Spiro Agnew, who served as vice president under Richard Nixon, memorably denounced the administration’s enemies for their “pusillanimous pussyfooting on the critical issue of law and order.”
Three years later, Agnew himself pled no contest — in practical effect, the same as pleading guilty — to tax evasion. He hadn’t paid tax on the illegal kickbacks he received as Maryland governor. He was replaced as veep by Gerald Ford, who eventually finished out Nixon’s own second term.
So how did the tough-on-crime approach of the Nixon-Ford years work? Nixon took office in January 1969. In that year, the nation’s homicide rate was 7.3 per 100,000 population, according to FBI figures. That was already a horrendously high number. After eight years of no pussyfooting, the rate hit 8.7.
Homicide is the most reliable and objective measure of violent crime, because most cases (probably) come to the attention of authorities and local officials have little opportunity to massage the numbers. But the FBI also compiles a composite violent crime rate, which adds up four categories of offenses reported to police. Under Nixon-Ford, that rate rose by 42%.
Now, it’s conceivable things would have gotten even worse if Nixon hadn’t pursued his tough-on-crime agenda. But, at a minimum, his approach didn’t fix the problem.
The 1980s saw a concerted effort to incarcerate our way out of persistent violence. The federal sentencing guidelines, the Anti-Drug Abuse Act, and the three-strikes laws passed by many states ushered in an era of mass incarceration.
During that decade, the number of federal prisoners increased by about 120%, while the population in state prisons roughly doubled, according to data collected by the National Research Council and published online by the National Institute of Corrections.
And the effect on crime? In 1981, the national homicide rate was 9.8.
Ten years later, it was exactly the same.
Over the course of that decade, the FBI’s composite violent crime rate continued steadily rising, from 594.6 reported incidents per 100,000 to 758.1.
You’d think there might be some lessons to learn from this experience. It’s been a large-scale experiment, after all, with many millions of test subjects (though no control group). But, to judge from current campaign rhetoric, we’ve learned nothing.
It’s easy to illustrate why longer prison sentences are not an effective deterrent to crime. If you were tempted to park illegally, just for a minute as you run a quick errand, would you be more likely to be deterred by a 90% chance of getting a $20 ticket or a 5% chance of a $50 ticket? Would raising the latter penalty to $55 make any difference?
The important variable isn’t what happens when you get nailed. Everyone already knows it will be bad. What matters is the likelihood of getting nailed in the first place. If punishment is certain, or even likely, it doesn’t need to be severe to have a deterrent effect.
The criminals we catch and convict (a small subset of people who engage in antisocial behavior) are people who aren’t very good at calculating their own long-term interests. That’s almost definitional. If they were capable of controlling their impulses and carefully thinking through the risks and rewards of a contemplated course of illegal conduct, they might still offend but they wouldn’t be so easy to arrest.
Cops and prosecutors often say, “We only catch the stupid ones,” although it would be more accurate to say “the ones who do ill-considered things.” The rate of attention-deficit/hyperactivity disorder among inmates is sky-high.
Taken as a group, the criminals we catch are the people least likely to be influenced by the contingent possibility of additional negative consequences in the indefinite future.
That’s one reason why the Reagan-era adoption of extremely long prison sentences didn’t reduce the crime rate. More insidious processes were at work, too. There’s a vast social science literature about the “criminogenic” — crime-producing — effects of mass incarceration.
Most prisoners eventually re-enter society, after however many years of being socialized to prison culture. It’s hard to imagine a more difficult transition, or a population less equipped to make it.
Criminals have partners and children, too, the same as everyone else. When we lock up the parents, we force many families into poverty and some children into foster care. We give the kids reasons to be depressed and angry, creating a new generation of troubled young people.
And what do we get in return? A peaceful city?
Rhetoric recycled from Spiro Agnew’s heyday remains a campaign staple on the political right. On the left, we’ve been hearing for at least as long, with equal disregard for the evidence, about the root causes of crime. That will be the subject of the next column.
Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at firstname.lastname@example.org.