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Crime and Punishment
Misconceptions on Mass Incarceration

Secretary Hillary Clinton has been taking a beating from the civil rights left over her strong support for the 1994 crime bill, which toughened sentences for a range of federal offenses, and, according to its critics, was particularly devastating to African American men. While some of this criticism may be warranted—especially given Clinton’s recent efforts to cast herself as a full-throated supporter of Black Lives Matter—it is probably not the case that the crime bill was a very big driver of the phenomenon we now call mass incarceration. In fact, no federal policy was. As Fordham law professor John Pfaff explains in an illuminating interview with Slate:

The reason I push so hard against this idea that the 1994 act caused mass incarceration is not just a desire for historical accuracy, although I think that’s important. It’s that saying that the 1994 act caused mass incarceration seems to imply that the federal government can get us out of the problem too. If Clinton passed a law that caused this to happen, then conceivably D.C. should be able to pass a law that reverses this problem. And that’s just not right. This is not a federal issue. And to stress that the feds didn’t cause it is important because it drives home the fact that if you really want to fix it, you have to go state by state, county by county, and change state criminal codes, change DA charging practices, and change how the plea bargaining system works. Nothing can come out of D.C. that can fix this because it’s not really a fed-created problem. And that’s what really bothers me about this ’94 act narrative. By saying the Clintons caused it, it suggests whoever is president next can fix it. And that’s just not true.

As the Senate mulls a bill to ease sentencing for some offenses, it’s important for people who want to see prison reform—and we count ourselves among that group—to remember Pfaff’s perspective. The federal government didn’t create this problem, and, while it can make some progress on the margins, it can’t solve it, either. For one thing, ninety percent of prisoners in America are housed in state, not federal, facilities. Moreover, as Pfaff suggests, and as we’ve written before, much of the real action in criminal justice reform is in plea bargaining and prosecutorial culture, not just sentencing. For a variety of reasons, prosecutors have grown much more aggressive in throwing the book at defendants over the last several decades.

People really interested in reducing the prison population can’t be satisfied with a federal law marginally reducing minimum sentences, or even with state-level legislation knocking a few misdemeanors down to infractions. Initiatives like these don’t address much of the real reason our prison population has grown so much. A better approach, as Glenn Reynolds has suggested, would be to reform plea bargaining procedures, or, as Pfaff has hinted elsewhere, to change the way prosecutors are compensated. Once the civil rights left has a better handle on the origins of the problem, it will be better situated to enact lasting solutions.

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  • Anthony

    “As President, Bill Clinton mastered the art of sending mixed cultural messages – Clinton presided over the largest increase in federal and state prison inmates of any president in American history. When Clinton left office in 2001, the United Stats had the highest rate of incarceration in the world.” Here’s another perspective on carceral dynamics and its dismissive impact (may not be neatly categorized as a left or right issue):

  • FriendlyGoat

    Why don’t we ask the “non-civil-rights right” to fix this problem in the states? Because they don’t believe there is any problem?
    TAI can be commended for favoring prison reform, but not for suggesting that only the “civil-rights left” bears the burden to actually do it.

    • Dale Fayda

      Well, let’s see… It’s the BASE of the Democrat party which commits the vast majority of violent crime in this country. Fact. The said majority of violent crime is overwhelmingly concentrated in large cities, most of the them run by the “civi-rights left” for generations. Fact. It’s the “civil-rights left” which screams the most about “mass incarceration” of its base, while at the same time continuing to flood the country with the criminal dregs of the Third World, aiding and abetting their crimes (see sanctuary cities), encouraging and facilitating rioting, looting and arson by their base (fee Ferguson, Baltimore, et al). Fact. Even mass shootings are perpetrated almost exclusively by leftists. Fact.

      The “non-civil-rights right” DID fix it – violent crime rates are at record lows in most of the Red states and in Republican strongholds in Blue states. But I guess there is too little crime in this country for the poverty pimps who constitute the “community leadership” of the Democrat party’s base. The “civil-rights left” isn’t interested in reducing crime, just like it’s not interested in reducing poverty.

      If liberals ever found a cure for poverty (or crime), they would burn it.

      • FriendlyGoat

        “Because they don’t believe there is any problem.”

        That’s what I said about your side. That’s what you have clarified.

        Why aren’t you writing an original comment to complain to TAI about its position, instead of tagging onto me?

        • Dale Fayda

          What’s the matter, FG? Too much “diversity of thought” for you?

          In truth, I’m generally reluctant to comment on this site, but your snarky leftist vapidity tends to spur me into action.


          • FriendlyGoat

            Well, if I’m the only guy who can unleash your creativity, so be it.

      • Pete

        Hey, you gave one insightful analysis here.

        And yes, most incarcerated criminals do indeed come from the Democrat constituency base.

        • Dale Fayda

          Thank you.

