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How State Budget Battles Could Mean More Criminals Back on the Streets

Posted By Michael P. Tremoglie On March 14, 2011 @ 3:27 pm In AIM Column | Comments Disabled

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Columnist Ben Wattenberg once wrote, “A thug in prison cannot shoot your sister.” Wattenberg’s comment also reminds us of the old saying, “A conservative is just a liberal who has been mugged.” The saying stems from the direct experience of crime and the desire or demand for justice to punish lawbreakers. The idea that criminals should pay for their crimes—a tough-on-crime stance—has produced sweeping reductions in crime.

In an article, “What’s Behind America’s Falling Crime Rate?,” Time magazine reported, “In his book Why Crime Rates Fell, Tufts University sociologist John Conklin concluded that up to half of the improvement was due to a single factor: more people in prison. The U.S. prison population grew by more than half a million during the 1990s and continued to grow, although more slowly, in the next decade. Go back half a century: as sentencing became more lenient in the 1960s and ’70s, the crime rate started to rise. When lawmakers responded to the crime wave by building prisons and mandating tough sentences, the number of prisoners increased and the number of crimes fell.”

But the budget battles in the states could change all of this, putting crime reduction in jeopardy.

Walker Stands Firm on Prison Spending

On the surface, the budget fight in Wisconsin has involved issues like collective bargaining and pay increases for public employees. What has been largely ignored is that Governor Scott Walker, who is determined to cut spending, won’t make significant cuts to the prisons. This has made him a special target for liberal commentators.

Writing in the Wisconsin State Journal, for example, John Gibb wrote, “It costs over $30,000 to keep a prisoner for a year. That’s about the salary of a beginning teacher, or a full-time job at about $15 an hour… It takes the tax income from more than seven taxpayers to support each prisoner, and we have around 21,000 prisoners serving time in state prisons, not counting those in Wisconsin’s jails. There must be a more effective—and cost effective—way of dealing with lawbreakers.”

In fact, Walker’s budget would end a Wisconsin program allowing some nonviolent offenders to seek early release from prison, which Republicans had derided as “catch and release.” The program had been implemented by former Democratic Governor Jim Doyle. AP News reported on March 8, 2011, that Wisconsin had granted early release to 479 prisoners, 14 of whom later returned to prison after being accused of new crimes or supervision violations, according to the Department of Corrections.

Walker favors a truth-in-sentencing law that requires prisoners to serve their entire sentence without time taken off for good behavior.

If the liberal unions eventually succeed in Wisconsin and other states and budgets remain out of balance, we can anticipate the liberal left proposing this “cost effective” way of dealing with lawbreakers—“prison reform” through releasing criminals back on the streets. This is the fall-back position when liberals are pressed for budget cuts of their own on the state level.

The appeal of “prison reform” is such that some conservatives have expressed support for it. Ultimately, however, it means reducing the number of criminals in prison. While some public money would be saved, the cost in lives and injuries carried out by criminals back on the streets would be difficult to estimate. The public needs to be on-guard against a renewed push to open the prison gates in the name of saving public money.

The California Experience

So-called “prison reform” that benefits criminals may strike most people as irrational or worse. But three federal judges in California do believe thugs released early from prison will make people safer—causing one to question if they are driven by ideology more than law.

This story out of California is a cautionary one, especially because the budget problems affecting many states could prompt similar initiatives to release prisoners back on the streets. The California experience shows that such measures are usually accompanied by creating panels of “experts” to make the claim in the media that releasing criminals will not only save money but not endanger the public safety.

The California judges, Thelton Henderson, Stephen Reinhardt and Lawrence Karlton, actually asserted in their 2009 opinion issued in the prison overcrowding lawsuits of Coleman v. Schwarzenegger and Plata v. Schwarzenegger (referred to as Coleman/Plata since the court consolidated the two lawsuits), that releasing thugs will make people safer. Before ordering the release of 40,000 convicted criminals from California prisons, the judges wrote in their 184 page opinion, “A reduction in the crowding of California’s prisons will have a significant positive effect on public safety…”[1] [1]

Certainly, these solons of justice did not come to this bizarre conclusion by themselves. They cited “expert” testimony that supported their opinion. For these views, they needed to look no further than a 2007 study requested by the California state legislature. The study was performed by a panel assembled by the California Department of Corrections and Rehabilitation (CDCR)—with the haughty title, Expert Panel on Adult Offender and Recidivism Reduction Programming, CDCR, Report to the California State Legislature: A Roadmap for Effective Offender Programming in California.

This “Roadmap” was supposed to be the seminal document of prison reform in California. California’s penal system had a long history of being criticized—and sued—for being overcrowded and allegedly inhumane. Governor Schwarzenegger called for its reformation soon after taking office in 2004. He assembled a commission—chaired by former governor George Deukmejian—to study the issue.

