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The Unreasonable Opposition to Justice Reform in the Senate

06/01/2016

Recently, Sen. Tom Cotton (R-Ark.) gave a speech at the Hudson Institute in Washington, in which he offered his case against the justice reform effort in Congress led by conservatives like Sen. Mike Lee (R-Utah), Sen. Tim Scott (R-S.C.), and Rep. Raul Labrador (R-Idaho). Apparently unaware of the efforts of more than 30 states, including several traditionally Republican states, Cotton ridiculously labeled the federal push as "criminal leniency."

FreedomWorks has already responded to some of Cotton's hyperbolic statements on justice reform. Unfortunately, even after proposed legislation was improved to address the concerns of a handful of senators, Cotton doubled down on his opposition in his speech. Some of the more egregious comments from his speech are in italics below, immediately followed by a response to set the record straight.

"These policies are not merely wrong. They are dangerous. They threaten a return to the worst days of the 1990s, when law-abiding citizens lived in fear of their lives. Indeed, we may be living through the leading edge of a new crime wave. Over the last two years, murders across 56 of our largest cities are up 17 percent. The numbers are even more shocking in some cities. In Chicago, murders jumped 70 percent in the first quarter of this year alone. In Las Vegas, 81 percent. In Long Beach, 125 percent."

These are deceptive words, to say the least. As Cotton mentioned, crime rates have declined significantly since the early 1990s. Pew Research found that gun-related homicides, including suicides, declined by 31 percent between 1993 and 2014. Excluding suicides, the figure is closer to 49 percent. Over the same period, the nonfatal firearm crime victimization rate declined by nearly 75 percent. A separate report released in 2013 noted that the public was largely unaware that violent crime was on the decline.

There has been much made of a "new crime wave," but it is difficult for anyone to make such a statement based on a short-term look at the data. The Federal Bureau of Investigation (FBI) publishes annual reports on crime data that offers more context and insight, rather than anecdote. Even in the midst of the decline in crime rates, the United States experienced two consecutive years in which homicide rates increased, 2005 and 2006. In 2007, the homicide rate began to decline again.

According to the last two full-year reports, crime continued to decline, almost across the board. In 2013, crime, including homicides and other violent crime, was down. The downward trend continued in 2014. The FBI hasn't released data for all of 2015; the report is not due for a few more months. The Brennan Center released a preliminary analysis of crime rates in 2015 and found that the "new crime wave," as Cotton puts it, does not exist. But even if the overall crime rate increased, it does not mean that there is some new crime wave. Again, 2005 and 2006 proved to be outliers, and 2015, if the crime rate does rise, may be just that.

Looking past national data, and taking a lens to the rising homicide rates in cities around the nation: No one wants to downplay this concern. Every lost life is a tragedy. But it is important to look at the data we have and view it in context before making judgments. Bruce Frederick of the Vera Institute explored the available data after The New York Times published a story about the increase in homicides in some cities. "[N]ot all of the increases cited by the Times are statistically reliable; that is, some of them are small increases, or are based on small numbers of cases, such that the observed increases could have occurred by chance alone. Among the 16 top-20 cities for which I found publically available data, only three experienced statistically reliable increases," Frederick wrote. "Only one of the top-20 cities included in the Times’ sample, Chicago, experienced an increase that was statistically significant."

Local increases in crime could be explained by various factors. Even in cities like Las Vegas, where homicides are on the rise, law enforcement is not able to explain why. Historically, though, Las Vegas may be returning to a norm. In 2002, the murder rate was 11.9 per 100,000 residents and 11.6 in 2006. The murder rate dropped suddenly and significantly in 2007 to 8.9, and it kept declining. In 2011 and 2012, the murder rate fell to 5.6 and 5.1. It began rising again to 6.5 in 2013 and 8 and 2014.

Long Beach, though, may have experienced an increase the murder rate, though a 125 percent increase, as Cotton said, is not supported by the data. Like Las Vegas, Long Beach's murder rate declined. In 2002, the murder rate was 14 per 100,000 residents. By 2009, it declined to 8.6. The murder rate declined further in 2010 and 2011, 6.9 and 5.3, before jumping back to 6.8 and 7.2 in 2012 and 2013. In 2014, though, it dropped to 4.9, or 23 murders. In 2015, there were 36 murders. Granted, a 57 percent increase, far lower than Cotton's claim, is still statistically significant, but 2014 was an outlier. At 7.8 in 2015, the murder rate, however, is still lower than any year between 2002 and 2009.

