A New Agenda for Criminal Justice

The Conservative Reform Network (CRN) published this as part of its Room To Grow series, a collection of domestic policy briefing books that covers 19 topics, including poverty, housing, and work.

In the United States, approximately 700 out of every 100,000 people are in jail or in prison.[1] This is the highest fraction in the developed world — and by a significant margin. In England and Wales, the figure is 148 out of every 100,000. In Australia, which was settled by the British as a penal colony in the late 1700s, the figure is 152. In Canada, it’s 106. In many developed nations outside the traditional English common-law sphere, the figures are even more striking. In Norway, it is 71. In Japan, it is 48.

Our extremely high rates of incarceration might be justified if they brought down crime rates. But the connection between the two is tenuous. While crime rates have declined steadily in the U.S. since 1994,[2] they have been declining throughout the developed world — including in nations, such as the Netherlands and Germany, which have actually been cutting prison populations.[3]

Even within the U.S., some states have resisted the incarceration trend, and yet they too have seen major reductions in crime. The two states that saw the biggest crime drops from 1994 to 2012, New York and Florida, went in different directions on incarceration. New York incarceration rates fell by 24%, while in Florida, rates increased by 31%.[4]

Most criminologists believe that between a quarter and a third of the recent decline in crime can be attributed to America’s overall increase in incarceration.[5] At a certain point, however, incarceration seems to yield diminishing returns.[6] It is even possible for incarceration to increase crime. After long stints in prison alongside habitual, violent offenders, people who were otherwise non-violent learn bad habits, lose valuable skills, and become less capable of a successful reentry to society. Over 40% of state prisoners return within three years.[7] Prison, it is sometimes said, is like graduate school for criminals.

Americans pay dearly for these counter-productive policies. At the federal level, the budget for the Bureau of Prisons grew by approximately 1,700% from 1980 to 2010, and the bureau now devours 25% of the entire Department of Justice (DOJ) budget.[8] The Urban Institute projects that by 2020, if present trends continue, 30% of the DOJ budget will be devoted to federal prisons, crowding out crime-prevention initiatives.[9]

Not all of the costs are monetary. It is tragic that so many Americans are wasting away in cells. It is equally tragic that so many families are left behind. In some neighborhoods in America, a third of the young fathers are in prison. Overwhelming sociological data — and basic common sense — suggest that children of incarcerated parents have lower rates of educational achievement, higher rates of teen pregnancy, lower lifetime incomes, and a higher likelihood of eventually being incarcerated themselves.

Incarceration rates in the United States should come down. But it is crucial that the crime rate come down along with them. It is crucial, first, because the crime rate is still far higher than it was in the 1950s and 60s. It is also politically crucial: Americans will not support any reform of the criminal justice system that endangers the hard-won gains to public safety that we have seen in the last two decades. Conservatives take pride in their reputation for being “tough on crime.” They need not compromise that reputation or the convictions associated with it in order to take the lead in criminal justice reform; in fact, that reputation is why they can take the lead.

HOW WE GOT HERE

America has not always had so many people behind bars. In the first half of the 20th century, rates of incarceration — and rates of crime — were much lower than they are now.[10] While federal prisons now house over 200,000 offenders, they housed only around 20,000 in 1960.[11] The difference cannot merely be attributed to population growth: The U.S. population certainly grew from 1960 to 2015, but it did not grow ten-fold.

In the mid-1960s, crime rates suddenly and rapidly began to soar, a trend that continued for three decades. Sociologists are still not sure why this happened, but thinkers like James Q. Wilson and Steven Pinker have suggested that it may have been an inevitable outgrowth of the “if it feels good, do it” ethos of the decade.[12]

New York City, in particular, was the face of the crime wave. A 1990 Time cover with the caption “The Rotting of The Big Apple” infamously depicted the muggings, robberies, and murders for which New York had become notorious. Daily life in the city was frightening, and law enforcement was thought to be helpless. Small-business owner Bernie Goetz became a vigilante icon when he shot four teenage subway muggers in 1985. Even in popular culture, movies like Serpico, Taxi Driver, and Dirty Harry (with a script originally set in New York) portrayed urban environments in which crime and chaos ruled.

