What is the optimal level of incarceration? Writing for the Niskanen Center, SUNY Albany professor Shawn Bushway argues that this isn’t a question we can answer scientifically. But we do know enough, he claims, to conclude that incarcerating more people won’t make us safer. Considering the horrific murder of Iryna Zarutska by a 14-time offender and the debate it has sparked on sentencing of chronic felons, Bushway’s article is timely.
It’s also wrong. It remains a fundamental truth of criminal-justice policy that to strengthen public safety, the highest-propensity offenders must be incapacitated. By returning to the well-established solution of repeat-offender sentencing enhancements, states can protect communities from the few individuals who victimize the most.
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Though Bushway concedes that a small portion of the population accounts for a disproportionate amount of all crime, he claims that “we are not very good at sorting people with records into those who will offend more in the future and those who will not.” In other words, if we tried to distinguish between “high-rate” offenders—the 20 percent of all offenders who commit nearly 60 percent of all crime—and the remaining 80 percent of “low-rate” offenders, we would be unable to incapacitate the first group effectively without locking up many in the second group.
It’s true that most predictive reoffending analyses perform poorly. But it’s also irrelevant. The criminal justice system is grounded not in predictions but in fact. We may not know whether a criminal on his first offense will go on to be a high-rate or low-rate offender, but we will know once he goes on to commit additional crimes.
Challenging this, Bushway identifies the “confounding problem of age.” He admits that an individual with five prior offenses at 25 is likely a high-rate offender. But someone with five prior offenses at 45 is not a high-rate offender, he maintains.
For most offenders, the objection holds: the rate of offending usually peaks in the mid-twenties and tails off later in life, following the so-called age-crime curve. For the most persistent criminals, however, the peak crime age can come as late as the fifties.
Bushway also concedes that people who commit crimes neither specialize in the kind of crime they commit nor progressively build toward more serious offenses. For example, prisoners released from a property-crime conviction were about as likely to be rearrested within five years for a violent crime as those previously incarcerated for a violent offense. Two-thirds of drug offenders released from prison were rearrested for a non-drug crime within five years.
Why is this important? Because it means that a person’s criminal history is predictive of future offending, regardless of the specific character of the earlier crimes. A long criminal history is enough to lock someone up.
Nearly half of all prisoners have ten or more prior arrests, yet only 5 percent of the population will go to prison in their lifetime. Policymakers must focus on stopping that 5 percent.
Achieving this goal is simple: to reduce crime victimization, incapacitate those who commit the majority of crimes. Repeat-offender enhancements can achieve this goal.
Society should impose these enhancements based on the offender’s prior convictions, thus dispensing with “predictive analysis.” Let the convicted criminal’s record speak to his likelihood to reoffend after release. An offender with multiple prior felonies of any class, or with a limited number of more severe felonies, should receive sentencing enhancements that apply the maximum term of incarceration of the class of felony above the class with which he is convicted. For example, a defendant with sufficient priors charged with a Class III felony would face the maximum penalty of a Class II felony, if convicted.
Chronic misdemeanants—those who steal from stores, drive recklessly, are publicly intoxicated, and the like—should also receive enhanced punishments for repeated offenses. If the sum of the maximum sentences of the defendant’s prior convicted misdemeanors, regardless of actual time served, exceeds a certain length, that defendant should be charged with a felony. These penalties should be applied such that offenders must serve their full term of incarceration in prison, without eligibility for reductions or suspensions of their sentence.
Some districts are still represented by prosecutors and judges inclined to let criminals off easy. That’s why repeat-offender enhancement laws should include clauses allowing citizens to petition for the removal from office of any criminal justice official who fails to apply these enhancements to eligible offenders, as determined by a finding of fact by the state’s supreme court.
Some point to post-incarceration recidivism rates to argue that prison doesn’t work. In fact, prison achieves its primary goal—incapacitating criminals so that they cannot commit additional offenses—quite effectively. We’ve had enough experimenting. It’s time to return to what we know works. Incapacitating repeat offenders reduces crime.
Photo by PATRICK T. FALLON/AFP via Getty Images