COLE and MAUER: Reducing crime by reducing incarceration

Longer sentences don’t mean fewer crimes

At the height of the war on drugs in 1992, Clarence Aaron, then a 22-year old football player at Southern University in Baton Rouge, La., introduced a classmate to a high school friend who was a cocaine dealer, leading to a sale of nine kilograms (about 20 lbs.) of cocaine. Aaron himself did not buy, sell or supply any drugs. Still, when Aaron refused to testify against his friends, he received the harshest sentence of anyone involved — three life terms with no parole. He has been serving that sentence for more than 20 years now.

The United States remains the world leader in imprisonment, with an incarceration rate five times higher than that of many of our European allies. It wasn’t always this way. From 1925 through 1975, our incarceration rate was about 160 per 100,000 persons. Today it is nearly 700 per 100,000. It rose consistently for more than three decades, largely as a result of changes in policy, not crime rates. These policy changes, under the rubric of the “get tough” movement, were designed to send more people to prison and to keep them there longer. As the prison population has expanded, however, whatever impact incarceration may have had on crime has confronted the law of diminishing returns. Meanwhile, the corrections system costs us $80 billion a year.

In response to these concerns, recent years have seen significant reforms across the country. States from Texas to California to New York have reduced mandatory minimum sentences, softened “three-strikes” laws, or established drug-offender diversion programs. The number of people incarcerated in state prisons nationwide has dropped for three years in a row. California, New York and New Jersey have each reduced their prison populations by about 20 percent in the past decade — with no increases in crime.

In an era of heightened partisan politics, reform is a rare bipartisan issue. Attorney General Eric H. Holder Jr. and Republican Sens. Rand Paul and Mike Lee don’t often see eye to eye, but they have all advocated measures to reduce mandatory minimums. The American Legislative Exchange Council, which promotes free-market law reforms in the states, has identified reducing prison overcrowding as one of its priorities. Regardless of one’s politics, no one can be proud of the fact that the world’s wealthiest society locks up more of its citizens per capita than any other nation.

Most of the reforms thus far have focused on nonviolent offenders, especially drug-law violators — and for good reason. The large-scale incarceration of low-level drug offenders has had little impact on the drug trade; street-corner sellers and couriers are easily replaced. Incarceration imposes substantial costs on society at large, though, and on the life chances and families of those locked up.

If we are to tackle the incarceration rate effectively, we need to focus not only on those who receive the shortest sentences, but also on those who receive the longest sentences — lifers. Even as incarceration rates have begun to fall, life sentences have increased. One in nine prisoners in the United States is now serving a life sentence, including 10,000 serving life for a nonviolent offense (often the “third strike” under a three-strikes law). Nearly a third of the life sentences are imposed with no possibility of parole.

While most of these individuals have committed serious offenses, the increased reliance on life sentences is counterproductive. Criminal offenses tend to drop with age. As offenders grow older, their incarceration is increasingly less likely to have any incapacitative value. Nor is there any evidence that life sentences have greater deterrent effect. Studies find that it is the certainty of punishment, not its severity, that is most correlated with deterrence. Yet many states have adopted a “life means life” policy with no consideration of parole. Such sentences effectively write off the offender, rejecting the possibility of redemption altogether. Under what theory of justice should Aaron still be sitting in prison for a drug transaction he facilitated more than 20 years ago?

A key factor in the prison expansion of recent decades has been that offenders sentenced to prison are serving much longer sentences. American sentences today are frequently two to three times the length for similar offenses in the United Kingdom, the Netherlands, France and other industrialized nations. Sentencing reform has begun with the low-hanging fruit of mandatory minimums for nonviolent offenses, but if it is to succeed, we must reduce the length of criminal sentences generally. Clarence Aaron is not alone, and until we address America’s overly harsh sentencing standards, we will be squandering resources that could be better spent on public safety, and destroying the life prospects of people who deserve a second chance.

David Cole is professor of law at Georgetown University Law Center. Marc Mauer is the executive director of the Sentencing Project.

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