In response, progressives offered few policy solutions beyond bromides about how crime was an outgrowth of racism and poverty. Some even seemed to celebrate the charm of the disorder. Conservatives took a rather different approach. Theorists agree that the criminal justice system has four purposes: deterrence, rehabilitation, retribution, and incapacitation.[13] Conservatives doubled down on incapacitation, pushing to build more prisons, lock up more offenders for longer periods, and limit the availability of community supervision alternatives.

Presidential politics was dominated by the domestic crime issue. In 1972, Richard Nixon ran a television commercial titled “Vote Like Your Whole World Depended On It,” in which he described the dramatic uptick in crime and pledged to prospective voters that “the wave of crime is not going to be the wave of the future in America.”[14] In 1988, George H.W. Bush attacked Michael Dukakis by citing a Massachusetts furlough program and the notorious recidivist it released, a man named Willie Horton. Months before, in the Democratic primary, Al Gore had attacked Dukakis for the same furlough program. In 1992, Bill Clinton, in an overdramatic gesture that was viewed as a demonstration of his “tough on crime” bona fides, left the campaign trail to oversee the Arkansas execution of a mentally retarded man who had murdered a police officer.[15]

By 1994, when President Clinton signed the Violent Crime Control and Law Enforcement Act — legislation, drafted by Senator Joe Biden, that among other things gave states an incentive to build prisons — it was clear that ratcheting up incarceration was a bipartisan cause.[16]

It now seems apparent that while the initial increase in incarceration was justified, the pendulum has swung too far. Numerous low-risk, non-violent offenders are being swept up in a criminal justice system that is too punitive and too vast. Often, states coped with the resulting overcrowding by simply building more prisons. The cost of these facilities is extraordinary, however, when compared to alternatives. In Texas, for example, a day in prison costs $50.04, whereas a day of probation costs $2.99 — and prison in Texas is relatively cheap.[17] Prison costs in California, where the prison-guard union is extremely powerful, are four times as high.[18]

From 1994–2012, seven states reduced both their crime rates and their incarceration rates.[19] In more recent years, other states have followed suit, and from 2008–2012, the majority of states have seen declines in both crime and incarceration.[20] As with so many things in the social sciences, it is difficult to establish with full confidence that policy changes in the states caused the declines in incarceration. These figures do make it clear, however, that declining crime rates do not necessarily depend on increasing incarceration. As UCLA professor Mark Kleiman explains, it is possible “to have less crime and less punishment.”[21]

Justice Louis Brandeis famously described the states as “laboratories of democracy,” and the states that have managed to reduce incarceration rates while also seeing crime rates drop have run exceptionally successful experiments.[22] Many of these successes have come in “red states,” generally in the South or the Midwest. Conservative governors (e.g., Nathan Deal of Georgia, Dennis Daugaard of South Dakota, and Rick Perry of Texas) have become national spokesmen for reform.

Federal reformers can learn a great deal from the sensible policies that are being advanced at the state level. Among the most important lessons: In some cases, we can be tough on crime without long prison sentences. Instead we can be tough, and smart, by forcing some offenders to get drug treatment, maintain steady employment, and pay restitution to victims.

A NEW AGENDA

A limited-government perspective on criminal justice is captured by one pithy observation: “Prison is for people we’re scared of, not people we’re mad at.” Limited prison space should generally be reserved for violent offenders. Non-violent offenders — those who don’t scare us, as check bouncers and low-level drug possession offenders don’t — should be treated in the community, if possible. Almost every state prison system in the U.S. would improve by heeding this advice, and the federal prison system would unquestionably improve. Reformers can start acting on this advice by focusing on community corrections alternatives, better reentry, and reversing over-criminalization.

Improve community corrections so that more individuals can be safely monitored outside of jail and prison walls.

1. Better Community Supervision and Risk Assessments

After serving a portion of a sentence in prison, suitable inmates should be “stepped down” to a community-supervision option such as work release, a day-reporting center, or a halfway house. This would facilitate reentry in close proximity to positive community supports such as families, churches, and social-service organizations that can be leveraged to promote successful reintegration.

