May 20, 2016

"If anything, we have an under-incarceration problem."

Said Tom Cotton:
"Take a look at the facts. First, the claim that too many criminals are being jailed, that there is over-incarceration, ignores an unfortunate fact: for the vast majority of crimes, a perpetrator is never identified or arrested, let alone prosecuted, convicted, and jailed," Cotton said during a speech at The Hudson Institute, according to his prepared remarks. "Law enforcement is able to arrest or identify a likely perpetrator for only 19 percent of property crimes and 47 percent of violent crimes. If anything, we have an under-incarceration problem."
My first thought: He wants the Trump VP nomination. That's just offered as a glimpse of my mind, not Tom Cotton's.

ADDED: When he talks about "the vast majority of crimes" for which no one goes to prison, does that include the 3 felonies we all commit every day?

Reference: "You Commit Three Felonies a Day/Laws have become too vague and the concept of intent has disappeared."
Boston civil-liberties lawyer Harvey Silverglate calls his new book "Three Felonies a Day," referring to the number of crimes he estimates the average American now unwittingly commits because of vague laws. New technology adds its own complexity, making innocent activity potentially criminal.

Mr. Silverglate describes several cases in which prosecutors didn't understand or didn't want to understand technology. This problem is compounded by a trend that has accelerated since the 1980s for prosecutors to abandon the principle that there can't be a crime without criminal intent....

63 comments:

Michael said...

My first thought was that Cotton is correct.

AJ Lynch said...

Can't wait to hear the librul argument against Cotton's point. And he is right I think.

Ignorance is Bliss said...

I disagree with Cotton. I have no problem with career criminals and those who engage in significant violence being removed from society for extended periods. But for many, I think we would do better with a punishment that is very unpleasant, publicly humiliating, but over quickly. Bad enough that people will really want to avoid it, but something that will not cause them to lose their job, or take them away from raising their kid.

I say bring back public floggings.

Of course, the optics might be a little touchy when we start getting pictures of a white police officer whipping a black man. So maybe the idea needs a little refinement.

knox said...

Well, certain types of criminals *are* over-incarcerated (nonviolent drug users, specifically). Repeat and violent offenders are under-incarcerated, obviously.

(The cops' inability to catch perps is not the issue; it's the sentencing of the perps police do identify.)

Hagar said...

Before you can "reduce the incarceration rate," I think you need to instill the idea that stealing and violence is just plain wrong, and in a non-pajama boy way.
At preent, we are going the other way and justifying crime as "just reparations," or whatever; it is not the offenders' fault, but the victims'.

Michael K said...

The "nonviolent drug users" are largely a myth as they are a small fraction of federal prisoners.

I think the same is true of state prisons as many serious charges are negotiated in plea bargains.

The most abuses are probably in crimes like rape and assault. Plea bargaining gives the prosecutors too much power but courts are overwhelmed by the crime levels.

MadisonMan said...

Nothing that more money for police can't fix, amiright?

Here's a quote of his I didn't like that I probably take out of context:

Security has to come first, whether you’re in a war zone or whether you’re in the United States of America

Freedom should come first. Thinking of security as paramount leads to such nonsense as TSA.

MikeR said...

The number of people incarcerated should be approximately zero. It makes no sense morally or any other way to keep people in cages. It's a sign of a society that has lost its ability to use common sense.
Ancient societies did not have prisons. It was far too expensive for a poorer society than ours to do something so crazy. They did have hard labor, and executions, and transportation to Australia and such. They did have something we call dungeons, but neither they nor we thought of it as a prison. It was something you did to torture people you hated.

Mr Wibble said...

I say bring back public floggings.

Of course, the optics might be a little touchy when we start getting pictures of a white police officer whipping a black man. So maybe the idea needs a little refinement.


I've been pushing for the same for a while. As for the optics, start with a few minor crimes, such as DUI, that tend to cross racial barriers more in the public mind. Make it an alternative to jail, excessive fines, or other punishment.

MikeR said...

"I say bring back public floggings." "I've been pushing for the same for a while." Okay, I'm in too. As I've seen someone point out, there is no one who would not choose flogging as a punishment over spending three years in jail. No one.

Sebastian said...

