Debating State Sentences for Violent Crime: How Tough is Tough Enough?

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Following a surge in many types of violent crime in 2020 and 2021 that has only recently begun to ebb in some places, many state legislatures, especially in southern states, have passed or are considering policies that are designed to result in longer periods behind bars for those convicted of serious violent crimes. Policy proposals include imposing or lengthening mandatory minimums, removing parole eligibility in certain cases, and requiring that a high percentage of the sentence be served behind bars (often referred to as “truth-in-sentencing”). However, there are also countervailing trends in states like California. Determining the right approach to sentencing and time served raises several questions:

  1. What is the proper balance between uniformity and discretion and the degree of influence exercised by legislators versus prosecutors and judges?
  2. To what degree is the focus on the length of the sentence or period of incarceration, as opposed to certainty that a significant percentage of the sentence, whatever its length, be served behind bars?
  3. Given that elderly individuals have the lowest recidivism rates, would we be shortchanging public safety if we allocate too much prison space to those who committed a heinous crime decades ago as opposed to those who are in the midst of a crime spree involving less serious offenses and have failed at diversion and probation? How do we know whether a jurisdiction is efficiently allocating correctional resources to maximize public safety or perhaps is spending too much or too little on corrections?
  4. Should the inquiry at parole solely be a forward-looking one which assesses future risk, as is the case in Michigan due to reforms a few years ago, or should paroling agencies also consider whether further punishment is warranted?
  5. What are the merits of concurrent versus consecutive sentences in light of the Lara case that was argued before the Supreme Court in March? How does this relate to whether the primary goal of incarceration is punishment, incapacitation, or rehabilitation?


  • Dr. Nazgol Ghandnoosh, Co-Director of Reasearch, The Sentencing Project
  • Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation
  • [Moderator] Marc Levin, Chief Policy Counsel, Council on Criminal Justice and Senior Advisor, Right on Crime


As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

Jack Derwin:  Hello and welcome to this Federal Society virtual event. My name is Jack Derwin, and I’m Associate Director of The Federal Society’s practice groups. Today, we’re pleased to host a panel discussion titled “Debating State Sentences for Violent Crime: How Tough is Tough Enough?”  Joining us is an impressive panel of experts who bring a range of views to the topic at hand. In the interest of time, I’ll keep intros very brief, but our speakers’ full bios are available at


Our moderator today, Marc Levin, is the Chief Policy Counsel for the Council on Criminal Justice and Senior Advisor for Right on Crime. Also with us today is Dr. Nazgol Ghandnoosh, who is Co-Director of Research at The Sentencing Project, where she conducts and synthesizes research on criminal justice policies. Finally, we are joined by Kent Scheidegger, who’s been the Legal Director of the Criminal Justice Legal Foundation since 1986. After discussion between our panelists, we’ll go to audience Q&A if time allows. Please enter any questions for our speakers into the Q&A box accessible at the bottom right of your Zoom window. Finally, I’ll note that, as always, all expressions of opinion are those of the guest speakers joining us today. Without further delay, the virtual floor is yours, Marc.


Marc Levin:  Well, thanks so much. We’re really pleased to be able to have this discussion on a very challenging topic, one that’s very timely as well. I think it requires us to really think about what are the purposes of sentencing and the purposes of the criminal justice system. And we get a lot of different answers to that in terms of whether it’s punishment, rehabilitation, reintegration, and of course, public safety and redemption. So there’s many different factors that contribute to how different people and policymakers approach these topics.


But certainly, although everyone brings kind of a different philosophical lens, there’s also a great deal of interest in what does the evidence say in terms of how we can best allocate prison space and other correctional resources to maximize the reduction in particularly serious crimes. And it’s really important to talk about the impact of long sentences on public safety and on taxpayers and on victims of crime and especially given that we hear a lot in political debates about, for example, things like marijuana, which don’t account for a significant number of prison bed days spent on any annual basis. They can drive jail incarceration in some areas, but of course, in many states it’s legal.


But the point is, it’s important to really confront the seriousness of the fact that it’s largely violent and serious crimes that account for the really long sentences and therefore contribute disproportionately to the use of prisons. And then the question becomes, as we’ve said in this question to the discussion here today, is how tough is too tough, and on what basis do we make those decisions? And that’s actually something we’ve been addressing through our Council on Criminal Justice Task Force on Long Sentences that’s been co-chaired by former Congressman Trey Gowdy and former Attorney General Sally Yates to kind of grapple with that issue and look at the evidence, look at what other countries do around the world and how that compares to the U.S.


And we may have a slide that we can show on that, which will basically tell you what you probably already thought. Well, this first one looks at the growth in long sentences, and then we’ll get to the international comparison. But we can see here that the share of state prisoners serving 10 years or more has grown 46 percent to 63 percent from 2005 to 2020. So what that’s saying is 63 percent of all people in prison in our states around the country are people serving 10 years or more. So that really hammers home the point that long sentences have actually been getting longer in places, for example, like Arkansas, which just passed a bill this session that will result in more prisons and even longer sentences than -- they’ve already had sentences that have been going up in terms of time served.


And, again, some of that may be needed, certainly according to some. And the question then is, how do you kind of determine for whom long sentences may be appropriate and who they’re not? And then, if we can flip to our next slide, that will kind of give you both international and state-by-state comparison. And of course, what it shows is the U.S. as a whole is very much -- we use long sentences much more frequently than other developed countries, which are at the bottom of the slide. And this again is from our Council on Criminal Justice Task Force on Long Sentences. Some of the material we gathered, obviously, it doesn’t answer the question of who’s got the right balance or if nobody does. But you can also see there’s substantial differences among states. So, for example, Maine is down there actually below Spain and Romania and several other countries. Whereas at the top, of course, you see Georgia, Alabama, and Montana and so forth.


