Criminal justice reform is an odd topic in modern politics, in that it often turns the assumed tribal positions of our two major political parties on their heads. All of a sudden you have Democrats extolling the deep limited-government wisdom of the powdered wig set who ratified the Fourth, Fifth, and Sixth Amendments, and Republicans demanding the State be given bigger guns and more license to use them. This isn’t a bad thing – it means that criminal justice reform is a rare opportunity for bipartisan agreement and compromise, where politicians can (and sometimes even do!) spend a lot of time trying to get the balance right between individual liberty and public safety.
But even when everyone involved is well-intentioned, the debate over such reforms often veers absurdly off the rails, through misleading stats, or because symptoms or mere numbers become goals in and of themselves. And that IS a bad thing.
Earlier this week, the Advisory Commission on the Administration of Justice met to discuss some data being analyzed by the Crime and Justice Institute (CJI), revealing (to no one’s surprise) that our prison population has increased over the years. This sort of thing is usually presented as a per se problem, and evidence that we, as a government and as a society, are doing something terribly wrong.
Except that our prison population hasn’t really increased. Oh, the raw numbers have gone up, of course. But what the CJI study astonishingly didn’t seem to take into account is the increase in our overall population during the same time frame.
In 2008, Nevada’s population was 2.654 million people, and 12,839 of them were in prison. In 2016, 13,757 were in prison out of 2.939 million. In 2017, after emergency reduction efforts driven by space and money limitations, only 13,427 out of 2.998 million Nevadans were behind prison bars. For those without handy calculators, that means the actual rate of incarceration has decreased slightly (0.48 percent in 2008 to 0.47 percent in 2016, and down to 0.45 percent in 2017).
Obviously, when we have major increases in population, we’re going to see more of every type of person coming along with it, including, unfortunately, the bad guys. It’s an issue that has to be addressed in terms of costs, of course, but so are new roads and utility lines and schools and all the rest of the infrastructure of a modern society.
It is simply not accurate to say that “community supervision failures” or increases in the length of prison sentences (factors cited by CJI) are “driving” prison population growth – rather, it is clearly a function of overall population growth. (Indeed, the fact that sentences are getting longer for serious offenses and the prison population is still declining as a percentage of our population shows that we’re doing a much better job keeping the people in prison who deserve to be there while providing incarceration alternatives such as drug court to a greater number of convicts who are amenable to supervision.)
At best, then, this is a dog-bites-man type of story, with some slight improvements (good news!) So why is it being presented to our policymakers as if something has gone terribly awry over the last decade? I reviewed the CJI presentation – in 99 slides full of graphs and numbers, overall Nevada population growth wasn’t mentioned once.
No sane person thinks we should deal with school overcrowding by kicking kids out of school when more families move into town. So why do we go off track when it comes to criminal justice reform?
The other thing missing from the CJI presentation was the impact of incarceration on public safety. I’ve written about this before, but it bears repeating: No discussion of criminal justice reform is meaningful unless that discussion features the impact on public safety as a central goal. So let’s look at those numbers, as CJI did not.
In 1978, the prison population rate was less than half of what it is now – about 0.2 percent. But in 1978, the property crime rate in Nevada was nearly triple what it was in 2014 (the last year of data on the Department of Justice’s Uniform Crime Reporting website). Violent crime was 23 percent higher back when disco ruled, too.
This doesn’t prove there is an exclusive or direct correlation between more prison and less crime. If you look at just the years 2008 – 2014, we saw crime rates drop overall (down 13 percent and 24 percent for violent and property crimes, respectively, and an overall crime rate decrease of 17 percent between 2008 and 2016), even as the prison population rate was more or less flat. But it strongly suggests (and common sense backs up the correlation) that keeping more criminals behind bars is an important component to keeping our communities safer. It also suggests that more intensive supervision for parolees and probationers (and the greater revocation numbers that have naturally resulted, which is one of the “drivers” of the prison population according to CJI) also positively correlates with improvements in public safety.
The bottom line is that the numbers are telling us that we’re doing a lot right.
This doesn’t mean there isn’t room for improvement. Among the issues identified by CJI was our undifferentiated burglary statute (where burgling a car or a house or a store are treated the same) or our relatively low threshold amount of drugs one must possess to trigger mandatory prison sentences for drug trafficking, and there are changes worth considering that could lead to more just outcomes (for both society and offender) in those circumstances. And we still need more mental health services, particularly in our rural counties.
That said, public safety is improving, prison population rates are falling slightly after adjusting for overall population increases, and we continue to enjoy wider acceptance and greater availability of incarceration alternatives like drug courts. Whatever reforms we consider going forward, they must not come at the expense of these successes – which is exactly what will happen if we fail to keep data in its broader context, or if we lose sight of the true goals of our criminal justice system.
Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a deputy district attorney for Carson City. His opinions here are his own. Follow him on Twitter @orrinjohnson, or contact him at [email protected]