The Corner

Politics & Policy


(Stephen Lam/REUTERS)

Two of our finest Senators, Tom Cotton and Mike Lee, recently had an exchange on NRO regarding the criminal justice reform bill known as the FIRST STEP Act. Both men made salient points, but on the issue of sentence reduction Senator Cotton has the better of the argument.

The FIRST STEP Act  would reduce sentences for thousands of convicted criminals. Many well-intentioned people support the bill, in part because they’re concerned about the disproportionate incarceration of blacks. As someone who lives in inner-city Cleveland, I certainly wish this legislation would encourage more inmates to walk the straight and narrow when they’re released. Unfortunately, evidence shows this legislation is unlikely to reform meaningful numbers of individuals  and will have deleterious effects on neighborhoods like mine, where former inmates are more likely to  return upon release.

The FIRST STEP bill would allow prisoners to earn up to 10 or 15 days of time credits (depending on the prisoner’s assessed risk of recidivism) for every 30 days of participation in “evidence-based recidivism reduction programming or productive activities.” It also allows prisoners to earn up to 54 days of time credit per year sentenced, rather than per year served. Sen. Lee points out that it’s unlikely that prisoners will be unable to participate in these programs every day of their sentence, and that these recidivism-reduction programs  aren’t available everywhere. Fair enough. But the fact remains that these provisions will substantially reduce the time prisoners are incarcerated – indeed, that’s one of the primary goals of the bill.

FIRST STEP is predicated on the supposition that rehabilitation isn’t merely possible, but probable, and that authorities can reasonably assess which offenders are likely to desist from crime. I don’t share Senator Lee’s optimism on this score. Predicting which prisoners are likely to pose threats within prison is different from predicting which are likely to desist from offending once they’re outside a controlled environment. Unfortunately, scholarly literature indicates that a person who has been convicted of multiple offenses is always more likely to re-offend than is a person who has never offended. Indeed, even a person who has been arrested only once is always more likely to be arrested than is a never-arrested person. Furthermore, it’s difficult to predict which ex-offenders will desist from crime. Scholars John Laub and Robert Sampson write, “The characteristics that distinguish persistence in a life of crime from desistance within any group of high-risk offenders are generally unknown.”

This pessimism about the likelihood of recidivism is supported by a recently-released Bureau of Justice Statistics (BJS) study that tracked the recidivism of state prisoners for nine years. Although this is a study of state, not federal, prisoners, it remains instructive. These prisoners came from 30 states that collectively accounted for 77 percent of the state prisoners released in 2005. The recidivism figures are nothing less than astonishing: by the end of the nine-year period, 83 percent of the released prisoners had been re-arrested. “The 401,299 state prisoners released in 2005 had an estimated 1,994,000 arrests during the 9-year period, an average of 5 arrests per released prisoner. Sixty percent of these arrests occurred during years 4 through 9.”

These statistics indicate that  FIRST STEP sentence reductions will come with a cost: an increase in crime—and, accordingly, an increase in the number of victims. Even if the increases are only a fraction of the numbers above, the number of victims will be significant. A disproportionate share likely will come from inner-city neighborhoods.

Rehabilitation is important, but it’s only one purpose of incarceration. Incapacitation — that is, the inability to commit additional crimes — is another purpose of incarceration. Incapacitation is more effective than rehabilitation because, obviously,  it works on everyone. It’s one of the chief reasons overall crime has been declining over the last two decades. (Even so, as Thomas Sowell recently noted in an interview, “in 1960, the homicide rate in the United States was about half what it was in the mid-1930s. Then all the wonderful legal theories came in and reduced punishments, put restrictions on the police, and expanded rights for criminals. Over the next 20 years, the homicide rate doubles. . . . It has never come down to the level in 1960, which it reached over a period of centuries coming down.”)

The FIRST STEP bill may be well-intentioned and it contains some useful provisions, but reducing sentences by years is profoundly misguided and will have deleterious effects on society. The Senate should reject the FIRST STEP Act as currently written.


Peter Kirsanow — Peter N. Kirsanow is an attorney and a member of the United States Commission on Civil Rights.

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