As usual, the conservative wins again, as this article in Claremont Magazine reports.

An excerpt from conservative Joseph—after the introductory paragraph—being the more accurate.

In the Summer 2017 CRB, Joseph M. Bessette reviewed Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, by John Pfaff. We’re glad they have agreed to persue questions about the effectiveness of U.S. incarceration policy in reducing crime. John Pfaff is a Professor of Law at Fordham Law School. Joseph Bessette, a long-time CRB contributor, is the Alice Tweed Tuohy Professor of Government and Ethics at Claremont McKenna College.

Joesph: Let me begin by returning the compliment to John Pfaff for his reasoned response to my somewhat critical review of his work Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform. He makes a variety of interesting points, drawing on issues debated within the criminal justice literature. Unfortunately, he attributes to me positions regarding clearance rates and recidivism that I did not take in my review and he then devotes much of his response to attempting to refute these positions. More significantly, he avoids the central element of my critique by failing to detail the kinds of large-scale reductions in punishment that he calls for in his book for both nonviolent and violent offenders.

Pfaff describes my position as follows: “Summarizing quickly, Bessette’s pragmatic argument for prisons rests on a few, straight-forward points: (1) we have a lot of crime, violent crime in particular; (2) our clearance rates—the rates at which people are arrested for crimes—are low, requiring us to be harsh to those we do punish; and (3) the recidivism rates of those we release from prison are high, demonstrating the need to keep them locked up for longer periods.” While Pfaff is correct on point (1), I did not take the positions he attributes to me in points (2) and (3).

Let’s start with his second point on “clearance rates.” Clearance rates refer to the percentage of crimes that result in an arrest or are “cleared” in some other way, such the death of the offender in a gunfight with the police. If the police have “solved” the crime—even if they arrested someone who is later acquitted—the crime is considered “cleared” in the FBI statistics. Here is what I said about arrest rates, or clearance rates, in my review: “Of course, not all criminals are arrested. For some of these serious crimes arrest rates are shockingly low: just 29% for robbery and 13% for burglary.” That’s it. But for this brief mention, my entire argument focused not on those who get away with their crimes, but on those whom the police arrest and courts convict. Indeed, my very next sentence was “Yet, altogether, police made over 10 million arrests in 2015, 1.5 million for violent crimes (including misdemeanor assaults).”

Nowhere in the review did I argue that low clearance rates call for “harsh” punishment. (Indeed, I did not advocate “harsh” punishment on any grounds.) I do not believe that the burglars we catch should be punished more harshly because so many others get away with the same crime. (Note that although no one is arrested in 87% of the burglaries in the United States, it does not follow that 87% of burglars are never arrested for burglary. Burglary is a classic recidivist crime, and the more burglaries a criminal commits the more likely he is eventually to be arrested.) The burglars we do arrest and convict should be punished as much as they deserve for the crime(s) for which they were convicted adjusted by considerations of prior record.

It is, rather, the pure deterrence theorist who might argue that low clearance rates should be counteracted by longer sentences. After all, a rational burglar will compare the likely take from a burglary against the average “cost” he might pay for his crime, such as days incarcerated in jail or prison. Pfaff’s book dismisses the deterrent effect of longer sentences, but surely at some point sentence length matters if criminal punishment is to deter at all. If, say, a state reduced the maximum sentence for burglary from several years in state prison to a few weekends in local jail, is it plausible that burglaries would not increase? Prosecutors like Mike Hestrin in California’s Riverside County have been arguing that this is precisely the effect that new laws in California have had in sending convicted offenders, who used to go to state prison for at least a year, to local jails instead, where overcrowding results in just weeks or even days behind bars. He tells the story of “a known thief who had been stealing from the merchant’s store was caught stealing again and working a calculator on his phone. The arresting officers found out the thief had been adding up what he was stealing to make sure he was not taking more than $900 in merchandise so, if caught, he would only be charged with a misdemeanor, no matter how [many] times he was caught.” The result: a few days in jail and virtual impunity to steal again. As we will see, Pfaff’s proposal to bring U.S. incarceration rates more in line with those in Europe will effectively sweep all non-violent offenders from our prisons and jails, as well as many violent offenders.

What, then, of Pfaff’s third point on recidivism? Once again, my discussion was very brief and did not draw the conclusion that high recidivism rates “demonstrat[e] . . . the need to keep [prisoners] locked up for longer periods.” I introduced recidivism rates to raise a caution about a key argument in Pfaff’s book: “For almost all people who commit violent crimes, . . . violence is not a defining trait but a transitory state that they age out of. They are not violent people; they are simply going through a violent phase.” Now, since the context of the discussion is all about incarceration, Pfaff seems here clearly to be discussing violent offenders in prison – that is, the one-half of all state prisoners who were convicted of murder, rape, robbery, or aggravated assault. Unfortunately, Pfaff does not tell us what he means by “defining trait,” what period of time constitutes a “transitory state” (5 years, 10, 15, 20?), nor at what age “almost all people who commit violent crimes” cease to become dangerous. It is no surprise to anyone that criminals with a history of violence are less dangerous in their 60s and 70s than they were in their 20s. But this is not Pfaff’s point; for he gives us some indication of when the aging effect kicks in: “someone who acts violently when he’s eighteen years old may very well be substantially calmer by the time he’s thirty-five.”

Using this as a guide, I presented in my review the best recidivism data we have for inmates released from state prisons. And what I reported was that “fully 69% of those at least 40 years old at the time of release were arrested for a felony or serious misdemeanor within five years—not much lower than the 77% for all offenders. The aging effect, apparently, does not turn most hardened criminals into law-abiding citizens, though it may slow them down a bit.” In his response to my review Pfaff rightly notes that I overlooked a table early in the detailed recidivism report by the Bureau of Justice Statistics (BJS) (tracking state inmates released in 2005) that presents age-related data on rearrests for a violent crime. I thank Pfaff for correcting my oversight since the data I did not report strengthen my case. Here are the 3-year arrest rates for a violent crime by age of the inmate when released:…

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