Three years later though, in 2007, the California legislature wanted to do their own study. Hence the “Expert Panel” report. Some of the recommendations were similar to the Deukmejian recommendations, as well as the myriad of other studies, commissions and reports that have been generated over the years. They generally say the same things, i.e., prisons are overcrowded and inefficient, the parole system is dysfunctional, and the entire system needs to be reorganized.

Judicial Intervention

While all these attempts to reform the prison system were in process, the state was also litigating the Coleman/Plata suit. The suit alleged, among other things, that the prisons violated the inmates’ Eighth Amendment right prohibiting cruel and unusual punishment.

The suit made its way through the courts and in June 2007, the United States District Courts granted motions to convene a Three-Judge Panel, according to the 1996 federal Prison Reform Litigation Act (PRLA), which requires three judges to consider any order to release inmates from prison.

The district courts had determined that the medical and mental health services provided by the CDCR to inmates did not meet constitutional standards. They also determined that the state was not doing anything to correct the problem—despite the numerous commissions, recommendations and legislation. The district court judges felt they needed to intervene and order prisoners released.

However, since the passage of the PRLA, judges cannot do so unilaterally. It is worth noting here that the PRLA was enacted in response to repeated instances of federal judges ordering caps on prison populations that resulted in crime waves. This was the only way that Congress felt the judiciary could be reined in from releasing criminals—allegedly for humanitarian and/or constitutional reasons—to prey on an unsuspecting public.

A Limited role for the Judiciary

Congress believed that while it may be necessary to reduce prison populations occasionally in order to alleviate overcrowding, they also felt that it was too important a pronouncement to be made by just one judge. Their solution was to mandate the convening of a panel of three judges who would then determine that an early release of prisoners was the only remedy available.

This was the task of the Coleman/Plata Three-Judge Panel. It considered whether there were constitutional violations, if overcrowding was the primary cause, and if an early release of inmates was the only solution to make the system comply constitutionally.

After reviewing the case, reading the studies, and hearing “expert” testimony, the three-judge panel concluded, in 2009, that the population of California’s prisons needed to be reduced by 40,000 inmates over a two-year period. The ruling was immediately appealed by California’s then attorney general, and now governor, Jerry Brown. The matter is pending before the U.S. Supreme Court. It was argued on November 30, 2010.

Opposition to Early Release

Attorneys General (AG) of 18 states have filed an amicus brief supporting California’s appeal. Among them is the AG of the state of Delaware who also happens to be the son of Vice President Joe Biden. Such is the nonpartisan political opposition to the early release order.

Among the many objections the AGs mention was one they found particularly egregious. They resented the judges’ assertion that releasing the prisoners will enhance public safety. The AG’s amicus brief states that the judges dismissed “real world experience” and they made reference to a prison cap ordered by a federal judge in Philadelphia 25 years ago that resulted in a crime wave.

The AGs also disputed that the judges had legally determined that constitutional violations existed. They cited that much of what they considered constitutional violations were not.[2] [2]

Coleman/Plata is an important case because it is the first in which a state is opposing a federal court’s PRLA order. Besides the 18 AGs, think-tanks, and community leaders have also filed briefs supporting California.

There are a lot of matters that the Supreme Court will have to sort out. They have a lot of judgments to be made on a variety of issues.

But there is one issue that was not argued before the Supreme Court. It is the motivation of the judges. This is probably a more important issue, albeit one unmentioned.

Soros-funded Progressive Ideology

Are these early release orders indicative of a dogmatic criminal justice philosophy that believes criminals should not be sent to prison? Are judges acting in accordance with a canon that criminals should be rehabilitated rather than incarcerated—as if the two objectives were mutually exclusive?

After all, the doctrine of “rehabilitation not incarceration” is well ingrained in the minds of journalists, social reformers, academicians, and the “progressives.” Many of whom, as we shall see, serve as expert panelists—and often federal judges.

The people who believe that criminals should not be imprisoned are, for the most part, well-intentioned. They truly believe the public would be safer if there were few or no people in prison. These people are sincere but wrong.

Regardless of whether they are well-intentioned or they are just purely political ideologues, these groups receive a great deal of largesse from nonprofit foundations. One of the more generous financiers is George Soros’ Open Society Institute. The Open Society Institute is a mainstay of the opposition to the war on drugs and by extension the anti-imprisonment movement.

Groups opposed to imprisoning criminals also have great access to—and the sympathy of—the media, as anyone who has ever read The New York Times’ Fox Butterfield coverage of crime issues will tell you.

