Over at PoweLine, Paul Mirengoff has this extended post trying to make a case against the FIRST STEP Act under the headline "Cold Facts On Recidivism Undermine Case For Leniency Legislation." I find some of Mr. Mirengoff's posts to be astute even though he relies often on "tough-and-tougher" rhetoric to oppose any possible form of sentencing reform. But this latest effort is full of especially fuzzy work. Let me explain with some quotes (indented and italicized) followed by my commentary.
Last week, the Department of Justice released an updated study from the Bureau of Justice Statistics (BJS) showing that 83 percent of prisoners released by states are re-arrested within nine years of their release. 44 percent of released state prisoners were arrested during the first year after release, 68 percent were arrested within three years, and 79 percent within six years.... The results of the study should deter the Senate from embracing the FIRST STEP legislation passed by the House just before the BJS figures were published. Indeed, the BJS numbers undermine FIRST STEP in multiple ways.
First, it is estimated that FIRST STEP would mandate the immediate release of at least 4,000 federal felons before they serve their full sentence. Given the recidivism numbers from the BJS study, we know that a high percentage of the 4,000 will commit crimes during the period during which, absent FIRST STEP, they would be behind bars.
Mr. Mirengoff accurately reports that the BJS study (which I noted in this prior post) concerns state prisoners, though he fails to note these are folks who were released from state prisons in 2005. From the very outset it is very faulty to assert that recidivism data on state prisoners released in 2005 readily enables us to "know" what federal prisoners released in 2018 will do.
The US Sentencing Commission's most recent report on federal prisoner recidivism, notably, shows a much lower (though still significant) rearrest rate than state prisoners. Here is how the USSC explains how distinct the federal population is from the state population when running prisoner recidivism numbers: "Compared to a cohort of state prisoners released into the community in 2005 and tracked by the Bureau of Justice Statistics, federal offenders had a lower recidivism rate. BJS found that 76.6 percent of offenders released from state prison were rearrested within five years. The Commission, using a comparable five year follow-up period and including only federal offenders released from prison ... found the recidivism rate for these federal offenders was 44.9 percent."
Moreover, the estimated 4000 prisoners to be getting earlier release thanks the FIRST STEP Act will be getting out mostly a few weeks or a few months earlier because of getting a little extra credit for good behavior in prison. The proper statistics suggest, based on the nature of federal prisoners and how limited the FIRST STEP Act really is, that only a quite low percentage "of the 4,000 will commit crimes during the period during which, absent FIRST STEP, they would be behind bars."
Mr. Mirengoff goes on:
Second, the BJS study tells us that the crimes that federal drug felons will commit aren’t confined to drug crimes. According to the study, more than three-quarters (77 percent) of released drug offenders were arrested for a non-drug crime within nine years, and more than a third (34 percent) were arrested for a violent crime. So much for the argument we hear over and over again from Team Leniency that those incarcerated for drug crimes are “non-violent offenders.”...
Again we have the problem of conflating data on state prisoners with federal prisoners. But here we have an even bigger logical flaw because the BJS recidivism data does not show that persons who committed state drug crimes really were violent offenders before they went to state prison, rather it shows that they became violent offenders (or, more accurately, were arrested for a violent offense like assault) after spending time in prison. This actually goes to the heart of the argument for any form of (state or federal) prison reform: we need to do a better job of making prison a place where people become better people not worse criminals.
Mr. Mirengoff continues:
Third, the numbers undermine the rational for FIRST STEP used by certain conservative Senators such as John Cornyn. They argue that some states have made great strides when it comes to rehabilitating prisoners. Thus, the argument goes, statistics about recidivism rates among federal prisoners do not provide a sound basis for opposing sentencing reform, provided the reform also includes corrections reform. The idea is to bring model state prisoner rehabilitation programs into the federal system. This, it is said, will cause recidivism rates to plummet, making America safe for the early release of federal drug felons and for a reduction of mandatory minimums. The BJS numbers tell us that the states, collectively, are doing no better than the feds when it comes to rehabilitating prisoners.
But what about “model” states like John Cornyn’s home state of Texas, so often touted by sentencing and corrections reform advocates? It turns out that Texas isn’t doing any better than the feds either. The numbers that reform advocates use to calculate recidivism in Texas count only re-incarcerations, not re-arrests. By contrast, the federal system measures recidivism by re-arrests (to be sure not everyone arrested has committed a crime but then, not everyone who has committed a crime is arrested). If one compares apples to apples — federal re-arrests to Texas re-arrests — the recidivism rate in Texas is actually higher than the federal rate, according to the National Association of Assistant U.S. Attorneys. FIRST STEP is thus founded on a fiction — the view that enlightened states have discovered the key to the age-old problem of how to rehabilitate criminals.
Again, a lack of context concerning time and place and prisoners makes this reasoning faulty. The BJS data reveal that Texas and other states did a lousy job rehabilitating those prisoners who were released back in 2005 before the modern wave of reforms in Texas or anywhere else. This Right on Crime posting highlights the reform put in place in Texas starting in 2007, and Texas was really the first state to get started on these types of "modern" reforms. Data on state prisoners released in 2005 will never prove that state reforms started in 2007 are ineffectual.
Now that all said, neither Texas nor any other jurisdiction has all of a sudden "discovered the key to the age-old problem of how to rehabilitate criminals." This is an age-old problem because it never has had and never will have an easy or obvious solution. People and crime are way too complicated for magic bullet solutions. But what Texas and other states have done, and what the FIRST STEP Act aspires to do, is move forward with reforms that have provide to help at least a little bit with the the age-old problem of how to rehabilitate criminals. No programming ever can or ever will miraculously drop recidivism rates to near zero, but Mr. Mirengoff wants that to be the prerequisite to any reforms:
Let’s see recidivism rates plummet on a sustained basis, using apples to apples comparisons, before the first federal prisoner is released early and the first mandatory minimum is reduced.
It would be more direct and more honest if Mr. Mirengoff simply said "Let’s never allow a federal prisoner to be released early or any mandatory minimum to be reduced."
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