Beware the Next Step on Criminal-Justice Reform

“….First, 23% of felons convicted of violent crimes are sentenced to no incarceration whatever. Second, nearly 80% of state prison inmates are released before serving their full terms. If we measure punishment by actual time served, the picture is not disturbing. Some might argue that America has an underpunishment problem. The U.S. Bureau of Justice Statistics reports that of inmates released in 2016 from state prisons in 44 states, the median murderer had served 13.4 years in prison. The median for those convicted of any violent crime—murder, manslaughter, rape, robbery or assault—was 2.4 years. The average time served is higher than the median—4.7 years—but the average is skewed upward by a small number of unusually long imprisonments. If we look at all state prisoners released in 2016 regardless of offense, the average stay was 2.6 years and the median was 1.3 years. Seventy-seven percent of state prisoners are freed after less than three years behind bars. While that doesn’t include time spent in jail before trial or while awaiting transfer to prison, the jail time is usually a matter of months and is credited toward the time served in prison….”

Barry Latzer, "Beware the Next Step on Criminal-Justice Reform,"Wall Street Journal, December 23, 2018, https://www.wsj.com/articles/beware-the-next-step-on-criminal-justice-reform-11545598957

Beware the Next Step on Criminal-Justice Reform

The First Step Act, which President Trump signed Friday, is a federal prisoner-leniency measure and a worthy reform. It grants a limited number of federal offenders rational and modest sentence reductions, incentives for rehabilitation, and some humane improvements while they serve their sentences. Yet it contains nothing radical to diminish the criminal-justice system or undermine public safety. The provisions for electronic monitoring of early-release prisoners are a welcome down-payment on the best hope for the future of criminal justice—technology.

But having passed the First Step Act, lawmakers should be cautious about the next step. Progressives believe that the U.S. overincarcerates and needs to cut back sharply on the number of people in jails and prisons. But the “mass incarceration” claim doesn’t withstand much scrutiny.

Even progressives must acknowledge that the overwhelming majority of prison inmates are guilty. Thus if it is true that they are overincarcerated, it must be because too many guilty criminals are locked up, because their punishments are excessive, or some combination of the two.

Since more than half of violent crimes go unreported and police solve only a small percentage of those that are (about 26% of reported robberies, for instance), it is difficult to argue that America incarcerates too many offenders. While perhaps an argument can be made for reducing low-level arrests (think possession of small amounts of marijuana), those offenders, when they are held at all, almost always go to jail, not prison, which is for serious and repeat offenders.

What about overpunishment? Are penalties so harsh that American prisons are filled with men and women who are languishing there for decades because of some youthful indiscretion? That is the image the disincarceration movement wants to conjure up. But it is false.

First, 23% of felons convicted of violent crimes are sentenced to no incarceration whatever. Second, nearly 80% of state prison inmates are released before serving their full terms. If we measure punishment by actual time served, the picture is not disturbing. Some might argue that America has an underpunishment problem.

The U.S. Bureau of Justice Statistics reports that of inmates released in 2016 from state prisons in 44 states, the median murderer had served 13.4 years in prison. The median for those convicted of any violent crime—murder, manslaughter, rape, robbery or assault—was 2.4 years. The average time served is higher than the median—4.7 years—but the average is skewed upward by a small number of unusually long imprisonments.

If we look at all state prisoners released in 2016 regardless of offense, the average stay was 2.6 years and the median was 1.3 years. Seventy-seven percent of state prisoners are freed after less than three years behind bars. While that doesn’t include time spent in jail before trial or while awaiting transfer to prison, the jail time is usually a matter of months and is credited toward the time served in prison.

If these punishments don’t seem excessive, and the overwhelming number of people imprisoned deserve their fate, then what will the “second step” entail? Additional policy changes to accelerate disincarceration appear to be unnecessary. In the past decade, according to Bureau of Justice Statistics figures, nationwide incarceration rates have steadily declined and now are at their lowest rate since 1996.

Undoubtedly the decline reflects falling crime rates. Despite upticks since 2015, the U.S. murder rate—the most accurately counted crime, since there are few unreported murders—has been modest, especially compared with the early 1990s. The 2017 rate (5.4 murders per 100,000 Americans) is down 45% from the 1991 rate (9.8). In addition, since the recession of 2007-09, at least 20 states have cut back on criminal-justice expenditures, most likely as a means of cost-saving.

The risk in the second step of criminal-justice reform is that it goes too far. The justice system, flawed though it is, provides incentives to desist from crime. The weaker it gets, the greater the risk of a significant crime increase. That happened in the late 1960s: When the crime tsunami began, the system caved in. Police arrested fewer offenders, and courts imposed fewer and lighter punishments. That contributed to the 20th century’s worst sustained violent-crime wave.

The saver in all this may be that the First Step Act affects only federal prisoners, and each state can judge for itself whether or not—and how much—the system should be softened as a second step.