So I think that certainly there’s differences in terms of homicide rates among countries, differences in terms of rates of aggravated kidnapping rate, some of the types of offenses that most often lead to long sentences. So this has to certainly be viewed in the context of that. And so particularly, of course, in the United States, more of the violent crime is committed with guns, so more of the violent crime results in the death of the victim, and that, of course, is correlated with a longer sentence versus if somebody is merely injured by a knife, as terrible as that is as well. So there’s so many different factors and, of course, different perspectives that different societies bring to these topics.


But certainly everyone does want to know I think to some degree, what is the impact in terms of both public safety, in terms of allocation of taxpayer dollars, and are we getting a good return on that investment? So I’m really pleased that we have two outstanding experts in this field who are going to share their thoughts on this and trends that are going in both directions, depending on, for example, whether you’re in California or in some of the Southern states I mentioned. So I’d like to first kick it over to Nazgol, and then we will go to Kent, and then we will have some questions perhaps both from me and our audience. So take it away, Nazgol.


Nazgol Ghandnoosh:  Thank you so much, Marc. I really appreciate being here and the topic of this discussion because, as you said, it is very important to get right the answer to this question of what level of sentencing is appropriate for violent crimes. Because when we look at the prison population in the United States, we know that more than half of the people there are sentenced for violent crimes. And so, if we want to end mass incarceration, then figuring out what to do with sentencing for violent crimes is critical. And we know that, based on the analysis that you showed and the work that others have done, that for the exact same offense—whether it’s a low-level offense or whether it’s a very serious crime—we send people to prison for much longer periods of time than other industrialized countries.


So, for example, someone who has committed a homicide in Germany would not serve a sentence longer than 15 years. That is the level of maximum level of punishment that people face in many industrialized countries. Life without parole sentences are a thing of the past in many of our peer countries in Europe. But in the United States, if you look at our prison population, what you see is that 200,000 people are serving life sentences. So those are sentences of life with or without the possibility of parole are what are considered virtual life sentences of 50 years or longer. So that’s one in seven people in prison is serving a life sentence.


And something that happens as a result of having such a large population serve such a lengthy period of time is that it puts upward pressure on the entire sentencing structure. So a sentence of five or even ten years for a drug offense makes it -- it seems like not a big deal when you look at how many people are serving life sentences. And so, as a result of these kinds of factors, organizations like the American Law Institute have recommended allowing people to come up for resentencing after 15 years of incarceration. Because in the last couple of decades, we’ve gotten wiser. Our norms around punishment have changed. And so, bringing people up for a chance to have their sentence reconsidered makes sense in light of this growing evolution of our society.


We at the Sentencing Project recommend that people be able to petition for resentencing after ten years of incarceration and that we limit maximum sentences to 20 years. Twenty years is enough time for most people to age out of criminal activity, to be released, and to have an extremely low risk of recidivism rate. And when we look at people who have been released from life sentences from prison, we see, in fact, that this is the population that has the lowest recidivism rate among everyone in prison that is released from prison. And so, those are some of the sort of ideas that I’m going to bring to the table and explore more with you all in the discussion today, but I’ll stop there for now.


Marc Levin:  Oh, Kent? Thank you. Kent’s on mute. I’m sorry, Kent. Okay, there you go.


Kent Scheidegger:  My organization is based in California. So many of my examples will be from California, but many of the problems apply elsewhere as well, especially in states that are similarly misgoverned. A couple of myths that are very common about imprisonment in the United States—there’s a general feeling that we’re too harsh overall. Actually, most people are surprised to learn how little time a great many criminals spend in prison. For example, the median sentence for armed robbery, or the median actual time served for armed robbery, is less than three years. So it’s generally not true that our sentences tend to be too harsh. Also, the prison population that we have is not because of the war on drugs. 62 percent of people in state prison, almost two thirds, are there for violent offenses, only 13 percent for drug offenses. So largely, the people who’ve gone to prison deserve to go to prison and, for the most part, spend an amount of time that’s appropriate for the crime they committed.


We have to consider the various purposes of punishment. Rehabilitation, of course, is the Holy Grail, and it does have some value, especially at the lower end of the offense scale. But for the hardcore offenders, not so much. For the habitual criminals, it resembles the Holy Grail in that people have been questing for it for centuries, and nobody’s found it. Incapacitation is a primary reason why we do have long sentences, particularly for the habitual offenders. A person who’s in prison will generally not be able to commit any crimes against people on the outside. U.S. Sentencing Commission did a study with an eight-year follow up and found that two thirds of violent offenders released from prison are arrested for another offense within the eight years, and half of those for a new violent offense. And those are only the ones who got caught. So the actual rate is higher than that.


At the guilt phase of trial, there’s a very old maxim that it’s better that ten innocent people -- or ten guilty people go free than that one innocent be convicted. But once we know that the defendant is guilty, I think there’s a reverse maxim that we ought to apply. It’s better that ten guilty rapists spend a few extra years in prison than it is that one innocent person be raped. So incapacitation is a very important factor. Deterrence is important. It’s a general principle of human behavior that if you raise the cost of doing something, fewer people will do it. It’s very difficult to measure empirically, but there are some studies showing deterrence. I also want to point out that there is a myth perpetrated in large part by the District Attorney of Los Angeles that long sentences actually cause greater recidivism rates. We did a thorough study of the literature, and that is simply not supported by the literature.


The final factor to consider is retribution, or as I call it, justice. People should not get off for a crime too lightly, and there is an insidious effect on society from a lack of justice if society is not perceived as being just. If people get off too easy for serious crimes, it really kind of eats away at the fiber of our society. When we talk about homicide, if the United States sentences people for longer terms for a homicide than Europe, well, that’s Europe’s problem. There really isn’t too long a sentence for premeditated murder. The victim will never live again. I don’t see any reason why it’s essential that the murderer get out prison again.


