The Trojan horse of ‘criminal justice reform’

The Trojan horse of ‘criminal justice reform’
Image via Montgomery Advertiser

Property rights do not enforce themselves. The police enforce them, by arresting thieves and robbers. The cornerstone of any civilized society is protection against violent crime and theft. It is the police who enforce laws against violent crime, by arresting those who violate them. Such arrests only protect the public when the criminal can be imprisoned rather than quickly released. Jailing them is essential. Most criminals have little money saved up, much less the large amount they would need to compensate victims of violent crime. Many criminals can’t even come up with the money to pay petty fines, which is why countless people with criminal records lose their drivers’ licenses for failure to pay such small fines.

So the criminal justice system deters crime from happening in the first place, by giving criminals prison sentences to make would-be criminals think twice before committing a crime. Being imprisoned also keeps criminals from committing more crimes against law-abiding people.

Libertarians used to understand this. While they always opposed the war on drugs and jailing of people for victimless crimes, historically, most libertarians supported incarceration for robbers and violent criminals. Free market conservatives used to strongly support tough-on-crime policies that made premeditated murderers eligible for the death penalty, and gave long prison sentences to many robbers and violent criminals.

Alas, this has changed at think-tanks in recent years. Progressive-leaning “criminal justice reformers” have replaced pro-property-rights scholars in writing about crime, at libertarian and free-market think tanks. “Criminal justice reform” is being used as a Trojan horse to promote a collectivist ideology that devalues individual responsibility in favor of political correctness. These so-called “criminal justice reformers” peddle blame-society approaches to crime that falsely brand the police, the courts, and society as racist, while seeking less punishment for those who rob, steal, and kill.

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These self-proclaimed reformers push soft-on-crime approaches in the name of being “right on crime.” They use conservative and libertarian camouflage to push left-wing policies rooted in contempt for the police and our supposedly “racist” society. They relentlessly push the false narrative that the higher black arrest and conviction rate is due to racism, when in fact, it is due almost entirely to the higher black crime rate. They also falsely claim that longer prison terms don’t deter crime any better than short ones. This claim is at odds with human nature and the law of supply and demand that is the cornerstone of free-market (and also libertarian) economic thought. The law of supply and demand is based on the reality that if you reward something, you get more of it (i.e., higher prices paid to producers), and if you increase the cost of something, you get less of it (e.g., higher prices paid by consumers, or fines or imprisonment for crimes).

“Criminal justice reformers” are peddling Trojan horse collectivist propaganda that ignores how incentives shape human behavior. Their message prizes “staying woke” and being politically correct about racial issues, at the expense of the truth.

If you punish something, you get less of it. If you reward it, you get more of it. This is true in the realm of economics. But it is also true everywhere else, including the criminal law. Longer prison sentences punish more and thus deter violent crime more effectively. Free-market conservatives and libertarian conservatives used to help teach this reality to judges, enabling them to understand the need for long prison sentences for violent criminals. Long sentences incentivize good behavior and individual responsibility.

The classic example was the Law and Economics Center, an academic organization now housed at George Mason University. For years, it provided an intensive, two- to three-week economics seminar for federal judges. Organized by free-market economist Henry Manne, the Economics Institute for Federal Judges featured some of America’s most renowned professors teaching classical economic theories that could be applied to the courtroom. The seminar was offered until 1999, and at its peak, over 40% of all federal judges had attended.

Attending the seminars affected judges’ economic thinking. That in turn changed judges’ criminal sentencing decisions. A left-wing website lamented the seminars’ effectiveness. As it noted:

A law and economics framework promotes theories of incentives, which lends more credence to deterrent effects like additional punishment for crimes than rehabilitation. And judges who took the seminars increased sentence lengths by 7 percent on average. This jumped even more after the 2005 ruling in United States v. Booker, which freed judges from the mandatory constraints of the U.S. Sentencing Guidelines. Even though Manne’s program ended six years earlier, judges who had taken the program appeared to give 20 percent longer sentences, equivalent to 10 additional months in prison.

Interestingly, attending the program had no effect on drug sentences, as opposed to violent and property crimes.

Manne’s program has been described as a “little-known Libertarian training school,” but it plainly provided substantial benefits for crime victims.

But today, self-styled “criminal justice reformers” push for shorter criminal sentences, even when they work for supposedly pro-free-market or libertarian think-tanks. The effect is to undermine protections for property rights and innocent human life.

For example, Arthur Rizer and Marc Hyden write about criminal justice for the largely pro-free-market R Street Institute. But they discount the fundamental role of incentives in deterring crime.

They demand less punishment for violent criminals and falsely brand the entire criminal justice system as racist. They call for the elimination of the death penalty, claiming it is racist in light of the racial “disproportionality in death penalty cases,” and suggesting that “execution rates by race” should “more closely mirror America’s racial makeup.” But it is the disproportionately high murder rate among blacks — not racism — that is the cause of death-row inmates being more heavily black than America as a whole.

The homicide rate is 10 times higher among black teens than white teens. Blacks make up only 13% of the U.S. population. But they constitute a vastly higher percentage of those arrested and convicted for violent crimes. The FBI’s “2017 Crime in the United States,” Table 43, shows that blacks constituted 53.1% of all people arrested for “murder and nonnegligent manslaughter.” Yet, blacks represent only 34.5% of those executed since 1976, even though they committed about half of all murders since then.

