Donziger_crime+policy - CRIME AND POLICY e are a nation...

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Unformatted text preview: CRIME AND POLICY e are a nation both afraid of and obsessed with crime. Each Wday, newspapers tell another Story of innocence shattered: the Oklahoma City bombing, the drowning of two young boys in a South Carolina lake by their mother, the brutal stabbings of Nicole Brown Simpson and Ronald Goldman. In the evenings, our televi- sions are saturated with real-crime dramas such as z‘imermz’ir Most Wanted and Unsolved Myrterier. Since the 19605, hundreds of different crime bills have been passed by Congress and state legislatures. We have fought a war on drugs. Annual expenditures on police have increased from $5 billion to $27 billion over the past two decades. We have built more prisons to lock up more people than almost every country in the world. We are the only country in the West to employ capital punishment and to use the death penalty against teenagers. Yet Americans in record numbers still report that they feel unsafe in their streets and in their homes. We have leveled our supposedly srrongesr weapons at crime, to the tune of about $100 billion tax dollars per year, but we have not accomplished much. Crime rates have not gotten worse—as many would have you believe—but neither have they gotten much better. 2 THE REAL WAR ON CRIME , , . ' _ ' ' CRIME AND POLICY 3 Yet still there is the feeling that the criminal justice system is not . . Before delvin ‘ ' ~ - doing enough. Many suggest that we need more police, more pris- g mm these Issues, We mus: keep 1“ mlnd several , . , basic facts: ons, harsher sentencmg, even a return to the chain gangs. While we continue to take tougher and tougher stances, the underlying prob— ' ‘ 'Crime rates are higher today than they were in the 19505, This is largely because crime increased significantly in the 19605. But since the early 19705, crime rates have remained remarkably stable even though they sometimes go up or down from year to year. lem remains: our criminal justice system is failing to control crime in a way that makes Americans feel safe. A hoax is afoot. Politicians at every level—federal, state, and local—have measured our obsession, capitalized on our fears, cam- paigned on “get tough" platforms, and won. Since the Willie Horton advertisement dashed the hopes of Michael Dukakis in the 1988 presidential race, almost every serious candidate has tried to appear 'The murder rate in this country dropped 9 percent from 1980 to 1992 and now is almost exactly the same as it was in the 19705. tough on crime. But appearances are often deceiving. We will first review the basic facts about crime in America. It is important to approach the facts with caution because you will see that they rarely tell the whole story. The Commission found that 0The serious violent crime rate for the United States stands 16 per- cent below its peak level of the mid-19705. as ‘ ' . . some baseline data about crime are simply untrue or are more com— enous crimes reported to P011“ dropped "1 1992, 1993, and 1994. plicated than they appear, even though they provide the foundation Ihese statistics tell u ‘ - ~ - - - - s onl t on which much of our crime policy is constructed. y hat certam categories 0f Ctlme have remained remarkably stable over the lasr two decades. They should not be taken to mean that crime is not a major problem. Crime (par- ticularly homicide) is widespread in this country, and among young people Violent crime is expected to increase further in the next few years. Crime Rates: The Numbers Do Not Tell the Full Story There is a widespread perception in this country that crime rates are rising. In most categories, crime rates over the last two decades have remained remarkably stable. What has changed is the nature of . . . TWO Measures of Crime criminal Violence. Partly because of the prevalence of firearms, one We have found that there is a huge difference between the public perception and the reality of crime in the United States—a difference Whose causes we explore in detail in Chapter 3 on fear, politics, and the prison-industrial complex. For now, it is important to remember that most people perceive crime to be rising when in reality it has remained remarkably stable for many years.1 ‘ One major source of confusion about crime rates in the United States is that there are two major methods by which crime is mea- sured, the Uniform Crime Reports (UCR) and the National Crime Victimization Survey (NCVS). It may be startling that these two sys- tems of measurement produce such different numbers. The UCR is tabulated by the FBI, based on arresr information submitted annu- category of the population—young males in the inner city—is at an extremely high risk of being killed. This danger sometimes spills over to the suburbs and rural areas, creating fear throughout the country. As this report will demonstrate, violence in the inner city is one of the most pressing issues facing our criminal justice system. But it is nor the only issue. There are many other criminal justice issues that receive less media attention, but also have devastating implications for public safety. This report examines many of them— the difference between fear of crime and crime itself, violence, pris— ons, juvenile crime, domestic violence, policing, and the racial implications of crime policy. 4 THE REAL WAR ON CRIME ally by each of the 17,000 different police departments in the United States. Because it is the only survey to provide a state-by-state break- down of crime rates, the UCR is the measure of crime most cited by the media (who see it as a good local story) and politicians (who talk about it with their constituencies). However, most criminologists consider UCR figures inaccurate because they tend to exaggerate increases in crime—a fact that is at least partly responsible for the misperception that crime is rising.2 The UCR overestimates increases in crime for several reasons. First, com— puters have led to marked improvements in police reporting of crime. Thus, "increases" in crime reported by police are often the result of improved recordkeeping rather than actual increases in criminal activ- ity. For example, in 1973 citizens reported 861,000 aggravated assaults to police, but the police recorded only 421,000.3 By 1988, cit- izens reported 940,000 aggravated assaults to the police, and the police recorded 910,000. The number of aggravated assaults did not go up much between 1973 and 1988, but the recording improved dra- matically. The same pattern occurred for robbery and tape. The UCR also is flawed because of the way many police depart- ments tabulate their statistics. If two persons are arrested for a single assault, police usually count the two arrests rather than the one assault. Thus, one crime suddenly turns into two and the total num- ber of crimes becomes inflated. This practice creates the most severe distortions in