Pubdate: Sat, 24 Oct 2015
Source: Wall Street Journal (US)
Copyright: 2015 Dow Jones & Company, Inc.
Author: Heather Mac Donald
Note: Ms. Mac Donald is the Thomas W. Smith Fellow at the Manhattan 
Institute. This op-ed was adapted from the 25th-anniversary issue of 
the institute's City Journal, where Ms. Mac Donald is a contributing editor.


The president leads the charge to cut the prison population, but mass 
incarceration isn't the problem. Rising crime is.

President Obama paid a media-saturated visit in July to a federal 
penitentiary in Oklahoma. The cell blocks that he toured had been 
evacuated in anticipation of his arrival, but after talking to six 
prescreened inmates he drew some conclusions about the path to 
prison. "oeThese are young people who made mistakes that aren't that 
different than the mistakes I made and the mistakes that a lot of you 
guys made,"  the president told the waiting journalists. The 
implication was that anyone who had smoked marijuana and tried 
cocaine (as Mr. Obama had) could land in a place like the El Reno 
Federal Correctional Institution.

The conceit was preposterous. It takes a lot more than marijuana or 
cocaine use to end up in federal prison. But the truth didn't matter. 
Mr. Obama's prison tour came amid the biggest delegitimation of law 
enforcement in recent memory. Activists, politicians and the media 
have spent the past year broadcasting a daily message that the 
criminal-justice system is biased against blacks and insanely 
draconian. The immediate trigger for this movement, known as Black 
Lives Matter, was a series of highly publicized deaths of black males 
at the hands of the police. But the movement also builds on a 
long-standing discourse from the academic left about "mass 
incarceration,"  policing and race.

Now that discourse is going mainstream. As the media never tire of 
pointing out, some high-profile figures on the right are joining the 
chorus on the left for deincarceration and decriminalization. Newt 
Gingrich is pairing with left-wing activist Van Jones, and the Koch 
brothers have teamed up with the American Civil Liberties Union to 
call for lowered prison counts and less law enforcement. Republican 
leaders on Capitol Hill support reducing or eliminating mandatory 
sentences for federal drug-trafficking crimes, in the name of racial equity.

At the state and city levels, hardly a single criminal-justice 
practice exists that is not under fire for oppressing blacks. Traffic 
monitoring, antitheft statutes, drug patrols, public-order policing, 
trespass arrests, pedestrian stops, bail, warrant enforcement, fines 
for absconding from court, parole revocations, probation oversight, 
sentences for repeat felony offenders - all have been criticized as 
part of a de facto system for locking away black men and destroying 
black communities.

There may be good reasons for radically reducing the prison census 
and the enforcement of criminal laws. But so far the arguments 
advanced in favor of that agenda have been as deceptive as the claim 
that prisons are filled with casual drug users. It is worth examining 
the gap between the reality of law enforcement and the current 
campaign against it, since policy based on fiction is unlikely to 
yield positive results.

Two days before his Oklahoma penitentiary visit, Mr. Obama addressed 
the NAACP national conference in Philadelphia and raised the same 
themes. The "real reason our prison population is so high,"  he said 
to applause, is that we have "locked up more and more nonviolent drug 
offenders than ever before, for longer than ever before."

This assertion is the most common fallacy of the deincarceration 
movement, given widespread currency by Michelle Alexander's 2010 
book, "The New Jim Crow."  That a president would repeat the myth is 
a demonstration of the extent to which ideology now rules the White House.

Pace Mr. Obama, the state-prison population (which accounts for 87% 
of the nation's prisoners) is dominated by violent criminals and 
serial thieves. In 2013 drug offenders made up less than 16% of the 
state-prison population; violent felons were 54% and property 
offenders 19%. Reducing drug-related admissions to 15 large state 
penitentiaries by half would lower those states' prison count by only 
7%, according to the Urban Institute.

In federal prisons - which hold only 13% of the nation's prisoners - 
drug offenders make up half of the inmate population. But these 
offenders aren't casual drug users; overwhelmingly, they are serious 
traffickers. Fewer than 1% of drug offenders sentenced in federal 
court in 2014 were convicted of simple drug possession, according to 
the U.S. Sentencing Commission. Most of those possession convictions 
were plea-bargained down from trafficking charges.

Another myth promoted by the deincarceration movement is that blacks 
are disproportionately targeted by federal drug prosecutions. The 
numbers tell a different story: Hispanics made up 48% of drug 
offenders sentenced in federal court in 2013; blacks were 27%, and whites 22%.

Even on the state level, drug-possession convicts are rare. In 2013 
only 3.6% of state prisoners were serving time for drug possession - 
again, often the result of a plea bargain on more serious charges - 
compared with 12% of prisoners convicted of trafficking. Virtually 
all the possession offenders had long prior arrest and conviction records.

Nor is it true that rising drug prosecutions drove the increase in 
the prison population from the late 1970s to today. Even during the 
most rapid period of prison growth - from 1980 to 1990 -  -   - 
violent prisoners accounted for 36% of the rise in the state prison 
population, compared with 33% from drug offenders. From 1990 to 2000, 
violent offenders accounted for 53% of the census increase and all of 
the increase from 1999 to 2004.

Mr. Obama and other incarceration critics have targeted mandatory 
minimum sentences for federal drug crimes. The current penalty 
structure is hardly sacrosanct, but mandatory sentences are an 
important prosecutorial tool for inducing cooperation from 
defendants. The federal minimums are also not lightly levied. A 
10-year sentence for heroin trafficking requires possession of a 
kilogram of heroin, enough for 10,000 individual doses, with a 
typical street value of at least $70,000. Traffickers without a 
serious criminal history can avoid application of a mandatory 
sentence by cooperating with investigators. It is their choice not to do so.

