Using the Emoluments Clause to sue the President reinforces congressional weakness, and there is a better way.
Unlike the other respondents, I have no real quarrels with the basic premise of Professor Latzer’s thoughtful, if (these days, anyway) contrarian, essay. If I must find a shortcoming with Latzer’s piece, it is that it doesn’t do enough to explain the benefits of incarceration (particularly, though not exclusively those that stem from the incapacitation of high-rate and/or particularly dangerous offenders). So, rather than argue that Professor Latzer got things wrong, I will instead seek to build on, and perhaps strengthen, the counter to the argument (implicit in criticisms of America’s incarceration rate) in favor of achieving the level of decarceration necessary to align our prison numbers with those of the other Western democracies we are so often compared to.
The first point of agreement with Professor Latzer’s essay is on what drives the disparity between the U.S.’s incarceration rate and that of other relatively similarly situated nations—namely that the disparity is a function of differences which, when controlled for, cushion the rhetorical blow that the comparison is usually intended to have. Professor Latzer is spot on in his diagnosis of the most prominent of those differences, which are gun crime, recidivism, and homicides. These three factors, as professor Latzer explains, result in a greater number of lengthy prison stays, which, while not a very common sanction in the U.S., are handed down often enough to explain a visible slice of our country’s higher incarceration rate.
To put a finer note on those differences, compare the whole of England and Wales with some of the more dangerous neighborhoods in the U.S. England and Wales have a combined population of about 59 million people, and currently see 726 homicides a year (based on the year ending in March 2018). Compare that with four contiguous community areas (Humbolt Park, Austin, East and West Garfield Park) on Chicago’s West Side, which, in 2018, saw 121 homicides (16% of the total for England and Wales) despite housing an estimated population of just 189,846 (0.3% of the population of England and Wales). The murder rate of those four community areas (63.73 per 100K) is more than 50 times higher than that of England and Wales (1.23 per 100K). Adding to the mix Baltimore’s Western and Southwestern police districts, which, with a combined estimated population of 103,052, saw 100 homicides in 2018, meaning that a few subsections of just two American cities see 30% of the homicides seen in the whole of England and Wales, despite those subsections having a combined population that (at 292,898) is just 0.5% of England and Wales. In short, things are very different here in the U.S., and those differences do indeed go quite a long way toward explaining (indeed, justifying) the incarceration gap between the U.S. and other Western European democracies.
While the United States has many more neighborhoods like those just described than do countries like England and Wales, it’s important to acknowledge that these neighborhoods are also outliers within the U.S. As researcher John Lott has pointed out, crime is extremely concentrated within the U.S., with just 2% of our counties accounting for 51% of all murder. Criminologist David Weisburd has drilled down even further, finding that “Between 4 and 5 percent of the street segments [in Seattle] account for about 50 percent of [crime] incidents.”
The concentration of crime is one of the most underappreciated phenomena in criminal justice debates. Keeping the reality of crime concentration in mind highlights an important point: any crime increase that results from a misguided shift in criminal justice policy will fall disproportionately on a disadvantaged population already dealing with high crime and poverty rates.
Our second point of major agreement is on the assertion that prison is largely reserved for serious and repeat offenders, as evidenced by (1) the fact that historically, only about 40% of felony convictions in the U.S. result in a post-conviction prison sentence; and (2) the proportion of state prisoners (who account for nearly 9 in 10 prison inmates) incarcerated primarily for violent offenses. However, while the remaining share of the prison population is substantial, it is also, as was pointed out by Professor Latzer, constituted by offenders who would pose a substantial risk to the public if released, given the data on recidivism.
Now, the subset of the prison population primarily incarcerated for non-violent offenses that receives the most attention in criminal justice policy debates is that constituted by drug offenders. Briefly shifting the focus to this group helps to illustrate Latzer’s argument about the risk posed by American prisoners: First, less than 15% of state prisoners are in primarily for drug offenses. Second, these prisoners tend to serve very short stints. Just under half (45%) of state drug prisoners serve less than one year in prison; 20% are out within six months. These two points are relevant insofar as they illustrate how overstated the role of the drug war is in driving up the prison incarceration rate. What often gets taken for granted, however, is the idea that these individuals are largely non-violent. Three other datapoints ought to put this idea to bed. The first two—which can be found in the recidivism study (cited in Professor Latzer’s essay) that found 83% of released prisoners are eventually rearrested—are that (1) more than three-quarters of released drug offenders are rearrested for a non-drug crime; and (2) more than a third of them are rearrested for a violent crime, specifically. The third datapoint comes from Baltimore—one of America’s most violent cities, whose 2019 murder rate surpassed its 1990s high-point—where 7 in 10 murder suspects in 2017 had at least one prior drug offense reflected in their arrest records.
The overlap between violent and non-violent offenders is far from trivial; it’s also essential to understanding the incapacitation benefits attributable to the incarceration of both violent and “non-violent” felons alike.
This brings me to the one shortcoming of Latzer’s piece. It is certainly helpful, indeed necessary, to explain the mechanics of why America’s incarceration rate is so high. But doing so leaves an important question unanswered. That question is: What would happen if we drastically cut incarceration rates to mirror those of the countries the U.S. is so often unfavorably compared?
Part of the answer to this question can be found in the studies assessing the role of the incarceration build-up in the great crime decline that began in the 1990s. As decarceration advocate Patrick Sharkey wrote in his most recent book, Uneasy Peace, “[E]ven the staunchest critics of mass incarceration acknowledge that the expansion of the imprisoned population contributed to the decline in violence.” On this point, he conceded, “there is no longer much debate.” When it comes to the question of how much, estimates vary; but even the left-leaning Sentencing Project conceded that incarceration was responsible for at least 25% of the ‘90s crime drop. Limiting a tool proven to be that potent would not seem to bode well—particularly for the sorts of neighborhoods highlighted in the above comparison with England and Wales.
That hypothesis is not without support, which brings us to another part of the answer, which can be found in looking at Baltimore and Chicago—two cities in states that have decarcerated at a rapid rate in recent years. Between 2016-17, Maryland (whose prison population is driven largely by Baltimore) cut its prison population by 10%. Between 2015–18, Illinois saw the number of inmates from Cook County decline by more than 18%. It’s no accident that in Baltimore, more than a third of 2017 homicide suspects committed their crimes while on probation on parole, despite the average homicide suspect having nearly 10 prior arrests. Nor is it a coincidence that in Chicago, those arrested for shootings and homicides have an average of 12 prior arrests.
Rapidly cutting incarceration rates will mean more repeat offenders on the street than there already are in neighborhoods plagued by violent crime. That can only mean one thing, which is why, as Professor Latzer put it, America has “good reason” to be the incarceration nation.