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Crime and Punishment
Tempering Expectations on Prison Reform

Prison reformers have won major victories over the last several years, successfully persuading legislatures or voters (in red and blue states alike) to soften penalties for some nonviolent offenses, especially drug crimes. And last year, a bipartisan group of Senators introduced legislation giving judges more discretion in sentencing in certain cases. But even if these reforms retain political support, and even if they spread to other states, they won’t be enough to reverse the phenomenon we now call “mass incarceration,” according to research recently published in The Annals of the American Academy of Political and Social Science. Kate Wheeling summarizes some of the findings for the Pacific Standard:

If you look closely at recent progressive reforms—and at the media’s framing of those reforms—as the researchers did here, you’ll notice that the policy changes afoot have not been comprehensive. Their analysis revealed that progressive sentencing reforms have mostly been limited to non-violent and drug offenses. When it comes to violent or repeat offenders, policymakers calling for reform tended to endorse the current policies or call for even more punitive measures. But research suggests that, to truly make a dent in the tremendous prison population in the United States, broad sentencing reforms—for all types of offenses—will be necessary.

One of the great misconceptions of the criminal justice reform movement is that mass incarceration is first and foremost a consequence of the war on drugs. The American prison population has gone up sevenfold since the 1970s, and drug offenders make up less than a fifth of people currently behind bars. The origins of America’s prison boom lie in the devastating violent crime wave that started in the 1960s and only began to abate in the mid-1990s. Prison reformers could try to build on their momentum by arguing for reductions in sentences for violent offenders (this isn’t always so unreasonable: After all, why should a con artist who defrauded the elderly be a candidate for sentencing reductions rather than someone who punches someone in a bar fight?), but that is likely to be politically toxic, and understandably so.

A more promising avenue for reform involves changing the ways prosecutors exercise their discretion. Since the peak of the crime wave, prosecutors (for both political and institutional reasons) have grown more aggressive about throwing the book at defendants, and sometimes using overwhelming leverage to extract coercive plea bargains. This phenomenon has had a bigger effect on the rise of the prison population than many reformers seem to understand, and tweaking sentencing guidelines—even for violent offenses—won’t do much about it. Prison reformers sometimes get ahead of themselves, but they are probably right that there is at least some room for states carefully to cut their prison populations without seriously increasing crime rates. The best way to go about that would be to reform the plea bargaining system, and to change the incentives and culture in district attorneys’ offices.

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  • Andrew Allison

    The way to eliminate “mass incarceration” is to stop imprisoning people guilty of victimless crimes.

    • rheddles

      90-95% of people are in prison as a result of a plea bargain. We have no idea how many were originally charged with a violent or victimizing crime. This is the outrage.

      In Googling before posting I found that victimless crime included possession of kiddie porn, and being muslim as well as the usual litany of prostitution, gambling and drug use. I believe we overuse incarceration in the prosecution of these crimes and that other means could be utilized to deal with them up to and including full legalization and regulation. But imprisonment should be available as a last resort for repeat offenders and that having 90% of cases disposed with out trial is a disgrace. Plea bargaining is a much greater evil that probably sends countless innocent people to jail.

      • Andrew Allison

        I agree that plea bargains put a number of innocent people in jail, and reform is badly needed. But if those charged with victimless crimes were not prosecuted, there’d be no plea bargain.

        • rheddles

          The problem is people charged with initially with victim, often violent, crimes who are down pled to a victimless crime.

          • Andrew Allison

            I suggested that we stop prosecuting people charged with victimless crimes, not that we stop incarcerating people who plea-bargain down to one.

  • FriendlyGoat

    None of the politicians want to appear “soft” on crime. None of the corrections “business” really wants to lose “business”. None of the under-employed want to compete with more people on the street seeking jobs. None of the prosecutors want to appear “lax”. None of the victims are in much of a mood to reduce sentences. The only real pressure driving “reform” is that the law and order folks and their budgets are uncomfortable with what mass incarceration costs. Sure, there is commentary from social-action groups of all kinds decrying our tendency to “mass incarceration”, but cost is the only factor that would ever move the needle in today’s politics.

  • CapitalHawk

    I happen to think that the real problem is two-fold (a) there are too many crimes on the books (see, e.g. “Three Felonies A Day”) and (b) that even being charged with a crime can be life destroying (both in terms of your reputation and your financial well being – assuming you can afford an attorney at all). My proposed solution (which will likely never happen) is to substantially reduce the number of crimes on the books, grant criminal defendants legitimate legal defense (the public defenders are *woefully* underfunded), and probably most importantly force the government to charge a defendant with only ONE crime per criminal act and never allow them to plea down that charge. This will force the government to charge a defendant in the first instance with a crime they are willing go to trial with – and because its all or nothing it will incentivize more realistic charges. I’ve also considered that it might be a good idea to prohibit plea bargains altogether. This would force the police/prosecutors to prioritize charging for those crimes that are actually important and force many “crimes” into the civil lawsuit arena.

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