Justice William J. Brennan had a way with words. One of the most memorable examples was his asking, in the lead dissent in McCleskey v. Kemp
, why the majority was afraid of "too much justice."
Today, we need to ask why those arguing that the incarceration rate is the lodestar of the criminal justice system are afraid of too much safety.
We have seen a spate of articles, including a few from supposed conservatives, urging a reduction in the prison population. The latest is here
, a more-sensible-than-usual piece in National Review Online. Unfortunately, it builds on a less balanced but more typical piece
in the Washington Post titled, "There's little evidence that fewer prisoners means more crime."
Not to put too fine a point on it, but that sentence is a point-blank lie. There is a mass of evidence that fewer prisoners means more crime, and more prisoners means less crime. This fact is simply not debatable among serious people.
Like most others of a similar kind, the recent articles question or minimize -- or simply refuse to discuss -- what incarceration has done to bring about the huge improvement in public safety we saw in the two decades from 1990 to 2010, when the prison population exploded. Since that improvement tends to get mentioned only in passing by these critics, I will (once again) reference the specific numbers, taken from the FBI's Uniform Crime Reports, and summarized here
Let's go through some of them:
In 1990, the overall rate of serious crime was 5,820 per 100,000 population.
In 2010, in the era of "mass incarceration," it was 3,350.
In 1990, when we had many fewer prisoners, the violent crime rate was 732.
In 2010, in the era of "mass incarceration," it was 406.
In 1990, when we had many fewer prisoners, the murder rate was 9.4.
In 2010, in the era of "mass incarceration," it was 4.8 (roughly half).
In 1990, when we had many fewer prisoners, the robbery rate was 257.
In 2010, in the era of "mass incarceration," it was 119 (less than half).
In 1990, when we had many fewer prisoners, the aggravated assault rate was 424.
In 2010, in the era of "mass incarceration," it was 253.
In 1990, when we had many fewer prisoners, the car theft rate was 658.
In 2010, in the era of "mass incarceration," it was 239 (36% of what it was).
To avoid being tiresome, I'll give just one more example, this time in absolute numbers rather than rates: In 1991, when we had many fewer prisoners, 24,700 people were murdered in the United States. In 2010, 14,772 people were murdered. In other words, although the country's population grew substantially (by 60,000,000), we had ten thousand fewer murder victims per year at the peak of the era of mass incarceration than we had twenty years earlier.
Now ask yourself this: When was the last time you heard one of the voices decrying "mass incarceration" say out loud that we had ten thousand fewer murder victims per year at the peak of the era of mass incarceration than we had twenty years earlier?
Right. Never. And you're never going to, because that will be the end of the argument.
What you're going to hear instead is cherry-picked numbers from a handful of states over a handful of years; this is what the other side absolutely trades on (see, e.g., the Washington Post piece
"One year of bad news [about violent crime rates] is something you notice but don't necessarily draw conclusions about. Two years of bad news suggests it might be time to start worrying," said Carnegie Mellon University professor Jonathan Caulkins.
University of Maryland criminology professor James Lynch said the crime victimization survey, combined with a separate report recently issued by the FBI, suggests that the 20-year trend of dropping crime rates may be approaching an end.
"You're getting more evidence that this is a change in the trend," said Lynch, a former director of the U.S. Bureau of Justice Statistics, the agency that issued Thursday's findings.
Oh, OK. Quick now. Is there any other change in a trend that's been happening over these last most recent years?
Yes, there is. As the Justice Center of the Council of State Governments reports, "US Prison Population Declines for Third Consecutive Year." Charles Lane has also covered this story, here.
So let's see. From 1960 to 1980, as lenient sentencing was the norm and the prison population rose relatively quite slowly, crime skyrocketed (a fact that no one disputes). Then, for the 20 years from 1990 to 2010, as determinate sentencing took hold and the prison population exploded, the crime rate fell by 50%. Then, as we began to lose our nerve and ease up, the prison population decreased and -- ready now? -- the crime rate increased.
Our adversaries may reluctantly confess, when cornered by the facts, that, well, yes, incarceration does significantly help reduce crime, but we've reached the point of diminishing returns. What this overlooks is that we reached the point of diminishing returns with the second inmate we imprisoned; the phenomenon of diminishing marginal returns is a truism, a fact of statistical life.
The truth, as the recent figures about increasing crime tell us, is that we are still getting positive returns on our investment in incarceration. And as the rise specifically in violent crime over the last three years shows us, the promise by state politicians to release only "low-level, non-violent" offenders is, like so much else they say, false. (Kent has detailed so many examples of this from California I can't even begin to recount them).
We know how to reduce crime. We did it for 20 years. If we stop now, it will be a choice, not a mistake.
Why do our opponents fear too much safety?