"When he talks about "the vast majority of crimes" for which no one goes to prison, does that include the 3 felonies we all commit every day?" Probably not.

Hagar said...

No floggings.

But perhaps a modern version of the "stocks," f. ex. an alternative of sitting for X hours a day for Y days exposed to public view, but protected by a plexiglass screen in front of City Hall, or some other very public site.

"Chaingangs" in orange jumpsuits cleaning up the streets would perhaps also be good; especially in the perps' home neighborhoods.

Ignorance is Bliss said...

Mr Wibble said...

As for the optics, start with a few minor crimes, such as DUI, that tend to cross racial barriers more in the public mind.

That won't help. You could whip 100 white men for every black man whipped, and the photograph would be of a black man being whipped by a white man, with the scene frozen at a moment when the expression on the white man's face appears to be a smile, or a white child in the background is laughing about something unrelated.

Pulitzer Prize winning picture.

Ann Althouse said...

I'd like to see Cotton devote himself to limiting the crimes on the books to the things we really want to see everyone going to prison for committing -- including yourself and your friends and family.

Ignorance is Bliss said...

I'd like to see Cotton devote himself to limiting the crimes on the books to the things we really want to see everyone going to prison for committing...

How about storing classified information on your own home email server? I'd be fine if I, my family, or my friends were sent to jail for that. And we do currently have an under-incarceration problem in that area.

Robert Cook said...

This comment is enough to reveal Cotton is an authoritarian asshole.

Rick said...

ADDED: When he talks about "the vast majority of crimes" for which no one goes to prison, does that include the 3 felonies we all commit every day?

No, since Cotton specifically referred to property and violent crimes. The book Three Felonies a Day refers to crimes people don't understand are crimes. They're mostly regulatory "crimes" and he believes they should be handled civilly if at all.

BDNYC said...

It's possible to have both an over- and under-incarceration problem. We will always have an under-incarceration problem, as defined by Sen. Cotton. There is only so much police and prosecutors can do to capture and punish criminals.

We can and should still address our over-incarceration problem, which is a glaring national embarrassment.

Rick said...

knox said...
Well, certain types of criminals *are* over-incarcerated (nonviolent drug users, specifically).


It's a myth that large numbers of people are in prison for non-violent drug use. These offenders are cited rather than jailed until they commit other crimes.

Michael K said...

"It was far too expensive for a poorer society than ours to do something so crazy. "

Yes. The death penalty was widely used for what we would consider relatively minor crimes. Is that what you meant ?

Less secure societies used execution since incarceration was very hard to maintain.

Birkel said...

Given that Cotton references crimes against property and violent crimes, the Silvergate detour seems unwarranted.

The long-established crimes against people (e.g. assault and murder) include mens rea and are not part of the "Three Felonies" work.

Birches said...

I think we would do better with a punishment that is very unpleasant, publicly humiliating, but over quickly. Bad enough that people will really want to avoid it, but something that will not cause them to lose their job, or take them away from raising their kid.

I say bring back public floggings.


I just finished a book Popular Crime by Bill James that essentially advocates this. He said the law (because of the Warren and Burger Court) swung too far in favor of criminals, but that the reaction against this has been to create these mega prison systems that will never rehabilitate anyone. He thinks prisons should be smaller and categorized by a 1-10 rating system. The ones can keep their jobs (or even get a job), the 10s are too dangerous to let out.

I will add that one area where Sheriff Joe's grandstanding is great is Tent City. People get sent to Tent City all the time, but only for nights and weekends so that they can keep their jobs. I hear (from those directly affected) that it actually works to scare many straight.

knox said...

It's a myth that large numbers of people are in prison for non-violent drug use.

Hmmm, when I google, it looks like it depends on who the source is. But I do see that some studies want nonviolent dealing treated the same as possession. I would disagree with that for sure.

Birkel said...

Damn it, Rick!!

You said it first and better.

I Callahan said...

This comment is enough to reveal Cotton is an authoritarian asshole.

Bob, your knee is jerking again. Try thinking before emoting.

Birkel said...

I Callahan:

Now you're just being mean to the guy who thinks communism would work great if only the "right people" were in charge.

boycat said...

