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"Who Is Responsible For America's Swollen Prison Population?":
Bill Stuntz has an intriguing post on that topic over at Less than the Least.
Sigivald (mail):
Me. I drive people to crime with my Strange Powers.

Well, maybe.
5.1.2008 1:50pm
NI:
The prison population is so high because too much is illegal. End the war on drugs.
5.1.2008 2:01pm
EKGlen (mail):
The author's attempt to assign blame to one political party is a pretty lame bit of thinking, particularly since he virtually ignores the so-called war on drugs.

Crime rates for non drug offenses have been falling in virtually every category for decades.
5.1.2008 2:09pm
Richard Aubrey (mail):
NI. Since the illegality of drugs makes them a high-profit item to sell, thus sucking all those poor young guys in the 'hood into The Life.... What happens when the drugs are legal? How are they going to make a living?
Ever think of that?

Point is, they have a choice and they make the one which will lead to jail. They didn't have to do it.
5.1.2008 2:11pm
Brian Mac:

"Who Is Responsible For America's Swollen Prison Population?"

The parents who fail to bring their kids up on a proper diet.
5.1.2008 2:12pm
Archon (mail):
Did anyone ever think that maybe the reason more black people are in jail is because more black people break the law?

There is an attitude especially among inner city African American communities that they don't have to follow minor laws such as disorderly conduct, simple assault, traffic regulations, parking regulations ,etc. (Many even call this "white man laws") And, as Guiliani was aptly able to demonstrate these are gateways to greater crimes such as rape, burglarly, robbery, and murder.
5.1.2008 2:17pm
GV:
I agree 100% with everything in that article. I’m always baffled by the fact that democratic politicians (especially the Clintons) are able to walk upright despite the fact that they were born with some sort of degenerative condition that has left them without a backbone. Some of the most unjust and irrational sentencing measures (especially federal mandatory minimums) went into effect with Bill Clinton’s blessing. Democratic politicians are petrified of being labeled “soft of crime,” even if that means supporting legislation that undercuts their campaign rhetoric about caring about the poor and underprivileged. Democratic politicians continually support insanely stupid criminal justice “reforms” that wreck minority communities. And as an added bonus, this has the pleasant effect of draining the federal treasury. Indeed, I’d love to hear how much money we spend yearly to keep first time drug offenders in jail in their 70s, 80s, and 90s. None of this is to say that we shouldn’t be concerned about crime and drugs (which disproportionately affect the poor), but surely there is a better way of dealing with crime than what we are doing now.

I look forward to four more years of the same insanity under President Clinton Part Deux or President McCain. In 2012, we can continue to “ponder” what to do about this broken system.
5.1.2008 2:19pm
OrinKerr:
EKGlen writes:
The author's attempt to assign blame to one political party is a pretty lame bit of thinking, particularly since he virtually ignores the so-called war on drugs.

Crime rates for non drug offenses have been falling in virtually every category for decades.
EKGlen, I think he is not assigning blame to one party and not ignoring the so-called war on drugs. As for crime rates for non drug offenses, yes, rates have been falling: but I would think the relevant question is, how has the prison population been changing for non drug offenses?
5.1.2008 2:20pm
FWB (mail):
It's a conspiracy! Make everyone a felon, except for those in Congress and guess who gets to do the voting.
5.1.2008 2:29pm
SIG357:
The prison population is so high because too much is illegal. End the war on drugs.

A prosecutor writing in the comments over there addresses that, and rejects it. Says people who get busted for drugs are ciminals in lots of ways and they go with a drugs prosecution because its the easist to prove. A bit like getting Al Capone on tax evasion.

I neither endorse nor reject this, just pointing it out.
5.1.2008 2:31pm
zippypinhead:
So the rising prison population is a tacit conspiracy among one party's politicians to show key voter demographics that they're tough on crime, eh?

Hmmm... whatever happened to the role personal responsibility might be playing here? You gonna do the crime, you gotta do the time. Sounds like words to live by...

I think Stuntz may be putting the cart before the horse. Enhanced sentencing, and thus incarceration rates, arose in RESPONSE to perceived (and generally actual) increases in crime, especially the types of crime deemed most threatening by broad swatches of society. All the "Project Exile," "Project Safe Streets," etc., programs didn't appear out of thin air. They were implemented in response to what was already happening on the street.
5.1.2008 2:35pm
DS McK:
I've discovered a fool-proof way to stay out of prison: I don't break the law. Pass it on.

Seriously though, the discussion is always poorly framed. "Isn't it a tragedy that so many minorities are in prison," and we engage the public policy debate from there.

Last time I checked, there is a course of action required prior to being incarcerated. Namely, you must first commit a crime.

So let's change the policy debate to "Isn't it a tragedy that so many minorities are committing crimes." Then we could have a serious, grown-up discussion of how to fix the underlying causes.
5.1.2008 2:36pm
SIG357:
A long but I think interesting comment, from the thread at Less than the Least. Go ahead and delete if it's excessive.

I read stuff like this and if I didn't know better I would think the only people who ever go to prison are black, petty drug offenders. having been both a prosecutor and a defense lawyer and still having several close friends who do criminal defense, I know better. First, a lot of people who are in prison for drug offenses are there for other things to and would be in prison even if we had never had prohibition. Drug offenses are very easy to prove, either you have to stuff of you don't, so prosecutors often drop other more difficult to prove charges like assault in exchange for a guilty plea on the drug offenses. When that happens the anti-prohibitionists point to another drug offender filling a prison cell at the expense of a more violent offender, but that is not entirely true.

