Politics & Policy

Elizabeth Warren’s Criminal-Justice Illiteracy

Sen. Elizabeth Warren on Capitol Hill, November 2017. (Joshua Roberts/Reuters)
No, we don’t lock up more marijuana offenders than violent criminals.

The notion that America’s criminal-justice system regularly locks up otherwise harmless people for minor drug crimes — and does so largely because of thinly veiled racism — has become a central article of progressive faith. It was thus not surprising to hear Massachusetts senator Elizabeth Warren invoke the notion at the liberal We the People Summit earlier this week. What’s breathtaking, however, is the scope of Warren’s error. In response to a loaded question from the audience about how the system “criminalize[s] poverty and communities of color,” Warren replied:

[Criminal-justice reform] starts on the front end, with the activities we criminalize — for example, low-level drug offenses. More people [are] locked up for low-level offenses on marijuana than for all violent crimes in this country. That makes no sense at all. No sense at all. [Emphasis added.]

She’s right, it doesn’t make sense — because it’s not true. In fact, it’s so at odds with the publicly available data that one can only conclude that Warren is either totally unlettered on the subject or was willfully deceiving the audience.

The data on our prison population are unambiguous. As of December 31, 2016, the total incarcerated population in the U.S. was just over 2.1 million. This includes those held in state and federal prisons as well as local jails. About 46 percent (as of May 26, 2018) of federal prisoners are in for drug offenses. But these are not mere pot smokers. According to the federal Bureau of Prisons, 99.5 percent of federal drug prisoners are traffickers, and marijuana is involved in only 12 percent of those cases.

Moreover, only 9 percent (a little over 188,000) of the country’s inmates are in federal facilities. In state and local facilities — which house 90 percent of America’s incarcerated persons — it’s a very different story.

According to the Bureau of Justice Statistics, only about 15 percent of sentenced state prisoners were serving time for a drug offense as of December 31, 2015 (the most recent data available). And the vast majority of drug offenders were in for trafficking. A mere 3 percent of them were being held for possession. And given that the vast majority of criminal cases end in plea bargains, the actual crime of a prisoner is often worse than what’s listed as the official charge. Violent offenders, on the other hand, constituted 54 percent of the nearly 1.3 million sentenced state prisoners. Serious property offenders (i.e., those convicted of crimes like larceny-theft, burglary, auto theft, etc.) made up 18 percent. And another 4 percent were imprisoned for a weapons offense. In other words, those three groups alone — who have committed crimes for which prison time is almost universally recognized as a just punishment — constitute more than three-quarters of state inmates.

The typical diagnosis from the criminal-justice-reform movement is that 1) America locks too many people up and 2) too many people are put away for harmless drug crimes. It is perfectly reasonable to hold one or both of those views.

What is not defensible, however, is imagining that addressing the latter issue will solve the former. Even Fordham Law School professor John Pfaff, a noted critic of “mass incarceration,” has conceded that achieving drastic reductions to prison populations “means changing how we punish violent crimes.” There is simply no way to achieve that goal on the basis of drug-possession convictions alone, given that a grand total of 4 percent of state and federal prisoners are serving time for such offenses.

Make no mistake about it: Deep reductions in prison populations cannot be accomplished without letting violent criminals back out on the street.

Nor would changing the criminal treatment of drug use do much to change the racial makeup of the nation’s prison population. There are indeed racial disparities. Blacks make up approximately one-third of state prison populations, and almost all of them are men. Yet black men constitute only about 6.5 percent of the U.S. population. But drug enforcement doesn’t explain that. Data published by the Bureau of Justice Statistics show that blacks constitute 35 percent of violent offenders, 45 percent of weapons offenders, 27 percent of property offenders, and 31 percent of drug offenders. In other words, releasing all drug offenders tomorrow would do almost nothing to change the black percentage of state prison populations.

It is understandable why criminal-justice-reform advocates rely on rhetoric about people being put behind bars for nothing more than smoking marijuana: Few think that’s an appropriate punishment, and most Americans now think that marijuana should be legalized outright. When advocates act as if this problem is coextensive with “mass incarceration,” however, they’re deceiving the public. Make no mistake about it: Deep reductions in prison populations cannot be accomplished without letting violent criminals back out on the street.

How many people should we have behind bars? Elizabeth Warren may think she can figure that number out in the abstract. For the rest of us, the answer is “however many it takes to keep innocent citizens safe.”

Rafael A. Mangual is a fellow and deputy director of legal policy at the Manhattan Institute for Policy Research, and a contributing editor of City Journal.

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