In this recent trio of articles arguing the merits or not of a current criminal justice reform bill, much is revealed.
A very good tutorial on the issues.
#1) Here is an excerpt from the first, from Real Clear Policy.
In a push to overcome the rancorous partisan tenor of Washington, D.C., a group of lawmakers in Congress and the White House have come together to change sentencing laws at the federal level. Unfortunately, to garner support for their proposals, these lawmakers — including Senator Mike Lee (R-Utah) and Senator Dick Durbin (D-Illinois) — rely on a series of pernicious myths about incarceration.
The men and women behind these myths are not pernicious; they are earnestly seeking solutions to a real problem. But they’re imagining more problems than they’re solving. And they’re misleading the American people about the need for criminal justice reforms along the way.
Myth #1: The U.S. engages in “mass incarceration,” incarcerating the most people in the world.
In October 2015, Vermont Senator and presidential candidate Bernie Sanders said, “Today in America, we have more people in jail than any other country on Earth.”
This isn’t true. The data used by organizations such as the United Nations and the World Prison Population Brief (WPB) rely on self-reporting from other countries. But, as criminologists Harry Dammer and Jay Albanese point out, “many countries simply fail to respond truthfully or competently to inquiries about prison populations.” Autocracies and kleptocracies simply do not report accurate or useful data.
What’s worse, organizations like WPB sometimes misreport the data themselves. For example, according to WPB — which is cited by the recent report on criminal justice from White House’s Council of Economic Advisors — the U.S. State Department estimates the total North Korean prisoner population to be between 80,000 and 120,000 people. But that’s not what the State department says. That figure is for political prisoners only; it does not include anyone incarcerated for any other reasons.
As Hammer and Albanese point out, where there is genuine disparity in the incarceration rate between the U.S. and other countries around the world, the most likely reason is two-fold: the U.S. is more violent than most other developed nations, and it possesses a well-functioning and honest criminal justice system.
#2) Here is an excerpt from the second, from National Review.
There’s no reason to exaggerate the need for it; the true state of affairs is bad enough.
For all public-policy ideas, there are good arguments and there are bad arguments. The bad arguments sometimes carry flash and sizzle, but they should be resisted. Criminal-justice reform — an issue many prominent conservatives have begun to champion — is particularly rife with bad arguments, but that is no reason to ignore the good ones. In a recent piece in RealClearPolicy, the conservative writer Sean Kennedy expertly filleted some of the worst arguments made by overzealous criminal-justice reformers on both the left and the right. But his takedown was not an argument against thoughtful reform efforts that have improved public safety, saved taxpayer dollars, and advanced individual dignity.
Kennedy, for example, attacked the frequently repeated claim that “America has the highest incarceration rate in the world.” Sensible advocates know it is difficult to say whether this is true. Data on world incarceration rates is self-reported, and authoritarian regimes always report prison populations that are much lower than those in the United States. These figures are hard to trust, and so comparisons with these countries are of limited value.
The U.S. incarceration rate can, however, be compared to rates in countries with more accountable governments, and especially to countries with similar legal and cultural traditions.
For instance, in England and Wales, the fount of the American legal tradition, 147 out of every 100,000 individuals are incarcerated. In Canada, the figure is 114 out of every 100,000. In Australia, which was settled as a penal colony, the figure is 152.
In the United States, meanwhile, a staggering 693 out every 100,000 people are in jail or in prison.
#3) Here is an excerpt from the third, from National Review.
The truth about the Sentencing ‘Reform’ Act is scary, and not a reason to support it. Vikrant Reddy of the Charles Koch Institute is an able and articulate champion of a certain set of changes to our broad criminal-justice system, but his eloquence is no excuse for his comrades-in-arms to misuse data and misinform the public and lawmakers. Mr. Reddy’s gracious and thoughtful response to my original critique of the myths used to push criminal-justice reform misses a few key points.
Reddy does something that many advocates across the political spectrum do too often on a number of issues: He conflates the proposal at hand — the federal Sentencing Reform and Corrections Act (S. 2123) — with a series of other related but not necessarily comparable law changes.
In plain terms, the Grassley-Lee-Durbin-Cornyn-Booker bill before the Senate does three big things: (1) It reduces mandatory minimums for certain federal drug and gun crimes, (2) it allows for early release of certain convicted federal criminals (including non-citizens), and (3) it calls for studies of, and directs the eventual implementation of, techniques for recidivism reduction (that is, reducing the odds that prisoners will commit new crimes after their release).
There are a few other minor provisions about enhanced penalties for the drug du jour (fentanyl) and juvenile-justice changes, but the three main provisions are the real meat of the bill. Let’s consider each one in turn.
Mandatory Minimums Are for Real Bad Guys
The scourge of conservative Right on Crime groups, such as Reddy’s Charles Koch Institute and the left-of-center “end mass incarceration” crowd, is mandatory minimum sentencing. Largely put in place in the 1980s and 1990s, these laws require judges (or juries) to impose fixed-length sentences on prisoners convicted of certain crimes.
The federal statutes in question were particularly focused on drug or gun-crime offenders, with harsh penalties for repeat offenders, kingpins, and actions that involve violence or result in death or bodily harm. The reason is simple: Judges in those decades were routinely letting serious offenders off with lenient sentences that the people’s representatives in Congress, in the states, and in the neighborhoods most affected by drug and gun violence fundamentally disagreed with.
Who are they? Drug traffickers, child pornographers, felons in possession of a firearm. According to the U.S. Sentencing Commission, less than 24 percent of offenders were subject to federal mandatory minimums in 2014. Of those sentenced to mandatory minimum penalties, 68 percent were in for drug trafficking, and most of the rest were in for guns (15.2 percent) or child porn (7.9 percent). Just the kind of folks you want walking the streets.
As I already pointed out, a tiny fraction of current federal prisoners are serving sentences for drug possession (1/10th of 1 percent). The remainder of the drug offenders — who are largely the class that would be eligible for relief from mandatory minimums and early release — are mostly pretty bad people engaged in drug trafficking, manufacture, transport, and dealing in dangerous drugs (not marijuana), who have ties to gangs and cartels.
Per the 2009 Sentencing Commission data, wholesalers, manufacturers, managers/supervisors, organizers/leaders, importers/high-level suppliers, and repeat offenders combined account for 53 percent of all drug offenders in federal prison.
And that’s just what they were convicted of on final sentencing — not what they actually did. As a friend who is an assistant U.S. attorney in a border state who prosecutes these cases notes:
“Federal drug cases, by their very nature, involve distributable quantities of drugs, and mandatory minimums only apply to the two-highest categories of quantity (“A-level” and “B-level” offenses). What often goes unreported is that first time, low-level offenders who admit their guilt are, by law, not subject to mandatory minimums through a doctrine called “Safety Valve” (18 U.S.C. § 3553(f)). Also, those with a more serious criminal history can avoid mandatory minimums by rendering assistance to the government, known as “5K cooperation,” so law enforcement can go after kingpins and bigger suppliers. Without mandatory minimums, there simply isn’t the same incentive for cooperation. So when the public hears about somebody who is facing a mandatory minimum, what’s often left unreported is that it isn’t the offender’s first rodeo. By definition, they are dealers, not simple possessors, moving significant quantities, and either have a serious criminal history or are leaders or organizers of criminal groups.”