Jason Pye of Freedom Works has a column in the Hill defending the First Step Act. . .sort of. It’s mostly an attack on those who oppose this leniency legislation.
Pye calls opponents “reactionaries” and accuses us of dishonesty and fear-mongering. But name-calling is no substitute for argument, and when Pye gets around to actually arguing, he consistently hides the ball.
Opponents claim that violent crime is rising and that criminal justice reform would only lead to more violent crime. Federal crime data show that violent crime peaked in 1991 and has been in decline ever since. In 1991, there were 758.1 violent crimes per 100,000 inhabitants. In 2017, the most recent data available, there were 382.9 violent crimes per 100,000 inhabitants. Separately, property crime is at its lowest rate since 1965.
Here, Pye hides the ball in two ways. First, he neglects to note that the drop in crime that began in 1991 corresponds with the implementation the tough sentencing regime he wants to overturn. John Malcolm, a more forthright advocate of leniency legislation, has admitted that tough sentencing contributed significantly to the decrease in crime.
Second, Pye hides the fact that violent is on the rise. In September of 2017, the New York Times reported that “violent crimes increased nationally last year by 4.1 percent and homicides rose by 8.6 percent, one year after violence increased by 3.9 percent and homicides jumped by 10.8 percent.”
Pye points to Georgia which has enacted leniency legislation and where, he says, violent crime has decreased. But he offers no statistics on recidivism rates in Georgia. Recidivism rates tells you far more than general crime statistics about how much additional crimes will result from letting prisoners out of jail early and/or shortening their sentences at the front-end.
As I explained here, the overall crime rate tells us the extent to which the entire population elects to engage in crime. The recidivism rate tells us the extent to which the previously incarcerated population elects to do so.
Only the incarcerated population is the subject of sentencing reform. Thus, it’s the decisions these folks make after release that should guide us when considering such reform.
Pye also discusses Texas and South Carolina, two other sentencing reform state, and here he offers recidivism statistics:
The three-year recidivism rate in Texas as measured by reincarceration among prisoners released in 2013 was 21 percent. Texas passed its first reforms in 2007. In South Carolina, passed prison and sentencing reforms in 2010, the three-year recidivism rate as measured by reincarceration was 23.1 percent.
Even taken at face value, 20 to 25 percent recidivism in three years is not encouraging. It entails a large number of crimes that wouldn’t be committed if the prisoners had been in jail for the three extra years.
But Pye’s recidivism figures cannot be taken at face value for at least two reasons. First, state prison populations do not much resemble the prison population that would benefit from federal leniency legislation. Unlike in the states, there are no non-illegal immigrant drug possessors in federal prison. Instead, a huge percentage of federal prisoners are illegal immigrants, or gang members, or are drug traffickers who have ended up in federal prison because their crimes were serious enough to warrant federal prosecution.
Pye glides past this reality. Again, he’s hiding the ball.
Second, Pye relies on reincarceration rates. But these are a poor surrogate for the commission of crime. According to the Pew Research Center, hardly a conservative source, “most crimes are not reported to police, and most reported crimes are not solved.” And even when crimes are solved, they sometimes are not punished with prison time. This may be especially true in states that want to tout their sentencing reforms.
Rearrest, though not a perfect surrogate for recidivism either, is more indicative than reincarceration for the reasons stated above. The rearrest rate for state prisoners in Texas after three years is about 45 percent, as measured in the period since Texas adopted sentencing reform.
If we’re concerned about public safety, a 45 percent recidivism rate in just three years is far too high to make lenient sentencing, whether at the front or the back end, sound policy.
To the extent Pye discusses the legislation he backs, he does so in platitudes and happy talk. For example, he touts “risk and needs assessment to determine [a prisoners] risk of reoffending” and of “tailoring the prisoner’s programming to his or her risk.”
If you’re a leftist, perhaps you trust the state to make these sort of individually tailored calls. If you’re a conservative, you should quickly spot the hubris associated with the notion that the state can do so reliably.
Pye talks of “incentiviz[ing] prisoners to lower their risk of recidivism through earned time credits.” He doesn’t explain why prisoners genuinely interested in rehabilitating themselves — the only kind of prisoners at all likely to be rehabilitated through such programs — need to be bribed to participate in effective rehabilitation programs.
Pye objects to the term “jailbreak” as a description of First Step. My preferred description is leniency legislation. But there’s no disputing that the legislation would let federal drug felons — including traffickers in fetanyl and other deadly drugs — out of jail early. Thus, “jailbreak” isn’t an unfair metaphor.
The real question, though, is the amount of crime the beneficiaries of lenient sentencing will commit thanks to not being in jail. The best answer is found in recidivism rates, as measured by re-arrest rates.
It is neither fear-mongering nor reactionary to cite these numbers and to argue that the cost of that amount of crime is unacceptable.