Why today’s criminal justice reform efforts won’t end mass incarceration
Even with all the attention it receives, the scale of incarceration and punishment in the United States can still be hard to comprehend. On any given day, about 1.5 million people are in state and federal prisons; another 750,000 are in county jails (most still awaiting trial); and over 4.5 million are on probation or parole. Over the course of a year, over 600,000 people enter prison, and roughly the same number are sent home; and over 10 million people are admitted to jails annually. About 2.5 million more enter or leave parole or probation.
Put differently, the United States is home to about 5 percent of the world’s population but holds over 20 percent of the world’s prisoners and nearly one-third of its women prisoners. The only countries with rates even close to ours are places like El Salvador, Turkmenistan and Cuba; allies like Canada, France and Germany have rates on the order of one-tenth ours (yet have similar crime rates and substantially lower homicide rates). Ours is a massive experiment in punitive social control that imposes disproportionate costs on people of color and those who are poor—and one that is nearly impossible to justify even remotely, at least on public safety grounds.
Remarkably, our brutal punitiveness is a relatively new development. From the 1920s, when we first have regular, reliable data, to the 1970s, our incarceration rate was relatively stable and not much different from Europe’s. In the mid-1970s, however, our prison population and incarceration rate started growing. Some talk of it “exploding,” but that mischaracterizes what happened. From 1972 to 2010, the prison population steadily rose every single year, almost always by less than 10 percent. Perhaps we should not be surprised that prison population rose as the crime rate soared from the early 1960s to 1991, but it continued to rise even as crime fell steadily and sharply over the 1990s, 2000s and most of the 2010s.
Ours is a massive experiment in punitive social control that imposes disproportionate costs on people of color and those who are poor.
In 2010, however, total prison populations dropped for the first time in nearly four decades and then fell again in every year between 2011 and 2016 except one (2013). Preliminary data suggest that it fell again in 2017. The total decline has not been great nor widely spread—the total drop is just under 7 percent through 2016, half that decline is in the state of California alone, and only half the states have experienced a drop—but after 40 years of unstopping, nationwide increases, any sort of reversal is worth celebrating.
Yet it is still important to ask what exactly we are celebrating. It could be that the United States is emerging from some sort of punitive fever and that this is the start of a major recalibration of how we confront crime. It is equally possible, however, that this is just a small correction and that we are heading for a new, stable incarceration rate a bit below where we peaked in 2010 but still far higher than that seen overseas, than in our own country 100 years ago or than what public safety actually requires.
Unfortunately, there are already some troubling signs that some level of mass incarceration is here to stay. Some states have started to roll back the reforms they just passed, and most reforms continue to ignore several fundamental underlying causes that led to mass incarceration in the first place. So let’s take a look at why we should aim to cut prison populations, why our current reforms look so tenuous and the difficult issues we have to confront to achieve real reform.
What Goes Up
Incarceration and crime have a complicated relationship, at least in the United States. Reported crime started to rise in the 1960s, but prison populations held steady for almost a decade; only from the mid-1970s to the early 1990s did crime and prison figures rise together. Then, from about 1991 onward, crime steadily fell, but prison populations kept on rising.
Defenders of incarceration see nothing surprising about this story: Crime rose in the 1960s and 1970s because prison populations did not rise, and crime fell in the 1990s and 2000s because prison populations increased. The evidence, however, simply does not support this narrative. An ever-growing stack of studies consistently shows that long and ever-longer prison sentences do not significantly deter crime; that prisons are ineffective at rehabilitating those detained in them; and that while incarceration prevents those who are in prison from committing offenses outside those institutions while they are confined, it also increases the risk that they will reoffend upon release.
It is increasingly clear that other approaches could have achieved the same reduction in crime at far less cost.
Now, to be clear, the studies that return the most dismal results for prison are looking at the impact of incarceration rates in recent years, when crime has been low and prison populations high. Other reliable studies suggest that the rise in incarceration did help stem the rise in crime during the 1970s and 1980s and helped contribute to the decline of crime especially in the 1990s; the rise in incarceration could have been responsible for as much as 25 percent of the initial drop in crime.
