On, among other things, the myth that US prisons are full of non-violent drug offenders:
Decriminalization Delusion (2015)
"There is but a “fine line between president and prisoner,” the paper noted. Anyone who “smoked marijuana and tried cocaine,” as the president had as a young man, could end up in the El Reno Federal Correctional Institution, according to the Times.
This conceit was preposterous. It takes a lot more than marijuana or cocaine use to end up in federal prison. But the truth didn’t matter. Obama’s prison tour came in the midst of the biggest delegitimation of law enforcement in recent memory. Activists, politicians, and the media have spent the last year broadcasting a daily message that the criminal-justice system is biased against blacks and insanely draconian. The immediate trigger for that movement, known as Black Lives Matter, has been a series of highly publicized deaths of black males at the hands of the police. But the movement also builds on a long-standing discourse from the academic Left about “mass incarceration,” policing, and race...
At the state and city levels, hardly a single criminal-justice practice exists that is not under fire for oppressing blacks. Traffic monitoring, antitheft statutes, drug patrols, public-order policing, trespass arrests, pedestrian stops, bail, warrant enforcement, fines for absconding from court, parole revocations, probation oversight, sentences for repeat felony offenders—all have been criticized as part of a de facto system for locking away black men and destroying black communities.
There may be good reasons for radically reducing the prison census and the enforcement of criminal laws. But so far, the arguments advanced in favor of that agenda have been as deceptive as the claim that prisons are filled with casual drug users. It is worth examining the gap between the reality of law enforcement and the current campaign against it, since policy based on fiction is unlikely to yield positive results...
The “real reason our prison population is so high,” he said to applause, is that we have “locked up more and more nonviolent drug offenders than ever before, for longer than ever before.” This assertion is the most ubiquitous fallacy of the deincarceration movement, given widespread currency by Michelle Alexander’s 2010 book, The New Jim Crow. That a president would repeat the myth is a demonstration of the extent to which ideology now rules the White House.
Pace Obama, the state prison population (which accounts for 87 percent of the nation’s prisoners) is dominated by violent criminals and serial thieves. In 2013, drug offenders made up less than 16 percent of the state prison population, whereas violent felons were 54 percent of the rolls and property offenders, 19 percent...
True, drug traffickers make up a larger (though declining) portion of the federal prison population: half in 2014. But federal prisons hold only 13 percent of the nation’s prison population. Moreover, it is hardly the case that “but for the grace of God,” as Obama put it, he could have been incarcerated in Oklahoma’s El Reno for getting stoned as a student. Less than 1 percent of sentenced drug offenders in federal court in 2014 were convicted for simple drug possession, according to the U.S. Sentencing Commission, and most of those convictions were plea-bargained down from trafficking charges. Contrary to the deincarceration movement, blacks do not dominate federal drug prosecutions. Hispanics were 48 percent of drug offenders sentenced in federal court in 2013, blacks were 27 percent, and whites 22 percent.
Even on the state level, drug-possession convicts are relatively rare. In 2013, only 3.6 percent of state prisoners were serving time for drug possession, often the result of a plea bargain, compared with 12 percent of prisoners convicted for trafficking. Virtually all the possession offenders had long prior arrest and conviction records...
Nor is it true that rising drug prosecutions drove the increase in the prison population from the late 1970s to today. Even during the most rapid period of prison growth—from 1980 to 1990—violent prisoners accounted for 36 percent of the rise in the state prison population, compared with 33 percent from drug offenders. (See “Is the Criminal-Justice System Racist?,” Spring 2008.) From 1990 to 2000, violent offenders accounted for 53 percent of the census increase and all of the increase from 1999 to 2004.
Obama and other incarceration critics have targeted mandatory minimum sentences for federal drug crimes. The current penalty structure is hardly sacrosanct, but mandatory sentences are an important prosecutorial tool for inducing cooperation from defendants. The federal minimums are also not lightly levied. A ten-year sentence for heroin trafficking, for example, requires possession of a kilogram of heroin, enough for 10,000 individual doses, with a typical street value of at least $70,000. Traffickers without a serious criminal history can avoid application of a mandatory sentence by cooperating with investigators. It is their choice not to do so.
