Law & the Courts

Our Under-Incarceration Problem

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More criminals should be behind bars today, not fewer.

Contrary to what you will hear in the mainstream media or on college campuses, the United States does not have an “over-incarceration problem”; it has an under-incarceration problem. Ill-conceived anti-prison policies rooted in platitudes, lies, and misleading statistics have unleashed thousands of criminals onto the streets. As a result, our nation is grappling with a de-incarceration crisis that is costing lives and eroding the rule of law.

Any honest discussion of incarceration levels must start with the acknowledgement that the majority of crimes committed in America are never reported or solved. In 2019, only 41 percent of violent crimes, 34 percent of sexual assaults, and 32 percent of property crimes were reported to the police. Of the crimes that are reported, only 61 percent of murders, 46 percent of violent crimes, 33 percent of rapes, 24 percent of arsons, and 14 percent of burglaries and auto thefts result in an arrest. Such low reporting and clearance rates ensure that any incarceration number flowing from them will be definitionally too small.

Convicted criminals also rarely serve most of their sentences. On average, state-prison inmates (who comprise the vast majority of the U.S. prison population) serve only 44 percent of their sentences. Murderers serve 58 percent, burglars serve 42 percent, and drug-traffickers serve only 40 percent of their sentences. This rampant dishonesty-in-sentencing is an insult to crime victims. It’s even more outrageous because many criminals already have artificially low sentences, thanks to sweetheart plea deals.

At the federal level, mandatory-minimum sentences have resulted in stronger and more enduring prison sentences. Recently, however, even these sentences are being eroded by retroactive sentencing reductions and new avenues for judges to skirt the mandatory-minimum requirements. The 2018 First Step Act, in particular, delivered the greatest blow to our federal criminal-justice system in recent memory. This jailbreak law unleashed thousands of gang members and drug traffickers back onto the streets and helped many career criminals avoid tough sentences.

Supporters of the First Step Act and other criminal-leniency measures propagate the myth that our prisons are overflowing with so-called “low-level, non-violent drug offenders.” They regularly point to our federal prisons as proof of this contention. While 47 percent of federal prisoners are behind bars for “drug offenses,” virtually none are there for simple possession. In fact, more than 99 percent of federal drug offenders are in prison for trafficking. State prisons have a similarly low number of inmates convicted of simple drug possession. Even according to the pro-criminal Prison Policy Initiative, less than 4 percent of state prisoners are behind bars for simple drug possession.

The overwhelming majority of drug offenders in American prisons are traffickers. These inmates were not engaged in a “non-violent” criminal enterprise — they were in an industry that profits off of poison and conducts business through intimidation, brutality, and violence. In the midst of the worst drug epidemic in American history, we should not be releasing more merchants of misery onto our streets.

Our under-incarceration problem became far more severe last year when liberal states used “coronavirus protocols” to release a flood of criminals back into American communities. Between March and June 2020, over 200,000 inmates were released and state-jail populations plummeted 25 percent. The number of felons in prison dropped an appalling 18 percent, despite the false claim that only low-level offenders benefited. This COVID clemency undoubtedly contributed to last year’s unprecedented rise in violence, rioting, and murder.

Many Democrats want to make the de-incarceration crisis even worse. During the 2020 campaign, President Biden and Senator Bernie Sanders signed a document calling for an end to cash bail, which would release hundreds of thousands of dangerous criminals from jail. These criminals could immediately return to a life of crime and could intimidate witnesses against them. The governor of Illinois has already signed legislation abolishing cash bail in his state by 2023, because apparently Chicago needs more criminals on its streets.

Democrats are also working to close and defund state prisons because they appear to believe that the prison system operates like the field of dreams: “If you build it, they will come.” But criminals go to prison for one reason: committing crimes. Refusing to build prisons does not reduce crime. In fact, it increases crime by letting criminals remain on the streets.

Some critics claim that too many Americans are in prison because our incarceration rate is significantly higher than other countries. This is not the way to make policy. The failure of other nations to enforce their laws — or the lower criminality of faraway societies — does not compel our government to neglect its duty to administer justice and ensure public safety. It is inconceivable that we would release or fail to prosecute rapists, drug dealers, thieves, and gang members because Denmark has fewer prisoners per 100,000 residents.

The simple truth is this that the “right” number of people in prison should be determined by the number of people who commit crimes. That means more criminals should be behind bars today, not fewer.


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