Critics of prison-building programs often argue that no additional capacity is needed because many of those currently incarcerated are low-level drug offenders or first-time nonviolent criminals who might safely be released into the community. In fact, as the relevant data clearly show, for over a decade now the justice system has been working overtime to keep all but the most dangerous and deserving criminals outside the prison gates.
For starters, consider that between 1980 and 1994, the nation’s state and federal prison population increased from 319,598 to 999,808. Over the same period, however, the number of convicted criminals out on probation or parole increased from 1.3 million to more than 3.6 million. Adding in those in local jails, on any given day, for every three incarcerated, seven convicted offenders were doing time on the streets with little or no supervision.
Indeed, in 1991 alone some 45 percent of state prisoners were criminals who, at the very moment they committed their latest crimes, were on probation or parole. While under supervision in the community, these prisoners had committed at least 218,000 violent crimes including 13,200 murders and 11,600 rapes (more than half of the rapes against children). (And, by the way, between 1977 and 1993 more than 400,000 Americans were murdered, but only 226 convicted killers were executed and only 2,713 remained on death row.)
Based on a scientific sample representing 711,000 imprisoned felons, Lawrence Greenfeld of the U.S. Bureau of Justice Statistics has shown conclusively that fully 94 percent of state prisoners had either committed one or more violent crimes (62 percent) or been convicted more than once in the past for nonviolent crimes (32 percent). Comparable national data stretching back to the 1970s make plain that over 90 percent of prisoners are violent or repeat criminals.
The state-by-state data tell the same tale. For example, in 1990, Harvard economist Anne Morrison Piehl and I studied a large sample of the Wisconsin prison population. We found that in the year before they were imprisoned, these prisoners committed a median of 12 crimes, excluding all drug crimes. In 1993 we studied a large sample of New Jersey prisoners and found exactly the same thing—they committed a median dozen crimes a year, again excluding all drug crimes. (Empirical studies by analysts at the National Bureau of Economic Research and elsewhere indicate that the average number of non-drug crimes that prisoners commit when free may be higher than twelve a year.)
Of course, the truth about who really goes to prison in America can be known only from detailed, case-by-case, rap sheet-by-rap sheet analyses of those behind bars.
For example, several blue-ribbon panels have asserted that the growth in California’s prison system since 1980 has been driven largely by the return to prison of mere technical parole violators (released felons who simply failed a urine test or failed to show for a date with their parole agent). But when UC-Irvine scholar Joan R. Petersilia dug into the records on the 84,197 adults admitted to California prisons in 1991, she found that only 3,116 (fewer than 4 percent of total admissions) were, in fact, technical parole violators. The rest were guilty of serious violations of the terms of their parole or had committed new crimes.
What about mere drug offenders behind bars? While federal convictions for drug-related crimes skyrocketed between 1980 and 1993, at the state level, the number of persons incarcerated for violent crimes grew at 1.3 times the growth in imprisoned drug offenders. Moreover, as a recent study funded in part by the National Institute of Justice correctly observes, “the label ‘drug offender’ is a misnomer.” As the study notes, the term implies “a degree of specialization not supported [by a body of research] on individual offending patterns,” which shows plainly that drug offenders “commonly commit other types of crime, most notably robbery, burglary, and violent offenses.”
For example, in a forthcoming Wisconsin Policy Research Institute (WPRI) study of the complete adult and juvenile criminal histories of prisoners from Milwaukee, WPRI analyst George Mitchell and I find that 91 percent of these urban criminals had one or more convictions for a violent crime. First-time drug offenders were less than 2 percent of the population. The imprisoned drug offenders had multiple arrests, bouts on probation, and adult and juvenile crimes, including auto theft, burglary, robbery, retail theft, domestic violence, sexual assault, drunk driving, jumping bail and, of course, drug dealing too.
Let’s look at some real-life typical cases, two who went to prison with their latest conviction for a drug offense, the other incarcerated for a property crime. The first “drug offender,” sentenced to five years for possession of illegal drugs with intent to distribute while armed, had, as an adult, scored three prior arrests and one incarceration (including at least one for a violent crime) as well as parole and probation violations—this following on a juvenile record that included armed robbery as well as unarmed robbery and auto thefts. The state’s presentence investigation reported that the subject did not “express any remorse or emotion for being involved in criminal activity [and] totally lacks self control . . . . Probation was of minimum significance to him.” Another, sentenced to 1.8 years for delivery of cocaine had been arrested five times (and incarcerated twice) as an adult for burglary and robbery as well as drug possession and, as a juvenile, for third degree sexual assault and theft.