But even these studies do not justify our reliance on incarceration. It is increasingly clear that other approaches could have achieved the same reduction in crime at far less cost—not just financial cost but social cost as well. Within the “conventional” criminal justice system, for example, a dollar spent on policing produces far more crime reduction than a dollar spent on prisons. Recent studies have shown that programs like Cure Violence, which relies on trained community members rather than police to intervene and stop violence, can be quite effective. Improved employment also reduces crime significantly, as does improved access to health care and drug treatment.
Unlike prison, all these programs reduce crime more by preventing it in the first place than by detaining the person who committed it after the fact. As a result, they avoid that post-incarceration jump in offending that offsets much of the gain from prison and leads to still-more victimization. That also means they avoid many if not most of the social costs of punishment, which are staggering and uncounted. When we talk about the “cost of prisons,” the number we often hear is that we spend about $50 billion on state prisons and $30 billion on county jails. But that is just the fiscal cost—the budget dollars that the state and counties spend, at least two-thirds of which goes to staff wages.
The real costs of prison are the harms that incarceration imposes on the people it locks up, their families and their communities.
But the real costs of prison are the harms that incarceration imposes on the people it locks up, their families and their communities. People are physically and sexually assaulted in prison, and some are killed by other inmates or even just by the horrific conditions in which the state decides to detain them, like unairconditioned cells in Florida and Texas. Prisons are a vector for diseases, and the risk of death by drug overdose soars immediately upon release. Time in prison leads to lower future income, and it heavily taxes family and friends who have to spend money on usurious charges for collect calls, on trips to distant prisons located far from the cities where most inmates lived before their incarceration, on providing the prisoner with money for snacks and toiletries. Having a loved one in prison imposes deep emotional costs on family members, and some evidence suggests that children with an incarcerated parent are themselves more likely to have contact with the criminal justice system in the future.
These are just a few amid the vast array of costs related to incarceration, and no study has begun to reliably estimate their magnitude. Importantly, all the alternatives to prison—even increased policing, with its attendant risk of police violence—surely impose fewer of these costs and appear to reduce crime as effectively if not more effectively. Some of these alternatives, like improved employment and Medicaid expansion, reduce crime while providing social benefits, making them that rare win-win. And in recent surveys, victims of crimes generally prefer these sorts of non-prison options as well.
In other words, we should rely on prison less, whether crime rates are going down or up. It is not surprising that the push to cut prisons has come after more than 20 years of falling crime—but prisons were an ineffective way to respond to crime from the start.
Unfortunately, this is not how reform efforts are generally framed. Far too often, advocates premise reforms on the decline in crime: “Look,” they say, “since 2010 we’ve cut prison populations and crime has continued to fall, so the policy is a success and we should keep cutting more!” The political appeal of this approach, of course, is clear: Americans think a lot about crime and tend to be quite afraid of it, so showing that cutting prisons does not “cause” crime to rise resonates with them.
We should rely on prison less, whether crime rates are going down or up.
This strategy, however, is a short-term one that brings with it some longer-term risks—some of which we are already starting to see materialize. Lurking in this framing is the idea that if crime starts to go up again, we might need to turn back to prisons. This clearly is not the intent of advocates who make this point, but it is nonetheless implicit, and almost explicit, in the arguments they make. And as violent crime has ticked up in some places over the past few years, so, too, has the push to undue reforms. We have framed decarceration as a low-crime luxury, not as sound policy regardless of what crime rates are doing.
Over the past year, we have seen states respond to increases in violence by rolling back reforms and pushing for more prison time. Alaska decided to respond to a rise in violence that was tied to the opioid crisis and a weak economy by repealing much of its expansive, barely-one-year-old criminal justice reform law—including provisions that had not even gone into effect yet and thus could not explain the rise in crime. Maryland recently adopted new mandatory minimums in response to gun violence in Baltimore, and Illinois did the same in response to violence in Chicago.
We need to find the political courage to attack prison as a crime-fighting tool head-on. Unfortunately, shifting away from prisons requires us to tackle two confounding issues that are at the heart of mass incarceration but defy easy fixes: changing how we respond to violent crimes and altering the dysfunctional political structures that give everyone from police to prosecutors to parole boards incentives only to be harsh and never to be lenient.