It's a myth that large numbers of people are in prison for non-violent drug use

That depends on the definition of "non-violent." Just about half of all prisoners in US prisons on the state and federal levels are there after being convicted of some sort of drug offense, and selling and distributing would have to always be classified as "violent."

knox said...

Those charged with possession should fry.

Ignorance is Bliss said...

boycat said...

That depends on the definition of "non-violent."

No. It depends on the definition of "use". Selling and distributing don't fall under the definition of "use". You can certainly argue that people shouldn't be in prison for selling and distributing. You can't argue that people who are in jail for selling and distributing are in jail for non-violent drug "use".

mikee said...

The most rigorous studies of criminals have for decades demonstrated that a very small percentage of the US population commits the vast majority of violent crime, with high recidivism post incarceration and multiple crimes before arrest and conviction. Hence "Three Strikes" and mandatory minimum incarceration terms and other extremely punitive laws over the past decades went into effect, increasing the incarceration rate of the US, followed by decreasing violent crime rates since about the mid-1960s. That might even be a cause followed by an effect.

This decreasing crime rate also led to the Butterfield Effect, a reversal of causes and effects, as named by James Taranto of the Wall Street Journal after its eponymous first exemplar, Fox Butterfield. Reporter Butterfield lamented in print the increased incarceration of criminals "despite" the decreasing crime rates.

So it goes, to quote the recently deceased Morley Safer.

prairie wind said...

When crimes are categorized as "violent" even when there was no violence, it's pretty easy to think (or pretend) the prisons are full of violent offenders. If a guy is carrying a gun and never lays a hand on it or shows it when he robs the 7-11, the crime is considered violent simply because a gun was present. Ridiculous laws that categorize crimes in that way are the fault of legislators who are/were caught up in the "tough on drugs" mania that get them re-elected.

Birkel said...

prairie wind:

By that definition you would seem to include B&E as non-violent. As a political argument that is a sure loser.

Fernandinande said...

Blogger Michael K said...
The "nonviolent drug users" are largely a myth as they are a small fraction of federal prisoners.


Only if 46.4% is a small fraction, which it isn't.

Fernandinande said...

Rick said...
It's a myth that large numbers of people are in prison for non-violent drug use.


If 200,000 people isn't a large number:

Fifty percent of federal inmates and 16% of state prisoners were convicted drug offenders. In comparison, 53% of state prisoners and 7% of federal prisoners were serving time for violent offenses.
...
Almost 16% of state prisoners were convicted drug offenders (208,000 inmates), including 24% of all females in state prison (22,000 inmates) and 15% of all males in state prison (186,000 inmates)."

Ignorance is Bliss said...

Fernandinande said...

Only if 46.4% is a small fraction, which it isn't.

46.4% is all drug offenses, not just non-violent drug use.

William said...

I grew up in a housing project and lived a significant portion of my adult life in east Harlem. Some friends and family members suffered significant damage from violent crime. In most cases, the criminals were never caught and, in some cases, the crimes were never even reported........I suppose the way it works is that the criminal gets away with it nine times out of ten, but that he commits more than ten crimes and eventually gets caught. I've known some people whose lives were utterly wrecked by violent crimes. There are few people on earth I have less sympathy for than incarcerated criminals.

Gabriel said...

@Ann:When he talks about "the vast majority of crimes" for which no one goes to prison, does that include the 3 felonies we all commit every day?

I would say he is including the 81% of property crimes and the 53% of violent crimes that he explicitly cited; that right there makes the "vast majority", not the people filling in low places in their yards that turn out to be federally protected wetlands and such.

cubanbob said...

prairie wind said...
When crimes are categorized as "violent" even when there was no violence, it's pretty easy to think (or pretend) the prisons are full of violent offenders. If a guy is carrying a gun and never lays a hand on it or shows it when he robs the 7-11, the crime is considered violent simply because a gun was present. Ridiculous laws that categorize crimes in that way are the fault of legislators who are/were caught up in the "tough on drugs" mania that get them re-elected.
5/20/16, 10:29 AM"

Is this supposed to be a joke? Why bring a gun if there wasn't any intent to use it? The only thing ridiculous is you comment about 'violent' crimes.

cubanbob said...

Fernandinande said...
Rick said...
It's a myth that large numbers of people are in prison for non-violent drug use.

