Too many people are in prison who should not be there. How many? Most of them! It is not that they are wholly innocent of the offenses that put them there. It is that they are in prison mainly because we have criminalized vast areas of conduct involving nonviolent offenders and compounded that with a distorted system of sentencing. Criminal justice cries out for reform.
Since 1980, the prison population has grown by about 800 percent while the country’s population has increased by only a third. We have 5 percent of the world’s population – but 25 percent of its prisoners. By comparison, as Richard Viguerie, chairman of ConservativeHQ.com, noted last year in a New York Times op-ed, the total correctional control rate under President Ronald Reagan (including everyone in prison or jail, or on probation or parole) was less than half the current rate. And here’s another shocker: Nonviolent offenders account for 90 percent of federal prisoners.
The origin of this unseemly record is in our panic about the explosion of addiction in the early 1980s. Alcohol, heroin and marijuana had already been wrecking lives, but a tipping point was passed when crack cocaine transformed addiction into a national catastrophe.
Congress responded with mandatory minimum sentencing. First-time offenders found guilty of possessing a few grams of crack received a five-year mandatory minimum sentence, and if they were part of a “continuing criminal enterprise,” that minimum sentence jumped to 20 years. No wonder drug offenders account for nearly half of federal prisoners and, as The Economist reported last summer, “federal prisons today house nearly 40 percent more inmates than they were designed for.” The inflexible sentencing rules inflict punishments that no reasonable judge would impose – and the system turns out people more harmful to society than when they went in.
Nobody can pretend any longer that these congested facilities are remedial institutions. Exactly the opposite. Viguerie observed that “more than 40 percent of ex-convicts return to prison within three years of release; in some states, recidivism rates are closer to 60 percent.” It is tough enough to get a job when you don’t have a record; too many people who have done time never get a chance.
There is now an awakening to the desperate situation we created (out of the best of motives). It is manifest in Congress, which has a bipartisan bill before it, and, vitally, in the states, which have six times as many prisoners as the federal government.
Attorney General Eric Holder wants to reduce sentences in most drug cases. It is ridiculous to put someone away for 25 years for selling a few pain pills to a colleague. He seeks to reset the sentencing policies for federal judges, and reduce sentences for such crimes by an average of nearly a year. Thieves, fraud artists and tax evaders might well be released earlier, subject to more severe penalties if they offend again. A Department of Justice sentencing panel is about to propose an amendment to federal guidelines with the idea of retaining severe penalties for dangerous and violent drug traffickers while reducing the sentencing ranges for low-level nonviolent drug offenders without connections to gangs or large-scale drug organizations. Mr. Holder also wishes to release more elderly federal inmates earlier and to increase the efforts to help ex-convicts re-enter society.
The states are laboratories of reform, led by vigorous governors. This is not sentiment. It is hardheaded realism: Prison systems cost the states more than $50 billion a year, Viguerie reported, up from about $9 billion in 1985. Texas, under the leadership of Gov. Rick Perry, in 2007 rejected a proposal to build eight prisons. Instead, it is shifting nonviolent offenders into alternative treatment. Probation rather than prison is a key. Savings of approximately $2 billion were achieved in projected corrections spending increases, Viguerie wrote. The incarceration rate has fallen nearly 20 percent, and Texas now has its lowest crime rate since 1968.
The success has been stunning, and the example has been followed by more than a dozen states. Great social gains have been made by investing the savings from bricks and mortar in more and better-paid caseworkers, who are usually overwhelmed. It helps that we now have access to technology that can enhance supervision, like ankle bracelets with GPS and ATM-style check-in stations. Diverting drug users to treatment allows a focus on the problems that provoke their behavior rather than simply punishment.
Governor Andrew Cuomo of New York has launched a college education program. The Wall Street Journal reported in February that a Bard College program started in 1999 that offers courses in six New York prisons has brought the recidivism rate down to 4 percent, compared to 40 percent statewide. The focus is sensibly on community-based programs in lieu of prison expansion. Prisons should return to their primary mission of incapacitating violent criminals.
The momentum must be maintained. Funding is required for the more than 650,000 prisoners who are released every year into society. We cannot just drop them on the curb to fend for themselves. We need programs that improve the odds that a released felon will have options besides unemployment, homelessness or a return to crime. Enlisting family members to ensure an improved outcome once a relative leaves prison is one proven program.
Similarly, we need to improve police work and find out what works. Otherwise, if crime rates start to increase, fear will provoke the American public to once again want to throw everybody into prison. We must understand that prisons have become a training ground for thuggery and criminality, and that nonviolent offenders should be held inside a minimum security prison or even sentenced to home confinement. Not only is that cheaper, but also it eliminates the strain on separated families. Special courts would also help; they could hear the cases of first-time nonviolent drug offenders to determine a suitable sentence.
While we have to be tough on crime, we also have to be just as tough on criminal justice spending, reserving expensive prison beds for career criminals and violent felons, with the aim of getting the most public safety from more efficient expenditure of taxpayer dollars. We also should return the control of significant discretionary dollars for criminal justice to local authorities, who can oversee low-level offenders.
The politics of all this are admittedly touchy. It is easy for opponents to argue that the deterrent effect of imprisonment would thereby be reduced and that some of the released offenders may well commit additional crimes. Recidivism is indeed an issue, but research has shown that half of all parolees are sent back to prison for minor violations like missing meetings with the parole officer.
We cannot remain in the mindset created by the explosion of crime of earlier years. We want those who have committed murder, assault, robbery, rape and battery to be put firmly where they cannot hurt society again, but the pendulum has swung too far towards being unthinkingly tough without consideration of what works. We have enough cells to keep the truly dangerous locked away for a long time. Think of how the billions of dollars spent on building prisons have been siphoned from building roads, hospitals, schools and airports.
The public understands. The Pew Research Center reports that 67 percent of people say the government should be willing to treat people who use illegal drugs; only 26 percent say we should focus on prosecution. More than 60 percent believe it’s appropriate that states move away from mandatory prison sentences for nonviolent drug offenders.
If we do not support the initiatives to reform the system, the verdict could only be: Guilty of waste and injustice.
Mortimer B. Zuckerman
U.S. News & World Report
May 9, 2014
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Get a Little Less Tough on Crime! Prisons are overcrowded. It's time to change that.