The “property offenders” had similarly checkered careers. One, having already earned 17 arrests and five prison terms for forgery, burglary and theft as an adult, had most recently distinguished himself by severely assaulting an elderly priest while robbing him. “Subject admitted he had been consuming alcohol and smoking cocaine prior to the offense,” according to the prison intake report when he began serving his three-year sentence.
And that’s just what’s on their official records! Swept entirely under the rug are all the more serious crimes that imprisoned drug offenders have plea-bargained away, not to mention all of the wholly undetected, unprosecuted and unpunished crimes they may have done.
Also, the fact is that virtually all drug offenders behind bars are in for drug trafficking, not mere possession. In 1991, for example, only 703 (2 percent) of the 36,648 persons admitted to federal prisons were in for drug possession. Almost all imprisoned drug traffickers, federal and state, have long criminal records, adult and juvenile. Only their latest or most serious adult conviction is for a drug offense. There are exceptional cases of truly first-time, non-violent, low-level drug offenders who end up behind bars. But they are the exceptions that prove the rule: that anyone who thinks U.S. attorneys or big-city cops focus their enforcement energies against petty drug criminals must be either statistically illiterate or smoking something.
Moreover, it is not the case that inmates are doing lots of hard time under horrible conditions. Despite the enactment of mandatory minimum laws, between 1985 and 1992 the average maximum sentences of prisoners declined about 15 percent from 78 months to 67 months. In 1992 the actual time served by felons whose latest conviction was for a violent crime was only 43 months counting both prison time and credit for time spent in jail before sentencing! Among other things, this helps to explain why fully a third of all violent crimes committed in this country are committed by known criminals whom the system has repeatedly had in hand but repeatedly let go.
Thanks to new prison construction, overcrowding has abated since the 1980s. About a dozen states are now under capacity. In many states, half or more of each prison dollar is spent on inmate medical services and rehabilitation programs, not security basics. To our nation’s credit, most prisons are now well-appointed medium-and minimum-security facilities (well-stocked libraries, computers, and more), not old, dungeon-like maximum-security joints. Let most average Americans tour a representative sample of the nation’s prisons, including the newer maximum-security prisons, and, believe me, most of them will not exit fretting about prisoners’ rights.
But what about the effects of new get-tough measures like the “three strikes and you’re out” law approved by California voters in 1994? Contrary to all the dire expert predictions, in its first 20 months, the law put only 1,020 career criminals behind bars. One of them was the much-publicized pizza thief.
What you didn’t hear, however, was that the pizza thief had a criminal history dating back to 1985. He was convicted of five serious crimes inside a decade. He was granted probation five times in five years. At one point he moved to Washington State—and was promptly arrested. During his crime spree, he used eight aliases, three dates of birth, four Social Security numbers, and cocaine and PCP. His third strike occurred when he (standing 6 foot 4) and another man intimidated four children in a shopping mall, stole their pizza, and walked off laughing. He was not sentenced to life; he is eligible for parole. As one California official quipped, like other felons convicted under three-strikes, this one was already doing life on the installment plan. The law simply reduced the number of future installments and the number of future victims.
How can a non-criminal-justice-maven inoculate himself or herself against false claims about who really goes to prison? It’s simple. When prospective employers or graduate schools ask for an undergraduate’s grade point average (GPA), they want to know the average across all courses the student has taken, not just their latest or best grades. By the same token, rather than accepting the usual bogus generalizations about drug offenders or non-violent offenders behind bars, demand to know an imprisoned felon’s CGPA—criminal grade point average. Demand to know the totality of the adult and juvenile crimes committed by imprisoned felons against life, liberty, or property, not just their latest or best grades in plea-bargaining 101.
Of course, there are things we should do to prevent today’s at-risk youth from becoming tomorrow’s superpredators—most notably, by contributing our own time and effort to the street-level, church-based programs that seem to do best in putting kids on the road to decent lives. But make no mistake: It is both morally right and socially necessary to imprison known, adjudicated, violent and chronic offenders, adult and juvenile. In the end, the truth about prisoners complete criminal histories will prevail—and the truth will set very few prisoners free.
President-elect Bolsonaro has embraced tough-on-crime measures that egregiously violate basic human rights and eviscerate the rule of law. Responding to Brazil’s 63,880 homicides in 2017, Bolsonaro calls for increasing protection for police officers who kill alleged criminals and arming citizens. He calls for further militarizing urban policing, reducing the age of criminal liability from 18 to 16, reinstating the death penalty, authorizing torture in interrogations and imprisoning more people... Brazil’s police are already notorious for being one of the world’s deadliest in the use of force. In many favelas, Brazil’s retired and current police officers operate illegal militias that extort and control local communities, murdering those who oppose them and engaging in warfare with Brazil’s highly-violent gangs and in social cleansing. Bolsonaro is simply threatening to turn the rest of the police into state-sanctioned thugs.