At the federal level, Congress ought to consider policy changes that allow courts, using appropriate risk assessments, to place more federal inmates on probation. By making it easier for ex-offenders to lead productive lives after doing their time, this reform would help both them and their communities. It would also generate cost savings. Annual spending on community supervision is approximately $3,433 per federal offender, while the average cost of incarcerating a minimum security inmate in federal prison is $21,006 annually.[23]

2. Electronic Monitoring

Electronic GPS monitoring — used in a careful, narrowly targeted way — could be a more effective and less costly alternative to prison for certain offenders. Traditional radio frequency monitoring allows law enforcement to assess whether an offender is at home. Such monitoring may be useful in keeping down short-term prison costs, but it does little to aid the rehabilitation process because offenders cannot go to work or school and remain safely supervised. GPS monitoring solves this problem by tracking an offender everywhere. With this technology, law enforcement can ensure that the offender is in fact at work or school, rather than, say, in a notorious drug hot-spot. Offenders are 89–95% less likely to be revoked for new crimes while electronically monitored.[24]

Give offenders an incentive to gain necessary work and social skills while under correctional supervision, thus facilitating better reentry.

3. Improve Good Time and Earned Time Policies

President Clinton’s 1994 crime bill gave states that adopted truth-in-sentencing policies federal dollars to help them build prisons.[25] Although only five states had such policies in 1994, a total of 29 had them by the time Clinton left office in 2000.[26] “Truth in sentencing” refers to a model of sentencing in which offenders serve an entire sentence, with little or no opportunity for early release. Such policies are appealing to those who are weary of offenders who serve only a portion of a given sentence.

Truth-in-sentencing policies should be resisted, however, because an offender who has limited ability to earn time off a sentence has limited incentives to improve himself while under correctional control. Without a marketable skill, an inmate faces particular difficulty finding employment upon release, increasing the odds that he will resume a criminal lifestyle. Correctional-industries programs, which help inmates develop such skills, have been found to reduce recidivism by 6.4 percent.[27]

In federal prisons, time credits are effectively capped at 47 days per year sentenced. The vast majority of federal inmates therefore serve more than 87% of their sentences.[28] The average time served is 9.5 years.[29] These caps should be removed, and inmates should be allowed to earn time credits through education and vocational training.

4. Scale Back Mandatory Minimum Sentencing

In several American states — and throughout the federal code — mandatory minimum sentences are common.[30] These sentences do not appear to reduce crime.[31]

They do, however, set in place dreadful incentives for policymakers. A proposed mandatory minimum sentence may seem reasonable — “at least one month in prison for the crime of X” — but the next election cycle inevitably features a candidate seeking to enhance that mandatory minimum from one month to two months. Soon, another candidate proposes a move from two months to four months — and so forth. It is a ratchet upward that is hard to resist.

While some mandatory sentences may be safeguards against arbitrary judicial decisions, nearly every jurisdiction that has embraced harsh mandatory-sentencing regimes has come to regret it. The difference between California and Texas is illustrative.[32] Unlike California, Texas has very few mandatory minimums, and most sentencing decisions are left to the discretion of judges. Whereas Texas has become a model for national criminal justice reform,[33] California’s overcrowded and dysfunctional prisons were found by a federal court to violate the Eighth Amendment’s prohibition against cruel and unusual punishment.[34] Moreover, these extreme sentences did not produce declines in crime in California that were appreciably larger than those in other states — like Texas — that left more to the discretion of judges.

Reverse the over-criminalization trend that has made millions of Americans into criminals unknowingly.

5. Eliminate Redundant or Altogether Unnecessary Crimes from Penal Codes

Alexander Hamilton, in Federalist 17, explicitly advises that “the ordinary administration of criminal and civil justice” is the “one transcendent advantage belonging to the province of the State governments.”[35] Nevertheless, the federal government’s role in criminal justice has ballooned since 1789, and the number of federal criminal statutes is approximately 5,000. Agency regulations which carry criminal penalties create the equivalent of approximately 300,000 more federal crimes. People have been prosecuted for shipping lobsters in the wrong packaging,[36] catching undersized grouper,[37] or choosing the wrong corporate accounting methodology.[38]

Source: Bureau of Justice Statistics.[39]

This “over-federalization” of crime has been especially acute when it comes to drug laws. In 1980, 4,749 drug offenders accounted for 25% of the federal prison population, but in 2009, a total of 95,205 drug offenders accounted for 51% of federal prisoners.[40] In testimony before the Senate Judiciary Committee, U.S. Supreme Court Justice Antonin Scalia admonished that “it was a great mistake to put routine drug offenses into the federal courts.”[41] States have the authority, the capacity, and the incentive to deal with these offenders, and they should be left to it.