The other thing to remember is who gets arrested for drugs. Lots of middle class and upper middle class people who are not normally criminals use drugs. But me sitting here fat dumb and happy in my suburban home and very unlikely to get caught for use because I am an otherwise law abiding person and have very few if any interactions with the cops. But if I were a criminal and beat the hell out of my wife on occasion and robbed people and wrote bad checks or was already on probation for this or that crime, I am going to interact with the cops a hell of a lot more and am going to be much more likely to get caught for drug use. Ending prohibition would not keep me out of jail for long. It would just mean that I would be there for something else.

We have a large prison population because we have a large criminal population. By that I don't mean people who break stupid laws like drug laws, but people who are theives and violent and do things that ought to put them into prison. I would encourage anyone here to go down and watch a day of state criminal court, you won't find a lot of innocent people there. You will find a lot of pretty stupid and messed up and occasionally dangerous people there.

One last note on the prison population. Has anyone thought of the effect of endless illegal immigration on this? Not that the immigrants commit crimes but in that it limits the options of those who do end up in jail. Suppose you are someone who deals drugs or robs someone or makes a mistake that lands you in prison. When you get out you really do want to go straight and live a productive life. Now if you are say a high school drop out with a prison record you won't be landing any six figure jobs. You are going to have to start at the bottom and do something like move furniture or mow lawns until you have a work history and can move up. If you come to me to ask for such a job, why on earth would I hire you, someone who has a prison record, when I can hire any number of salt of the earth Mexican peasants who are lining up outside my door and will work for whatever I pay them and if I don't like them I can fire them at will with no worries of lawsuits or anything else? I wouldn't. Illegal immigration totally screws those at the bottom of our labor force and makes it extremely difficult for people who have been in prison to go straight.




5.1.2008 2:37pm
byomtov (mail):
I think he is not assigning blame to one party

He's coming close. You could interpret the post as saying Republicans are good at demagoguery on crime, forcing Democrats into tougher policies, in which case he's blaming both, I guess.

I think the main thing though is that Stuntz' ideas are pure conjecture. His "evidence" is worthless. It covers a few states, at random time periods, and doesn't consider the makeup of the legislatures or the role of any other officials. Do governors control local DA's? Are they responsible for the effect of laws passed before they took office?

If Stuntz wants to make statistical arguments he needs to do his homework.
5.1.2008 2:40pm
Dave N (mail):
I tend to agree with the article as well (which puts me in company with GV).

As a prosecutor, I know that prisons are neither the end all nor be all. As I have posted on other threads, I think mandatory "three-strike" laws are an abomination and that generally, prison should be a last resort--keeping someone who does not need to be incarcerated out of prison saves a whole lot of money in an era of tightening budgets.

Does that make me a liberal? Anyone who reads this blog knows the answer to that question.

In other words, I have proven my bona fides as a conservative. I do not need to prove them over and over.

Extrapolate that to the state level. Conservatives "own" the crime issue because there is a perception that liberals care less about the victims and more about the criminals. Someone who is liberal will have to do "something" to establish his or her bona fides on crime--whether it be presiding over an execution or proposing mandatory imprisonment laws.
5.1.2008 2:44pm
Houston Lawyer:
I'd like to see the information about how many in the prison population were living with both parents until they reached age 18.
5.1.2008 2:50pm
GV:
The question isn't just should we put people in jail for drug crimes. It's also whether we should be putting them in jail for 30+ years for drug crimes. Thanks to mandatory minimums, you can receive a longer sentence for dealing drugs than for raping a child or for hijacking an airplane. Who is going to defend that?
5.1.2008 2:50pm
Vovan:

Do governors control local DA's? Are they responsible for the effect of laws passed before they took office?


To follow up on byomtov, I think that this would be the most salient point of research. It was my impression that local DAs have considerable leeway regarding prosecution of certain offenses, including pleading out those that could result in imprisonment at trial.

At least here in NY, the only case that I can remember where a governor specifically overruled the DA, was Pataki taking the case away from Johnson in 1996 for refusing to ask for a death penalty at trial. There certainly may be more examples, but they are few and far between.
5.1.2008 2:53pm
A. Zarkov (mail):
Stuntz writes:

"But I’m pretty sure one common answer—we have a huge, disproportionately black prison population primarily because of the policy choices made by conservative Republicans like Ronald Reagan and George W. Bush—is wrong."

What policy choices? How would these choices (whatever they are) cause incarcerations for non-federal prisons to increase? This statement also seems to imply that the black prison population is disproportionately large for reasons having nothing to do with the facts that blacks commit crimes at a disproportionately high rate. For example crimes of violence where the black rate is 8 times the white.
5.1.2008 3:01pm
KeithK (mail):

Crime rates for non drug offenses have been falling in virtually every category for decades.


Is it not possible that this decline is due to the increase in incarceration? If a criminal is locked up it's a lot harder for him to commit another crime.
5.1.2008 3:03pm
hattio1:
Sig357 says generally that those who are in prison for drug offenses could have been charged with other crimes, but weren't.

How does this undercut the argument that our jails are too full of drug offenders? The reason the State may find the assault more difficult to prove is that the person is innocent. Jailing them on a drug charge doesn't really change that. Secondly, a lot of robberies etc committed by addicts are committed to get the money to buy drugs. This incentive would disappear if drugs were legal and the cost went down (as they would by basic economics). When is the last time you heard of someone committing a major crime for tobacco?

