America’s Real Injustice: Under-Incarceration

America has a severe under-incarceration problem, and almost no one seems willing to addresses it.


The following is converted from a speech delivered to the Centennial Institute at Colorado Christian University as part of Young America Foundation’s Logan Family lecture series on December 6, 2021.

Criminal gangs are looting stores all over the West Coast. Violent crime is on the rise all over the country. Assault is up. Rape has spiked 20% in recent years, according to the FBI. And the number of homicides jumped 30% in just one year from 2019 to 2020, according to the FBI and CDC. That’s the largest increase in at least 115 years and possibly ever.

Just two weeks ago, a 13-year-old boy was shot in the neck while walking to school in the Bronx. His attacker was out on bail from a gun charge just a few months earlier, which he committed while out on parole for another gun charge. So a little boy took a bullet to the neck because — twice — the authorities in the criminal justice system failed to do their jobs and lock up a thug for his crimes.

A couple of weeks before that, Edmond Harris became the fiftieth person arrested in Chicago this year for murdering, attempting to murder, or shooting someone while out on felony bond. Harris had already been arrested on February 12 after allegedly crashing a carjacked SUV. For some reason he was not charged with any crime related to the carjacking or the crash and was instead charged only with “failure to register as a sex offender in an unrelated matter,” which itself is a felony. But then again, Harris was released after only a few days on a $1,000 bond. Then, according to federal prosecutors, five weeks after posting bond, Harris killed a 31-year-old Uber driver in yet another carjacking. A 31-year-old Uber driver, just trying to make a living, is dead because authorities in the criminal justice system refused to do their jobs and lock up a thug for his crimes. 

Then, of course, two weeks ago, we saw the horrific Christmas parade attack in Waukesha, Wisconsin, in which a man mowed down 60 innocent people, killing six, including an eight-year-old boy. The driver was a career criminal. His rap sheet goes back at least 22 years. His social media posts reveal him to be a black nationalist who recently encouraged people to “start bakk knokkin white people TF out.” Much as he dislikes white people, he seems especially to hate the Jews, about whom he says “Hitler was right” and “did the world a favor by killing Jews.” All of this — his rap sheet, his lack of rehabilitation — is publicly available. At the time of the attack he had several open felony charges for things like recklessly endangering safety, battery, and domestic abuse. And still, he was able to commit the Christmas parade massacre because two days earlier, the leftist district attorney in Milwaukee, John Chisholm, let this monster out of jail on $1,000 bail. Now 60 people are injured, and six people are dead.

America is in desperate need of criminal justice reform. America desperately needs to lock up more criminals and keep them locked up longer.

It seems so obvious. When crime goes up, that means there are too many criminals on the streets. And yet many politicians seem to have drawn exactly the opposite conclusion. Over the past few years, leftist politicians have called for “defunding the police,” “abolishing the police,” and even “abolishing prisons.” 

Congressman Rashida Tlaib just recently reaffirmed her support for emptying federal prisons within 10 years. Jonathan Swan, a reporter at Axios, asked Representative Tlaib just recently if she really thought that not a single person should remain in federal prison. What about rapists, murderers, serial killers? She refused to back down. In the eyes of Tlaib — and her squad-mate Ayanna Pressley and a number of other Democrats as well — every criminal needs to be released from federal prison.

Now, I have come to suspect this sort of thing from the Left. Letting criminals off the hook is par for the course for them. What I did not expect was that the Right would go along with it. But unfortunately, that is exactly what has happened. Otherwise-conservative politicians have come to echo the Left’s claims of “overincarceration.” Even President Trump — one of the strongest conservative politicians to come around in my lifetime, a man I greatly admire and for whom I voted twice — even Trump endorsed a jail-break bill, “First Step Act,” as one of his administration’s signature achievements. But America does not have an “overincarceration” problem. On the contrary, America has a severe under-incarceration problem, and almost no one seems willing to addresses it.

The proponents of the “overincarceration myth” usually begin by pointing out that America has the highest prison population and the highest incarceration rate in the world. As if the fact that we imprison lots of people somehow proved that we imprison too many people. As if leading the world in prisoners were necessarily a bad thing. But America leads the world in lots of categories.

We lead the world in GDP. Must we therefore conclude that the U.S. makes too much money? We lead the world in military might. Does this mean therefore that the U.S. is too strong? We lead the world in immigration. Does this mean that we take in too many immigrants? (Actually, we probably do take in too many immigrants, as poll after poll shows most Americans believe.) But I doubt that the liberals pushing the “overincarceration” myth think that! And the immigrants themselves, by the way, clearly don’t believe that America is some sort of dangerous slave state of gulags and prison camps. If they did, they probably wouldn’t be so keen on coming over. In fact, I suspect America’s historic ability to keep people safe by keeping criminals off the streets is a big attraction for many immigrants who hail from more dangerous countries.

