It’s not drug crime that drives mass incarceration, it’s violence. And that’s a much harder problem to solve. Democrats generally agree that to end mass incarceration we must stop punishing drug crimes, especially for marijuana, so harshly. During the most recent Democratic presidential debate, for example, Vice President Joe Biden argued that we shouldn’t send people to prison for drug crimes. Senator Cory Booker then talked about marijuana enforcement and “marijuana justice.” Governor Jay Inslee discussed pardoning people with drug convictions, while Representative Tulsi Gabbard criticized Senator Kamala Harris for sending people to jail for marijuana crimes when Harris was the district attorney in San Francisco, and Harris defended herself by saying she favors not just decriminalization but legalization of marijuana.
But in their rush to sound strong on criminal justice reform, the candidates left out one important fact.
Drug crime is not what’s driving the high prison population in the United States. It’s crimes of violence. And this omission has consequences. It means that any “solution” is unlikely to achieve its intended goal and in the meantime society will continue to suffer long-term damage—physical, psychological and economic—from a persistent cycle of unaddressed violent crime.
The numbers are unambiguous.
For all the attention we pay to people convicted of drug crimes, they make up only 15 percent of our state prison populations. Over half the people serving time in state prisons have been convicted of a violent crime; half of those convicted of violence—or more than 25 percent of all prisoners—have been convicted of the most serious crimes: murder, manslaughter or sexual assault. Senator Booker (rightly) disagreed with locking people up for life on drug charges, but that’s something that really happens only in the relatively small federal prison system. In state prisons, which hold nearly 90 percent of the nation’s 1.5 million prisoners, almost 95 percent of inmates serving long sentences have been convicted of serious violence, not drugs; about half or more of such inmates were convicted of murder or manslaughter.
All this actually understates the extent to which it is our response to violence, not drugs, that drives mass incarceration. That 15 percent number means that 15 percent of the people in prison were convicted of a drug crime; the underlying facts might be more complicated. Someone, say, arrested for assault and found to have drugs on him at the time of the arrest might agree to a deal in which he pleads guilty to just the drug charge. In the data, this person shows up as a “nonviolent drug offender,” even if the prosecutor demanded prison time on the drug offense only because of the uncharged violence.
This feature actually lurks in the aggregate national data. The share of people in state prisons for drugs did not really start rising until the mid-1980s, and it then began to decline in the early 1990s. These trends seem far more closely linked to patterns in violent crime—particularly the sharp spike in violence in the mid- to late 1980s and then its steady decline over the 1990s and 2000s—than to changes in drug laws, enforcement or use. ADVERTISING
Moreover, the significant role that violent crime plays in boosting prison populations is not just the result of the longer sentences imposed on those convicted of such crimes, although that matters (especially for homicide cases). Violent crimes increasingly explain the total number of people we admit to prison every year, as well. In fact, as of 2011 (the most recent year with good data), state prison admissions for violent crimes were about 15 percent larger than those for drug offenses, a gap that has surely grown in recent years as we continue to reduce sanctions for drugs but not violence.
Now, to be clear, sending fewer people to prison for drugs is a good idea. Incarceration—especially in the cruel, brutal places that American prisons are—is inarguably harsh and counterproductive for drug cases, even if we accept (as many now no longer do) that drugs, including marijuana, should remain illegal.
But any sort of substantial reduction in prison populations means eventually changing how we punish violence, and unfortunately much of our “drug” talk actually undermines such efforts. We should push to send fewer people to prison for drugs, but we have to do it in a way that doesn’t make the inevitable focus on violence more difficult.
This is why the back-and-forth in the debate bothered me. Criminal justice outcomes are driven primarily by city, county and state policies; the federal government’s direct role is generally quite slight. But the messaging power of nationally televised debates, not to mention the president’s bully pulpit—can matter quite a bit.
And the focus in the debates on drugs likely did more harm than good. Americans already remain quite reluctant to change how we punish violence, in no small part because they misperceive the importance of drugs. A 2016 poll by Vox, for example, reported that a majority of Americans incorrectly think about half (not 15 percent) of people in prison are there for drugs. Compounding that misperception, Vox reported, a majority of liberals, moderates and conservatives alike said they did not favor reductions in prison time for people convicted of violent crimes but who pose little to no risk of re-offending. Are they less inclined to treat one-time violent offenders more leniently because they erroneously believe high incarceration rates can be solved by dealing with drug crime alone? I would argue that is exactly what’s happening. It’s understandable that people would reach for a solution that avoids having to deal with complex issues about, say, victims and safety.
Hearing the candidates debate drug policy but ignore violence only reinforces the public’s sense that drugs are central to mass incarceration and that violence is not an issue we need to confront.
Both takes are wrong.
Now, of course, given the public’s reluctance to think about violence, there’s some risk to the politician who runs ahead of the pack to talk about it. But that, then, just creates a nasty vicious circle: The public doesn’t want to change how we address violence, so no politician is willing to talk about how we need to change the way we address violence, so the public never learns that we need to rethink our approaches to violence, so attitudes stay fixed. And we remain mired where we are.
And to be clear, changing how we approach violence is not just numerically justified, but actually good policy. The data consistently shows that tough prison sentences provide little additional deterrence over far less aggressive approaches, and often that spending more time in prison actually elevates the risk of future violence and offending, thanks to the traumatic nature of American prisons. Time spent in prison also undermines well-documented pathways out of violence, such as forming stable long-term relationships and gainful employment. And more and more research highlights programs that reduce violence and victimization in more effective—and humane—ways.
On top of being ineffective, prisons impose a vast array of poorly estimated but quite staggering social costs. Each year in prison can reduce life expectancy by up to two years. Prisons impose severe financial and emotional hardships not just on the inmate but on his family and children and friends. Incarceration undermines parenting and relationships, and it is often a vector for diseases and STDs. In some cases, we’ve sent enough people from a single area to prison that it alters the social and economic dynamics of entire neighborhoods.
Furthermore, a growing number of victims themselves increasingly say that they would prefer policies that focus less on harsh punishment and more on the root causes of crime. One recent survey of hundreds of crime victims, for example, reported that six in 10 favored more spending on prevention and rehabilitation and less on prisons. The growing (if still nascent) popularity of restorative justice programs, which aim to bring together victim, injurer and the broader community to work out how the injurer can make amends—even in cases of serious violence and even homicide—also points out how even those most affected by violence often resist the punitive policies we currently use.
Here’s a final example of just how vast our prisons are, and just how unavoidable violence is to any discussion of criminal justice reform. If we freed everyone in prison tomorrow except that 25 percent who are there for murder, manslaughter or sexual assault, we’d still have an incarceration rate higher than that of almost every European country. Any effort to normalize our outsize reliance on incarceration will have to move past drugs. And we need leaders who are willing to help us get there.