End Mass Incarceration By Freeing Low-Level Offenders? It’s Not That Easy


The U.S. mass incarceration problem is not due to mandatory minimum sentences for low-level drug offenders, argues New York Times columnist David Brooks. Brooks notes that fewer than one in five inmates in state prisons, which house most of the population behind bars, are drug offenders. The share of people imprisoned for drug crimes is dropping sharply, down 22 percent between 2006 and 2011. There are many mandatory minimum sentence laws, but Fordham University law Prof. John Pfaff says that the average time inmates serve has not changed much. Roughly half of prisoners have terms in the range of two to three years, and only 10 percent serve more than seven years. “The laws look punitive, but the time served hasn't increased, and so harsh laws are not the main driver behind mass incarceration, either,” Brooks says.

Pfaff believes that prosecutors are getting more aggressive. Twenty years ago they brought felony charges against one in three arrestees. Now it's something like two in three. That produces a lot more prison terms. Brooks says that some politicians and activists suggest that eliminating mass incarceration is easy: release the pot smokers and the low-level dealers. In reality, he says, it means releasing a lot of once-violent offenders. Commenting on Brooks’ column, Douglas Berman of Ohio State University says on his Sentencing Law and Policy blog that, “The relative simplicity of securing drug convictions (and of threatening severe sanctions for those who fail to plea and cooperate) has made it much, much easier for prosecutors to turn more arrests for drugs and many other crimes into many more charges and convictions.”

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