The critics of “mass incarceration” love to compare American incarceration rates unfavorably with European ones. Crime is inevitably left out of the analysis. Jeremy Travis and Nicholas Turner, head of the John Jay College of Criminal Justice and the Vera Institute, respectively, penned a classic treatment of this theme in the New York Times in August 2015. Germany’s incarceration rate is one-tenth that of the U.S., they fumed. “To be sure,” they acknowledged, “there are significant differences between the two countries.” And might those “significant differences” have anything to do with crime, perhaps with the fact that the U.S. rate of gun homicide is about 17 times higher than that of Germany? Of course not. No, for Travis and Turner, the key difference is that “America’s criminal justice system was constructed in slavery’s long shadow and is sustained today by the persistent forces of racism.” The same people who denounce American gun violence and call for gun control in a domestic context go silent about gun violence when using Europe as a club to cudgel the American prison system. The U.S. homicide rate is seven times higher than the combined rate of 21 Western developed nations plus Japan, according to a 2011 study by researchers of the Harvard School of Public Health and the UCLA School of Public Health...
Contrary to the advocates’ claim that the U.S. criminal-justice system is mindlessly draconian, most crime goes unpunished, certainly by a prison term. For every 31 people convicted of a violent felony, another 69 people arrested for violence are released back to the streets, according to a 2007 Bureau of Justice Statistics analysis of state courts. That low arrest-to-conviction rate reflects, among other reasons, prosecutors’ decisions not to go forward with a case for lack of cooperative witnesses or technical errors in police paperwork. The JFA Institute estimated in 2007 that in only 3 percent of violent victimizations and property crimes does the offender end up in prison.
Far from being prison-happy, the criminal-justice system tries to divert as many people as possible from long-term confinement. “Most cases are triaged with deferred judgments, deferred sentences, probation, workender jail sentences, [and] weekender jail sentences,” writes Iowa State University sociologist Matt DeLisi in a forthcoming issue of the Journal of Criminal Justice... In 2009, 27 percent of convicted felons in the 75 largest counties received a community sentence of probation or treatment, and 37 percent were sentenced to jail, where sentences top out at one year but are usually completed in a few weeks or months. Only 36 percent of convicted felons in 2009 got a prison term. Among convicted violent felons in 2009, 17 percent received community supervision and 27 percent were sentenced to jail, leaving 57 percent on their way to prison...
The vast majority of felony defendants whom a district attorney decides to prosecute rather than divert out of the system have an extensive criminal history, yet were still in the community committing crime. Half of the defendants charged with a felony in 2009 in the 75 largest counties had five or more prior arrests, and 36 percent had ten or more. About three in five had at least one prior conviction, and 30 percent had multiple felony convictions, with 11 percent of felony defendants having five or more previous felony convictions. Yet the majority of those offenders will still not get a prison term. Among those who wind up sentenced to prison, the prior records are even longer. The average number of prior convictions for inmates released from state prison in 2005 was five; the average number of prior arrests was more than ten...
The biggest myth about the criminal-justice system is not that it mindlessly metes out overlong sentences but that the disproportionate number of blacks in prison reflects bias by police, prosecutors, and judges...
Naturally, Obama said nothing about crime rates. It is not marijuana-smoking that lands a skewed number of black men in prison but their elevated rates of violent and property crime. A 2011 study of California and New York arrest data led by Pennsylvania State University criminologist Darrell Steffensmeier found that blacks commit homicide at 11 times the rate of whites and robbery at 12 times the rate of whites. Such disparities are repeated in city-level data. In New York City, blacks commit over 75 percent of all shootings, according to the victims of and witnesses to those shootings, though they are only 23 percent of the city’s population. They commit 70 percent of all robberies. Whites, by contrast, commit under 2 percent of all shootings and 4 percent of all robberies, though they are 34 percent of the city’s population. In the 75 largest county jurisdictions in 2009, blacks were 62 percent of robbery defendants, 61 percent of weapons offenders, 57 percent of murder defendants, and 50 percent of forgery cases, even though nationwide, blacks are 12 percent of the population. They dominated the drug-trafficking cases more than possession cases...
