Skip to main content

The justice system’s aversion to repeat offenders — not a rise in actual crime — feeds the prison-industrial complex, a new study has essentially found, as a record number of people receiving prison sentences have prior convictions.

Ohio State University sociologist Ryan King examined 33 years of data from the Minnesota Sentencing Guidelines Commission — around 355,000 felony convictions — and found despite the sharp decline in the crime rate since the mid-1990s, judges are often faced with repeat-offenders, whom they tend to sentence more harshly.

“The issue is that the average offender who appears before a judge for sentencing today has a much more extensive criminal record than they did in the past,”noted King, a professor of sociology at OSU.

“It is much harder for judges not to give prison sentences to repeat offenders, so we have more convicted people going to prison.”

In comparing the more than three decades of data, King found the average offender in 1981 had just one prior felony, but in ten years, prior felonies doubled to two — and by 2013, the average offender had 2.5 previous felonies.

In fact, the rate at which prior offenders received prison sentences increased over time, as well, the study found. In 1981, 15 percent of prior offenders received a prison sentence, but that increased to 20 percent by 1995, and staggeringly had reached nearly 30 percent in 2013.

Fewer than 40 percent of offenders sentenced to prison had criminal records in 1981, but 60 percent did just two decades later.

“Criminal activity can decrease, but the criminal record only goes up,” said King. “Judges are dealing with more repeat offenders now.”

Notably, data did not evidence harsher sentencing for repeat offenders over time — in fact, King observed increasing leniency by judges toward those with prior records. He surmised the issue isn’t sentencing, itself, but the fact more people with prior records received sentences more frequently — perhaps in part due to public alignment with the oft-touted ‘tough on crime’ stance heralded by law enforcement and legislators.

“Judges’ hands are tied to some extent,” King noted. “It is hard to show leniency and maintain legitimacy in the public eye when you’re dealing with a repeat offender, and judges are seeing more of them than they have in the past.”

After analyzing the data — King chose Minnesota’s records as an appropriate national sample isn’t available — he suggests alleviating the mass incarceration problem through a fundamental transformation in the way courts view offenders with minimal prior records.

“Instead of focusing mainly on first-time offenders, we need to come up with new ways of dealing with offenders who have just one prior conviction,” King asserted.

“If we could find ways to keep them out of prison, that would have a large impact.”

Although the study provides insight into how courts view repeat offenders, King did not extend his hypothesis to include the seemingly obvious explanation for why there has been an explosion in the number of people with multiple convictions: the tough-as-nails approach to the war on drugs.

Indeed, public opinion about cannabis, in particular, evidences growing exasperation with Nanny State drug war strictures which have mushroomed prison populations with otherwise nonviolent offenders whose only crimes involve a plant.

A survey by AP-NORC published in March this year found a whopping 61 percent of Americans support legalization of cannabis — the highest number since the drug war brought highly-politicized anti-pot propaganda to the forefront — and an increase over the 58 percent total from an October 2015 poll.

Scroll to Continue

Recommended for You

“This is yet another demonstration of just how ready Americans are for the end of marijuana prohibition,” Tom Angell of the Marijuana Majority, a cannabis reform advocacy group, said at the time. “The growing level of support for legalization that we see in poll after poll is exactly why we’re now in a situation — for the first time in history — where every major presidential candidate in both parties has pledged to let states set their own marijuana laws without federal interference.”

As if answering King’s unspoken question concerning the swollen numbers of repeat offenders going back to prison, the DEA last month thumbed its nose at the American public by reneging on previous intimations it planned to reschedule cannabis from its status as a substance with no medical worth — alongside cocaine and heroin.

While fully one-third of legalization supporters believe there should be “no restrictions” whatsoever concerning cannabis, and significant percentages feel relatively minor restrictions would be appropriate, the State’s failure to lift prohibition guarantees the number of pot prisoners will continue to mount.

Cannabis policy obviously varies widely by state, but with prohibitive federal strictures in place, drug war proponent politicians are free to enact burdensome legislation landing even medical cannabis users burdensome penalties — including, of course, the very felony convictions at the heart of King’s study.

And all of this only addresses one substance the State deems illegal. Arbitrarily inflated incarcerations from the war on drugs could facilely be eradicated if the State were to eliminate, well, the war on drugs.

Though the prospect might frighten the bejeezus out of Americans who’ve been subjected to decades of fear-based propaganda concerning substances of personal vice, soaring prison populations comprised a major facet of Portugal’s decision to decriminalize all drugs — from ecstasy to cocaine, and heroin to cannabis. And it worked — albeit imperfectly — but nevertheless astonishingly well.

In July 2001, Law 30/2000 went into effect, making penalties for possession of illicit substances equivalent to a parking ticket — focusing funding previously designated for incarcerating and prosecuting drug users instead toward treatment programs and education.

Although the law’s architect would have preferred full legalization over decriminalization, the decision hinged on potential repercussions from the United Nations. Drug crimes, overcrowded prisons, and the spread of diseases — both of addiction and due to drug use, as in needles — indicated to Portugal the issue wasn’t drugs, but the criminalization of substances.

“We figured perhaps this way we would be better able to get things under control,”explained Dr. João Goulão, President of the Institute of Drugs and Drug Addiction and the law’s architect. “Criminalization certainly wasn’t working all that well.”

Since that time, drug use dropped across the board, and as of 2015, stood below the European average. Habitual and problematic drug use also dropped. Violent crime rates dropped. In fact, though Portugal continues to tweak its imperfect experiment with blanket decriminalization, its overall success has astounded all but the staunchest critics.

Were U.S. drug policy honestly aimed at combating the putative dangers of drugs and preventing high rates of addiction and imprisonment, Portugal’s law would be a model to emulate.

Instead, maintaining criminalization of even cannabis belies the financial motivation of inculcating nonviolent users and sellers into the justice system for life — precisely as King’s study so aptly illustrates. Even with the Department of Justice’s recent decision not to incarcerate federal offenders in for-profit private prisons, states will continue to do so — and further, court fees, fines, and other expenses foisted onto such individuals guarantees revenue for all levels of government.

Further evidence the drug war is directly responsible for the numbers in King’s study came in a report from the Justice Policy Institute in 2009, which found:

“The number of people in state prisons for drug offenses has increased 550 percent over the last 20 years. A recent JPI report found that the amount spent on ‘cops and courts’ — not rates of drug use — is correlated to admissions to prison for drug offenses. Counties that spend more on law enforcement and the judiciary admit more people to prison for drug offenses than counties that spend less.”

Former Drug Czar Gen. Barry R. McCaffrey summarized the glaring result of decades of the war on drugs, saying in 1996, “we have created an American gulag.”

In light of these facts, and in response to King’s oblivious posit of the need to find a way to keep people out of prison, it is absolutely imperative we end the utterly failed war on drugs — which must begin with rational discussion not rooted in governmental scaremongering.

Of course, ending the drug war presents an existential threat to the State and corporations whose obscenely lucrative profiteering from it seem to obviate no end in sight.