Finally Sig357 quotes someone from the thread at the original post stating;

But if I were a criminal and beat the hell out of my wife on occasion and robbed people and wrote bad checks or was already on probation for this or that crime, I am going to interact with the cops a hell of a lot more and am going to be much more likely to get caught for drug use.


If you were pulled over for driving while black on a regular basis, you would have a lot more interaction with cops. Ditto if you lived in a poor neighborhood. Cops act differently in poor neighborhoods than they do in middle-class ones, for the exact reasons on display here...the assumption that poor=criminal.
5.1.2008 3:22pm
Roscoe B. Means:
I had a hard time suppressing laughter at the very first sentence:

"Pretty much everyone—Republican or Democrat, right or left—familiar with America’s criminal justice system agrees that our prison population is far too large."

Really? No one asked me. And how did everyone else come to this agreement? It must be nice to be able to avoid the tough questions by just assuming that "pretty much everyone" already "agrees" to what no one could possibly know.
5.1.2008 3:24pm
Zombie Richard Feynman (mail) (www):
Dave N:

That's just what I'd expect a liberal to say.


Liberal.
5.1.2008 3:25pm
A. Zarkov (mail):
SIG357:

"One last note on the prison population. Has anyone thought of the effect of endless illegal immigration on this? Not that the immigrants commit crimes ..."


But the immigrants do commit crimes. The crime rate for illegal Mexican immigrants is much higher than for the native non-black population. Immigration is an important factor to include in any analysis of crime and incarceration
5.1.2008 3:25pm
hattio1:
DS McK says;

Last time I checked, there is a course of action required prior to being incarcerated. Namely, you must first commit a crime.


You should check again. All you have to do to be incarcerated is be accused of a crime. You don't even have to be found guilty. Cases don't go to trial these days in a few weeks, so you can sit in jail for months awaiting trial if you don't have the money to bail out. That's without even getting into the wrongly convicted. I know conservatives like to pretend they don't exist, or they are so rare as to be insignificant, but they do exist, and they're not that rare.
5.1.2008 3:26pm
Thorley Winston (mail) (www):
Answer: people who break the law, i.e. criminals.

What do I win?
5.1.2008 3:30pm
hattio1:
Thorley Winston;

See my previous post in response to DS McK.
5.1.2008 3:36pm
EKGlen (mail):

EKGlen, I think he is not assigning blame to one party and not ignoring the so-called war on drugs.

Aww, c'mon Orin, his argument is that 1) its wrong to blame the increased incarceration on two republican politicians and that 2) democrats are more like to blame because they need to appear to be "tough on crime."

He devotes 9 paragraphs to this and wades through the specifics of several different states identifying the political parties of various politicians in the process.

The word "drugs" does not appear in the article yet the word Democrat appears 12 times and the word Republican appears 13 times.
5.1.2008 3:39pm
Tony Tutins (mail):
The incarceration rate is finally tracking the crime rate as it did before 1963 or so, so I don't think our prison population is too large compared to the crime rate. But the answer has three parts:

1. Police, prosecutors, judges, and juries are doing their jobs. (The big one.)
2. The legislature has created new crimes
3. More people are breaking the law. (Drug use/possession, and the organized crime supply chain.)

My strong impression is that drug use was minuscule before the 60s. Pot smokers, beatniks and musicians like Gene Krupa in SF, went to jail. The few heroin users were addicts who could be treated at the Federal hospital in Lexington, Kentucky. But that changed radically. As LSD discoverer Albert Hofmann's death reminds us, much of the 60s generation were devoted to getting high.
5.1.2008 3:52pm
Jam:
The increase in criminalizing everything. More criminal laws, more laws to brake. It is called job security for certain sectors of the government.
5.1.2008 4:05pm
SIG357:
EKGlen, does your entire world revolve around the Democratic-Republican axis? Must every word written be analyzed in terms of how it helps or hurts those parties?
5.1.2008 4:14pm
OrinKerr:
EKGlen,

My sense is that Stuntz doesn't mention drugs specifically because the whole post is about drugs; I've tended to understand that that's the primary source of the major expansion in prison rates, and that's what he's discussing. (Am I wrong on that?)

As for your suggestion about Stuntz blaming Democrats, it may help to be familiar with Stuntz's academic scholarship to see why that's not what he has in mind. Stuntz's view is that the public wants strong law enforcement; because the GOP has a reputation of being pro law enforcement, they can satisfy this public demand without actually doing anything. The real problem is public demand and how that demand is translated into policy. not the workings of any one party.

Finally, no need to resort to sarcasm with the "Aww, c'mon Orin" line. I am serious and you should be, too. If you'd like to post here, please keep it civil.
5.1.2008 4:16pm
LS:

Conservatives "own" the crime issue because there is a perception that liberals care less about the victims and more about the criminals. Someone who is liberal will have to do "something" to establish his or her bona fides on crime--whether it be presiding over an execution or proposing mandatory imprisonment laws.


Thus, a never ending cycle of waisted lives, waisted dollars, and, oh, wait? It was just brought to my attention that the police have stopped a group of minority young men, about 20 years old or less (just outside my window). How appropriate. It is a sad story. The justice system at work, seen right outside my office window as I complete this post. Moreover, a reminder that our justice system is overwhelmed and stuck in nuetral.
5.1.2008 4:20pm
EKGlen (mail):

My sense is that Stuntz doesn't mention drugs specifically because the whole post is about drugs; I've tended to understand that that's the primary source of the major expansion in prison rates, and that's what he's discussing. (Am I wrong on that?)

