The Pew report has been the subject of intense interest around the blawgosphere.  This is the report that tells us that we finally reached a 1 in 100 incarceration rate (and far higher for minorities) and the cost is blowing the doors off of budgets, the latter a subject discussed here just yesterday again. 

There are already a slew of posts relating the content of the report, at A Public Defender, Reasonable Doubts,  ne-percent-of-adults-are-behind-bars-in-America..html”>Underdog and Sentencing Law and Policy, and no reason for me to repeat it here.  Instead, I want to focus on the spin that’s coming out, with no doubt more to come, that will provide the context for the report.

Adam Liptak of the New York Times has already  churned out his column on the report.  In juxtaposition to the report, Liptak brings in Paul Cassell, Utah lawprof, former federal judge and victim’s rights advocate (though Liptak doesn’t mention this last piece).

“We aren’t really getting the return in public safety from this level of incarceration,” said Susan Urahn, the center’s managing director. 

But Paul Cassell, a law professor at the University of Utah and a former federal judge, said the Pew report considered only half of the cost-benefit equation and overlooked the “very tangible benefits: lower crime rates.” 

In the past 20 years, according the Federal Bureau of Investigation, rates of violent crimes fell by 25 percent, to 464 per 100,000 people in 2007 from 612.5 in 1987.

“While we certainly want to be smart about who we put into prisons,” Professor Cassell said, “it would be a mistake to think that we can release any significant number of prisoners without increasing crime rates. One out of every 100 adults is behind bars because one out of every 100 adults has committed a serious criminal offense.”

This is a deeply disturbing article, and comment by Judge Cassell.  It no longer surprises me that Liptak promotes the tough-on-crime perspective, or that he prints lop-sided arguments without any critical thought.  It’s just happened way too often.  So much for expecting the Gray Lady to give a reasoned story.

Judge Cassell’s statement is, first, factually wrong.  The numbers do not reflect a simple truth that 1 out of 100 adults has “committed a serious criminal offense,” and he must know this.  They reflect the over-criminalization of conduct, with new crimes being created every time an election rolls around.  They reflect the magic bullet theories that the public loves so dearly, like mandatory minimums and three-strikes laws.  They reflect the ever-increasing sentences, pushing innocent people to plead guilty or cooperate, to avoid a 30 year bit.

Nowhere does the Liptak story mention any of these influences in counterpoint to Judge Cassell’s facile reaction.  But we’re not done yet.

Cassell states that the cost-benefit equation overlooks the “very tangible benefits: lower crime rates.”  It’s hard to imagine a lawprof engaging in such a flagrant post hoc argument.  That argument supports the claim that breathing causes cancer, since everyone who has cancer was breathing beforehand.  The proof is in the pudding, right? Wrong.

If we incarcerate far more people than need to be, or deserve to be, it will impact crime rates.  By that logic, why not incarcerate everyone and then we can eliminate crime altogether.  It bears no causal connection between the rate of incarceration and crime rates.  Even worse, the crime rates were down before the incarceration rates went up, showing the disconnect between the two.

It is shocking to see someone as respected, though biased, as Judge Cassell posturing for Liptak, and to find Liptak buying into it all the way.  Worse than shocking, it is sad and pathetic that they seek to rationalize and promote this blight on American society. 

But let’s go to the next level, and ask why they presume that Americans, more so than people anywhere else in the world, feel the need to commit crimes.  Are we just bad people?  Are we evil and violent?  Neither Cassell nor Liptak offer any answer. 

I’ve  suggested in the past that our consumerist society is a driving force in criminal conduct, but don’t think anyone is going to touch this since it would offend major corporations and unbalance our economics (as if our economy was doing so well to begin with).  But this doesn’t explain why crime rates might increase, since most of us have a moral compass that prevents us from indulging temptation. 

At the end of his piece, Liptak offers a crumb to the reasonable by noting that Texas, the nation’s incarceration leader, is now trying to provide treatment alternatives for DUI offenders.  They problem is that this is a drop in the bucket and still reflects the institutional refusal to recognize the source and scope of the problem.  It’s like a safety valve to sooth the public that they are now dealing with the budgetary forces, while knowing that it will do nothing to address the problem.  Another feel-good, magic bullet reaction of no real consequence.

We haven’t had a crime problem in the United States in more than a decade, as statistics have shown huge drops in the crime rates over that period.  This was bad for politics, since there’s no better proven vote-getter than being tough on crime and harsh on defendants.  So they just ignored the facts, enjoyed the medias promotion of sensationalist crimes and used this as a platform of fear to demand our attention.  And we happily gave them our votes in exchange, an addiction for anyone running for office.

The Pew report is shocking, and should be shocking.  If Cassell is right, then we need to figure out what is so deeply wrong with this country that drives so many to crime.  If Cassell is wrong, then we need to put an end to our love of magic-bullet incarceration solutions and reject the illogical arguments that we have adopted to justify putting one percent of our citizenry into prison.   Either way, there is no spin that can change the fact that the Pew report reflects a blight on America.

Thanks for  Susan Cartier Leibel for the heads-up on Liptak’s column.