Is criminal justice reform misfiring?

This is the era of criminal justice reform. States across the country are reexamining criminal justice policies with an eye toward addressing the ignoble distinction the US holds of claiming astronomical incarceration rates far out of line with those in other developed countries. We even make repressive regimes like Russia and Cuba look like softies by comparison.

With the US home to only 5 percent of the world’s population but almost a quarter of all its prisoners, both the left and the right have seized on the issue in recent years. The left claims justice has run off the rails under our increasingly sanction-driven system, while conservatives have said the overreliance on incarceration runs against the grain of the philosophy of limited government and is a costly budget buster.

But the gathering consensus that we must make changes to criminal justice policy may be bringing everyone together to focus on the wrong solution. That’s the conclusion of Fordham Law School professor John Pfaff. He argued in a recent essay in the Wall Street Journal that the focus of reform advocates on non-violent offenders and mandatory minimum sentences for drug crimes is missing the fact that the bulk of the increase in incarceration in the US over the last several decades is attributable to the jailing of those convicted of violent crimes.

He says just 16 percent of the 1.3 million people in state prisons (where the vast majority of inmates are held) are there on drug offenses, while more than half were convicted of violent crimes. If we released everyone in state and federal prison serving a drug sentence, he writes, the US would still have 1.25 million people behind bars, an incarceration rate four times higher than in 1970.

“If we are serious about ending mass incarceration in the US,” writes Pfaff, “we will have to figure out how to lock up fewer people who have committed violent acts and to incarcerate those we do imprison for less time.”

in yesterday’s Globe Ideas section, Pfaff tells reporter David Scharfenberg that it’s understandable that reform efforts initially focused on the politically safer territory of nonviolent drug offenses. But he says we have to be willing to move beyond that, to the more uncomfortable question of reducing sanctions for violent offenses, if we are serious about reducing the country’s extraordinarily high prison population.

It’s important grist for the mill as Massachusetts lawmakers prepare to consider major criminal justice reform legislation this session. The reform deliberations have been guided by a review of criminal justice policies led by the Council of State Governments, which has aided several dozen states in revamping criminal justice laws. Advocates have already expressed concern that reforms might be too focused on probation and parole services after sentences are served and not on changing sentencing practices themselves. Even those criticisms, however, have largely followed the cautious path of arguing for elimination of mandatory minimum drug sentences for nonviolent offenders.

Few are raising questions about cases like the one spotlighted last fall in CommonWealth involving an 18-year-old Dorchester youth who faced a mandatory 18 month sentence when he was caught carrying a loaded handgun. Tim McManus, who had no prior convictions, was on pretrial probation for 18 months before his case was heard. During that time he finished high school, started a job training program, and complied with a strict curfew while wearing a GPS monitoring device. But none of that was able to mitigate his sentence once prosecutors decided against reducing the charge based on his pretrial conduct. Serving time in jail, research shows, increases the odds he will end up back there.

MassINC, the publisher of CommonWealth, has called for comprehensive reform, including of sentences for violent crimes.

Sen. William Brownsberger, cochairman of the Legislature’s Joint Committee on the Judiciary, has acknowledged the outsize impact of convictions for violent crimes on incarceration rates. Brownsberger told CommonWealth last fall that said he’d favor examining all mandatory minimum sentences in the upcoming legislative review. But it’s not clear he’ll get much support for such an effort.

As Scharfenberg points out, even former president Barack Obama, despite saying it’s time to address the issue of mass incarceration, faltered when it came to the nitty-gritty of what it would take to put a real dent in incarceration rates and sounded the same refrain as others about focusing on nonviolent drug offenders.



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