The New York Times editorial chalks it all up to money.
The current Congress is the place where virtually all legislation, however urgent or reasonable, goes to die. Yet out of this stew of partisan mistrust and dysfunction there may come one promising and unexpected achievement: the first major reforms to America’s broken criminal justice system in a generation.
With two bills pending in Congress with bi-partisan support, the Smarter Sentencing Act, to cut some mandatory minimums for non-violent crimes, and the Recidivism Reduction and Public Safety Act, to promote rehabilitation with jail-time credit, we are poised for reform of some sort, and the Times raises the question of “why now?”
Reforms like these were unthinkable even a few years ago, when the Republicans’ longtime tough-on-crime dogma — echoed by Democrats who fearfully fell into line — drove irrational sentencing laws. Why have things changed so quickly? In a word, money — or the lack of it.
A few years ago, two things happened. First, we came to the realization that the United States incarcerated more people than anywhere else, which meant we were either the most criminal nation on earth or we were imprisoning way too many people. And then there was the depression of 2007, when bills came due from two wars and it dawned on Washington that there was no money to pay the bills, and too many people out of work to extract the money needed.
For a very long time, this country suffered from a disconnect between the rhetoric of tough-on-crime and the many costs, human as well as financial, it imposed. It was an easy sell to a simple-minded public, as fear was a base instinct and required little thought to embrace. For those of you who still think “common sense” is a good idea, then you will appreciate the notion that if five years in prison is good retribution, then ten years is better. As long as you don’t think about it, it feels like such a good solution.
Sentencing maven Doug Berman sees the Times’ attribution to money as being inadequate to explain the paradigm shift.
Though I share the general perspective that there is a “fierce urgency of now” for federal sentencing reforms, I disagree that money explains these recent developments at the federal level. States, especially red states, have been at the forefront of modern sentencing reforms because of the need to balance budgets without raising taxes, but the feds have long shown a willingness to borrow money for any and all federal priorities. Rather, I think there is a new generation of politicians and voters who no longer view crime as much more salient concern than just and effective punishment.
Younger and more diverse politicians and voters appreciate that too much government and punishment can be as worrisome as a bit more crime, and that is what I think we are now finally getting a much more balanced federal political discourse about these issues than we did a generation ago. (Notably, the Baby Boomers were the first major generation who did not directly experience/witness the harms/problems of Prohobition [sic] and totalitarian regimes, so it makes some sense that generation would embrace a big criminal justice system eschewed by their parents and their children.)
Putting aside Doug’s generational confusion and poor knowledge of American history, is the “real” reason for reform that today’s politicians and Gens X, Y and Millennials have a “much more salient concern” about “just and effective punishment” than crime?
To some extent, Doug is correct in that we are now suffering the “morning after” effects of 9/11, sufficiently distant from the national nightmare that the fear card has lost its cachet. But that would at most leave us in a state of inertia.
So we don’t redouble punishments again to fuel the next election cycle. As much as the prison population may be astronomical, crime is way down. The cause and effect, at a base level of understanding, is pretty clear, and why ruin a good thing? At the same time, cries for new crimes persist in the quest for the perfect world, with the same disconnect from costs that drove us to where we are now, suggesting that we still put a lot of stock in the use of criminal laws to control conduct, even if it means driving up the prison population again.
So is it as simple as the New York Times would have it? Money? Have we suddenly discovered that we pay to keep people in prison, and it’s really expensive?
Probably, yes. Money has broken the logjam. In a weird sort of way, the villain of the 1980’s, Gordon Gekko, was right: greed is good, as it provides an incentive to do right even if for the wrong reason. Whether or not Congress wants to help the nation or just sustain itself, there is no politician who doesn’t appreciate that money isn’t the basic driving force. Ironically, the movie that gave us Gekko came out in 1987, the same year Congress enacted the Sentencing Guidelines.
Greed, for lack of a better word, is good. Greed is right. Greed works. Greed clarifies, cuts through, and captures, the essence of the evolutionary spirit. Greed, in all of its forms; greed for life, for money, for love, knowledge, has marked the upward surge of mankind and greed, you mark my words, will not only save Teldar Paper, but that other malfunctioning corporation called the U.S.A.
Are people willing to trade off taxes, or a job, or the viability of their business, to pay for another year of imprisonment for someone who will never touch their life? When they feared the person, they might. When they didn’t feel the pain of price, they might.
But when fear got boring and old, they still felt the hunger for money, for the good life that America once promised, and greed took over. The politicians realized that the money spent on prisons is dead money, and they could get much more play from using it elsewhere. So greed is good.
The problem is that greed is also untrustworthy. Should there come another Halcyon Age, and the money saved on over-incarceration and over-criminalization isn’t valued as highly as something else, or fear returns as a predominant societal force, the higher order concern of “just and effective punishment” will be as forgotten as Gordon Gekko. And the cycle will happen again, because we will have learned nothing from the past 50 years.