Getting smart

Half a century ago, President Lyndon Baines Johnson set up a National Crime Commission to study the broad and confounding subject of crime in America. A useful report was published in 1967, but for the most part the systemic reforms hoped for by the sponsors and participants have not occurred. In fact, many of the problems analyzed then still exist, and some have gotten worse.

That was the subject of a new report, Smart on Crime, just released by the Constitution Project. It included contributors from a collation of 40 interested organizations that run the ideological range from the ACLU to the Cato Institute to the Open society, ABA, PEW Center and others. Its aim is to present Congress and the administration with an agenda for reform of the criminal justice system, and hopefully to provide a proposed national commission now before the U.S. Senate with a jumpstart of recommendations.

Given the state of our economy, and the national focus on it, there is a unique climate for criminal justice reform IF it is predicated on economic considerations, as well as humanitarian and pragmatic ones. Safety and security, of course, are the obvious considerations when we think of the police, courts and corrections systems. But to ignore economic considerations — the excessive costs of our prison system is one obvious example, and the low returns it provides — is to miss an opportunity for a rare political collaboration on reforms.

The new report covers subjects as diverse as overcriminalization, forensics, indigent defense, sentencing, death penalty and clemency — subjects I’ve written about before, and to which I will return. For now, I focus on the economics of reform. The cost of diverting defendants out of the criminal justice system, for example, is less expensive, and can be a more fruitful alternative, than putting defendants into the prison system. There are examples of diversion programs that demonstrate they are a wise course, from a correctional point of view, as well as costing society less. Some include restitution to crime victims, a goal mostly ignored by the punishment-oriented sentencing system. Many criminal defendants are convicted of drug-related offenses, and they present an obvious area for expanding alternatives to prison, so long as violence is not involved in their history.

Many of the people convicted in committing any of the 4,500 federal crimes on the books are candidates to start diversion from the current burgeoning population of 2.3 million prisoners. Sentencing is the entry level of reform. The clemency process is the exit level for many prisoners who might be released, completely or into parole programs, rather than wallowing in terrible, and expensive, prisons. It is used rarely now, because executive officials are afraid of seeming soft on crime. If release in appropriate cases saves sparse state budgets, it can be sold as a conservative economic measure, one with more political capital.

In future essays, I will delve into the other important subjects covered in this new report.


Ronald Goldfarb is a Washington attorney and author. Among his books are: Ransom — A Critique of the American Bail System; After Conviction — A Review of the American Correction System; and Jails — The Ultimate Ghetto.