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Is the Criminal Justice System Broken?

There are two central themes in the President's Criminals-Are-Cool week-long campaign:  That the criminal justice system is "broken," and that the way to fix it is through softer sentencing and earlier release for convicted felons, mostly including (so far) dealers in hard drugs.

As I show after the break, both themes are breathtakingly false.  For now, however, I want to ask why the press (and almost all of academia) is so ready to believe them.  I think the answer is deeper than merely their affinity for a Democratic President.  The answer hinges on who the questioner thinks is more worth focusing on.

The outlook taken by the President and his backers focuses on convicts.  They are, in the view of leftist ideology, "the other"  --  the downtrodden, the "marginalized," society's victims.  Questions about how, specifically, they wound up in prison are not encouraged, nor are questions about their exact number. Simply letting it go with the catchy phrase "incarceration nation" will do.  (In fact, zero point seven percent of the population is incarcerated and ninety-nine point three percent is not).

The opposing outlook focuses on normal people with families and jobs, people who are not looking to make a fast buck stealing or swindling or selling coke to your 15 year-old.  To these people, is the criminal justice system "broken?"
Well, it might help to ask them, but I have never seen this done. Specifically, why isn't there a poll asking, "Which more nearly reflects your view of the problem with the criminal justice system: That we have too many people in prison for too long for no good reason, or that we have too much insufficiently punished crime?"

If the media ever polls this question, please let me know.  I have a suspicion that it's going to get polled on the Twelfth of Never, because the media knows what the answer will be, and would prefer to keep it under wraps.

So, to return to the major themes of the President's message this week:  Is the criminal justice system broken, and is the way to fix it (if a fix were needed) to release more convicts earlier?

1.  From the perspective of the huge majority of our citizens, the system is hardly "broken."  To the contrary, it is arguably the most successful domestic program in the last fifty years.  Today, we have more than five million fewer serious crimes in this country per year than we did a generation ago.  We have more than ten thousand fewer murders per year.  The crime rate is half what it was in the early Nineties, at levels not seen since the Baby Boomers were in grade school.  This is a system we should  preserve, not endanger by pretending that more serious sentencing had only a minimal hand in these improvements (something even the President declines to say, although many of his backers do).  Instead, more serious sentencing is a key part of the country's success, together with more police and more aggressive policing  --  programs the President and his allies also oppose.

2.  What will happen if we follow the President's suggestion for "fixing" this "problem," i.e., if we reduce prison sentences and grant early release?

We already know.  We know because the President's own Justice Department told us in a comprehensive study released just last year.  The first two paragraphs are as follows:

An estimated two-thirds (68 percent) of 405,000 prisoners released in 30 states in 2005 were arrested for a new crime within three years of release from prison, and three-quarters (77 percent) were arrested within five years, the Bureau of Justice Statistics (BJS) announced today.

More than a third (37 percent) of prisoners who were arrested within five years of release were arrested within the first six months after release, with more than half (57 percent) arrested by the end of the first year.

We then see this:

Recidivism rates varied with the attributes of the inmate. Prisoners released after serving time for a property offense were the most likely to recidivate. Within five years of release, 82 percent of property offenders were arrested for a new crime, compared to 77 percent of drug offenders, 74 percent of public order offenders and 71 percent of violent offenders.

Or, to sum it up, what happens when we give criminals shorter sentences and earlier release dates is that they get back in business.


So let's just sum it up.  The President's version of a "problem" is the most successful crime suppression program the country has had since hula hoops were in style, and his version of a "solution" is the releasing of criminals earlier with shorter sentences, knowing  --  as shockingly high recidivism rates make clear  --  that this is certain to mean more crime faster.

The only mystery going on here is why any Republicans in Congress fall for this.


Two quick responses:

1. GOP Representative F. James Sensenbrenner is also now talking about a broken criminal justice system: http://sentencing.typepad.com/sentencing_law_and_policy/2015/07/in-praise-of-gop-rep-sensenbrenner-making-the-moral-case-for-sentencing-reform.html. Do you think Rep Sensenbrenner is also in the throws of "leftist ideology?"

