America has a prison problem. Far too many are incarcerated for far too little. There are so many criminal laws in place, ranging from the silly to the outright absurd, that most Americans will become potential felons during their lives.
To address the problem, though, we must first understand the cause. We must also allow the relevant research on reforms to speak for itself, without ideological blinders.
Reactionaries across the political spectrum have contributed to this phenomenon by outlawing every nonviolent act under the sun that hurts their sensibilities. Over-criminalization is a key reason why the United States has earned the “incarceration nation” moniker.
Even if countries such as China, North Korea, and Russia fabricate numbers, no other developed country comes close to the US incarceration rate. As one FiveThirtyEight columnist put it, America excels at putting people behind bars. One might argue that the US justice system is so efficient that few crimes go unpunished, but there is no pride in jailing people for being on the wrong side of unjust laws.
Consider drug crimes, for example. Given that 29 states have legalized at least medical marijuana and 64 percent of Americans favor full legalization, how can anyone defend a system that makes drug offenders the single largest category in both state and federal prisons? Drug crimes accounted for a third of all criminal filings in federal courts in 2017, and they clogged up valuable resources that could have otherwise addressed violent crimes—not to mention prison resources for many mandatory minimums.
Changes in drug laws can have a big impact on reducing the prison population, as legalization and decriminalization advocates have long argued. The US economy and marginalized communities stand to benefit from this reform, as former felons looking for jobs would no longer be prohibited from applying for occupational licenses in many states. A good step in that direction is the one taken by Seattle, where marijuana has been fully legal since 2012. The city also retroactively vacated marijuana possession convictions and charges.
The same logic applies to prostitution and gambling. As the great Lysander Spooner eloquently argued, vices are not crimes.
The Need to Tackle Thorny Police Abuse
Over-criminalization is but one side of the equation. Elections create perverse incentives for prosecutors, who often hold arbitrary power. There are absurd sentencing guidelines; impossible probation rules; shoddy forensics that lead to wrongful convictions; bail terms that disproportionately hurt the poor; and expensive prisons that don’t rehabilitate and can’t even keep inmates safe.
The police are caught between both over-criminalization and wrongheaded application of justice. While lawmaking (or unmaking) is pivotal to reducing the prison population, law enforcement has long deserved similar scrutiny. It is through the police, after all, that potential offenders are first investigated, apprehended, and sent for prosecution.
The case for police reform hinges on amassing support from conservatives and those who dismiss systemic abuse as a few bad apples. A report by the Texas Public Policy Foundation, home of the Right on Crime project, attempts to do just that and merits praise.
Senior researcher Randy Petersen aptly argues that this should be a top concern in the conservative agenda: “It is not anti-police to hold the view that the only part of our government given the authority to use force against the people is deserving of the same or even higher level of scrutiny and review as the rest of the government.”
The report identifies four areas of policing reform that any conservative should be able to get behind:
- Undo militarization. The current trend of local police stations purchasing armored vehicles and powerful weapons is not something to celebrate, but to fear. The police and the army are two distinct entities for good reason, and military equipment blurs that distinction: “When the arm of government directly responsible for the protection of rights and liberty and its members begin to view themselves not as public servants in that vein, but rather as a military force amidst potential enemies, the danger to a free society should be abundantly clear.”
- Foster local engagement. Policing in America is mostly a local issue. As members of their communities, officers of municipal, county, and sheriff’s departments must command respect and derive their authority from the people. That is why communities must be involved and reforms should be introduced through state legislatures and town councils as grass-roots efforts, not top-down mandates from Washington, DC.
- Raise entry standards. Besides senseless violence and corruption, nothing makes you lose more respect for the police than an encounter with an officer who is physically and professionally unprepared. Higher entry standards can lead to fewer abuses: “An officer who is out of shape, quickly exhausted, with little skill in defensive tactics can more easily justify an escalation of force in a situation given all of the factors present.”
- Tighten legislative targets. Unjust legislation and policies hurt the police who are tasked with enforcing them. They often bear the blame for abuse when they are just following the law, and would be better off with a narrower focus. Of particular importance is overhauling asset forfeiture, which uses the police as a revenue-generating branch for politicians.
Strikingly absent from this report, however, is the matter of police unions. As Steven Greenhut points out in Reason, the unions get in the way of efforts to discipline corrupt officers and often block reform initiatives. All the cronyism and pernicious incentives that conservatives rightly identify in other public sector unions also play out in law enforcement.
Petersen is spot on that police reform “should be a normal function of the conservative movement,” if only to “keep government effective and efficient and within the constraints of the Constitution.” It is also a step towards addressing the incalculable human potential lost to mass incarceration.