They Were Just Plain Wrong Then: Just Plain Delusional Now

“To treat your facts with imagination is one thing, to imagine your facts is another.” -John Burroughs

Eric Holder, the U.S. Attorney General, recently unveiled new directives in federal law enforcement purposed to incarcerate fewer people for shorter periods of time, and to release current prisoners more quickly. Prefacing his outlined prescriptions, he observed that “too many Americans go to too many prisons for far too long, and for no good law enforcement reason.” While “we must never stop being tough on crime,” the Attorney General continued, “We must also be smarter on crime.”

With the nation’s collective incarceration system annually consuming $80 billion, overall crime rates the lowest since benchmarked, and attitudes, particularly related to low-level drug defendants becoming less draconian, several states have already taken similar steps. Moreover, buttressing the Attorney General’s unilateral actions, a bipartisan bill is working its way through Congress to substantially alter the nation’s original mandatory minimum sentencing code.

“Such legislation,” Holder commented, “will ultimately save our country billions of dollars. Although incarceration has a role to play in our justice system,” Holder further observed, “widespread incarceration at the federal, state and local levels is both ineffective and unsustainable.” Of course not everyone agrees with this shifting penal policy. Twenty years ago, University of Chicago economist and Nobel Laureate, Gary S. Becker, in his column for Business Week, wrote the same “lock ‘em up and throw away the key” pabulum as crime control strategy that former federal prosecutor and adjunct Georgetown University Law Center professor, William G. Otis, is regurgitating now in rebuttal to the dawning sanity shift from the horribly costly policy choices of the “war on crime and drugs” era of Just Deserts. And like two decades ago when this convict “audaciously criticized a distinguished professor and Nobel Laureate” for his then (and even more now) boneheaded policy prescription, I am again challenging the establishment’s agent this even more insipid defense of the crushing status quo.

Post hoc, ergo propter hoc

Offering the opposing view to the USA Today’s editorial, “Rethinking mandatory minimums for non-violent drug crimes,” former federal prosecutor Otis commenced his quibbling with the old canard that discretionary sentencing had already been tried, and all that it resulted in was a national crime wave in the 1960s and 1970s that had to be arrested with massive expansion of long, hard prison time. The reasoned reaction to the rampaging, he explained, was the adoption of “strong mandatory minimum sentencing.” The outcome, Otis asserted, was in crime being cut in half, “significantly” because the country locked up so many criminals (i.e. today the U.S. incarcerates one-quarter of the world’s prisoners out of only five percent of the planet’s population).

The quandary in rebuttal is where to start with this trope? To begin with there exists serious contradictory evidence that there even was a “crime epidemic” in the 1970s, which was a primary justification for increasing imprisonment rates to unheard of historical levels. The two ways that the government tracks crime rates is by the UCR Crime Index of Statistics collected by local police departments and tabulated by the FBI, and the National Crime Victimization Survey (NCVS) compiled from interviews of household members. The UCR was universally acknowledged to have major biases in the way it gauged crime, and so the NCVS was established in 1973 and is considered a more accurate and holistic view of crime in the United States.

The discrepancies between the UCR and NCVS reporting rates – UCR showing twenty years of ever-increasing crime rates, whereas NCVS reporting steady ever-decreasing ratios – gives pause to consider the upward swing in UCR rates beginning in 1964 corresponded with the first baby-boomer cohorts reaching age 15 (i.e., the beginning of the most crime prone years of 15-24), and this simple demographic bulge swelled all social measures from school enrollments to vaccinations to bicycle accidents and candy consumption, etc. With the baby-boomer generation finally maturing out of their most crime prone years by the early 1990s, even the UCR began its ever-downward decline.

What is more disturbing is what is recorded on the infamous White House oval office tapes, exposing knowledge of this “demographic time bomb” moving through our culture. When the president was briefed, by aide Chuck Colson, of the inevitable demographically upwardly pushed juvenile delinquency crime wave, Nixon responded with a cynical, and in so many ways socially devastating, political strategy to blame the states for not being hard enough on crime. This, in turn, commenced the politically motivated mobilization on the War on Crime and subsequent expansion to the War on Drugs we are mired with today.

Through the Looking Glass

In his criticism of Holder’s declaration of the imprisonment rate both in numbers of those ensconced and for the length of the terms they are imprisoned, Otis wrote, “we learned our lesson” from the rise in crime rates, by adopting “strong mandatory minimum sentencing.” The result of which, he argued, was a crime rate cut in half over the past two decades. In “significant part,” he emphasized, because of “increased imprisonment.”

Really? Most evidence now shows little relationship between incarceration rates and crime rates. In fact, “the states that increased incarceration rates the least,” as criminologists John Irwin and James Austin report, “were just as likely to experience decreases in crime as those that increased them the most.