    • f1b0nacc1

      Actually, a huge chunk of the right does believe that there is a problem, the pointless war on (some) drugs. You cannot look at a single libertarian (or even libertarian-leaning) magazine, blog, what-have-you without seeing a call for an end to this ridiculous and futile effort, which (sadly enough) has been sustained and supported by both sides of the political spectrum for decades. The overwhelming number of incarcerated individuals are in prison on drug charges, not violent crime or crime against property.
      Your bluff has been called, the right has answered….ready to work with us to end this scourge?

      • FriendlyGoat

        The GOP controls Congress and it controls quite a number of statehouses.
        You might be surprised to discover that some old comment writer named FriendlyGoat has not actually been standing in their way of incarcerating fewer people on drug charges. Of course, we don’t expect “working with you” on this to include a laundry list of other unrelated matters (like say, abolishing the IRS and enacting the so-called “Fair Tax” or something as a condition for THIS issue), but if you believe the “right” is ready to end or even de-escalate the war on drugs, I would be interested in seeing the evidence of that in the legislative bodies. (Magazines and blogs don’t count. Neither do opinions of libertarians. Show me Republicans who want to do it, and I’ll show you it DONE.)

        • f1b0nacc1

          You aren’t answering my question. There are plenty in the GOP, and plenty of other conservatives and libertarians (not all of those are the same thing…some of the groups overlap) who are making suggestions and looking for allies. Nobody is demanding that everyone work together on everything. You are so concerned about mass incarcerations, here are people who would happily offer an alternative. Are you willing to lend your voice, and encourage others? Or is this merely a club that you wish to use to keep the ‘darkies’ in line and on the plantation?

          This isn’t about tax policy or gay marriage or anything else…this is about the war on drugs and mass incarceration. You can find folks like Rand Paul and Jason Chaffetz both in the GOP, and both proposing steps of this sort, and without GOP support, CO wouldn’t have legalized pot. Is it a huge mainstream movement…of course not, but it is beginning. If you are serious about wanting to change things, add your voice to it.

          Or are you really saying that you aren’t serious…

          • FriendlyGoat

            I’m not really arguing with you. I seriously don’t know what majorities of Republicans in Congress and statehouses will support on this issue—-the only places where opinions turn into actions. Do you?

  • Beauceron

    “The federal government didn’t create this problem, and, while it can make some progress on the margins, it can’t solve it, either. For one thing, ninety percent of prisoners in America are housed in state, not federal, facilities.”

    The states or “prosecutorial culture” did not create this problem either– nor did the BLM scapegoat, institutional racism, create this problem.
    The problem is the violent criminal culture among African americans, particularly among young African American men.

    But you’re not allowed to say that. And so we all know the problem won’t be fixed– just as we all know what the fix will inevitably be: you will release tens or hundreds of thousands of criminals onto the streets which much fanfare about how they’re all victims of racism and injustice. The limousine Left will be fine, snug in their wealthy, virtually all-white neighborhoods. But the rest of us will live with more violence, robbery and drugs.

    So– thanks.

  • Jacksonian_Libertarian

    “Initiatives like these don’t address much of the real reason our prison population has grown so much.

    Due to the Welfare program created by Johnson in the 60’s, the American family has disintegrated into large numbers of female headed households (60% of black families), because you get more of what you pay for. Children of female headed households on welfare, are 10 times more likely than children from 2 parent or male headed households to be incarcerated. This is a Federal created problem, which is destroying lives which might otherwise be contributing to the wellbeing of the nation. It isn’t really a prosecutorial problem, as they are just doing their job of catching and punishing criminals. The problem is coming from the welfare program’s generation of female headed households and lack of moral and ethical teaching of those families children. There is a reason why “Bas.tard” has been a derogatory term throughout history.

    • Dale Fayda

      I believe the percentage of female-headed back households is much higher than that, around 80%. Otherwise, spot on.

  • Kevin

    We do incarcerate too many people, and prosecutors (through plea bargain coercion and other methods) and overly aggressive policing do run roughshod over civilian liberties, but this will only be corrected if crime rates are low and perceived as being low, otherwise the voters will demand virtually any response to protect themselves. Black Lives Matter and other protests that bring an icreasing sense if disorder and incent police and prosecutors to pull back will only increase the sense of disorder and bring greater demands for tougher measures to ensure safety.

  • elHombre

    By all means, let’s reduce prison populations and return to the explosive increases in crime of the 60s and 70s. Let’s also ignore the fact that 2/3s of our convicted felons are on the streets on probation or parole.

    It requires astonishing ignorance of history and the elements of crime control to believe that incarceration of offenders is the problem rather than the solution to the problem. Or, as Professor John DiLulio observed, those who think prisons are not the answer don’t understand the question.

    If anecdotal instances of abuse of mandatory sentences call for remedial action, the solution is gubernatorial commutation or tightly controlled review boards. It is not putting more convicted felons back on our streets. Really, how stupid are we?

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