Andrew C. McCarthy, a former federal prosecutor whose writing I have sometimes agreed with and found well-reasoned (see this, for example), writes the following:
The bill that GOP leadership is currently joining with Democrats to try to ram through Congress is being masqueraded as sentencing "reform." In fact, it should be called the "Early Release for Sociopaths Certain to Recidivate Act." And there is no rational reason for the support it has gotten from top Republicans ... except its appeal to libertarian donors, who believe we should not have laws against narcotics trafficking. Hence, one of the two major falsehoods behind the anti-incarceration push: The nation's jails overflow with "non-violent drug offenders."
This claim, which leading Republicans now join President Obama in peddling, is preposterous. As Heather Mac Donald has shown, drug offenders make up well under a fifth of the state prison population (which would be unaffected by the federal legislation, notwithstanding Washington's reliance on a fairy-tale depiction of it). The lion's share of state convicts are violent felons (54 percent) and property offenders (19 percent). In recent congressional testimony in opposition to the "reform" bill, Mac Donald observed (citing a 2011 study by researchers of the Harvard School of Public Health and UCLA School of Public Health): "The size of America's prison population is a function of our violent crime rate. The U.S. homicide rate is seven times higher than the combined rate of 21 Western nations plus Japan."
First, McCarthy is right that sentencing for state prisons would be unaffected by the federal legislation. This is a separate point, though, from whether the nation's jails overflow with non-violent drug offenders, which is the point he's trying to refute.
Second, by his own admission, "drug offenders make up well under a fifth of the state prison population." OK. So how much "well under?" Is it, say, 15%? If so, and if all these drug offenders are non-violent (they aren't--a point I will address anon), then it doesn't seem like much of an exaggeration to say that the nation's jails are overflowing with them. Certainly, letting 15% of state prisoners out would substantially affect the capacity problem.
As I stated above, though, and as McCarthy argues, not all of these drug offenders are non-violent. But what percent of them are violent? This would seem to be the crucial issue for McCarthy to address. He doesn't give evidence on that.
Instead, he goes back to considering only federal prison inmates. This would make sense if he wants solely to address the sentencing legislation he criticizes. But it doesn't make sense if he wants to challenge the idea of many non-violent drug offenders in the "nation's jails," which include, not only the relatively small number of federal prisoners but also the much larger number of prisoners in state and county jails.
But let's consider his case on its own terms. Are people in federal prison for drug offenses non-violent? McCarthy doesn't answer this either, but he appears to think he does. He writes:
As former federal drug czars Bill Bennett and John Walters explain, a whopping "99.5 percent of those incarcerated for [federal] drug convictions are guilty of serious drug trafficking offenses." These are real felons - drug importers and distributors, not mere users. Drug trafficking, moreover, is an inherently violent crime. Indeed, it is well-settled federal law that firearms and other weapons so commonly seized in drug investigations are admissible evidence in court because "guns are tools of the trade" of narcotics trafficking.
So his first point is that virtually all of the people in federal prisons for drug crimes are there for importing and distributing. But this falls short of the point he was trying to make. One can import and distribute illegal drugs without being violent. One probably needs to be willing to be violent, but that's different from being violent. In fact, I would bet that the vast majority of drug transactions, even at a high level, are not violent. Drug trafficking, in short, is not inherently violent.
How does McCarthy handle this problem? He really doesn't. He points out that firearms are commonly seized in drug investigations. That doesn't make drug trafficking violent. It is violent only if the guns are used against people. And McCarthy doesn't make that claim. Moreover, if they were used against people, the odds are that they were used illegally, even if the users were simply trying to protect their property. But if that's so, then why put drug traffickers in prison for drug trafficking rather than for shooting people? It would appear that the prosecutors don't have enough evidence that the traffickers really were violent.
McCarthy could be right that the vast majority of drug offenders in prison (federal or otherwise) are there for violent offenses. But he needs to make the case. He hasn't. I would bet that it's because he can't.