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Criminal Justice Reform: Suddenly a Relevant Topic

July 20, 2015

by J. Andrew Zalucky

US Prison Population Growth

Former President Bill Clinton, in a very common moment of choreographed clarity, admitted than his contribution to crime legislation in the early 90s contributed to the disgrace of mass incarceration we live with now. What’s more interesting of course is how and why that legislation came about in the first place.

What did Bill say exactly? Here’s some info from The New York Times:

He agreed that the law he enacted in 1994 played a significant part in warping sentencing standards and leading to an era of mass incarceration.

“I signed a bill that made the problem worse,” Mr. Clinton said. “And I want to admit it.”

The expression of regret was the latest effort by Mr. Clinton to reframe his record nearly 15 years after he left office and clear the way for his wife’s own campaign for the White House. Mr. Clinton has previously renounced the Defense of Marriage Act that he signed, defining marriage as the union of a man and woman, and the don’t-ask, don’t-tell policy that barred gays and lesbians from serving openly in the military.

Many political observers express bewilderment at how the Democrats have changed their stances on so many things since the early 1990s. But this ignores the strategy which Bill Clinton had long used when in political trouble, both while on campaigns and in office: “triangulation.” In short: take on some of the most hardline stances of the Republican side to neutralize the opposition, and don’t worry about the Democrats, who loved Bill for so many other reasons that they’d sheepishly go along with it anyway. And it worked pretty well, Bill handily won re-election in 1996.

Let’s not forget the climate of the 1994 crime bill. Crime in many major cities was very high, and had been rising dramatically for much of the previous decade. This reflects a trend that had begun in the 1960s: a long, steady spike in violent crime across much of the United States. In 1967 alone, there were riots in almost every major city:

Beginning in April and continuing through the rest of the year, 159 race riots erupted across the United States. The first occurred in Cleveland, but by far the most devastating were those that took place in Newark, New Jersey, and Detroit, Michigan. The former took twenty-six lives and injured fifteen hundred; the latter resulted in forty deaths and two thousand injuries. Large swaths of ghetto in both places went up in flames. Television showed burning buildings and looted stores, with both National Guardsmen and paratroopers on the scenes.

Historians, social scientists and economists still argue about what caused the persistence of violent crime from 1967 to the early 1990s. Some blame the cultural revolution and the subsequent loosening of morals, others blame racial tensions and police brutality, and some even point out the use of lead in buildings as the cause. Another interesting theory I’ve heard is that the sheer size of the baby-boomer generation created such a mass of young men at peak crime-committing ages (roughly 17-20) that the country’s infrastructure of law enforcement simply could not handle the load of petty to violent crimes that began to spike as the generation grew up. Vietnam is of course another, perhaps more complicated factor- and the beginnings of the war on drugs should be considered as well.

And so from this environment of cultural collapse came the waves of crime throughout the 70s and 80s. It’s funny to think of how safe New York City is today. My aunt likes to joke about Time Square basically being like Disney World (lamenting the fact of course). But as children, New York was no joke to us. In 1994, the notion of young, suburban kids from the tri-state area suburbs moving to Bed-Stuy and Park Slope would have been laughed-off as the plot of some awful TV sitcom or grocery-store murder mystery novel. You did not go to the city after dark. If you went, it was for a very specific reason (e.g. Yankee game, Broadway show) and then you left.

So it’s understandable that Clinton would sign a bill that put over 100,000 new cops on the streets and tried to curb the influx of assault weapons and other measures.

But it also changed sentencing laws. And while many factors contributed to the drop in crime in the mid-90s, there’s no doubt that getting more criminals off the street faster helped make this a reality. However, a lot of non-violent criminals got caught up in this as well. Our prisons today do not produce rehabilitated citizens, and due to the nature of felony convictions, many have zero chance of redemption (job, family, freedom of association) even after serving their allotted sentence. “Tough on crime” advocates habitually overstate the effect that incarceration has had since 1994, a fact a recent Atlantic article shows:

It turns out that increased incarceration had a much more limited effect on crime than popularly thought. We find that this growth in incarceration was responsible for approximately 5 percent of the drop in crime in the 1990s. (This could vary from 0 to 10 percent.) Since then, however, increases in incarceration have had essentially zero effect on crime. The positive returns are gone. That means the colossal number of Americans cycling in and out of prisons and jails over the last 13 years was not responsible for any meaningful fraction of the drop in crime.