No conclusions should be reached for year-to-year increases or decreases in crime. Anyone who wants to make a thoughtful contribution to this discussion, rather than play the part of an agitator who influences it with a predetermined conclusion and fear mongering rhetoric, must look at the full picture for context to have any meaningful voice in the debate.

"Modern sentencing law and policing techniques have reduced these social problems, not created them. Far from the source of the problems, our criminal-justice system is a key part of the solution. Yes, it could be reformed here and there, but wholesale criminal leniency would not only be ineffective, it would also lead to more crime, more poverty, and more lives lost. Ultimately, the criminal-leniency agenda will end up hurting the very offenders, families, and communities the reformers want to help."

Let's cut right to chase here. The best research, such as William Spelman's "The Limited Importance of Prison Expansion," estimates that 25 percent of the reduction in crime in the 1990s is attributed to lengthy prison sentences. This means that 75 percent of the decline in crime rates from this period were a result of other factors, many of which are debated. But in a 2004 study, Steven Levitt, economist and co-author of Freakonomics, who subscribed to the theory that incarceration played a partial role in the decline of crime rates, warned of the eventuality of diminishing returns.

"[G]iven the wide divergence in the frequency and severity of offending across criminals, sharply declining marginal benefits of incarceration are a possibility," Levitt wrote. "In other words, the two-millionth criminal imprisoned is likely to impose a much smaller crime burden on society than the Žfirst prisoner. Although the elasticity of crime with respect to imprisonment builds in some declining marginal returns, the actual drop off may be much greater. We do not have good evidence on this point. These caveats suggest that further increases in imprisonment may be less attractive than the naïve cost benefit analysis would suggest."

More recent research, such as a February 2015 study from the Brennan Center, indicates that effects of incarceration played little role in the crime decline in the 1990s, and even less of one since the 2000s. One reason is the diminishing returns of incarceration. "[D]uring the past two decades," the study explained," the approach of using incarceration as a one-size fits all punishment for crime has passed the point of diminishing returns to actually reduce crime."

Again, even if one truly believes that incarceration played a role, other factors were more influential in the decline.

More pointedly, to Cotton's grievances against the Sentencing Reform and Corrections Act: The notion that this legislation amounts to "criminal leniency" is absurd. Offenders, particularly violent ones, punished would still face very lengthy sentences in federal prisons. The sentencing reforms are predominately targeted at low-level, nonviolent drug offenders. Those who break the law will still serve time, though the sentences meted out may not be as lengthy as ones handed down in the past. Still, the bill does ensure that violent criminals who have repeatedly broken the law or even first-time offenders who commit a serious violent felony will be treated harshly.

What about the impact on communities? Well, the status quo -- lengthy sentences and the lack of meaningful rehabilitative programming -- is unsustainable because it is actually a real problem for many areas of the country. A 2014 National Research Council of the National Academies study, The Growth of Incarceration in the United States: Exploring Causes and Consequences, explained that the effects of status quo are actually making existing problems worse.

"The rise in incarceration rates marked a massive expansion of the role of the justice system in the nation’s poorest communities. Many of those entering prison come from and will return to these communities. When they return, their lives often continue to be characterized by violence, joblessness, substance abuse, family breakdown, and neighborhood disadvantage," the study explained. "It is difficult to draw strong causal inferences from the research, but there is little question that incarceration has become another strand in the complex combination of negative conditions that characterize high-poverty communities in U.S. cities."

When an offender leaves prison, there are not many employment prospects for them. Even education and housing opportunities may be difficult to come by. Ninety-six percent of people who enter prison will someday reenter society. In what condition do we want them to reenter society? Do we want them to come back in our communities as hardened people who reoffend, or do we want them to have opportunities to pursue employment and become productive, taxpaying citizens? These are questions conservatives must thoughtfully analyze. We know what Cotton thinks. But his view is incredibly short-sighted.

If anything, we have an under-incarceration problem.

Professor John Baker once said, "There is no one in the United States over the age of 18 who cannot be indicted for some federal crime." The reason is because there are some 5,000 or more federal criminal statutes on the books and as many as 400,000 regulations carrying criminal penalties. In short, we are all criminals and could, if a federal prosecutor learned of a crime, could prosecute us, even for those committed unwittingly that lack language defining criminal intent. Sharing your Netflix password, for example, could be a federal crime. Wandering into a cave in the Carlsbad Caverns alone is, ludicrously enough, a federal crime. This is all a result of over-criminalization of federal criminal law and over-federalization, as the federal government intrudes into issues that could and should be handled by the states.

