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February 6, 2023

"We Can Ensure Public Safety And Still Reduce Incarceration"

The title of this post is the title of this new Law360 piece authored by Jeffrey Bellin.  The full piece is worth a full read (in part to see citations for various claims), and here are excerpts:

Between 1982 and 2010, the total amount spent by states on incarceration, including parole and probation, rose from $15 billion a year to $48.5 billion annually.  Between 1980 and 2013, annual federal corrections spending grew from under $1 billion to almost $7 billion.

That's why reducing jail and prison populations shouldn't be controversial.  It is mass incarceration that is the radical, expensive and unproven government policy.  And it is a policy that the country chose largely by accident.  In the early 1970s, this country's incarceration and crime rates were low and unremarkable. Then, a temporary crime spike spurred a new age of bipartisan penal severity....

There is, in fact, little correlation between violent crime and harsh or lenient criminal justice policies.  Understanding the past — and the unnecessary choices that this country made in response to the 1970s crime spike — is the best hope for a different future.

Sexual violence, armed robberies and murders were all serious crimes prior to the 1970s and were vigorously prosecuted.  But that's where the similarities between past and present end.  We didn't use to arrest, much less prosecute, so many drug offenders. We didn't use to hold so many people in jail prior to trial.  We used to sentence people to shorter prison terms.  And we relied on parole boards to let people out of prison, ensuring that prisons did not, as now, fill with the sick and elderly....

We used to be better at preventing violence and better at solving serious crimes, probably because that is where law enforcement focused its resources.  The people who suffer the brunt of violent crime typically embrace that focus — and their cooperation is a key factor in reducing crime.

When the police are viewed as working to solve and prevent serious violent crimes, the community turns out to support those efforts.  But if officers are viewed as arbitrary, incompetent and worse, the witnesses they rely on to help solve serious crimes become less likely to volunteer information.

While it is important to focus on reducing violent crime, there is no evidence that reembracing the policies that fueled mass incarceration will do that.  Those policies may even prove counterproductive.  For example, a December 2021 study from the Cato Institute found that certain prosecutions actually increased, rather than decreased, the likelihood of future crime.

We should put aside tough-on-crime rhetoric and focus on preventing violence in more promising ways, like those offered by the Council on Criminal Justice's Violent Crime Working Group to prevent gun violence before it happens.

The emerging resistance to criminal justice reforms illustrate not the merit of tough-on-crime policies, but the stubborn rhetorical appeal of the policies that fuel mass incarceration.  These policies are everywhere, the result of countless changes to local, state and federal laws and processes that emerged over decades.  A few of those changes targeted the violent crimes that grab the headlines, but most did not.

This complexity means that while there is no silver-bullet solution to our overreliance on incarceration, we can continue to reduce prison and jail populations without threatening public safety.

Our current incarceration rate — over 500 incarcerated per 100,000 people — still far exceeds our long-standing historical rate of around 100 per 100,000, as well as the incarceration rates of other, lower-crime countries, including England, France, Germany and Japan.  As our own history and the much lower incarceration rates around the world reveal, we do not need to choose between less violence and less incarceration.  We can have both.

UPDATE: Thanks to social media, I just saw that Keith Humphries authored a similar commentary just published in the Washington MonthlyThe full title of this new piece highlights its themes: "Violent Crime and Mass Incarceration Must be Tackled Together: Conservatives and liberals need to hear each other for us to become a low-crime, low-incarceration society. There are policies that can help." Here is the commentary's closing paragraph:

At the risk of sounding like I’m to break out into the chorus of Kumbaya, there is a rational way forward for both sides to move America into the low-crime, low-incarceration quadrant populated by most other developed nations.  This would require the tough-on-crime camp to give up on the idea that more incarceration will reduce violence and the anti-incarceration camp to stop minimizing violent crime in America.  (“It was worse in the 1980s,” a familiar refrain, is of no comfort to today’s grieving families of murder victims.)  Instead, both sides could rally around the range of health (e.g., expanding Medicaid), law enforcement (e.g., focused deterrence), and tax policies (e.g., raising the price of alcohol) that have good evidence of reducing violent crime, which in turn will reduce incarceration.  This policy agenda will require a broad coalition.  The first step towards that is for everyone in the debate to recognize that the people they’ve been yelling at have a good point, too.

February 6, 2023 at 06:29 PM | Permalink


"That's why reducing jail and prison populations shouldn't be controversial. It is mass incarceration that is the radical, expensive and unproven government policy."

We don't have mass incarceration. Leftists keep lying about this. One half of one percent of the population is incarcerated, and one half of one percent isn't mass anything.

"And it is a policy that the country chose largely by accident."

Actually it was chosen over three or four decades as a result of very widely debated policies that, until recently, enjoyed the support of both parties. For example, the landmark SRA of 1984 was co-sponsored by Teddy Kennedy and Strom Thurmond.

