Tough on Crime vs. Tough on Drugs

Opinion Editorial by Jacob Sullum - Mar 5, 2008

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For Americans tired of hearing how we lag behind other developed nations in teaching children math, science, and reading, a new report highlights an area where the United States is indisputably a world leader.

According to the Pew Center on the States, the United States has a higher incarceration rate than any other country.

In your face, Finland!

I exaggerate the response to the report slightly. But some conservatives did react to the news that one out of 99 American adults is behind bars with equanimity, if not pride.

“When I see a headline about a record incarceration rate, I’m glad,” wrote National Review Senior Editor Ramesh Ponnuru on his Washington Post blog. “Aren’t you?”

No, I’m not. If the United States were locking up more people than other countries simply because it had a higher crime rate, the number of prisoners in itself would not necessarily be cause for concern.

The problem is that it’s locking up many people for longer than is appropriate and many people who do not belong in prison at all, including half a million drug offenders.

The Pew Center may not be right that the United States has a higher incarceration rate than countries like China and Cuba, whose official figures should be viewed with skepticism.

Still, the United States undeniably imprisons a much larger share of its population than other democracies: about 750 per 100,000 people, more than twice the rates in Ukraine, Estonia and Latvia; more than five times the rates in Spain, Scotland and the Netherlands; and more than 10 times the rates in Denmark, Italy and Finland.

But so what? Maybe we have a bigger crime problem, a more sensibly tough response to it or both.

“The fact that we have a large prison population by itself is not a central problem,” the criminologist James Q. Wilson told The Washington Post, “because it has contributed to the extraordinary increase in public safety we have had in this country.”

When the government incarcerates people who are guilty only of consensual “crimes,” however, it wastes scarce prison space that could be used to incapacitate predatory criminals. That compromises public safety rather than enhancing it.

The Bureau of Justice Statistics reports that drug offenders account for about 25 percent of local jail inmates, 21 percent of state prisoners and 55 percent of federal prisoners.

Since 1980 the number of drug offenders in state prisons has increased by 1,200 percent, more than four times the increase in violent offenders.

Drug warriors tend to conflate these two categories. “These offenders are often violent criminals who are likely to repeat their criminal activities,” Attorney General Michael Mukasey said in a Feb. 25 speech to the Fraternal Order of Police, describing the prisoners who could benefit from retroactive changes to the federal sentencing guidelines for crack offenses, the first of whom were freed this week.

According to the U.S. Sentencing Commission, however, only one in ten federal crack offenses involves violence or the threat of violence. Mukasey obscured this point by saying “nearly eighty percent of those eligible for retroactivity have a prior criminal record.”

A prior record is not the same as a history of violence. Research conducted by criminologist John DiIulio, economist Anne Morrison Piehl, and sociologist Bert Useem in the late 1990s found that many, if not most, people sentenced for drug crimes in New York, Arizona, and New Mexico were “drug-only offenders,” meaning the only crimes they’d ever committed involved the voluntary exchange of politically incorrect intoxicants for money.

As James Q. Wilson himself has observed, imprisoning those people does not reduce the total number of drug dealers, since others quickly take their place.

Worse, it leaves less prison space for the robbers, rapists and murderers who represent a genuine threat to public safety.

With limited resources, politicians face an unavoidable but rarely acknowledged tradeoff between being tough on drugs and being tough on crime.