Pubdate: Sun, 24 May 2015
Source: New York Times (NY)
Copyright: 2015 The New York Times Company
Authors: Marc Mauer and David Cole
Note: Marc Mauer is executive director of the Sentencing Project. 
David Cole is a professor of law and public policy at Georgetown University.


WHEN Hillary Rodham Clinton, Ted Cruz, Eric H. Holder Jr., Jeb Bush, 
George Soros, Marco Rubio and Charles G. Koch all agree that we must 
end mass incarceration, it is clear that times have changed. Not long 
ago, most politicians believed the only tenable stance on crime was 
to be tougher than the next guy.

Today, nearly everyone acknowledges that our criminal justice system 
needs fixing, and politicians across the spectrum call for reducing 
prison sentences for low-level drug crimes and other nonviolent 
offenses. But this consensus glosses over the real challenges to 
ending mass incarceration. Even if we released everyone imprisoned 
for drugs tomorrow, the United States would still have 1.7 million 
people behind bars, and an incarceration rate four times that of many 
Western European nations.

Mass incarceration can be ended. But that won't happen unless we 
confront the true scale of the problem.

A hard-nosed skeptic would tell you that fully half the people in 
state prisons are serving time for violent offenses. And most drug 
offenders behind bars are not kids caught smoking a joint, but 
dealers, many with multiple prior convictions. We already have about 
3,000 drug courts diverting those who need it to treatment rather 
than prison. Recidivism remains astonishingly high for those we 
release from prison, so releasing more poses real risks. And criminal 
law is primarily enforced by the states, not the federal government, 
so this is not a problem the next president can solve.

To move beyond symbolic sound bites to real progress, we need to 
address each of these objections in turn.

It's true that half the people in state prisons are there for a 
violent crime, but not all individuals convicted of violent crimes 
are alike. They range from serial killers to minor players in a 
robbery and battered spouses who struck back at their abusers. If we 
are going to end mass incarceration, we need to recognize that the 
excessively long sentences we impose for most violent crimes are not 
necessary, cost-effective or just.

We could cut sentences for violent crimes by half in most instances 
without significantly undermining deterrence or increasing the threat 
of repeat offending. Studies have found that longer sentences do not 
have appreciably greater deterrent effects; many serious crimes are 
committed by people under the influence of alcohol or drugs, who are 
not necessarily thinking of the consequences of their actions, and 
certainly are not affected by the difference between a 15-year and a 
30-year sentence.

For the same conduct, we impose sentences on average twice as long as 
those the British impose, four times longer than the Dutch, and five 
to 10 times longer than the French. One of every nine people in 
prison in the United States is serving a life sentence. And some 
states have also radically restricted parole at the back end. As a 
result, many inmates are held long past the time they might pose any 
threat to public safety.

Offenders "age out" of crime - so the 25-year-old who commits an 
armed robbery generally poses much less risk to public safety by the 
age of 35 or 40. Yet nearly 250,000 inmates today are over 50. Every 
year we keep older offenders in prison produces diminishing returns 
for public safety. For years, states have been radically restricting 
parole; we need to make it more readily available. And by eliminating 
unnecessary parole conditions for low-risk offenders, we can conserve 
resources to provide appropriate community-based programming and 
supervision to higher-risk parolees.

It's true that most individuals incarcerated for a drug offense were 
sellers, not just users. But as a result of mandatory sentencing 
laws, judges often cannot make reasonable distinctions between drug 
kingpins and street-corner pawns. We ought to empower judges to 
recognize the difference, and to reduce punishment for 
run-of-the-mill offenders, who are often pursuing one of the few 
economic opportunities available to them in destitute communities. 
The single most important thing we can do is provide meaningful work 
opportunities to the most disadvantaged.

There are already drug courts in many American communities, and 
studies show they can reduce substance abuse without incarceration. 
But the criteria for diversion are often unduly narrow, and they 
screen out substantial numbers of drug users who could benefit from 
treatment. Equally important, we should not limit our response to 
those who have been arrested. Part of winding down the "war on drugs" 
will require making treatment options more widely available, before 
individuals enter the criminal justice system.

Recidivism is also a serious obstacle to reform. Two-thirds of 
released prisoners are rearrested within three years, and half are 
reincarcerated. But many of the returns to prison are for conduct 
that violates technical parole requirements, but does not harm 
others. And much of the problem is that the scale and cost of prison 
construction have left limited resources for rehabilitation, making 
it difficult for offenders to find the employment that is necessary 
to staying straight. So we need to lock up fewer people on the front 
end as well as enhance reintegration and reduce collateral 
consequences that impede rehabilitation on the back end.

Criminal justice is administered largely at the state level; 90 
percent of those incarcerated are in state and local facilities. This 
means mass incarceration needs to be dismantled one state at a time. 
Some states are already making substantial progress. New Jersey, 
California and New York have all reduced their prison populations by 
about 25 percent in recent years, with no increase in crime. That 
should be good news for other states, which would reap substantial 
savings - in budgetary and human terms - if they followed suit. While 
the federal government cannot solve this problem alone, it can lead 
both by example and by providing financial incentives that encourage reform.

Ending mass incarceration will not be easy. Opposition will come from 
rural community leaders who see prisons as economic development, 
legislators who still respond emotionally to the "crime of the week" 
and prosecutors who measure success by convictions and 
incarcerations, rather than by resolving conflict. But the recent 
tragic police shootings of young black men have, for the moment, 
focused our attention on the imperative for reform. And state 
budgetary crises have led many to question the vast resources we 
devote to holding too many people under lock and key.

Today, at long last, a consensus for reform is emerging. The facts 
that no other Western European nation even comes close to our 
incarceration rates, and that all have lower homicide rates, show 
that there are better ways to address crime. The marked disparities 
in whom we choose to lock up pose one of the nation's most urgent 
civil rights challenges. But we will not begin to make real progress 
until we face up to the full dimensions of the task.
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MAP posted-by: Jay Bergstrom