Evangelicals must get it right on crime

by Anthony Bradley
Posted on Friday, April 8, 2016, at 11:29 am

When it comes to complex social issues it is paramount to read deeply and widely before arriving at conclusions and positing proposals for reform. This lack of proper preparation and information gathering is occurring today as many evangelicals begin engaging the issue of mass incarceration. Consider the 2010 publication of The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Ohio State University law professor Michelle Alexander: This book may inadvertently lead many well-meaning evangelicals in directions that do not address the core issues of mass incarceration in America.

Both conservative and progressive evangelicals cite Alexander as a starting point for thinking about the nation’s prison growth problem. Matthew Hall, writing for the Southern Baptist Convention’s Ethics and Religious Liberty Commission, cites Alexander and concludes that “we can agree that a prison system that is incarcerating this many of our nation’s black men is scandalous.” D. A. Horton, writing on Ed Stetzer’s blog, recommends Alexander’s narrative in understanding “mass incarceration.” The Christian Community Development Association had Alexander headline its 2013 annual conference. Jim Wallis’ Sojourners magazine featured Alexander in its June 2014 issue advocating the race-based narrative of prison growth. But what if Alexander has gotten the narrative wrong? Then what?

John Pfaff, a law professor at Fordham University, highlights a devastating flaw in Alexander’s framework—that America’s prison growth is primarily a consequence of violent crime and property crime.

Pfaff observes that when you look at the actual data, “a majority of prison growth has come from locking up violent offenders, and a large majority of those admitted to prison never serve time for a drug charge, at least not as their ‘primary’ charge.” Alexander overlooks this data and, by extension, so does everyone who adopts it.

According to Pfaff, drug offenders comprise only 17 percent of state prison populations and account for roughly 20 percent of prison growth since 1980. This data is important given the fact that 90 percent of America’s prisoners are in state and not federal prisons. It seems that, perhaps, the likely two most important variables in prison growth are over-punishment at the hands of overzealous prosecutors—who have no accountability—and our nation’s increasingly punitive society where yesterday’s misdemeanors are today’s felonies.

Over-punishment and prosecutorial abuse also disproportionately affect lower class citizens.

Pfaff, looking at the data from 1980 to 2009, the peak years of the race-based narrative for drug-enforcement incarceration, notes:

“[S]tate prisons added a net 223,200 drug inmates, which is only 21 percent of the total net increase of 1,068,000. Conversely, the additional 551,000 violent offenders—an increase 2.4 times larger than that for drug offenders, despite a small percentage change—contributed over half of the net increase in prisoners; violent and property offenders combined contributed more than two-thirds. In other words, if no one was admitted to prison on a drug charge between 1980 and 2009, then the state prison population in 2009 would have been 1.12 million instead of 1.36 million: a 3.7-fold increase rather than a 4.5-fold one.”

Moreover, according to Pfaff, “if we were to release every inmate serving time for a drug offense in 2010, the total prison population would fall from 1,362,028 to 1,125,028.” The white population percentage would increase from 34.4 percent to 35.5 percent, the black population would decrease from 38.1 percent to 36.7 percent, and the Hispanic percentage would increase slightly from 21.2 percent to 21.5 percent. As such, if drug offenders where released from prison tomorrow, America would still have a massive prison growth problem.

If it is true that prison growth is a consequence of violence, violations of private property, out-of-control prosecutors, and an overly punitive society, then we need to ask different kinds of questions about the role of moral-virtue formation. What can Christians do to reduce violence? What can Christians do to keep people from violating private property? What can Christians do better to hold accountable and shape the moral conscience of prosecutors?

Without the moral discipleship of citizens and those working in the criminal justice system, there is only so much that can be accomplished by changing law-enforcement policy. A deeper engagement of this issue must be rooted in culture and society. The church is well-positioned to speak on moral formation and the proliferation of virtue in civil society.

Anthony Bradley

Anthony is associate professor of religious studies at The King's College in New York and a research fellow at the Acton Institute for the Study of Religion and Liberty.

