The president leads the charge to cut the prison population, but mass incarceration isn’t the problem
By Heather Mac Donald
The Wall Street Journal
October 23, 2015
President Obama paid a media-saturated visit in July to a federal penitentiary in Oklahoma. The cell blocks that he toured had been evacuated in anticipation of his arrival, but after talking to six prescreened inmates he drew some conclusions about the path to prison. “These are young people who made mistakes that aren’t that different than the mistakes I made and the mistakes that a lot of you guys made,” the president told the waiting journalists. The implication was that anyone who had smoked marijuana and tried cocaine (as Mr. Obama had) could land in a place like the El Reno Federal Correctional Institution.
The conceit was preposterous. It takes a lot more than marijuana or cocaine use to end up in federal prison. But the truth didn’t matter. Mr. Obama’s prison tour came amid the biggest delegitimation of law enforcement in recent memory. Activists, politicians and the media have spent the past year broadcasting a daily message that the criminal-justice system is biased against blacks and insanely draconian. The immediate trigger for this movement, known as Black Lives Matter, was a series of highly publicized deaths of black males at the hands of the police. But the movement also builds on a long-standing discourse from the academic left about “mass incarceration,” policing and race.
Now that discourse is going mainstream. As the media never tire of pointing out, some high-profile figures on the right are joining the chorus on the left for deincarceration and decriminalization. Newt Gingrich is pairing with left-wing activist Van Jones, and the Koch brothers have teamed up with the American Civil Liberties Union to call for lowered prison counts and less law enforcement. Republican leaders on Capitol Hill support reducing or eliminating mandatory sentences for federal drug-trafficking crimes, in the name of racial equity.
At the state and city levels, hardly a single criminal-justice practice exists that is not under fire for oppressing blacks. Traffic monitoring, antitheft statutes, drug patrols, public-order policing, trespass arrests, pedestrian stops, bail, warrant enforcement, fines for absconding from court, parole revocations, probation oversight, sentences for repeat felony offenders—all have been criticized as part
of a de facto system for locking away black men and destroying black communities.
There may be good reasons for radically reducing the prison census and the enforcement of criminal laws. But so far the arguments advanced in favor of that agenda have been as deceptive as the claim that prisons are filled with casual drug users. It is worth examining the gap between the reality of law enforcement and the current campaign against it, since policy based on fiction is unlikely to yield positive results.
Two days before his Oklahoma penitentiary visit, Mr. Obama addressed the NAACP national conference in Philadelphia and raised the same themes. The “real reason our prison population is so high,” he said to applause, is that we have “locked up more and more nonviolent drug offenders than ever before, for longer than ever before.”
This assertion is the most common fallacy of the deincarceration movement, given widespread currency by Michelle Alexander’s 2010 book, “The New Jim Crow.” That a president would repeat the myth is a demonstration of the extent to which ideology now rules the White House.
Pace Mr. Obama, the state-prison population (which accounts for 87% of the nation’s prisoners) is dominated by violent criminals and serial thieves. In 2013 drug offenders made up less than 16% of the state-prison population; violent felons were 54% and property offenders 19%. Reducing drug-related admissions to 15 large state penitentiaries by half would lower those states’ prison count by only 7%, according to the Urban Institute.
In federal prisons—which hold only 13% of the nation’s prisoners—drug offenders make up half of the inmate population. But these offenders aren’t casual drug users; overwhelmingly, they are serious traffickers. Fewer than 1% of drug offenders sentenced in federal court in 2014 were convicted of simple drug possession, according to the U.S. Sentencing Commission. Most of those possession convictions were plea-bargained down from trafficking charges.
Another myth promoted by the deincarceration movement is that blacks are disproportionately targeted by federal drug prosecutions. The numbers tell a different story: Hispanics made up 48% of drug offenders sentenced in federal court in 2013; blacks were 27%, and whites 22%.
Even on the state level, drug-possession convicts are rare. In 2013 only 3.6% of state prisoners were serving time for drug possession—again, often the result of a plea bargain on more serious charges—compared with 12% of prisoners convicted of trafficking. Virtually all the possession offenders had long prior arrest and conviction records.
Nor is it true that rising drug prosecutions drove the increase in the prison population from the late 1970s to today. Even during the most rapid period of prison growth—from 1980 to 1990—violent prisoners accounted for 36% of the rise in the state prison population, compared with 33% from drug offenders. From 1990 to 2000, violent offenders accounted for 53% of the census increase and all of the increase from 1999 to 2004.
Mr. Obama and other incarceration critics have targeted mandatory minimum sentences for federal drug crimes. The current penalty structure is hardly sacrosanct, but mandatory sentences are an important prosecutorial tool for inducing cooperation from defendants. The federal minimums are also not lightly levied. A 10-year sentence for heroin trafficking requires possession of a kilogram of heroin, enough for 10,000 individual doses, with a typical street value of at least $70,000. Traffickers without a serious criminal history can avoid application of a mandatory sentence by cooperating with investigators. It is their choice not to do so.
