A ‘first step’ toward what, exactly?

Perhaps the question regarding criminal justice reform is better posed as “a ‘first step’ away from what?” The answers to either of those questions may differ slightly depending on whom you ask about the recently proposed, Trump-backed FIRST STEP Act. But, the common thread across the bipartisan coalition behind this particular reform effort is that the bill (they hope) is the first in a series of steps away from “mass incarceration.”

Mass incarceration has become one of those phrases so cooked into the national discourse about crime and policing that in many quarters it is simply taken for granted that we actually have a mass incarceration problem. And in many cases, important questions about proposed reforms can get glossed over when the problem they’re seen as being designed to correct is so widely regarded as one of basic morality.

{mosads}Mass incarceration very much has become one of those issues. But, as was pointed out in The Hill earlier this week, this bill would have a tiny impact on the size of our nation’s prison population — a population, we’re told, is just too darn high.

However, the buzz surrounding this legislation provides an opportunity to clarify the terms of the debate on mass incarceration. And perhaps the best place to start is how we define the problem. I submit that for the application of the term “mass incarceration” to be apt, reformers must establish that we over-incarcerate. That is, in essence, that the number of people in prison who don’t belong there is larger than the number of people outside of prison who do. That case can’t be made without coming to terms with the fact that there is an enormous amount of serious crime that goes unanswered for every year.

In 2017 alone, there were 8.9 million “index “ crimes reported to the FBI. The clearance rate for the 1,247,321 violent index offenses (murder, rape, robbery and aggravated assault) reported to the FBI was 45.6 percent, leaving more than 678,000 violent crimes unsolved. And just 17.6 percent of the 7,694,086 property index offenses (burglary, larceny-theft, motor vehicle theft, and arson) reported were “cleared,” leaving a total of almost 7 million serious property and violent offenses unanswered that year alone. Despite what you’ve heard, these are the sorts of offenses for which most U.S. inmates are serving time.

According to the Bureau of Justice Statistics, in 2016, 74.4 percent of all prisoners in the United States were serving sentences for one of just 11 offenses: murder, manslaughter, rape, sexual assault, robbery, assault, burglary, larceny, car theft, fraud, “other” violent offenses, and weapons violations. Just 15.2 percent of them were serving time for drug offenses (only 3 percent for drug possession).

When one considers that (1) most criminal cases are pleaded out (meaning that many prisoners likely did something worse than their official conviction might indicate); (2) there is a significant amount of overlap between drug dealers and violent offenders; and (3) the general public may not be all that keen on doing what it would take (releasing a significant number of violent felons) to put a dent in the prison population, it becomes less clear whether de-incarceration is a public policy good unto itself. So why does it seem that so many people operate from this presumption?

There is no doubt there are aspects of our criminal justice system in need of reform. But the costs of embarking on the road toward de-incarceration would be real — and likely quite high. So, perhaps the best “first step” would be to come to terms on exactly who shouldn’t be in prison and why; and from where I’m sitting, that debate seems far from settled.

Rafael A. Mangual is a fellow and deputy director of legal policy at the Manhattan Institute for Policy Research. Follow him on Twitter @Rafa_JDoc.