The relevant question for criminal justice is not how many people we have in prison but rather how many people we have in prison for the right reasons. If American prisons were full of innocent people or people convicted on trumped-up charges — political dissidents, for instance, like we see in Communist China — that would be one thing. But America does not imprison many political dissidents. In fact, as far as I can tell the only political dissidents America is presently imprisoning on trumped-up charges are the eccentrics who made a mess of the Capitol rotunda last January. Many of those guys are currently being held in solitary confinement. But generally speaking, a handful of exceptions aside, America’s prison inmates are at most serving punishments that fit their crimes, and more often they’re serving far more lenient sentences than their crimes demand.

One of the most common arguments put forward by proponents of the “overincarceration” myth is that our prisons are teeming with people whose only crime is simple possession of drugs. But this is not the case. As the Hudson Institute has observed, just 3.6% of states inmates are in the can for drug possession offenses of any kind, including heroin. When you look at federal prisons, that number drops to just 0.9%. And even those numbers are misleading because drug traffickers often accept plea bargains in which their charges are reduced to something less serious, such as possession. In 2014, the most recent year from which Hudson compiled its data, the number of inmates sentenced to federal prison for marijuana possession was just 75. Not 75,000. Not 7,500. 75. And who knows how many of them pled down?

A full 97% of federal inmates in the clink for drug offenses are there on trafficking convictions, which is not as “non-violent” as many liberals and libertarians claim them to be. Last year, for the first time in history, an estimated 100,000 Americans died of drug overdoses. America had already been in the throes of an overdose epidemic so deadly that it’s reducing the average American life expectancy, and then overdose deaths spiked 30% in just one year.

These traffickers peddle poison, often to innocent kids. And still, by the way, they make up less than 20% of the combined state and federal prison population. Even the Prison Policy Initiative, which seeks to reduce the prison population, admits that most prisoners are in jail for more serious crimes. Offenses against the public order: weapons crimes, driving while intoxicated, that sort of thing. Property crimes: burglary, theft, carjacking. And violent crimes. Even the Prison Policy Initiative admits that the majority of state prison inmates are there for committing violent crimes: assault, robbery, rape, and murder. And state prisons comprise the vast majority of inmates—more than five-and-a-half times as many as federal prisons.

So robbers, rapists, murderers and the like make up the majority of inmates that the “abolish prisons” crowd wants to let out of state penitentiaries. And still that does not fully convey the severity of America’s underincarceration problem because, as Sen. Tom Cotton pointed out earlier this year, most crimes are never even reported to the police. In 2019, just 41% of violent crimes, 34% of sexual assaults, and 32% of property crimes were ever reported. Of those that were reported, just 61% of murders, 33% of rapes, 24% of arsons, and 14% burglaries and auto thefts resulted in an arrest. Data on convictions are even more difficult to track down, but according to the Bureau of Justice Statistics, considerably fewer than 10% of violent crimes result in a conviction. Which means that the vast majority of criminals — even violent criminals — get away with their crimes. 

But even the relatively small group of criminals who do see the inside of a jail cell generally do not have to see it for very long because very few inmates serve their full sentence. Virtually all of them get out early. The situation had become so egregious by the 1990s, when prisoners were serving on average just 44% of their sentences, that legislators began to pass “truth in sentencing laws” to keep offenders in the clink — if not for their entire sentences, then at least for a little while longer. And in recent years, the “overincarceration” crowd has been doing its best to dismantle even those modest reforms.

In 2016, the median time served in state prison for drug trafficking was just 17 months. Burglary? Also 17 months. Fraud — a sin so destructive that Dante puts its practitioners in the lowest regions of Hell — just 11 months. How about rape? 4.2 years. Even murder, the worst crime you can commit, will likely get you less than thirteen and a half years in the slammer before your first release, according to the Bureau of Justice Statistics.

So most crimes are never reported, most reports don’t lead to arrest, most arrests don’t lead to conviction, and the relatively few criminals who are convicted almost never serve anywhere near their full sentence. Something has clearly gone wrong in our justice system. Not only do the punishments not fit the crime; they don’t come anywhere close to fitting the crime. How did this happen?

It happened because we no longer understand the meaning of the word “justice.” The Left, of course — there are lots of things the Left doesn’t understand. But many on the Right as well. 

Justice is a moral quality or habit which perfects the will and inclines it to render to each and to all what belongs to them. In layman’s terms, it means getting what you deserve without favor. It is the most important of the four cardinal virtues. And because justice is so important to the way we understand ourselves and society, cultural revolutionaries who want to upend our traditional society want to redefine justice to mean its opposite. They want to redefine justice to mean getting what you do not deserve because you are favored, or being deprived of what you do deserve because you are disfavored.

