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Sentencing Reform Loses Its Way

David W. Murray

Later today, the White House and the Brennan Center for Justice will host an event pressing for the release of thousands of convicted federal felons in the name of sentencing reform. During this event, titled “The Economic Consequences of the Criminal Justice System,” those consequences will likely be portrayed as dire, indeed, a burden of massive, though purportedly unnecessary, costs.

Most efforts to understand the criminal justice system calculate the costs and social burden of crime, what most of us regard as the underlying cause of sadly necessary criminal justice expenditures.

The Obama administration disagrees, arguing that the American criminal justice system is broken and the courts are an instrument of oppression. As such, this approach holds little appeal for most Americans. Instead, the White House courts the public (and conservative lawmakers) by portraying the costs of justice and imprisonment as exorbitant, representing overreaching government power and cost.

This position goes well beyond the valid (and obvious) argument that courts sometimes make mistakes. Instead, this campaign is an indictment of the justice system itself, particularly mandatory sentencing guidelines and laws against large-scale, even violent, drug trafficking—the actual violation that constitutes fully 99.5 percent of convicted federal drug offense prisoners, now being considered for release.

Rather than the costs of crime, in lives as well as dollars, the reform effort denounces the costs of incarceration, arguing that sentences offer little in the way of criminal deterrence, their thesis supported by stories of low-level, non-violent offenders swept up in punitive zeal because of a single misstep.

Empirically, this crafted profile is easy to dismiss. A cost calculus must look not only at deterrence, but the benefits of crimes prevented through the incarceration of habitual offenders. Not only are drug crimes warranting federal prison overwhelmingly serious trafficking offense, large numbers of offenders have career criminal backgrounds. A Department of Justice study of thousands of similar state prison inmates shows the magnitude of their criminal career. These inmates had been arrested an average of 11 times before being incarcerated, and fully 77 percent of those released re-offended within five years. (Including prisoners past their so-called criminal prime; of those inmates over age forty, 69 percent re-offended.)

Moreover, besides the violent consequences of drug trafficking more broadly (such as the record 10,500 Americans dead from heroin overdoses in the latest measured year), many of these offenders engaged directly in armed and violent criminal acts during their trafficking offense.

That is, for every incarcerated inmate, the odds are overwhelming that they have left a path of shattered victims, and the only impediment to their creating yet more has been their incarceration. The point is that whatever the costs of providing justice, the cost of the crimes themselves, both those already committed and those forestalled, is greater in both human and economic terms.

Some conservatives have been drawn into accepting this attack on the integrity of America’s courts, forgetting that the quest for smaller government must not come at the expense of public safety and the protection of the most vulnerable.

Offered reforms are often contradictory in their provisions. For example, though reform arguments reject mandatory sentencing guidelines—which prosecutors believe provide effective tools for pursuing drug kingpins and obtaining critical testimony against them by captured fellow cartel and gang members—the reforms actually introduce a new mandatory measure, but directed only at trafficking the particularly deadly opioid fentanyl.

No doubt in the wake of the devastating heroin epidemic, people will be alarmed at finding thousands of experienced drug traffickers returned to their local neighborhoods, hence this focus on fentanyl smacks of political optics.

Other arguments are that the money saved by releasing prisoners will somehow stop crime through investment in wages or education, or allow us to pursue the “truly dangerous” felons. A provision of a Senate bill under consideration proposes using money “saved” from incarceration to “combat gangs of national significance.” Law enforcement knows this is no strategy. We are to release those currently apprehended, so that we can more effectively pursue yet others? And do what with them when caught, courts and prisons having been compromised?

Consider that a rising number of convicted felons in the federal system are immigration violators. Yet the White House has shown no appetite for enforcing immigration offenses, preferring instead what some have termed a “catch and release” strategy, which certainly reduces the costs of incarceration, but trades away real justice in the name of economic savings. Surely that is a feckless way to keep us safe. “Society” may appear to save money, but actual criminal victims are abandoned to their fate.

Progressive reformers may have their beliefs concerning our inherent goodness and corrigibility without prison. But responsible policy and genuine political leadership require a more realistic understanding of our duties to past, present, and future victims.

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