Repeated efforts by criminologists to find a racial smoking gun in the criminal-justice system have come up short. If the prison population were not a reminder of a reality that the political and academic establishment would rather cover up—the black crime rate—it is unlikely that the deincarceration movement would have generated the same momentum. After all, the nearly fourfold rise in the prison population since the early 1980s played a major role in the record-breaking crime drop since the early 1990s. That prison buildup represented a backlash against the anti-confinement ideology of the 1960s and 1970s that had lowered the incarceration rate, as crime was exploding in cities across America. Many of the same alternatives to penal custody that are now being proposed had been put into place in the late 1960s and early 1970s to keep criminals out of prison. But these alternatives lost support as crime spun out of control...
Statistical war continues to be waged over incarceration’s role in the last two decades’ crime decline, with all activists and many academics still denying that incarceration contributed to the crime drop. Given the nonstop pressure from the Black Lives Matter movement, we may be embarking on another real-world experiment testing the relationship between incapacitation and crime. If the country is really serious about lowering the prison count, however, it is going to have to put aside the fictions about the prison population. The legendary pot-smoker clogging up the rolls is long gone, if he were ever there. Cutting the prison population will require slashing the sentences of violent criminals and property offenders (many of whom have violent histories) and keeping more of them in the community after their convictions. The problem is not the “Michelle Alexander story that we have too many harmless people in prison,” says New York University public-policy professor Mark Kleiman. “Most of the problem is that we have too many murderers in prison.” ...
Some deincarceration advocates argue that increased social programs for criminals can significantly reduce the risks of letting offenders out early or not confining them in the first place. We have entered the era of “evidence-based practices,” or EBP, they say. Evidence-based practices are social-services and therapeutic programs delivered to the “at-risk” population that have allegedly been scientifically shown to reduce offending. The EBP movement represents an “embrace of scientific data and expertise” and a “rejection of penal populism and of ill-informed common sense,” writes Stanford University law professor Joan Petersilia. Of course, it was the “expert”-run corrections regime of the 1960s and 1970s that ushered in “penal populism” and “ill-informed common sense,” in response to the ensuing crime wave.
The problem with the EBP movement is that there is not much E for the P. As Petersilia herself acknowledges, few programs have been shown to work. And if a program produces an effect in its initial iteration, that result may not be replicable, especially at a larger scale. None of the six programs evaluated by the Justice Department for prisoner reentry was rated as effective. Two had no positive results, while the efficacy of the others had not been established. The federal government funded a large “collaborative” reentry program for serious and violent offenders. Though “collaborative” is almost as favored a term as “evidence-based,” the program had no impact on employment or the rearrest and re-incarceration rates of the ex-cons.
Even programs concentrating on work may not have lasting effects. Fifty-five percent of ex-offenders placed in government-subsidized jobs in Chicago, Detroit, Milwaukee, and St. Paul had been rearrested two years after the program ended, compared with 52 percent of ex-offenders in a control group who were not placed in jobs, the MDRC found in an evaluation. Twenty-nine percent of the subsidized jobs recipients had been reconvicted two years out, compared with 27 percent of the control group.
Moreover, it is hard to find an offender who has not already been given programs galore, whether “evidence-based” or not...
Other deincarceration advocates are frankly skeptical about programs as a means of reducing the prison population. “To lower the prison population we need to change the penal code,” says James Austin, president of the JFA Institute. “Don’t talk to me about programs. We need to bring sentences back to a rational level.” The advocates even admit that letting prisoners out after a shorter time in prison will lead to more crime, though such acknowledgments rarely make it into the public discourse. But under a cost-benefit analysis, a crime increase may be an acceptable result, if the incarceration savings are put to better uses, they argue—though here, deincarceration advocates seemingly reimport a belief in programs. “If we let everyone out six months earlier, some guy will throw a little old lady off the roof,” says Michael Jacobson, executive director of the Institute for State and Local Governance at the City University of New York...