2. Notably, as Rep Sensenbrenner noted in his recent testimony, there is evidence that post-2005 release data you highlight shows that increases incarceration may increase recidivism because it makes better criminals of those incarcerated. And the Heritage Director cited this more recent notable related data in his testimony on these topics today: "in a recent report, The Pew Charitable Trusts found that over a five-year period (from 2008 to 2013), the ten states that instituted reforms and cut their imprisonment rates the most experienced greater drops in crime (13% average crime rate reduction) than the ten states
that increased their imprisonment rates the most (8% average crime rate reduction)."

I make these points not to dispute yours, Bill, as much as to highlight that it is quite possible for folks who are not subcribers to "leftist ideology" to view the current system as broken and justifying a reduction in our incarcerate rates.

1. Gads, Doug, you must be lightening up in your old age (well, not that old). It wasn't long ago that you called Sennsenbrenner "idiotic" and "stunningly stupid" for his complete ignorance of sentencing law.


One's IQ must really shoot up with agreement with the pro-criminal lobby.

2. If increases in incarceration push up recidivist crime, then the massive increases in incarceration over the last quarter century would have at least somewhat increased crime over that time, no?

Is that what happened?

Not exactly. The opposite happened, on a huge scale.

If I tried the gymnastics with numbers that the pro-crime lobby does, I'd be hooted out of town. See, for example (but hardly limited to) the cherrypicking among states that Pew does in the study you cite. (Which was STILL mortified to conclude that incarceration correlates with decreased crime wherever you look).

3. We agree, though, that it is not just the leftists and anti-Americans (like George Soros) who get it all wrong on crime and incarceration (although they've been in the lead starting decades ago). A number of libertarian headcases, like Rand Paul when he's not opposing vaccinations and blaming ISIS on Mitch McConnell, have fallen for it too. And more and more Republicans at least pretend to fall for it since, you bet, no one wants to be on the wrong side of Koch money.

1. I described a key Rep Sensenbrenner 2013 comment --- that we must preserve mandatory minimums because federal defendants can and do engage in "judge shopping" --- as "idiotic" and "stunningly stupid." I stand by those descriptions of his prior statements.

Now, perhaps informed by two years of serious study of federal criminal justice system, Rep Sensenbrenner is saying the system is broken and needs to be fixed. That is the term your post here is about, and I want to know if you would characterize that more recent Sensenbrenner statement to be "idiotic" and "stunningly stupid" or in, to use your words from this post, a Sensenbrenner view based in "leftist ideology." Do you think Rep Sensenbrenner is generally inclined to ignore the concern of "normal people with families and jobs"?

2. Bill, increased incarceration in the US got started in the mid-1970s and we did see significantly increased crime through the next 15 years. In addition, in your post you are especially focused on the recidivism rates of those incarcerated, and the evidence suggested that increased incarceration has also increased recidivism rates. What you call "gymnastics with numbers," is actually a serious concern for serious criminology. This is a topic that merits real discussion and debate, and sound-bites and cherry picked data too often defines the discussion. But your effort to assert modern mass incarceration is a primary or even a major factor in decreased modern crime rates is just not borne out in the data.

3. Do you consider Rep Sensenbrenner (or Ted Cruz or Rick Perry or John Cornyn) to be "libertarian headcases" because of their recent vocal support for sentencing reform? Do you think they are among those getting "it all wrong on crime and incarceration"? Or are you suggesting they are all just "pretending" to believe what they are saying in order to be able to get needed Koch money? I am especially eager to hear your response on these questions because I think it is critical for me and other voters to know whether establishment GOP support for sentencing reform is a genuine view or just examples of wolves putting on sheep clothing in order to get campaign money.

You are, Bill, far more in touch with the establishment GOP that I even will be, so I take you suggestion that this is all "pretend" very seriously. Can you help me identify who may be just "pretending" on this front? I might still support the campaigns of pretenders, but I am genuinely interested in having your help sorting out who on the GOP side really believes what I hear them now saying.

Douglas A. Berman,

You make some good points. But, what do you say in response to the data showing that drug use in the United States is down substantially since we enacted these harsh sentencing laws? According to President Obama's own Office of National Drug Control Policy, drug use in the United States "has dropped substantially over the past thirty years....The rate of Americans using illicit drugs today is roughly one-third the rate it was in the late '70s. More recently, there has been a 40 percent drop in current cocaine use and meth use has dropped by half."

