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To a Man With a Hammer, Every Criminal Justice Problem Looks Like a Nail

26 March 2021


With public confidence in police the lowest it has been in decades, plummeting clearance rates for homicide and other serious crimes, and growing unrest over our criminal justice system’s myriad pathologies, Josh Hammer takes to the pages of City Journal to trumpet a spike in violent crime during the COVID pandemic and issue a clarion call for an even more carceral response across the board—more laws, more arrests, more convictions, and more bodies in cages. Why? Because despite being the world’s most prolific jailers, our real problem is that we don’t lock up enough people. Nearly every sentence in Hammer’s piece is wrong. In reality, crime trends have been at historic lows for decades (even as many states and the federal government have been locking up fewer people, not more), and there is zero evidence of any connection between decarceral criminal justice reforms and the surge in violent crime during the COVID pandemic. But in Hammer’s telling, high crime rates began to plummet in the 1990s amidst bipartisan support for “tough on crime” policies, and we have been reaping the supposed benefits of that aggressively carceral approach ever since. Lately, however, a feckless band of “light‐​on‐​crime libertarians” and Soros‐​loving Democrats have been trying to undo that progress under the banner of criminal justice reform by prosecuting fewer crimes, imposing lighter sentences, and making police more accountable. It’s an interesting and certainly creative historical take, but it doesn’t stand up to scrutiny. Let’s start with the view that being tough on crime and imposing draconian sentences on large swaths of Americans was the primary cause of the great crime decline of the 1990s. Hammer is not an economist or criminologist, and he cites no support for the suggestion of a strong causal link between crime rates and incarceration rates—presumably because the evidence from actual experts is contrary . Many variables, such as social, economic, and environmental factors influence criminal activity, and experts have found that increases in incarceration have only a small impact on the crime rate. Indeed, one prominent economist replicated several “high‐​credibility” studies on whether incarceration reduces crime, and he concluded that “the best estimate of the impact of additional incarceration on crime in the United States today is zero.” These experts’ views are borne out by recent data. Between 2007 and 2017, thirty‐​four states reduced both their crime rates and their prison populations . With helpful facts in short supply, Hammer tars the First Step Act as an “unparalleled federal jailbreak” without noting that it was a modest reform that has thus far seen the release of just a few thousand aging prisoners—a rounding error in a country with more than two million people behind bars. And his vacuous assertion that it’s “no big stretch to get from the First Step Act to last summer’s prolonged Antifa‐​Black Lives Matter urban anarchy” is pure applesauce, unadorned by data, evidence, or syllogism. Equally puzzling—particularly from a self‐​styled “common‐​good” originalist—is Hammer’s embrace of qualified immunity, a judicially confected legal doctrine specifically designed to ensure that police and other “state actors” who have been plausibly alleged to have violated people’s rights don’t have to answer for it in court. More thoughtful conservatives, including Justices Antonin Scalia and Clarence Thomas , Judge Don Willett , and University of Chicago Law Professor Will Baude , have challenged the legitimacy of qualified immunity on originalist grounds, while scholars of all stripes have shown what an unmitigated disaster it has been for justice, accountability, and the “moral primacy of order and public safety” that Hammer himself extols in his piece. Another surprise coming from a conservative is Hammer’s apparent disdain for democracy, at least when it involves electoral majorities choosing reform‐​minded district attorneys who entertain the heresy that it might actually be possible—as such notoriously crime‐​friendly states as Texas, Georgia and Mississippi discovered—to reduce crime rates while locking up fewer people. The leave‐​no‐​prison‐​unfilled approach Hammer touts goes well beyond what even Jeff Sessions and William Barr implemented during their respective tenures as Attorney General. There are over 5,000 federal crimes, yet neither Sessions nor Barr tried to charge everyone who violated those statutes. They couldn’t. The federal criminal justice system would be overwhelmed if they did, which is why they used prosecutorial discretion the same way so‐​called “progressive” prosecutors have—to prioritize and target the worst behaviors. Americans should be wary of enthusiastic dilettantes who think a one‐​year spike in crime rates during a global pandemic represents a civic emergency for which the only prescription is to abandon decades of progress on criminal justice reform and simply put even more people behind bars. We tried that approach, and we learned that it doesn’t work—those of us who did our homework, anyway.



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