We’ve got the question of mandatory versus discretionary sentences. A sentence generally should depend on what the person did and what he has done before. Some discretion is needed in the sentencer to adjust for the wide range of conduct within particular kinds of offenses. But too much discretion means that the offender may be sentenced as much for which judge he drew as it is for what he did. So a happy medium there would be discretion within a range and for serious offenses that would be both a ceiling and a floor.


An example I like to use of how sometimes we go back and forth on these things is the California three strikes law. Before the three strikes law, we had a habitual criminal with a long string of crimes who was paroled a mere eight years after his last one, kidnapped and murdered a 12-year-old girl out of her own bedroom. That brought about the original three strikes law in 1994, which was too harsh. The third strike could be any felony at all. And so, eventually, the people decided to modify it so that all three strikes must now be on the so-called serious or violent lists. So that’s about right. And we’ve had kind of a goldilocks first too soft, then too hard, and then more-or-less right.


We have the question about parole. The law in California—I very strongly disagree with—it says that parole is presumed unless the parole board can determine that the person is indeed actually dangerous. Well, first of all, who knows who’s actually dangerous? Second, what about all the other purposes of punishment? What about justice? What about deterrence? So it’s really, I think, misguided to say that future dangerousness alone and predictions of it should entirely determine parole. In terms of spending priorities, I think we have to consider public safety against all other priorities, not just pick out individual items and compare them to each other. So I think that’s a pretty good place to stop, and we can go to the question part now.


Marc Levin:  Well, thanks a lot, Kent. Nazgol, was there anything there you wanted to respond? And then I’m happy to send it back to you, Kent, if she says something that you’d like to pick up on. I imagine -- this is exactly what we thought. We wanted some tension in terms of the argument, so not personally, but in terms of the arguments. So is there something you wanted to address in terms of what Kent said?


Nazgol Ghandnoosh:  Sure. So there’s one point of agreement that I found, which is that, as Kent said, over 60 percent of people in state prisons are serving time for violent crimes. And so, again, what’s important to think about is, if we want to reduce the prison population in the United States and we want to make our communities safe, what are the best policies to get there? Well, we know that we incarcerate a higher rate of our population than other industrialized countries by far, and yet we’re not safer. And so, they don’t have a problem with having lower levels of incarceration and more safety. We have a problem by having very high levels of incarceration and achieving worse outcomes.


So the question is, what’s going on there? What are we doing wrong? And there’s actually an abundance of criminological research within the United States to guide us. So we know that extreme sentences are, as we put it in summarizing the research on this, counterproductive to public safety. And the reasons for this are that when we think about sentences beyond 15, 20 years, what those sentences are doing is allowing us to have a false sense of addressing community safety. What many victims want is preventing others from experiencing what they’ve experienced.


And locking people up into old age when they’re no longer a community safety risk means that we’re spending a lot of money to incarcerate them, because healthcare costs get very expensive as people get older. Their health deteriorates at a faster rate if they’re incarcerated. If they need care off site, they need to go with several guards. All of these things make incarcerating elderly people very expensive. And, yet, we have a huge elderly incarcerated population. So we are tying up funds that we could be using instead to make much more effective public safety investments.


And those include things like giving everyone access to effective, affordable drug treatment. Half of people that go to prison in the United States have a substance abuse problem in the year prior to their incarceration. Many people commit crimes under the influence of drugs or alcohol or in order to get money to be able to purchase drugs and alcohol. So if we can make sure that everybody who wants to get help and wants to get treatment has access to it, we can reduce crime rates.


Something else that we can do is to invest in community interventions, community safety programs, crisis interventions. All of these things would help to make our communities safer, would help to deal with some of the upticks in crime that we’ve had during the pandemic, without just relying on policing as a response once things go wrong. There are a lot of community public safety programs that are getting piloted around the country, but they’re not nearly to scale of what they should be in order to provide meaningful non-prison, non-policing solutions to public safety. So that’s in terms of why -- so why are extreme sentences counterproductive? Because they’re diverting our attention and diverting resources from what would be more effective to advance community safety.


But at the same time, in terms of deterrents, there’s an abundance of research that shows that when you get to extreme sentence lengths, these are not effective deterrents because most people don’t expect to get caught. And this is not an unreasonable expectation since, when you look at homicide clearance rates even, many times, very often, people are even getting away with murder. We’re not catching people even for the most serious crimes so -- again, because also people commit crimes under the influence of drugs or alcohol. Awareness, even if they have it, of the sentence lengths they might face, is not an effective deterrent, so that’s why the deterrence argument is weak.


I’ve talked about recidivism rates and how they drop precipitously for people who have served lengthy sentences. People who’ve served time in prison for violent crimes, according to Bureau of Justice Statistics data, have the lowest recidivism rates among all people released from prison. That’s because they’ve served lengthier prison terms. In terms of one data point that I just wanted to flag that I disagree with that Kent mentioned is the average length of time that people serve in prison for robbery. So the data source, I think, that he’s using there is not about armed robbery. It’s about any kind of robbery. That includes just telling someone to give you their money. So this is how the median sentence that people are serving for a robbery offense is indeed three years.


But I also want to point out, for example, when you look at the population serving life imprisonment, it’s roughly 8 percent of that population is convicted of a robbery offense as their most serious crime. So we have a really wide range with a lot of people serving three years. But then on the other extreme, we have people sent to prison for the rest of their lives because they committed a robbery. So I think that we all here are all on the same page that what we want to do is make our communities safer, right? The question is how to get there.