The costs of prison are comparatively modest, contrary to deincarceration advocates on both the right and the left. The states spent $48.5 billion on corrections in 2010, the last year for which a full breakdown of corrections expenditures is available. Never acknowledged is the fact that more than one-fifth of that amount goes to noninstitutional oversight, such as probation and parole, as well as to training. The amount spent on operating prisons and jails was about $37 billion in 2010. The 2010 budget for the federal Bureau of Prisons was $6.1 billion, bringing total federal and state expenditures on institutional confinement that year to $43 billion. (Groups such as the Koch brothers–supported Coalition for Public Safety regularly claim $80 billion in annual prison spending.) That $43 billion is a small fraction of the $1.9 trillion that the states alone spent in 2010, an outlay dominated by education and welfare payments. In 2011, the states contributed $283 billion to federal means-tested welfare programs like Medicaid and Temporary Assistance to Needy Families cash aid. Los Angeles has proposed a $5.8 billion budget to host the 2024 Summer Olympics, an amount lowballed by several billion. Americans spend $7.4 billion on Halloween, according to the National Retail Federation. By comparison, $43 billion nationally to incapacitate serious offenders seems a bargain.
The costs of uncontrolled crime dwarf $43 billion—or $80 billion. Efforts to estimate those costs inevitably fall short. Immeasurable is the psychological toll of feeling unsafe in your own neighborhood. It is conventional in anti-incarceration circles to dismiss property crime as “nonserious” and an acceptable consequence of lowered law enforcement. But a street experiencing home or car break-ins is under siege, its residents restricted in their freedoms and well-being. Add violence, and the inhibition on lawful civic and commercial activity intensifies. The loss of business-generated wealth and tax revenue in crime-plagued inner-city areas across the country has spurred usually useless government spending to try to jump-start those crime-strangled economies. That spending eclipses prison outlays. The federal Housing and Urban Development agency alone spent $88 billion in 2014 on Community Planning and Development grants to troubled communities...
The current case against incarceration may have been built on multiple fictions, but prison unquestionably is, on average, a squalid, spirit-killing enterprise that can turn borderline offenders into more hardened criminals. (Research is divided on whether incarceration in the aggregate increases recidivism: some studies find increased lawbreaking among ex-prisoners, some studies find no effect, and some find a decrease in recidivism. The impact on future employment and earnings is also contested, with some studies finding no negative effects and others even finding a short-term bounce in employment upon release.) If there were alternatives to arresting and confining criminals that provided the same anticrime benefits, they should be implemented.
California provides a test case for how not to go about deincarceration and decriminalization. In November 2014, voters passed Proposition 47, a ballot measure to reclassify retroactively many drug and property felonies as misdemeanors. All thefts under $950, including of someone’s car or of an illegal gun, or yanking a handbag or laptop from someone’s hands, would now be a misdemeanor, which can be punished, at most, only by time in jail, not prison. In fact, misdemeanor convictions only infrequently yield jail time...
Prop. 47 was sold to voters as a way to remove from offenders the stigma of a felony record and to lower the prison and jail populations, with their attendant racial disparities...
Crime increased immediately after Prop. 47 passed. “We had 10 years of crime reductions,” Los Angeles county sheriff Jim McDonnell told the Associated Press in August, “and all of a sudden, right after November when 47 kicked in that changed and fairly dramatically, very quickly. It would be naive to say that 47 didn’t play a major role in that. . . . People are no longer incarcerated, they’re not in treatment, they’re out reoffending on the street.”...
