Criminal Justice Reform Involves Tough Tradeoffs

Overshadowed by the tragic and sustained violence of the past several weeks is the encouraging fact that a strong consensus is forming in America on the question of police and criminal justice reform. But any discussion of the ultimate legislative response to this stronger-than-ever consensus should acknowledge the complexities that must confront any search for solutions.

In December 2018, President Trump signed the First Step Act, a bipartisan bill that made incremental but nonetheless significant steps forward in criminal justice reform. A year after passage, an article published by NBC News praised this legislative accomplishment but wondered if the congressional consensus that produced it can hold together. Their concerns were prescient.

More than halfway through 2020, it is fair to say that the bipartisan alliance has been broken. George Floyd’s avoidable death in Minneapolis, and the unrest it unleashed, should have been a signal to Congress to work together. Instead, legislators did the opposite. Partisanship, exaggerated by the intensity of this presidential election season, has killed any chance of further reform this year.

It’s easy enough to assign blame for the failed legislation, but Democrats, who have more to lose politically if Trump signs a new law, appear to be the bigger culprits. After all, it was Democrats and the liberal media who recognized, with their support for the First Step Act, that it was important to make progress even if they couldn’t accomplish everything they wanted—mainly, the release of largely nonviolent offenders. That was then.

What the Republicans offered, rejected by Democrats, represented major changes in federal law and would have been signed by President Trump. Moreover, unlike the First Step Act, which only affected 130,000 federal prisoners and did nothing to address similar issues facing well over 1 million prisoners in state penitentiaries, the Republican bill would have impacted operations in every police department in America.

One of the Republican sponsors of the Senate bill, U.S. Senator Tim Scott of South Carolina, who is black, explained some of the reasons for what was in the bill, and what was omitted, in a surprisingly fair interview for Vox. He claimed that neither the GOP’s Senate bill nor the Democrats’ House bill actually banned chokeholds. “What both bills recognize is that you cannot change local law enforcement by executive fiat,” Scott said.“ “One of the reasons why in our bill, as well as in the House bill, [they] ban the chokehold on the federal level and not a local level is because we can’t.”

A rift of greater substance between the Senate GOP reform and the Democrats’ House reform, because it would have been enforceable on both the state and local level, concerned qualified immunity. On this, Scott said if police officers were held personally liable in civil court for actions they take on the job, “you’re going to end up in situations where fewer officers are patrolling some of the more challenging communities.” Instead, Scott favored lowering the barriers to institutional liability, making it easier to sue police departments and the cities that oversee them.

It is likely that by this time next year, some version of federal police reform will make it through the U.S. Congress, regardless of the outcome of the November election. But police reform is only one aspect of a multifaceted challenge.

Criminal justice in America, and the goals of law enforcement in general, require impossible balancing acts. Pleasing one constituency will enrage another. Protecting the rights of criminals diminishes the rights of victims. The definition of what constitutes a crime is often subjective. Two articles published by American Greatness in the past year bring into sharp relief the immensely challenging broader context in which to consider police reform and criminal justice reform.

Are Heavy Sentences the Only Way to Deter the Drug Epidemic?

The first of these articles makes the case for strong sentences as the only effective way to deter many types of major crimes. It was written by John Litle, a prosecutor operating in rural Ohio, ground zero for America’s worsening opioid epidemic. He describes how the price of drugs has plummeted in recent years, claiming that just four years ago, eight-ounces of methamphetamine would cost between $300 and $350, but today the price for that quantity of meth is down to $60.

Litle describes “industrially produced meth that makes it all the way to low-level distributors as ‘big as your thumb’ crystals, and uncut fentanyl so dangerous that cops don’t dare touch the drugs they confiscate.” He says these drugs, trafficked by cartels, “pour over the U.S. border with Mexico like a raging torrent.” The tragic results by now are known to all—more than 72,000 deaths from drug overdoses in 2017, and in 2018, a slightly lower but still staggering 68,000 deaths. Many times that many lives have been ruined and families shattered by drug addiction.

Here’s where Litle’s article becomes more than just a recitation of the problem. Much more, because the solution he proposes has been tried before, and it worked.

