Adam Liptak has never been to Compton.
I know this because if he had been to Compton, he would have taken a different approach to his recent piece criticizing America’s high incarceration rate. If he came face to face with the devastation that violent crime has caused Compton and surrounding communities, he wouldn’t be so appalled by the fact that we’re doing our level best to lock up the people who are robbing and murdering people.
Liptak, you may recall, is the New York Times legal reporter who has been chosen to replace Linda Greenhouse as the paper’s Supreme Court correspondent. Regular readers of this blog will remember Liptak as the author of a piece that gravely misstated the law regarding peremptory challenges in jury selection. Ever since I read that piece, I knew that I would read all future Liptak pieces with a heavy measure of suspicion. That decision was only reinforced by Liptak’s piece bemoaning the fact that America puts a lot of criminals in prison.
Liptak’s piece was brought to my attention by an angry reader on April 23, the day it appeared on the front page of the New York Times. I haven’t blogged it until today because I’ve been busy 24/7 working to add to America’s prison population.
Liptak’s piece puts criticism of America front and center:
The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.
Indeed, the United States leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment. Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations.
No, Adam Liptak, our main problem is that we are a violent society.
I know you’re used to people telling you that the prisons are filled mostly with first-time drug users and low-level property criminals. But the facts tell a different story. Here is a chart from the U.S. Department of Justice showing that over half of state prisoners in this country are incarcerated for violent offenses like “murder, negligent and nonnegligent manslaughter, rape, sexual assault, robbery, assault, extortion, intimidation, criminal endangerment, and other violent offenses.”
Now, an argument could be made that, as to the nearly half of crimes that fall into other categories (property crime, drug crime, etc.), we should be incarcerating fewer prisoners. That argument has less force when you start looking at the actual people who are serving these sentences. In virtually all cases, their records are lengthy, sometimes containing violent offenses in their past. The drug seller may have a record including felony assaults. The guy serving 32 months for car theft may have a carjacking on his record within the last ten years.
And there are almost no pure users in prison. Here in California, the vast majority of state prisoners incarcerated for simple possession are in prison because, within the last five years, they have a serious or violent felony on their record — crimes like arson, kidnapping, and rape. Therefore, they don’t qualify for the Proposition 36 drug treatment program, as virtually all other defendants with possession cases do.
So yeah, you could set free the property or drug criminals, but in many cases you’d be setting free potentially violent people. But even if you didn’t care and you kicked every last one of them out of prison, you’d still be left with over 600,000 state prisoners in prison for violent crimes. That would still be a high number compared to other countries.
That doesn’t mean we have an incarceration problem. We have a violent crime problem.
Exactly which violent criminals should we not be incarcerating?
Liptak games the numbers by mushing together statistics and facts about jail inmates and prison inmates. There is a difference.
Jails house people serving short sentences. In virtually all cases, jail inmates are either awaiting trial on any level of crime, or serving a sentence of one year or less. Prisons, by contrast, house people serving sentences of more than one year. In California, this could range from 16 months (again, they actually serve only half) to life, depending on the offense.
Throughout, Liptak mushes the two together when talking about the aggregate numbers (”The United States has, for instance, 2.3 million criminals behind bars“). But at other times he speaks as though all these numbers represent prisoners, as when he says that “Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries.”
Well, even here, crimes like writing bad checks and using drugs are typically dealt with by imposing local jail time. Here in Los Angeles, for example, first-time and even second-time shoplifters or bad-check writers will serve only a few days in jail. First-time PCP sellers will generally serve about 90 days (180 days at half-time). (Note that I said “sellers” — first-time PCP users will get a drug treatment program and no incarceration, under the state’s Proposition 36.) This is not what most people think of when they talk about the “horror” (as one of Liptak’s experts terms it) of American incarceration rates.
Prison is different.
Liptak continues:
Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences.
Guess what, Adam Liptak? I’m “mystified and appalled” by the number and length of European prison sentences — specifically, the mystifying and appallingly short sentences that too often result in cases of clear, premeditated murder.
For example, in Germany, activists bombed an American military base and killed a U.S. soldier, and received a “life” sentence. By August of last year, two had been paroled after serving only 21 years. In the Netherlands, Volkert Van der Graaf confessed to assassinating politician Pim Fortuyn and was sentenced to all of 18 years.
And I could go on.
I believe many Americans are also “mystified and appalled” by the leniency of these European sentences for premeditated murder. But somehow, Adam Liptak gives no prominence to their views.
Liptak’s article is filled with outrageous statements, but I don’t have the rest of the weekend to respond to them all, so I’ll document two. First, Liptak tells us that America is the worst offender in the world when it comes to incarcerating people — but his proof contains an odd parenthetical caveat:
China, which is four times more populous than the United States, is a distant second, with 1.6 million people in prison. (That number excludes hundreds of thousands of people held in administrative detention, most of them in China’s extrajudicial system of re-education through labor, which often singles out political activists who have not committed crimes.)
So if you put aside the inconvenient fact that China sentences hundreds of thousands of people to forced labor, without judicial due process, as punishment for political dissent — if you ignore that minor detail, so minor it really should be placed inside parentheses, because really, what does it have to do with whether China is inappropriately punitive? — if you ignore that, then America is the worst country in the world!!!
Aside from that, Mrs. Lincoln, how was the play?
Next, Liptak tells us that part of America’s problem is that we lack a social safety net:
Criminologists and legal experts here and abroad point to a tangle of factors to explain America’s extraordinary incarceration rate: higher levels of violent crime, harsher sentencing laws, a legacy of racial turmoil, a special fervor in combating illegal drugs, the American temperament, and the lack of a social safety net.
Huh?
Here in the United States, our federal social programs include food stamps, SSI, unemployment insurance, the Earned Income Tax Credit, school meals programs, low-income housing assistance, child-care assistance, and various other programs, adding up to 9% of the federal budget, or over $250 billion per year. If you toss in Social Security, Medicare, Medicaid, and the State Children’s Health Insurance Program, we’re now looking at about half the federal budget, or over $1.3 trillion.
Just imagine how expensive things would be if we did have a safety net!
Remember the guy I wrote about in March who makes a living off of unemployment? He said: “I’ve been on unemployment three times in the past six years. Each time was better than the last, and each time I stayed on until the last cent was exhausted. I didn’t even try to get a job; it was a paid vacation.” I bet he’d be surprised to learn that we lack a social safety net!
But I digress.
Liptak does provide some facts to give the appearance of balance, but these facts are, in most cases, buried. We have to read through almost all the quotes given above, and more — all tirades about how barbaric and out of kilter our penal system is — before Liptak tells us that our high incarceration rate has unquestionably reduced crime. We then get another nine paragraphs of more ranting about the “horror” of American incarceration before Liptak says — in a quote that I cannot prove appeared inside parentheses in the first draft — “The nation’s relatively high violent crime rate, partly driven by the much easier availability of guns here, helps explain the number of people in American prisons.”
That’s the 20th paragraph of the article. Don’t you think that’s kind of important?
Yet that nugget comes after quotes from three experts who say that “contemporary America is viewed with horror” and describe the United States as “a rogue state, a country that has made a decision not to follow what is a normal Western approach.”
The bottom line is that Liptak, our future New York Times Supreme Court correspondent, has written a piece that drips with sympathy for the views of Europeans who think we’re being far too harsh, while burying deep in the article (or in some cases omitting entirely) the facts that would provide a more balanced perspective.
I can’t wait to read his articles on the Supreme Court.