juvenile crime because juveniles are often arrested in groups. Moreover, budgetary decisions based on police reports create incentives for police departments to skew their figures upward. The 1994 Federal Crime Control Act, for example, allocates more funds to states with higher levels of crime as recorded by the police. Given these problems, it is not surprising that the UCR reports an increase in violent crime in the last twenty years. Despite its flaws, the UCR does provide an accurate measure of the homicide rate. This is because murders are rare and serious events that citizens tend to report quickly and accurately to the police, who record them with precision. The UCR indicates that the incidence of murder per capita is lower today than it was in the 19305, when the rate of incar- CRIME AND POLICY 5 United States Murder Rate, 1970-1994 § § 5 a n? Source: US. Department of Justice Federal I , Bureau of Investi ation. Dat ' ’ ' Justice Information Services Division (preliminary dagta for 1994: Provmed by the cnmmal ceration then was about one-fifth what it is today. The current homicide rate of 9.3 per 100,000 population is nearly identical to the rate of 9 4 per 100,000 recorded in 1973. The total number of murders in Bosron for example, was 135 in 1973. In 1993, it was 98.4 Our national murder: rate is not increasing nearly as fast as many might claim. We believe—as do mosr criminologists—that the figures pro- duced by the National Crime Victimization Survey are more accu- rate. To conduct the survey, staff at the Census Bureau telephone a representative sampling of households around the country to deter- mine how many people were victimized by one of seven crimes in the preceding year. The seven crimes are rape, robbery, assault per- sonal theft, household theft, burglary, and motor vehicle theft: The NCVS generally is considered more reliable because it uses scientific polling techniques similar to those that determine the Nielson rat- ings in television. It does not measure murder because the victim cannot be interviewed. The NCVS does not break down crime data for each state, thus making it less interesting to members of the news media who want to find a local angle on crime trends. CRIME AND POLICY 7 6 THE REAL WAR ON CRIME Divergent Measures of Violent Crime 1973 = 100 Murder in the United States, 1973-1994 Uniform Crime Reports (FBI) I / / ,~._/ National Crime Victimization Survey t_______~_.__....___._—_—__—i Note: Figureswere scaled to 100in 1973 and have been adjusted to take into accountpopulation increases. . . _ I I . ‘ Source: US. Department of Justice, Bureau of Justice Statistics (1994), Sourcebook of Criminal Iustice 1978 19,560 Statistics—1993, pp.247,352. 1979 21,460 1980 23,040 1981 22,520 g The Threat of Violent Crime 1982 21,010 It is important to distinguish between crime generally and violent 1983 19,310 crime specifically. Violent crimes are committed against people— W murders, rapes, robberies, kidnappings, and assaults. Nonviolent 1985 18,980 crimes are usually committed against property—burglaries, auto 1986 20/610 thefts, embezzlement, check forgery, fraud, and trespassing. 1987 20/100 (Burglary, defined as breakin into a dwelling, resents a defini- _____________.__—_______.._.u g P 1988 20/680 tional problem. Though burglary is formally a crime against prop— 1989 21/500 1 erty, it carries the lurking possibility of violent confrontation and the 1990 23’440 psychological sense of intrusion associated with violent crime. It is 1991 24’700 therefore more serious than most nonviolent crimes.) Offenses 1992 23,760 . l . h l . f d l . l b 24 530 invo vmg t e sae or posseSSion o rugs are a so nonvxo ent, ut __._ 23:249 obviously a violent act associated with the sale or possession of drugs (such as a shooting to protect a drug market) would be a violent crime. Source: US. Department of Justice, Federal Bureau of ' Investigation. Data provided by the Criminal Justice Information Services Division- Much violence in our society is not a violation of the criminal law. For example, if someone kills anorher in self—defense, that person committed an act of violence but not a crime. There is also violence in the media and on television that shapes public perceptions and, 8 THE REAL WAR ON CRIME Crime Trends, 1973-1992 Based on the National Crime Victimization Survey 45,000,000 2 40,000,000 Total Crimes 35,000,000 30,000,000 25,000,000 20,000,000 15,000,000 10,000,000 5,000,000 Household .9. .. N ,L’ E SE .3 > “I o .. U .9 E = Z Source' US. Department of Justice, Bureau of Justice Statistics (July 1994), Criminal Victimization in the United States: 1973—92 Trends, p.9. Crime Trends, 1973-1993 Based on the Uniform Crime Reports (FBI) E .g x: i t O E .8 E 2 Sources: U.S. Department of Justice, Bureau of Justice Statistics (1994), Sourcebook of Criminal Justice Statistics—1993, p. 352; US. Department of Justice, Federal Bureau of Investigation (1994), Crime in the United States—1993, pp. 5, 10, CRIME AND POLICY 9 according to some experts, actually influences people to commit vio- lent acts. But violence in the media is not a crime. A violent crime is an act of violence that violates a criminal law passed by the Congress or a State legislature. will be used throughout this report in understanding why the crimi- nal justice system is not more effecrive at making Americans safe. When people think of locking up criminals, they usually have an image in mind of a violent offender—a murderer or a rapist. But we will show that the vast majority of people filling our expensive new prisons are nonviolent property and drug offenders. Violent crime is a major problem in localized areas of the inner city. In those places, firearms violence—especially againsr young people—— has increased dramatically. During the 19805, teenage boys in all racial and ethnic groups became more likely to die from a bullet than from all natural causes combined. During the time period from 1985 to 1991, annual rates of homicide for males aged 15 to 19 years increased 154 percent.’ For African-American male youths, the homicide rate is eight times that of white male youths. If you live in the inner city and are young—particularly young and African-American—your chance of being the victim ofa violent crime is incredibly high. And if you are not living in the inner city, the localized violence of some communi- ties reverberates nationally, making everybody feel less safe even though most people are more safe than they were in the 19705. The media has focused much of its crime reporting on the tragic phenomenon of youth homicide. As a result, a myth has been created and projected that all Americans have a "realistic" chanc‘e of being murdered by a stranger. While it is always good to take precautions to lower the risk of crime, in reality almost all Americans have an extremely remote chance of being killed or victimized by a stranger. Most violent crime is committed by friends and family. The most common homicide is not random but a person shooring someone he or she knows, often in the home. A 1994 government study of 8,000 10 THE REAL WAR ON CRlME homicides in urban areas found that eight out of ten murder victims were killed by a family member or someone they knew.6 Women are far more likely to be assaulted by their husbands or boyfriends than by a stranger in an alley. Children are more likely to be molested by family or friends than by strangers. While a few neighborhoods are extraordinarily dangerous, most are relatively safe. Males are more at risk of criminal victimization than females (because males commit much more crime than women, they tend to associate more with criminals and therefore run a higher risk of being victimized by them). Young people—particularly ado- lescents—are much more at risk than elderly people. The risk of being a victim of a serious violent crime is nearly four times higher for a person 16 to 19 years old than it is for a person aged 35 to 49.7 The chances of a white woman 65 or older becoming a victim of a serious violent crime (e.g., murder, rape, robbery, or assault) are one- Jixtieth the odds of an African-American male teenager.8 U.S. Crime Rates Compared to Other Countries Although it is often assumed that the United States has a high rate of incarceration because of a high crime rate, in reality the overall rate of crime in this country is not extraordinary. The one exception is murder. Largely because of the prevalence of firearms, we have about 22,000 homicides per year, about 10 times the per capita mur- der rate of most European countries. Many comparable countries such as Australia and Canada actually have higher rates of victimiza- tion than the United States for some crimes. For the crime of assault with force, 2.2 percent of Americans are victimized each year, com— pared to 2.3 percent of Canadians and 2.8 percent of Australians. For robbery, 1.7 percent of Americans are victimized annually; in Spain, the number is 2.9 percent. For car theft, the U.S. rate is 2.3 percent; Australia is at 2.7 percent and England is at 2.8 percent? Thus, it is not our higher violent crime rates that lead to our high incarceration rates—the 22,000 homicides per year cannot account for the 1.5 million people behind bars. Rather, American rates of incarceration are higher because of our exceedingly harsh treatment of people con- victed of lesser crimes. CRIME AND POLICY 11 The Key to the Problem: Understanding the Difference Between Crime and Violence We all want to protect ourselves from violent offenders, either by taking the steps necessary to prevent violent crimes or by sending to prison those who commit them. But how do we begin to control vio- lent crime? We must start by understanding the difference between crime and violence. We cannot begin to control violent crime until we recognize that the primary reason mart American: live in fear if not crime hat vio- lence. The United States does not have more crime than Other industrialized countries. Rather, it has a different character of crime. Criminologists in the Netherlands and the United Kingdom recently compared crime across industrialized countries.In With the exception of homicide, the United States had the highest crime rate in only one of the fourteen offenses measured—attempted bur- glary. Because of the prevalence of firearms on our streets, however, America leads the world in the proportion of violent crime resulting in injury. If a person is assaulted with a gun rather than fists, the chances are much higher that injury or death will result. This is why the United States is far and away the world leader in the num- ber of murders. It is not the amount of crime but rather the amount of violence that adds to our fear. It is the failure to recognize the distinction between crime and violence that diverts attention from finding more effective methods to make our country safer. In order to understand this important distinction, it is necessary to look at crime statistics a lit- tle more closely. Violent Crime Is a Fraction of Overall Crime We have shown that violent street crime is but a small ‘portion of overall crime. But even within this “violent” category the actual physical violence is often overstated. The vast majority of violent crimes are assaults where one person hits or slaps another or makes a verbal threat. Only about 8 percent of the victims of violent crime nationally went to a hospital emergency room.“ Most were released immediately or the same day. Of all the victims of violent crime CRIME AND POLICY 13 12 THE REAL WAR ON CRIME Exceptfor Murder, Victimization Rates in the 11.5. Are Not Higher . . . I v u f. V, Homicide Burglary The unlawful entry of a : . j _ . _ ‘ intended or not. Includes murder building in order to commit a International Victimization Rates P _ m» a and manslagghm. f ‘ Elma g j for Selected Offenses Murder The intentional killing of a Larceny or The unlawful taking of ' ' person. Theft property without use or threat l I United States _ . a _. #1 . FOQhXSlca] ham:- l g Manslaughter The unintentional killing of a Drug i Possession of a controlled i 'fi I canada j mi _ 7% person. Trafficking l_s_ubstance with intent to sell. .5. I Spain Forcible Rape Compulsory sexual intercourse by l—Dmg Possession of a controlled .E I Australia 7 _ ‘ use or threat of physical force. Possession substance without intent toisVe-ll. .3 Robbe Theft b use or threat of h sical Public Order A variet of offenses such as i and W Y P Y Y E U Eng] r force. disorderly conduct, public 5 _ r _ Jmnkeness, and loitering. l § Aggravated A physical attack intended to Traffic A variety of offenses ranging j 9‘ Assault inflict serious bodily harm. Offenses from driving while intoxicated Assault Robbery Car The” Physical injury not necessary. v to driving with a revoked ‘ with Force , __j . “CEHSE- , J Simple Assault A physical attack intended to ‘ inflict any bodily harm. ‘ Physical injury not necessarl. 