He recalls the largely successful effort by law enforcement, backed up by politicians and the courts, to defeat the crack cocaine epidemic in the 1990s. It worked not by treating crack addiction as a disease, and throwing money at treatment centers which, as he notes, in the best of cases only manage around a 15 percent rate of long-term recovery. Instead, Litle explains how we threw the book at dealers and traffickers. He writes:

We don’t have crack houses all over the place anymore because we took the people who ran the crack houses and we put them in prison for so long that not only would the crack crisis have passed before they got out of prison, but everyone else was forced to stand up and take note of their sentence. Economics is economics. If you ban a substance that has high demand, you must make the risk/reward calculus obvious and simple. The risk of apprehension multiplied by the likely punishment must exceed in value by orders of magnitude the anticipated reward. It must be sufficient to cause them to forego easy money. In the United States, we did that once, and we won the crack epidemic with a combination of punishment and economic opportunity. 

This is the real reason there were successes in the war against drugs. Making the punishment disproportionate to the crime created a deterrent. For every individual dealer or trafficker who received a harsh prison sentence, dozens if not hundreds of potential dealers and traffickers decided to find an alternative way to make a living, and hundreds if not thousands of vulnerable individuals did not succumb to drug addiction.

Litle’s argument is solid. It cuts to the heart of the question of how to set priorities in policing and sentencing. Do we want to continue to lose 70,000 citizens a year to drug overdose deaths, and condemn millions more to a life of drug dependency? 

According to the U.S. Department of Health and Human Services, in 2017 there were an estimated 774,000 methamphetamine users, 886,000 heroin users, over 1.4 million users of hallucinogens such as Ecstasy, and 2.2 million users of cocaine including about 473,000 users of crack cocaine. How many of these millions of Americans are leading lives of drug-induced homelessness, criminality, mental illness, and physical decline? What price are we willing to pay to stop it?

Should it be a crime to sell hard drugs, or not? If so, there is a tough reality we must confront: the only way to stop millions of people from buying these drugs is to punish the sellers so severely that the distribution systems dry up.

The effectiveness of sentencing disproportionate to the crime isn’t limited to drug enforcement. Where should it be applied? Theft? Violence? Today, the only place this disproportionality seems to be in vogue is with respect to “hate crimes,” descending all the way down to speech code violations. But what about all forms of violent crime? It is an unavoidable fact that harsh sentences for violent crimes deter violent crimes. Any criminal justice reform, or “restorative justice” schemes, need to understand the consequences of losing the deterrent value of harsh sentences.

Prosecutorial Reform Is Indispensable 

The second article by Conrad Black, published here last month, titled “The Real Reform We Require,” carries a subtitle that says it all: “Never mind the police. The greatest failing of the American judicial system is the fact that prosecutors have practically unlimited power.”

A businessman and Trump supporter with personal experience with overzealous U.S. prosecutors in the early 2000s, Black claims, “the American legal system is despised by the entire civilized world, with good reason.” He goes on, “it is a conveyor belt to the country’s bloated and corrupt prison system and because of the gross inequality in the ability to make their arguments between the prosecution and the defense, and particularly the obscene corruption of the plea-bargain system, the United States has six to 12 times as many incarcerated people per capita as comparable prosperous democracies.”

Black makes several specific recommendations that bear repeating: 

Prosecutors who willfully withhold exculpatory evidence should be subject to severe penalties. Prosecutors should be stripped of their absolute immunity in cases of clear professional wrongdoing. Prosecutors should be denied the right to guarantee immunity from charges of perjury for those witnesses from whom they have extorted the perjury. The prohibition on the defense advising jurors of those arrangements should be lifted. The defense should speak last to the jury, as in other civilized countries, and not the prosecutors.

Black’s criticism of America’s prosecutorial system is a sobering expose of just how far the reality in America diverges from the ideal. It deserves a close reading. Equally sobering is the fact that much of what Black exposes as systemically corrupt is in some respects in conflict with what Litle describes as necessary to defeat organized drug cartels and deter major crimes.

George Floyd’s death, as Senator Tim Scott put it, has caused a “tectonic shift on the underlying issue of police brutality.” But beneath that underlying issue of police brutality are complex and intimately related issues of how we may realistically expect to deter crime, and how we reform not only the police but also the prosecutors.

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About Edward Ring

Edward Ring is a senior fellow of the Center for American Greatness. He is also the director of water and energy policy for the California Policy Center, which he co-founded in 2013 and served as its first president. Ring is the author of Fixing California: Abundance, Pragmatism, Optimism (2021) and The Abundance Choice: Our Fight for More Water in California (2022).

Photo: Fanatic Studio/Gary Waters/Science Photo Library

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