If 200,000 people isn't a large number:

Fifty percent of federal inmates and 16% of state prisoners were convicted drug offenders. In comparison, 53% of state prisoners and 7% of federal prisoners were serving time for violent offenses.
...
Almost 16% of state prisoners were convicted drug offenders (208,000 inmates), including 24% of all females in state prison (22,000 inmates) and 15% of all males in state prison (186,000 inmates)."

5/20/16, 11:11 AM"

Drugs didn't become felonious last year. If you want to argue that drugs shouldn't be illegal that's one thing but the sympathy for those who deal in them while knowing they are illegal is misplaced. Most people manage to live their lives without committing obvious felonies.

Rick said...

Fernandinande said...
[Rick said...
It's a myth that large numbers of people are in prison for non-violent drug use.]

If 200,000 people isn't a large number:

Fifty percent of federal inmates and 16% of state prisoners were convicted drug offenders.


What do you think this is telling you? The answer is: absolutely nothing. That someone is a convicted drug offender does not demonstrate or even imply they were not engaged in violence. If a dealer kills someone defending their drug turf they are included in this number. This is a propaganda statistic.

I believe drugs should be legal for adults. But misinformation campaigns discredit not only legalizing drugs but law enforcement reform generally.

Bruce Hayden said...

What is the empatus behind the claim of over incarceration? I think that a lot of it is from the Black community, and is part of their BLM movement (where most of the poster boys, notably Mike Brown and Trayvon Martin had committed serious violent crimes before dying). It is tragic that the level of incarceration is so high with young black males. But that is mostly putting effect above cause - since their incarceration is lower than the white rate when controlled for crime rates, and esp violent crime rates. Think of it this way (using hypothetical numbers) Young black males may be 3x as likely to be incarcerated, but are maybe 3.5x as likely to have committed a felony, and 4x as likely to have committed murder. In a lot of poor inner city Black communities, the crime clearance rate for the police is low, and even worse for the most violent crimes, such as murder. The tragic part of BLM is that we are seeing the Ferguson effect in many of those communities around the country. Murder rates had been declining over the last couple decades, resulting in rates in some big cities 1/3 or less their highest levels. And that trend seems to be rapidly reversing, with murder rates climbing again in NYC, Chicago, St Louis, Baltimore, all most likely because the police are no longer proactively policing in those communities.

mockturtle said...

Cotton said releasing felons under reduced sentences serves only to destabilize the communities in which they are released.

I think this assertion can be proven. We need to start viewing prison as a protection of society from the 'bad guys' and not a means of rehabilitation [always been a joke, IMO]. Also, we should start using the death penalty [no more plea bargains!] to clear out room in our 'overcrowded prisons'. Firing squad would be cheaper [although the price of ammo keeps going up] than some of this ridiculous lethal injection crap.

David said...

No please not Tom Cotton. How can you team a completely humorless pessimist with the optimistic, good natured and often funny Trump. It will be like matter and anti-matter. KaBoom.

mikeski said...

prairie wind said...
If a guy is carrying a gun and never lays a hand on it or shows it when he robs the 7-11, the crime is considered violent simply because a gun was present.

and cubanbob replied...
Is this supposed to be a joke? Why bring a gun if there wasn't any intent to use it? The only thing ridiculous is you comment about 'violent' crimes.


I was wondering how the robbery was not a "violent" crime in the first place. "I'm gonna put this bag here, you fill it up with cash while I go browse the Doritos... be back in three minutes!"? I'm thinking a robbery requires threats and/or violence to work. "Violent crime" doesn't require that the victim be hospitalized.

But I will agree that the tack-on charges are stupid. Robbery is not a worse crime if you have a shotgun locked in the trunk of the getaway car. Beating the crap out of someone is not a worse crime if the beater is of a less-important SJW class than the beatee.

William said...

Why don't public spirited citizens pull out their smart phones and photograph drug dealers and their street transactions in order to inhibit ithe trade? Not many people consider low level dug dealers non violent.

Fernandinande said...

Ignorance is Bliss said...
46.4% is all drug offenses, not just non-violent drug use.


Which drug offenses are violent? And why aren't they under "Homicide, Aggravated Assault, etc." categories?

Rick said...
Rhat do you think this is telling you?