Stuntz was trying to make a political point that it is incorrect to attributed the rising incarceration rates to republican politicians in general and two in particular. My point being that the political affiliation question (which is clearly the focus of the article) is insignificant when compared to the bi-partisan "war on drugs."


Finally, no need to resort to sarcasm with the "Aww, c'mon Orin" line. I am serious and you should be, too. If you'd like to post here, please keep it civil.

I honestly don't quite know what to make of this. I've never before seen anyone assert that "Aww, c'mon Orin" is uncivil. Are you joking?
5.1.2008 4:25pm
EKGlen (mail):

EKGlen, does your entire world revolve around the Democratic-Republican axis?

Did you read the article to which Orin links?
5.1.2008 4:27pm
Thorley Winston (mail) (www):

The increase in criminalizing everything.


Utter rubbish, most people from all ethnic groups go their entire lives without ever seeing the inside of a jail or prison cell. As many of prosecutors who post on Volokh (and the linked article) have pointed out, you really have to work at getting sent to prison.

I stand by my original answer – the ones responsible for the increase in our nation’s prison population are the people committing the crimes.
5.1.2008 4:36pm
hattio1:
LS says;

Moreover, a reminder that our justice system is overwhelmed and stuck in nuetral.

I'll agree that our justice system is overwhelmed and stuck...neutral is not the word I'd use though to describe our justice system.
5.1.2008 4:37pm
OrinKerr:
I honestly don't quite know what to make of this. I've never before seen anyone assert that "Aww, c'mon Orin" is uncivil. Are you joking?

EKGlen, I assume you are new to the Volokh Conspiracy: Welcome. No, I'm not joking. I'm trying to encourage comment threads that are civil, respectful, and intelligent. I realize that different people have different standards for civility, but it's a big Internet and I can only rely on the standards that I have.
5.1.2008 4:44pm
EKGlen (mail):
Orin - actually, no, I've posted on the VC for years under a different name. (I switched computers and couldn't remember my password so I just created a new login.) I've also sent EV two tips over the years that lead to posts and I think I even sent you one that I don't think made it into a post.

But, that said, I will try to purge my future comments in your threads of "Aww c'mon" in the future and I apologize for offending you.
5.1.2008 4:50pm
john w (mail):
All you have to do to be incarcerated is be accused of a crime. You don't even have to be found guilty.

Hell! You don't even have to be guilty. Let's not forget the people who plead guilty in plea bargains even though they are innocent, just because it's the rational choice.
5.1.2008 5:04pm
SeaLawyer:

Secondly, a lot of robberies etc committed by addicts are committed to get the money to buy drugs. This incentive would disappear if drugs were legal and the cost went down (as they would by basic economics).


Even if the price went down you are still going to have the same addicts committing robberies. They don't have any source of income so even if a rock cost a dollar they are going to need to steal to get money.
5.1.2008 5:14pm
Kenvee:

Even if the price went down you are still going to have the same addicts committing robberies. They don't have any source of income so even if a rock cost a dollar they are going to need to steal to get money.


And they won't be able to make an income by selling drugs anymore. ;)
5.1.2008 5:23pm
SIG357:
hattio1:


"Sig357 says generally that those who are in prison for drug offenses could have been charged with other crimes, but weren't"



As I thought I made clear in my comment, I was relaying an opinion expressed by a commenter at the linked thread, who claims to be a former prosecutor and defence attorney.

If I can be forgiven for quoting myself "I neither endorse nor reject this, just pointing it out."



"How does this undercut the argument that our jails are too full of drug offenders?"




If true, and I'm not saying it is, then it suggests that many drug offenders are not in jail merely for drug offences. So it seems to me that it undercuts it.




"Cops act differently in poor neighborhoods than they do in middle-class ones, for the exact reasons on display here...the assumption that poor=criminal."



Is it that, or is it that their jobs take them into contact with criminal people, and that criminal people tend to be poor people?



"The reason the State may find the assault more difficult to prove is that the person is innocent. Jailing them on a drug charge doesn't really change that."


A fair point to a degree, but if you don't get investigated for assault you are not as likely to get busted with drugs.
5.1.2008 5:29pm
Dave N (mail):
Zombie Richard Feynman,

I got a good laugh, particularly after GV and I briefly tangled yesterday over Judge Stephen Reinhardt, the uber liberal of the Ninth Circuit.
5.1.2008 5:37pm
zippypinhead:
Stuntz's view is that the public wants strong law enforcement; because the GOP has a reputation of being pro law enforcement, they can satisfy this public demand without actually doing anything. The real problem is public demand and how that demand is translated into policy. not the workings of any one party.
Professor Kerr, three thoughts, offered in a spirit of civility and respect:

1. If that's the point Stuntz meant to convey (as opposed to an apologist's gloss thereon), then he should do a heavy edit of this draft. Attributing the "problem" of a large prison population to non-partisan "public demand" doesn't exactly leap out at the reader. I could have sworn his key independent variable was the political affiliation of the occupant of the Governor's mansion. And if I'm just being even more of a pinhead than usual in my reading comprehension, it appears from the comments that I am not alone -- if that many of us are missing what he DID have in mind, then perhaps the problem may be in the presentation, not the reader's interpretation?

2. The skeptic might wonder about your statement that "because the GOP has a reputation of being pro law enforcement, they can satisfy this public demand without actually doing anything." So Stuntz's preliminary empirical work indicates a multi-decade disconnect between public perception of the GOP versus its (alleged?) do-nothing approach to crime? Somehow this doesn't quite pass the sniff test. Unless you really can fool all of the people all of the time.