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  • Steve M
    Posted: Thu, 04/21/2016 02:26 pm

    @Anthony Bradley re:  "I'd be really interested to hear your thoughts on his [Pfaff's] article overall."Thank you for the response, I did read it carefully.  What interested me most involved  Pfaff's statistics related to the exaggeration of the impact of the "War on Drugs" on incarceration rates. The collateral costs to drug offenders of WOD (loss of employability, marital stability, poor health, and community instability) that Pfaff mentions would also remain with or without WOD. Those impacts come with a lifestyle of drug abuse generally, whether or not the abuser gets involved with the legal system. I think there is also a false presumption that significant numbers of people would voluntarily seek help if WOD money were spent on treatment alternatives. From what I have seen most drug offenders want to get back on the street ASAP in order to return to their previous lifestyle. Treatment success rates are just abysmal for people who don't want treatment, and there are already free options for people who really do want help. (Teen Challenge is an excellent example of a free private  program with a high success rate.) At least the threat of incarceration currently gives users some incentive to weigh their lives against the advantages of a drug-free alternative lifestyle. Providing convenient, legal paths to an independent legitimate lifestyle would provide the other side to that incentive coin. As to Pfaff's "aggressive filing" hypothesis, he admits that it is speculative and not supported by any data (p.27). There is nothing in the article or in my own experience to lead me to  believe that over-aggressive filing is a significant problem. If the facts shown meet the elements of the offense the person is guilty of the crime. If they are guilty of the crime they can be sentenced pursuant to a plea agreement with the DA in exchange for leniency, or after conviction by the court to whatever the judge thinks is fair within the statutory range of penalties for that crime, including reducing a felony to a misdemeanor in many cases.  The actual impact of over-filing is a low conviction rate!.One thing that I have strong disagreement with is the idea of  legislating prosecutorial guidelines for plea bargaining  (i.e. the Brimage Guidelines, p.40-41) or other efforts by the legislature to supplant the role of local prosecutors and judges. For example, the  "Three Strikes" law in California  has too often resulted in unjust mandated outcomes just because it removed so much discretion from judges and prosecutors. In short, the people actually handling a criminal case will almost always make better decisions in the moment than the legislature could possibly dictate ahead of time.  

  • Cyborg3's picture
    Posted: Thu, 04/21/2016 02:26 pm

    Uh, I don't want violent criminals on the streets and I don't want prosecutors to neglect prosecuting violent criminals. I don't care about the race: If they are a violent criminal, they should be put away for a just time relative to the crime, with some flexibility by the judge for those who really change. That is the best we can expect from our judicial system.

  • DCal3000
    Posted: Thu, 04/21/2016 02:26 pm

    The last couple of times I commented on articles by Dr. Bradley, I believe I spoke in opposition to some of his points.  Consequently, I wanted to take a moment to thank him for this well-written piece.  I think it's important to argue in favor of academic rigor and against overly simplistic interpretations of societal trends.  This article raises important points for debate in regard to Michelle Alexander's work.  Though I have some legal training, I'm not well-read in these areas, and I am intrigued to hear a broader perspective than the one Michelle Alexander has promoted.  Thank you, Dr. Bradley, for addressing the important issue of analyzing prison population trends.

  • Anthony Bradley's picture
    Anthony Bradley
    Posted: Thu, 04/21/2016 02:26 pm

    Hi Steve M, those are excellent points. If you read the linked article by Pfaff on Harvard journal, it seems that his issues with prosecutors is that they don't *have* to charge unless they want to. Prosecutors make decisions about who to charge with what and who not to charge. Pfaff says, "Increased incarceration, at
    least since the early 1990s, has been driven almost entirely by an increased
    willingness on the part of prosecutors to file felony charges against arrestees." Prosecutors don't sentence but they do charge. I think that's the major point Pfaff is making when it comes to prosecutorial abuse. Pfaff is calling for more research on how prosecutors make decisions about how they charge. As a prosecutor, I'd be really interested to hear your thoughts on his article overall. Thanks for your comments and you make a very good case for the need for church  and economic and political liberty.

  • Steve M
    Posted: Thu, 04/21/2016 02:26 pm

    Many good points to consider, howeverRe:  "over-punishment at the hands of overzealous prosecutors—who have no accountability"Prosecutors don't sentence offenders to prison, only judges do. Prosecutors can plea bargain, in which the defendant can decide if the prosecutor's proposed disposition is what is best for him and agree to that, or the defendant can take his chances at trial and be sentenced by a judge to what the judge thinks is fair under the sentencing laws for the crimes that are proven beyond a reasonable doubt.  Minimum and maximum penalties are fixed by the legislature, not the prosecutor, and the judge always has discretion within the range of sentences allowed by law after a trial. The prosecutor just doesn't have the kind of unilateral power complained of in the article.  and RE— "our nation’s increasingly punitive society where yesterday’s misdemeanors are today’s felonies."In California it is the opposite. Yesterday's felonies are today's misdemeanors, and yesterday's jails are todays sober living homes and rehabilitation centers that are filled with large percentages of people with no interest in sober living or rehabilitation.It is very sad and discouraging, as a prosecutor I see very little hope in any political theory for change. People need Jesus, and people need viable opportunities to live lawful and productive lives that are more attractive to them than the criminal lifestyle they are stuck in.