More to the point, though, there is a saying among those who work in the justice reform space: "Prison is for people we’re scared of, not people we’re mad at." Low-level, nonviolent offenders, or people we are mad at -- and, yes, they do exist at the federal level, as former Rep. J.C. Watts explained in January at the Washington Post -- take prison beds that should be reserved for violent offenders, the people we are scared of.

According to the Bureau of Justice Statistics, only 24.1 percent of the 94,678 federal drug offenders at the end of fiscal year 2012 were sentenced for a drug crime that involved a firearm. These are the people we are scared of. Of course, we should still implement policies to reduce their risk of recidivism when they leave prison. But these are the people we should want to reserve prison beds for lengthy periods of time.

"Furthermore, the federal prison population is already declining. The Sentencing Commission has already granted 32,000 felons early release from prison since 2007 because of earlier sentencing-guideline revisions, with another 38,000 to be released. This has reduced the federal prison population to 196,000 inmates, down from 214,000 in 2014 and on track for its lowest level since 2005."

The federal prison population has, indeed, declined. But, despite this decline, the Federal Bureau of Prisons, which accounts for 25 percent of the Department of Justice's budget, is expected to spend even more money in the coming years. Public safety, of course, is a paramount concern. That does not mean that pouring more money into corrections is the answer, especially when deficits and debt are projected to rise in coming years and as less costly evidenced-based practices have proven to have better outcomes.

On the spending side of the issue, as mandatory spending grows, the largest driver of deficits, there will be less to spend on other areas of the budget, including corrections and federal law enforcement. According to the Congressional Budget Office, the federal government will spend almost $3.9 trillion this year. Nearly 63 percent of this spending is defined as mandatory outlays, which includes Medicare and Social Security, and almost 9 percent is interest on the national debt. Roughly 16 percent of the budget is dedicated to national defense. The remaining 22 percent -- $857 billion -- is nondefense discretionary spending.

By 2026, the federal budget is projected to be more than $6.4 trillion. Mandatory spending will be 64 percent of all federal outlays and interest will rise to 13 percent. All discretionary spending -- including defense -- will consume the remaining 22 percent. Absent reform to address out of control federal corrections spending, where does Cotton propose getting the money to fund more? Even if he does find the money and can get his colleagues to agree, since when is throwing taxpayer money at the problem the conservative solution?

"[From FY 2000 to FY 2014], the rate of growth in the BOP’s budget was almost twice the rate of growth of the rest of the Department. The BOP currently has more employees than any other Department component, including the Federal Bureau of Investigation (FBI), and has the second largest budget of any Department component, trailing only the FBI," Justice Department Inspector General Michael Horowitz wrote in November 2014. "The Department’s leadership has acknowledged the dangers the rising costs of the federal prison system present to the Department’s ability to fulfill its mission in other areas. Nevertheless, federal prison spending continues to impact the Department’s ability to make other public safety investments."

Consider that federal, state, and local governments in the United States have spent more than $1 trillion in the war on drugs. Not much has really changed. Sure, more people have been put in prison. Illicit drugs are still readily available in virtually every town in the country. Though nations self-report their incarceration data, which may not always be accurate, as Vikrant Reddy recently explained, the United States does house almost 25 percent of the world's prisoners but has five percent of its population. That alone is a jaw-dropping fact.

Of course, this statistic does not mean we should set specific goals to reduce the prison population. We should strive, however, to make sure that our prisons house the people we are scared of, not those we are merely mad at. We should focus on drug treatment for those who need help and meaningful re-entry policies that give offenders a fair chance so they can become productive members of society.

"The truth is you cannot decrease the severity and certainty of sentences without increasing crime. It's simply impossible."

Actually, yes, it is possible, and conservative states have proved it. In 2007, Texas began its justice reinvestment initiative. Rather than spend $523 million on immediate prison construction needs and another $2 billion by 2012, lawmakers, led by then-Texas House Corrections Committee Chairman Jerry Madden (R-Plano), appropriated $241 million to implement drug courts, drug treatment programs, and in-prison rehabilitative programs, such as education and work training, designed to reduce recidivism. As a result, recidivism declined, crime rates continued a downward path, and lawmakers averted $3 billion in prison costs. In fact, the crime rate in Texas is at its lowest point since 1968.

