As we’ve noted here previously, the BBA has a long-standing position opposing the imposition of mandatory minimum sentences. This Tuesday, June 9th, we’ll have the opportunity to express that opposition to members of the Legislature’s Joint Committee on the Judiciary, as they hold a public hearing on a variety of bills dealing with mandatory minimums.
First, though, in the run-up to that hearing, an important event was held this past week at the State House that also relates to the issue. The Criminal Justice Reform Coalition hosted a public forum to explore possible reasons behind the historic decrease in crime the nation has experienced over the past two decades, with rates of both property and violent crime roughly half what they were in 1990.
As you may know, this decrease has coincided with an equally-dramatic increase in the populations of our state and federal prisons and jails – up 61% in that same time-frame (though it has leveled off since the turn of the century). It is tempting, perhaps even instinctive, to draw a straight line between the two – and indeed many have argued that by locking away more individuals, we have prevented them from committing crimes that would otherwise have taken place … case closed. That may seem like a common-sense interpretation. But the evidence strongly suggests otherwise.
At this week’s forum, Lauren-Brooke Eisen, Senior Counsel at the Brennan Center for Justice at New York University, presented findings from her empirical research demonstrating that increasing incarceration – a phenomenon driven to a great degree by mandatory minimums — long ago reached the point of diminishing returns. The exhaustive paper she co-wrote on this topic, What Caused the Crime Decline, was published in February and shows that this incapacitation of potential future criminals accounts for a mere 5% of the drop in crime seen in the 1990’s, and accounts for none of the drop in the years since.
It turns out that as more and more people are incarcerated, each additional inmate is, on the whole, less and less likely to commit another crime in the future. And in fact, putting him or her in jail – rather than using community corrections, probation, monitoring, and other alternatives – can actually increase the likelihood that the inmate will recidivate upon returning to society. This is because incarceration (a) introduces an individual to more-hardened criminals; (b) presents roadblocks to successful re-integration; and (c) disrupts his or her family, personal, and professional lives – all while too often failing to treat underlying problems with substance abuse, mental health, or frequently both.
So if we didn’t solve – or at least greatly reduce – our crime problem of the late 20th century by jailing more people, then how did it happen? Here the picture is a bit murkier. Eisen and her team looked at 14 causes that have been theorized – ranging from the abatement of the crack epidemic to increased access to abortion services to decreased childhood exposure to environmental lead. But in the end, they found that they could identify only four significant factors:
- Changing demographics that result in a smaller share of the population within the prime cohort (15 to 30 years old) for engaging in criminal behavior.
- Declining alcohol consumption.
- Increasing household incomes and perhaps the concomitant reduction in unemployment levels.
- New policing models (namely, use of data-analysis tools such as CompStat) along with a hike in the numbers of police.
Still, they determined that even these causes, taken together, could account for only about one-third of the drop in crime. The reasons behind the remaining two-thirds remain unknown – perhaps to be the subject of further study. The report concludes that considering the immense costs of mass incarceration, programs that improve economic opportunities, modernize policing practices, and expand treatment and rehabilitation programs, could all offer a better public safety investment.
Where does this leave us? Well, with regard to mandatory minimums, this new paper certainly strengthens our case against them: If they are not helping to reduce crime, then why are we removing discretion from the trial judge, whose job it is to determine the best sentence – both for the offender and for society – based on the unique circumstances of each case and each individual? If they extract a fiscal, economic, and social toll by separating workers from jobs and parents from children (consider that 1 in 28 children in America have a mother or father who’s behind bars), then why are we insisting on longer sentences than defendants would otherwise receive — at a cost of upwards of $40,000 per year to house, clothe, feed, and care for them?
These are some of the questions the BBA, and others, will be raising at Tuesday’s Judiciary Committee hearing. We hope this will be an important step on the path to sentencing reform during this legislative session, and we will continue to update you as it progresses.
— Michael Avitzur
Government Relations Director
Boston Bar Association