The PJ Tatler

Myths and Realities of 'Mass Incarceration'

There is an excellent article from the print edition of National Review that was posted online due to its timeliness. The author, Stephanos Bibas, is a professor of law and criminology at the University of Pennsylvania and has also served as a federal prosecutor.

Bibas explodes many of the liberal myths about “mass incarceration” — not the least of which is that people are in jail because they committed a crime, not because police are roaming the streets herding people into prisons. Somehow, the liberal narrative about mass incarceration never gets around to the fact that most felons are in prison for committing violent crimes.

Two days later, Obama became the first sitting president to visit a prison. Speaking immediately after his visit, the president blamed mandatory drug sentencing as a “primary driver of this mass-incarceration phenomenon.” To underscore that point, he met with half a dozen inmates at the prison, all of whom had been convicted of nonviolent drug offenses. Three days earlier, he had commuted the federal prison terms of 46 nonviolent drug offenders, most of whom had been sentenced to at least 20 years’ imprisonment.

The president is echoing what liberal criminologists and lawyers have long charged. They blame our prison boom on punitive, ever-longer sentences tainted by racism, particularly for drug crimes. Criminologists coined the term “mass incarceration” or “mass imprisonment” a few decades ago, as if police were arresting and herding suspects en masse into cattle cars bound for prison. Many blame this phenomenon on structural racism, as manifested in the War on Drugs.

Indeed, as Bibas points out, the truth of the matter is pretty much the opposite:

President Obama’s and Alexander’s well-known narrative, however, doesn’t fit the facts. Prison growth has been driven mainly by violent and property crime, not drugs. As Fordham law professor John Pfaff has shown, more than half of the extra prisoners added in the 1980s, 1990s, and 2000s were imprisoned for violent crimes; two thirds were in for violent or property crimes. Only about a fifth of prison inmates are incarcerated for drug offenses, and only a sliver of those are in for marijuana. Moreover, many of these incarcerated drug offenders have prior convictions for violent crimes. The median state prisoner serves roughly two years before being released; three quarters are released within roughly six years.

For the last several decades, arrest rates as a percentage of crimes — including drug arrests — have been basically flat, as have sentence lengths. What has driven prison populations, Pfaff proves convincingly, is that arrests are far more likely to result in felony charges: Twenty years ago, only three eighths of arrests resulted in felony charges, but today more than half do. Over the past few decades, prosecutors have grown tougher and more consistent.

In other words, as the public demanded a better law enforcement and justice system, we have gotten more bang for the buck. Prosecutors have slapped felony charges on offenders more often, thus sending more people to prison.

Despite what the activists complain about, taking violent felons off the streets has had a huge impact on the drop in violent crime, making neighborhoods and communities safer.

But after destroying the liberal narrative on mass incarceration, Bibas takes conservatives to task for not supporting the kinds of reforms that would, if not rehabilitate, make it less likely that a felon would end up back in prison.

But just because liberals are wrong does not mean the status quo is right. Conservatives cannot reflexively jump from critiquing the Left’s preferred narrative to defending our astronomical incarceration rate and permanent second-class status for ex-cons. The criminal-justice system and prisons are big-government institutions. They are often manipulated by special interests such as prison guards’ unions, and they consume huge shares of most states’ budgets. And cities’ avarice tempts police to arrest and jail too many people in order to collect fines, fees, tickets, and the like. As the Department of Justice found in its report following the Michael Brown shooting in Missouri, “Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs.” That approach poisons the legitimacy of law enforcement, particularly in the eyes of poor and minority communities.

Conservatives also need to care more about ways to hold wrongdoers accountable while minimizing the damage punishment does to families and communities. Punishment is coercion by the state, and it disrupts not only defendants’ lives but also their families and neighborhoods. Contrary to the liberal critique, we need to punish and condemn crimes unequivocally, without excusing criminals or treating them as victims. But we should be careful to do so in ways that reinforce rather than undercut conservative values, such as strengthening families and communities.

Bibas includes a host of recommendations that range from the practical, to the spiritual, to the nonsensical. The author knows nothing of the science of addiction when he writes this:

If we make punishments immediate and predictable, yet modest, even drug addicts respond to them. Hawaii’s Opportunity Probation with Enforcement (HOPE) is an intensive-probation program that has the hardest-core drug users face random urinalysis one day each week; violators immediately go off to a weekend in jail. Though the Left paints drug addiction as a disease requiring costly medical intervention, drug addicts can in fact choose to stop using drugs. Under HOPE, even habitual drug users usually go clean on their own when faced with the immediate threat of two days in jail. Well over 80 percent stop using drugs right away and remain clean, without any further treatment.

The “left” doesn’t say drug addiction is a disease. The AMA and almost the entire medical community say it’s a disease. For most addicts, there is no “choice” — only an overwhelming physical reaction to not using. While it’s true that addiction can be beaten without medical intervention, therapies like 12-step programs and antidepressant drugs give addicts a much better chance to beat their demons than if they simply went cold turkey and locked themselves away.

But that’s a side issue. The notion that we have to integrate felons back into the community sounds dubious. These are not candidates for Sunday school lectures or people who would relish a regular, steady job. Turning the majority of these felons into useful citizens has been a goal of crusading prison reformers for generations. We’ve tried many of their ideas over the years and nothing really has helped.

And Bibas fails to take into account the antisocial and psychopathic behavior of many of these criminals. You can’t fix their minds by giving them a job and a nice place to live. You can only lock them away to protect society. Bibas reluctantly suggests that we must do that, but somehow, I don’t think his definition of dangerous criminal will be broad enough to encompass all potential violent offenders.

Bibas has penned a fascinating article well worth your time.