The Decriminalization Delusion

In July 2015, President Obama paid a press-saturated visit to a federal penitentiary in Oklahoma. The cell blocks that Obama toured had been evacuated in anticipation of his arrival, but after talking to six carefully 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 reporters.

The New York Times seconded this observation in its front-page coverage of Obama’s prison excursion. There is but a “fine line between president and prisoner,” the paper noted. Anyone who “smoked marijuana and tried cocaine,” as the president had as a young man, could end up in the El Reno Federal Correctional Institution, according to the Times.

This 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. Obama’s prison tour came in the midst of the biggest delegitimation of law enforcement in recent memory. Activists, politicians, and the media have spent the last year broadcasting a daily message that the criminal-justice system is biased against blacks and insanely draconian. The immediate trigger for that movement, known as Black Lives Matter, has been 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 press never tires 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 ACLU, for example, 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.

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Two days before his Oklahoma penitentiary visit, 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 ubiquitous 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 Obama, the state prison population (which accounts for 87 percent of the nation’s prisoners) is dominated by violent criminals and serial thieves. In 2013, drug offenders made up less than 16 percent of the state prison population, whereas violent felons were 54 percent of the rolls and property offenders, 19 percent. Reducing drug admissions to 15 large state penitentiaries by half would lower those states’ prison count by only 7 percent, according to the Urban Institute.

True, drug traffickers make up a larger (though declining) portion of the federal prison population: half in 2014. But federal prisons hold only 13 percent of the nation’s prison population. Moreover, it is hardly the case that “but for the grace of God,” as Obama put it, he could have been incarcerated in Oklahoma’s El Reno for getting stoned as a student. Less than 1 percent of sentenced drug offenders in federal court in 2014 were convicted for simple drug possession, according to the U.S. Sentencing Commission, and most of those convictions were plea-bargained down from trafficking charges. Contrary to the deincarceration movement, blacks do not dominate federal drug prosecutions. Hispanics were 48 percent of drug offenders sentenced in federal court in 2013, blacks were 27 percent, and whites 22 percent.

Even on the state level, drug-possession convicts are relatively rare. In 2013, only 3.6 percent of state prisoners were serving time for drug possession, often the result of a plea bargain, compared with 12 percent of prisoners convicted for trafficking. Virtually all the possession offenders had long prior arrest and conviction records. {snip}

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 percent of the rise in the state prison population, compared with 33 percent from drug offenders. (See “Is the Criminal-Justice System Racist?,” Spring 2008.) From 1990 to 2000, violent offenders accounted for 53 percent of the census increase and all of the increase from 1999 to 2004.

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 ten-year sentence for heroin trafficking, for example, 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.

The critics of “mass incarceration” love to compare American incarceration rates unfavorably with European ones. Crime is inevitably left out of the analysis. Jeremy Travis and Nicholas Turner, head of the John Jay College of Criminal Justice and the Vera Institute, respectively, penned a classic treatment of this theme in the New York Times in August 2015. Germany’s incarceration rate is one-tenth that of the U.S., they fumed. “To be sure,” they acknowledged, “there are significant differences between the two countries.” And might those “significant differences” have anything to do with crime, perhaps with the fact that the U.S. rate of gun homicide is about 17 times higher than that of Germany? Of course not. No, for Travis and Turner, the key difference is that “America’s criminal justice system was constructed in slavery’s long shadow and is sustained today by the persistent forces of racism.” The same people who denounce American gun violence and call for gun control in a domestic context go silent about gun violence when using Europe as a club to cudgel the American prison system. 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 of the Harvard School of Public Health and the UCLA School of Public Health. This disparity is largely fueled by the American firearm homicide rate: 19.5 times higher than in the comparison high-income countries, according to 2003 data. Among 15- to 24-year-olds, Americans kill with guns at nearly 43 times the rate of their counterparts in those same industrialized nations. Since the American prison system is driven by violent crime, it is not surprising that America’s incarceration rate is higher than Europe’s.

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The vast majority of felony defendants whom a district attorney decides to prosecute rather than divert out of the system have an extensive criminal history, yet were still in the community committing crime. Half of the defendants charged with a felony in 2009 in the 75 largest counties had five or more prior arrests, and 36 percent had ten or more. About three in five had at least one prior conviction, and 30 percent had multiple felony convictions, with 11 percent of felony defendants having five or more previous felony convictions. Yet the majority of those offenders will still not get a prison term. Among those who wind up sentenced to prison, the prior records are even longer. The average number of prior convictions for inmates released from state prison in 2005 was five; the average number of prior arrests was more than ten.

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The biggest myth about the criminal-justice system is not that it mindlessly metes out overlong sentences but that the disproportionate number of blacks in prison reflects bias by police, prosecutors, and judges. “The bottom line is that in too many places, black boys and black men, Latino boys and Latino men experience being treated differently under the law,” President Obama told the NAACP conference in July, echoing a line he has made with increasing frequency over the last year. Incarceration “disproportionately impacts communities of color,” Obama said. “African Americans and Latinos make up 30 percent of our population; they make up 60 percent of our inmates.”

Naturally, Obama said nothing about crime rates. It is not marijuana-smoking that lands a skewed number of black men in prison but their elevated rates of violent and property crime. A 2011 study of California and New York arrest data led by Pennsylvania State University criminologist Darrell Steffensmeier found that blacks commit homicide at 11 times the rate of whites and robbery at 12 times the rate of whites. Such disparities are repeated in city-level data. In New York City, blacks commit over 75 percent of all shootings, according to the victims of and witnesses to those shootings, though they are only 23 percent of the city’s population. They commit 70 percent of all robberies. Whites, by contrast, commit under 2 percent of all shootings and 4 percent of all robberies, though they are 34 percent of the city’s population. In the 75 largest county jurisdictions in 2009, blacks were 62 percent of robbery defendants, 61 percent of weapons offenders, 57 percent of murder defendants, and 50 percent of forgery cases, even though nationwide, blacks are 12 percent of the population. They dominated the drug-trafficking cases more than possession cases. Blacks made up 53 percent of all state trafficking defendants in 2009, whites made up 22 percent, and Hispanics 23 percent, whereas in possession prosecutions, blacks were 39 percent of defendants, whites 34 percent, and Hispanics 26 percent.

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Statistical war continues to be waged over incarceration’s role in the last two decades’ crime decline, with all activists and many academics still denying that incarceration contributed to the crime 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, however, 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 were ever there. 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. The problem is not the “Michelle Alexander story that we have too many harmless people in prison,” says New York University public-policy professor Mark Kleiman. “Most of the problem is that we have too many murderers in prison.”

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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 were up nearly 20 percent by August 2015. 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 inner-city underclass culture. We are playing with fire.