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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.

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