The Myth of Overpunishment: A Defense of the American Justice System and a Proposal to Reduce Incarceration While Protecting the Public

by Barry Latzer, Tom Cotton

Justice is on trial in the United States. From police to prisons the justice system is accused of overpunishing. It is said that too many Americans (especially minorities) are abused by the police, arrested, jailed, and imprisoned. But the denunciations are overblown. The data indicate, contrary to the critics, that we don't imprison too many, nor do we overpunish. This becomes evident when we examine the crimes of prisoners and the actual time served. Claims of systematic racism are also exaggerated. Once we consider the crimes and the criminal records of African American inmates it becomes clear that blacks are punished no more harshly than whites.

This book is a defense of our incarceration system. The history of punishment in the United States, discussed in vivid detail, reveals that the treatment of offenders has become progressively more lenient. The actual time served in prison is in line with historical practice. Corporal punishment is no more. The virtual slavery of the convict lease is long over. The death penalty has become a rarity. Only 20 percent of prisoners serve full terms and many convicted defendants are given no-incarceration sentences. In fact, 30 percent of all convicted felons and 22 percent of violent offenders are released without spending a single day in prison. Moreover, the median time served for those who do enter state prison is a mere one year and four months.

Nor are state prisoners behind bars for minor offenses. That is another false claim. A majority of inmates—55 percent—are serving time for serious violent crimes, including murder, rape, and assault. Eighteen percent are in for major property crimes, such as burglary and theft. Fifteen percent committed drug crimes, but contrary to the critics who claim that drug prosecutions are designed to snare harmless users, only 3.5 percent of the sentences were for mere possession. The rest of the inmate population, 12 percent, is serving time for public order crimes, including illegal gun possession and drunk driving. All of the above are serious crimes, often committed by repeat offenders.

The decarcerationists will have to deal with these realities if they are to make their case. Even if they can refute or spin the data they face an insuperable when it comes to major crimes less punitive alternatives to imprisonment simply do not exist. The restorative justice movement—a counselled encounter of crime victims and perpetrators who acknowledge the harm that they cause—is touted as the alternative to prison. Restorative justice may be a good thing for low-level offenses, or as an add-on for remorseful prisoners. But when it comes to major crimes it is no substitute for punitive justice.

If we really want to reduce incarceration while protecting the public we should rely on technology to monitor released offenders. The Myth of Overpunishment presents a workable and politically feasible plan to electronically monitor arrested suspects prior to adjudication (bail reform), defendants placed on probation, and parolees. A major expansion in electronic monitoring of released offenders will create powerful incentives to conform to the conditions of release. This would shrink the incarcerated population without increasing the risks to the public.

Genres: Politics, Nonfiction

209 pages, Kindle Edition

Published April 26, 2022

About the author

For over three and a half decades Barry Latzer was Professor of Criminal Justice at John Jay College, CUNY, where he was a member of the Masters’ and Doctoral faculties. He taught courses on criminal justice, criminal law and procedure, state constitutional law, capital punishment, and most recently, crime history.

Professor Latzer wrote and published six books, including a treatise on state constitutional law, and approximately 70 scholarly articles, research reports, magazine articles, book reviews and op-eds. His scholarly articles have been published in the Journal of Criminal Law & Criminology, the Journal of Criminal Justice, Judicature, Judges' Journal, Criminal Law Bulletin, and major law reviews. Other writings have appeared in the Wall Street Journal, the Los Angeles Times, the Daily Beast, National Review, the Chronicle of Higher Education, City Journal, the New York Post and the New York Daily News. A widely read interview with David Frum appeared in Atlantic, June 19, 2016. His recent article on “Alvin Bragg, the Prosecutor Who Won’t Prosecute,” was the cover story in the February 7, 2022 issue of National Review.

Professor Latzer received advanced degrees from the University of Massachusetts (Ph.D., 1977) and Fordham University School of Law (JD, 1985). His BA was from Brooklyn College (1966).

He briefly served as an Assistant District Attorney in Brooklyn (1985-86) and as counsel to indigent criminal defendants in Manhattan (1986-87).

Barry Latzer has devoted the last decade to a major study of the history of violent crime in the United States. His recent book, The Rise and Fall of Violent in America (Encounter Books, 2016), a product of this research, examines the period from 1940 to 2015. The pre-1940 period is covered in his book just published by Louisiana State University Press: The Roots of Violent Crime in America: From the Gilded Age through the Great Depression (LSU Press, 2020).

Latzer’s most recent book, on criminal punishment in the United States, is entitled The Myth of Overpunishment: A Defense of the American Justice System and a Proposal to Reduce Incarceration While Protecting the Public. It was published by Republic Books in 2022.