6. Restore Mens Rea Protections in Federal Criminal Statutes

In many cases, prosecutions occur when people do not even realize their actions are criminal, but the relevant statutes do not contain traditional mens rea — or “state of mind” — provisions to protect them.[42] Traditionally, under common law, a crime consisted of both a bad act and a bad state of mind. This is what distinguished a crime — something that rightly carried a community’s moral approbation — from a mere accident, even when such an accident was justly punished through civil and administrative sanctions.

Over time, however, mens rea protections have begun to disappear. This is probably because legislators do not consider certain crimes to be “real crimes.” For instance, it is unlikely that legislators view the mislabeling of orchid shipments, the packaging of lobsters in plastic instead of paper, or choosing a disfavored corporate accounting methodology to be “crimes” akin to murder and assault. Nevertheless, these crimes certainly carry real criminal penalties, and thus defendants are entitled to real protections. Legislators at both the state and federal levels should place mens rea protections in all criminal statutes. Furthermore, as a “backstop,” legislatures should pass laws establishing a default mens rea protection: They should direct courts to assume that a guilty mind is an element of a crime unless the criminal statute specifically says otherwise. Ohio passed just such a law in 2014.[43]

An unusually high number of prison cells are an indication of a society with too much crime, too much punishment, or both. Real policy debate on this point was tabled for about 40 years in order to deal with emergency conditions, but the resulting status quo is hardly a point of pride. Nevertheless, as policymakers work to reduce incarceration, they should not forget the centrality of public safety. Arbitrary goals that are unconnected to public safety outcomes — such as announcing that incarceration must be reduced by X percent — are misguided. Reductions in incarceration must be consistent with continued declines in the crime rate. Furthermore, policymakers must set realistic goals. Circumstances, mores, and cultures are different in different countries, and in the near future, the United States is unlikely to have an incarceration rate as low as Japan’s or even Canada’s. Still, there is no reason the U.S. incarceration rate must be an astonishing 14.5 times as high as the rate in Japan — or even 6.5 times as high as the rate in Canada. American incarceration rates can go down and should go down.

Some of the recommendations above relate to state policies and reforms and some to federal, and it is vital to respect the line between the two. Law enforcement is and should be predominantly a state function, and federal officials should refrain from using the levers of federal power to influence the states to change their laws or rules regarding incarceration.

Basic principles of good governance counsel skepticism of all government programs — including the criminal justice system. There are methods other than incarceration for holding offenders accountable. These methods of community-based supervision can improve public safety and increase the likelihood that victims receive restitution. Utilizing these methods does not mean making excuses for criminal behavior, nor does it mean becoming “soft on crime.” In fact, it is a matter of reapplying our age-old truths about punishment and accountability to meet our current challenges.

FREQUENTLY ASKED QUESTIONS

1. Aren’t the incentives created by private prisons the root of the problem?

As of 2012, less than 20% of federal prisoners — and less than 10% of state prisoners — were housed in private prisons.[44] In theory, private prisons could create an entrenched lobby to advocate for harsher laws and more incarceration. But in practice, the more serious problem has been the entrenched lobby established by public-sector prison guard unions. In California, for instance, the prison-guard union is widely regarded as the most politically powerful union in the state, and the union lobbied in 1994 in favor of the notorious “three strikes” law that rendered its prisons so overcrowded and dysfunctional that the Supreme Court had to intervene in 2010.[45]