We know from our own experiment of mass incarceration that locking a lot of people up for very lengthy periods of time, as we’ve been doing, is not the way to get there. We know that other investments in our communities help to advance public safety. And we also know—I just want to bring in the topic of race because we haven’t touched on it yet—that when we talk about serious violent crimes, we’re disproportionately talking about black victims and black people who have committed the crimes. There are higher rates of black offending of serious violent crimes and higher rates of black victimization.


And so, we really have to think there -- we have to think very cautiously about what are the policies that we’re leaning on to solve those problems. What are the policies that we would lean on if we had those problems in white communities? Would we be advocating for high levels of policing and imprisonment, or would we instead be trying to tackle the root problems that are creating the situation? And would we instead try to think about how to prevent a system of mass incarceration in response to that problem? So I think that race really is important here. The racial inequalities that we have in our society are really important to think about, and the way that race and implicit biases that we probably all have really shape the kinds of policies that we lean towards to solve that kind of problem.


Marc Levin:  So, Kent, could I send it back to you?


Kent Scheidegger:  Yeah, that’s an awful lot of things, and I won’t be able to respond to all of them, I think, because I didn’t even get them all down. But let me address a couple of the more prominent ones. To compare the United States and Europe and compare policies and outcomes and assume that the policy is the cause of the outcome is not correct. The United States is culturally different from Europe. We do have a much higher homicide rate, and I think the homicide rate is the cause rather than the result of the greater incarceration rate and the greater number of life sentences, that plus the fact that we do punish homicide more justly than Europe does. So I don’t think you can make that comparison.


There’s a lot of other stuff going on in crime rates besides just policy. As far as drug treatment goes, I think it is a mistake to assume that everybody who has a drug problem and ends up in jail would have voluntarily gone into treatment had money been available. I think, in most cases, it’s more likely that people using drugs just don’t want treatment and won’t stay in treatment if it is offered to them, and I don’t think you can assume that funding is the issue there.


As far as racially disproportionate goes, if you’re comparing incarceration rates to ethnic proportions in the general population, that’s what I call the fallacy of the irrelevant denominator. The fact of the matter is that crime rates are much higher by ethnic group, and if greater proportions of a particular ethnic group are incarcerated, it’s mostly because the crime rate is higher. The idea that social programs are going to make huge differences in the crime rates, I think, is wishful thinking. I think more policing is indeed in order, and that’s really what should go into reducing crime rates. But to say that this is the basis -- based on racism or somehow a problem with our society or our criminal justice system, no, it’s a problem in culture. It’s a problem in the crime rates being higher. And changing the policies isn’t going to change that.


Nazgol Ghandnoosh:  Oh, Marc, you’re muted now.


Marc Levin:  Yeah. Well, thank you very much. Before I turn over to some questions from the audience, I wanted to just raise a couple of things that perhaps both our panelists can respond to. One is the role of repeat offenses, and particularly whether there’s a distinction in terms of proximity and time—someone who’s on a series of robberies or armed robberies and perhaps has been on probation and other things have been tried and it hasn’t worked, versus someone who we’ve all heard of the cases in terms of the mandatory minimums for felons with guns, while there was a guy who was hunting turkey in Kentucky, and then decades earlier, he had a drug possession offense, right? And now he can’t own a gun for the rest of his life and is caught up in this Armed Career Criminal Act mandatory minimum. So the role of repeat offenses is important, but then there’s the question of how close are they in time.


And the other thing I’m hoping that both of you might address is it is true there’s high recidivism oaths, but that also raises the question of, is that -- what are the contributing factors to that? Is it inevitable, or does it also have to do with how we incarcerate people, barriers to reentry, and then maybe whether the screening is as good as it could be? Because we had under the COVID releases that started under Attorney General Barr, there was very careful screening, and the recidivism rate has been remarkably low. But if certainly Kent is right, then you can certainly more broadly find data to show pretty high recidivism rates of certain types of people released from prison. So I’m hoping both of you all might touch on those two points.


Kent Scheidegger:  Go ahead.


Nazgol Ghandnoosh:  Sure. So those are excellent questions. So the first one regarding repeat offenses and does the time between the offenses matter, absolutely. One of the reasons -- I’ve been thinking about this issue a lot recently because I’ve just been thinking a lot about the role of criminal history in sentencing, the way that it plays out in terms of how prosecutors charge people, the way that it plays out in terms of our sentencing laws—like our three strikes laws—the way it plays out in terms of sentencing guidelines that are developed by sentencing commissions.


And there is great research on this that’s been done that emphasizes that we really have -- the United States places a really high -- gives a lot of influence to criminal histories and allows them to really dramatically magnify sentences. And part of the reason for that is that we allow convictions that happened years ago to influence the sentence that someone gets. So, absolutely, we should be doing more to reduce the impact of criminal histories by not considering convictions that are very old, by narrowing which recent convictions are relevant, and by limiting how much we extend sentence lengths for repeat offenders.


Because we know that the consequence of allowing criminal histories to have such a large impact is that we end up with sentences of 10 years or longer, 20 years or longer, or life in prison. And, again, what happens when you catch someone and incarcerate them with a long rap sheet is that typically they’re older. And typically, when you look at research on criminal careers, they’re towards the end of their criminal careers. So you’re using and you’re applying to them years, sometimes decades, of incarceration into their middle and elderly years when they’re less likely to pose a public safety risk. And, of course, because of the way communities are policed differently, people of color are much more likely to have a criminal history than white Americans.


Not just because of differences in serious violent crime rates, which is what I was talking about earlier, but when it comes to low level offenses like drug use, people of color are much more likely to get picked up and arrested and have a drug possession, potentially possession with intent to distribute depending on how much they have on them, than white Americans. And that has to do with the fact that people of color are more likely to be searched than whites when they’re pulled over by police officers. That has to do with the fact that communities of color are just more likely to experience more intensive pedestrian stops.