3. I'm not sure tracking actual incarceration rates, as opposed to the date of enactment of enhanced penalties, is all that relevant. At least in the Federal system, there's a pretty significant lag between an increase in a statutory penalty and a resulting increase in the median length of sentences for violating that statute. If a statutory penalty is increased from, say, 5 to 20 years, it's nearly irrelevant to the actual sentences imposed until the U.S. Sentencing Commission gets around to revising the (now advisory but still generally followed) Federal Sentencing Guideline for that particular offense or group of offenses. And you still have ex post facto issues -- crimes committed before the effective date of an upward Guidelines revision will STILL be sentenced under the old Guidelines, which can have a surprisingly long residual life. Let's just say that a prosecutor I know especially well has the 2004 edition of the Guidelines open on his desk at this very moment, because the base offense level of a crime he's indicting went up 2 points the next year, after the alleged illegal conduct arguably ended. Given a general 5-year statute of limitations, this happens all the time.
5.1.2008 5:43pm
SIG357:
EKGlen

Did you read the article to which Orin links?


Yup, in fact I read it yesterday. I take it this is what has you riled.


The political right plainly contributed, and contributed a lot, to the generation-long run-up in our prison population. But the political left probably contributed even more.


And all I'm suggesting is that you consider his argument on its own merits, rather than leaping to a defence of the "political left". It's tedious when people view everything in terms of whether it helps or hurts their own political party. Believe it or not, some things actually ARE the fault of the political left.

On the merits, I think his argument is weak. Politicians don't prosecute people, prosecutors do. And there is never an exact match between the party of the prosecutor and that of the politician in office. At the least his data would have to take account of that variable.
5.1.2008 5:45pm
RHD72 (mail):
Stuntz claims that the high incarceration rate is due, in significant part, to the fact that political candidates have been competing for white suburban and small town voters, who don't bear the cost of the policies leading to high incarceration rates. He sums up his point as: "Democracy works best when those making the relevant choices bear the cost of those choices."

It would be interesting to see whether those who agree with Stuntz would apply the same standards in evaluating, say, tax policy, where Stuntz's principle has led to a similar split between those making the policy choices and those bearing the cost of those choices. Does that also count as a structural failure of democracy?
5.1.2008 5:56pm
SIG357:
"Democracy works best when those making the relevant choices bear the cost of those choices."

Sounds like an argument for federalism and decentralization to me. I like his conclusion - too bad the work leading to it is weak.
5.1.2008 6:01pm
John Neff:
I would like to comments about jail and prison data.

1. Racial/Ethnic disparities are computed using the state population demographics for prisons &county demographics for jails.
2. About 90% of the population does not do crime and for about half of those that do the offenses are minor and are unlikely to result in jail detention or a prison sentence.
3. In general the demographics of the population that is at high risk of incarceration is not well determined (one of the issues is what fraction are nonresidents).
4. There is evidence that suggests that the census has undercounted minorities in low rent districts (they admit this for Hispanics).
5. There are a few studies that show that prison source populations have very high degree of geographical concentration in urban low rent districts.
6. There also have been studies that show that school drop-outs in prison outnumber HS grads by large factors.
7. Incarceration rates are not very easy to work with because the length of confinement is a very important factor that ranges for months to LWOP. Recent studies have been using prison admission rates that much easier to understand.
8. Screening data upon admission to prison indicates that alcohol/drug abuse is common and independent of the offense type.

My observation point is in Iowa and "Tough on Crime" has broad bipartisan support there because the such laws pass with nearly unanimous votes and they are promptly signed by the Governor independent of party.
5.1.2008 6:08pm
EKGlen (mail):

And all I'm suggesting is that you consider his argument on its own merits, rather than leaping to a defence of the "political left". It's tedious when people view everything in terms of whether it helps or hurts their own political party. Believe it or not, some things actually ARE the fault of the political left.

I did focus on his argument and found it utterly beside the point. To quibble about whether rising incarceration is a product of republican or democrats ignores the elephant in the room; namely, the absurd war on drugs. And, pace Orin, I don't think the entire article that failed to mention drugs was somehow all about drugs.

It is you who is focused on whether or not the article scores some points for your political party. My point is that exercise is a waste of time.
5.1.2008 6:09pm
hattio1:
Sig357;
I did catch that you were quoting someone else. I apologize for not making that clear in my reply to you. However, even assuming what the prosecutor on the other post is saying, your conclusion doesn't follow. You say;

If true, and I'm not saying it is, then it suggests that many drug offenders are not in jail merely for drug offences. So it seems to me that it undercuts it.


No. This is where you have it wrong. I would re-phrase that to say that many drug offenders who are in jail are also suspected of other crimes. If the State cannot take them to trial and prove their case beyond a reasonable doubt, they shouldn't be in jail on those crimes...and (IMHO) no one should be in jail for drug crimes (at the very least not for possession). So again, why should the presence of other crimes, that the State doesn't believe they can prove at trial change that calculus in the slightest?

