Law & the Courts

Voodoo Criminology

A guard escorts inmates at San Quentin state prison in San Quentin, Calif., in 2012. (Lucy Nicholson/Reuters)
Sanders’s candidacy may be dead, but his dangerous plan to cut 50 percent of the prison population could live on.

Bernie Sanders’s presidential candidacy may be moribund, but many of his policy ideas will survive among millions of his progressive followers. One of his crazier proposals is to “cut the national prison population in half,” as his campaign website puts it.

Note that Sanders is talking about prisons, not jails. Low-level offenders don’t go to prison; violent and repeat offenders do. In fact, according to the U.S. Bureau of Justice Statistics (I cite their data throughout this article), half the prison population consists of violent criminals: murderers, rapists, robbers, and assaulters. And that population is dangerous. Five out of six of all discharged inmates are arrested for another crime once they are released.

If we exempt the violent inmates from Sanders’s get-out-of-jail-free policy, then nearly all the other prisoners would have to be released. That’s the only way to achieve a quick 50 percent reduction.

We can readily see this by looking at a breakdown by crime of prisoners nationwide.

It now becomes clear why a 50 percent reduction is unattainable. The nonviolent prisoner total is exactly half of the prisoner population, or 724,350. So if we treat the violent offenses as sacrosanct we would be forced to release all of the property, drug, and public-order offenders. That includes all the imprisoned drug dealers, gun-law violators, auto thieves, and burglars, each of whom would be only a step away from repeating their depredations. Clearly, this is a proposal not to be taken seriously.

What about reducing imprisonment by curbing crime? Crime reduction could shrink imprisonment over the medium term. However, violent-crime rates remain low, and it is highly unlikely that they will decline a lot more. According to the FBI’s Crime in the United States report, the 2018 murder rate, our bellwether for violent crime, was only 5 per 100,000 people, a rate lower than any seen between 1965 and 2008.

Another frequently touted option is to decriminalize drugs. If we ended marijuana arrests, there would be an impact on short jail stays, where the average stint is 26 days, but very little effect on prisons that rarely house pot possessors. Even if we decriminalized hard drugs, such as cocaine and heroin, we could slice off only 16 percent of the prison inmate total. Moreover, once the public became aware that eight out of ten drug inmates are in for trafficking, not just using, support for hard drug decriminalization would dry up.

Senator Sanders proposes three policy changes for cutting the prison population in half, namely, abolishing the death penalty, eliminating “three strikes” laws, and doing away with mandatory minimum sentences.

At first blush, abolishing capital punishment would seem to be counterproductive since life sentences would substitute for death. But with all the appeals granted death-row inmates, the time to execution — 20 years at last measure — amounts to a “life” sentence along with a death penalty. In any event, there are so few prisoners awaiting execution — around 2,700 out of over 202,000 homicide inmates (1.3 percent) — that the impact of abolishing the death penalty would be negligible.

As for California’s three-strikes law, it was already scaled back in 2012, following which that state’s inmate population declined by 23 percent. However, the three-strikes cutback was hardly the only significant policy change, so we’re not sure what caused the decline. A 2011 policy, dubbed “realignment,” shifted certain offenders from prisons to county jails. This helped reduce imprisonment but didn’t necessarily drive down overall incarceration. Still, scrapping laws that dictate sentences and remove a sentencing judge’s discretion, like three-strikes and mandatory-minimum sentences, might further reduce the prison population. How much further, however, is unknown, and 50 percent is highly unlikely.

Both Sanders and Joe Biden want to eliminate or reduce mandatory-minimum sentencing, which increases the inevitability of a prison sentence for certain classes of crimes, mainly drug, violence, and weapons offenses. While this policy may have contributed to an increase in the actual time served in prison in the 1990s, time served did not continue to increase, except for murderers and rapists, in the 21st century.

Take robbery and assault, for example. In 1953 and 1964, robbers served a median of three years for their crimes — virtually the same penalty received in 2016. Likewise, those convicted of assault served a median 2 1/4 years in 1964, over ten months more than the 2016 punishment. Despite mandatory minimums and three-strikes sentencing, the time actually spent in prison by all inmates — a median one year and four months — is not shockingly high.

So the question Senator Sanders and other advocates of decarceration need to answer is this: Given the disturbing number of serious crimes committed (1.2 million violent offenses annually), the relatively short amount of time actually spent behind bars, and the absence of alternative measures to effectively deal with serious repeat offenders, why would we want to dramatically reduce imprisonment, much less by 50 percent?

Barry Latzer is an emeritus professor at John Jay College of Criminal Justice, CUNY. His most recent book is The Rise and Fall of Violent Crime in America. His history of violent crime pre-1940, The Roots of Violent Crime in America: From the Gilded Age through the Great Depression, will be published in 2021.

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