Clark Neily of the Cato Institute spoke Wednesday on the United States’ criminal justice system. Anna Perry | Courtesy

The federal gov­ernment causes people to engage in criminal activity, said Clark Neily, vice pres­ident for criminal justice with Cato Institute, in a Fed­er­alist Society speech on Wednesday.

Neily’s speech high­lighted the decreasing clearance rates for crimes in the U.S., the high incar­cer­ation rate, and the estrangement of the current criminal justice system from the one which the Founding Fathers envi­sioned.

“The gov­ernment is probably the single most crim­ino­genic element of our society,” Neily said, “because it has chosen to crim­i­nalize conduct that is not morally wrong, that morally upstanding people will con­tinue to engage in and will have to turn to a black market to supply.”

Neily said that the criminal justice system in the United States specif­i­cally looks for ways to increase incar­cer­ation rates by ensuring that it has a steady supply of people who can be charged for crimes that are easy to pros­ecute. The gov­ernment does this by pro­hibiting some­thing which people are dependent on, such as the use of drugs or alcohol which do not provoke a vis­ceral reaction from the average citizen.

“When you pro­hibit some­thing, a black market arises along with orga­nized crime, with no peaceful means to resolve business dis­putes,” Neily said. “They resolve them with vio­lence, which leads to cycle of vengeance, and the supply of crim­inals the gov­ernment is looking for.”

Neily then explained that this cycle nec­es­sarily leads to low clearance rates for violent crimes, where the police close a case with the belief that they have caught the criminal. Because pros­e­cutors can reach their quotas more easily by pros­e­cuting drug offenders, they are not pur­suing the more dif­ficult and dan­gerous crim­inals.

“Police devote enormous attention to mar­i­juana pos­session while ignoring violent crimes,” Nielly said. “This screams bad incen­tives. Law enforcement is getting less effective at solving the violent crimes that make civil society impos­sible.”

Freshman Vic­toria Mar­shall, a member of the Fed­er­alist Society, said that she found Neily’s speech thought pro­voking and engaging.

“You can see that most people who are incar­cerated are there for drug crimes, specif­i­cally mar­i­juana. I think that is a huge issue,” Mar­shall said. “Sure, pros­ecute drug crimes where there is a lot of vio­lence involved, but we need to ask our­selves, are some of these things really criminal? Should the police be wasting their time on them?”

Neily argued the reason the criminal justice system has strayed so far from the Founding Fathers’ vision of public par­tic­i­pation and trans­parency comes down to the full-time pros­e­cutors that inhabit most juris­dic­tions. Because pros­e­cutors’ full-time job is to incar­cerate crim­inals, they are incen­tivized to fulfill a quota rather than seek justice, Neily said. Although the number of people arrested per year has not increased, the number of pros­e­cu­tions has increased dra­mat­i­cally.

Neily offered a solution to this incentive problem.

“The cost of incar­cer­ating a person is paid by the state, not the prosecutor’s office,” Neily said. “But what if we allowed pros­e­cutors a certain number of spaces in prison? If they want to use them all up on low-level drug dealers, good luck when you catch a mur­derer. Pros­e­cutors have to decide who really needs to be in prison and pri­or­itize those people.”

Senior Anna Perry, pres­ident of the Fed­er­alist Society,said she thought the speech was a success.

“The Fed­er­alist Society likes to bring in speakers who can speak to both the philo­sophical and prac­tical aspects of law and policy,” she said. “Neily brought a prac­tical per­spective about an issue that is critical for our country and some­thing that Hillsdale stu­dents should care about.”