The Myth of Draconianism

On the evening of Jan. 16, 11-year-old Brexialee Torres-Ortiz was walking home with a gallon of milk for her family in Syracuse, N.Y. As she strolled along Oakwood Avenue from the corner store near her home, a car pulled up and stopped about 100 feet away. Passengers exited the vehicle and opened fire, shooting her twice. Police officers rendered aid on the scene as best they could before an ambulance rushed her to Upstate University Hospital, where she died of her wounds.

Investigators believe the incident was gang-related and that another person nearby was the real target. That person was shot in the leg but survived. In any case, the death of Torres-Ortiz marks another entry in the log of daily tragedies in the lives of Americans living in a country that seems to be ceding control of its streets to crime.

But that reality is certainly not what people are led to believe these days. Most Democrats and many Republicans have embraced the soft-on-crime zeitgeist to one degree or another. Even former President Donald Trump made it easier for felons to fly the federal coop. Indeed, there is little difference between the crime policies promoted by George Soros, who is aligned with Democrats, and those promoted by the Kochs, who have contributed generously to the Republican Party. The criminal justice system has become, in the words of American criminologist Barry Latzer, “radically less punitive.” His latest book brings to bear an immense wealth of data and arguments against the “myth of overpunishment,” which underpins the criminal justice initiatives that have become so popular today.

The death of Torres-Ortiz called attention to the recent cashless bail law in New York, which created a revolving door for criminals. New York Police Department data show nearly 150 shooting victims (including 16 deaths) younger than 18 in the Big Apple in 2022—roughly a 100 percent increase over a five-year period. “We have these new laws in Albany that are just a few years old that are just spiking our crime because people aren’t held accountable anymore,” Rep. Claudia Tenney (R-N.Y.) told Fox Digital. But Latzer, professor emeritus at John Jay College of Criminal Justice, CUNY, shows the systemic nature of the problem. Cashless bail is just one part of a much larger issue. It is also more visible than most because of how egregious it is, but what people can’t see is usually far worse.

Start with the myth of “mass incarceration,” something people take for granted as true in its essential sense: there are far too many people needlessly behind bars. But Latzer’s analysis of the Bureau of Justice Statistics data shows that state and federal prisoners account for less than 1 percent of the 18-and-over U.S. population. To be sure, the number of prisoners per capita in the U.S. is historically high. However, Latzer argues that this buildup is a direct consequence of the massive crime waves from years past. Moreover, the total prison population has steadily declined, reaching its lowest point since 1995 in 2019, even as homicides nationwide soar to their highest levels in decades.

How many people are doing time for petty crimes? Sen. John Fetterman, a Democrat, once said he agreed with reducing Pennsylvania’s prison population: “We could reduce our state prison population by 1/3, make us no less safe + save $1B a year,” he tweeted in 2020. But a look at rap sheets in state prisons, which hold 88 percent of all inmates, tells a very different
story about who is incarcerated and why they are there and what might happen if we decide to swing open the doors.

According to Latzer, 56 percent of these prisoners are serving time for extremely violent crimes, including murder, rape, robbery, or assault. Sixteen percent of the “nonviolent sentences” are for serious property crimes, including burglary and felony theft. Fourteen percent are for drug crimes; only a small proportion (3.7 percent) of those are for mere possession rather than serious drug trafficking. Twelve percent of inmates are in for crimes that involve the risk of violence, like illegal gun possession. Roughly 5 percent of the U.S. population accounts for 47 to 55 percent of all crime. Those in jail are overwhelmingly recidivists: five out of six are arrested again after being set loose. “The same cohort reoffends repeatedly until taken out of action by the justice system,” Latzer writes.

The case of Samuel Parsons-Salas illustrates Latzer’s point. Mariah Vera was celebrating her birthday last December at a lounge in Chicago’s Portage Park neighborhood with her father, Ricky Vera, when a fight broke out. According to police, Ricky approached Parsons-Salas outside, asking who hit Mariah during the altercation. Parsons-Salas allegedly retrieved a gun from a car and shot Vera in the head and chest. Next, Parsons-Salas allegedly opened fire on Vera family friend Mario Pozuelos, fatally wounding him as he stood nearby. Police say Parsons-Salas then walked over to Mariah, as she kneeled by her father, and shot her in the head. As he left the scene, he spotted a young woman, Mercedes Tavares, hiding behind a van. He allegedly shot her once, then stood over her and shot her again at close range as she lay on the sidewalk. Police say that Parsons-Salas admitted to the shootings.