Butterfield’s oxymoronic anti-incarceration articles are legendary. As Jonah Goldberg wrote in a June 2001 Townhall.com column, “Over the years, Butterfield has written a slew of articles in which he expresses genuine amazement that crime rates would go down as more people go to prison. Every year when the Justice Department releases annual crime statistics, Butterfield writes more or less the same thing. Indeed, the headlines say it all.”

Butterfield, for example, wrote a story under the headline, “Number in Prison Grows Despite Crime Reduction.”

Conservative columnist George Will commented, “The Times thought it was odd that when imprisonment increases, crime decreases. The Times won’t consider that punishment cuts crime.”

These crusaders are not limited to California either. They exist throughout the United States—and the world.

The leftwing government of Italian Prime Minister Romano Prodi used the overcrowding issue to implement his policy of “indulto” (loosely meaning ‘pardon’) in July 2006. The effect of this release of prisoners shook the Prodi government to its foundations.

The indulto was presented to the Italian people as a necessary and urgent action to free up the overcrowded jails and reduce government expenditures. Ultimately, it proved to be a costly and—some Italians say —an immoral measure.

Ironically, a recent study by two Italian economists of the effects of pardons in Italy determined that “…the social cost of a release to be significantly larger than the cost of incarceration… (the research) also suggests that pardons should be abandoned or be designed to be more selective.”[3] [3]

There is evidence to suggest that the Coleman/Plata judges were already oriented toward releasing prisoners. They simply needed some validation of their beliefs to justify their actions. This was easy to obtain.

As the AG’s amicus brief noted, “The court relied heavily on expert opinion” and their actions “forget the hard-earned lessons of history.”[4] [4]

The Anti-Incarceration Movement

But those who believe criminals should not be in prison do not believe the lessons of history. The anti-incarceration movement and the prison abolition movement (Yes, Virginia there is a prison abolition movement), like their capital punishment abolitionist cousins, will seize any issue to justify their objective of reducing prison populations as a way of reducing crime.

Currently, they like to point to “fiscal crises.” They try to make the association between prison reductions and state budget reductions. This is meant to appeal to fiscal conservatives.

Yet, in the past the anti-incarceration advocates have also played the race card, the class card, and others. The idea is that people are in prison because they are black, Hispanic or poor. All of these ploys are designed to increase their coalition opposing prisons.

By examining the actions that took place in the Coleman/Plata case it is easy to see a pattern of thinking consistent with the anti-incarceration movement. There were three main aspects.

One, there was a predisposition by the judges to let prisoners out early.

Two, this predisposition was validated by the testimony of some academicians and anti-incarceration advocacy groups who conducted studies that confirm their preconceived notions.

Three, these advocacy groups have a public relations campaign that Madison Avenue would envy.

The PR Campaign

Those who believe prisons to be intrinsically evil will say or do anything to justify their recommendations that criminals should not be incarcerated. As previously mentioned, they have said in the past that since more blacks are sentenced to prison than whites, prisons are racist.

But, they have also used the canard of class. They will say since more poor people go to prison than rich people, prisons only exist to control the masses.

Anti-incarcerationist leaders are sophisticated people. They realize that their theories are not popular. Therefore they appeal to different groups in different ways using different justifications.

Anti-incarcerationists have re-created the guns or butter argument of the anti-defense spending protesters of a generation ago. They establish the false dichotomy that the government either funds prisons or schools. They portray “investments” in education as a means of saving taxpayer dollars on prisons.

This approach appeals to teachers’ unions, some parents and “compassionate” thinkers. It also appeals to fiscal conservatives who want to see a more educated workforce. However, there is no correlation between the two. Funding for both have increased dramatically over the years—with the result that educational attainment has decreased while crime rates have decreased.

Anti-incarcerationists have been superb at controlling the information flow about prisons. They have been extremely successful at creating the image that prisons are costly to governments and that more money is spent on prisons than schools.

A recent poll by the Public Policy Institute of California indicated that “most” Californians’ views about state expenditures are distorted. Given a list of the four top state spending categories—K–12 public education, health and human services, higher education, and prisons and corrections—just 16 percent correctly named K–12 education as the area where the most money is spent. A total of 45 percent of adults named prisons and corrections, which is actually fourth largest.[5] [5]

The 2009-10 enacted California budget spent more than $35 billion on public school education while only approximately $8 billion was spent on corrections and rehabilitation. This is 29.9 percent of the budget for education and 6.9 percent for prisons. Yet, despite the fact that four times more is spent for education than prisons, most of the public thinks it is the opposite.[6] [6] This is because of the public relations strategy using the media of those who want the criminals released.

Given this public perception, the table is already set in favor of reducing expenditures for incarceration in favor of “evidence-based,” more “cost-effective” measures—i.e., alternatives to incarceration.

