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LEGAL AFFAIRS - The Issue Politicians Are Ignoring: 2 Million Prisoners LEGAL AFFAIRS - The Issue Politicians Are Ignoring: 2 Million Prisoner...

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LEGAL AFFAIRS - The Issue Politicians Are Ignoring: 2 Million Prisoners

The good news is that crime is no longer the divisive issue it used to be in national politics, which is why Al Gore and George W. Bush haven't been arguing about it. The bad news is the reason: Gore and most other Democrats have aped Republicans in demanding ever-longer prison terms, not only for the violent career criminals who should be behind bars, but also for small-time, nonviolent drug offenders and others who present no real threat to society.

The number of people incarcerated in the nation's prisons and jails has reached an all-time high of around 2 million inmates, at a cost to taxpayers of some $40 billion a year. This is six times the number of prisoners we had in 1970, when crime rates were much lower than they are now. Meanwhile, the U.S. rate of incarceration has just become the highest on the planet, passing Russia's, according to an Oct. 9 report by the Sentencing Project, a group that advocates alternatives to prison. The current U.S. rate of 690 prisoners per 100,000 people is more than five times that in the United Kingdom; six times that in Canada, Australia, and Spain; seven times that in France and Italy; and 17 times that in Japan.

These are astonishing numbers, although they have drawn far less media attention than the 70 convicted murderers who have been executed so far this year. This incarceration rate has an especially devastating impact on black men, whom we are locking up at eight times the rate for white men (per capita), and their families.

But you won't catch Gore or Bush-who seemed almost giddy during the Oct. 11 debate about the prospect of putting some murderers to death-saying that 2 million prisoners are too many, or vowing to reform this huge, costly, inefficient, wasteful government program. Both candidates remember the soft-on-crime mauling that Bush's father gave Michael Dukakis in 1988. And both remember how the Clinton-Gore ticket avoided a similar fate in 1992 and 1996 by making "tough penalties" a mantra. Since then, the Administration has advocated drug sentences even harsher than those championed by Presidents Reagan and Bush and Attorney General Edwin Meese III.

A political consensus has thus congealed behind the highest incarceration rate in U.S. history. To some extent this reflects the commonsense proposition that locking up dangerous criminals cuts crime. And it's true that the steady drop in crime rates since 1992 has coincided with the soaring incarceration rates. But the consensus among serious crime policy experts is that we have overdone it, to the point of putting away far too many people, for far too long, who aren't dangerous. This is the view not only of liberals, but also of hard-line advocates of crime-cutting through imprisonment such as John J. DiIulio Jr. of the University of Pennsylvania; James Q. Wilson, professor emeritus at UCLA; and many Reagan-appointed judges.

Don't take my word for it. Read what DiIulio-a self-described "crime control conservative" who wants to "incarcerate the really bad guys"-wrote last year: "The nation has `maxed out' on the public safety value of incarceration," the "pendulum has now swung too far away from traditional judicial discretion" in sentencing, and "there is a conservative crime control case to be made for repealing mandatory-minimum drug laws now." He called for repealing both the myriad federal mandatory sentences adopted since 1986 and state laws.

Similarly, the venerable Wilson wrote two months ago (in Slate) that when Congress chases headlines by adopting "absurd penalties"-such as five years without parole for having 5 grams (one-fifth of an ounce) of crack cocaine and 10 years for 2 ounces-the results include "fill[ing] up prisons with people serving five-year sentences for possessing a rock, when people who have burgled someone's home are serving two-year sentences." Richard A. Posner, the Reagan-appointed chief judge of the Chicago-based U.S. Court of Appeals for the 7th Circuit, has called the federal drug penalties "savagely severe."

These critics are not crime-coddling wimps. These are the tough guys. They understand that many drug defendants have in fact committed violent crimes as well. But these critics know enough to recognize when tough-on-crime measures have veered into irrationality. In New York, for example, DiIulio's research confirms that more than 25 percent of the incoming male prisoners and about half of the incoming female prisoners are drug offenders "whose only past felony crimes, [both] recorded and undetected, were genuinely low-level, nonviolent drug crimes."

The simplistic notion that building more prisons is the best way to reduce crime is also confounded by other data: Crime rose from 1985-well after imprisonment rates had started their long climb-to 1992. And since 1992, the states where crime has dropped the most have not been the ones locking up the most people, according to a recent study by the Sentencing Project. In Bush's Texas, for example, the crime rate dropped 35 percent from 1991-98, while the imprisonment rate soared by 144 percent. But far smaller increases in imprisonment rates in states such as California (52 percent) and New York (24 percent) were accompanied by even larger reductions in crime (36 percent and 43 percent, respectively). Overall, the 30 states with the smallest hikes in incarceration rates (averaging 30 percent) had larger average crime reductions (17 percent) than the 20 other states where incarceration rates went up an average of 72 percent and crime fell by only an average of 13 percent.

Any incremental crime-reduction benefits are small indeed when the prison binge becomes so indiscriminate as to doom some minor offenders to downright barbaric prison terms, such as the 25-years-to-life sentences of the two California men whose third "strikes" were stealing (respectively) a slice of pepperoni pizza and four chocolate chip cookies. Most striking is the fact that illegal drug sales have held steady even while the imprisonment of drug offenders has soared to a staggering 75 percent of all those entering federal prison, and 35 percent of those entering state prisons and jails.

Roughly half of our 2 million prisoners are serving time for small-time drug deals and other nonviolent crimes such as stealing cars. Most of these people present no threat to society. Indeed, they are more likely to become dangerous if packed into prisons to be raped and schooled by predators than if left on the outside. These nonviolent offenders could be punished quite adequately with probation or brief stints of shock incarceration followed by parole-especially if policy-makers follow the advice of liberal and conservative experts alike and put teeth into such sentences through closer supervision, and what DiIulio calls "coerced abstinence" from drug abuse monitored by mandatory drug tests.

Keeping minor offenders out of prison would also free up billions of dollars for other crime-prevention efforts, such as putting more police on the streets and establishing more drug treatment programs. These are far better bets than building more prisons to produce further reductions in violent crime rates, which are still three times higher than the rates in 1960.

Some had hoped that the Clinton-Gore Administration would move away from this unjust and wasteful overreliance on imprisonment. After all, Clinton's brother Roger could have spent at least five years in prison (rather than the 15 months he got in 1984) had his cocaine-selling violation been punished under the current federal statute. Instead, Clinton has seized every opportunity to demagogue the issue and to squelch reform efforts.

The President has thereby aggravated a glaring social problem that he sometimes finds convenient to decry. Five years ago, Clinton marked the day of the Million Man March by saying that "something is terribly wrong" when almost one-third of black men in their 20s are either behind bars, on parole, or on probation. Two weeks later, he helped perpetuate this state of affairs by signing a bill blocking the U.S. Sentencing Commission's proposal to reduce the egregious penalties for crack cocaine defendants, almost all of whom are black.

The winners of this year's federal and state elections will, unfortunately, have no popular mandate to stop the prison binge. Might Gore or Bush do the right thing anyway? It's hard to be optimistic. But if the next President does feel an urge to strike a blow for simple fairness and common sense, he could cite the assertion made 30 years ago by Bush's father, then a Texas Congressman, that abolishing mandatory prison terms "will result in better justice." Or he could disinter one of Clinton's more auspicious lines from 1992: "We need to make sure that people who belong in prison are sent there, and that people who do not need to be there are not taking up expensive space."

Stuart Taylor Jr . National Journal

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