As a nice follow up to yesterday’s post, this is a great job from Claremont Magazine.
If Amazon is correct, there are currently more than 150 books in print with the phrase “mass incarceration” in the title or subtitle. You need no special knowledge of crime and punishment in the United States to infer correctly that the term is not one of praise for our criminal justice system. “Mass incarceration” means not simply that many Americans are behind bars, but that too many Americans are behind bars.
Currently, about 2.2 million individuals are incarcerated in the nation’s federal prisons (190,000), state prisons (1.3 million), and local jails (725,000). These are, admittedly, depressingly high numbers—and much higher, adjusted for population, than in other Western democracies. Prisons, however, are a response not to a population problem but to a crime problem. So the question is not whether the United States has too many people in prison for a country of its size, but whether it has too many people in prison for a country with its number of crimes and convictions. (Note that of the local jail inmates, about three fifths are awaiting trial and most of the rest are serving short sentences of less than a year.)
Start with crime. According to the FBI, in 2015 law enforcement authorities reported over 15,000 homicides; 124,000 rapes; 327,000 robberies; and 764,000 aggravated assaults (that is, assaults with a deadly weapon or those causing serious bodily injury). That’s 1.2 million very serious violent crimes known to the police. Authorities also reported 1.6 million burglaries, of which more than a million were of personal residences. Residential burglary is the most serious and traumatic of the property crimes and the one that comes closest to the personal violation characteristic of violent crimes. (Victimization surveys show that the true prevalence of crime in the United States, including crimes not reported to the police, is more than twice as high as official police data.)
All of these crimes are felonies that can land one in prison. And these numbers do not include such serious offenses as kidnapping, indecent liberties with a child, other sex crimes short of rape, and drug trafficking, for which we have no national incident data. Of course, not all criminals are arrested. For some of these serious crimes arrest rates are shockingly low: just 29% for robbery and 13% for burglary. Yet, altogether, police made over 10 million arrests in 2015, 1.5 million for violent crimes (including misdemeanor assaults).
What, then, of convictions for serious crimes? The most recent data from the Department of Justice’s Bureau of Justice Statistics (BJS) show more than 1.1 million felony convictions in state courts each year (2006) and 72,000 felony convictions in federal courts (2014). For the convictions in state courts, over 200,000 were for a violent crime; 100,000 for burglary; and over 200,000 for drug trafficking. Many will be surprised to learn that only two fifths of those convicted of felonies in state courts are actually sentenced to prison. Of the rest, about half receive no incarceration (mainly probation) and half are sentenced to a short term in a local jail. Indeed, at any one time there are more than twice as many convicted offenders on probation or parole—that is, not incarcerated—as there are in the nation’s prisons or jails.
With offenders each year committing well over a million very serious violent crimes and another 1.6 million burglaries, with police each year arresting 1.5 million violent offenders, and with courts each year convicting more than a million persons for a felony, it is perhaps not so surprising that state and federal prisons hold one and a half million inmates. If we have a “mass incarceration” problem it appears to be because we have a “mass crime” problem, despite the downward trend of the past two decades.
Are one and a half million felons in state and federal prisons too many? Are our prisons filled with low-level offenders, especially small-time drug users, who could be released with no harm to the public? And what of the violent offenders, burglars, and drug traffickers, who together constitute fully three fourths of all state prisoners? Would the nation be better served if hundreds of thousands of these offenders were released into our communities or never sent to prison in the first place?
It is a great virtue of John Pfaff’s Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform that it thoroughly refutes the myth, which he calls the “Standard Story,” that the “war on drugs” was responsible for “mass incarceration”—a thesis made famous by Michelle Alexander in her bestseller The New Jim Crow (2010). Reporting data from BJS, Pfaff shows that only 16% of state prisoners are serving time for a drug offense as their most serious conviction, and only 3.5% for drug possession. And he notes that even the relatively few serving time for simple possession may have committed a more serious drug offense but were allowed to plea to the lesser crime. He cites studies showing that about a quarter of drug offenders in prison had previously been convicted of a violent crime, that a fifth had used a gun in a previous crime, and that only about 1% of all state prisoners were “nonviolent, first- or second-time drug offenders.” He even titles one section of his chapter on the war on drugs “The Myth of the Low-Level, Nonviolent Drug Offender.”
A professor at Fordham Law School with a Ph.D. in economics, Pfaff goes on to challenge Alexander’s further claim that the war on drugs (which Alexander attributes to anti-black bias) explains the disproportion of blacks in America’s prisons. He shows to the contrary that whereas blacks in 2013 were 38% of all state prisoners serving time for a drug offense, they were 37% of the much larger number of those serving time for non-drug crimes. Remove all drug offenders from prison and the racial disproportion of state prison inmates would remain essentially unchanged.
How, then, to achieve the kind of massive reductions in incarceration that Pfaff believes are necessary to reduce the “hard-to-estimate ‘collateral’ costs” of mass incarceration, such as the income inmates lose while behind bars, the emotional costs on inmates’ families, the reinforcing of racial biases and inequalities, and the increased future health costs that former inmates face? No real progress will be made until we confront, as he titles his seventh chapter, “The Third Rail: Violent Offenses.” Most simply, we must send fewer violent offenders to prison and shorten the time behind bars of those we do send. States and counties must “rethink how they punish people convicted of violent crimes, where ‘rethink’ means ‘think about how to punish less….
If we learned anything from the past half century, it is that punishment works. Reduce the likelihood that criminals will go to prison or spend much time there, and you will get more crime. Increase the costs that criminals will pay for their deviant behavior, and crime will go down. Some of this is deterrence; some is incapacitation; and some results from the ways in which criminal laws reinforce moral norms. Of course, recognizing the value of prisons and punishment is not inconsistent with doing everything we can to keep young people from launching criminal careers in the first place, or with providing adequate funding within our prisons and jails for educational, vocational, mental health, and substance abuse programs.
One has to admire the clear-eyed approach of the authors of these two new books: we have too many people in prison; most inmates are violent offenders; therefore no serious decarceration will be achieved without reducing punishment for violent crime. Though the “experts” will continue to push in this direction, sober public opinion will resist, and rightly so. The crime drop of the past two decades happened for a reason, and the recent increase in violent crime throughout the United States reminds us of the stakes. Americans expect their government to protect them from those who murder, rape, rob, and assault. It is, after all, why we have government. Sending fewer serious violent offenders to prison or reducing their sentences breaks faith with the American people and puts us all at greater risk of a tragic encounter with the lawless.