About the best that can be said of the nation’s incarceration binge is that by 1997, over a two and a half decade period, the five-fold increase of imprisonment reduced violent crime by about a third. More recent analysis estimates that only 10 percent of the decline in crime was due to increased incarceration, leaving anywhere from two-thirds to 90 percent of the putative decline attributable to “other factors.”

Make No Dollars and Sense

Law professor Otis then criticized the Attorney General’s sentencing changes even limited to non-violent offenders, stating that such “offenses can be terribly harmful” and that all offenses are justly subject to mandatory sentences to restrict the nation’s “overly sympathetic” judges from failing to protect society. Moreover, that as expensive as imprisonment is, it’s to society’s larger economic benefit to prevent crime through increased and longer imprisonments.

The prosecutor’s stentorian trumpeted facts just don’t add up. The highly conservative Manhattan Institute studied the inmates entering prison in multiple states, comparing the overall social costs of their criminal actions to the expense of their imprisonment, and concluded that “half of all entering prisoners would cost taxpayers more than it was worth in terms of crimes avoided.”

Annually, the nation spends over $200 billion on the integrated criminal justice system, while the estimated economic loss to crime victims is less than a tenth of that at $15.6 billion at a median cost of $100 per crime. For example, at $1250 as the average loss from a robbery, and with the average robber incarcerated for five years, the cost of punishment nears a hundred times the cost to $113,000 for the punishment expense. An even more recent study, by some of the same Manhattan Institute researchers, suggests a “tipping point” occurs when the incarceration rate exceeds an average of 400 inmates per 100,000 residents range, when incarceration not only fails to reduce crime, “it might even increase it!” Imprisonment, rather, was found to be more economically and socially efficient, the researchers note, when rates are in the 100 to 200 per 100,000 range, as they were in the 1970s and early 1980s. Instead, in the twenty-first century they exceed 500 prisoners per 100,000.

A Vested Interest in the Status Quo

Appointed a U.S. Attorney by Ronald Reagan, and a charter member of the Attorney General’s Advisory Subcommittee on Sentencing Guidelines (i.e., the ones who drafted the federal sentencing codes), Bill Otis built his very career on the proposition of the mandatory minimum sentencing that is now increasingly being revealed as detrimental to society. Moreover, cycling back into government in 2003, he was appointed Counselor to the head of the Drug Enforcement Administration, advising in true apparatchik-style the agency administering the harshest drug laws in the Western world.

As a matter of professional pride, if not existential rationalization, William Otis must defend the status quo of the last thirty years, cognitive dissonance be damned. An intellectually interesting conundrum manifested itself, when professor Otis wrote a Washington Post op-ed urging President George W. Bush to commute the” mandatory prison sentence” imposed on Scooter Libby for his involvement in exposing the C.I.A. operative Valerie Plame’s clandestine service. Although Libby was not charged for the complicity in the deaths of the foreign agents whose service to the United States was betrayed by his politically motivated media leaks of Plame’s outing as an American spy, it is arguable his actions were contributory to those executions. Yet for Mr. Otis it was a miscarriage of draconian justice to subject Libby to mandatory sentencing.

Otis has appeared before both houses of Congress as an “expert witness” on the death penalty, illegal drugs, and unsurprisingly, the U.S. Sentencing Commission and utility of mandatory minimums. As well, he has been interviewed on these subjects by The New York Times, The Atlantic magazine, CBS’s 60 Minutes, The O’Reilly Factor, ABC News, MSNBC, and of course, in his philosophically incongruent plea for sentencing leniency in The Washington Post.

Facts, hypocrisy and reality have never deterred politicians from pursuing their ideological viewpoints. With law enforcement officers, such as U.S. Attorneys, and educators, such as law professors, one should hope, if not expect, the utilization of rational metrics in the prosecutorial and policy process. Given the media and politically-hyped hysteria of the 1980s and 1990s, perhaps it is forgivable for federal prosecutor Otis’ zealousness in promoting mandatory minimum sentencing codes. Although, it should be noted, even back then this convict knew and cogently substantiated the reckless fallacy of those so-called crime control schemes.

What is not acceptable, however, is the continuing obstinacy in defense of the status quo, especially when the fundamental arguments for such have been shown to be specious to begin with. To continue advocating the socially destructive policy of mandatory minimum sentencing must be viewed as the politician’s psychological need to justify the legacy of one’s professional career. Or, perhaps, on the other hand, to cite from the Russian classic, The Golden Calf, we need to “charge the…citizen with the crime of stupidity with malicious intent.” The End

John Marc Taylor, recipient of The Nation/I.F. Stone and Robert F. Kennedy Journalism awards, is the author of the Prisoners’ Guerilla Handbook to Correspondence Programs, published by Prison Legal News.