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Four Myths That Are Being Used to Criticize Justice Reform

10/05/2015

Well, it did not take long for some talking heads to begin criticizing a significant piece of justice reform legislation introduced on Thursday by an unlikely group of United States senators. Already, critics are desperately seeking to drive opposition to reform by stoking fears that Congress is "going soft on crime" to maintain the failed policies of the last few decades.

While FreedomWorks has not yet taken a formal position on the Sentencing Reform and Corrections Act (SRACA), the bill introduced by Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), Sen. Mike Lee (R-Utah), and several others, it does contain provisions similar to those found in the Smarter Sentencing Act and the REDEEM Act, pieces of legislation for which we did release letters of support. Provisions aimed at reducing recidivist behavior are based on the CORRECTIONS Act.

Like the Smarter Sentencing Act, SRACA would similarly expand the "safety valve" exception to federal mandatory minimum sentences for low-level, nonviolent offenders with little to no criminal histories and require a full accounting of federal criminal statutes and regulations that carry criminal penalities. It also allows nonviolent juveniles to seek expungement or sealing of their records so they can seek economic and education opportunities that they may not otherwise be available to them due to mistakes made in their pasts.

The reality of the situation is that 95 percent of people who enter prison will leave and return to society. It is up to policymakers to develop programs while they are incarcerated that will rehabilitate these offenders, rather than warehouse them, so that they pose less of a risk to our communities. This is not an abstract concept. It has been successfully applied in several conservative states, including Texas and Georgia, where policymakers focused on reducing recidivism through rehabilitation and lessened their reliance on incarceration. Crime and recidivism rates fell in those two states, specifically, and taxpayers saved money.

Despite this proven track record of success, critics are trotting out talking points to defend the status quo to undermine SRACA. While most of the arguments have little basis in fact or are misleading, they could be effective by triggering emotional responses. Below are examples of some of these arguments and explanations of why they are either wrong or misleading.

MYTH: Heavy reliance on incarceration led to the drop in crime

Crime rates have fallen substantially since 1993, including violent crime rates. Some have attributed this to harsher sentencing policies, including mandatory minimums. Research varies on the subject, but even if one were to accept the hypothesis, the impact of incarceration has been wildly overstated. Steven Levitt, an economist and author of Freakonomics, attributed 30 percent of the drop to crime in the 1990s to incarceration. Levitt, however, did not see incarceration as one of the "continuing contributors to future crime declines." And, of course, crime rates continued to fall in the 2000s and into the 2010s.

A 2007 study from the Vera Institute acknowledged that incarceration did contribute to the reduction in crime, but researchers noted, if one were to accept the previous results, that "[s]eventy-five percent of the crime drop through the 1990s was attributable to factors other than incarceration." Earlier this year, the Brennan Center for Justice released a study that accounted for the diminishing returns of incarceration, finding that "[s]ince 2000, the effect on the crime rate of increasing incarceration, in other words, adding individuals to the prison population, has been essentially zero."

In short, correlation does not equal causation.

MYTH: Justice reform will lead to higher crime rates

The evidence says otherwise. In 2007, facing $523 million in immediate prison construction and improvement costs, Texas passed its first round of justice reforms. Since then, crime rates have dropped to their lowest level since 1968 and recidivism dropped by nearly 10 points at the same time prison populations in the state declined by 12 percent. The total savings from Texas' groundbreaking reforms have surpassed $3 billion. Similarly, South Carolina, Kentucky, and Georgia saw declines in their prison populations and crime rates after reforms were implemented.

These states have focused on diversion programs for low-level, nonviolent offenders and rehabilitative programming for those who do serve time. Currently, the federal corrections system lacks in these areas. SRACA does seek to change this by relying on the examples set in the states. Obviously, it is too early to say what the effect will be, but SRACA seeks to change the culture of corrections, particularly as it relates to nonviolent offenders by giving them the opportunity, through rehabilitative programming, to put their lives on the right course.

MYTH: Most people in prison are not there for drug crimes

SRACA deals with the federal prison system, not the states, which tend to have lower percentages of drug offenders in prisons. Though the numbers fluctuate, the Federal Bureau of Prisons reports that over 48 percent of federal inmates are currently incarcerated on drug offenses, which far outpaces offenders incarcerated for other crimes. That is down slightly from 50 percent at the end of FY 2014. Sixty-two percent of federal drug offenders are either Category I or Category II offenders, meaning that they have little to no criminal histories.

MYTH: The push for reform is in response to Ferguson

Each of the bills on which major provisions of SRACA are based, were introduced long before the events in Ferguson unfolded in August 2014. The Smarter Sentencing Act was first introduced in July 2013 by Sen. Dick Durbin (D-Ill.) and Sen. Mike Lee (R-Utah). Lee reintroduced it at the beginning of the 114th Congress. It is the second step in addressing real issues with federal sentencing laws. The first was the Fair Sentencing Act of 2010, which lowered the sentencing disparity between crack cocaine and powered cocaine from 100 to 1 to 18 to 1.

Similarly, the CORRECTIONS Act is a product of the work of Sen. John Cornyn (R-Texas) and Sen. Sheldon Whitehouse (D-R.I.). Whitehouse introduced the Recidivism Reduction and Public Safety Act in November 2013, and Cornyn introduced the Federal Prison Reform Act in December 2013. The Recidivism Reduction and Public Safety Act, which included some elements of Cornyn's bill, made it out of the Senate Judiciary Committee in March 2014, but it never received a floor vote. The REDEEM Act was first introduced by Sen. Rand Paul (R-Ky.) and Cory Booker (D-N.J.) in July 2014. Paul reintroduced the bill in March 2015.

The fact of the matter is, there was interest in justice reform in Congress long before the events of Ferguson, and the interest came from the successes of the states and the realization that significant steps must be taken to get federal corrections spending under control. This may not be the only reason, but for many, the costs of maintaining the status quo, in terms of actual outlays and the negative impact on communities from decades-old sentencing policies, are the primary reason.