7 ... But Fear Is rNote: These definitions are amalgamations of the laws in many jurisdictions. Percentage of the Public Feeling Unsafe When Walking in Their Own Area After Dark states refuse to send a person to jail for having a small amount of marijuana, while others impose stricr sentences. Some states choose United States . . to have the death penalty, while others shun it. Some states have New Zealand Italy England Australia Netherlands Canada Belgium Finland Sweden 0.0% 10.0% 20.0% 30.0% 40.0% mandatory minimum sentences for drug crimes, while others allow judges unfettered discretion to impose sentences. Though policies vary, most states in recent years have adopted rougher measures—— longer sentences and more restrictive bail policies, both of which have led to higher rates of incarceration across the country. Percentage Although it is difficult for these reasons to define the exact para— source. van Dijk, Ian J. M. (November 1992), CriminulVictimisationin the Industrialized meters Of a national cnme pOhCy’ 3‘ national get tough trend has World, pp. 10, 24, 33, 57, The Netherlands: Ministry of Justice. been evident over the last fifteen years. Since 1968, six major anti- crime bills have passed Congress and been signed into law by presi- dents. In one way or another, all of these bills have been used by ' ' 'd h 'tlsta ofoneda nationally, slightly over 1 percent require a ospl a Y y elected officials to convince the public that Washington was getting 12 . e on a e 15. .. ,. . . . . or more (S eChart P g ) tough on crime by increasmg sentences for certain types of P 1- - h U ~ d St t offenses. Many of the bills were used to influence crime policy by Crime o my in t e mte a es Unlike many European countries, there is no cabinet official in charge of national crime policy in the United States. Each of the fifty state legislatures determines its own crime policy separately. Some withholding money from the states unless they adopted certain “get tough" policies favored by the federal government. For example, under the 1994 federal crime bill, a state can receive part of the $9.7 14 THE REAL WAR ON CRIME How Crime Breaks Down in America urder h" i f 0.2% Public Order ' 13.5% _— a. ...__ o __J mnslaughter 0.1% Theft Offenses 13.0 /o Forcible Rape 0.3% - Driving Under the 10.9% Influence _ 4 Robbery 1.0% 1 Drug Offenses 8.0% Aggravated Assault 4.0% *White Collar 3.8% __.L. o _J Other Assaults 1 8.2% Liquor Laws 3.7 A. _________.4_— _ _n_ o Burglary 2.9 /o All Other T 30.8% Note: Totals may not add to 100% due to rounding. _ . Source: US. Department of Justice, Federal Bureau of Investigation (December 1994), Crime in the United States—1993, p. 217. billion set aside for new prison construction only if it requires inmates to serve at least 85 percent of their sentences before parole (in effect doubling sentences for many classes of offendershThe fre— quency with which Congress passed anti-crime legislation increased in the 19805, when prisons were expanding most rapidly. At the time it was signed into law, the 1968 Crime Control and Safe Streets Act was the most extensive anti-crime legislation in his- tory. It provided for emergency wiretapping, tightened controls over interstate firearms transfers, and allocated hundreds of millions of dollars to localities to upgrade their law enforcement capability. The 1984 anti—crime legislation increased penalties for drug offenses, established mandatory sentences for certain firearms offenses, and reformed bail laws to allow for increased pretrial detention of dan- gerous offenders. In 1986, Congress passed another bill that estab- lished stiff mandatory sentences for possession of crack cocaine. The bill made such sentences 100 times greater than those for powder CRIME AND POLICY 15 Violent Crime in the United States, 1993 100.0% 100.0% 90.0% 80.0% 70.0% 60.0% 50.0% 40.0% 30.0% 20.0% 10.0% 0.0% Percentage 3.0% Total Crime Total Violent Total Crime Crime Resulting in Injury Sources: US. Department of Justice, Federal Bureau of Investigation (December 1994), Crime in the United States—1993 , pp. 5, 10; US. Department of Justice, Bureau of Justice Statistics (March 1994), Criminal Victimization in the United States, 1992, p. 88. cocaine, even though, as we will explain in Chapter 4, there was lit- tle or no difference between crack and powder except the race of the people using them. A 1988 bill increased funding by billions of dol— lars for federal drug control efforts. The federal crime bill of 1994— the most expensive in history—added the death penalty to dozens of federal offenses, allocated $23 billion for law enforcement (this includes the $9.7 billion for prisons), and directed another $6.1 bil- lion for crime prevention programs. Although the full impact of the 1994 crime bill has yet to be felt, it will almost certainly contribute to higher rates of incarceration in the federal prison sysrem. Nonviolent Offenders Fueled the Prison Expansion Since 1980, the United States has undertaken one of the largest and most rapid expansions of a prison population in the history of the Western world. Between 1980 and 1994, the prison population tripled from 500,000 to 1.5 million. The number of people under some form of correctional supervision (in prison or jail, on probation, or on parole) surpassed 5 million people at the end of 1994, or 2.7 percent of the adult population. Most of the increase in the prison population during this time was 16 THE REAL WAR ON CRIME not accounted for by violent offenders. Fully 84 percent of the increase in state and federal prison admissions since 1980 was accounted for by nonviolent offenders.” Legislative changes in sen- tencing laws in the 19805 made it routine to send nonviolent offend- ers to prison for long terms. A person arrested for a drug offense in 1992 was five times more likely to go to prison than a person arrested in 1980.” In California, people who committed lesser offenses such as car theft and larceny went to prison at much greater rates than those who committed the serious violent crime of robbery.” Even for petty offenses, there has been a tendency to enact criminal rather than civil penalties. A county board recently passed legislation imposing thirty days in jail for illegal camping or allow- ing a dog to run loose.“ The state of Texas recently completed an exhaustive study of its felony sentencing patterns and found that 77 percent of all prison admissions were for nonviolent crimes.” The most frequent crime resulting in a prison sentence was drug possession. In the federal sys- tem, the overwhelming majority of inmates—89 percent—are con- victed of nonviolent offenses.18 We will see shortly that many of these nonviolent offenders do not need to be in prison at all, yet each one may consume tens of thousands of tax dollars per year. One reason nonviolent offenders are crowding out prisons is because we continue to broaden the definition of crime. Historically, the term applied only to those acts that violated the rules of civilized conduCt—murder, theft, and the like. Today, we classify as “crimi- nal" conduct that which is merely undesirable or that which breaks an administrative rule (e.g., laws that ban panhandling). The increasing failure to recognize the distincrion between the truly wrong and the minor infraction—and to address minor infractions outside the formal and expensive criminal justice system—at least partly explains Why our jails and prisons are overcrowded. Many state corrections leaders and prison wardens have voiced objections to the fact that nonviolent offenders take up so much space in their facilities. Bishop L. Robinson, Maryland's public safety chief, recently recommended that 32 percent of the prisoners in his state could be paroled immediately or put into alternative CRIME AND POLICY Persons Admitted and in Custody How Many? How Violent? l7 jurisdiction in each category. rTotals have been adjusted to account for double counting of individuals