Let’s Get Soft on Crime
by

Let’s get soft on crime.

Who’s with me?

Hello? Anyone?

If someone were to ask you if you favor tougher penalties for criminals or more lenient ones, giving you no context, you would almost certainly favor the former.

Now take your context. What’s the average sentence for a wife beater in your neck of the woods? A typical credit card scammer? A weed dealer? A murderer? A tax cheat or a welfare cheat?

You don’t know. I don’t know. The many millions of Americans worried “a great deal” about crime despite historic lows most certainly do not know. But that’s democracy — the rule of universal ignorance.

We don’t know and can’t know all that takes place in our courthouses, how well all those punishments fit their respective crimes. But we feel the guilty should get what’s coming to them (some of us making an exception for the weed dealer). We err on the side of severity.

Politicians know this. I know nothing infuriated a district attorney I used to cover like stories with an implication that he was soft on crime. They don’t send out press releases when they let a rich molester cop a plea for a bit of house arrest because his prosecution isn’t worth the trouble.

Attorney General Jeff Sessions knows this, too. The tough-on-crime image has always worked for him. So nobody was surprised when he issued harsh new sentencing guidelines to federal prosecutors Friday, but just about everybody who knows anything about criminal justice was disappointed.

When politicians talk about getting tough on crime, what they inevitably mean is getting tough on soft crimes. They’re talking about spending vast sums incarcerating some of the least dangerous people to pass through the system.

It may sound reasonable to “charge and pursue the most serious, readily provable offense,” as Sessions instructed, but I know of multiple cases here in Texas where petty drug paraphernalia cases turned into sentences of 25 to 45 years because the prosecutor did just that. That is, the defendant had stepped on a pipe or tossed it aside and got nailed for “tampering with evidence” instead of the drug charge.

That’s a waste of human life and a waste of millions in incarceration and court costs. To prevent what? A few snatch-and-grabs by a crackhead?

Public choice theory tells us that the problem starts with our own bias. We’ll take “tough” over “soft” every time, and so penalties ratchet up to inhuman levels. The attorney general of Texas, for example, is currently facing up to 99 years in prison over an assumption about an investment that only ever existed in somebody else’s head.

“The responsive nature of the modern legislative process exacerbates legislatures’ tendency to be especially punitive when setting sentencing terms,” writes law professor Austin Sarat. “Because criminal codes are rarely created anew, legislatures typically contemplate crime and sentencing laws only in response to a perceived ‘crime problem…’ (and) often conclude that a crime problem is the result of ‘soft’ laws that fail to deter potential lawbreakers.”

Politicians have been selling us lock-’em-up policies, and we’ve been buying. With just more than 4 percent of the world’s population, the U.S. has more than 21 percent of the global prison population.

Marc Levin, the director of the Right on Crime initiative at the conservative Texas Public Policy Foundation, says there was a sixfold increase in incarceration from the mid-1970s to the mid-2000s.

Then, a miracle occurred, thanks in large part to Levin. In 2005, the state legislature created a program that got the courts to stop tossing people in prison every time they missed a probation appointment or had a drink.

In 2007, the Texas legislature was trying amidst a budget crunch to come up with $2 billion for 17,000 more prison beds. Levin and TPPF proposed an alternative: Spend $241 million instead of that on drug courts and rehab programs.

“Once you reach a certain rate of incarceration, you start to have diminishing returns because you aren’t just putting dangerous people in prisons anymore,” Levin has said. “You are putting in nonviolent offenders. You are not really impacting crime. You are not making people safer.”

TPPF’s conservative bona fides gave Republicans cover to support the idea. But the results of the program speak for themselves.

In the last 12 years, crime has fallen by more than one-third in Texas, faster than the national rate, even as the incarceration rate has dropped 16.6 percent, Levin says. Texas has closed four prisons.

“The reason I started my drug court program back in 2005 was because I kept seeing the same people come through the system over and over again, and I decided that I wanted to try to see if I could do something to stop that,” says Ray Wheless, a conservative district judge from just north of Dallas.

The reformers point out that low-risk, non-violent drug offenders can often be turned around by drug courts, while even short prison terms tend to harden them, and draw them further into criminality.

Even with 11,000 more people on parole today than a decade ago, there are 17 percent fewer crimes being alleged against parolees. Recidivism overall is 9 percent lower overall than before the reforms.

Conservatives in state after state have found the numbers convincing. At least 29 states have rolled back mandatory sentencing laws since 2000.

In 2013, Attorney General Eric Holder joined the movement, telling federal prosecutors not to include certain drug charges if the punishment was excessive for the situation.

“The price of heroin is down, the availability is up, and the purity is up,” Sessions said, by way of explaining his decision to reverse Holder’s policy. “We intend to reverse that trend. So we are returning to the enforcement of the law as passed by Congress — plain and simple.”

There is a world of mistaken assumptions behind that statement. Assuming we’ve all recognized that the cartels aren’t going to be deterred, what does sentencing have to do with interdiction? Why would more profitable prices for traffickers be better, and what’s the connection to prison terms for low-level offenders? And why on earth would anyone prefer impure heroin? Heroin metabolizes in two to six minutes; so-called overdoses are actually the result of drug interactions or impurities.

However, Sessions is right that those are the laws on the books. That ought to change.

Some of the most conservative Republicans in the Senate — such as Mike Lee, Rand Paul, and Chuck Grassley — have been pushing for sentencing reform, and they’ve got the numbers to win in committee and on the floor, but they’ve been thwarted by Sessions, Sen. Tom Cotton of Arkansas, Sen. David Perdue of Georgia, and former Sen. David Vitter of Louisiana, as Majority Leader Mitch McConnell reportedly didn’t want to split his conference.

So will Congress manage to stumble over the emotional objections of a dwindling remnant and fail to do the easy thing, the right thing, the conservative thing? Even odds, I’d guess.

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