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A Point-by-Point Debate on Mandatory Minimums

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After last week's House hearing on federal penalties, and in particular on federal mandatory minimum sentencing, I wrote to Jeremy Haile of the Sentencing Project, which has been one of the leading organizations promoting what it views as reform of mandatory minimums, and, in particular, the Smarter Sentencing Act.  I sent Mr. Haile a number of questions and invited his response.  He gave it this morning, and has allowed me to put it up here.

After the break, I reiterate the questions I sent him, and his answers.  Since he took a good bit of trouble to put the answers together  --  although he owes me nothing  --  I would ask that, if readers care to look at my questions, they look at his answers with equal attention.  Of course I disagree with almost all of them, and in later posts, I hope to be able to continue the discussion.

These were my questions:

--  Viewing the matter overall, in the last 50 years, when we've had more imprisonment, we've had less crime, and when we've had less imprisonment, we had more crime.  The statistics from the Sixties and Seventies , and from the last two decades, seem to me to allow no other conclusion.  Do you disagree?
--  Minority communities are disproportionately the victims of crime.  Thus the very substantial decrease in crime over the last 20 years has disproportionately helped those communities.  Do you disagree?
--  By far the two most important developments in crime and corrections over the last 20 years have been the substantial growth in the prison population and the substantial drop in crime.  Do you view these phenomena as unrelated?
--  California has had as many or more early prison releases over the last three years as all the other "reform" states (e.g., Texas, Michigan, Ohio, Georgia) combined, and has experienced a significant crime uptick.  This is so even though California officials from the Governor on down have repeatedly assured the public that releases are being limited to "low-level, low-risk" offenders.  Do you think there are lessons to be drawn from California's recent crime increase?
--  About the last third of my testimony was devoted to pointing out that the federal government already has in train a variety of hugely important developments that will produce shorter sentences.  In the era of "evidence-based sentencing," I suggested that the common sense thing for Congress to do is assess the evidence we get over the next year or two or three whether lighter sentences in fact produce low (or lower) crime and the promised big cost savings.  Do you agree that it would be prudent to assess what that soon-to-be-forthcoming evidence shows?
--  Do you think the (1) incarceration rate or the (2) crime rate is the more important factor to consider in measuring the health of the criminal justice system?  I know that both have a place.  I am asking which you view as more important.  And for however that may be, which do you think the taxpaying public views as more important?
--  Most Assistant US Attorneys hired over the last quarter century were hired under Attorneys General Reno and Holder.  Do you view those AUSA's, or AUSA's generally, as racist? 

Mr. Haile's response is:

Thank you for your communication.  I agree that the debate before the House Overcriminalization Task Force was quite useful, and I would be pleased to respond to some of the issues you have raised.

We at The Sentencing Project are of course concerned about crime, which can cause great harm to individual victims and impose costs on entire communities.  The question is not whether we should respond to crime, but how to respond most effectively.  For the past several decades, our nation has increasingly relied on the criminal justice system to control crime and to ensure public safety.  More and longer prison sentences have resulted in a four-fold increase in U.S. prison and jail incarceration rates since 1972.  Though this approach has contributed to crime reduction, it has been shown to have diminishing returns and has come at far too great a cost.  

According to the National Research Council's recent report, "The Growth of Incarceration in the United States," the product of a two-year study by the most distinguished scholars in the field, the increase in incarceration over recent decades "may have caused a decrease in crime, but the magnitude of the reduction is highly uncertain and the results of most studies suggest it was unlikely to have been large."  Research on deterrence suggests that people are deterred more by the certainty that they will be caught than by the severity of the penalty.  There is no strong consensus on the incapacitative effects of incarceration, but the effect is especially weak for very long sentences (because offending declines sharply with age) and for drug offenses in particular (due to the ready replacement of sellers in the drug trade).  

Moreover, the Council found a host of negative consequences associated with incarceration, especially in low-income communities of color.  For example, prison conditions can cause "severe psychological distress" for people suffering with mental illness.  Prison overcrowding is associated with poor health consequences for prisoners, including an increased risk of suicide.  Incarceration often leads to negative social and economic consequences for prisoners and their families.  And when formerly incarcerated individuals return to their communities, "their lives often continue to be characterized by violence, joblessness, substance abuse, family breakdown, and neighborhood disadvantage."  

Given the limited effectiveness of incarceration, it would be better to redirect the scarce resources that we have been using on punishment to prevention and drug treatment instead.

As for California, according to a report released last year by researchers at the Public Policy Institute of California and U.C. Berkeley, between 2011-2012, the state experienced an "uptick" in crime, but there is "no evidence that realignment has had an effect on the most serious offenses, murder and rape."  Overall, there was a 3.4% increase in violent crime and a 7.6% increase in property crime in the state.  The authors explain that to understand how much of this is attributable to Realignment, California cannot be examined in a vacuum but must be compared with other states. When they make this comparison, they find that "California's overall increases in violent crime between 2011 and 2012 appear to be part of a broader upward trend also experienced in other states."  More generally, while Realignment significantly lowered the state's prison population, "crime rates remain at historically low levels in California today."  The property crime increase most attributable to Realignment was the increase in motor vehicle thefts, which went up by 14.8 percent between 2011 and 2012.

We are pleased that the U.S. Sentencing Commission and the Department of Justice have taken steps in recent months to address excessive sentences in the federal prison system.  There is evidence to suggest that these modest reforms are unlikely to increase recidivism.  For example, following the Commission's 2007 amendment to reduce penalties for crack cocaine, there was no statistically significant difference in recidivism rates for those offenders who received a two-year sentence reduction (30.4% recidivism) compared to those who served a full sentence (32.6% recidivism).  

Thank you for your contribution to this public discussion.  We appreciate the opportunity to respond to your questions.

1 Comment

Hey Bill, this is VERY helpful, and I am a bit disappointed that Jeremy Haile failed to answer all your questions a bit more directly. I would be happy to do so if/when you decide to direct them to me. In the meantime, I have a few direct questions for you in this spirit:

1. Don't we now have considerable evidence from the US Sentencing Commission and other sources that two major federal sentencing changes that have reduced drug sentences have not resulted in a surge in crime?

Specifically, I speak of the 2005 Booker ruling AND the 2010 passage of the FSA. Arguably, both of these legal changes were as consequential for reducing future federal drug sentences as would be the SSA. And crime nationwide has continue to decline significantly (and there have been significant federal prison cost savings) as a result of these developments.

2. Do you disagree that the evidence of crime and imprisonment rates over the last decade and modern reforms comparable to the SSA are much more central and informative for the modern debate over the SSA than crime and imprisonment rates from the 1960s, 1970s and 1980s?

3. Also, do you disagree that California's recent experience is mostly reflective of what can happens when a legislature fails to proactively reform its most problematic sentencing and corrections policies/practices, whereas New York and Texas are better examples of what can happens when a legislature does proactively reform its most problematic sentencing and corrections policies/practice? Wouldn't passing the SSA be more in line with the New York and Texas model and failing to move forward with reform be more like the California approach?

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