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John Tierney’s Important New Series: Time and Punishment

| December 12, 2012

This morning, Right On Crime was mentioned in a tragic New York Times story by John Tierney, titled “For Lesser Crimes, Rethinking Life Behind Bars.” Tierney’s article digs into the emerging social science consensus that America’s increase in incarceration over the last few decades helped to reduce crime up to a point but is now producing diminishing returns:

“James Q. Wilson, the conservative social scientist whose work in the 1970s helped inspire tougher policies on prison, several years ago recommended diverting more nonviolent drug offenders from prisons to treatment programs. Two of his collaborators, George L. Kelling of the Manhattan Institute and John J. DiIulio Jr. of the University of Pennsylvania, have joined with prominent scholars and politicians, including Jeb Bush and Newt Gingrich, in a group called Right on Crime. It advocates more selective incarceration and warns that current policies ‘have the unintended consequence of hardening nonviolent, low-risk offenders’ so that they become ‘a greater risk to the public than when they entered.’”

Tierney quotes the University of Chicago’s Steven D. Levitt (an economist who is famous as a co-author of the popular book, Freakonomics) as saying, “In the mid-1990s I concluded that the social benefits approximately equaled the costs of incarceration. Today, my guess is that the costs outweigh the benefits at the margins. I think we should be shrinking the prison population by at least one-third.”

Tierney’s coverage of the social science research is excellent, but he also illustrates his points with a devastating anecdote about Stephanie George, a prison inmate in Florida whose boyfriend hid a lockbox cocaine in her apartment. Due to a mandatory sentence, she is serving life in prison without parole. The sentencing judge was Robert Vinson, a staunchly conservative Reagan appointee who, Tierney reminds us, was the first federal judge to rule “Obamacare” unconstitutional. Judge Vinson’s reflections on the case are interesting:

“The judge…says he still regrets the sentence he had to impose on Ms. George because of a formula dictated by the amount of cocaine in the lockbox and her previous criminal record. ‘She was not a major participant by any means, but the problem in these cases is that the people who can offer the most help to the government are the most culpable,’ Judge Vinson said recently. ‘So they get reduced sentences while the small fry, the little workers who don’t have that information, get the mandatory sentences….The punishment is supposed to fit the crime, but when a legislative body says this is going to be the sentence no matter what other factors there are, that’s draconian in every sense of the word. Mandatory sentences breed injustice.’”

The Times published an accompanying article titled “Life Without Parole: Four Inmates Stories” that discusses four cases similar to Stephanie George’s. In all five cases, the offenders are out of options other than a presidential pardon or commutation. (Of course, as Paul Rosenzweig of the Heritage Foundation pointed out in an important memorandum this month, pardons are increasingly rare: “President Obama’s 22 pardons are but a miniscule fraction of the 200,000 federal prisoners today: Indeed, strictly speaking, since all of President Obama’s pardons have been granted to those who had already served their term of imprisonment, not a single individual has been released from prison by virtue of a presidential pardon in the Obama Administration. By contrast, in the early 1900s, when fewer than 10,000 federal prisoners were incarcerated nationwide pardons averaged roughly 300 each year.”)

Tierney’s two articles are the first in a series on incarceration that he is writing for the The New York Times. Notably, Tierney identifies as a libertarian and is one of the rare voices at the newspaper whose reporting regularly receives plaudits from conservatives. For those who are interested in reapplying conservative first principles in criminal justice policy, his series should be well-worth following.

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VIBRANT P. REDDY is a Senior Policy Analyst for both Right on Crime and the Texas Public Policy Foundation’s Center for Effective Justice. He has authored several reports on criminal justice policy and is a frequent speaker and media commentator on the topic. Reddy has worked as a research assistant at The Cato Institute, as a law clerk to the Honorable Gina M. Benavides of the Thirteenth Court of Appeals of Texas, and as an attorney in private practice, focusing on trial and appellate litigation. Reddy graduated from the University of Texas at Austin with a B.A. in Plan II Honors, Economics, and History, and he earned his law degree at the Southern Methodist University Dedman School of Law in Dallas. He is a member of the State Bar of Texas and of the State Bar’s Appellate Section and Criminal Justice Section.

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