under more than one jurisdiction. n/a=not available Note: Data are the most recent available. Population figures represent the number of persons under7 Sources: US. Department of Justice, Bureau of Justice Statistics; Federal Bureau of Prisons; Office of Juvenile Justice and Delinquency Prevention. programs.19 James A. Gondles, executive director of the American Correctional Association, agreed with Robinson. “It's not a question of being soft," he said. “It’s a question of solving a problem before it eats us alive."20 One consequence of this policy is that the system occasionally releases violent criminals early because prison space is crammed with new nonviolent offenders. The charts above and on page 18 demonstrate how few people in the system are violent. The charts make the crucial distinction between the population of the system and admission: into the system. A facility’s population is the number of people in that facility orrvany given day. Admission; count the number of people entering the facility dur- ing a certain period of time, usually a year. Admissions shows the dynamic nature of the system, with people entering and exiting con— tinually. For example, a short-term holding pen in a county jail may hold 10 people on any given day, but admit 2,000 people over the course of a year. I l l =1 fyrorenrj ~NTQN- I W;’_;_-_;_* VIOLENT. . j l r 490,442 n/a j n/a ,_ - .t l, - 958,704 47% 53% 431,279 27% 73% _,_ .4 -_ .3 ,_ 100,438 11% 39% 38,542 6% ' 94% 1 - i _ l _ - -j 93,851 15% 85% 823,449 n/a n/a l ,. r 15 million 35% 65% 11.1 million __j ‘n/a n/a 5 E .9 .3 i '0 ¢ 3 0 Z “5 I] an S i: I) B 0 a. 18 THE REAL WAR ON CRIME Bait and Switch A policy that pretends to fight violence by locking up mostly nonvi- olent offenders is an inefficient use of taxpayer resources. The scam works like the classic “bait and switch" marketing ploy, in which customers are “baited” into a store by an advertisement for an item at an extremely low price. Once in the store, the salesperson “switches” the customer to a higher-priced product that the scheme was designed to promote. In the criminal justice field, the “bait” is citizen fear of violent crime. The "switch" occurs when public offi- cials fight crime by building more prisons but then fill the new cell: with nonviolent ojfinders. This scheme profits those who wish to appear “tough” on crime but in reality are failing to make America safe. One consequence of this policy is that the criminal justice system spends tens of billions of dollars on prisons and then underfunds effective drug treatment, educational programs, and violence preven- tion programs by asserting that there is not enough money. Criminologists Franklin Zimting and Gordon Hawkins first applied the term “bait and switch" to this aspect of criminal Justice policy. Under the bait and switch, people who commit lesser infrac- Nonviolent Offenders Fueled Prison Expansion: New Court Commitments by Type of Crime to State Prisons, 1977-1992 Sources: U.S. Department of Justice, Bureau of Justice Statistics (May 1993), Prisoners in 1992. p. 10, Appendix Table 1; Department of Justice, Bureau of Justice Statistics (June 1994), Prisoners in 1993, p. 10, Appendix Table l. CRIME AND POLICY l9 tions have borne the brunt of the anti-crime fervor by getting sent to prison at much higher rates and serving much longer sentences. But as the data show, violent crime is undiminished even as we engage in the largest increase in incarceration in American history. The Bait and Switch in Practice in California California is a good example of the “bait and switch" in pracrice and is illustrative of similar trends around the country. In 1980, 60 per— cent of the 24,569 inmates in the state had been committed to prison for acts of violence—a relatively efficient use of prison space}1 California increased its prison population by 400 percent between 1980 and 1993 (to 125,605 inmates)? yet only 27 percent of tbe addi- tional priron space confined people convicted of violent ojjfenrer.” The remaining 73 percent were convicted of nonviolent crimes. Today, California has more persons incarcerated for drug offenses than the entire prison population in 1980. If crime policy was intended to combat violence, then its effectiveness in California dropped consid- erably as the prison population expanded. “Three Strikes and You're Out” “Three strikes and you’re out" is one of the most popular crime con- trol initiatives. Proposals vary state by state, but the general idea behind "three strikes" is to increase the prison sentence for a second offense and require life in custody without parole for a third offense. Larry Fisher, age thirty-five, recently robbed a sandwich shop near Seattle of $135 by holding a finger in his pocket and pretending it was a gun. In the previous eight years he was responsible for two other minor robberies. Under the traditional sentencing system, Fisher would have spent about two years in prison for the sandwich shop robbery. Under the new "three strikes and you’re out" legisla- tion now in effect in Washington state, he faced life in prison with no possibility of parole for this third offense.“ Michael Garcia shoplifted a package of meat valued at $5.62 from a grocery store in Los Angeles.” At the time, Garcia was temporarily 20 THE REAL WAR ON CRIME out of work and his mother's Social Security check had failed to arrive. Garcia stuck the package of chuck steak down his pants: one piece for his mother, one for his retarded brother, and one for him- self. For this offense, he faces twenty—five years to life in prison under California's “three strikes" legislation. His other “strikes” also involved small sums of money and no physical injury; they were integrally related to a heroin addiction he had never been able to control. In fact, Garcia’s parole agent said, “Michael is not a bad guy. He had some problems with dope use, but he’s not dangerous."26 The agent said he would have sent Garcia to a residential drug treatment program, but a slot was not available. “Three Strikes and You’re Out” Is Untested We all acknowledge that the crime problem in most cities is severe, and that safety is the primary concern. People want tough sentences for repeat offenders, regardless of whether they are violent or nonvio- lent. But “three strikes and you're out"————though a great slogan—is untested and potentially disastrous. It threatens to drain billions of tax dollars to incarcerate lesser offenders for long periods of time. The current popularity of “three strikes" legislation is in no way related to its record of success. Cases such as those of Larry Fisher and Michael Garcia appear to be typical. A survey by the legislature in California, the state to pass one of the strictest and broadest “three strikes" provisions, shows that few people sentenced under the new scheme are repeat violent offenders. Fully 70 percent of all second- and third-strike cases filed in California in 1994 were "nonviolent and