Aug 17, 2018

Correcting the Record About Sentencing Reform and Mandatory Minimums

Post by Mark Holden

Last week, we highlighted the sentencing reform provisions under consideration in the U.S. Senate and what they would actually do. Unfortunately, some misinformation regarding these provisions has spread since then.

Yesterday, for example, Sen. Tom Cotton (R-AR) penned an op-ed attacking the measures, calling them “soft on crime.” The reality is, sentencing reform is both smart on crime and soft on taxpayers, and relies on data and evidence to improve the safety of our communities. Today, we take a look at some of the senator’s claims and explain the truth behind them.

CLAIM: “That foolish approach is not criminal-justice reform—it’s a jailbreak that would endanger communities and undercut President Trump’s campaign promise to restore law and order.”

  • The federal government’s own analysis found that harsh sentences do not deter crime. In addition, each of the proposed sentencing reforms being considered still require prosecutorial input and judicial discretion. In other words, no one will be automatically released from prison under these changes, nor will any mandatory minimum sentences be removed.

CLAIM: “Violent crime has declined since the 1980s because mandatory minimums adopted then locked up violent criminals.”

  • Federal mandatory minimums were based on fear and emotion, not scientific data, and no one knows for sure how effective they’ve been at reducing crime. Some have estimated that, at most, mandatory minimums are 25-35% responsible. According to 2015 congressional testimony from Heritage Foundation Scholar John Malcolm, “At the high end, University of Chicago economist Steven Levitt has estimated that approximately 25% of the decline in violent crime can be attributed to increased incarceration. William Spelman of the University of Texas at Austin estimates that the figure may be as high as 35%.” 
  • The National Research Council reported that over-incarceration for low-level offenders has very little positive effect on crime and actually may cause more criminality post-release. “Lengthy sentences are an inefficient approach to preventing crime,” the report stated.
  • Meanwhile, over the past decade, a handful of states have reduced crime and incarceration rates through a data-driven method. Deep-red Texas, for example, closed eight prisons, saved over $3 billion in taxpayer dollars, and brought crime rates down to levels it hasn’t seen since the 1960’s through what former Texas Governor Rick Perry called a “smart on crime” approach.

CLAIM: “But in 2015-16, the most recent years for which full data are available, violent crime increased at its fastest rate in a quarter-century, though preliminary data suggest it might have leveled off in 2017 … Congress and the U.S. Sentencing Commission cut prison terms for drug traffickers, gang members and other violent felons in recent years—putting more criminals on the streets.”

  • There’s no data to support the claim that sentencing changes created a rise in violent crime in 2015-2016. In a 2016 Washington Post op-ed, Mark Holden and Ronal Serpas, former Superintendent of the New Orleans Police Department, cited data from police departments in the 30 largest cities, the FBI, and the Major Cities Chiefs Association showing that the type of rhetoric the senator uses about rising murders is highly misleading. “The truth is,” they wrote, “Americans are still experiencing hard-won historic lows in crime.”

CLAIM: “Five out of six prisoners end up rearrested within nine years, according to a recent Justice Department study.”

  • This is exactly why Washington should follow Texas’s lead on prison reform. We need in-prison programs that rehabilitate people while in prison and then help them successfully reenter society when their sentence is up. Data shows that this approach works. A study conducted by RAND revealed that “inmates who participate in [an] educational program behind bars—from remedial math to vocational auto shop to college-level courses—are up to 43 percent less likely to reoffend and return to prison.” A separate study showed in-prison cognitive behavioral and drug treatment programs led to a double-digit reduction in recidivism compared to inmates who did not receive those services.
  • Thankfully, the senator appears to be on board with the prison reforms within the FIRST STEP Act. This shows that, like us, he believes people are capable of redemption. Therefore, why lock them up for life and throw away the key? And why not try to help others avoid prison in the first place using data-driven and evidence-based practices that have worked in the states?

CLAIM: “Activists say they want to reverse ‘mass incarceration.'”

  • The use of quote marks around the term mass incarceration implies to readers that the term is inappropriate. The truth is, the U.S. does, in fact, have an over-incarceration problem. Our country has 4% of the world’s population and 22% of the world’s prisoners. The U.S. also has the most absolute number of prisoners (2 million people) of any country. As the Washington Post fact checker reported a few years ago: “the United States incarcerates people at a higher rate than other countries.”

CLAIM: “Virtually no one goes to federal prison for ‘low-level, nonviolent’ drug offenses, especially mere drug use or possession. In 2015, there were 247 inmates in federal prison for drug possession.”

  • As FreedomWorks points out, this number actually pertains to “federally sentenced offenders in the Federal Bureau of Prisons with linked U.S. Sentencing Commission records, by primary offense category, fiscal year end 2012.” According to the U.S. Sentencing Commission, 1,450 people were sentenced to federal prison for simple drug possession in 2012. That number rose to almost 2,300 in 2015.
  • In addition, a large number of people in prison under mandatory minimums for lower level drug offenses are there due to drug addictions – not because they are dangerous drug traffickers. According to the DoJ’s Bureau of Justice Statistics, which the senator cites frequently in his op-ed, “more than half (58%) of state prisoners and two-thirds (63%) of sentenced jail inmates met the criteria for drug dependence and abuse.” This shows that we are handing out long prison sentences to those who would be better served by substance abuse treatment and counseling.

CLAIM: “Some fiscal conservatives believe that America spends too much on the prison system. Yet the Bureau of Prisons costs taxpayers less than $8 billion a year, or about 0.2% of the entire federal budget.”

  • It’s about outcomes! We’re spending $8 billion a year but almost half of formerly incarcerated people reoffend within five years. That’s a terrible return on investment and conservatives shouldn’t stand for that. We should be making sure that the taxpayer dollars being spent generate better outcomes.

CLAIM: “Congress should improve access to faith-based and other antirecidivism programs in federal prisons … American families deserve safe communities and protection from drugs and crime. Criminals, especially first-time offenders who grew up in rough environments, deserve second chances—once they have done their time.”

  • We couldn’t agree more! On this, we thank the senator for highlighting the need for more in-prison anti-recidivism programs and more second chances for people who have paid their debt to society and are eager for a second chance. These ideas are at the core of the FIRST STEP Act.