Hence, as states grapple with their budget problems, we will increasingly be hearing that reducing prison populations will save the taxpayers’ money. Little attention will be given to the cost—in lives—of such an approach.

In order to understand and anticipate this debate, it is necessary to take a look at the “experts” on “alternatives to incarceration.”

The 2007 panel of experts was an all-star cast of alternative-to-incarceration advocates. Some were openly hostile to prisons. So it should come as no great revelation that their recommendations to reducing the overcrowding skewed towards alternatives to incarceration.

For example, the “Expert Panel” co-chair, Professor Joan Petersilia, recounted how she became a member of this panel during an award acceptance speech. She said she was reluctant to accept the assignment since, “(California) seemed hell-bent on simply building prisons, and I saw no indications that they were interested in a more balanced approach.”[7] [7]

Another member of the panel was Mimi Silbert, Ph.D. She is the co-founder and President of the Delancey Street Foundation. This is an organization that provides alternatives to prison for convicted criminals.

Still another “expert” was Elyse Clawson, executive director of the Crime and Justice Institute. This is another nonprofit entity that advocates alternatives to prison.

The CDCR report was not the only expert opinion cited by the judges. The 2007 report by the National Council on Crime and Delinquency (NCCD) was also referenced.

By its name, one could be forgiven for thinking this organization was a governmental entity. Actually, it is a nonprofit organization that was formed in 1907 dedicated to “developing programs to rehabilitate offenders without resorting to incarceration.”[8] [8]

The president of NCCD, Dr. Barry Krisberg, was also an Expert Panel member. His research was cited by the judges to dismiss testimony that early releases would cause crime increases. He was quoted in a May 2010 interview saying “high incarceration rates are not related to public safety.”

Such were the people and organizations that provided the expert testimony which the judges relied on to issue their order that criminals can be released from prison without jeopardizing public safety—and possibly increasing it. Once again, it should be reiterated that this is not to say that these people are malicious. But it should not come as a revelation to anyone that if you ask people who are opposed to incarceration how to solve a problem about overcrowded prisons, do not be shocked if the solution involves not incarcerating prisoners.

Many anti-incarcerationists are academicians who—as the AG amicus brief noted—disregarded real world experiences. What is even more disconcerting, though, is that they are never held accountable for their proposals even though theirs is an inexact science.

The Cost of Criminals

Social scientists are not necessarily accountable for the results of their studies. If they make a mistake—well then they congratulate themselves on their brilliance anyway.

Certainly this 2007 “Expert Panel” study was a landmark one. After all, the panelists said so. They were very happy with the results of their labors. They acted as if they knew all the answers.

Co-Chair Marisela Montes, CDCR’S Chief Deputy Secretary of Adult Programs, said, “The expert panel’s report will be an invaluable tool…The roadmap will allow the state to accelerate plans to carry out the department’s renewed mission of rehabilitation.”

Petersilia said, “The key to reducing the number of inmates who return to prison lies in matching the needs of individual inmates to evidence-based rehabilitation programs…Preparing offenders for a crime-free and successful life upon release will ultimately improve public safety.”

There are two problems with experts and their studies. First, the “experts” are not as expert as they say. This is especially true in criminology where theories and counter-theories abound.

Criminology is not an exact science. Indeed, it is very subjective.

Examining the “Experts”

Gennaro Vito, Ph.D., is the Distinguished University Scholar and Professor in the Department of Justice Administration at the University of Louisville. He is a past president of the Academy of Criminal Justice Sciences. He is the co-author, along with Prof. Jeffrey R. Maahs and Prof. Ronald M. Holmes, of a 2007 book titled Criminology: Theory, Research and Policy.

He wrote, “Although science generally strives to be ‘value free’ criminology is heavily influenced by ideology. Liberal (left) criminologists tend to associate with the positive school of crime and focus on social causes of crime. Conservative (right) criminologists lean toward the classical school of crime and to focus on deterrence.”[9] [9]

This does not mean criminologists’ theories or counsel should be rejected. But it does mean that it is subjective and there is no evidence that criminologists have a precise solution to any problem.

The problem with the CDCR’s Expert Panel, as constituted, was that it was biased towards liberal criminologists. It did not have one police officer, not one prosecuting attorney, not one victims’ rights advocate, not one criminologist favoring incarceration, nor one bail bondsman—who could certainly provide a wealth of experience about the reliability of those awaiting trial.

There was not one person whose education, training or experience was oriented to keeping people in prison. But it did include many social scientists who subscribe to an anti-incarceration mentality.

This is the incestuous relationship of anti-incarcerationists. This is what was meant earlier by a “self-perpetuating group.”

