Why law enforcement can't take the lead on ending mass incarceration

A high-profile group of lawmakers have come out in support of reducing the prison population. It isn't enough

Published November 16, 2015 12:57PM (EST)

  (Reuters/Eric Thayer)
(Reuters/Eric Thayer)

Police and prosecutors agree that a prison and jail population of roughly 2.2 million, an archipelago nearly equivalent in human size to Queens, is too high, according to the high-profile chiefs and prosecutors who joined Law Enforcement Leaders to Reduce Crime and Incarceration. The new group wants to reduce mandatory minimum sentences and provide the mentally ill and addicted with treatment instead of jail because locking someone up "can kickstart a cycle of incarceration that turns first-time offenders into repeat offenders."

“As the public servants working every day to keep our citizens safe, we can say from experience that we can bring down both incarceration and crime together,” stated Chicago Police Superintendent and Law Enforcement Leaders Co-Chair Garry McCarthy. “Good crime control policy does not involve arresting and imprisoning masses of people. It involves arresting and imprisoning the right people. Arresting and imprisoning low-level offenders prevents us from focusing resources on violent crime. While some may find it counterintuitive, we know that we can reduce crime and reduce unnecessary arrests and incarceration at the same time.”

These men and women control arrests and prosecutions, the points of entrance to our gargantuan carceral state. They now claim that the United States, in the name of controlling street violence and discouraging illicit intoxication, has gone too far and imprisoned too many.

It's a propitious moment given that legislation to soften some federal mandatory minimum sentences has strong bipartisan support inside of Congress and out. It's also a perilous one. Some in law enforcement have propagated the idea of a so-called "Ferguson effect," providing narrative structure to a simmering backlash against Black Lives Matter and providing talking points in the Republican primary.

The debate over criminal justice reform is not governed by a simple dichotomy dividing law-and-order types and radical prison abolitionists. Cops and prosecutors, like activists, have different ideas and conceptions of an ideal system. Take the National Association of Assistant U.S. Attorneys, which has rolled out a major campaign to fight the Congressional legislation, warning that any relaxation of harsh sentences will lead to a surge in crime.

The differences are present within police departments too, places of unparalleled rumormongering, backbiting and intrigue over promotions, discipline and yes, weighty policy matters. It can sometimes be hard to disentangle which side advocates progress: Police unions often fight even modest reforms but it is the brass and politicians who make the policy-level decisions dictating systematic programs like stops-and-frisk and broken windows.

The new pro-reform law enforcement group's vision for reform is limited and the call to focus on "arresting and imprisoning the right people" has huge pitfalls. For one, they do not embrace ending the drug war which, by definition, would require the currently very-hard-to-imagine task of ending drug prohibition. And not just marijuana, but all drugs.

As the Global Commission on Drug Policy has has stated,

"Ending the criminalization of people who use drugs is vital, but it does little or nothing to address the harm associated with illicit drug markets...Without legal regulation, control, and enforcement, the drug trade will remain in the hands of organized criminals. Ultimately this is a choice between control in the hands of governments or gangsters; there is no third option in which drug markets can be made to disappear."

Sentencing reform is important. But government will still be fighting a drug war as long as many drugs that people want can only be sold by criminals.

The group also makes no call to reduce sentences for violent offenders. Instead, it suggests the opposite: easing up on nonviolent criminals will allow for a real crackdown on true bad guys. There is no mention of even the most obvious reforms, like dealing with harsh life without parole sentences for so-called felony murder—e.g. people involved in a crime like robbery, sometimes in a relatively minor capacity, that ends with an accomplice committing a killing. Tinkering around the edges of sentences for nonviolent drug offenders will not end mass incarceration. The U.S. incarcerates such an extraordinary number of people because we typically punish people more harshly for every sort of crime. Drug offenders made up just 16-percent of roughly 1.3 million state prisoners, according to December 2013 estimates. 53-percent were serving sentences for violent crimes.

It's clear that by and large, the law enforcement vision for reform has its limits. That includes the hard lines drawn in their home offices and departments, where some members of Law Enforcement Leaders have clashed with activists and resisted reforms. New York Police Commissioner Bill Bratton, for one, helped wind down the city's one-time massive stop-and-frisk dragnet. But he has stood firm on promoting broken-windows enforcement, the targeting of small-time crimes in the hope that doing will prevent major ones from taking place.

In Chicago, critics say that Cook County State Attorney Anita Alvarez has fought efforts to free the wrongfully convicted. And Police Commissioner Garry McCarthy, a co-chair of Law Enforcement Leaders, has called for longer mandatory minimums for illegal gun possession.

The call to stop "arresting and imprisoning low-level offenders" so as to focus "on violent crime" is seductive given the devastation wrought by gun violence. But it could very well lead to shorter sentences for one crime being replaced by longer sentences for another—and to prisons remaining full and violence continuing unabated.

Congress and state legislatures wrote the laws that created harsh mandatory minimum sentences and prohibited drugs, and they have the power to undo those laws too. But police departments and district attorneys have extraordinary discretion over how the criminal justice system is applied on the ground. Police can institute better eyewitness identification procedures, as they have in Philadelphia, or curtail stop-and-frisk, as they did (under great legal and political duress) in New York. Prosecutors can stop sending petty criminals to prison, cease using the threat of harsh mandatory minimums to coerce guilty pleas, reject police testimony that is likely perjured, and commit to seriously examining cases of the wrongfully convicted.

Law enforcement reforms, including support for pending congressional legislation, will no doubt help. Meanwhile, law enforcement rhetoric often proves damaging.

In recent weeks, FBI Director James Comey and DEA chief Chuck Rosenberg, two of the Obama Administration's top law enforcement officials, lent credence to the so-called "Ferguson effect," which posits that public scrutiny is scaring police from doing their jobs and resulting in a violent crime surge. The problem with this idea, aside from its implication that police cannot do their job without violating civil rights, is that there is no evidence of a nationwide violent crime surge. What there is evidence of, however, is the fact that conservative pundit Heather Mac Donald mostly invented this concept in a May Wall Street Journal opinion piece. New York's Bratton has lent some credence to the Ferguson effect, as have Chicago superintendent McCarthy and Mayor Rahm Emanuel.

The persistence of the "Ferguson effect" idea is unsurprising. It is a lie that succinctly accomplishes a lot of political work. It frames police as the real victims, reaffirms the historic association of black protest and black crime and, generally, forcefully asserts that police are a thin blue line standing between society and chaos.

The "Ferguson effect" has no empirical basis. Instead, it is a political effort to rewrite reality and block reform.

Law enforcement support for congressional legislation to curb harsh mandatory minimum sentences could prove politically decisive. And that's a good thing, because the proposal, however modest, will  make some incarcerated peoples' lives substantially better by freeing them sooner. But law enforcement leaders, particularly those who fight reforms at home, cannot lead the movement. The clear and comprehensive proposals that are necessary to end mass incarceration will come from the communities it has devastated.

By Daniel Denvir

Daniel Denvir is a writer at Salon covering criminal justice, policing, education, inequality and politics. You can follow him at Twitter @DanielDenvir.

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Law Enforcement Mass Incarceration Police Prison Industrial Complex