Do you believe that the tough drug sentencing laws had nothing to do with that significant drop in drug use? Also, how can you and others constantly say that the "drug war" has been a complete failure when the number of people using illegal drugs has taken a dramatic dive since those laws have been passed? The number of people using crack cocaine is significantly less today than it was in the 1980s when the harsh laws were passed, do you think the harsh laws and the removal of crack dealers from the communities had nothing to do with that?

If a cancer drug reduced the number of cancer deaths by 1/3, would you claim that drug was a failure?


Sure it's broken.

Any system that takes 3 years to send the Colorado killer to trial and another decade to execute him (if DP is sentence) is undeniably broken.

He, along with the Boston Marathon bomber should get the needle in less than a year in a system that is working.


Once factual guilt is conclusively determined, there is no excuse for the amount of delay we have -- delay sponsored first and foremost by those who say the DP is so delayed it should be abandoned.

This is enough to give cynicism a bad name.

Doug --

Rather than go through this line by line, and thus get into the kind of debate one of our readers (notablogger) has observed drags the tenor of the conversation down, I am going to respond very briefly.

Over the last quarter century, two facts dwarf everything else that has happened with crime and punishment. Incarceration has massively increased, largely due to stiffer and more rule-driven sentencing; and crime has massively decreased.

The idea that these two things have no significant relationship to one another is wrong to the point of being comic.

1. Zackary, can you provide a link to the date you reference? I found a Dec 2014 report that has data from the 1980s through today, and it reports, circa 1985, 23.3 million drug users (of which 18.5 million are marijuana users), while in 2012 we have 23.86 million drug users (of 18.85 million are marijuana users). Adjusted for population increases, this suggests a slight reduction in rates of use, but if these numbers do not include incarcerated persons that may distort the real numbers. It also suggest that an increase in use of meth and heroin accompanied a decrease in cocaine use through the 2000s.

Moreover, we have seen a dramatic decrease in tobacco use (which causes more chronic health problems than all illegal drugs) without a need to incarcerate hundreds of thousands of persons. Though I believe -- indeed, sincerely hope --- that tough criminal laws impact harmful human behaviors, I also believe we ought also explore all less costly and more moral ways to impact behavior than severe deprivation of liberty.

That all said, even assuming we have gotten a 1/3 reduction in illegal drug use from the drug was, I still wonder if that is worth the high human/economic/social costs. Would you support continued investment in that hypothetic cancer drug that reduced cancer deaths by 1/3, but did so only by distracting researchers from looking for needed heart disease drugs and driving up health insurance premiums by 50% and creating uniquely strained relationships between certain communities and doctors?

2. Bill and Tarls, I agree completely that our modern capital punishment system is broken. But wait, ... since we have had, as Bill notes, "more than ten thousand fewer murders per year," maybe it is "breathtakingly false" to call it broken. Or maybe what "broken" really means is that it does not live up to our values.

3. Finally, I just saw a report that John Boehner told reporters Thursday "that there were many people in prison 'that really don't need to be there,' [and] that he wants bipartisan legislation proposing criminal justice system reform to come to the House floor." So, I am now forced to wonder if you think Speaker Boehner is one of those "libertarian headcases" who is getting "it all wrong on crime and incarceration" or if he may just be "pretending" to be able to get needed Koch money for his caucus.

Doug --

Word games don't get us very far. Yes, it is FALSE to label as "broken" a system that does wonderfully well the main thing it's supposed to do (suppress crime).

Yes, it is TRUE to label as "broken" the very discrete sliver of that system (accounting for much less than 1% of the cases) that gratuitously delays executing killers whose guilt is beyond any rational doubt.

Please note that if the comment thread descends into baiting and silliness, I will end it.

Okay, let's end the words games and focus on my main concern: Can you help me understand if all the prominent establishment Republicans in Congress now embracing and even advocating for significant federal sentencing reform --- ranging from John Boehner to John Cornyn to Jim Sensenbrenner --- really believe that the systems needs to be fixed or are they just pretending to make nice with the Koch brothers.

You commentary on this blog, including this post and comment thread, has long suggested one would have to be skewed by leftist or libertarian thinking to seriously consider embracing and advocating for significant federal sentencing reform. But none of these folk listed above seem to me to be leftists or libertarians. So I really wonder if you think (and I should assume) what they are saying in favor of reform is just "pretend" for campaign money reasons.