This model, which relies on evidence-based and data-driven policies, became a blueprint for other states. In recent years, conservative states like Georgia, Mississippi, Oklahoma, South Carolina, and Utah have passed significant justice reinvestment initiatives.

Even as the federal prison population was growing, the states that had enacted justice reforms and were seeing declines in their prison populations and, perhaps counterintuitively, falling crime rates. After the reforms in Texas, the state's prison population dropped by 12 percent, according to Pew Charitable Trusts, but the crime rate declined by 21 percent. South Carolina, which enacted its reforms in 2012, saw a 9 percent decline in its prison population and a 8 percent drop in crime. In fact, according to Pew Charitable Trusts, crime dropped in most states where prison populations fell.

The work that has been accomplished, and is continuing to be done, in conservative states is astonishing. Lawmakers have found proven policies that can enhance public safety, reduce recidivism, and save taxpayers money while reducing prison populations at the same time. Sadly, it appears that Cotton is not even aware of this. If Cotton is aware of these efforts, he is ignoring them.

"I empathize first and foremost with the victims of crime and their families. We ought to give criminals a shot at rehabilitation and redemption, but primarily because it's in our interest as a society, not because they deserve more empathy."

We should all empathize with the victims of crime. That is not even in question. The rest of what Cotton is saying here, though, is lip service. He believes that criminals should have "a shot at rehabilitation and redemption because it's in our interest as a society" in the same speech in which he said that the United States has "an under-incarceration problem." Cotton wants more people in prison, which would create a significant cost burden on taxpayers and more people with criminal records who, absent meaningful reentry reforms, would likely have a difficult time finding employment, education, and housing opportunities. The end result would be more crime, which creates a danger to our communities.

The Sentencing Reform and Corrections Act, to which Cotton is so viciously opposed, would give eligible federal prisoners, those who are nonviolent and considered low risk of reoffending, a real shot at rehabilitation and redemption. Unfortunately, Cotton is a roadblock to this effort. We simply cannot address corrections reform without sentencing reform.

"A second priority for the criminal-leniency movement is the so-called "Ban the Box" initiative, which would prevent employers from inquiring about criminal history on job application forms...Some companies have already removed the Box from their forms. That's their decision, of course, and I applaud their intentions. But for many others-particularly smaller businesses-Ban the Box regulations will increase the costs of compliance and the processing of job candidates who will ultimately prove unqualified for the work. And employers face greater litigation risks, from lawsuits filed by unsuccessful applicants and from enforcement actions brought by state and federal authorities who presume their moral superiority to benighted employers."

FreedomWorks is not particularly fond of "Ban the Box." Generally, record expungement and orders of nondisclosure for low-level, nonviolent offenders, as Texas and Georgia have done for certain offenders, are preferable. Still, Cotton is misleading here. As he noted, several companies -- including Facebook, Koch Industries, Starbucks, and Walmart -- have banned the box. Several states -- including Georgia and Ohio -- have done so for only public-sector jobs.

Of course, it should be voluntary for businesses to asking applicants about any criminal history, and FreedomWorks would oppose any attempt to make this a mandate on private employers. That does not, however, mean that those who do would not have the ability to perform background checks on the applicant. Banning the box simply gets someone who may have a criminal history in the door. It does not take away an employer's ability to gather information that could eliminate someone who has a criminal record from consideration.

"The Obama administration has become so solicitous towards criminals that we're not supposed to call them criminals at all. Now the new term is "justice-involved individual." I'm not joking, this is the administration's new term for criminals: "justice-involved individual." That alone is a crime against the English language.

Actually, it is absurd that the administration did this. Of course, people should be considerate of others. But this hyper-political correctness is getting more than a little ridiculous.

"We ought not discard proven strategies for political fashions."

No, but we ought to discard political fashions for proven strategies. The work in the states -- substantive sentencing reforms and evidence-based, data-driven policies to reduce recidivism -- shows that we can reform the criminal justice system and enhance public safety. The political fashion is to stoke fear to derail this effort, such as giving the appearance of being "tough on crime" to look good back home or begin laying groundwork for future ambitions. This is the politically convenient approach that is not in the best interest of the public. Those who oppose this effort risk the exportation of violence from our prisons into our communities.