"In the early 1970s, this country's incarceration and crime rates were low and unremarkable. Then, a temporary crime spike spurred a new age of bipartisan penal severity...."

Temporary my foot. The crime surge (not "spike") lasted at least 20 years if not longer, from the early 70's to the early 90's.

What a liar this guy is.

Posted by: Bill Otis | Feb 6, 2023 8:09:17 PM

Cor! What would the judges, AUSAs, agents, etc. do without the whirl of guiltys, sentencing, enhancements?

What Otis the Predictable preaches is that it's black crime...get it? early 70s saw the beginning of the Civil Rights Act and the suppressed anger of black folks was given a so-so allowance. We continued apace: few jobs, poor housing, rotten education, crazy cops. We made the cesspool of the inner city and then, with our boorish prosecutorial system, responded with even an even harsher white hammer. We are where we are because nothing whatsoever was done to correct the imbalance--only jailing. Ugh!

Posted by: fluffyross | Feb 6, 2023 9:32:28 PM

fluffyross --

Thank you for not contradicting or purporting to contradict a single word I wrote.

Posted by: Bill Otis | Feb 7, 2023 3:15:33 AM

What we have is a problem as to what we are willing to recognize as crimes. I, for one, am clear-eyed about the problems of crime.

Where I tend to part ways with 'some' is what I identify as crimes that also need to be aggressively prosecuted---in fact, the future of our country and whether we will be stuck in this endless cycle of imbalance depends on it. For 'some,' the only definition of crime they know---or, the one in which seems to stoke their passions, is inner-city crime. 

My definition of crime is far more expansive and tends to make a certain crowd uncomfortable because of its extensive implications and what it says about America. The discriminatory underpinnings in housing appraisal, the tax code, and the labor field---to name a few, have deprived communities of generational wealth. These are crimes that are no less significant than those we read about occurring in the street. The list goes on: educational gerrymandering, redlining, the documented practices of the Ferguson Police Department (to name one) and the effects of housing convenants are other examples of crimes.

These present day crimes are even moreso problematic than those we see in the street. I say this because these crimes have historic roots and are committed with a level of impunity and arrogance. It has become far easier to overlook these crimes; but those who have willfully taken this route know that your innocence also constitutes a crime.

It was once said that, "American history is longer, larger, more various, more beautiful, and more terrible than anything anyone else has ever said about it." History matters. Institutions and how they have aided and abetted some of the worst crimes that 'so-called' decent people commit every single day matters. To the crowd that fetishizes over crime, I, for one, cannot take your claims of righteous indignation or 'law-and-order' serious until you acknowledge the entire scope of crime and how it impacts our country and the lives of so many. 

Posted by: Eric A. Hicks | Feb 7, 2023 8:51:06 AM

Bill - the author's point that other countries have much lower incarceration rates and lower crime rates is well taken. The only reason that the surge in police and prisons happened was because a climate of fear was perpetuated by the media, thus pushing politicians to create longer and longer sentences for crimes and to restrict or eliminate parole. A more reasonable and compassionate view of crime can lead us to restrict use of incarceration and to allow for parole to release offenders who pose less of a threat to public safety than others. Brett Miler

Posted by: Brett Miler | Feb 7, 2023 10:39:28 AM

Brett Miller --

"The only reason that the surge in police and prisons happened was because a climate of fear was perpetuated by the media..."

Nope. The media does plenty of lying, that's for sure, but the reason we got tough in the late Eighties and Nineties is that we had an all-too-real massive crime wave for at least 30 years before then. The quite nasty statistics are gathered here: https://www.disastercenter.com/crime/uscrime.htm. You will see that in 1961, the murder rate was 4.8. Thirty years later it was 9.8. In 1961, the rate of forcible rape was 9.4. Thirty years later it was 42.3. In 1961, the rate of aggravated assault was 85.7. Thirty years later it was 433.3.

We had a huge increase in crime and crime victimization and, very wisely, we did something about it. It wasn't the media. It was reality.

Posted by: Bill Otis | Feb 7, 2023 1:43:23 PM

Bill - the "tough on crime" policies you and others favor only create an underclass who are only schooled on how to be better criminals. A more holistic justice system can be better equipped to break the cycle of crime and incarceration. Brett Miler

Posted by: Brett Miler | Feb 7, 2023 5:30:37 PM

Brett Miller --

"Bill - the "tough on crime" policies you and others favor only create an underclass who are only schooled on how to be better criminals."

As with your last comment, the facts beg to differ. In the generation of sentencing guidelines, MM sentences, more police, and more proactive policy (that is, roughly 1991-2015), when the prison population was growing substantially, crime rates fell by nearly half. See https://www.disastercenter.com/crime/uscrime.htm

The numbers tell us that getting tough works and getting soft fails.

Posted by: Bill Otis | Feb 7, 2023 8:37:22 PM

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