The second problem with “experts” is that they often contradict themselves. This is especially true in the areas of parole and probation. They like to talk about alternatives to incarceration—because they believe incarceration and punishment do not deter crime. [10] [10]

But, on the other hand, they readily admit that if all else fails, incarceration is the last resort for parolees (and probationers) who are incorrigible. Why is it then, if punishment does not deter behavior, this must be the ultimate penalty?

There are some criminologists who are skeptical of the expert panel findings. Some think their proposals and the judges’ orders are antithetical to the idea of rehabilitation.

“I support the concepts of the expert panel,” said criminologist Ronald Hunter, Ph.D., a former president of the Academy of Criminal Justice Sciences. “But good intentions do not work. The key is they only have two years to do this; can they do what they say they will do?”

Hunter wants to see the proof that what they are recommending will be successful. “Can they give examples of programs that dealt with large numbers of parolees that have been successful and can be replicated in California?,” he asked.

Richard Kania, a criminal justice professor at Jackson State University, finds one of the most disturbing aspects of early release orders by judges is that the people who are released are not rehabilitated—they are just said to be less dangerous.

He said during an interview, “Although I have not done any studies to validate this, it is my opinion that the people who are being released are not those who have exhibited rehabilitated behavior. This was the old model used to judge someone worthy of parole. Now the people being paroled are those who are just said to be “less dangerous” than the ones kept in prison.”

The judges’ unwillingness to accept testimony by law enforcement officials, prosecutors and others who claim public safety is in danger because of early releases is disconcerting.

Ideology Trumps Public Safety

Not only is criminology inexact and not only are criminologists biased, so are corrections officials and judges. Everyone has their own prejudices. But what was appalling about the California Expert Panel was that the left-wing or “progressive” philosophy seemed to be accepted among those who arranged its composition.

As noted previously, there was a palpable lack of other experts such as prosecuting attorneys, police officers, crime victims’ advocacy groups, business leaders, and bail bondsmen, all of whom could add pearls of wisdom to any study of criminal behavior, the benefit of prisons and the fallacy of releasing prisoners early. But they were not included.

The judges did hear or read testimony that releasing prisoners would increase crime. But they dismissed it.

Fresno Police Chief Jerry Dyer testified that his city experienced an increase in crime with an early release of parolees in 2005. The Orange County Sheriff’s Department stated that inmates released by a court ordered prison cap were rearrested for crimes they committed when they would have been in custody. The Los Angeles County Sheriff’s Dept. stated that ten percent of those released early were rearrested including sixteen people for murder.[11] [11]

But all this evidence was dismissed and the judges chose to rely on Krisberg’s findings instead.[12] [12] The question can be legitimately asked if the judges were only considering that which validated their preconceived opinions that prisons are bad places and people should not be in them.

There is no question that the judges believed they were acting in the best interests of the convicts. They do believe they are acting to enforce the Constitutional provisions of cruel and unusual punishment.

As is the case with the anti-incarceration advocacy groups it is not their motives which are being questioned. The judges have demonstrated that they do believe some criminals belong in prison. They have demonstrated that they have given more than enough time for California to correct its overcrowded prisons problem.

It is their solution that is being questioned. It is their judgment between the rights of the accused and the rights of the victims and the rights of the public to be safe and secure in their persons and property that is being questioned—legitimately so.

Criminals as Victims

Some people in the criminal justice system believe that criminals are victims of society. Could the judges also be of this opinion? There is evidence to suggest they are.

Henderson, Reinhardt and Karlton, the three Coleman/Plata judges have a record of liberal judicial activism. A case could be made that all three subscribe to the “criminals are victims of society” school of criminology.

Judge Thelton Henderson was involved in one infamous parole case that even stunned the liberal media. He was responsible for the controversial parole of Johnny Spain, who was convicted in the murder of three prison guards during a prison escape attempt. Even the Los Angeles Times, certainly not a bastion of get-tough-on-crime thought, said Henderson’s actions were “unusual.”

An article in the February 12, 1988 edition said, “Under pressure from a federal judge, a divided state parole [13] panel…ordered the release of former Black Panther Johnny Spain, the only person convicted of murder in a…prison riot that left…three guards dead. The panel voted 2 to 1 that Spain should be freed within two years….Even as they voted to allow his release, panel members complained that they had no choice because of an order last week by U.S. District Judge Thelton Henderson. Henderson directed the board not to consider Spain’s conviction of murder …of San Quentin guards Frank DeLeon and Jere Graham in their parole decision.” (Emphasis added).

The Times continued, “Henderson issued the unusual order because, in a separate proceeding last year, he overturned Spain’s conviction…Henderson ruled that Spain was denied a fair trial because he was chained during the 203-day trial in Marin County.”[13] [14] (Emphasis added)

Judge Stephen Reinhardt could also conceivably be of the “society makes criminals” club. He is married to Ramona Ripston who was the Executive Director of the ACLU of Southern California.