What is more important than the public-private divide is that prisons rehabilitate offenders and reduce recidivism. To this end, performance-incentive funding is essential. With this approach, prisons that are successful in reducing the rate at which offenders return receive a share of the state savings achieved through reduced incarceration. The reinvested funding is dedicated to practices that are proven to further reduce recidivism. Over the last nine years, several states have implemented significant performance-incentive funding: Kansas (2007), Illinois (2009), South Carolina (2010), Ohio, Kentucky, and Arkansas (2011), Pennsylvania (2012), and Oregon (2013).[46]

2. If increased incarceration did not cause the declining crime rates of the last 20 years, then what did?

Nobody is entirely sure. One argument is that demographic changes, such as the aging of the population (crime is famously a young man’s game), are responsible.[47] Another is that improvements to policing (techniques such as “broken windows” and technology such as COMPSTAT) have helped.[48] Some even argue that more indoor-entertainment options — cable channels, video games, and internet — are keeping young boys inside the home, rather than outside, where there is the temptation for delinquent behavior. Many criminologists support the hypothesis that the removal of lead from gasoline, paint, and other common products has had a positive impact on brain development, and contributed to the crime decline.[49]

Every one of these theories suffers from significant flaws, as do a dozen others not mentioned here. But what should matter to policymakers is that, according to the evidence, cutting rates of incarceration does not cause an increase in crime rates.

POLLING: AMERICANS’ VIEWS ON CRIMINAL JUSTICE

• 87% of Americans view drug abuse in the United States as either a “crisis” or a “serious problem.”[50]
• Nevertheless, 67% of Americans say government should focus more on treatment rather than prosecution for users of cocaine and heroin.[51]
• 63% say it is a good thing, rather than a bad thing, that so many states have moved away from mandatory minimum sentences for nonviolent offenders.[52]
• A survey of Iowa burglary victims revealed that 76% of victims requested community service as a sanction, and only 7% requested prison time of a year or more.[53]
• Almost 90% of poll respondents agree that low risk, non-violent offenders should be permitted to earn time off their sentences for good behavior or the completion of programs.[54]
• In Texas, 57% said that they would support legislation to reduce the time that an inmate spends in prison so that they could spend a portion of that time monitored under community supervision.[55]

Footnotes

[1] Roy Walmsley, Int’l Ctr. For Prison Studies, World Prison Population List 1 (10th ed.), available at http://www.prisonstudies.org/highest-to-lowest/prison_population_rate?field_region_taxonomy_tid=All.

[2] FBI Uniform Crime Reports. In the late 80s and early 90s, America suffered over 750 violent crimes per 100,000 people per year. The rate has dropped every year since 1993, and as of 2013, the violent crime rate was 368 per 100,000.

[3] “The Curious Case of the Fall in Crime,” The Economist (July 20, 2013).

[4] Prison and Crime: A Complex Link, Pew Center on the States, Sept. 11th, 2014.

[5] William Spelman, “The Limited Importance of Prison Expansion,” in The Crime Drop in America, eds. Alfred Blumstein and Joel Wallman (Cambridge University Press, 2000), 97–129; see also Steven D. Levitt, “Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not,” J. Econ. Perspect. 18, no 1 (Winter 2004): 163–190.

[6] Anne Morrison Piehl & Bert Useem, “Prisons,” in Crime and Public Policy(eds. James Q. Wilson and Joan Petersilia) (Oxford University Press 2011), at 542; John J. DiIulio, Jr., “Two million prisoners are enough,” Wall Street Journal, March 12, 1999.

[7] Pew Center on the States, “State of Recidivism, The Revolving Door of America’s Prisons” (April 11, 2011).

[8] Nathan James, The Federal Prison Population Buildup: Overview, Policy Changes, Issues, and Options, Congressional Research Service (Jan. 2013) 53–54, 11.

[9] Nancy LaVigne & Julie Samuels, The Growth and Increasing Cost of the Federal Prison System: Drivers and Potential Solutions, Urban Institute Justice Policy Center (Nov. 2012), 2.

[10] Marc A. Levin and Vikrant P. Reddy, The Verdict on Federal Prison Reform: State Successes Offer Keys to Reducing Crime & Costs (July 2013).

[11] Id. at 1.