So that’s part of what creates the serious injustices that we have when sometimes you have very high-profile cases where someone is highlighted as having a much longer sentence than someone else, and the person with a much longer sentence is usually a black person and the person with a shorter sentence is white. If you look closely at those instances, what’s really driving that often is a criminal record. And again, the criminal record is partly a function of criminal activity but it’s also partly a function of the way we police, the way that we charge, and the way that we sentence people, and the biases that exist in our system, and the way that they affect people of color worse than whites.


In terms of recidivism, I’ll just be brief about this one and then turn it over to Kent. We have very high recidivism rates in this country, and part of that depends on how you define recidivism. Does it include any arrest? Does it include a conviction for a new offense or imprisonment for a new offense? As you look down or up the ladder. At the most serious kinds of measures of recidivism, of course the rate of recidivism goes down because the arrest measure is the widest possible measure. And again there, just like I was saying with criminal history, recidivism is partly a measure of criminal activity, and it’s partly a measure of the criminal legal system and law enforcement activities.


When I lived in California and I was doing my dissertation research and talked to people who were probation officers and parole officers, I would hear very frequently, “If I’m a” -- or police officers, “If I’m a police officer and I interact with you as someone who’s on community supervision, if I have any reason to talk to you, I’m going to revoke you, because you should not be having any interaction with me.” So I think things have changed in the past decade or so since then. But that kind of attitude that if you’re on supervision, I’m going to have a lower standard for arresting you and putting you into the system, that contributes to the high recidivism rates that we have.


And so that’s partly why some of the experts in this area on community supervision, like Vincent Schiraldi, who’s now running the juvenile justice system in Maryland, but when he worked in probation in New York, he advocated for reducing the length of community supervision because, as he put it, so often community supervision is just a tripwire for incarceration. We put out terms for people, like “You have to meet with your officer every two weeks.” “You have to commute a long way to meet with them.” “You have to also hold down a job and do all these other things while meeting these obligations.” And when people fail to do that, we recidivate them and we send them back in towards incarceration. And so, there’s a problem with people not being set up to succeed and not being given the resources to succeed.


Marc Levin:  Kent?


Kent Scheidegger:  Well, yes, it is true that we do place a lot of weight on prior offenses in sentencing. And that is appropriately so because criminal history is one of the primary determinants of recidivism rates. And you often hear this statement that people age out of crime and so forth, and once they’re over a certain age, we don’t have to worry about them committing crimes anymore. Well, in fact, a study by the U.S. Sentencing Commission found that even among people who are over 60 at the time of their release, among those who have the highest criminal history, they are still at least half of them are going to recidivate.


I also want to agree that how we measure recidivism is important, but to point out that all of the definitions of recidivism are lower than the true rate, that is, most crimes are not solved, so a great many more released felons are committing new crimes than actually get captured by any of the measures of recidivism. So incapacitation, particularly for repeat offenders, is important. It does prevent a lot of crime. It does prevent a lot of innocent people from being victimized. So I think the level to which we consider prior history and sentencing in the United States is appropriate. It does use our prison space for the people most likely to commit new crimes.


Marc Levin:  Well, one of the questions I think that that discussion kind of raises is, do we have all the data that we would like to be able to make the best decisions? Of course, I think Nazgol you alluded to technical revocations from probation and parole, which are for things that wouldn’t be crimes if you’re not on supervision—missing meetings, leaving the county without permission, alcohol. And now, of course, in some states, marijuana has been legal, but you still can’t have marijuana if you’re on supervision. Interestingly enough, you mentioned Vinny, and he actually got rid of the test for marijuana, so it just tested other drugs. When he was head of Probation in New York, that was his solution.


But the other question is really that data comes up and kind of the idea of moneyballing, criminal justice in terms of how good are we at deciding whether somebody the risk level, particularly the risk level for a violent offense. And there’s actuarial assessments, of course, in the parole context. Pretty much every parole board uses a type of assessment to inform their decision about whether somebody’s a risk to what level of risk they pose to the public. And I mean, I’m curious, I guess, from both of you, do you think that we need to improve our kind of data and our ability to predict human behavior in these contexts, or does it make a difference to some people if the goal is we need—as kind of was alluded to, Kent alluded to earlier—retribution, deterrents, and so forth, that there’s these other aims that also come into play?


Kent Scheidegger:  Well, the answer to whether we need more research is always yes. I almost never see a paper that doesn’t conclude somewhere in the final that we need more research.


Nazgol Ghandnoosh:  I agree more research, more timely data would be helpful. But I’m actually a researcher that tries to hold back on suggesting that what’s missing in developing good policies right now is better data and better research, because we definitely should have more timely information. We should know what exactly happened with crime rates in the past month, in the past year. We don’t know that. We don’t have good national data. We don’t have timely data. It would be great to know what was the national count of people in prison in 2022 right now. I don’t know that yet. I’m still waiting on that. So there’s definitely some room for progress there.


However, even with the data that we have and even with the abundance of research that we have, we’re not making the best decisions based on what’s available. So I’m always optimistic that maybe a new way of -- I mean, what keeps me going as a researcher is maybe a new way of presenting this analysis is going to help to bring more interest, is going to help people to get a better sense of what we need to be doing to advance public safety. But I also recognize that when we talk about these issues, it’s a little different from baseball. I don’t follow baseball closely enough, but I think there’s more of a consensus on what to do with that kind of data that you have, the stats that are available on the players, and how to use that most effectively.


