why the length of time for drug sentencing is already shrinking across the board. Those remaining in federal prison today under the mandatory sentencing guidelines are undoubtedly hard-core criminals with longer rap sheets.
- According to a report released last year by the Bureau of Justice Statistics, 76.9% of drug offenders who were released from prison in 30 states from 2005-2010 were arrested again within five years. One can only imagine the effect of releasing felons from federal prison who are, on average, more violent than those in state prisons.
Myth # 5: We have a big government culture of over-criminalization that threatens liberty.
Absolutely. There are plenty of frivolous regulatory crimes on the books. And none of that is addressed in this legislation or in any of the ongoing “bipartisan” negotiations. This is all about promoting the ACLU’s agenda for hardened criminals. As it relates to our culture of violent crime, witnessed by the recent spike in crime across the nation, we do not do enough to combat it. Ordered liberty is built upon government doing a few things well, one of which is law enforcement. Returning to pre-Reagan crime levels where people are restricted in their movements and activities due to the paralysis we are now seeing in places like Baltimore, represents the highest level of tyranny. Crime, lawlessness, and fiscal dependency policies undermine liberty in the inner cities, not sentencing and incarceration.
Myth # 6: Drug laws disproportionately hurt blacks.
The number of blacks serving in prison for drug trafficking is as disproportionately high to the white population as it is for other violent crimes. The reality is that predominantly black inner cities are riddled with violent crime and drugs and are merely one symptom of the problem. Once again, the goal here should be to address the root cause of the problem instead of treating the symptom.
Even if you release all drug offenders in state prisons, the percentage blacks comprise of the prison population would decrease from 37.5% to 37%. According to IBD’s analysis of the BJS statistics, “Blacks under 18 account for just 23% of the nation's drug offenses, but a shocking 52% of all violent crime — including 51% of murders, 69% of robberies, 34% of rapes and 43% of aggravated assaults.”
Moreover, the trajectory of incarceration by race is headed in the other direction. According to Professor Keith Humphreys, since 2000 the imprisonment rate for black females has dropped by 47 percent while the rate among white women has increased by 56%. Incarceration of black males has declined by 22% over the same time.
Besides, focusing on outcomes as opposed to equality of actions and opportunity should be a nonstarter with conservatives and libertarians. The sad reality is that drugs and incarceration are symptoms of the violent crime problem we have in this country, and in the black community in particular. Black victims will be the most harmed by the dismantling of more aggressive policing, tougher sentencing, and more incarceration.
Myth # 7: Criminal justice reform promotes federalism.
One of the more attractive libertarian arguments is that the federal government shouldn’t be involved in criminalizing drugs and should devolve it to the states. We can have that debate, but that is neither the discussion of this bill nor the broader effort it belies. This bill keeps the feds involved in all aspects of drug laws; it merely lets those who have already been convicted out of jail without devolving responsibility to the states. The goal of this bill is not to prospectively clean up the federal criminal code but to focus singularly on reducing prison population retroactively at any cost.
Meanwhile, Congress is completely ignoring Obama’s violation of federalism by ignoring his racist investigations of local police departments. In fact, Congress has given Obama’s federal power grab tailwinds by creating a $50 million slush fund for the DOJ to help defang the police with a carrot and stick approach to hands-off policing. The pending legislation is full of social engineering interventions at the federal level encouraging states to decrease their prison population across the board.
Myth # 8: We don’t need mandatory sentencing to get criminals to cooperate.
During the hearing on this bill last year, a number of the Democrat and Republican proponents suggested that there are other ways to pressure criminals from cooperating with authorities other than mandatory minimums. But once again, this is all rooted in their unflinching trust in liberal judges. There is simply no way to deter criminals without mandating a floor for sentencing that cannot be manipulated by the legal profession.
Republican supporters of this bill willfully ignore the lessons of the ‘60s and ‘70s with liberal judges.
Myth # 9: This bill doesn’t repeal mandatory minimums, it just gives more discretion to judges
Sections 102 and 103 repeal the mandatory minimums by expanding the current statutory safety valve and creating an entire new one for judges to use. As if this weren’t enough, both sections include a “judicial waiver.” So if a defendant’s criminal history is so serious that he is excluded from even the now massively expanded safety valves, the judge can disregard his criminal history if the judge believes thinks it “overrepresents the seriousness” of his past crimes. This argument is reminiscent of those proponents of amnesty who would extol the virtues of illegal immigration and amnesty, then proceed to passionately deny their bill was indeed a form of amnesty. It also mirrors the framework of the Gang of Eight bill, wherein every seemingly strict rule and requirement was followed by a broad grant of discretion to the Secretary of Homeland Security to waive it. By definition, a mandatory minimum supersedes liberal discretion of a judge. By no longer making it mandatory for a number of categories, there is no enforcement mechanism. Sure, a judge could theoretically still issue the same sentence, but that is no longer a mandate. Republican supporters of this bill willfully ignore the lessons of the ‘60s and ‘70s with liberal judges.
Myth # 10: The war on drugs failed and is stupid, so as long as this is about drug sentencing, I don’t care.
Reality: This is where understanding of the broad politics behind this effort and where it is headed is just as important as examining the first piece of legislation. Much like with immigration, the lead messaging from the Alinsky left revolves around an area of broad consensus. The lead messaging ship in the amnesty armada was, “Do you want to deport valedictorians attending Ivy League schools?” In this case, the first bill is messaged as tearing down “draconian” drug sentences. But if you look broadly at where the left is headed with this effort, and yes, it is the Left steering this ship – not conservatives and libertarians – they seek to dismantle the entire tough on crime regime that has led to the miraculous decline in crime. From the Justice Department’s plan to ban the use of the word “felon” to Obama’s effort to block inquiries into ALL criminal records for job applications and rentals of private landlords, the sentencing bill is merely the down payment on going soft on all areas of law enforcement.
Anyone who thinks this will end with drug laws is not paying attention to the players on the field. And ultimately, this is about getting felons to vote and creating a permanent Democrat majority, which will make it impossible to implement any other libertarian priority.
What should scare people the most is that S. 2123 and its House companions are just a down payment on dismantling law and order in this country – the first ship out to sea. And it is the least offensive version of what we might expect to come. Just like with immigration, they introduce their agenda with many tough-sounding caveats and talking points: amnesty will only apply to those as pure as the wind-driven snow, they will have to pay taxes, learn English, assimilate, etc. Likewise, in this case they are beginning with messaging pertaining to so-called nonviolent drug offenders. But once these policies are operational and the general sense of liberalization reigns supreme in the courts, this will open the floodgates for the much broader ACLU agenda.
With the tide of crime rising throughout this country, isn’t it time to ask: Where is the safety valve for law abiding Americans from this broader effort to coddle criminals?