[12] James Q. Wilson, Hard Times, Fewer Crimes, Wall St. J., May 28, 2011, http://

online.wsj.com/news/articles/SB10001424052702304066504576345553135009870; Steven Pinker, The Better Angels of Our Nature: Why Violence Has Declined 107 (2011).

[13] David Wilson, “Sentencing” in Encyclopedia of Crime and Punishment,ed. David Levinson (Berkshire Publishing Group 2002), 1471.

[14] “Vote Like Your Whole World Depended On It,” available athttp://www.livingroomcandidate.org/commercials/1968/crime.

[15] Peter Applebome, “THE 1992 CAMPAIGN: Death Penalty; Arkansas Execution Raises Questions on Governor’s Politics,” New York Times, Jan. 25, 1992.

[16] Paula M. Ditton, Doris James Wilson, Truth in Sentencing in State Prisons, Bureau of Justice Statistics Special Report, Jan. 1999, 1.

[17] Texas Public Policy Foundation, 2015–16 Legislator’s Guide to the Issues(2015), 158.

[18] Christian Henrichson & Ruth Delaney, The Price of Prisons: What Incarceration Costs Taxpayers, Vera Institute of Justice, Jan. 2012, 8.

[19] Prison and Crime: A Complex Link, Pew Charitable Trusts, Sep. 2014.

[20] States Cut Both Crime and Imprisonment, Pew Charitable Trusts, Dec. 2013.

[21] Mark Kleiman, When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton University Press 2009).

[22] New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”)

[23] The Federal Prison Population Buildup, 12.

[24] William D. Bales et al., “Under Surveillance: An Empirical Test of the Effectiveness and Consequences of Electronic Monitoring,” Criminology and Public Policy, 5.1 (2006), 61–69.

[25] Julia Bowling, “The Crime Bill’s Legacy, Two Decades Later,” Brennan Center for Justice, July 2, 2014.

[26] Ram Subramanian and Ruth Delaney, Playbook for Change? States Reconsider Mandatory Sentences, Vera Institute of Justice, February 2014, 7.

[27] Elizabeth K. Drake, Steve Aos, and Marna G. Miller, Evidence-Based Public Policy Options to Reduce Crime and Criminal Justice Costs: Implications in Washington State, Victims and Offenders Apr. 2009,http://www.wsipp.wa.gov/rptfiles/09-00-1201.pdf.

[28] Marc A. Levin and Vikrant P. Reddy, The Verdict on Federal Prison Reform: State Successes Offer Keys to Reducing Crime & Costs (July 2013), n. 52 (“Barber v. Thomas, 130 S.Ct. 2499, 2503 (2010). The relevant sentencing statute provides that “a prisoner who is serving a term of imprisonment of more than one year … may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days…” See 18 U.S.C. § 3624(b)(1). In Barber, however, the Supreme Court explains how the BOP’s calculation procures effectively limit this to only 47 days. See Barber, 130 S.Ct. at 2503; see also “Frequently Asked Questions about Federal Good Time Credit,” Families Against Mandatory Minimums (7 June 2010)”).

[29] Id. at n. 53 (“’Federal Bureau of Prisons FY 2013 Budget Request,’ before the House Subcommittee on Commerce, Justice, Science, and Related Agencies (6 Mar. 2012) statement of Charles E. Samuels, Jr., Director of the Federal Bureau of Prisons, 3. In comparison, the average time served by state prisoners nationwide is 2.9 years. ‘Time Served: The High Cost, Low Return of Longer Prison Terms,’ The Pew Center on the States (Jun. 2012) table 1.”).

[30] Families Against Mandatory Minimums, http://famm.org/wp-content/uploads/2013/08/Chart-All-Fed-MMs-NW.pdf.

[31] Cynthia A. Kempinen, “A Multi-Method Study of Mandatory Minimum Sentences in Pennsylvania” (Pennsylvania Commission on Sentencing Research Bulletin: April 2010), at 8.

[32] Ashley Stebbins, “A Tale of Two States Without a Sentencing Commission: How Divergent Sentencing Approaches in California and Texas Have Left Texas in a Better (and Model) Position,” 62 Baylor L. Rev. 873, 880 (2010).

