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Jailbreak: Obama's Mass Release Hits the Streets

Brian Blake, David W. Murray & John P. Walters

Over the past few decades, Americans have experienced a record decline in crime rates. Neighborhoods that were once dangerous for the law-abiding and the vulnerable have been stabilized and given a genuine chance at recovery and advancement. Most of all, the decline in murder rates has saved more lives than we can count, most of them young, disadvantaged men in our cities. Many urban centers previously written off have been revitalized as crime became rarer and security more abundant. But these gains are fragile and at risk, as recent reports have leaders and citizens rightly concerned that the progress of the last 30 years could be reversing, portending a return to the days of fear and insecurity unknown for a generation.

It is in this moment of concern when the gains against crime are weakening, a shock no one is seeking will likely come as the presumably unintended product of federal efforts at “criminal justice reform.”

According to a report in the Washington Post, at the end of this month, the Justice Department will release around 6,000 federal prison inmates, the largest one-time release in history. The release is the result of a U.S. Sentencing Commission recommendation, which initially called for reducing the punishment for future drug offenders but then was retroactively applied to those already serving federal drug sentences. This expanded application resulted in the 6,000 offenders that are set to be released between October 30 and November 1, but is only a fraction of what is to come. According to Commission estimates, 46,000 inmates currently serving federal prison sentences for serious drug trafficking offenses are eligible for early release, in some instances years shy of their court-imposed prison terms.

Americans embrace tales of redemption, rightfully supporting those who have made mistakes but then turned their lives around. We are a country of second chances; it is part of our national ethic. But hard-won experience has shown that stories of crime and punishment often do not fit the optimal narrative, and that the mass early release of 6,000 inmates with thousands to follow has the potential for grave results.

The Justice Department’s own studies on recidivism—inmates committing new crimes after their release—are the foundation of these concerns. One such study is referenced in the Post article to alleviate anxiety about the release, with Justice officials highlighting the finding “that the recidivism rate for offenders who were released early after changes in crack-cocaine sentencing guidelines in 2007 [were] not significantly different from offenders who completed their sentences.” Since there is no difference, the implication is that there is no real threat from returning prisoners. But left unsaid is the striking reality of just how high is that actual rate of re-offending, for either group of prisoners.

In the referenced U.S. Sentencing Commission study, 43.3 percent of crack offenders released early following a 2007 change in crack sentencing guidelines reoffended within five years. Applying this percentage to the 6,000 inmates due to be released early predicts that, at a minimum, 2,600 crimes will be committed in the next five years. Extrapolating to the 46,000 inmates proposed for release jumps that estimate to over 19,900 crimes.

These estimates, however, are likely on the low end when we examine the results of a broader Department of Justice study of recidivism rates for former state prison inmates (the vast majority of the U.S. prison population). This state prison study examined recidivism rates for “drug offenders,” a broader category compared to the crack-offender study, but more in line with the “drug offender” population the federal system will be releasing. (Despite the often repeated myth, it should be noted that neither federal nor state prisons are populated with those whose primary offense is simply using drugs. In fact, in the federal prison system, another DOJ study revealed that 91.4 percent of inmates convicted of drug offenses were in reality drug traffickers.)

The Justice recidivism report showed that within five years of release, 77 percent of drug offenders in the state system had committed new crimes. When this percentage is applied to the initial 6,000 and broader 46,000 proposed for release, there is the potential for over 4,600 and 35,000 new crimes committed, respectively, in the next five years. And keep in mind that these are crimes for which the recidivists are caught. As common sense and experience have shown, not every crime committed results in an arrest. Exact estimates on crimes committed versus crimes for which the offender is arrested vary and are difficult to establish with precision, but one can be assured that far more crimes are committed than there are arrests for crimes. In reality, “clearance rates” for serious crimes show that for violent crimes, less than one half of all criminal victimizations result in an actual conviction, while only 19 percent of property crimes are “solved” by a conviction.

It can be argued, of course, that these inmates—with their predicted rates of recidivism—would have been released at some point anyway, so what’s the added harm? First, every year that a felon with a continued propensity to re-offend is not on the street, there are fewer crimes, and fewer victims. The average impact of early release was said to be about two years off the expected sentence. It is troubling, therefore, to learn that around 33 percent of released inmates will re-offend within that two-year period. Further, releasing them early and en masse, on top of the regular cohort of inmates finishing their sentences in the coming months, presents an added and unexpected risk to society. This first group of 6,000 inmates will be released at nearly the same time, with tens of thousands to follow. That is a significant increase in the raw number of convicted felons—with their potential to return to criminal activity—back on the streets at once. Will communities, institutions, and law enforcement be able to absorb this massive influx? The Justice Department says that although many will be deported to their home countries (those who are not U.S. citizens), the majority will be placed in home confinement or halfway houses and then into supervised release. Are those already-taxed systems prepared for tens of thousands of new charges? Reintegrating felons into society and curbing their temptation to return to crime and victimization is already a difficult enough task with the current resources; adding thousands to the existing system at once will likely further depress success rates.

We now have decades of hard-won experience on how to make our cities safer, and millions of Americans have been spared from being crime victims because of those efforts. Ignoring these lessons and boldly tilting the scales of justice the other way is not prudent or responsible public policy. There are genuine risks to society with this early release of prisoners that must be factored into the decision. These risks should be acknowledged by policy makers and understood by the public who will bear the costs. As we debate criminal justice reform and focus on the circumstances of those who commit crimes, let’s not forget to protect those who our actions can make the innocent victims of the future.

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