Law & the Courts

Our Prisons Are Crowded Because We Have a Lot of Criminals

Inmates at a state prison in Chino, Calif. (Lucy Nicholson/Reuters)
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.

The ‘Get Out of Jail (Mostly) Free’ Card

The bill provides for early and earned release, as well as retroactive application of reductions or elimination of mandatory minimums for certain offenses. It does this largely by returning discretion to the very same federal-judge class that prompted the adoption of mandatory minimums in the first place. Just think for a second: Eight of the twelve regional federal circuit courts are controlled by Bill Clinton’s and Barack Obama’s liberal appointments. Under President Hillary Clinton, who publicly wants to cut all mandatory minimums for “nonviolent drug offenses” in half, all the courts will likely be stacked with bleeding-heart judges.

The authority granted by the current version of the bill is so broad that it undermines its own terms by offering “relief” from current sentences and retroactivity, and it overly complicates the current offender point system, which is made mostly of Swiss cheese. For example, the bill increases the limit for eligibility for the “safety valve” relief or retroactivity from a one-point offense to include two-point “violent offenders” and repeat drug offenders, including those convicted of making drugs.

Another strange loophole in the federal bill’s revision is the “Scarface” provision, which cuts mandatory minimums for traffickers who smuggle drugs into the U.S. by boat or submarine. These criminals have never been eligible for such leniency and are rarely if ever U.S. citizens. Recently, U.S. Customs and Border Protection intercepted a submarine carrying 5.5 tons of cocaine, worth almost $200 million.

Reforming Criminals vs. Do-Nothing Studies

The only major provision of the bill that even comes close to addressing a real need for reform is the second part, the “Corrections Act,” which would have some merits as a stand-alone bill. Fully 77 percent of state prisoners end up back in the sights of law enforcement, rearrested within five years. For federal inmates, the figure is almost 50 percent. That means that tens of thousands of federal prisoners will be back on the wrong side of the law. That includes only U.S. citizens who remained alive and were tracked by local and federal authorities, so the federal figures could be much worse in reality. The data also show that the younger the offender, the more likely he is to reoffend, and the sooner upon release.

Like all well-designed government ‘reforms,’ it calls for study upon study to run concurrently and be reported after the substantive law changes are already in effect.

We can all agree that we are doing a terrible job upholding the second pillar of our two-pillared criminal-justice system (punishment and rehabilitation) if half of those released continue to commit crimes.

The bill attempts to rectify that deficiency, but does so in a ham-handed manner, handing out time off (five days for every 30 days of participation in a rehabilitation program) without requiring substantive effectiveness research to support the program, or any demonstration of its applicability to the offender’s crime, disposition, or disability — except at the discretion of the Federal Bureau of Prisons under Department of Justice guidelines, which, as we all know, could be overly lenient or just plain poorly written. And, like all well-designed government “reforms,” it calls for study upon study to run concurrently and be reported after the substantive law changes are already in effect. The horse (and prisoners) will be out the barn (and prison gates) by then.

Not a Solution to America’s Criminal-Justice System

Reddy acknowledges many of the myths about “mass incarceration” and the purported abundance in prison of low-level drug offenders, and he acknowledges that crime rates are actually up since the 1960s, but he doubles down on the worst conceit of the “criminal-justice reform” advocates — that the term actually means anything.

That Virginia’s lawmakers failed to take into account inflation when writing their felony grand-larceny statute is surprising, but it doesn’t apply to federal drug and gun cases and child pornographers. Furthermore, the success of drug-diversion courts in states like Texas are laudable if they are working as Reddy and others contend.

The real reason the U.S. has a mammoth prison-industrial complex is that we have a massive crime-control problem. The U.S. comes in above most other developed nations on almost every violent-crime metric (murder, rape, etc.) — above Reddy’s example of England and Wales, let alone Japan. We lock up more bad guys because we have more of them, for various and myriad reasons.

The logical conclusion to leniency for the remaining “drug-related” felons in federal prison is to end or curtail the “war on drugs” against pushers, importers, and mules. I, for one, welcome that debate, as evidence from Colorado’s experiment in legalization shows that cartels don’t disappear; they just change tactics.

Pinching pennies on prison beds and court costs won’t restore the lives lost to murderous drug cartels or communities ruined by the meth and heroin epidemics. Moreover, the federal government spent $6.4 billion on corrections in 2013, most of it staff costs. That’s less than the annual taxpayer subsidy to the agriculture industry.

One study in the 1990s put the total cost of crime to society and victims at $450 billion per year; adjusting for inflation, that would be $745 billion in today’s dollars. Since crime is down since the 1990s, today’s total might be half that, but it’s still a staggering cost in real terms.

I’d be happy to spend more on crime control than we do now if that meant more families would never suffer the loss of a loved one to murder, exploitation, or drug abuse. I’m just unwilling to draw conclusions that the solution is to free the bad guys.

— Sean Kennedy is a writer based in Washington, D.C. Previously he was a U.S. Senate aide, a television producer, and a fellow at public-policy think tanks.

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