nonserious offenses."27 In Los Angeles County, only 4 percent of second and third felony convictions were cases of murder, rape, kid- napping, or carjacking. Although “three strikes” proposals typically arise from fear of violent crime, they often ensnare nonviolent offenders. The “three strikes" proposal is essentially a political ploy. Many voters who are frusrrated with violent crime supported the proposal, but as we see again and again in the criminal justice sys- tem, it is doubtful they will get their money's worth. “Three strikes" proposals casr a very wide net, and most of the people caught in it do not require the kind of punishment the proposals mandate. CRIME AND POLICY 2i The Costs Run into the Billions The costs of “three strikes” schemes are staggering. Every year an inmate spends in prison—be it under a "three strikes" law or a regu— lar sentence—cosrs taxpayers an average of $22,000. As the prisoners get older, the cost of maintenance rises, ultimately reaching an aver— age of $69,000 per year per prisoner for those over the age of fifty— five. In other words, the cost of imprisoning a person under the “three strikes” law will eventually triple. A study by a Stanford University professor estimated that the cost of a life term for an aver- age California prisoner is $1.5 million.”3 Multiplied by the expected increase in prison population between now and the year 2020, the study projected total costs to Callifornia taxpayers in the hundreds of billions of dollars. While almost every other discretionary line item in the California budget is being slashed—including funds for higher education—the state still ranks first in the country in money Spent to build and operate prisons. The Rand Corporation found that the new “three strikes" law will cost between $4.5 and $6.5 billion every year to implement.29 This is five times more than the state originally estimated. “Three strikes" will consume every dollar of new money the state expects to receive during the next six to eight years and will drain money from health and education spending. The Rand researchers concluded that the cost of the new legislation is so high that it will be impossible to implement fully. As a result, it is likely that the law will be applied haphazardly across the state. Such partial implementation can lead to dangerous, unplanned results, such as petty offenders spending decades in prison for lesser crimes while dangerous offenders are released early for lack of space. Other unanticipated consequences already are starting to develop. One report concluded that plea bargaining is down because more felony offenders are opting to go to trial rather than‘risk getting a strike under the new legislation.30 The increase in the number of tri— als is creating massive backlogs in the judicial system and causing court and attorney costs to skyrocket. Moreover, uneven enforcement of the law paves the way for racial and ethnic disparities to develop. Data from the Los Angles Public Defender's office suggests that 22 THE REAL WAR ON CRIME minorities with roughly the same criminal history as whites are being charged under "three strikes" at seventeen times the rate of whites.“ Truth in Sentencing Prison populations in many states will increase more rapidly in com- ing years because of a proliferation of so-called “truth in sentencing" laws. Truth in sentencing requires the prisoner to serve the full sen- tence without being released early on parole. The laws are the result of public frustration with sentencing systems that do not tell the "truth" about sentence length—certainly a valid concern for all Americans who want to know how their tax dollars are being spent. Tired of being told one thing and seeing another, the public has supported truth in sentencing enthusiastically without understand- ing the dramatic impact it will have on prison populations. Such laws take advantage of legitimate public frustration to instantly dou- ble and even triple prison sentences for all offenders. What the pub- lic is not told is that truth in sentencing will dramatically increase the amount of money going into prisons, largely to incarcerate the more numerous nonviolent offenders for longer periods of time. The Old System of Indeterminate Sentencing Under the old "indeterminate" sentencing system, a judge could hand down a sentence within a permissible range: Once found guilty, a person might receive a maximum of ten years in prison with the expectation that he would be released after five years if he con- formed to the rules of the prison. The prospect of early release was designed to induce good behavior so inmates would be easier to manage and more likely to succeed after release. If inmates violated rules while in prison or on parole, they could be additionally pun- ished by incarceration for the remainder of the original sentence plus any sentences for new charges. judges usually doubled the maximum potential sentence so that the actual time served was about what the judge wished it to be and the threat of additional sentence was sub- stantial. CRIME AND POLICY 23 This was not a straightforward way to sentence offenders. But it did serve the managerial needs of the prison system by affording parole boards the discretion to release inmates when ready or when conditions became overcrowded. Two Main Attacks on the Old System Indeterminate sentencing schemes have been subjected to two attacks in recent years. First, it is said that offenders only spend a portion of their actual sentences behind bars. This makes it appear that the offender gets off easy. Although it is true that offenders often serve only a portion of the sentence, it does not follow that the offenders get off easy. Judges in indeterminate sentencing systems customarily impose longer sen— tences, expecting an early release. Second, if released inmates commit another crime after being paroled, politicians charge that the crime could have been avoided if the inmate had served his full term. While this is a valid point in some cases, under the old sentencing regime the second half of the prison term is not designed to incapacitate because it is not supposed to be served. It is designed only to intimidate the inmate into better behavior. This political attack is often coupled with claims that parolees are running the Streets and victimizing innocent citizens. Such claims are usually unwarranted. People paroled from prison or serving probationary sentences commit only 4 percent of offenses known to police each year for the most serious violent crimes of mur— der, rape, robbery, and assault.” Truth in Sentencing as the Answer In order to cure these supposed flaws, many politicians wish to require inmates to serve all or almost all (usually 85 percent) of the full sentence no matter how well they behave in prison. Under these truth in sentencing proposals, a person sentenced to ten years in prison would not be eligible for release after the four to six years customary under indeterminate sentencing systems, but would have to serve at least eight and one-half years. This single change in parole policy would effectively double most prison sentences. 