Whereas with criminal justice, there’s an issue of values. There’s an issue of being willing to recognize that the way that we would like to create safety for our own community among our neighbors, which is not a heavy reliance on policing and incarceration. We need the next step of realizing that we need to apply those values more broadly to everyone in our country. The kinds of opportunities that we like to create for our children, to make them successful, the kinds of things that help to make our community feel safe isn’t a police -- someone in a police patrol car in every corner, right? It’s a community where people have good jobs, where there are good grocery stores, where there are resources available. There’s good healthcare. Those are the kinds of things that make our own communities safer. And I’m not sure what it’s going to take to get people on board with kind of extending that more broadly.


Kent Scheidegger:  In addition to the things you mentioned, the other thing we need to have a safer society is a society where people believe in personal responsibility, believe in the importance of respect for the law. And those cultural values, unfortunately, are in decline. But given that, we do have to make policy with those things that we can change. And I think criminal justice is an important factor in determining crime rates that is within the control of government. Culture is really not completely within the control of government and probably shouldn’t be. And cultural change certainly would be important in reducing crime rates, but there’s only so much government can do about that.


Marc Levin:  Well, I’m looking here we’ve got several questions from our audience. First of all, from Tom, he asks, “Are the times of incarceration getting longer or are we reducing the time for minor crimes?”


Kent Scheidegger:  Well, there has been a shift that we have more people in prison for violent crimes relative to other crimes. So I think the seriousness of the crimes that the average person is in for makes a big difference in the average length of incarceration.


Nazgol Ghandnoosh:  Yeah. And if I could follow up on that, the National Research Council put together a great analysis a couple of years ago which included research by some of the legendary folks in this area, including Alfred Blumstein. And he’s done an analysis with colleagues and reproduced it in this publication that shows that sentence lengths have increased across the board in the era of mass incarceration. They’ve increased for drug offenses. They’ve increased for property crimes and for violent crimes. So the sort of three parts of what has gotten us to have such a high level of incarceration in the United States is the war on drugs and just dramatically increasing arrests for drug offenses and incarcerating people for that; second longer sentence lengths, like I just mentioned; and then the third one is when you’re arrested, a greater likelihood of getting a prison sentence based on each arrest. So those are the three sort of mechanics of how we’ve dramatically increased incarceration levels.


In recent years, we at the Sentencing Project emphasized that we’ve had 50 years of mass incarceration. Starting in 1973, the prison population went up. It went up for almost four consecutive decades. And in recent years, the count has been coming down. But one thing that we know is that the count has been coming down much more for nonviolent crimes. So we’ve actually reduced almost by 50 percent the number of people in prison for drug offenses and property crimes since those populations reached their peak levels. But we’ve barely made a dent into the population that’s convicted of violent crimes.


And that’s even though violent crimes between the 1990s and until just before the pandemic fell by 50 percent. They fell about that similar magnitude in many countries around the world. But we continued to increase imprisonment levels as those violent crime rates were coming down. And we also continued to -- we increased them while violent crime rates went up and while violent crime rates went down. So we’ve made some progress in reducing admissions and sentence lengths for nonviolent crimes, but we’re not there yet with violent crimes.


Marc Levin:  Well, and we have a couple of questions. One is actually, to some degree, on that point. Both kind of relate to California. I think Debra is among those who are concerned that there’s been too much reduction in incarceration for nonviolent crime, and in her view, that may be contributing to some of the disorder on the streets in San Francisco and Los Angeles. Then, we have another question relating to California from Mitchell, who says, points out that California has a very progressive tax structure with the wealthy paying for most of government services. And so, in his view, he asked, “Should we make sure through policies, such as incarceration, that we’re providing for safety for all people, not just those who live in gated communities?” So perhaps both of you could address these California-related questions.


Kent Scheidegger:  Yes. California has been going great guns at releasing prisoners. And it seems every time you turn around, our legislature is passing yet another law to let out yet more criminals. Our Department of Corrections has issued credits to release criminals early, even though they’re in violation of statutes. We have litigation going on about that. So, yes, California has gone great guns for prisoner reductions. It is actively trying to reduce the number of prisoners in the number of prisons. And California, in my opinion, not coincidentally has not shared in the nationwide decline in crime rates as much as other states have. If you compare our, California’s rates with those rates of other states, yes, there is a decline, but the decline is not as steep as the nation as a whole. And I think those two are probably connected.


Nazgol Ghandnoosh:  Well, I don’t think that that’s right. Because I’ve actually looked at crime rates in California compared to the national rates, and I believe that California has matched or outpaced the crime drop nationally. But I’d have to double check to be sure about that. I know that organizations like Public Policy Information Center in California and many other scholars have done analyses of what’s been the impact of the decarceration that’s happened as a result of realignment, where the Supreme Court basically forced the state to reduce its incarceration levels because they were -- prison populations were at a very high and unsafe level for incarcerated people.


And many of these analyses have found that when you look at regional crime trends and you compare California with other states nearby, California did not experience -- did not suffer in terms of crime rates during this period of incarceration. So there’s a number of studies that make that point. But I think that the questions are valid in terms of concern about why are the wealthy able to sequester themselves from the disorder that’s happening on the streets and what can we do to tackle these forms of disorder. And the kind of homelessness and other kinds of disorder that happens on the sheet, that’s not the kind of thing that prisons and jails are for. But they do point to a valid kind of discomfort that people have and concern about individuals that they’re seeing in these conditions.


And so, for me, jails and prisons are not the answer to get people off the street when they’re in that kind of condition. We really need to increase access to services. Earlier, I talked about giving people access to universal and effective drug treatment. And Kent rightly mentioned that not everyone who has a substance use problem is interested in getting treatment. But when you look at surveys of people about their substance use problems, many people say that they do want treatment and they can’t afford it, or it’s not covered by their health insurance. And so, it’s absolutely the case that not everyone wants treatment.