Yet, it is not his marriage that is the reason he could be considered opposed to putting criminals in prison. A 1986 newspaper article is more revealing. It quoted a Los Angeles prosecuting attorney who said Reinhardt “is looking to reverse every criminal case that comes along.”[14] [15]

The Supreme Court recently overturned Reinhardt’s ruling in the Swarthout vs. Cooke case. He wrote the opinion that Cooke, who was serving a life sentence, should not be denied parole—even though the Parole Board felt he was too much of a risk if paroled.[15] [16]

But it is in a 1979 letter to the editor of the New York Review of Books written by Judge Lawrence Karlton that provides the most insight into the attitudes and beliefs of anti-incarcerationists, prison abolitionists, radical criminologists, and liberal judges. Writing in response to a review of a book called American Terror, Karlton chided the review for criticizing judges too harshly.

He wrote, “….I frankly believe that many trial judges unfortunately are not sympathetic to the values of the Fourth and Fifth Amendments… “ and declared that the public often exhibited “antipathy to ensuring constitutional rights for the accused.”

It is this attitude that Thomas Sowell referred to in his book Vision of the Anointed. The “anointed” are those who believe that they are intellectually and morally superior. They have a set of beliefs that enable them to choose the difference between right and wrong with the precision of an algebraic equation. Such people will always be apart from popular opinion if for no other reason then the need to be different from others.

Liberal Judges and Their “Experts” Threaten the Public

As states examine their budgets and consider various cuts, including for prisons, it is necessary for the public to understand that the well-organized push for releasing criminals back on the streets is the result of liberal or “progressive” ideology and not any kind of “evidence” that this approach actually works. Claims about prisoners being denied their “rights” will only serve to impinge on the rights of the law-abiding.

There is a segment of the criminal justice system which believes that prisons are a last resort and even then should be used only sparingly. There is even a small but vocal group who believe that prisons should be abolished entirely because they represent a repressive system of social control.

Some experts believe that prison expenditures, overcrowded prisons, and rights are tertiary considerations for judges who order prisoners released early. These judges may actually believe that no one should be in prison.

William Otis is a former Chief of the Appellate Division for the U.S. Attorney’s Office for the Eastern District of Virginia. He is also a member of the Federalist Society, a legal system reform organization. He provides expertise regarding sentencing issues. He was asked if he thought that the California judges’ ruling indicated concern for the state budget or an example of liberal dogma.

He said, “Mostly it will be, and is, simply an add-on for a pre-existing view of the world in which imprisonment is viewed as excessively harsh and retrograde.”

He added that even “die-hard liberals admit that more imprisonment has caused a part of the dramatic decline in the crime rate over about the last two decades.”

More Prisons, Less Crime

Otis said that the answer is readily apparent —“when you put in jail the people who commit crime you get less crime. Conversely, when you start releasing them, you will get more crime.”

The false dichotomy of rehabilitation versus incarceration and punishment has existed since at least the first National Prison Association Congress of 1870. The Declaration of Principles states among other things:

  • “The supreme aim of prison discipline is the reformation of criminals, not the infliction of vindictive suffering.”
  • “Rewards, more than punishments, are essential to every good prison system.
  • “Peremptory sentences ought to be replaced by those of indeterminate length.”

This could be taken almost word for word by the CDCR Expert Panel report almost a century and a half later.

While there are those on both sides of the political continuum determined to reform the prison system, even right-wing reformers, such as the Texas Public Policy Foundation (TPPF), do not favor releasing dangerous individuals simply for the purpose of saving money. As TPPF’s Marc A. Levin said during an interview, “As states address their budget crises, they must keep in mind that public safety is, like national defense at the federal level, the most vital responsibility of state and local governments.”

TTPF also considers federal court intervention undesirable. They disdain across the board early releases as endangering public safety and they are opposed to the liberal or progressive notion that society causes crime.

The anti-incarcerationists and prison abolitionists are motivated by a different dynamic. Organizations like the Soros-funded Sentencing Project want prison sentences reduced or eliminated entirely.

Their main motivation is a belief that incarceration is an expression of their perspective that society creates criminals and criminals are themselves victims. They believe that they have the ability to reform criminals and make them productive members of society. It is irrelevant that they have not been able to do so.

Professor Richard Berk is a Professor of Statistics and Criminology at the University of Pennsylvania. He was co-author of a study published in 2008 titled “Forecasting Murder.” Using data provided by Philadelphia’s Adult Probation and Parole Dept. (APPD), the researchers wanted to see if they could determine who would commit a murder while on parole or probation. What they found was that “It is impossible to anticipate accurately whether statistical forecasting of serious crime would result in more or less crime or imprisonment.”

