Summary: Here is a different — and disturbing — perspective on the strange US criminal justice system, unlike the “standard version” that dominate the news media. We can’t fix what we don’t understand.
Excerpt from “More Justice, Less Crime.“
By Joseph M. Bessette.
In the Claremont Review of Books, Summer 2017.
Visuals added.
Books reviewed…
- Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform
by John Pfaff.
- Prison Break: Why Conservatives Turned Against Mass Incarceration
by by David Dagan and Steven Teles.
If Amazon is correct, there are currently more than 150 books in print with the phrase “mass incarceration” in the title or subtitle. You need no special knowledge of crime and punishment in the United States to infer correctly that the term is not one of praise for our criminal justice system. “Mass incarceration” means not simply that many Americans are behind bars, but that too many Americans are behind bars.
Currently, about 2.2 million individuals are incarcerated in the nation’s federal prisons (190,000), state prisons (1.3 million), and local jails (725,000). These are, admittedly, depressingly high numbers — and much higher, adjusted for population, than in other Western democracies. Prisons, however, are a response not to a population problem but to a crime problem. So the question is not whether the United States has too many people in prison for a country of its size, but whether it has too many people in prison for a country with its number of crimes and convictions. (Note that of the local jail inmates, about three fifths are awaiting trial and most of the rest are serving short sentences of less than a year.)
Start with the statistics of crime.
According to the FBI, in 2015 law enforcement authorities reported over 15,000 homicides; 124,000 rapes; 327,000 robberies; and 764,000 aggravated assaults (that is, assaults with a deadly weapon or those causing serious bodily injury). That’s 1.2 million very serious violent crimes known to the police. Authorities also reported 1.6 million burglaries, of which more than a million were of personal residences. Residential burglary is the most serious and traumatic of the property crimes and the one that comes closest to the personal violation characteristic of violent crimes. (Victimization surveys show that the true prevalence of crime in the US, including crimes not reported to the police, is more than twice as high as official police data.)
All of these crimes are felonies that can land one in prison. And these numbers do not include such serious offenses as kidnapping, indecent liberties with a child, other sex crimes short of rape, and drug trafficking, for which we have no national incident data. 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. Yet, altogether, police made over 10 million arrests in 2015, 1.5 million for violent crimes (including misdemeanor assaults).
What, then, of convictions for serious crimes? The most recent data from the Department of Justice’s Bureau of Justice Statistics (BJS) show more than 1.1 million felony convictions in state courts each year (2006) and 72,000 felony convictions in federal courts (2014).
For the convictions in state courts, over 200,000 were for a violent crime; 100,000 for burglary; and over 200,000 for drug trafficking. Many will be surprised to learn that only two fifths of those convicted of felonies in state courts are actually sentenced to prison. Of the rest, about half receive no incarceration (mainly probation) and half are sentenced to a short term in a local jail. Indeed, at any one time there are more than twice as many convicted offenders on probation or parole — that is, not incarcerated — as there are in the nation’s prisons or jails.
With offenders each year committing well over a million very serious violent crimes and another 1.6 million burglaries, with police each year arresting 1.5 million violent offenders, and with courts each year convicting more than a million persons for a felony, it is perhaps not so surprising that state and federal prisons hold one and a half million inmates. If we have a “mass incarceration” problem it appears to be because we have a “mass crime” problem, despite the downward trend of the past two decades.
Are one and a half million felons in state and federal prisons too many? Are our prisons filled with low-level offenders, especially small-time drug users, who could be released with no harm to the public? And what of the violent offenders, burglars, and drug traffickers, who together constitute fully three fourths of all state prisoners? Would the nation be better served if hundreds of thousands of these offenders were released into our communities or never sent to prison in the first place?
Refuting the myth about mass incarceration.
It is a great virtue of John Pfaff’s Locked In: The True Causes of Mass Incarceration?and How to Achieve Real Reform
And he notes that even the relatively few serving time for simple possession may have committed a more serious drug offense but were allowed to plea to the lesser crime. He cites studies showing that about a quarter of drug offenders in prison had previously been convicted of a violent crime, that a fifth had used a gun in a previous crime, and that only about 1% of all state prisoners were “nonviolent, first- or second-time drug offenders.” He even titles one section of his chapter on the war on drugs “The Myth of the Low-Level, Nonviolent Drug Offender.”
A professor at Fordham Law School with a Ph.D. in economics, Pfaff goes on to challenge Alexander’s further claim that the war on drugs (which Alexander attributes to anti-black bias) explains the disproportion of blacks in America’s prisons. He shows to the contrary that whereas blacks in 2013 were 38% of all state prisoners serving time for a drug offense, they were 37% of the much larger number of those serving time for non-drug crimes. Remove all drug offenders from prison and the racial disproportion of state prison inmates would remain essentially unchanged.
