Sentencing Reform

6 Misconceptions Underlying Opposition to Sentencing Reform

Is reducing prison terms reckless in light of drug and crime trends?


Senate Judiciary Committee

"With crime rising in America and police increasingly under siege," writes Hudson Institute senior fellow Jeffrey Anderson at The Weekly Standard, "many Senate Republicans have decided it's a good time to liberalize federal sentencing policies." Anderson disagrees. He approvingly quotes Sen. Jeff Sessions (R-Ala.), who complains that bipartisan legislation backed by the chairmen of the Senate and House judiciary committees would "cut prison sentences for drug traffickers and even other violent criminals, including those currently in federal prisons." Sessions, a former U.S. attorney, deems that plainly reckless at a time when "drug use and overdoses are occurring and dramatically increasing," when "violent crime and murders have increased across the country at almost alarming rates in some areas," and when "law enforcement officers across our country have been shot at, killed without provocation, too often simply because they wear a badge." Anderson, still quoting Sessions, closes with the late criminologist James Q. Wilson's observation that "a high risk of punishment reduces crime." Anderson adds that "Republicans used to understand that."

Anderson, with Sessions' help, manages to pack at least half a dozen serious misconceptions into a 375-word post. Let's consider them one at a time.

Is "crime rising in America"? As Jesse Walker noted here last month, the latest FBI numbers show that violent and property crime both fell last year, continuing a "long decline" that began in the mid-1990s. Although some American cities have seen spikes in violent crime this year, it is not clear whether they represent a nationwide increase or, if so, whether that increase represents a reversal of recent trends or a blip.

Are police "increasingly under siege"? Last month my former Reason colleague Radley Balko, who writes about criminal justice for The Washington Post, reported that "2015 is on pace to see 35 felonious killings of police officers" and that "if that pace holds, this year would end with the second lowest number of murdered cops in decades." As Jesse Walker pointed out here, such numbers have never deterred law-and-order types who propagate "the eternally recurring legend of a 'war on cops.'"

Are drug traffickers "violent criminals"? Some are, but there is a clear distinction between stabbing or shooting someone and engaging in consensual transactions that Congress has arbitrarily decided to prohibit. Under current law, doing the latter is enough to trigger mandatory minimum sentences ranging from five years to life. By pretending there is no difference between violent predators and nonviolent drug offenders, opponents of reform make a hash out of any effort to focus criminal justice resources on the lawbreakers who pose the biggest threat to public safety.

Are "drug use and drug overdoses…dramatically rising"? Heroin use and fatal "overdoses" (which usually involve a mixture of heroin with other depressants) have been rising in recent years, but consumption of methamphetamine and cocaine (including crack) has been falling or flat. Over the short term, the main beneficiaries of the bills that Anderson and Sessions oppose will be crack offenders serving sentences that nearly everyone (including Sessions) now agrees are too long. It is hard to see how letting these prisoners out a bit sooner can be expected to have any impact at all on heroin consumption, even assuming that locking up drug dealers reduces drug use.

Does locking up drug dealers reduce drug use? James Q. Wilson, the same criminologist whose lessons Anderson thinks Republicans need to relearn, observed that prison terms for drug dealers "do not have the same incapacitative effect as sentences for robbery," since "a drug dealer sent away is replaced by a new one because an opportunity has opened up." More fundamentally, it is the demand for drugs (combined with prohibition) that creates the black market, not the other way around.

Does shortening sentences reduce the "risk of punishment"? Clearly not. The risk of punishment can remain exactly the same (or increase) while the severity of punishment is reduced. Research suggests that deterrence depends more on the former than the latter.

If this is the best that opponents of sentencing reform can do, the chances that the current Congress will pass decent legislation look pretty good.

[Thanks to CharlesWT for the tip.]

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    … sounds like a new prime time drama, just waiting for a pilot episode. Maybe we could take all of Balko’s nutpunches and reverse the fact pattern. We would have endless material.

    OT: I see a Border Patrol recruiting ad on the page, ha!

    They plug gubmint benes, gubmint retirement…did we mention the gubmint pay?

    1. I’m imagining a buddy cop movie with Virginia Postrel and STEVE SMITH. The Jacket can play the part of the exasperated police chief.

      “You’re a loose cannon, Smith! I got the mayor breathing down my neck!”


      “I’m a strong, independent woman!”

      1. “And I refuse to get on a boat with those lowlife scum!”

        “Dammit, Postrel, you *will* do it in a boat.”

  2. What about the obvious questions?

    Are massive incarcerations a factor in lower crime rates? Do we have less crime because the criminals are locked up?

    1. It’s a legit question for sure. It may in fact be that the decline in crime rates we see is in some way related to the (fair/tough/harsh/draconian – pick your place in the continuum) current sentencing and enforcement regime. The real question is: better for an innocent man to be jailed or a guilty man to go free? The pendulum seems to have swung from one end to the other.

    2. Well, there may be causation but that’s irrelevant. Locking up people for relatively minor infractions for decades is unjust, no matter the effects.

    3. Also, our incarceration happy society has created an underclass, people who have trouble finding employment, maintaining financial accounts (a drug conviction is a HUGE red flag to any bank), or even voting. The entire system is unjust, even if it lowered the crime rate by X% over a couple decades. The ends don’t justify the means…

  3. America has been thrust into chaos by the end of stop and frisk.

    We’re dooooooomed.

  4. The entire “justice ” system is a fraud,a scam .

    That means: the constitution, the bill of rights, the supreme court, the FBI, the cops and the courts. Always have been, always will be.

    A fraud/scam cannot be “reformed”. It’s like putting lipstick on a pig. A waste of time.

    However, I’m betting:

    “In In your dreams the constitution was not a scam,
    In your dreams, the supreme court is not a scam
    In your dreams, the FBI is not a scam
    “In your dreams the cops and the courts are not a scam,

    ……And so on and so forth, ad infinitum 🙂 .

    My original music and lyrics: “Dreams[ Hormegeddon Blues]”:

    Regards, onebornfree.
    Personal Freedom consulting: onebornfreeatyahoodotcom

  5. Reasonable, fact-based arguments have never been winners in Congress…

  6. “a high risk of punishment reduces crime.”

    But it also increases the risk of innocent lives and livelihoods ruined by a prank call to the police or bad judgment by overzealous drug warriors. Republicans don’t seem to understand THAT.

  7. If there’s a drug problem, how about we decriminalize drugs and make it easier for people with addiction problems to seek help instead of throwing everybody in jail?

  8. Are the prisons over-crowded?
    I think some law breakers should be in there but most others probably not. Mandatory sentencing seems to cause the opposite situation.

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