I guess what I'm trying to say, to put it simpler, is you're not engaging the presumption of innocence. You're taking the word of a prosecutor that the defendants are guilty of other crimes...but prosecutors are wrong, which is why we have the presumption of innocence. Secondly, I'm saying that even if they are guilty, if the State can't prove it beyond a reasonable doubt, they shouldn't be in jail. We as a society have set reasonable doubt as our yardstick. To take anywhere in the equation a charge the State cannot prove beyond a reasonable doubt is a mistake IMHO.
5.1.2008 6:49pm
Russ (mail):
I'll say here what I said on that blog - Jim Carrey's character in "Liar Liar" said it best when asked by a client how to avoid jail:

"STOP BREAKING THE LAW!"
5.1.2008 6:52pm
ejo:
I would be happy if the prison population decreased, as long as the released criminals end up in your neighborhood, not mine. Can anyone offer those guarantees? We apparently don't care if they end up back in poor minority neighborhoods committing crimes, right?
5.1.2008 7:00pm
Oren:
2. About 90% of the population does not do crime and for about half of those that do the offenses are minor and are unlikely to result in jail detention or a prison sentence.
Utter and total rubbish. 90% of people are never charged with a crime more serious than traffic violations. Nevertheless, I'd be shocked if even 10% of the population manages to get through the day without committing at least a few crimes that merit jail time.

I don't think you understand the vast extent of the various laws, both state and federal (equal opportunity offenders, IMO), that are utterly banal.
5.1.2008 7:10pm
Roscoe B. Means:
I guess what I'm trying to say, to put it simpler, is you're not engaging the presumption of innocence. You're taking the word of a prosecutor that the defendants are guilty of other crimes...but prosecutors are wrong, which is why we have the presumption of innocence.

The presumption of evidence is an evidence rule at trial. It is not a general moral dictate to be stupid and/or to ignore reality.

I don't know how things work in many other jurisdictions. I only know that the comments attributed to the unnamed prosecutor above certainly square with my experience. Where I live and work, and have practiced as both prosecutor and defense lawyer, the overwhelming majority of "drug" offenders in prison are serious criminals who plea bargained for drug convictions. During my years of day-to-day experience in the criminal courts, I don't recall any more than a handful of cases where someone actually went to prison for simple unlawful possession, unless he or she had an extensive history and was sentenced under career criminal statutes. I've been somewhat surprised that no one seems to have studied this phenomenon methodically.
5.1.2008 7:23pm
zippypinhead:
hhttio1 wrote:
If the State cannot take them to trial and prove their case beyond a reasonable doubt, they shouldn't be in jail on those crimes...and (IMHO) no one should be in jail for drug crimes (at the very least not for possession). So again, why should the presence of other crimes, that the State doesn't believe they can prove at trial change that calculus in the slightest?
Very, very few inmates doing hard time in a state or Federal penetentiary are there for simple possession. If they're serving in excess of a year for a drug offense, it's most commonly a PWID conviction (yes, there are exceptions, but if my memory of the statistics is correct, the median simple possession time served is way less then the threshold for penetentiary incarceration, unless the defendant also has an outrageously high criminal history score).

Exercising prosecutorial discretion to not charge all possible offenses often has nothing to do with whether they're provable. In at least the Federal system, there's not a huge incentive to try someone for numerous crimes if you've got a nice, solid case on the most serious one or few, given the way offense grouping and relevant conduct works under the Sentencing Guidelines -- the crook is just not going to get that much more time for all the extra work and burden on the judicial system if you pile on. And under the Principles of Federal Prosecution, it's acceptable to take a plea on only the most serious offense, dismissing or not indicting less serious charges. And remember, over 90% of criminal cases plead out. Add it all together, and it's not surprising that drug convictions tend to be disproportionately represented in the inmate population.

Remember, they took down Al Capone for tax evasion. Not an unjust outcome, IMHO...
5.1.2008 7:29pm
Oren:
PWID is a joke. In many states, simple possession above a certain threshold is automatic PWID, so, while you can call it whatever you want, it's still simply possession unless the prosecution has the burden to show an actual intent to distribute.
5.1.2008 7:49pm
Dave N (mail):
PWID is a joke. In many states, simple possession above a certain threshold is automatic PWID, so, while you can call it whatever you want, it's still simply possession unless the prosecution has the burden to show an actual intent to distribute.
I once had a case where a guy had a couple of bales of marijuana in the back of his pickup. The marijuana had literally gone through a hay baler.

I was pretty convinced that it was more than just for personal use.
5.1.2008 7:53pm
hattio1:
I can tell you that in my jurisdiction there is significant jail time for simple possession of most illegal drugs. The one real exception is marijuana. But possession of any amount of cocaine, meth, PCP, LSD, Mushrooms is a felony. And they will prosecute. And, if you don't have a good defense and a good lawyer (and often even if you do), you will go to jail. Maybe the difference is what you consider "significant" time. It's true that a first felony offender will not likely spend over 4-6 months in jail. But, that's waaay too much for ingesting a poison into your own body. Would peple seriously support making attempted suicide a felony and throwing people in jail on a regular basis when they attempt suicide? If not, why does a slow suicide (via cocaine, heroine or methamphetamine etc) deserve a greater sentence?
5.1.2008 8:32pm
hattio1:
Dave N,
I'm fairly certain that the guy with bales of marijuana had an intent to distribute. But bales weigh (at a minimum) 30 to 40 pounds. Some of the statutes which define possession of over a certain amount use fractions of ounces. Are you seriously telling me that without those definition statutes you wouldn't have been able to convince a jury to convict on the numerous bales for PWID??? I'm sure you could have (and if not, please apply at the DA's in my jurisdiction). I'm not sure that people who are clearly possessing an amount that indicates an intent to deal really undercuts Oren's point. It rather seems to support it.
5.1.2008 8:36pm
Dave N (mail):
Hattio1,

I was too--and he pleaded guilty to either my state's version of PWID or transporting a controlled substance.

And I am sure I coulf hsve gotten a conviction if I went to trial. I actually agree with much of Oren's point.

