In the New Yorker, Gilad Edelman goes for the “real answer to mass incarceration.” If his use of the “real answer” makes you cringe, it made me cringe as well. In a system as complex and flawed as ours, purporting to have the “real answer” is arrogant beyond words, but Edelman, a non-lawyer, makes an exceptionally strong case about an extremely critical point.
To change mass incarceration, we’ve got to stop sinking our collective empathy into the beloved “non-violent” offenders, and spend a little on the rest of them. Why? Because that’s where mass incarceration happens. All the sob stories about harsh sentences for non-violent, first time drug offenders may be true, but they are not the ones clogging prison hallways. They are there, but there just aren’t that many of them.
It is simply not true that the growth of the prison population is mainly due to the sentencing of nonviolent drug offenders. About half of federal inmates are serving sentences for drug crimes, but the federal system only accounts for about two hundred thousand prisoners. In state prisons, which house about 1.3 million, only sixteen per cent of inmates are serving a sentence for nonviolent drug offenses, according to the latest Department of Justice statistics. About fifty-four per cent, by far the largest number, are there for violent crimes, and about nineteen per cent for property offenses, like burglary.
This isn’t to make light of the impact of the War on Drugs, but to raise awareness that the oft-stated belief that drug crimes are the reason for mass incarceration isn’t quite true. By laying blame on the drug war, it’s facilitated two important arguments: that the war on drugs has failed and must be ended, and that those prosecuted for drug crimes have been subject to draconian sentences.
While both of these points may be absolutely true, the best arguments are often hyperbolic at best, false at worst. Notably, the nuanced arguments in support of these positions require people to understand more about the nature of the problem than they’re willing to hear or process. If it doesn’t touch them, they just don’t care enough to spend the time to learn.
So, reduce arguments to points that are both simple to grasp and touch peoples lives, and the cost of mass incarceration is such an argument.
It’s not, by the way, that the War on Drugs hasn’t been a contributing factor to mass incarceration, but that it’s not limited to the poster boys for change, the “non-violent first time offender.” As Edelman notes. Fordham lawprof John Pfaff, who has put in a massive amount of empirical effort to figuring out the drivers of mass incarceration, reaches an important point:
While the war on drugs has certainly contributed to the explosion of the prison population, most of the growth is attributable to imprisoning more people for violent crimes, for longer. Fordham Law School professor John Pfaff has suggested that a primary cause of the prison boom is a greater willingness among prosecutors to bring felony charges for any given arrest.
Federal prosecutors are directed to bring the most serious charges that the allegations permit, which can be monumentally high given the fantasy variables permitted in federal conspiracy prosecutions. Through the combination of charging increasingly serious crimes, and the severe ratcheting up of punishments for crimes that’s gone on over the past 30 years, every convicted defendant ends up doing far harder time.
In other words, even if you put the same number in, but don’t take them out, the amount of people in prison is going to mushroom. But put more in, and more in, and don’t take them out and, well, you’ve got America.
But Edelman stands atop a wall, a big, thick, impenetrable wall, blocking change.
Saying that murderers and rapists should go to prison is hardly controversial. The real difficulty is admitting that, in order to deal with the problem of mass incarceration, we may need to let them out sooner. It has become almost conventional wisdom that locking people up for drug possession and low-level dealing doesn’t make us any safer. But it will be harder to convince the American people that cutting back on punishments for robbery, assault, and murder won’t put them in danger.
In order to help some, the non-violent drug offenders, we’ve burned the others. Our emphasis on helping the non-violent contributes to demonizing those convicted of “violent” crimes. As Edelman notes, even that is misleading, as “violent” is categorical, not descriptive, and many “violent” crimes involved no violence at all.
It works great as a counter-factor, arguing that we’re not talking about releasing murderers, but just non-violent prisoners. So in the process, the biggest percentage of prisoners by far are not merely written out of the script, but further vilified to help sanitize the group we’re trying to help at the moment.
While the effort makes sense for now, it’s going to prove awfully hard to un-demonize the people later. And we won’t be able to make a serious dent in mass incarceration until we come to grips with the fact that most of it is due to charging and sentencing of people convicted of offenses classified as “violent.”
In this respect, it’s worthwhile to have the perspective provided by a little institutional memory. Thirty years ago, when a person charged with a first time gun possession (not use, not robbery, nothing more than mere possession) would get probation. And it would be more than adequate to scare them off carrying a gun again, as the idea of a year in jail was, indeed, a very scary thing.
Today, that same person will go to prison, not jail, but prison, without any chance of a non-incarceratory sentence. One year sentences are handed out like candy, and it has altered people’s perception about the nature of deterrence such that it no longer scares people as it once did. It just doesn’t pack a punch any more.
We’ve skewed everyone’s perception upward, so that any sentence short of life plus cancer comes off as easy time. The defendants, the judges, the public all view forever as the proper length of time needed. Except for those non-violent first timers. Until this changes, we won’t be able to seriously address our mass incarceration problem.