No matter how many expert panels the state of California assembles, no matter how much research they do, and no matter how much judges rely on this data—the fact is that their opinions are inexact at best and completely wrong at worst.

But when they influence judges and public policy, they are playing with the lives of real citizens who could end up as real victims of criminals released back on the streets.

When this inexact data is coupled with judges who believe that the citizenry is nothing more than a lynch mob; judges who think they are the only protection between that mob and a criminal—who they consider a victim of society—then you have a recipe for disaster.

This disaster could become a reality if states began emptying the prisons in response to budget problems.

Incarceration Works

As Gordon Tullock, professor emeritus of Law and Economics at George Mason University in Virginia, once said, “It is clearly more appealing to think of solving criminal problems by means that are themselves not particularly unpleasant than to think of solving it by methods that are unpleasant….We have an unpleasant method—deterrence—that works, and a pleasant method—rehabilitation—that never has worked….we have to opt either for the deterrence method or for a higher crime rate.”[16] [17]

The crux of the early release issue is the ideology driving it—a self-perpetuating cycle of academicians, judges, lawyers, and reformers moving away from what worked—incarceration—back to the old philosophy of “letting them loose,” which did not work.

Parole boards, judges, legislatures and academicians should be accountable for the results of their policies if they lead to crime and suffering. Currently they are not.

Perhaps if they were accountable, they would be less likely to engage in their social engineering at the expense of innocent people.

Governor Scott Walker understands the principle of accountability as he moves forward to solve the budget problems in Wisconsin. He is determined to maintain public safety.

*Michael P. Tremoglie is an author and journalist who has written for the Philadelphia Inquirer, Philadelphia Daily News, Pittsburgh Tribune-Review, Frontpagemag,com, Human Events, Insight Magazine, American Legion Magazine and many others. His work has been featured on the Rush Limbaugh show, Fox News Channel and by syndicated columnists such as Michelle Malkin and Walter Williams. Mike has been a frequent guest on radio and television talk shows.  HIs novel A Sense of Duty is available at Barnesandnoble.com, Amazon.com and Atlantic Bookstores.


[1] [18] Fm w/s http://www.caed.uscourts.gov/caed/Documents/90cv520o10804.pdf 1-25-11 [19] p.133 line 22 and 23

[2] [20] Re fm w/s http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/09-1233_AppellantAmCuStatesofLouisiana.pdf [21] 1-14-11

[3] [22] Ret fm w/s http://www.carloalberto.org/people/mastrobuoni/doc/ReducedPardonAugust1.pdf [23] 1-28-11

[4] [24] Ret fm w/s http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/09-1233_AppellantAmCuStatesofLouisiana.pdf [21] 1-28-11

[5] [25] http://www.ppic.org/main/pressrelease.asp?p=1078 [26]

[6] [27] http://2009-10.archives.ebudget.ca.gov/Enacted/agencies.html [28]

[7] [29]Ret fm w/s  http://ucicorrections.seweb.uci.edu/files/Influencing%20Public%20Policy%20-%20an%20embedded%20criminologist%20reflects%20on%20California%20prison%20reform.pdf [30] 1-26-11

[8] [31] Ret fm w/s http://www.nccd-crc.org/nccd/about/history.html [32] 2-1-11

[9] [33] Ret fm w/s http://books.google.com/books?id=2tehE36CziMC&pg=PA27&lpg=PA27&dq=conservative+criminologists&source=bl&ots=i1k_JSXdAk&sig=RFzIbhC7zBrzSSHWzk0ZZER1Ep0&hl=en&ei=9AdHTbjqBML7lwe2s-Un&sa=X&oi=book_result&ct=result&resnum=8&ved=0CEkQ6AEwBw#v=onepage&q=conservative%20criminologists&f=false [34] 1-31-11

[10] [35] Research by Wright, Caspi, Moffitt, and Paternoster (2004) and Taxman, Soule, and Gelb (1999) determined that punishment, particularly severe punishment, does not deter behavior and that it might actually cause offenders to be more defiant. Ret fm w/s http://www.cdcr.ca.gov/news/docs/Expert_Rpt/ExpertPanelRpt_Part1.pdf   1-25-11 [36]

[11] [37] Ret fm w/s http://www.caed.uscourts.gov/caed/Documents/90cv520o10804.pdf    2-2-11 [38] p 143

[12] [39] Re fm w/s http://www.caed.uscourts.gov/caed/Documents/90cv520o10804.pdf    2-2-11 [38] p. 144

