At a time when Democrats and Republicans appear incapable of working together on even the simplest of matters, one area of surprising agreement has been prison reform. Despite Atty Gen. Jeff Sessions’ move last week to reintroduce stiffer federal sentences, there remains a great deal of consensus that America’s staggering prison population needs to be reined in.
And yet, as the Sessions move exemplifies, the effort proceeds in fits and starts.
In 2010, after the earlier passage of bipartisan reform bills, the U.S. prison population did begin to decline. That year, state prisons held 1.4 million people; by 2015 that number had dropped by about 75,000, a decline of 5.5%. But more than half that drop occurred solely in California, in response to a federal court order forcing the state to fix prison overcrowding. Outside California, state prison populations declined by only 2.5%, with 25 states actually experiencing increases.
One reason for those results is that it simply takes time to turn around our sprawling criminal justice system. Another is that there are politically powerful groups, such as district attorney associations and correctional officer unions, that aggressively oppose reforms and land victories such as Sessions’ emphasis on mandatory minimum sentencing.
There are also deeper and more durable barriers to reform. The most important is the powerful asymmetry that permeates our punishment policy: Even smart leniency is politically costly, but severity is not.
In your town or county, it’s politically safer and economically cheaper to charge someone with a felony than with a lesser charge.
This problem is so well known it has a name: the Willie Horton effect. Horton was an inmate in Massachusetts who in 1986 absconded from a weekend-leave program. A year later he brutally raped a woman and assaulted her boyfriend. Horton was an outlier — more than 99% of those allowed to go home on leaves returned without incident. But in 1988, Horton’s case was used in an infamous attack ad launched by George H.W. Bush in his successful presidential campaign against Massachusetts Gov. Michael Dukakis. Although the impact of the ad on the outcome of the election has been overstated, politicians quickly learned its lesson. No matter how successful an “early release” prison program is, one single failure can impose huge political costs.
The Horton effect continues to play out again and again. In 2011, Arkansas passed a comprehensive criminal justice reform bill that caused its prison population to drop quickly by almost 10%. But when a single parolee, Darrell Dennis, committed a murder, the parole board cut back releases so aggressively that by the end of 2013, Arkansas’s prison population had risen 17%, to a new high. It didn’t matter that overall the reforms appeared to be safely addressing the state’s mass incarceration problem; one murder derailed the effort.
California finds itself wrestling with the same sort of political challenge with regard to its prison reforms, especially Proposition 47, which in 2014 reclassified several drug and property felonies as misdemeanors. With little to no evidence, many police chiefs and sheriffs have publicly asserted that upticks in California crime are tied to 47. In February, the murder of Whittier police officer Keith Boyer was initially blamed on Proposition 47, although the man charged in the killing had in no way been affected by the new rules.
In these situations, opposing reform is politically effective and easy, while defending it is difficult and complicated. Chiefs and sheriffs will always be able to point to a shocking crime that was committed by someone who, in the absence of Proposition 47, would still have been locked up for an earlier offense. That crime will provide them with a concise, emotionally powerful attack on the law. Although 47’s defenders can point to those saved from a long prison sentence who haven’t committed further crimes, such stories resonate less, and people will always fear that some act of recidivism is lurking just ahead. In other words, the costs of Proposition 47 will be clear and shocking, while the benefits of keeping more people out of prison — which arguably are far greater for society — are more abstract and tenuous.
This isn’t helped by the American practice of electing prosecutors and judges. Voters tend to be ill-informed about day-to-day trends in crime; they focus instead on those single, memorable “leniency gone wrong” stories, which means elected prosecutors and judges will err on the side of severity, to make sure no surprises — like Darrell Dennis — arise that could do them political harm.
The challenge posed by a poorly informed electorate is then greatly magnified by misaligned budgetary incentives. Police are paid out of the city budget; prosecutors, judges, sheriffs, jails and probation officers are paid out of county budgets. The more defendants they lock up in jail on lesser charges or put on probation, the more expensive for the city and county. Those charged with serious offenses and sent to state prison, however, are on the state’s dime.
Think about it: In your town or county, it’s politically safer and economically cheaper to charge someone with a felony (which sends them to prison) than with a lesser charge. In order to reduce incarceration, we need to change the incentives.
“Realignment” in California is just such an attempt. It forces counties to incur the cost of locking up non-violent, non-serious, non-sexual offenders — such “triple nons” can no longer be sent to state prison, no matter the charge. However, Sacramento recently decided to make permanent the subsidies it had been providing counties to handle their increased costs, undermining what this cost-shifting could have accomplished. And so far, no other state has attempted to address the way local law enforcement can “free ride” on state budgets.
Mass incarceration has crime-reducing benefits, but the numbers clearly show they are dwarfed by its harms to society: astronomical fiscal costs, increased rates of poverty and disease, elevated risks of perpetuating crime in families, and a myriad of other strains. And even in California, which has tried to change its ways — and succeeded to some degree — few steps have been taken to address the underlying political problems that make prison sentences the easy way out. Until we do, our reform efforts will continue to disappoint.
John F. Pfaff is a professor at Fordham Law School. His latest book is “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.”
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