Law & the Courts

Criminal Justice: The Real Reasons for Reform

San Quentin State Prison in California, 2012. (Lucy Nicholson/Reuters)
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.

Perhaps the U.S. incarceration rate is unlikely ever to be as low as Canada’s, but it is astonishing that the rate is six times as high. That statistic should worry anyone concerned about the size, scope, and cost of government — regardless of questionable comparisons to China, Iran, or Venezuela.

Kennedy takes on another mistaken assertion in his piece: the idea that American prisons primarily contain non-violent drug-possession offenders. This claim is dubious. As Kennedy explains, a slight majority of offenders in state prisons — 53 percent in 2014 — are there because they committed violent crimes.

Again, though, this is not an argument against criminal-justice reform.

If 53 percent of offenders are incarcerated for violent crimes, then 47 percent are incarcerated for non-violent offenses — and 47 percent is no small number. States should look for ways to safely reduce that figure.

States could look, for example, at non-violent property offenders — or, to put it plainly, people who steal. Burglary, larceny, and automobile theft have real victims, and people who commit these crimes must be held accountable. Nevertheless, this hardly tells the whole story. Consider, for example, the difference between felony theft and misdemeanor theft: At what dollar amount should that distinction be drawn?

The answer is necessarily arbitrary, but it is remarkable how much it varies from state to state. In Texas, larceny becomes a felony if more than $2,500 is stolen. In Virginia, the line is drawn at just $200.

There is little evidence that Virginia’s much lower threshold deters larceny better than Texas’s $2,500 threshold. In fact, from 2001 to 2011, 23 states increased their felony larceny threshold to keep pace with inflation, and larceny rates actually fell in 19 of those states. States like Virginia are not deterring more crimes; they are just making felons out of thousands of people who, in Texas (or any other state), would be misdemeanants.

Rethinking the way we classify and handle property and drug crimes can free up funds that are currently used for incarceration.

Policies like this cost taxpayers dearly. They also harm public safety because they place many petty criminals in prison cells with hardened criminals for lengthy periods of time — and these petty offenders, after exposure to the worst elements in prison, sometimes emerge worse than they entered. It is little surprise that with limited job prospects upon leaving prison, they rely on the habits they learned in prison to live on the outside. Recidivism rates in the U.S. — a measure of whether people re-offend within three years of release from prison — average 40 percent. In a few states, rates hover around 60 percent.

Similar kinds of problems plague drug-sentencing laws. The amount of a drug that is needed to shift from mere possession to intent to distribute is arbitrary, but the threshold amount has been dropping in many states for years, and so people who probably ought to be treated for drug addiction are instead sometimes housed in prisons with dangerous traffickers. This is counterproductive for the offender, for his family, and even for victims. After all, it is difficult for a person to earn the money for victim restitution when he is sitting inside a prison cell. Rethinking the way we classify and handle property and drug crimes — as many states have done in recent years — can free up funds that are currently used for incarceration. These funds can be spent on better law enforcement and stopping violent crimes before they happen. They can also be spent on better preparing people who do need to spend time in prison for eventual life on the outside — an excellent suggestion that Kennedy himself makes.

So while some reformers are overreaching when they argue that prisons primarily contain nonviolent offenders, the debunking of that myth does not affect the case for criminal-justice reform.

Kennedy closes his piece by examining the claim that crime rates have been declining for decades. He acknowledges that this is true but explains that current crime rates are still much higher than they were in the early 1960s. Kennedy is correct about this, but again, he is not making an argument against criminal-justice reform; he is making the argument that public safety must be the centerpiece of reform efforts.

The broadly accepted view among criminologists is that incarceration does bring down crime rates, but it is a tool with diminishing marginal returns. At a certain point, if the goal is to decrease crime, each additional tax dollar is better spent on law enforcement and prevention. Indeed, there is even a point at which incarceration becomes criminogenic, causing more crime than it stops. This happens because, as noted above, some petty criminals spend lengthy stints in prison and emerge with limited reentry options and having learned more bad habits.

The upshot of all of this is simple. First, whether or not America has the world’s highest incarceration rate, it certainly has a rate vastly higher than that of any comparable Western democracy. Second, a slight majority of the prison population consists of violent offenders, but this is hardly an argument for ignoring criminal-justice reforms that would (1) reduce the number of non-violent offenders behind bars and (2) better direct resources at preventing violent crime. Finally, reformers should not forget that our high rates of incarceration, in certain ways, make society less safe, and public-safety considerations must be central to any discussion of criminal-justice reform.

Those are the good arguments in support of criminal-justice reform — and they remain good arguments even when some are making weak arguments.

— Vikrant P. Reddy is a senior research fellow at the Charles Koch Institute.

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