“I see the effects of 47 every day. People are emboldened,” says Wendell Blassingame, the self-described mayor of San Julian Park (known as “marijuana park”), in the heart of Skid Row. Blassingame is seated at a cardboard table with flyers for social programs, as mentally ill addicts stumble past headed for the park’s picnic tables. Prop. 47 has made it harder to keep order, he says, because police can’t ask the gang members who prey on the local population if they are on parole or probation. It has led to the “WDNC phenomenon: ‘We do not care,’ ” says Blassingame. “People say: ‘What can they do to me?’ Everyone knows they’re not going to prison. Even if they commit a violent crime, the DA may let them plea out. And they’re back on the streets.”
The proponents of Prop. 47 say: not to worry. By 2016, the promised savings from prison and jail diversion will have materialized and been redirected to treatment programs. This reassurance overlooks the fate of another California prison-diversion program, Proposition 36, which has fallen out of official memory. That ballot initiative, passed in 2000, gave nonviolent drug offenders the option of free treatment in lieu of incarceration. One-quarter of defendants who chose treatment never showed up; less than a third who did start treatment completed it. Arrests increased, even among those who completed treatment, according to Angela Hawken, a public-policy professor at Pepperdine University...
California’s experience with Prop. 47 to date suggests that a wholesale downgrading of offenses is a reckless solution to “mass incarceration.” There might be another way to keep people out of prison while also constraining crime, however: tight supervision in the community, accompanied by infallible but modest sanctions for slipping up. A movement known as Swift and Certain (SAC) argues that what changes criminal behavior is not the severity of a punishment—its length—but its certainty and the swiftness with which it is imposed after the offense. Since most criminals have short time horizons, telling them that after six arrests they may face a prison sentence of five years is not as much of a deterrent as telling them that as soon as they offend, they will go to jail, if only for a day or two, according to SAC proponents.
The crown jewel of the SAC movement is the HOPE (Hawaii’s Opportunity Probation with Enforcement) program, developed by Hawaii superior court judge Steve Alm. Alm noticed that probation officers would regularly come into his court seeking to revoke probation for their clients in punishment for repeated meth use, which violated the conditions of their probation. But the probation officer would show up to Alm’s chambers only after the offender had accumulated his sixth or so dirty urine test—at which point, the exasperated officer would announce, in essence: “That’s it, no more Mr. Nice Guy. I’m sending you to prison on your original felony sentence” (which could be five or ten years for such offenses as sexual assault or burglary)...
Alm devised HOPE as a fundamentally different probation regime. Probationers would be randomly tested for drug use six times a month—a more frequent testing regime than usual. At their very first dirty urine, they would immediately be sent to jail for a few days. Other probation violations, such as missing an appointment with a probation officer or skipping out on mandated treatment, would also immediately be sanctioned with a short jail stay. Subsequent violations would bring lengthening jail commitments, ultimately culminating in a probation revocation to prison...
The results were startling. Half of the probationers in Alm’s experimental program never tested dirty for meth again. Another quarter of the experimental population stopped using meth after one trip to jail. Those who continued to use after repeated short stays were ordered into treatment. Arrests for new crimes also dropped in the HOPE population. One-fifth of probationers in the HOPE program were rearrested after a one-year follow-up, compared with nearly half of the probationers in a control group given traditional probation without swift and certain sanctions.
HOPE revealed a previously unrecognized fact: many drug users can stop on their own, without treatment, if the right incentives are in place. Placing all drug offenders in treatment is a waste of resources; a sanctioning regime like HOPE acts as a sorting mechanism to distinguish the drug users who can control themselves from those who can’t—about 9 percent in the original HOPE sample. HOPE is crucially different in that respect from drug courts, which place every enrolled offender in mandated treatment without seeing if he can stop on his own. Drug court should be something you fail into, says New York University’s Mark Kleiman.
HOPE also validated the principle that lengthy punishment is not necessary to change behavior, at least regarding substance abuse; short sanctions can work so long as their application is certain and immediate. The question is how far the SAC principle can go in transforming the criminal-justice system...
