Mimesis Law
27 May 2022

Playing the Hand You’re Dealt in Prison Reform

”Fella gets used to a place, it’s hard to go,” said Casy. “Fella gets use’ to a way of thinkin’ it’s hard to leave.”

-John Steinbeck, The Grapes of Wrath

March 2, 2017 (Fault Lines) — John Pfaff, a professor at Fordham Law, has spent the better part of fifteen years saying America’s incarceration reformers are wrong to focus on freeing nonviolent drug offenders over everyone else. His argument is as persuasive as it is well backed by data: drug offenders just aren’t a big enough chunk of American prisoners for their release to make much of a dent in the overall population.

He explains that the surge, towards the end of the twentieth century, in the number of Americans behind bars is the result of prosecutors imposing longer sentences on violent and property criminals, and that meaningful efforts to empty out the cells – especially in state prisons, which house the vast majority of convicts – have to involve more lenient sentences and more liberty for some very unsympathetic people. There’s no other way to make up the numbers.

Yet many of America’s most visible and effective reformers, like the folks at Families Against Mandatory Minimums, continue to bet big on drug offenders. When FAMM highlights a case, it’s rarely the guy who beat his wife or robbed an old lady. It’s the kid who was sent to prison on a distribution beef for possessing a smidgen of cocaine, or the girl sentenced as a conspirator because she dated a dealer.

Pfaff’s provably right to say this strategy won’t undo the surge in imprisonment. But these provably brilliant people keep pursuing it. Why? Can they both be right at the same time? Yes, they can. The answer lies in how they choose to approach reform.

Today’s decarceration activists emphasize drugs and push for lenity in that area because they’re pragmatists. They understand that total victory in the war on imprisonment is off the table. Reform is an inherently slow, incremental process, because you’re struggling against an established practice and an established mentality. And nowhere is that more true than with crime.

For all their global dominance, wealth and freedom, Americans are a remarkably cowardly bunch. They’re petrified of lawbreakers, especially violent ones, enough so that they let individual acts of crime dictate policy.

Presidential candidates have had their campaigns derailed when their states released criminals, one of whom recidivated and committed a murder. Judges are pilloried in the papers when they send criminals to rehab, not prison, and one recidivates and commits a murder. It’s gotten so bad that courts are tarred and feathered when, after the government’s incompetence forces them to release criminals, a totally unaffected criminal recidivates and commits a murder.

And when a sympathetic person – or even animal – falls victim to a violent crime, legislators fall over themselves to pass kneejerk laws that make things worse. There’s even a name for it now, the Ted Frank rule.

It gets worse. Bear in mind that all it takes to produce this kind of outcry is a single offender. Because a successful large-scale reform effort would necessarily involve taking Pfaff’s advice and putting large numbers of violent criminals in prison for less long, it’d also involve giving them more opportunities to recidivate. And recidivate they will. As Sam Bieler observed in a recent thought experiment:

Let’s say your state’s prison system has 1,000 inmates. A legislator proposes a reform that will reduce sentence lengths by 50 percent, reducing the prison population by 39 percent, to about 610. Of the 390 people freed, 257 will never commit another crime. The remaining 133 will. Their crimes will include one murder, two rapes, 31 assaults, and 13 burglaries. Will you support this reform?

This is what justice reform is actually going to look like. The reform package comes from the Urban Institute’s Sentencing Forecaster: reduce prison sentence length for all classes of crime by 50 percent, cut the prison population by 39 percent. The recidivism rate comes from a five-year study by the Bureau of Justice Assistance: of the people who recidivate, about 1 percent commit a homicide, 2 percent commit a rape, 23 percent commit an assault, and 10 percent commit a burglary.

It doesn’t matter what the political makeup of your state is: the public won’t stand for this. Alaska and California are about as ideologically different as America gets, yet each state‘s population reacted in the same way when the government extended an olive branch to misdemeanor property criminals along with drug offenders.

Alaska passed SB 91 in 2016; California enacted Prop 47 after a popular referendum. Both bills changed possessing hard drugs from a felony to a misdemeanor and eased up on misdemeanor theft. The result, in both places, has been an uptick in junkies shoplifting and stealing cars to get a fix. This much is already intolerable: Alaska’s already rolling back its reforms, and California may soon follow. As for enduring violent crime, that remains completely unthinkable. Arkansas undid its own reform package after – you guessed it – a single high-profile murder.

It gets even worse. Sure, any successful effort to target other groups than drug offenders would immediately be undone by the scared-on-crime public. But things wouldn’t even get that far. That’s because in the U.S., appeals to go easy on violent criminals are unpalatable even to committed supporters of decarceration.

Here at Fault Lines, we interviewed Norm Stamper, the former chief of the Seattle PD and an opponent of overimprisonment. He’s not just a successful and highly-regarded law enforcement leader, but a lifelong liberal with unimpeachable police-reform credentials of his own. Nor is he a stranger to the vicissitudes of violent crime.

If anyone could be counted on to face up to the reality of what Pfaff’s saying, it’s him. Yet even he balked at the suggestion that real reform would involve showing mercy to the likes of domestic abusers.

Activists aren’t “overemphasizing” drug offenders. They’re emphasizing them just right, because total reform isn’t something that can be achieved right now. What they’re doing is triage: freeing the people it can be politically feasible to free. The feds in particular may continue to drag their feet even on drug reform, but at least there have been victories. In today’s environment of relentless fear, anything more is a pipe dream.

2 Comments on this post.

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  • MoButter MoBetta
    2 March 2017 at 12:44 pm - Reply

    “…anything more is a pipe dream.”

    I see what you did there, very nice.

    • David Meyer Lindenberg
      2 March 2017 at 3:32 pm - Reply

      Shh. You didn’t see anything.