According to this new theory of justice, which is actually injustice, the way to figure out the proper punishment for a crime is to look, not at the crime itself but at the characteristics of the criminal: race, sex, political affiliation, and so on. So BLM and Antifa spend six months robbing, burning, and killing people from sea to shining sea, and their crimes will largely be excused and swept under the rug as a “mostly peaceful protest.” In the Bronx and Manhattan, most BLM rioters arrested last year have had their charges greatly reduced or dismissed altogether. Meanwhile, right-wing demonstrators who entered the Capitol last year — they have had the book thrown at them. Even though their crimes were nowhere near as grave as the crimes of BLM. According to the Left, BLM and Antifa are the good guys, Trump supporters — whether they showed up to the Capitol or not—are the bad guys, and the details of their actual transgressions don’t really matter all that much.

When the Left thinks about “criminal justice reform,” it begins by looking at the personal attributes of the people in prison. “There are too many” of this type of person; “not enough” of that type of person. “Such-and-such type of person,” they say, “is overrepresented in prisons” vis a vis their representation in the broader population. But this sort of thinking gets the issue backwards. A coherent view of criminal justice would not begin with the appearance of the prisoners but with the crimes that got them thrown into prison in the first place.

But the Left’s backward view of criminal justice goes even deeper than their typically crass racial and sexual narratives. It expresses a misunderstanding of the purposes of criminal justice, of which there are five: retribution, restitution, incapacitation, deterrence, and rehabilitation. Of these five, our morally impoverished society today seems only to recognize the last one: rehabilitation. We think the primary — the only — purpose of criminal justice is to rehabilitate criminals. 

Now rehabilitation is a fine goal. But it’s not the main point of criminal justice. If rehabilitation were the primary purpose of criminal justice, then prisons would be much fuller than they are today, and they wouldn’t necessarily be full of criminals. None of us is perfect. We could probably all use a little rehabilitation. Maybe I smoke a few too many cigars. Maybe you have a few too many drinks. Maybe someone gambles a little too much. We all stand to benefit from a little rehabilitation, but that does not justify throwing everyone in prison.

How about incapacitation — stopping bad guys from being able to hurt people? The same principle holds. If we really wanted to reduce crime in the streets, there’s an easy way to do it, and that would be to lock up not only the people who commit crimes, but also people who are likely to commit crimes in the future. Social science has armed us with a litany of risk factors for criminality. If “incapacitation” were the primary purpose of and justification for criminal justice, we could just lock up anyone who checks enough boxes, whether they’ve actually committed a crime or not. That doesn’t seem very just either.

The same principle holds for restitution. If restitution — returning to people what is taken from them — if that were the primary purpose of criminal justice, then it wouldn’t matter how victims of burglaries and thefts were made whole. It would make no difference whether restitution were paid by a criminal or by some functionary of the government. Again, that doesn’t seem very just. And then we get to deterrence. Again, the same principle holds. If the civil authorities picked a handful of citizens at some and put their heads on pikes around town, that probably would deter crime. It would at least show that the authorities meant business. But that doesn’t seem very just either.

Which leaves us with retribution. Today retribution has become so unfashionable a justification for criminal justice as to be almost unmentionable. It sounds so old-timey. So judgmental. So mean.

But, contrary to the confusion of modern liberals, the retributive view of justice is actually the most coherent, the most compassionate, and the most humane because retribution alone on that list entails actually having committed a crime. Retribution simply means punishment for doing something wrong. No wrongdoing, no retribution. Retribution more than any other purpose of punishment relates to the reality — the truth — of crime and justice. And because it refers to the truth, the libs hate it.

The leftist political project revolves around a denial of truth. We see this most clearly in the Left’s present crusade to make us all pretend that men are really women and that babies aren’t really babies. But we see it elsewhere too. We see it in the boast, popularized by John F. Kennedy not “to see things as they are and say ‘why,’ but to dream things that never were and say, ‘why not?’” — a line that Kennedy borrowed from the socialist playwright George Bernard Shaw without realizing that Shaw had put it in the mouth of the Serpent in the Garden of Eden. (Kennedy had a bad habit of quoting great works that we had never taken the time to read.) We see this instinct to deny reality in the whole project of political correctness, which attempts to redefine reality by changing all the words.

But nobody benefits from denying the truth. And the attempt to divorce “criminal justice” from the reality of crime can only end badly. Already, political reforms that put the cart before the horse in criminal justice have made our country less safe and less just. Now, as crime spikes throughout our nation, it is time for a new kind of reform, which happens to be the simplest and tried-and-true policy available to us: lock up more criminals.

The views expressed in this piece are the author’s own and do not necessarily represent those of The Daily Wire.

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