But when you make it available, many people are interested in it. And when you look at waitlists for drug treatment programs, there should not be any waitlists, right? These are people who want to get care. And we know the way that drug treatment works is that it’s an iterative process. People fail several times. And we need to have open doors available for them to be able to get them when they’re interested in getting those services.


Kent Scheidegger:  Well, I don’t disagree that people who want treatment should get it, but I would not put a lot of wagers on that making a major impact on the crime rates. Because between the people who don’t want it and the people who that isn’t their problem in the first place, there’s still an enormous amount of crime.


Marc Levin:  One of the things that Debra raised in another question and comment here relates to the degree to which individuals released for prison would be self-sufficient or not, whether we would be spending a lot in terms of welfare programs for them when they get out. And it’s actually something I’ve had a lot of interest in over the years. I think about a decade ago, I looked up what is the percentage of people on parole in Texas who are employed, and I actually discovered it was higher than the employment rate of Detroit at that time. This was like 10 or 15 years ago. And we have some great nonprofit programs, like Prison Entrepreneurship Program, here in Texas. They go into prisons with business leaders who do business plan competitions, and then they connect people being released with employment.


Some of you may have heard about the program Governor Ducey and the Arizona Department of Corrections started combining with Lyft and Uber, where they get -- people up construction jobs when they leave prison. And, of course, they didn’t have cars, so that was the role of the ride sharing service, at least initially during their transition. But they had the jobs all set up, and they, of course, had learned construction skills while they were incarcerated. So I do wonder if this is a kind of area of common ground in terms of how for people, whenever they’re released, how can they be as much as possible self-sufficient.


Kent Scheidegger:  I’m not sure there’s a question there.


Marc Levin:  Oh, well, I guess just the question of are people released from prison kind of necessarily a burden or how to factor in their use of government benefits and comparing I think Debra’s saying in comparing the cost of incarceration versus the cost -- or for that matter, the taxes, if they are working, that they would pay. That’s kind of a question, I guess, about the cost-benefit analysis.


Kent Scheidegger:  Well, yeah, there is certainly a cost. I mean, one issue on prison budgets we always hear about is the cost of healthcare. But if a person leaves prison and is not employed, I think that health care is going to be paid by government one way or another. So maybe the cost isn’t as high as is often thought.


Marc Levin:  Nazgol, did you want to address it?


Nazgol Ghandnoosh:  Yeah. I think we’re in agreement that it would be good to provide people with the services that they need outside of prison and ideally to help them get on their feet and be working and get the training that they need and get the opportunities that are necessary to get them employed, if I heard that correctly. But I do think, in addition to these kinds of programs that you mentioned, Marc, which are very laudable, we do really need to take stock of the fact that people coming home from prison, especially after lengthy periods of time, they do need services to get back on their feet. They do need support.


And we also need to reduce the barriers that are in place to get people housing and get them employment because there are a lot of barriers that people face in terms of the criminal record haunting them for the rest of their lives. When they apply for jobs, if they want to apply for college, all of those things produce barriers and so really -- occupational licensing. And there are reforms happening in all these areas, but we really need to sort of turbocharge those in order to get rid of these barriers for people.


Kent Scheidegger:  I’d say yes with an asterisk that there are, in many places, good reasons not to employ people with certain records in certain positions. I don’t think we want convicted embezzlers being trustees for disabled children. I don’t think we want convicted child molesters as school bus drivers. I think the total ban the box movement saying you completely ignore criminal records when you hire people, that goes too far.


Nazgol Ghandnoosh:  Well, I agree that there are certainly certain convictions that should be disqualifying for certain positions. Fortunately, the band the box movement is actually a delay the box movement generally, where people are not asked about their criminal histories up front. But then once the employer expresses interest in the candidate, then they do a criminal background screening, then they get that information, so people have a chance to get a foot in the door. And certainly, I don’t know of any ban the box movement that would get in the way of disqualifying people with relevant convictions from applying from applying -- from being candidates for jobs where they should be disqualified.


Marc Levin:  Well, on the occupational licensing, some states have adopted directly related. And then another, the Minnesota approach, which is interesting, is to say, “By virtue of the person being in that occupation, would they be more likely to cause harm? And number two, would the harm be greater?” So, for example, someone with drunk driving convictions being a school bus driver, the answer would be yes on both of those points.


Carolyn has an interesting question on any thoughts on district attorneys dropping felonies to misdemeanors or raising the felony offense threshold to shoplifting to $950. And it also prompted me to think about going back to the data question. From what I can see, the data doesn’t really exist in jurisdictions to keep track of the degree that felonies are dropped to misdemeanors, which then becomes a whole question of plea bargaining and whether not enough cases are going to trial, whether -- so it’s very hard to evaluate the public, what the district attorney is doing. And then, of course, you don’t know why it might have been reduced. Would it be because there’s not enough evidence or it’s because of an ideological reason? So I think it opens up the question of the data that we talked about earlier. But did any of y’all have any thoughts about Carolyn’s question?


Kent Scheidegger:  Well, in some cases, it is ideological. I mean, the most notorious example being Los Angeles, where the district attorney has simply said, as a matter of policies, never going to charge certain enhancements and certain additional allegations regardless of the circumstances of the individual case. That is a gross abuse of discretion. As far as the $950, I gather that’s a reference to California’s Proposition 47, which is fairly typical in that it addressed some problems that needed to be addressed and then went too far, and too much has been reduced to misdemeanors. We also do not have enough consequences for misdemeanors, in part because the state legislature decided to partially fix its prison problem by dumping a part of it on the county jails, thereby filling up the county jails. So you can’t send people to county jail for misdemeanors because they’re full of felons. So there’s multiple aspects to that problem.