Reducing mass incarceration.
How, then, to achieve the kind of massive reductions in incarceration that Pfaff believes are necessary to reduce the “hard-to-estimate ‘collateral’ costs” of mass incarceration, such as the income inmates lose while behind bars, the emotional costs on inmates’ families, the reinforcing of racial biases and inequalities, and the increased future health costs that former inmates face? No real progress will be made until we confront, as he titles his seventh chapter, “The Third Rail: Violent Offenses.” Most simply, we must send fewer violent offenders to prison and shorten the time behind bars of those we do send. States and counties must “rethink how they punish people convicted of violent crimes, where ‘rethink’ means ‘think about how to punish less.’”
Pfaff frankly acknowledges that he is talking here about “serious violent crimes.” One quarter of those in prison for a violent offense, he tells us, are serving time for murder or manslaughter (166,000 in 2012); another quarter for robbery (182,000); and 10% for aggravated assault (133,000). Add the 13% serving time for rape or other sexual assault (165,000), which he doesn’t mention here, and the total just for these four most serious violent crimes is 646,000, about half of all state prison inmates. “If we are serious about wanting to scale back incarceration, we need to start cutting back on locking up people for violent crimes.” To put it simply, we must be “less punitive.”
So, just how punitive are we now toward violent and other serious offenders? First, as noted above, most of those convicted of felonies in state courts are not sentenced to prison but to probation (supervision in the community) or a short sentence in local jail. Even for serious violent offenders surprising numbers are not sent to prison: 28% for rape; 29% for robbery; and 57% for aggravated assault. Although Pfaff does not address these specific figures, his argument requires that more of those convicted of rape, robbery, and aggravated assault get either no incarceration at all or at most a short stint in a local jail.
What about time served? Just how long do we now keep violent offenders behind bars? Pfaff calculates that time served in prison for all those convicted of murder, rape, robbery, and aggravated assault averages 3.2 years — “likely less,” he says with some understatement, “than one would expect for index violent crimes.” (The FBI tracks incidents of four violent crimes and four property crimes as an “index” of the overall crime problem.) Including non-violent crimes, the overall average is just 1.7 years. More detailed data from BJS (which Pfaff does not cite) show that time served for all major violent crimes increased from 1986 to 2009 (the last year with published data).
- For murder (excluding all forms of manslaughter), the average number of years behind bars before release rose from 6.8 to 14.6;
- for rape, from 3.8 to 7.8;
- for robbery, from 3 to 4.8;
- and for aggravated assault, from 1.9 to 2.7.
And keep in mind that most of those in prison have a prior criminal conviction, about half have been to prison before, and about a third have been convicted of a crime at least three times in the past. …
Though you would hardly know it from the account here, these public officials actually succeeded in turning the corner on the crime problem: large reductions in both violent and property crime between the early 1990s and a year or two ago. Had they not moved aggressively against violent criminals, our communities today, and especially minority communities in our major cities, would be much more dangerous places in which to live and work. We owe these public officials not our disdain but our gratitude. …
——————— Read the full review! ———————
About the reviewer.
Joseph M. Bessette is a Professor of Government and Ethics at Claremont McKenna College and Associate Director of the Henry Salvatori Center. See his bio and publications.
A Fabian socialist gives his solution.
From Man and Superman
“We may therefore contemplate the tramps of the Sierra without prejudice, admitting cheerfully that our objects – briefly, to be gentlemen of fortune – are much the same as theirs, and the difference in our position and methods merely accidental. One or two of them, perhaps, it would be wiser to kill without malice in a friendly and frank manner; for there are bipeds, just as there are quadrupeds, who are too dangerous to be left unchained and unmuzzled; and these cannot fairly expect to have other men’s lives wasted in the work of watching them. But as society has not the courage to kill them, and, when it catches them, simply wreaks on them some superstitious expiatory rites of torture and degradation, and than lets them loose with heightened qualifications for mischief.”
For More Information
To learn more about mass incarceration in America, see the website of The Sentencing Project. For detail see the FBI’s 2015 “Crime in the United States“.
If you liked this post, like us on Facebook and follow us on Twitter. See all posts about racism, about crime, about prison, about our criminal justice system, and especially these…
- Our prisons are a mirror showing the soul of America. It’s not a pretty picture.
- The Collapse of American Criminal Justice System — Excerpts from The Collapse of American Criminal Justice
by William J. Stuntz.
