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Honesty, Not Agitation, Needed in the Criminal Justice Reform Discussion

In recent months, writer Sean Kennedy has written a series of pieces claiming that policymakers should be hesitant to embrace criminal justice reform because core components of the reform movement are supposedly “myths.” Kennedy’s points aren’t new to criminal justice reform critics, and neither is the data disproving them.

Crime Trends

Much of Kennedy’s frequent rants against criminal justice reform posits on the notion that the decade long decrease in crime is attributed to the increase in incarceration. Further, he claims that the recent uptick in crime in some cities is a direct response to reform efforts by “putting criminals back on the streets”. These are valid concerns and while violent crime did increase in some cities and minimally nationwide, this uptick does not alter the larger downward trajectory of crime that started in 1994.

The most recent crime data is the 2015 preliminary Uniform Crime Report which provides data for the first 6 months of 2015 compared to the first 6 months of prior years. According to this data, violent crime increased 1.7 percent in the first six months of 2015, compared to the same time last year. While alarming, this increase is hardly significant. Despite a 1.7 percent increase over the year, the violent crime rate is down 8 percent from 5 years ago, down 21 percent from 10 years ago, and down 51 percent from its peak.

Pew Research has noted that gun-related homicides, excluding suicides, declined by nearly 49 percent between 1993 and 2014. In this same period, the nonfatal firearm crime victimization rate dropped by almost 75 percent. In the midst of this decline in homicides, according to the Federal Bureau of Investigation, there were two years, 2005 and 2006, in which the homicide rate increased, before it began to fall again in 2007. In order to have an honest discussion about criminal justice, the emphasis on year-over-year trends must be replaced with data depicting the larger picture.

Research is mixed on the impact of incarceration on crime, but lengthy sentences have been found, at best, to attribute to 10 to 25 percent of the crime decline without controlling for diminishing returns. Even the most liberal estimates find that over 75 percent of the crime decline is due to reasons outside of incarceration, yet Kennedy fails to address this fact entirely. The United States does not simply have lengthy sentences; however, we’ve also experienced an unprecedented increase in incarceration that has been unmatched on the global scale.

The ability for incarceration to be effective hinges on the degree to which it is used; as the incarceration rate rises and more people are put in prison for less serious crimes, the crime-reducing benefit of locking up each additional prisoner reduces. Put simply, the effectiveness of a prison to protect society from violent criminals is determined by the degree to which it actually houses violent criminals. The most recent research that has been able to fully examine the impact of our continued increase in incarceration found that it attributed to about 6 percent of the decline in property crime from 1980 to 2013 and had no effect on the decline in violent crime.

Criminal justice reform is not about denying the public-safety benefits of incarceration; rather, it’s about reducing the incarceration rate to a level at which it can operate successfully.

Nonviolent Offenders and the Increase in Incarceration

Kennedy claims that the increase in incarceration over the last decade has not been fueled by nonviolent and/or drug offenders, but again the data paints a very different story.

Using the same source cited by Kennedy you find that, yes, 53 percent of state prisoners are serving sentences for violent crimes (2013), but omitted from his argument is the fact that this number drops to a striking 7.3 percent for federal inmates. While the snapshot of our current prison population is concerning in and of itself, to understand what fueled the increase in incarceration you must also refer to older data, to which Kennedy did not provide.

The increase in incarceration was launched by the “tough on crime” era beginning in 1980 and was promulgated by substantial increases in both the number of people sent to prison and time served. The number of Americans incarcerated for drug offenses increased by over 1000 percent, from 41,000 in 1980 to nearly 500,000 in 2014.

In 1984, truth-in sentencing swept the nation, requiring offenders to serve a minimum of 85 percent of their sentence before becoming eligible for parole. This fueled a 36 percent increase in time served for federal drug offenders between 1980 and 2011. Notably, while time served for drug offenders increased, time served for all other offenders declined by 3 percent.

Drug Trafficking

Despite denying the role of drug crime on the rise in incarceration, Kennedy is quick to point out that the overwhelming majority of federal prisoners locked up for drug crimes have been charged with trafficking. What is important to understand in this context is that trafficking on the federal level is defined only by the quantity of drugs in possession at the time of the arrest and many of these thresholds are staggeringly low – 5 grams of pure methamphetamine (less than 0.2 ounces), 28 grams of crack (less than 1 ounce), or 1 gram of LSD (less than .04 ounces), for example.

Because of these thresholds, the median quantity of drugs for most traffickers is quite low: between .9 and 1.5 pounds for heroin traffickers and between 28 and 112 grams for crack traffickers. Further exemplifying the need for reform is the fact these policies are doing almost nothing to keep our streets safer; 75 percent of offenders charged with trafficking have no serious history of violence and over half (56 percent) have no violent history at all. In fact, only 14 percent of those charged with drug trafficking actually played a leading role in the offense. The people serving drug trafficking offenses are hardly the international drug lords depicted in the movies, and yet this is the group most often sentenced with mandatory minimums. Depending on the quantity, first-time drug offenders are sentenced with a 5 or 10 year mandatory minimum that doubles on the second offense. This is not good policy, why is that so hard to understand?

Mandatory Minimums

Mandatory minimums, and the larger issue of sentencing discretion, are central to the criminal justice reform movement. Kennedy is an unsurprising advocate for mandatory minimums as an effective way to sentence high-level offenders, despite very clear sentencing data that shows otherwise. According to the Sentencing Commission, of the roughly 10,000 federal offenders charged with drug crimes carrying mandatory minimum sentences, only 50.7 percent remained subject to those penalties at sentencing.

The vast majority of those relieved were relieved by providing substantial assistance, or information, to the government. Put simply, the more information an offender knows – presumably because of their rank within the illegal market – the more bargaining power they have sentencing. The same kingpins that Kennedy claims mandatory minimums target are the exact offenders most often relieved.

As Judge William Wilkins, the first chair of the U.S. Sentencing Commission, once said, “There are few Federal judges engaged in criminal sentencing who have not had the disheartening experience of seeing major players in crimes before them immunize themselves from the mandatory minimum sentences by blowing the whistle on their minions, while the low-level offenders find themselves sentenced to the mandatory minimum prison term so skillfully avoided by the kingpins.”

Criminal justice reform advocates are often criticized by people like Kennedy for promoting policies that put violent criminals back on the street, but those criminals were never incarcerated in the first place! Not under our current sentencing structure. Not without reform. Criminal justice reform is about preserving our prisons for the criminals that pose an actual threat to public safety, and granting judges the discretion to determine who those offenders are based on the individual details of each case—not drug quantity.

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