Rizer and Hyden appear to believe that punishment rates for a racial group should not be “disproportionate” to its share of America’s population. But that would require racial quotas in punishment, because blacks commit crimes at a higher rate than other races. Punishment quotas violate the Constitution. In 1997, the federal appeals court in Chicago struck down a rule that forbade a “a school district to refer a higher percentage of minority students than of white students for discipline,” calling it an unconstitutional racial quota. (See People Who Care v. Rockford Board of Education).

Disproportionality is not proof of racism: The Supreme Court rejected the “presumption that people of all races commit all types of crimes” at the same rate, as being “contradicted by” reality, in its 1996 decision in United States v. Armstrong. Similarly, the federal appeals court in Richmond said in 2001 that “disparity” in discipline rates does not “constitute discrimination.” (See Belk v. Charlotte-Mecklenburg Board of Education).

Rizer and Hyden also claim that “no evidence exists to suggest that the death penalty serves as a general deterrent to murder.” In reality, the death penalty saves innocent lives by deterring murder, as several studies have found. As the Associated Press noted in 2007, “Each execution deters an average of 18 murders, according to a 2003 nationwide study by professors at Emory University. (Other studies have estimated the deterred murders per execution at three, five and 14).” The death penalty also prevents murderers from killing more people while in prison. A murderer already serving a life sentence has nothing to lose from killing his cellmate if there is no death penalty. Serial killer Darren Witmer is a classic example, who went on to kill again due to the lack of an effective death penalty in his state: He “killed two senior citizens, got locked up,” killed his cellmate, and then “tried to extort money” from a 75-year old widow. He had nothing to lose from committing these additional crimes.

Rizer and Hyden also complain about the supposedly “exorbitant cost” of the death penalty. But if the death penalty is abolished, those costs will just be transferred to whatever remains as the maximum penalty, as lawyers who now file endless appeals against death sentences move on to attacking lengthy prison sentences. In Europe, after the death penalty was abolished, lawyers who previously fought the death penalty simply moved on to successfully attacking life without parole. Lawyers who oppose the death penalty generally oppose any life sentence as well, as illustrated by the flurry of favorable blog posts and tweets by death-penalty lawyers and criminal-defense lawyers supporting a proposal by German Lopez of Vox to limit all prison sentences to twenty years, regardless of how many people the murderer has tortured and killed.

Nothing will appease progressives who believe that murderers should always be given yet another chance to achieve rehabilitation and release, no matter how many murders they commit. They will not stop with attacking the death penalty, and will fight lesser penalties as well, after the death penalty is abolished. In 2013, the European Court of Human Rights struck down life without parole, even for murderers who previously committed more murders after being released from jail. To progressives, crime is the fault of the society that shaped the criminal, not the criminal himself, and so the criminal should be given little punishment, and endless chances to rehabilitate himself. This is no exaggeration: Click on this link to read about a celebrated left-wing criminal-defense lawyer, Clarence Darrow, who was “an early champion of the idea that criminals should not be held responsible for their crimes,” argued that “‘there ought to be no jails,'” and “even suggested that police were the real criminals.”

Other criminal justice reformers also peddle a misleading narrative of racism pervading America’s criminal justice system — like Radley Balko of the Washington Post, who previously wrote about criminal justice for the libertarian Cato Institute. In reality, most state criminal justice systems are racially fair in sentencing, and arrests are typically based on racially-unbiased factors, such as reporting of a crime by a victim of the same race as the perpetrator.

The RAND Corporation statistical expert Dr. Stephen P. Klein and other researchers studied criminal sentencing in California. They found that sentencing was racially fair and non-discriminatory, and that blacks and whites in California who are similarly-situated got very similar sentences. (See Stephen P. Klein, et al., “Race and Imprisonment Decisions in California,” Science, Volume 247, pg. 812 (1990)). Klein was a moderately-liberal researcher who later exposed deception by a GOP education secretary.

Similarly, a 1991 RAND Corporation study of adult robbery and burglary defendants in 14 large U.S. cities found that a defendant’s race bore almost no relation to conviction rates, sentencing severity, or other key measures. In 1994, federal government statistician Patrick A. Langan analyzed data on 42,500 defendants in the nation’s 75 largest counties and found “no evidence that, in the places where blacks in the United States have most of their contacts with the justice system, that system treats them more harshly than whites.” As Langan noted in “No Racism in the Justice System,” “Many studies have been conducted that show no bias in the arrest, prosecution, adjudication, and sentencing of blacks.”

Blacks are convicted of crimes at a higher rate than whites because of the higher black crime rate. It is due to victims reporting such crimes when they occur, not police racism. The police are not making up these crimes. Crime is heavily black-on-black, and black victims of violence crimes disproportionately identify their assailant as black. According to the Bureau of Justice Statistics, most crimes are committed mostly between members of the same race, and this is true for “rape or sexual assault,” “simple assault,” “aggravated assault,” and indeed, “all types of violent crime except robbery,” which is disproportionately committed by blacks against non-blacks. (See Race and Hispanic Origin of Victims and Offenders, 2012-2015).

PolitiFact says that between 2010 and 2013, “92 percent of blacks who were murdered were killed by other blacks.” So being soft on black criminals harms innocent black people most. Higher black arrest rates are due to victims, including black victims, identifying their assailant as black, not police choosing to blame white crimes on black people. As City Journal pointed out:

The victims of violent crime in New York City identify their assailants as black 62 percent of the time. Blacks, in other words, are committing a disproportionate amount of violent crime compared to their representation in the population — and that’s according to the victims themselves.

Jerome Woehrle

Jerome Woehrle

Jerome Woehrle is a retired attorney and author, who writes about politics.