And over my professional career, I cannot think of a single person I have prosecuted at the felony level for merely having a joint.
5.1.2008 8:57pm
hattio1:
Not for having a joint, but what about a line (cocaine) or a tab (LSD) or a _____(heroine, I don't know what the word is for a single one time use amount)? I agree that few people are in jail for simple marijuana possession (though there are some). But I still think the entire war on drugs is stupid, that if we're going to have a war on drugs we should emphasize treatment over jail, that possession of any substance should only be a misdemeanor, and that no amount of possession should be presumptive of intent to sell. If the DA can't make a distribution case out of bales of marijuana, or even a pound of marijuana, then they should hire better DA's...or better yet, put more effort into real crimes.
5.1.2008 9:11pm
Ben P (mail):

I'm fairly certain that the guy with bales of marijuana had an intent to distribute. But bales weigh (at a minimum) 30 to 40 pounds.


The problem is not those caught with 30 to 40 pounds.

The lowest threshold for a possession with intent to distribute charge here is about 1 ounce (specifically it's 28 grams for any schedule 1 or schedule 2 substance) That's an amount that could easily be for personal use.

In practice that means it's basically totally up to the cops and the prosecutor whether or not you get charged with a misdemeanor or a felony that can potentially put you for 10 years or more.
5.1.2008 9:12pm
Dave N (mail):
Ben P,

At least in my state, marijuana is in a special class. While it is, in fact, 4 grams or more to traffic for most schedule 1 controlled substances, marijuana is specifically exempted--you need at least 100 pounds, which Hattio1 acknowledged is a much larger quantity than personal use.
5.1.2008 9:20pm
Ben P (mail):

Ben P,

At least in my state, marijuana is in a special class. While it is, in fact, 4 grams or more to traffic for most schedule 1 controlled substances, marijuana is specifically exempted--you need at least 100 pounds, which Hattio1 acknowledged is a much larger quantity than personal use.


That would change things significantly, but unfortunately in Arkansas, that is not the case.

This is Ark. St. Ann 5-64-401

(d) REBUTTABLE PRESUMPTION OF INTENT TO DELIVER.

(1) Possession by any person of a quantity of any controlled substance including the mixture or substance listed in subdivision (d)(3) of this section in excess of the quantity limit set out in subdivision (d)(3) of this section creates a rebuttable presumption that the person possesses the controlled substance with intent to deliver.
(2) The presumption may be overcome by the submission of evidence sufficient to create a reasonable doubt that the person charged possessed the controlled substance with intent to deliver.
(3)(A) List of controlled substances and quantities:
(i) Cocaine -- one gram (1 g);
(ii) Codeine -- three hundred milligrams (300 mg);
(iii) Hashish -- six grams (6 g);
(iv) Heroin -- one hundred milligrams (100 mg);
(v) Hydromorphine Hydrochloride -- sixteen milligrams (16 mg);
(vi) Lysergic Acid Diethylamide (LSD) -- one hundred micrograms (100 μg);
(vii) Marijuana -- one ounce (1 oz.);
(viii) Methadone -- one hundred milligrams (100 mg);
(ix) Methamphetamine -- two hundred milligrams (200 mg);
(x) Morphine -- three hundred milligrams (300 mg);
(xi) Opium -- three grams (3 g); and
(xii) Pethidine -- three hundred milligrams (300 mg).



and from slightly higher up

POSSESSING WITH INTENT TO MANUFACTURE OR DELIVER. Except as authorized by subchapters 1-6 of this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance. Any person who violates this subsection with respect to:

(1) SCHEDULE I OR II NARCOTIC DRUG OR METHAMPHETAMINE.
(A)(i) A controlled substance classified in Schedule I or Schedule II that is a narcotic drug or methamphetamine, and by aggregate weight, including an adulterant or diluent, is less than twenty-eight grams (28 g), is guilty of a felony and shall be imprisoned for not less than ten (10) years nor more than forty (40) years, or life, and shall be fined an amount not exceeding twenty-five thousand dollars ($25,000).

5.1.2008 9:39pm
OrinKerr:
zippypinhead,

To be clear, in describing Stuntz's argument, I did not mean to say I agree with it; I was just saying that this was Stuntz's position.
5.1.2008 10:37pm
SIG357:
Oren

I'd be shocked if even 10% of the population manages to get through the day without committing at least a few crimes that merit jail time.

That's a startling number, to me at least. What sort of jail-worthy crimes are average citizens commiting but never being charged with?
5.1.2008 11:53pm
LS (mail):
It's possible that neutral is the wrong word to describe one notion of our justice system. But our system is certainly idling when it comes to change, vision, evolution, innovation, and everything else that goes with reducing the prison population.