Critics of "mass incarceration"  love to compare American 
incarceration rates unfavorably with European rates. Crime is 
inevitably left out of the analysis. The U.S. homicide rate is seven 
times higher than the combined rate of 21 Western developed nations 
plus Japan, according to a 2011 study by researchers at the Harvard 
School of Public Health and the UCLA School of Public Health. The 
same people who denounce American gun violence (responsible for the 
great majority of U.S. homicides) and call for gun control in a 
domestic context go silent about such violence when using Europe as a 
cudgel against the American prison system.

Contrary to the advocates' claim that the U.S. criminal-justice 
system is mindlessly draconian, most crime goes unpunished, certainly 
by a prison term. For every 31 people convicted of a violent felony, 
another 69 people arrested for violence are released back to the 
streets, according to a 2007 analysis of state courts by the Bureau 
of Justice Statistics. That low arrest-to-conviction rate reflects, 
among other things, prosecutors' decisions not to go forward with a 
case for lack of cooperative witnesses or technical errors in police 
paperwork. The JFA Institute estimated in 2007 that in only 3% of 
violent victimizations and property crimes does the offender end up in prison.

Far from being prison-happy, the criminal-justice system tries to 
divert as many people as possible from long-term confinement. "Most 
cases are triaged with deferred judgments, deferred sentences, 
probation, workender jail sentences, weekender jail sentences," 
writes Iowa State University sociologist Matt DeLisi in a forthcoming 
issue of the Journal of Criminal Justice.

Offenders given community alternatives "are afforded multiple 
opportunities to violate these sanctions only to receive additional 
conditions, additional months on their sentence, or often, no 
additional punishments at all,"  Mr. DeLisi adds. In 2009, 27% of 
convicted felons in the 75 largest counties received a community 
sentence of probation or treatment, and 37% were sentenced not to 
prison but to jail, where sentences top out at one year but are 
usually completed in a few weeks or months. Only 36% of convicted 
felons in 2009 got a prison term.

Statistical war continues to be waged over incarceration's role in 
the last two decades' decline in crime, with activists and many 
academics denying that incarceration contributed to the drop. Given 
the nonstop pressure from the Black Lives Matter movement, we may be 
embarking on another real-world experiment testing the relationship 
between incapacitation and crime.

If the country is really serious about lowering the prison count, it 
is going to have to put aside the fictions about the prison 
population. The legendary pot-smoker clogging up the rolls is long 
gone, if he ever existed. Cutting the prison population will require 
slashing the sentences of violent criminals and property offenders 
(many of whom have violent histories) and keeping more of them in the 
community after their convictions.

On Tuesday night, New York Police Officer Randolph Holder was fatally 
shot in the head. His killer, according to law-enforcement 
authorities, was a career criminal who had been diverted to drug 
treatment after his latest conviction, in lieu of a prison term. The 
shooter had absconded from his drug program, authorities said, and 
was gang-banging in an East Harlem housing project when he killed 
Officer Holder, who had responded to reports of shots fired.

Clearly, if community alternatives to incarceration are going to 
work, far tighter screening and supervision will be required.

A more promising alternative to incarceration is policing - above 
all, pedestrian stops and Broken Windows policing. New York's prison 
population dropped 17% between 2000 and 2009, while the number of 
prisoners in the rest of the country continued to rise. The decrease 
in the New York prison population is all the more surprising, since 
the average sentence meted out to convicted felons over that period 
increased considerably, contradicting the standard deincarceration 
line of attack.

The different trajectories of the New York and national prison counts 
reflect the onset, in 1994, of the New York City Police Department's 
practice of aggressively enforcing quality-of-life laws and stopping 
and questioning people engaged in suspicious behavior. Misdemeanor 
arrests in the city doubled from 1990 to 2009, while felony arrests 
(and thus, felony convictions) plummeted, as documented by Michael 
Jacobson and James Austin, in a 2013 study for the Brennan Center for 
Justice. Even though convicted felons in New York were being 
sentenced to longer terms, there were far fewer such convicts, so the 
overall incarcerated population fell. And the reason for that drop in 
felony crime is that the NYPD was apprehending potential felons for 
lower-level quality-of-life offenses and getting them off the street 
before they had the opportunity to commit more serious crimes.

Reasonable-suspicion stops represent an even earlier intervention in 
potentially serious criminal behavior: Questioning someone who looks 
to be casing a jewelry store in an area plagued by burglaries may 
prevent a subsequent break-in. And the possibility of getting stopped 
deters crime in the first place. Yet the political opposition to 
policing, especially to misdemeanor enforcement and pedestrian stops, 
is even more pointed now than the opposition to incarceration.

The demonization of the police and the criminal-justice system must 
end. As the Black Lives Matter movement marches forward with no 
apparent diminution of strength, there are signs that the very 
legitimacy of law and order is breaking down in urban areas. 
Resistance to lawful police action is becoming routine. Officers are 
reluctant to engage, given the nonstop campaign against them. 
Homicides in 35 large U.S. cities this year were up nearly 20% by 
August. Liberal elites have successfully kept attention focused 
exclusively on phantom police and criminal-justice racism while 
squelching even the most nascent discussion of the crime-breeding 
chaos of broken families at the heart of inner-city underclass 
culture. We are playing with fire.
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MAP posted-by: Jay Bergstrom