24 THE REAL WAR ON CRIME Although there might be reasons to tighten the old indeterminate system, it does not appear that careful tightening is the purpose of the new proposals. Truth in sentencing tends to mix violent and nonviolent offenders, and particularly for nonviolent offenders, it often increases sentences far beyond what is needed to ensure public safety. Truth in sentencing has become such a powerful slogan that the federal government is trying to impose it on unwilling states. Most of the $10 billion in federal money available to states for prison con- struction under the 1994 federal crime bill will only be granted on the condition that states adopt truth in sentencing. This represents a significant shift in the traditional balance between the state and fed- eral governments and a significant federalization of a traditionally local issue. The Economic Cost of Truth in Sentencing If the longer sentences are not carefully targeted to reach only the offenders who deserve them, they can be a terrible drain on public funds. Virginia, which is considering adoption ofa new truth in sen- tencing plan, is a case in point. The Virginia plan to abolish parole and establish truth in sentencing originally called for construction of twenty-five new prisons at a cost of nearly $2 billion.” The state leg— islature estimated that the new prisons would cost $300 million per year to operate, double what the state pays for its current system. There was little discussion about how to pay for the plan, although Governor George Allen Jr. pointed toward parks and schools as pos- sible sources of revenue." Governor Allen claimed that the plan was necessitated by the “rapid rise of violent crime” in the state, even though violent crime fell in the two years preceding introduction of the plan.” He claimed that “putting dangerous predators back on the streets" is a leading cause of criminal victimization, despite the facr that only 9 percent of robberies, 4 percent of murders, and 2 percent of tapes and aggra— vated assaults in Virginia are committed by people on parole.36 Most importantly, the governor claimed that the plan targeted “violent career criminals," although his own projeCtions showed that the plan CRIME AND POLICY 25 would capture almost four times more nonviolent offenders than vio- lent offenders. Mandatory Minimum Sentences Mandatory minimums were a sentencing reform popular among elected officials during the height of the “war” on drugs in the late 19805. The effect of mandatory minimum sentences on the criminal justice system has been long-term, and is still being felt by thou— sands of nonviolent drug offenders, many of whom are spending a decade or more behind bars for relatively modest offenses. The Rockefeller drug laws in New York, passed in the 19705, have been so harsh on drug offenders that current Republican governor George Pataki has sought to repeal some of their provisions. Mandatory minimums always require offenders to spend time in prison for at least a certain number of years. They are similar to truth in sentencing laws in that they increase the length of sentence, but they differ in that they allow parole after the minimum number of years is served. In the federal system, there are currently more than 100 provisions for mandatory minimums. Most states have manda- tory minimum sentencing as well. The following illustrates the injustice and waste of tax dollars that can result from mandatory minimum sentences: °In Mobile, Alabama, Nicole Richardson fell in love at age twenty with a small-time drug dealer who worked out of a local bar. One day, an undercover agent asked her where he could buy some drugs. She told him to talk to her boyfriend. For that degree of involve- ment, she was sentenced to ten years in prison with no possibility of parole. Her boyfriend had information on other drug deaLers to trade. After cooperating with authorities, he received a prison sentence of five years. 'Michael Irish was a carpenter from Portland, Oregon, whose life savings had been wiped out to pay for the medical bills of his cancer— stricken wife.37 Irish, who had no criminal history, was caught and 26 THE REAL WAR ON CRlME conviCted of unloading boxes of hashish from a boat. Under the mandatory minimum law, he was sentenced to twelve years in prison with no possibility of parole—an incarceration that will cost at least $250,000. 0A5 a young man, Bill Keagle had served six years in prison for bur- glary. After release, he married and adopted his wife’s two children. When he was laid off, he sold some guns he had used for target shooting to a pawnshop. He did not know that possession of those guns put him in violation of the federal Armed Career Criminal Act. Although his prior crimes were old and nonviolent, they caused him to be sentenced to fifteen years in prison under a mandatory mini- mum provision. Stories like these are so numerous they have undermined much confidence in mandatory minimum sentences. Ninety percent of fed- eral judges and 75 percent of state judges think mandatory mini- mum sentences are unsound.” On the US. Supreme Court, Chief Justice William Rehnquist and Associate Justice Anthony Kennedy are among those who have spoken against mandatory minimums.” They have been joined by the United States Sentencing Commission, the American Bar Association, and the National Association of Veteran Police Officers.“0 Mandatory minimums create a number of problems.“ First, they apply to everybody regardless of whether the punishment fits the crime or the offender. Second, mandatory minimums create what is known as sentencing “cliffs” for drug offenses. For example, posses- sion of five grams of crack is punished with no more than one year in prison; possession of 5.01 grams of crack is punished with no [655 than five years in prison. Third, mandatory sentences do not produce an equal sentence for everybody who commits the same offense. If a drug defendant decides to cooperate with the prosecution and turns in other people, the prosecutor will often choose not to charge that person with a crime carrying a mandatory minimum sentence, thus allowing the defendant to get out of prison early. Through this process, high-level CRIME AND POLICY 27 drug dealers with the most information often get off with light sen- tences, while low-level dealers receive the longer mandatory mini- mum sentence. The Relationship Between Poverty, Famin Breakdown and Criminal Justice 1 The Commission members feel strongly that crime is an act of per- sonal choice and that an effective criminal justice system holds indi- viduals accountable for their criminal behavior. Nevertheless those who wish to prevent crime before it occurs cannot ignore the fact that the majority of the people filling our prisons come from im ov- erished backgrounds and lack a formal education.42 Research slibws that children from low-income families who are placed in earl childhood development programs such as Head Start have lowe: rates of crime and higher rates of marriage than those who are not in the program.