It's telling me that you were incorrect.

That someone is a convicted drug offender does not demonstrate or even imply they were not engaged in violence.

That is true for people not convicted of anything.

If a dealer kills someone defending their drug turf they are included in this number.

No, they are not. Killing someone falls under "homicide".

Fernandinande said...

http://www.bjs.gov/content/pub/pdf/dofp12.pdf
"Table 11
Most serious offense of offenders in federal prison with a
drug charge, fiscal year end 2012
..... Number Percent
Total 102,012 100%
Violent offense 201 0.2%
Property offense 196 0.2%
Fraudulent 131 0.1
Other 65 0.1
Drug offense 94,194 92.4%
Public order offense 1,061 1.0%
Regulatory 80 0.1
Other 981 1.0"

Glad to have done the homework for all you people talking out your asses.

prairie wind said...

Is this supposed to be a joke? Why bring a gun if there wasn't any intent to use it? The only thing ridiculous is you comment about 'violent' crimes.

I don't know why people carry guns; I suppose there is a long list of reasons. The difference between using a gun and not even touching a gun is significant, something that Second Amendment advocates understand.

The difference between us, cubanbob, could be that you assume that people in prison deserve to be there and I assume that they might be there because the criminal justice system is rigged against the defendant. When over 95% of criminal cases end up in a plea agreement, that means too many cases where the prosecution doesn't have to prove its case. The threat of decades in prison under mandatory minimums would drive the most resolute among us to plead to something--anything--that would let him serve a few years instead. The violent/non-violent designation too often comes from legislators who look for ways to enhance sentences (designating crimes as hate crimes if victim belongs to a protected class, for example) and not from the circumstances of a particular case.

I am not pro-crime but I am very definitely for defendants not getting railroaded.

Rick said...

Fernandinande said...
Which drug offenses are violent? And why aren't they under "Homicide, Aggravated Assault, etc." categories?


Because drug offenses aren't Homicides, etc. Drug offenses are drug offenses. You are switching the the evaluation unit between your evidence and your defense from the person to the offense. This is misleading you.

If a dealer kills someone defending their drug turf they are included in this number.

No, they are not. Killing someone falls under "homicide".


Are you working to misunderstand this? A person incarcerated for killing someone during a drug offense has typically been found guilty of both the drug offense and the homicide. this person appears in the population of drug offenders but was also convicted of a violent crime.

Ignorance is Bliss said...

Fernandinande said...

Which drug offenses are violent? And why aren't they under "Homicide, Aggravated Assault, etc." categories?

I don't know. I found it odd that the table you linked to appeared to treat people in prison as if they were only ever convicted of a single type of crime.

But note that "Violent" crimes and "Non-violent drug use" are not the only two categories. There are other drug offenses besides use. There is manufacturing and distribution. What percentage of the people in prison for drug offenses are there for use, verses what percent are there for manufacturing or distribution?

I saw that ~277,000 people were arrested for manufacturing and distribution ( state and federal combined, arrested, not necessarily convicted. ) I don't know the conviction/arrest ratio, nor the federal/state breakdown. But that could certainly account for a large percentage of ~94,000 drug offense number you give.

Glad to have done that homework for you. Sorry if the talk that comes out of my ass is better informed than what comes from your keyboard.

Ignorance is Bliss said...

And of course, a conviction for manufacturing or distributing could be listed as a more serious offense than some categories of violence.

prairie wind said...

We need to start viewing prison as a protection of society from the 'bad guys' and not a means of rehabilitation [always been a joke, IMO].

The fact is, most prisoners will be released at some point. You want them to return to the community without any attempt to prepare them to rejoin society? You want them to return to their families with no way to earn a living?

I agree with you that rehabilitation is currently a joke. When prisons are crowded, administrators need to spend more money on staff and the number of inmate programs is reduced. It is easier to control a prison population if they are not spread out among classrooms, after all, but society gains if people can leave prison and return to a productive, law-abiding life.

MadisonMan said...

This comment is enough to reveal Cotton is an authoritarian asshole.

Bob, your knee is jerking again. Try thinking before emoting.

His comment actually made me laugh when I parsed "This comment" to mean "This comment (that I am writing right now)" So Cotton doesn't have to say anything, and Robt Cook can write anything to reveal (to himself, at least) that Cotton is an A-hole.