Legislators, police, attorneys, judges, and all the personnel involved are caught up in their jobs. Everybody's too busy with reacting to the task at hand. Conservatives are tough on crime and liberals have to prove themselves worthy and the prison population rises. Appears to me there's no sense of vision towards something different. The question is, can we do better than maintain the status quo?
5.2.2008 12:12am
Dave D. (mail):
...The public is very intolerant of the use of force, much more so than in the not so distant past. They have no compunction about sending killers and batterers away for a long time. It's not just police brutality that gets the public outraged; all brutality does.
...Lower class black and hispanic communities have a great amount of brutal behaviour exhibited by their young men. As a cop I saw this daily, if you don't live or work there you don't see it in it's abundance. Most of that crime occurs at night and is fueled by intoxicants.
...If you aren't going to imprison these brutes, how are you going to give some respite and protection to the people they victimize ? Probation and parole don't phase them. They do what they want to do, hurt and steal from people, as long as they can. Everytime they get the chance. The won't work, they live on what they can take by force, intimidation and guile. They fear little, certainly not police force and not jail or prison, which they are proud to have acculturated too. They have no skills but theft and violence. They are very ignorant, willfully so, of any other life. They won't listen to you or anyone else and don't give a fig what others think or feel.
...Prison is the cost we pay to keep them away from the victims, almost all their race and ethnicity. Everything else doesn't work and it's been tried repeatedly, because this costs plenty.
..Whats it worth to you that a 12 year old black/brown girl/boy isn't raped/shot/thumped tonight because her mothers boyfriend got sent to prison yesterday?
...Everything else is all folderal.
5.2.2008 1:10am
John Neff:
Oren

10% of the population is about 30 million people committing a jail-able offense each day or about 11 billion per year. Golly that seems like a lot of undetected crimes.
5.2.2008 1:50am
kiniyakki (mail):
I think the number was something like 1% of the population is in jail. My first reaction was: Is that all? It seems to me like at any point in time at least 1% of the population is unfit to live in society, and should be locked up. Hopefully we have the right 1%, but the amount doesn't seem that bad.

Also, an earlier commentator noted that people spend a long time awaiting jail even if they are innocent. For about 75% of the people I see in court, that would be no problem. Too many people are frequent fliers, and if we locked them up for a year at a time - society would not loose. Too many folks like this are a drain on society, a waste, and probably could benefit from a year of sobriety anyways.

Finally - reading over this, this looks pretty harsh. I'll post it, but hope that people don't think I'm a sociopath, and with the disclaimer that I only feel this strongly about 10% of the time.
5.2.2008 2:18am
a knight (mail) (www):
I'm amused that the author lumped Democratic governors from Virginia and Arizona in with "The Political Left". Would analogies about the Political Right based upon former Arizona Republican governor and ex-con, Fife Symington, be a proper generalisation too? Care for some wide-stance potty-peeper humour directed at the political right?

This, because of Symington's former association to McCain, provides a lead-in to a second point: the unequal application of punishment for felony violations of drug law. In the early nineties it became public knowledge that McCain's wife, while head of a medical charity, committed multiple drug felonies to acquire prescription narcotics for her own ingestion. Her serial spree of criminality included fraudulently acquiring and using the DEA numbers of physicians associated with the charity to use on forged prescriptions, and using the names of the charity's employees as the recipients listed on the prescriptions.

In addition to the felonies described above, each pill obtained in this fashion is also a chargeable felony count. There were mandatory sentencing guidelines already in place at that time. Mrs. McCain also lied to news reporters after word of this got out, claiming she had been in rehabilitation, when in fact she had not. Are there super-secret DOJ sentencing guidelines in place providing a 42 step reduction to Congressional Members' spouses that the public should be made aware of? Limbaugh's past addiction to hillbilly heroin was well covered by the media too. The fact is that the penalties meted out for drug crimes in America is far to often based inequitably, predicated on the perceived class of the perpetrator. This is not justice.

To those who argue a race factor based on simple incarceration statistics I offer a contemporary note: Snipes-3 misdemeanor convictions-3 year sentence, even though he publicly stated he was prepared to immediately fully pay his back taxes and penalties.
5.2.2008 2:48am
Richard Aubrey (mail):
a knight. You may have a point, about race. We'll see how Al Franken fares.
5.2.2008 8:44am
hattio1:
kiniyakki says

Also, an earlier commentator noted that people spend a long time awaiting jail even if they are innocent. For about 75% of the people I see in court, that would be no problem. Too many people are frequent fliers, and if we locked them up for a year at a time - society would not loose. Too many folks like this are a drain on society, a waste, and probably could benefit from a year of sobriety anyways.


Wow, just wow. You and the former police officer who believed that young men of color should be locked up so they can't victimize the minority communities really shock me. Take the time to get to know some of the people accused. Better yet, take the time to get to know the people who really are guilty. I've been a defense attorney for a while, and I've met a few that society is probably better of with them behind bars....but precious few. Dont' forget their is a cost to society of having people in jail (and I'm not talking about the actual cost of incarceration). That's another person who can't work, who's kids will probably have to be on welfare, who won't be able to contribute to their family and community. Now, think about whether that is appropriate for someone who used an illegal drug...or worse yet violated probation by not showing up to a PO visit.
5.2.2008 2:21pm
kiniyakki (mail):
hattio1:

First, I don't see anything suggesting race in my post - and to confirm - there is nothing about what I wrote that concerns race. And, in my experience, the people I was thinking of were not minorities anyways. (anecdotal - but that is all my post was meant to be anyways)

Second, I will (and do) take the time to get to know defendants when I see them somewhere other than in court. In a small town, there are plenty of opportunities for that to happen, but remarkably, the only time I see these folks is in court. And when I do see them in public, they are throwing trash out the window of their car, pissing on the sidewalk, yelling at their kids, or doing some other activity that does not contribute to society. But, maybe I'm looking in the wrong place.

Third, the people I am thinking of are the domestic violence offenders who abuse their spouses and alcoholics who keep driving then eventually hurt someone. Lots of times these people use illegal drugs and don't show up for their PO visits too, but I don't think those are the reasons they should be in jail

Fourth, I hope you noted my disclaimer, and took the post in the spirit it was intended. More than a few people feel like this - at least some of the time.
5.3.2008 2:47pm