Critics of “mass incarceration” love to compare American incarceration rates unfavorably with European rates. Crime is inevitably left out of the analysis. The U.S. homicide rate is seven times higher than the combined rate of 21 Western developed nations plus Japan, according to a 2011 study by researchers at the Harvard School of Public Health and the UCLA School of Public Health. The same people who denounce American gun violence (responsible for the great majority of U.S. homicides) and call for gun control in a domestic context go silent about such violence when using Europe as a cudgel against the American prison system.
Contrary to the advocates’ claim that the U.S. criminal-justice system is mindlessly draconian, most crime goes unpunished, certainly by a prison term. For every 31 people convicted of a violent felony, another 69 people arrested for violence are released back to the streets, according to a 2007 analysis of state courts by the Bureau of Justice Statistics. That low arrest-to-conviction rate reflects, among other things, prosecutors’ decisions not to go forward with a case for lack of cooperative witnesses or technical errors in police paperwork. The JFA Institute estimated in 2007 that in only 3% of violent victimizations and property crimes does the offender end up in prison.
Far from being prison-happy, the criminal-justice system tries to divert as many people as possible from long-term confinement. “Most cases are triaged with deferred judgments, deferred sentences, probation, workender jail sentences, weekender jail sentences,” writes Iowa State University sociologist Matt DeLisi in a forthcoming issue of the Journal of Criminal Justice.
Offenders given community alternatives “are afforded multiple opportunities to violate these sanctions only to receive additional conditions, additional months on their sentence, or often, no additional punishments at all,” Mr. DeLisi adds. In 2009, 27% of convicted felons in the 75 largest counties received a community sentence of probation or treatment, and 37% were sentenced not to prison but to jail, where sentences top out at one year but are usually completed in a few weeks or months. Only 36% of convicted felons in 2009 got a prison term.
Statistical war continues to be waged over incarceration’s role in the last two decades’ decline in crime, with activists and many academics denying that incarceration contributed to the drop. Given the nonstop pressure from the Black Lives Matter movement, we may be embarking on another real-world experiment testing the relationship between incapacitation and crime.
If the country is really serious about lowering the prison count, it is going to have to put aside the fictions about the prison population. The legendary pot-smoker clogging up the rolls is long gone, if he ever existed. Cutting the prison population will require slashing the sentences of violent criminals and property offenders (many of whom have violent histories) and keeping more of them in the community after their convictions.
On Tuesday night, New York Police Officer Randolph Holder was fatally shot in the head. His killer, according to law-enforcement authorities, was a career criminal who had been diverted to drug treatment after his latest conviction, in lieu of a prison term. The shooter had absconded from his drug program, authorities said, and was gang-banging in an East Harlem housing project when he killed Officer Holder, who had responded to reports of shots fired.
Clearly, if community alternatives to incarceration are going to work, far tighter screening and supervision will be required.
A more promising alternative to incarceration is policing—above all, pedestrian stops and Broken Windows policing. New York’s prison population dropped 17% between 2000 and 2009, while the number of prisoners in the rest of the country continued to rise. The decrease in the New York prison population is all the more surprising, since the average sentence meted out to convicted felons over that period increased considerably, contradicting the standard deincarceration line of attack.
The different trajectories of the New York and national prison counts reflect the onset, in 1994, of the New York City Police Department’s practice of aggressively enforcing quality-of-life laws and stopping and questioning people engaged in suspicious behavior. Misdemeanor arrests in the city doubled from 1990 to 2009, while felony arrests (and thus, felony convictions) plummeted, as documented by Michael Jacobson and James Austin, in a 2013 study for the Brennan Center for Justice. Even though convicted felons in New York were being sentenced to longer terms, there were far fewer such convicts, so the overall incarcerated population fell. And the reason for that drop in felony crime is that the NYPD was apprehending potential felons for lower-level quality-of-life offenses and getting them off the street before they had the opportunity to commit more serious crimes.
Reasonable-suspicion stops represent an even earlier intervention in potentially serious criminal behavior: Questioning someone who looks to be casing a jewelry store in an area plagued by burglaries may prevent a subsequent break-in. And the possibility of getting stopped deters crime in the first place. Yet the political opposition to policing, especially to misdemeanor enforcement and pedestrian stops, is even more pointed now than the opposition to incarceration.
The demonization of the police and the criminal-justice system must end. As the Black Lives Matter movement marches forward with no apparent diminution of strength, there are signs that the very legitimacy of law and order is breaking down in urban areas. Resistance to lawful police action is becoming routine. Officers are reluctant to engage, given the nonstop campaign against them.
Homicides in 35 large U.S. cities this year were up nearly 20% by August. Liberal elites have successfully kept attention focused exclusively on phantom police and criminal-justice racism while squelching even the most nascent discussion of the crime-breeding chaos of broken families at the heart of inner-city underclass culture. We are playing with fire.
Ms. Mac Donald is the Thomas W. Smith Fellow at the Manhattan Institute. This op-ed was adapted from the 25th-anniversary issue of the institute’s City Journal, where Ms. Mac Donald is a contributing editor.
EDITOR’S NOTE: Most of what Heather Mac Donald is saying is what I have been saying all along.
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