Read the entire thing.

With Hillary Clinton looking to take the fire out of her competitors’ campaigns, it’s become convenient to disavow the legislation she helped push for while she was first lady (along with her old stance against gay marriage). As being the poster-child for humanity’s Will to Power, this attitude on the part of Hillary should come as no surprise. But it’s certainly a new topic for her to care about, and it’s one the Republicans and other Democrats have been relatively muted on. That is except for the two candidates I dislike the least from either party: Rand Paul (R) and Jim Webb (D).

Rand Paul recently made a startling statement while on the campaign trail:

“You can kill someone in Kentucky and be eligible for parole in 12 years, but we have people in jail for marijuana sales for 55 years, life, 20 years, 25 years. We’ve gone too far in all of this and then when you add up the numbers, even the white kids and black kids use marijuana at about the same rate and in national surveys the arrests and incarceration rate is four times greater for black males than it is for white males.”

One might say that Paul is merely pretending to care about racial justice here just to win votes, but even if true, it’s an awfully dubious issue to choose. Most African-Americans vote Democrat and most of the Republican base doesn’t give a damn about mass incarceration because to them it’s either “something that happens to someone else” or actually a good idea anyway. But to those conservatives who pretend to care about “big government,” they would do well to consider the criminal justice system as part of their critique. Force is what gives the state its power. Arrests and imprisonment are exercises of that force just as much as taxation and regulations. And if they care so much about the preservation of the nuclear family, they should care about the teenager who screws up and gets arrested for pot and then has his whole life destroyed because of it- something their own kids may have done and gotten a slap on the wrist.

Though some conservatives do take some time out to talk about this, here’s George Will responding to the death of Eric Garner:

Overcriminalization has become a national plague. And when more and more behaviors are criminalized, there are more and more occasions for police, who embody the state’s monopoly on legitimate violence, and who fully participate in humanity’s flaws, to make mistakes.

He continues (emphasis my own):

Most of today’s 2.2 million prisoners will be coming back to their neighborhoods, and few of them will have been improved by the experience of incarceration. This will be true even if they did not experience the often deranging use of prolonged solitary confinement, which violates the Eighth Amendment’s ban on “cruel and unusual punishments” and is, to put things plainly, torture.

The scandal of mass incarceration is partly produced by the frivolity of the political class, which uses the multiplication of criminal offenses as a form of moral exhibitionism. This, like Eric Garner’s death, is a pebble in the mountain of evidence that American government is increasingly characterized by an ugly and sometimes lethal irresponsibility.

As for the Democrats. Though Bernie Sanders is currently the hot candidate for progressive who think we actually need MORE central planning and state control over the economy (umm…), the best voice on criminal justice reform is former Virginia senator Jim Webb. Webb, also a decorated Vietnam veteran and Naval secretary, has written extensively on the topic:

In a 2009 article for Parade magazine, Webb described the terrible situation in vivid detail:

Drug offenders, most of them passive users or minor dealers, are swamping our prisons. According to data supplied to Congress’ Joint Economic Committee, those imprisoned for drug offenses rose from 10% of the inmate population to approximately 33% between 1984 and 2002. Experts estimate that this increase accounts for about half of the dramatic escalation in the total number imprisoned over that period. Yet locking up more of these offenders has done nothing to break up the power of the multibillion-dollar illegal drug trade. Nor has it brought about a reduction in the amounts of the more dangerous drugs–such as cocaine, heroin, and methamphetamines–that are reaching our citizens.

Of course, he hasn’t yet put forward a comprehensive plan to combat this, other than asides to “American ingenuity,” but I’m interested to see what he comes up with.

Crime was pretty terrible in much of the US for a long time, but we shouldn’t overstate this. And we should acknowledge how the state overreacted, and why overreaction on the part of governments is different than that of individuals. Individuals make choices based on their own unique circumstances, governments make them based on the preservation of power and stability. Therefore, the government can only (by definition) make broad and sweeping policies to remedy social ills, ones that often work in limited cases and sometimes make things even worse. Now that prominent candidates are pretending to care about it, we should start caring for real.

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