Marc Levin:  Well, Nazgol, I’ll pass off to you. And I’ll also mentioned here in Texas—I think this is true in a number of states—the funding for someone to go into treatment is much less, if any, when it’s a misdemeanor. And so, if you are going to reduce that, it’s kind of like in education. If the money doesn’t follow the person, then you’re getting an unintended perhaps side effect is that there’s -- and that’s a whole issue of broader criminal justice. The deeper someone goes into the system, the more resources there are for treatment.


But if you’re somebody who’s got a mental health breakdown at McDonald’s and the police want to because they’re yelling—they’re disturbing the peace or whatever—whether there’s a 24-hour crisis center to take them, in many places, the answer to the only place is the jail. So I do think that that’s a very interesting question that we see this mismatch between what kind of the resources are available versus where you are in the system, rather than what the needs of that person might be. But anyway, Nazgol, would you want to address this?


Nazgol Ghandnoosh:  Yeah, I think that’s a really interesting point, Marc, about the sort of unintended funding consequences of switching some crimes from felonies to misdemeanors. And that would hopefully get addressed and corrected so that people don’t need to have their charges ratcheted up to felonies in order to be able to access the resources that they need. In terms of decriminalizing or actually lessening the criminality of certain crimes. This is something that Rachael Rollins, a district attorney in Suffolk County, Massachusetts, and Boston, has also done and has said that she would --- well, actually what she said that she would not prosecute low level misdemeanors, like small amounts of controlled substances, minor prostitution charges, things like that.


And the goal there is to help people not get criminalized when they are caught with those kinds of things and enable them to be able to get access to services, to get off the streets, and so on. And so, this is their sort of general idea of decriminalizing poverty and giving people an opportunity to get back on their feet without the sort of threat and all the negative consequences that come with a criminal conviction that destabilize people’s lives.


Let’s see. I know that in terms of the felony theft threshold, Pew has done a lot of really great work on this. And as I recall, there’s a number of states around the country where the cut off for something to be considered a felony has not been updated, has not kept up to date with inflation. And so, we’re unnecessarily bringing in a lot more people than we had been in the past and exposing them to felony charges and the threat of imprisonment as a result of these kinds of outdated value cut offs that we put in terms of dollar amounts of what gets considered to be a felony. And in terms of more data, absolutely more data on why district attorneys are making the kinds of decisions that they’re making would be helpful to have. We always, at the Sentencing Project, call for more data in terms of how district attorneys are charging, making charging decisions, and how that differs by race. More information like that would be very helpful as well.


Marc Levin:  Well, we’re three minutes from the bottom of the hour, so if there’s anything really brief that either you two want to add, that would be great, and then we’ll wrap up.


Kent Scheidegger:  Well, I see there’s a comment about the smash and grabs in California.


Marc Levin:  Okay.


Kent Scheidegger:  Yeah, that’s true. California has seen a very large problem with shoplifting, and, at a more extreme level, the smash and grabs. And that is because, as it presently stands, there are not enough consequences that follow from those kinds of offenses for a couple of reasons. One is the reduction to misdemeanors. The other is the problem of county jails being full. And it is a very serious problem. These offenses may seem small if you look at them piece by piece. But when you take them all together, there’s a real serious reduction in quality of life. Stores are closing, especially in San Francisco. The Chronicle, which is certainly no friend of my position, has been running articles about how many stores have been closing, and the wave of shoplifting is a part of that. It’s not all of it, but it’s a big part of it. And when crime is that rampant, it really degrades the quality of life for everybody, in addition to the direct victims of the crimes.


Nazgol Ghandnoosh:  So I guess I would say that I completely agree with the concerns about feeling safe at stores, about supporting businesses, and helping people to feel safe in their communities, not feeling a threat of violence, not feeling like they need to move away from urban areas. All those are very important values for me as someone who lives in Washington D.C. But I know from my own experience and from the research that exists by criminologists and others about how to promote community safety, that we already sentenced people to much longer terms in jails and prisons than we have in the past. And we do so more than other countries, and we have worse outcomes to show for it. So we’ve already done this. We’re already still very much within the era of mass incarceration.


And yet, look, we’re having these kinds of problems, and the solution that some are offering are to just ratchet things up even more. Let’s get even more punitive. Never mind the fact that when we look at our industrialized peer countries, they incarcerate fewer people for the exact same offense. They send them to prison for shorter periods of time. They have other kinds of investments that they make to help their communities have much lower rates of crime than we have. They don’t have the prevalence of guns that we have and the kinds of feeling of threat that comes with that.


So we know that we’ve tried this before. We’re still in the middle of it, and we’re still experiencing an uptick in certain kinds of crime and a high level of disorder in some urban areas that makes people want reconsider living there. But it’s really a time to think about different solutions now. And we have a number of pilot projects across the country in urban areas that are shown to be effective at coming up with alternative models and investing to prevent crime from happening in the first place. And that’s really the direction that we need to go in instead of doing the same thing that we’ve been doing for 50 years that has been proven to be ineffective.


Kent Scheidegger:  Well, now, crime did come down quite sharply in the 90s and 2000s, and I’m not sure you can really conclude that that --.


Nazgol Ghandnoosh:  Absolutely, it did. And it also did in 20 other countries that didn’t increase incarceration levels.


Marc Levin:  Well, I don’t think we’re going to be able to settle it all here. But I think everyone probably learned a great deal who tuned in and I’m going to throw it back to Jack to wrap us up. Thanks so much.


Jack Derwin:  Thank you Marc. And thanks to all our panelists for being here today. It was clear our audience appreciated the spirited, but very respectful, back and forth, so thanks again. And thank you to our audience for tuning into today’s virtual event. You can check out our website, or follow us on all the major social media platforms @FedSoc to stay up to date. With that, we are adjourned. Thank you.