Mariah Vera survived the night in critical condition. The other three did not.

Parsons-Salas had been released from jail just three months earlier for an armed home invasion that left two people dead in 2009. Illinois court documents state that he and an accomplice, Christopher Doehring, broke into an apartment where Doehring shot a man and a woman. In a recorded telephone call, he bragged about killing the pair in cold blood, saying, “I have no sympathy at all. I can do that again. That sh—don’t bother me.”

Parsons-Salas was charged in connection with that crime in 2014. The following year, he was charged with assaulting a jail guard. And court records show that in 2018, he pleaded guilty to two charges for the 2009 incident. For reasons prosecutors cannot say, he received credit for four years and eight months already served in a plea deal. But there is no real mystery here; it is a natural consequence of how our system works.

Latzer points out that only around 20 percent of inmates serve full terms due to parole and “good time” release.

Programs providing good-behavior credits that shave off time and are designed to reduce recidivism (an individual’s relapse into criminality) have yielded disappointing fruit. A decade-long study by the U.S. Sentencing Commission released last June found

no statistically significant difference in the likelihood of recidivism among offenders who participated in Occupational Education Programs or Federal Prison Industries compared to offenders who did not participate in the programs.

The Commission did, however, find a correlation between longer sentences and lower recidivism rates. But the corrective effect of a long stay in prison won’t be as common, now that both Republicans and Democrats have committed themselves to devising creative ways to reduce the amount of time inmates spend in jail.

Canva / Pixabay

Many convicted defendants are even given no-incarceration sentences: 31 percent of all convicted felons and 23 percent of violent offenders are released without spending a day in prison. And with the decline in the use of the death penalty, murderers enjoy more leniency today than they did in the past. New York, where Brexialee Torres-Ortiz was killed, dropped capital punishment in 2004. A shame, considering that it would be a fitting penalty for those who took such a young life.

But we have soured on the death penalty because it seems too vicious, like an artifact from a backward and bygone era inhabited by brutal cavemen. However, if ancient humans did live by some law of retribution, like the eye-for-an-eye mandated by Hammurabi’s Code, then they lived with a more enlightened sense of justice than we presently have. At least they had the stomach for self-preservation, whereas we seem to have a bottomless appetite for suicide—anything to avoid being accused of supporting “draconian” policies.

Draco, the Athenian statesman from whose name we derive that term, is seen as overpunishing offenders. According to legend, Draco wrote his constitution in blood and prescribed death as the punishment for most offenses. Plutarch wrote that, when “asked why he made death the penalty for most offences,” Draco “replied that in his opinion the lesser ones deserved it, and for the greater ones no heavier penalty could be found.”

Clever and, it seems, needlessly harsh. But until Draco’s reforms, there were in Athens only oral laws that were subject to exploitation by capricious aristocrats. Indeed, historian Brian A. Pavlac describes Draco as the first of three tyrant-reformers, followed by Solon and Cleisthenes, each of whom played a part in resolving differences among three different constituencies: those in the city, those in the plain, and those in the hills.“These divisions hindered the formation of a more democratic form of government until a series of tyrants began reforming the system,” Pavlac wrote. First came Draco, whose harsh laws helped begin the process of resolving the city’s political and social problems. Solon later repealed Draco’s code but kept the homicide statutes and maintained the constitution’s written form, making unjust interpretation and modification more difficult.

The reforms that ultimately lifted up Athens began by draconian means, inked in blood and backed by force. Solon’s name became a byword for political wisdom, while Draco’s became identified with excessive harshness, but the two, in fact, needed each other. That is a lesson we should rediscover in our own city now that capricious “reformers” interpret and modify our laws in such a way that exposes us all to mortal danger. Punishment has become a bad word, but it shouldn’t be.

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