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
- Prison Break: Why Conservatives Turned Against Mass Incarceration
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“.
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