Throughout the decades conservative minded people have often deferred to Hammurabic code of “lex talionis” (i.e. law of retaliation) for crime and punishment. Obviously for certain violent crimes such as murder, rape, armed robbery, etc. this lock’em up and throw away the key approach is appropriate. However this does little to curtail the inordinate judicial responses to lesser crimes, recidivism, rehabilitation of juvenile offenders, offenders suffering from valid mental illnesses, and drug offenses.

Some Perspective

As of 2008 the United States had approximately 2.3 million people behind bars, making us the number one incarcerator in the world . This is rather astounding when you consider a few facts; we only account for 5% of the world’s population and China–who has four times our population and governed by a communist regime–has 1.6 million incarcerated. Also for every 100,000 people the US averaged 751 persons in jail. In Russia it is 627 persons per 100,000.

Another disturbing feature is the amount of arrests which take place in the United States. According to the FBI’s Uniformed Crimes Report for 2009, around 13.6 million people were arrested for various offenses–not including traffic violations. Furthermore, when you look at the composite make-up the largest contributors by category the result is rather surprising; drug abuse violations (1.6 million), driving under the influence (1.4 million), larceny-theft (1.3 million), other assaults (1.3 million). Surprisingly, the sub-categories making up violent crime–murder and non-negligent manslaughter, forcible rape, robbery, and aggravated assault–contributed about 600,000.

None of this is to say that crime isn’t a problem or that we somehow live in an abusive police state. But when you consider how we deal with crime and punishment and its cost, it may lead to the conclusion that we need to be exploring other alternatives.  For instance, out of the 1.6 million drug abuse violations 81.6% (1.3 million) were possession charges and out of that percentage 45.6% (583,000) were marijuana related. This means that the amount of persons arrested for marijuana was roughly equivalent to the amount of violent crime. Furthermore, as of 2004, 12.7% of state prisoners and 12.4% of federal prisoners were incarcerated for marijuana related offenses. According to Jeffrey A. Miron, senior lecturer in economics at Harvard University and a senior fellow at the Cato Institute, total legalization of marijuana would save $8.7 billion per year in enforcement and prohibitory costs.

Please note: I do not support or advocate for the legalization of marijuana but do support the de-criminalization of its possession. While it is true that the latter would not yield as much savings as total legalization the cost gap could be somewhat offset by strict fining for possession.

Another frightening statistic is the amount of prisoners suffering from mental disorders. In 2006 the Bureau of Justice Statistics released a report shining some light on this trend.

At midyear 2005 more than half of all prison and jail inmates had a mental health problem, including 705,600 inmates in State prisons, 78,800 in Federal prisons, and 479,900 in local jails.These estimates represented 56% of State prisoners, 45% of Federal prisoners, and 64% of jail inmates. The findings in this report were based on data from personal interviews with State and Federal prisoners in 2004 and local jail inmates in 2002.

Now there are a few considerations which have to be made since these are broad brushed statistics. Obviously being locked-up is a non-natural state for a human being to exist within, whether they deserve it or not. So it should come as no surprise many inmates suffer from mental health issues after becoming incarcerated. But these numbers are large enough for us to be asking a few questions.  How many of this actual number suffered from mental illness prior to being imprisoned and did this factor contribute to their criminal activity?

It seems in the case of identifying cases of mental illness in offenders prior to conviction and incarceration progress is being made. It is very promising to see policy initiatives such as mental health courts, police training for dealing with the mentally ill,  and mental health crisis units to assist police officers with their safety and that of offenders.

Conservative Case for Reform

While not an issue which is widely brought up in the conservative circles over-criminalization–long a libertarian issue–has gained some notoriety among right leaning intellectual groups. The Heritage Foundation, for instance, has dedicated a website to the cause and a new group called Right on Crime is adding some intriguing and substantive ideas to the debate.

Echoing senior editor of Reason magazine, Radley Balko’s thoughts on the matter, conservatives by nature place a very high “premium on order.” However order is based in essence on reason and efficiency, not ignorance and incompetence. Blindly throwing the people in prison who do not belong there or trying to correct deficient behavior in lesser offenders through excessive punitive action is not what I would call productive. Empirically understanding the structural problems facing our law enforcement and judicial and penal systems is the first step in correcting their abundant flaws and moving towards a more healthy and law abiding society.