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The Danger of the Mass Incarceration Movement to Public Safety and Justice

The movement against “mass incarceration” raises some meritorious issues. Laws against non-violent crimes, particularly drug offenses, have often been too draconian. Mandatory minimums not infrequently prevent judges from making the punishment fit the crime, including its circumstances. Society needs to focus more on helping many of those in prison make the transition to more law-abiding and productive lives. Congress’s First Step Act, passed last year, was on balance good legislation because it moved to improve the criminal justice system on some of these dimensions. States should consider similar legislation as well.

But much of the mass incarceration movement is more radical and many of its ideas would endanger the law-abiding. The movement forgets injustices, which can come from too little punishment as well as too much. An excellent example of these excesses comes in Emily Bazelon’s op-ed for the New York Times on Sunday, where she calls relaxing punishments for violent as well as non-violent crimes.

Surprisingly, in support of this position, Bazelon praises a Seattle prosecutor who released twenty-one offenders sentenced to very long prison terms and boasts that only three have been rearrested, but admits that one engaged in a “killing.” Perhaps Bazelon will consider me harsh, but I think that this one death casts serious doubt on the wisdom of the program. In defending the reasonable doubt standard for criminal conviction, William Blackstone famously said that better that twelve guilty people be freed than one innocent convicted. But I do not believe that the sentiment that better that one innocent person be murdered than twenty convicts be incarcerated has quite the same ring of truth. And of course we cannot be confident that more crimes will not be committed during the period that these criminals would have been incarcerated. One of the most important reasons for incarcerating violent criminals for long periods is that for many, the only cure for violent tendencies is old age.

Bazelon also downplays some kinds of crimes correctly classified as violent. Some, she says, are just “purse snatching,” for instance. But purse snatching can be a dreadful violation of a citizen’s sense of security and well-being. Victims of these crimes, who are predominantly poor and minority, can become much more fearful of doing everyday activities. It is unjust that such acts not be punished quite severely. And while Bazelon talks about the importance of second chances, in most jurisdictions these kind of crimes even now do not get severe punishment unless repeated.

Nor is Bazelon content with just changing the criminal law. Criminal justice reform for her is also social welfare expansion, as she calls for the social provision of better housing, health care, and education. But history in America does not support the view that these are effective remedies for crime. It was shortly after the war on poverty that crime rates began to soar in the seventies. And the decline in crime of the last two decades followed not renewed social welfare programs, but more sophisticated policing that relied on data programs, like Compstat, and better theories of the causes of social disorder, like that of the famous broken windows hypothesis that suggested that prosecuting minor offenses can create a sense of order that will prevent worse crimes.

With enough police and prosecutors, society has sufficient knowledge to enforce relatively simple laws against violence. Using the social welfare system to ensure that people are well educated, healthy and well-housed requires not only many more resources, but information that society frequently lacks. That is why so many past programs in these areas have been ineffective and indeed counterproductive, like most of public housing. Sadly, the movement for criminal justice reform is morphing into just another group in favor of big government.

Reader Discussion

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on April 09, 2019 at 11:32:31 am

Coupla things:

1) That only three of 26 released felons are KNOWN to have been rearrested is misleading. Far too many crimes go unreported AND unsolved. While I will not argue "once a felon, always a felon", recidivism, whether resulting in an arrest or not, is still a phenomenon that cannot be ignored.
2) Seattle has never employed, much less acknowledged the existence / utility of of "broken windows" policing. It has, however, placed itself at the forefront of "Broken FEELINGS' policing. It appears to be more concerned with protecting the self-esteem of all manner of mischievous, ill-mannered, unproductive types AND LGBT cadres who are presumptively weak and unable to bear the onerous burden of "inadvertent offense." Those engaging in such offense are quickly sent to Coventry. On the bright side, those sent to Coventry no longer need to navigate their way around feces laden sidewalks, discarded hypodermics and the unrelenting "beggary" of the now well protected homeless hordes.
3) Consequently, Seattle IS dying while, like a person in an opiate induced end state at hospice, believes in its own euphoric epistemology, unwilling to accept / recognize its own imminent demise.
4) thus, what is one more murder when a "point" may be demonstrated.

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gabe
on April 09, 2019 at 11:52:54 am

Thanks for your kind correction.

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John O. McGinnis
on April 09, 2019 at 12:48:31 pm

The general debate on mass incarceration would benefit from more focus on the need to establish optimal punishment relative to deterring crime. It does look rather likely that there has been over criminalization in the US, possibly because marginal criminal deterrence has been lost by "overkill" (retributive) sentencing. Statute law can result from political vote seeking and that it has displaced common-law protections such as merger of charged offenses, thereby leading to higher than necessary sentences. The focus on non-violent versus violent offenses (seems okay just to ease up on non-violent offenders without further inquiry?) is somewhat misleading; we should focus on seriousness of victims' losses in creating deterrence, and there are high-loss non-violent crimes. Prison rolls are implausibly high but care is needed in bringing them down so as to preserve needed deterrence while removing overkill sentencing. What is the point of a 436-year sentence?

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Tony Tiger
on June 18, 2019 at 05:51:17 am

I am surprised to see how many people get incarcerated every year.

https://docs.google.com/spreadsheets/d/1Nwlo70hlc6I-cesVqRUGV-0UkOP7UJDd3QGAHaBpFK4/edit#gid=0

almost 50k every month in US for the year 2019. Very shocking.

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Scally
on June 18, 2019 at 05:52:51 am

I am surprised to see how many people get incarcerated every year. Very shocking https://docs.google.com/spreadsheets/d/1Nwlo70hlc6I-cesVqRUGV-0UkOP7UJDd3QGAHaBpFK4/edit#gid=0

Almost 50k every month for the year 2019.

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Shally Scott

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.