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They Were Just Plain Wrong Then: Just Plain Delusional Now

August 26, 2015

“To treat your facts with imagination is one thing, to imagine your facts is another.”  -John Burroughs



Eric Holder, the U.S. Attorney General, recently unveiled new directives in federal law enforcement purposed to incarcerate fewer people for shorter periods of time, and to release current prisoners more quickly. Prefacing his outlined prescriptions, he observed that “too many Americans go to too many prisons for far too long, and for no good law enforcement reason.”  While “we must never stop being tough on crime,” the Attorney General continued, “We must also be smarter on crime.”


With the nation’s collective incarceration system annually consuming $80 billion, overall crime rates the lowest since benchmarked, and attitudes, particularly related to low-level drug defendants becoming less draconian, several states have already taken similar steps. Moreover, buttressing the Attorney General’s unilateral actions, a bipartisan bill is working its way through Congress to substantially alter the nation’s original mandatory minimum sentencing code.


“Such legislation,” Holder commented, “will ultimately save our country billions of dollars. Although incarceration has a role to play in our justice system,” Holder further observed, “widespread incarceration at the federal, state and local levels is both ineffective and unsustainable.” Of course not everyone agrees with this shifting penal policy. Twenty years ago, University of Chicago economist and Nobel Laureate, Gary S. Becker, in his column for Business Week, wrote the same “lock ‘em up and throw away the key” pabulum as crime control strategy that former federal prosecutor and adjunct Georgetown University Law Center professor, William G. Otis, is regurgitating now in rebuttal to the dawning sanity shift from the horribly costly policy choices of the “war on crime and drugs” era of Just Deserts. And like two decades ago when this convict “audaciously criticized a distinguished professor and Nobel Laureate” for his then (and even more now) boneheaded policy prescription, I am again challenging the establishment’s agent this even more insipid defense of the crushing status quo.


Post hoc, ergo propter hoc


Offering the opposing view to the USA Today’s editorial, “Rethinking mandatory minimums for non-violent drug crimes,” former federal prosecutor Otis commenced his quibbling with the old canard that discretionary sentencing had already been tried, and all that it resulted in was a national crime wave in the 1960s and 1970s that had to be arrested with massive expansion of long, hard prison time. The reasoned reaction to the rampaging, he explained, was the adoption of “strong mandatory minimum sentencing.”  The outcome, Otis asserted, was in crime being cut in half, “significantly” because the country locked up so many criminals (i.e. today the U.S. incarcerates one-quarter of the world’s prisoners out of only five percent of the planet’s population).


The quandary in rebuttal is where to start with this trope?  To begin with there exists serious contradictory evidence that there even was a “crime epidemic” in the 1970s, which was a primary justification for increasing imprisonment rates to unheard of historical levels. The two ways that the government tracks crime rates is by the UCR Crime Index of Statistics collected by local police departments and tabulated by the FBI, and the National Crime Victimization Survey (NCVS) compiled from interviews of household members. The UCR was universally acknowledged to have major biases in the way it gauged crime, and so the NCVS was established in 1973 and is considered a more accurate and holistic view of crime in the United States.


The discrepancies between the UCR and NCVS reporting rates – UCR showing twenty years of ever-increasing crime rates, whereas NCVS reporting steady ever-decreasing ratios – gives pause to consider the upward swing in UCR rates beginning in 1964 corresponded with the first baby-boomer cohorts reaching age 15 (i.e., the beginning of the most crime prone years of 15-24), and this simple demographic bulge swelled all social measures from school enrollments to vaccinations to bicycle accidents and candy consumption, etc. With the baby-boomer gene