Douglas A. Berman,

Here is a link to an article discussing the data I mentioned in my previous post:


And, here is some more data from the Office of National Drug Control Policy showing that at the time this data was collected "overall drug use rates are about half of what they were in the late 1970s."


And, here is some more data showing that "Use of crack, the smokable rock-crystal form of cocaine, is only a fraction of what it was in the 1980s and 1990s when it devastated inner-city neighborhoods."


You stated that tobacco causes more chronic health problems than illegal drugs. I respectfully suggest that you spend more time around meth and heroin addicts. I have spent time with them, and they've got some serious chronic health issues. I suppose that most long-term meth or heroin addicts no longer have chronic problems...because they are dead.

I don't dispute that some tweaks can be made here or there to the federal sentencing structure. But, the big reforms that are being proposed are risky business.


Thanks for the links, Zachary, which seem mostly to be reflective of a healthy move away from crack and other of the most harmful drugs that surged in popularity in the late 1970s and early 1980s. For the record, I do believe that tough criminal laws played a role in helping highlight the harms/costs of cocaine abuse, but it also I fear has played a role in moving drug dealers to prioritize marketing meth and pain pills and heroin to the vulnerable. Even more worrisome, I fear it has been the legal drug pushers --- e.g., big Pharma and docs --- who have helped make meth and pain pills and heroin surge as a public health problem.

The challenge in the drug war "efficacy" debate is the same challenge we face in deciding just how much credit we should give for the violent crime decline to long prison terms and mass incarceration. Candidly, I am prepared/eager to credit mass incarceration with contributing to the decline in violent crime somewhat because of incapacitation (though I suspect that we could have gotten a return much more cost effectively if we consistently focused particularly, using risk assessment models, on repeat offenders and men under 45 as in states like Texas). But, with respect to drug use and abuse, the history of alcohol and marijuana prohibition suggest that criminalization and enforcement simply inflates the market price of those willing to risk going into these industries and thus leads more people to go into these industries (or to shift drugs when the marker demands).

Experiences through history, and today in certain regoins, suggests to me that a public health/tax/ light criminal enforcement model (as we have generally adopted with tobacco and other personally risky activities like owning guns and texting while driving) is likely to get us a better public health return for our dollars and also be much more constitent with our nation's traditional commitments to freedom and small government. That said, Zachary, I greatly respect a lot folks like you and Bill Otis and Kevin Sabet who believe that government can and should be actively and aggressively involved in trying to keep Americans from harming themselves with intoxicants and that doing so produces many more benefits than harms for American society. But alcohol Prohibition and other forms of big-government efforts to prevent humans from harming themselves has always struck me as morally wrong even if the evidence of its efficacy might be viewed as mixed or even a net positive.

"Okay, let's end the words games..."

Excellent. I wish they hadn't started.

"Can you help me understand if all the prominent establishment Republicans in Congress now embracing and even advocating for significant federal sentencing reform --- ranging from John Boehner to John Cornyn to Jim Sensenbrenner --- really believe that the systems needs to be fixed or are they just pretending to make nice with the Koch brothers."

Any system could stand improvement; that's just a truism. But idea that our criminal justice system is "broken" is incorrect no matter who has it. As I have said, and you do not refute, a system that is this successful in reducing crime so far so fast cannot sensibly be referred to broken. To be successful is not to be broken.

"You commentary on this blog, including this post and comment thread, has long suggested one would have to be skewed by leftist or libertarian thinking to seriously consider embracing and advocating for significant federal sentencing reform."

Nope -- it depends on the kind of reform we're talking about. If it's just a wholesale reduction of earned sentences, including those for violent criminals, then I'm against it, you bet. The reason I'm against it is that stiffer sentencing has worked, and that, recidivism rates being what they are, it is simply blinking reality to think that the crime rate will keep falling if we do mass releases. I am saddened to say that the spike over the last year in murder and heroin use tends to confirm this view.

But if we're talking about ACTUAL systemic reform rather than just a gift to criminals, then, yes, I am for it and have been for years. Since the day Booker was decided, I have been for a return to mandatory guidelines (which, coincidentally, would allow for fewer MM's). That, and more detailed tracking of the activities of inmates given early release over the last few years (to promote visibility and accountability) are reforms I back 100%.

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