- More about the collapse of the American Criminal Justice System.
- Final thoughts about America’s Criminal Justice System.
- The Disgrace of Our Criminal {in}Justice System, and hints of reform in the air.
- Can We Fix Our Shameful Prisons? Why they should be, and why we might not do so.
- Since 9-11 we have less crime but more fear of crime. A win-win for our rulers!
- America’s unspeakable problem: African-American’s crime rates.
by William J. Stuntz.
If incarceration were Sheriff Joe Arpaio’s style [and it should be] then criminals would think a little more soberly about returning to jail where living and comfort is good.
Unless justice is timely, it is not justice. An arrested person should be tried and judged without a backlog do to judicial schedules.
Geneww,
(1) Police are not responsible for the long wait times until trial. That results from funding and policies of the District Attorneys, Judges, and State legislatures.
(2) Those waits are insanely and unconstitutionally long.
(3) The common framing of “wait until trial” is wrong. The truth is that the system is even more bizarre — more unjust — than that. Most of those long delays culminate in a plea bargain: 97% of Federal Cases and 94% of State cases. Source: NYT.
Incarceration has a variety of costs to society. Per the following article the total societal cost may be as much as $1 Trillion annually. http://www.huffingtonpost.com/entry/mass-incarceration-cost_us_57d82d99e4b09d7a687fde21
In addition, to the direct costs of incarceration we pay with lost labor productivity, increased crime rates as prisons serve as a most effective training ground to turn young men into hardened criminals. Current incarceration rates also serve to break up families, weaken the education system and on and on.
Prisons have not proven to be an effective deterrent, but there is one factor that has — maturity. One of the most consistent correlations to lower rates of violent crime is age. See the chart at the following link. https://focusbankers.dealcloud.com/pages/All_Companies.aspx Homicide rates peak in the late teens and early twenties and drop precipitously into the mid thirties. The mandatory minimum sentencing laws do not prevent recidivism, but age and maturity do. Keeping most of these individuals in jail for decades does nothing to protect society, but doing so costs society millions of dollars per prisoner over their lifetime.
John,
A trillion! Thanks for the links, as always, but that number is esp eye-opening.
I have real problems with this article. Firstly the overreliance on raw charging statistics, without analysis of charge inflation. For example, in California People v. Estes (1983) created (bad) case law that now allows petty shoplifting to be charged as robbery which is a felony. I hear anecdotally from my criminal defence lawyer friend that in California, simple assault and battery is often uncharted as mayhem. The police and prosecutor career incentives leading to charge inflation can’t be addressed in detail here, but they are closely connected to rising rates of plea bargains.
Secondly, the last paragraph makes a completely unsubstantiated claim about the cause of drop in crime in recent decades.
Eliot,
“the last paragraph makes a completely unsubstantiated claim”
I agree.
“Firstly the overreliance on raw charging statistics, without analysis of charge inflation.”
This isn’t a field I know anything about. Based on the little I know about our criminal “criminal justice system”, there are two offsetting factors. There is charge inflation — but there is also plea bargaining the charges down (97% of Federal Cases and 94% of State cases. Source: NYT). What’s the net effect?
Its true that the final disposition will usually be less than the initial charged crime, because of plea bargaining.
However, the article’s statistics are based on the initial charge. The article’s statistical references were a bit vague, but I verified that the reference to 2015 robberies (327,374) was from here: https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/offenses-known-to-law-enforcement/robbery.
That page is reported pursuant to the “FBI’s Uniform Crime Reporting (UCR) Program”. From the link https://en.wikipedia.org/wiki/Uniform_Crime_Reports#Data_collection its clear its based on the initial report not the final disposition.
Ellot,
Thank you for the detective work on this! That provides powerful support for your previous comment.
Hi FM,
I have close relatives that are have been involved in different aspects of the criminal justice system in many different capacities, including criminal defense as public defenders. It’s written between the lines, but I wonder what our ratio of crime to incarceration is relative to other countries. We see these staggering amounts of incarceration relative to places like Japan, but Japan has very little violent or property crime compared to the US (I can’t speak to white collar, but that’s different). I suspect that even though we have much higher rates of crime than other so-called first world countries, the incarceration rate would *still* be higher, due to a couple (there are probably more) factors.
First, the incentives for prosecutors are large for conviction and tough sentences are great (any ad for a DA election will certainly have conviction percentages and/or numbers of “criminals put behind bars” in them) and the rewards for excellent defense are few. Prosecutors “stack” as many charges on even questionable actions in hopes that the fear of being convicted of some far out charge will cause the defendant to plead out to lesser charges. This is, in part, where those huge plead percentages come from — that’s the game.
