Bipartisan Push for Criminal Justice Reform Is Misguided

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.

Myth #2: The prison population rose because we starting locking up drug users and other non-violent offenders and throwing away the key.

President Obama told an audience in Chicago in 2015: “Our prisons are crowded with non-violent offenders serving long sentences for drug crimes.”

Mr. Obama’s own Justice Department disagrees. Violent and property crime offenders still make up the highest proportion of offenders in prison, according to the Department of Justice’s own data. Over 53% of state prisoners held in custody in 2013 were there for violent crimes — murder, manslaughter, rape, robbery and assault. Less than 16% were there for drug offenses, 75% of whom were in for trafficking and distribution — not possession.

Federal prisons do incarcerate a higher proportion for drug-related crimes (about 50% of federal prisoners) than the state and local facilities. But that’s a result of how the two systems operate. Murder and rape are state crimes, whereas trafficking large amounts of heroin, for instance, is a federal one. Even at the federal level, it matters what the drug-related crimes are. An astonishing 99.5% of all those incarcerated by the federal authorities for drug offenses are in for “trafficking” — only one-tenth of 1 percent (247 souls in 2012) are in federal prison for possession.

For the most part, we’re locking up drug kingpins, manufacturers, mules, and dealers — predators and pushers that ruin communities — not hopeless addicts or recreational users.

Myth #3: We’re imprisoning millions of people at alarming rates despite falling property and violent crime rates.

In April 2016, the White House’s Council of Economic Advisors wrote that “in recent decades, the U.S. incarcerated population has grown dramatically, despite falling crime rates.”

This is a classic case of statistical sleight of hand. In the White House’s chart, crime since 1980 is way down (52%) while imprisonment is way up (350%). The problem here is that the White House pretends that history began in 1980. If you go further back — to 1960, say, when the Uniform Crime Reporting system began under FBI supervision — the data tell a much different story. The 1960s saw a doubling in the violent crime rate from 161 per 100,000 residents in 1960 to 364 per 100,000 in 1970. It only got worse from there: peaking first in 1980 at almost 600 per 100,000, then dipping before rising again in the late 1980s and early 1990s to an unbelievable 758 per 100,000 in 1992-1993.

The streets of major cities used to be very dangerous places. Fortunately, crime has fallen dramatically again, but America is still significantly more dangerous than it was in 1960 — 233% more violent to be exact.

Crime isn’t way down while imprisonment up; rather, crime remains at elevated levels from its record lows. Furthermore, imprisonment is down both at the federal and state levels as crime has fallen. Although advocates for softer penalties and reduced prison populations argue that high levels of incarceration have a minimal effect on crime rates, few argue that they have none. Other research suggests the opposite: locking up criminals prevents crime.

Regardless of the cause of crime’s decline, none of this justifies peddling falsehoods to push a policy agenda. What we need, instead, is a rigorous, open, and honest debate about the needs of public safety as balanced against the burdens on taxpayers and the burdens of offenders themselves on our criminal justice system.

True reform isn’t meting out mercy instead of justice but rather ensuring that offenders are prepared to live lives of purpose and promise. Three-quarters of all released inmates today will be re-arrested within 5 years. They are more likely to be homeless, mentally or physically ill, and unemployed than their counterparts. Instead of promoting leniency, our criminal justice reformers should focus on ensuring that those behind bars spend that time well — preparing them for life on the outside. Not only would that make us all a little richer, it would leave us a lot safer.

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