“3 We need to recognize that investing money in earl childhood development produces a safer and healthier society oveii the. long run. Unfortunately, the United States is the wealthiest nation on earth but has the highest child poverty rates of any indus— trialized country. More than fifteen million children live in poverty .'\ y Some Mandatory Minimum Sentences (Federal) . " " ’ ""' LSD 1 gram Marijuana 100 plants or 100 kilos ‘ Crack cocaine ' 5 grams Powder cocaine 500 grams Heroine 100 grams Methamphetamine 10 grams PCP J 10 grams 28 THE REAL WAR ON CRIME in the United States, and up to twelve million children are malnour— ished.“4 Research consistently demonstrates that a disproportionate amount of violent street crime occurs in areas that have the lowest incomes and the most desperate living conditions.“ Furthermore, medical research suggesrs that children who are malnourished are more apt to engage in high-risk behavior when they get older.“ Regardless of what one thinks of our high rates of incarceration, it is also clear that they have had a negative impact on family stability. In some cities, more than half of all young men are under criminal jus- tice supervision on any given day. With so many men in prison, the pool of people available for marriage has dwindled. This is a two— edged sword: While it is good for public safety to take a violent crim- inal off the streets, it is bad for public safety to incarcerate so many petty offenders that family life is disrupted. It is two-parent families that are least likely to live in poverty and more likely to cushion young people from the temptation to adopt a criminal lifestyle.“7 Eleven percent of children who live in a two-parent family live in poverty, while 60 percent of children who live with a single parent live in poverty.4N It troubles the Commission that the size of the American prison population and the number of people living in p0verty both increased dramatically in the 19805. Worse, the growth of each seemed to feed off the growth of the other. This is because funding for prison expansion came largely at the expense of programs designed to alleviate p0verty. Reducing Poverty Can Reduce Levels of Crime Poverty is not an excuse for crime, nor is crime the exclusive province of low-income persons. But overall, countries with the highest ratio of poverty have the highest rates of crime.” The same correlation holds true for cities. It does not follow that an increase in poverty will translate immediately into an increase in crime. It does strongly imply that if overall poverty is reduced, then in the long run the amount of street crime associated with poverty will be reduced as well. CRIME AND POLICY 29 International Child Poverty Rates 21.0% Pe rcen tage 161% 13.5% 14.0% 9.9% I 6.5% 6.2% 6.8% (1993) U.S. Total (1993) Canada (1991! Australia (1990) United Kingdom (198“ Germany (1989) Sweden (1992) m a a —t I l I I I I I I I I I I I l I 5 E 5 3; g S = u 3 ‘u w E < U.S. Whites (1991” Netherlands (1991] Sources: U.S. Bureau of the Census, Table 21: Poverty Status of Persons, by Age, Race, and Hispanic Origin: 1968—1993; Rainwater, Lee, and Timothy M. Smeeding (August 1995), Luxembourg Income Study, Table 3. The increase in poverty in the United States during the 19805 was significant. The average rate of poverty in the United States during the decade was 17 percent higher than the average for the 19705.5" But the chart above does not begin to capture the overwhelming extent of child poverty, particularly for minorities. The poverty rate for African-American children is an astonishing 44 percent. For Latinos it is 38 percent, and for Whites it is 16.2 percent.“ In Sweden, the poverty rate for children is 2.7 percent; in Canada, it is 13.5 percent; and the overall United States rate is 21.0 percent.” The Tradeoff Between Prisons and Opportunity for Youth The massive prison construction represented a commitment by our nation to plan for mcz’alfai/ure by spending billions of dollars to lock up hundreds of thousands of people while at the same time cutting billions of dollars for programs that would provide opportunity to young Americans.“ The result of our social and criminal justice poli- cies is that today among developed countries, the United States has the highest rates of incarceration, the widest spread of income inequality, and the highest levels of poverty. If we are serious about 30 THE REAL WAR ON CRIME reducing crime, we need to create effCCtive anti-poverty programs and fund them adequately as part of an overall approach to crime policy. Conclusion In gathering research for this report, it became clear that there is an inordinate amount of confusion about crime data. Without basic agreement on the data, it will be virtually impossible to ask the right quesrions so the nation can forge a consensus on how to create a safer society. Beyond that, policymakers must begin to look at crime policy in the larger context of our society. Crime policy cannor be separated from issues of child poverty or family stability, nor can it be seen in isolation from spending in other areas of the economy. More and more, one new prison cell for an offender can mean one less class— room for a child—a process that in effect closes off options for young people, thereby jusrifying the need for more prisons. Our crime- fighting policies must work to make the country safer and do so in the most cost-effective manner possible. PRISONS ince 1980, the United States has engaged in the largest and most frenetic correctional buildup of any country in the history of the world. During this time the number of Americans impris- oned has tripled to 1.5 million. About 50 million criminal records— enough to cover nearly one-fifth of the entire US. population—are stuffed into police files. Hundreds of billions of dollars have poured from taxpayers’ checking accounts into penal institutions and the businesses that service them. Several million people have come to depend on the criminal justice system for employment. The hidden side of the growth of the criminal jusrice system is its direct effect on how much less money Americans spend on educa— tion, parks, libraries, recreation centers, highways, and universities. With a significant percentage of the potential male workforce in prison, our high rates of incarceration also act as a drag on economic growth. One estimate has the nation's jobless rate rising from 5.9 percent to 7.5 percent if male prisoners were counted as part of the labor force.1 One would think that the extraordinary expansion of the criminal justice system would have made at least a small dent in the crime ...
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