Many probation officers take satisfaction in the exercise of discretion regarding punishment; they see an individualized response to each probationer’s situation as a mark of justice. “I give people chances. I am fair,” says an Orange County probation officer proudly. SAC removes that discretion...
The other major alternative to incarceration is policing—above all, pedestrian stops and Broken Windows policing. New York’s prison population dropped 17 percent between 2000 and 2009, while the number of prisoners in the rest of the country continued to rise. The decrease in the New York prison population is all the more surprising, since the average sentence meted out to convicted felons over that period increased considerably, in violation of the deincarceration platform. The different trajectories of the New York and national prison counts reflect the onset, in 1994, of the New York Police Department’s practice of aggressively enforcing quality-of-life laws and stopping and questioning people engaged in suspicious behavior. Misdemeanor arrests in New York City doubled from 1990 to 2009, while felony arrests (and thus, felony convictions) plummeted, as documented by Michael Jacobson and James Austin, in a 2013 study for the Brennan Center for Justice. Even though convicted felons in New York were being sentenced to longer terms, there were far fewer such convicts, so the overall incarcerated population fell. And the reason for that drop in felony crime is that the NYPD was apprehending potential felons for lower-level quality-of-life offenses and getting them off the street before they had the opportunity to commit more serious crimes.
Reasonable-suspicion stops represent an even earlier intervention in potentially serious criminal behavior: questioning someone who looks to be casing a jewelry store in an area plagued by burglaries may prevent a subsequent break-in. And the possibility of getting stopped deters crime in the first place. An NYPD detective who used to work the club scene in midtown Manhattan during the Rudolph Giuliani mayoralty recalls talking to someone who had come into Manhattan from the outer boroughs to party. “We don’t carry guns into Manhattan,” the club goer said. “I’ve been stopped three times since I got off the train.” Now, according to the detective, under the Bill de Blasio mayoralty, “no one is getting stopped and everyone’s carrying.” Of course, the political opposition to policing, especially to misdemeanor enforcement and pedestrian stops, is even more pointed now than the opposition to incarceration.
No matter how effective the police are at deterring crime, there will always be criminals who should be incarcerated. It is a truism that prisons should be safe, orderly, and conducive to self-reform. But that is easier said than done, or it would have happened long ago. Ideally, all prisoners would work, since there is no better rehab program than the discipline and self-esteem that come from regular labor. The larger the prison, however, the harder it is to get the entire incarcerated population productively engaged, since the logistics of moving large numbers of prisoners from cells to a workplace without a violent incident are complex and labor-intensive. Unions fight prison labor as unfair competition. Prisoner advocates complain if prison work is not paid the minimum wage, raising its costs further. Most prisoners, however, if given the choice between earning minimum wage and earning significant time off from their sentence for a flawless work record, will unhesitatingly choose the latter option. High-quality vocational training should also be available for the off hours when prisoners are not working. Such a universal work and training regime would be expensive but may pay off in lower recidivism costs.
In the final analysis, America does not have an incarceration problem; it has a crime problem. And the only answer to that crime problem is to rebuild the family—above all, the black family. The media troll incessantly for an outlier case of a hapless bourgeois who got slammed in prison for a one-shot mistake. In fact, the core criminal-justice population is the black underclass. “Young black males between the ages of 17 and 26 drive the system,” says corrections expert Steve Martin. “Family is the solution—and the work ethic. You show me people with intact families and those folks work—their chances of ending up in prison are zero.”
The demonization of the police and the criminal-justice system must end. As the Black Lives Matter movement marches forward with no apparent diminution of strength, there are signs that the very legitimacy of law and order is breaking down in urban areas. Resistance to lawful police action is becoming routine. Officers are reluctant to engage, given the nonstop campaign against them. Homicides in 35 large U.S. cities were up nearly 20 percent by August 2015. Liberal elites have successfully kept attention focused exclusively on phantom police and criminal-justice racism while squelching even the most nascent discussion of the crime-breeding chaos of inner-city underclass culture. We are playing with fire."