Second, our laws are mind-bendingly complex. It’s difficult to understand many of the charges or be guilty of things you had no idea that you’re guilty, or suspected of being guilty of doing. A guy pushing a lawn mower down the street and a cop looking for a bust can wind up very quickly with a number of charges, including doing business without a license, resisting arrest, assault on a police officer (a felony in some places), etc. Throw on top of all of this that a lot of folks are profoundly ignorant of the law and don’t have much notion of how the system works until they’re in it. I saw a young woman cursing and ranting as she was being escorted from the courtroom for her preliminary hearing after being tossed out by the judge because she showed up in a surf shop shirt, nylon surf pants, and flip-flops. We can argue about the justice of that decision on the judges part, but it would never occur to me to show up to court in beach wear. You don’t have to be guilty or paranoid to be terrified of getting on the wrong side of the criminal justice system.
The essential purpose of government, at least from my small-l libertarian perspective, is to secure our rights by enforcing the law and keeping the peace. I don’t have any answers about what’s the best for rehabilitation or anything like that — it’s not within my purview — but we should definitely pursue justice and not use metrics and incentives that simply reward bodies behind bars.
With kind regards,
Bill
Bill,
All great points. A few brief comments.
(1) Does our punitive criminal “justice” system reduce crime rates below what a cheaper and less punitive system? Perhaps comparing different US States would tell us something about this, or changes in State systems over time. I’m sure there is research about this. But, as you note, the system is run by what gets DA’s elected.
(2) Our laws are not just complex, but there are so many of them. Every small business person running a physical plant (factory, store, restaurant, etc) with employees is a criminal in some way.
(3) The plea bargain system that decides 95%+ of all cases is deeply corrupt and corrupting. Since that’s not how it appears on TV, few in the middle class and above know how the system actually works — which reduces pressure for reform.
We could both make a long list of dysfunctional aspects of the system. But my focus here is on ways to change it. This I have no idea how to change. Not a clue.
Hi FM,
FM> (1) Does our punitive criminal “justice” system reduce crime rates below what a cheaper and less punitive system? …
I don’t know. The US is really a very, very strange place. My intuition is yes, but I can’t prove it. I think we have to move past a body-count mentality for determining if DAs are doing a good job. But that doesn’t mean it’s going to reduce crime. Some problems aren’t as hard as they seem, but this one seems really damn hard.
FM> (2) Our laws are not just complex, but there are so many of them. Every small business person running a physical plant (factory, store, restaurant, etc) with employees is a criminal in some way.
This is worthy of a post of its own. People don’t realize how every day they’re committing “crimes”, and they could actually get dragged into court. I’m a partner in a small business, and so much is hidden from people about how insane regulations, licensure, certifications, etc., has become. Big biz doesn’t mind because the complexity excludes competition. Although it’s easy to put an Uber sticker on your car, it’s really hard to hang your shingle out if you need to hire a couple dozen people to get all of the work done. Really hard, really expensive, really stupid the hoops you have to jump through.
FM> (3) The plea bargain system that decides 95%+ of all cases is deeply corrupt and corrupting. Since that’s not how it appears on TV, few in the middle class and above know how the system actually works — which reduces pressure for reform.
Not only that, but the emotional calculus thwarts reform. This is a deeply perverse incentive and this is where I would start. Reductio ad absurdum, but “death” penalty for wrongful convictions: fired, disbarred, DAs would have to support the wrongfully accused for life and put their kids through college, etc. These are thought experiments and not suggestions, of course. I don’t know. Kill ’em all and let God sort them out doesn’t seem to be the path to justice.
FM> We could both make a long list of dysfunctional aspects of the system. But my focus here is on ways to change it. This I have no idea how to change. Not a clue.
One thing about identifying specific problems is that we can have specific things to work on. I *do* think that we can do something to change the incentives for prosecutors, although they’re politically tough to do. We can do things about the unspoken arrest and ticketing quotas for police and sheriff’s departments. We could flip the roles of prosecutor and public defender (e.g., the DA is not appointed, but is a regular hire and is staffed at a rate of who knows what, 10 PDs to 1 ADA?). Judges, how their appointed/elected and how they retain their seats is something to investigate. They have incredible power and most I’ve met are judges for a damn good reason. Some, however, are not, and once they’re in, there’s little you can do about it. It’s a tweak, but it all adds up, or at least I hope so.
I think Sun Tzu said something like: it is possible to understand the path to victory, but not have the means to achieve it. I’m inclined to believe that we have the means, but it’s hard.
With kind regards,
Bill