Crime and Punishment
Bring Back Jeremy Bentham

Absolutists on both sides don’t like to admit it, but American criminal justice policy has real tradeoffs. Stiffer prison sentences, for example, really have played an important role in reducing the crime rate, but they are also costly and destroy the life prospects of many people who might otherwise be reformable. Softening the criminal justice system might give thousands of deserving people a second chance, but there are also legitimate concerns that it could cause violent crime to rise further at a time when many of America’s cities are already experiencing a troubling uptick.

This is a crucial debate, and different people will come down on different sides depending on their moral and political priorities. But to the extent that we can sidestep the soft-on-crime vs. tough-on-crime dichotomy by adopting policies that are smarter and legitimacy-enhancing, we should try to do so. The Washington Post reports on one example of “smart on crime” policy in Washington State:

The state had traditionally imposed jail sentences of 30, 60, 90 or 120 days for supervised offenders who violated the conditions of their probation or parole (e.g., had a positive drug test). The policy was fiscally costly and also resulted in inconsistent responses to the same violation. […]

Seeking a less expensive, more effective system, the state fundamentally reoriented its strategy. Punishments for violations were made much less severe, most commonly a “flash incarceration” of up to three days. Unlike the prior penalties, such short jail stays could be administered swiftly and certainly throughout the state. “The program relied on a theory of criminal behavior that goes all the way back to Jeremy Bentham,” said Hamilton, referencing the 18th-century British philosopher. “People are deterred more by their likelihood of getting punished than by the severity of the punishment they might face if they get caught.”

This Benthamite logic is well-supported in the criminal literature, and it has applications beyond parole violations. There is evidence, for example, that making sure that more criminals are caught in the first place—for example, by hiring more police officers and detectives—could put more downward pressure on the crime rate than imposing long prison sentences for people who are convicted. To take one example, Chicago police are only able to apprehend suspects in six percent of shootings. This emboldens criminals and contributes to a broader sense of fear and lawlessness. Chicago is currently experiencing its most violent year in two decades.

Critics of criminal justice reform like Arkansas Senator Tom Cotton have argued that America has an “under-incarceration problem” because so few suspects are ever brought to justice in the first place. From that perspective, he’s not wrong. But it might also be possible to address this concern by putting more well-trained law enforcement officers on the front lines even as we reform sentencing so that sentences are shorter on average. Higher-clearance rates for serious crimes combined with fairer and more consistent punishments could result in lower crime overall.

Of course, the crime debate can’t be avoided entirely with technocratic fixes. There are real tradeoffs that voters will need to weigh between lock-em-up Jacksonianism and bleeding-heart activists. But as this debate rages on, policymakers should also look out for low-hanging fruit—policy measures, like the one in Washington State, that can alleviate concerns on both sides of the aisle.

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