Barry Latzer and his wife live in New Jersey. They have one daughter who lives in Portland, OR. When he isn’t writing, Prof. Latzer may be seen hiking or at the opera (especially the ones with murders).

Reviews

[Corey · Rating 1 out of 5]

Why did I torture myself by reading this slop?

Specter of Crime

Latzer claims that proponents of decarceration argue "there was no crime rise beginning in the late 1960s, or that the increase in imprisonment had nothing to do with crime, and that it was, instead, a product of other causes" and that "suggesting that crime levels and punishment policies are altogether unrelated...is one of those fictions that underpins the decarceration movement."

What are these other causes that Latzer believes proponents of decarceration excessively focus on to the exclusion of crime? Racism. His contention with popular accounts by scholars, such as Michelle Alexander and Elizabeth Hinton, is that they regard the expansion of the carceral state as a racialized project rather than as a reaction to rising crime, particularly criminalized violence. In Latzer's view, the substantial increase in incarceration at the end of the twentieth century wasn't so much a political project as it was a simple cause-and-effect reaction to crime rates and public punitivity.

Contrary to Latzer's protests regarding the "standard story" disseminated by the decarceration movement, scholars critical of incarceration do, in fact, address rising crime rates in their historical narratives, including Marie Gottschalk, Heather Schoenfeld, and Naomi Murakawa. But importantly, they do not privilege rising crime rates as the causal mechanism from which the carceral state sprung. And rightly so given that criminologists like Franklin Zimring have astutely shown that the United States was not exceptional in experiencing a precipitous rise and fall in crime rates at the end of the twentieth century. The United States was, however, exceptional in that it responded to rising crime by increasing carceral capacity.

This isn't to say that certain historical accounts of the carceral state aren't at times dismissive or diminishing of the role of rising crime rates. But they are correct in politically contextualizing crime and refraining from presenting mass incarceration as an inevitability. As Lisa Miller notes, the salience of crime as a public and political issue does not render carceral expansion inescapable if other alternatives are offered.

Myth of the Revolving Door

Latzer also asserts "[s]horter or fewer prison sentences mean more serious criminals on the streets" and that "[g]iven the enormous recidivism rates of released inmates, this is dangerous."

To bolster his claim that recidivism is rampant, Latzer relies on data from the Bureau of Justice Statistics, which has been critiqued by scholars for its methods. In actuality, two-thirds of previously incarcerated people never return to prison and only around 11% return to prison more than once.

Interestingly, despite his outsized focus on criminalized violence, Latzer doesn't mention return to prison rates for "serious criminals." Studies from states like Michigan, New York, and California show that only around 1% or fewer of people convicted of homicide or sex offenses are re-incarcerated for a similar offense. This contradicts his claim that releasing people convicted of serious crimes or shortening sentences for those convicted of serious crimes would necessarily be dangerous.

Electronic Monitoring for All

Latzer's solution to mass incarceration? Mass e-carceration. Instead of locking people in prisons, we could simply lock them up in their communities. While Latzer maintains that there's significant empirical support for electronic monitoring, the actual literature is not so conclusive or resolute.

Additionally, Latzer indicates that electronic monitoring should mostly be reserved for those already not incarcerated, such as those on parole or probation. Meanwhile, the "serious criminals" would continue to languish in prisons. Latzer follows in the footsteps of many reformists (if one would even call him that) of decades past by offering a "solution" that would only result in carceral expansion.

Conclusion

The Myth of Overpunishment misrepresents scholarly arguments related to the creation of the carceral state and presents misleading data, only to offer a do-nothing and change-nothing approach to one of the largest increases in state power in the last century.

[Ben · Rating 3 out of 5]

First part of the book is interesting as a introduction to penitentiary history, and allows to witness how far has advance humanity towards a more humane way of punishment.
Sencond offers an analysis on modern social movements to reduce prison population, specially as African American people are disproportionaly imprisoned in relation to their weith on general population. It succesully demonstrate that some of those measures, like depenalization of minor drug offences, would have little to no impact to the ratio of POC ratio in prison population. It argues that by showing the nature of the crimes commited by those that are serving time, which are mostly violent crimes and recidivist.
The proposal to reduce incarceration via monitoring, however, does not look as appealing precisely for the same reason than decarceration. Most prisoners are serving time for violent crimes and monitoring does little to rehabilitate and close nothing to incapacitate. However in this sense it must be said that e-monitoring is more of a penitentiary measure than a criminal policy.
Maybe it is slighly biased but overall seems as a legitimate effort to weigth many of the interest on stake, as limited as that might be.