[33] Tierney Sneed, “What Texas is Teaching the Country about Mass Incarceration,” U.S. News and World Report, Nov. 19, 2014.

[34] Brown v. Plata, 131 S.Ct. 1910, 1923 (2010).

[35] Alexander Hamilton, “The Federalist No. 17” (December 5, 1787); see also Vikrant P. Reddy, “10th Amendment applies to criminal justice, too,” The National Law Journal (February 15, 2012).

[36] U.S. v. McNab, 324 F.3d 1266, 1274 (11th Cir. 2003).

[37] Yates v. U.S., 574 U.S. ___, ___ No. 13–7451 (2015).

[38] U.S. v. Goyal, 629 F.3d 912, 914–15 (9th Cir. 2010).

[39]1980, 1985, 1990, and 1995 figures fromhttp://sentencingproject.org/doc/publications/inc_Trends_in_Corrections_Fact_sheet.pdf page 3; 2000 figure fromhttp://www.bjs.gov/content/pub/pdf/p09.pdf page 33, appendix table 18; 2005, 2010, and 2013 figures fromhttp://www.bjs.gov/content/pub/pdf/p13.pdf page 17 table 15; 2015 figure fromhttp://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp.

[40] The Expanding Federal Prison Population, 2.

[41] Testimony of Antonin Scalia, Hearing on Considering the Role of Judges Under the Constitution of the United States Before the Senate Judiciary Committee, 111th Cong. 8 (5 Oct. 2011).

[42] “[T]o ensure that only persons who are truly culpable can be convicted and punished, the definitions of malum prohibitum offenses must include protective mens rea requirements. Unfortunately, many of the thousands of malum prohibitum offenses in federal law do not….Over 57 percent of the offenses considered by the 109th Congress contained inadequate mens rea requirements, putting the innocent at risk of criminal punishment.” Brian Walsh and Tiffany Joslyn, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law (Heritage Foundation and National Association of Criminal Defense Lawyers, May 2010), 3–4.

[43] Ohio SB 361 (2014); see also Elizabeth Nolan Brown, “Ohio just made it a little harder to accidentally commit a crime,” Reason (Dec. 2014).

[44] E. Ann Carson, Prisoners in 2013, U.S. Dep’t of Justice, Bureau of Justice Statistics (Sep. 30, 2014), 2.

[45] For an excellent description and analysis of the power of public sector prison guards in California, see Joshua Page, The Toughest Beat: Politics, Punishment, and the Prison Officers Union in California (Oxford University Press 2011).

[46] Sentencing and Corrections Reform in Justice Reinvestment States, Pew Charitable Trusts, May 2014.

[47] Oliver Roeder, Lauren-Brooke Eisen, Julia Bowling, What Caused the Crime Decline (Brennan Center for Justice, 2015), 56.

[48] COMPSTAT, which is short for “Complaint Statistics,” is a “performance management system that is used to reduce crime and achieve other police department goals. Compstat emphasizes information sharing, responsibility and accountability, and improving effectiveness.” See Bureau of Justice Assistance Police Executive Research Forum, Compstat: It’s Origins, Evolution, and Future in Law Enforcement Agencies, 2013, 2 and 65–78.

[49] Id. at 62.

[50] The Pew Charitable Trusts, America’s New Drug Policy Landscape,http://www.people-press.org/2014/04/02/americas-new-drug-policy-landscape/.

[51] Id.

[52] Id.

[53] Gene M. Lutz, Kristine Fahrney, B. Keith Crew, and Michael Moriarty,1997 Iowa Crime Victimization Survey, Center for Social and Behavioral Research, University of Northern Iowa (April 1998).

[54] Public Opinion Strategies and the Mellman Group, “Public Opinion on Sentencing and Corrections Policy in America,” (Washington: The Pew Charitable Trusts), March 2012, p. 5,http://www.pewstates.org/uploadedFiles/PCS_Assets/2012/PEW_NationalSurveyResearchPaper_FINAL.pdf.

[55] Texas Public Policy Foundation, New Poll Shows Voters Strongly Support Justice Reforms in Texas, http://rightoncrime.com/2015/03/new-poll-shows-voters-strongly-support-new-justice-reforms-in-texas/.