Well, it was funny to *me*. Honest!

(Nothing kills a joke faster than explaining it)

Birkel said...

prairie wind:

There is scant evidence that rehabilitation is anything more than a Leftist pipe dream.

Mobsters who ran numbers or prostitutes were non-violent too. Well, right up to the point of collections or turf fights.

While we might agree that decriminalization is a better option, the idea that those currently illegal crimes are non-violentbis absurd.

mockturtle said...

but society gains if people can leave prison and return to a productive, law-abiding life.

Return to a productive, law-abiding life? How many of these perpetrators were ever really in this category?

Gahrie said...

The fact is, most prisoners will be released at some point.

True..even "life" is rarely life.

You want them to return to the community without any attempt to prepare them to rejoin society?

No, I want prison to be so unpleasant that they decide that they never want to return, instead of a vacation resort that is merely the cost of doing business, and a finishing school.

You want them to return to their families with no way to earn a living?

If they were willing to support their families by earning a living, they wouldn't be criminals.

Gahrie said...

The difference between us, cubanbob, could be that you assume that people in prison deserve to be there and I assume that they might be there because the criminal justice system is rigged against the defendant.

Then why do crime statistics g down when prison populations go up? one of the most infuriating things to me about society today is when people make the argument "we have too many people in prison, and crime statistics are dropping, so we should let some of the criminals out." No you idiots, the reason why crime statistics are dropping is because we have so many criminals in prisons. Don't believe me? Check out crime statistics in California before and after Brown and the Dems decided to start releasing criminals.

When over 95% of criminal cases end up in a plea agreement, that means too many cases where the prosecution doesn't have to prove its case.

If 95% of cases went to trial, you and people like you would be making the argument that the system is unfair because we don't allow criminals to make plea agreements to reduce their sentences.

Gahrie said...

One of the major problems with the criminal justice system today is that most criminals have a higher standard of living in prison than they do out of it.

Get rid of TVs, weight rooms and basketball courts. Bring back chain gangs and books.

As far as I can tell, the only LEO that gets it is Sheriff Joe Arpaio....

Quaestor said...

Harvey Silverglate's 3 felonies a day thing and Tom Cotton's under-incarceration thing are not mutually exclusive. They can both be true. I suspect they are, and both need to be addressed. Silverglate would never argue that average citizens are going about committing inadvertent burglaries and armed assaults. Nor does Cotton have in mind illegal file sharing when he says we have too many felons at liberty.

hombre said...

A modest estimate is that at any given time, at least 60% of the convicted felons in this country are serving their sentences on the street. It's called probation or parole.

hombre said...

Prairie wind: "When over 95% of criminal cases end up in a plea agreement, that means too many cases where the prosecution doesn't have to prove its case. The threat of decades in prison under mandatory minimums would drive the most resolute among us to plead to something--anything--that would let him serve a few years instead."

Nonsense! Judges are required to establish that there is an admission of guilt and a factual basis for every plea. In rare cases, the judge may waive the former provided that the latter is sufficient to justify doing so (Alford plea).

When I prosecuted we took 20% of our cases to trial. The biggest whiners about the policy were the defense attorneys followed by the judges and our liberal newspapers. Plea bargaining is driven by excessive prosecutor workloads and defendants who prefer not to be held strictly accountable for their conduct.

The evil of plea bargaining is not that defendants are held accountable for things they didn't do, but that they escape accountability for things they did do. Obviously!

mockturtle said...

The evil of plea bargaining is not that defendants are held accountable for things they didn't do, but that they escape accountability for things they did do. Obviously!

Obviously! And I still haven't recovered from the fact that Gary Ridgeway, aka, The Green River Killer, got a plea bargain just for disclosing the location of one or two of his 50+ victims. That the death penalty was not invoked in this case is appalling. And infuriating!

cyrus83 said...

The federal prison incarceration list is misleading by itself since violent and property-related crimes usually do not fall under federal jurisdiction unless there is some circumstance that would bring the feds in like crossing of state lines, bank fraud, or something else that would make it a federal case. Drug offenses on the other hand are federal crimes, hence why it is the main cause of federal incarceration.