[13] [40] http://webcache.googleusercontent.com/search?q=cache:ykr-Y7qNQlgJ:articles.latimes.com/1988-02-12/news/mn-28565_1_black-panther+henderson+overturned+conviction+Johnny+Spain&cd=4&hl=en&ct=clnk&gl=us

[14] [41] Ret f/m w/s http://articles.latimes.com/1986-08-17/news/mn-16516_1_stephen-reinhardt/7 [42] 2-2-11

[15] [43] Ret fm w/s http://webcache.googleusercontent.com/search?q=cache:WBqSCUbxv8YJ:www.latimes.com/news/nationworld/nation/la-na-supreme-court-20110125,0,6372087.story+Stephen+Reinhardt+criminal+cases&cd=3&hl=en&ct=clnk&gl=us&source=www.google.com2-3-11

[16] [44] Quoted in The Index of Leading Cultural Indicators


Article printed from Accuracy In Media: http://www.aim.org

URL to article: http://www.aim.org/aim-column/how-state-budget-battles-could-mean-more-criminals-back-on-the-streets/

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[13] parole: http://webcache.googleusercontent.com/keyword/parole

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[17] [16]: #_ftn16

[18] [1]: #_ftnref1

[19] http://www.caed.uscourts.gov/caed/Documents/90cv520o10804.pdf 1-25-11: http://www.caed.uscourts.gov/caed/Documents/90cv520o10804.pdf%C2%A01-25-11

[20] [2]: #_ftnref2

[21] http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/09-1233_AppellantAmCuStatesofLouisiana.pdf: http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/09-1233_AppellantAmCuStatesofLouisiana.pdf

[22] [3]: #_ftnref3

[23] http://www.carloalberto.org/people/mastrobuoni/doc/ReducedPardonAugust1.pdf: http://www.carloalberto.org/people/mastrobuoni/doc/ReducedPardonAugust1.pdf

[24] [4]: #_ftnref4

[25] [5]: #_ftnref5

[26] http://www.ppic.org/main/pressrelease.asp?p=1078: http://www.ppic.org/main/pressrelease.asp?p=1078

[27] [6]: #_ftnref6

[28] http://2009-10.archives.ebudget.ca.gov/Enacted/agencies.html: http://2009-10.archives.ebudget.ca.gov/Enacted/agencies.html

[29] [7]: #_ftnref7

[30] http://ucicorrections.seweb.uci.edu/files/Influencing%20Public%20Policy%20-%20an%20embedded%20criminologist%20reflects%20on%20California%20prison%20reform.pdf: http://ucicorrections.seweb.uci.edu/files/Influencing%20Public%20Policy%20-%20an%20embedded%20criminologist%20reflects%20on%20California%20prison%20reform.pdf

[31] [8]: #_ftnref8

[32] http://www.nccd-crc.org/nccd/about/history.html: http://www.nccd-crc.org/nccd/about/history.html

[33] [9]: #_ftnref9

[34] http://books.google.com/books?id=2tehE36CziMC&pg=PA27&lpg=PA27&dq=conservative+criminologists&source=bl&ots=i1k_JSXdAk&sig=RFzIbhC7zBrzSSHWzk0ZZER1Ep0&hl=en&ei=9AdHTbjqBML7lwe2s-Un&sa=X&oi=book_result&ct=result&resnum=8&ved=0CEkQ6AEwBw#v=onepage&q=conservative%20criminologists&f=false: http://books.google.com/books?id=2tehE36CziMC&pg=PA27&lpg=PA27&dq=conservative+criminologists&source=bl&ots=i1k_JSXdAk&sig=RFzIbhC7zBrzSSHWzk0ZZER1Ep0&hl=en&ei=9AdHTbjqBML7lwe2s-Un&sa=X&oi=book_result&ct=result&resnum=8&ved=0CEkQ6AEwBw#v=onepage&q=conservative%20criminologists&f=false

[35] [10]: #_ftnref10

[36] http://www.cdcr.ca.gov/news/docs/Expert_Rpt/ExpertPanelRpt_Part1.pdf   1-25-11: http://www.cdcr.ca.gov/news/docs/Expert_Rpt/ExpertPanelRpt_Part1.pdf%20%20%201-25-11

[37] [11]: #_ftnref11

[38] http://www.caed.uscourts.gov/caed/Documents/90cv520o10804.pdf    2-2-11: http://www.caed.uscourts.gov/caed/Documents/90cv520o10804.pdf%20%20%20%202-2-11

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[42] http://articles.latimes.com/1986-08-17/news/mn-16516_1_stephen-reinhardt/7: http://articles.latimes.com/1986-08-17/news/mn-16516_1_stephen-reinhardt/7

[43] [15]: #_ftnref15

[44] [16]: #_ftnref16

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