The answer is “both”. I’ll try to illustrate this with a few examples.

Almost every day, I see a report in the local media (OC Register) that leaves me scratching my head. A few days ago, three young women from Orange County were killed when Gregory Black sped through a red light at 100 mph and hit their car. It turns out that Black has a long criminal record:

Moreno described Black as “a well-known gang member” with a long criminal history. . . .

Black pleaded no contest to one count of attempted murder in 2021. But he was only sentenced to five years of probation.

The Los Angeles County District Attorney’s office said that besides vehicular manslaughter charges for Black, he faces special allegations of two or more prior felony convictions and aggravated circumstances of great bodily injury.

At the same time, our prisons are full of people who have committed much less serious crimes.  Roughly 40,000 people are currently incarcerated for possessing or selling marijuana, an activity that is legal in nearly half of all states.  In contrast, attempted murder is illegal in all 50 states, as well as Washington DC.

Whenever I see a news story describing a horrific crime, the article almost invariably includes a long list of the previous offenses for which the accused was previously found guilty.  So it’s pretty clear to me that we are able to identify the most serious criminals.  But in most cases the accused merely received a slap on the wrist for the previous offenses.

On the other hand, you can also find innumerable examples of people being incarcerated for minor offenses. After all, America has more than 2 million people behind bars.

For every news story about a violent criminal who receives an absurdly mild sentence, I can recall stories with exactly the opposite outcome.  I recall reading about a female high school teacher sentenced to years in prison for having sex with a boy in her class.  Why prison?  I get that her behavior is not OK, but why not fire her from her job?  Or how about the young woman who was sentenced to decades in prison after being pressured by her boyfriend to carry some drugs to a drop-off location.  Isn’t that a bit extreme?  Or how about the woman sentenced to prison for insider trading?  Wouldn’t a hefty fine be adequate?  Or how about women in jail for prostitution?

Matt Yglesias has complained that DC prosecutors are failing to prosecute people caught with illegal firearms.  Not surprisingly, these people then go out and commit violent crimes.  I don’t know about you, but I’m far more concerned about being victimized by a guy with an illegal gun than I am by a high school teacher, the girlfriend of a drug dealer, a prostitute or an insider trader.  There’s a huge disparity in the incarceration rates of men and women.  Perhaps the disparity should be even greater.

Time magazine recently had this to say:

Murder, for instance, should be treated as a far graver crime than writing a bad check. 

That would seem obvious.  But our actual sentencing practices don’t seem to follow any rhyme or reason.  

Some politicians say that we need to be tougher on crime, while other politicians suggest we have too many people behind bars.  According to Reason magazine, some politicians can’t seem to decide what they want:

In my view, the debate over criminal justice is too simplistic.  We don’t need more people in prison.  We don’t need fewer people in prison.  We need different people in prison.