The hot cause right now is prison reform, and even lots of conservatives are on board. The Heritage Foundation put out an article with this title: “How This Criminal Justice Reform Bill Could Make Our Neighborhoods Safer.” My reaction: Have supporters of the bipartisan reform bill now before the Senate forgotten history? It sure looks like they have.
In the 1960s and early 1970s, the criminal justice system was swamped with liberal reforms. Judges were given wide discretion and jumped to exploit it. Jail terms were shorter, if there was any jail time at all. Prison inmates got early releases. They were given weekend furloughs. Remember Willie Horton?
The result was a crime wave. The reforms turned American cities into hotbeds of crime and violence. Neighborhoods were beset by drug dealing and shootings. Washington, D.C., became the murder capital of the country. Crime went up 300 percent nationally.
It took years of strong anti-crime efforts to bring the violence down. “As determinate sentencing and existing mandatory minimums have taken hold over the last generation, crime is down by 50 percent,” former federal prosecutor William G. Otis wrote in 2014 when a fresh round of reform legislation was first gaining favor. The crime rate, by the way, is half today what it was at its peak.
Despite the lesson of history, the criminal justice reform bill appears almost certain to be enacted. A bipartisan coalition that includes civil rights groups, evangelical Christians, and liberal and conservative leaders supports the measure. So does the Trump White House.
The bill would reduce prison sentences and allow more early releases. These types of reforms, Otis wrote in 2014, “will give more power to ideologically driven judges for whom no criminal is without an excuse, and it will pave the way for the creeping return of irrational disparity in sentencing.
”In discussions and debates over the bill, the past hardly rates a mention. The notion that liberal reforms can lead to an increase in crime seldom comes up, except when a few senators raise it.
The biggest issue is no longer the crime rate. It’s the incarceration rate. The lower that rate, the better the system. That’s the new rule of thumb.
One of the top goals of the bill is reducing recidivism—that is, encouraging prisoners not to return to crime once they’re released. It is a noble goal. Yet schemes to cut recidivism have often been tried and nearly as often failed to produce impressive results.
But the bill contains a plan for dealing with recidivism. Here’s how the Heritage Foundation describes it:
The bill would require the Department of Justice to determine, using a validated risk assessment tool, whether each federal inmate poses a minimal, low, medium, or high risk of recidivating upon release. Each inmate would also undergo a “needs assessment” to determine what, if any, factors—such as a substance abuse or mental health issue, or a lack of education or job skills—contributed to his criminal behavior but might be meaningfully addressed while he is incarcerated.
That didn’t stir my confidence. Nor was civil rights lawyer Peter Kirsanow impressed. He questioned the bill’s “supposition that rehabilitation isn’t merely possible, but probable, and that authorities can reasonably assess which offenders are likely to desist from crime. . . . Predicting which prisoners are likely to pose threats within prison,” he writes at National Review, “is different than predicting which are likely to desist from offending once they’re outside a controlled environment.”
What has sparked one of the most noisily argued matters in the bill is the question of the crimes that would keep an inmate from qualifying for early release. The authors of the bill have stoutly resisted making cuts from the list of qualifiers. And the press rarely cites any of these crimes.
Here are seven of them that Sen. Tom Cotton (R-Ark.) is seeking to remove from the list:
- Coercing a child to engage in prostitution or any sexual activity.
- Carjacking with intent to cause death or serious bodily harm.
- Assaulting a law enforcement officer.
- Bank robbery by force or violence putting life in jeopardy.
- Assisting federal prisoners with jailbreak.
- Hate crimes.
- Assault, including assaulting a child.
Cotton, the leading Senate opponent of the bill, caused a ruckus when he publicized a loophole in the bill that would give wardens the authority to make dangerous prisoners eligible to earn credits toward early release if the warden believed them to be no longer a danger.
Supporters of the bill insisted the loophole wasn’t a loophole. Whatever it was, they agreed to back off a bit. But pay attention to the lesson of history: They didn’t back off very far.