The Third Rail of Reform
Almost all reforms to date have focused on how we punish those convicted of drug and other “nonviolent” crimes, like theft. And there is much to be said for such changes. Prison is surely a needlessly costly place to detain people who often pose little risk of physically harming someone else.
Yet, however logical it may have been to make these changes a starting place for reform, nearly 10 years into this “reform” moment we seem unwilling to move past reforms aimed at property offenses and, especially, the “low-level, nonviolent drug offender.” A poll conducted by Vox.com in 2016 illuminates the challenge we now face. The poll found that a majority of respondents—from 55 percent of liberals to 68 percent of conservatives—opposed reducing the time spent in prison by those convicted of violence, even if they posed little risk of reoffending. And this is not surprising, because over 60 percent of those polled thought that about half of all people in prison are in for drugs.
But that supposition—that about half of all people in prison are there for drugs— although widely repeated and widely believed, is fundamentally, unambiguously incorrect.
Here are the numbers: In the state systems, which hold about 90 percent of all prisoners, those convicted of drugs make up 15 percent, not 50 percent. Most people in prison—about 53 percent right now—have been convicted of a violent crime, and almost all people who are serving long sentences have been convicted of violence, almost always serious violence like murder, manslaughter or rape. It is true that about half of all federal prisoners are serving time for drug charges, but the feds hold only about 10 percent of all prisoners. This is why federal reform efforts, like the First Step Act, which passed through the Senate with an overwhelming bipartisan majority on Dec. 18, will have only minor effects on overall national incarceration rates.
Reformers have framed decarceration as a low-crime luxury, not as sound policy regardless of what crime rates are doing.
As that Vox poll made clear, however, people believe that most of those in prison are there for drugs, which leads them to think that we can end mass incarceration by focusing almost entirely on the easier, more sympathetic, nonviolent cases. We cannot. If we really want to scale back our reliance on prison, we need to change how we approach violence, and most people—politicians, reformers, the public—seem unwilling to do this.
New York State provides a stark cautionary tale on the limits of a drugs-only or even an all-but-violence approach. New York started to decarcerate years before the rest of the country, in 1999. Since then, the prison population has dropped from almost 73,000 in 1999 to barely 50,000 at the end of 2016. That decline, however, is due almost entirely to reducing the population in prison for drug crimes; the number in for violence barely budged over 20 years, from 37,000 to 32,000, despite precipitous declines in violence across the state and especially in New York City. If tomorrow New York released everyone who is in prison for nonviolent crime, it would still have a prison population of over 30,000—a population that is 50 percent larger than the 20,500 in prison for all crimes in 1978.
The national numbers tell a similar story. There were about 175,000 people in state prisons in 1970. There are currently 707,000 people in state prisons for violence alone, including over 175,000 just for murder or manslaughter. There will be no dramatic reduction in the U.S. incarceration rate without a significant reduction in the number of people we lock up for violence—including serious violence, including homicide.
It is essential, therefore, to point out that our prison-focused response to violence is strongly at odds with the science of violent behavior. We often describe people who commit violent crimes as “violent offenders,” but that misstates how violence operates. While some people are undeniably more prone to violence than others, violence tends to be a young person’s issue, young men, in particular. As a result of various hormonal, neurological, physical and social factors, people “age into” violence in their mid- to late-teens and starting “aging out” sometime in their 20s and 30s and almost all by their 40s.
And yet we often impose our longest sentences on our oldest defendants because it takes time to generate a long record. In Pennsylvania, for example, a majority of defendants who are sentenced to life without parole because of a “third strike” are over 40—and thus are likely about to start desisting. Long sentences imposed on the young are similarly foolish, in part, because we remain incapable of identifying who, when young, poses a serious ongoing risk of violence but also because such sentences view the young man as irredeemably “violent,” contrary to all the evidence about how people change.
The age profile of offenders even cautions against over-using short prison terms to respond to crimes, even violent offenses. A growing body of evidence shows that a major pathway away from violent and antisocial behavior is social developments like reliable employment, marriage and finding a stable home. Just receiving a felony conviction interferes with all of these and thus can make it harder for someone to leave crime behind; prison only makes this harder still.
None of these arguments, of course, may sway the retributivist, who sees long prison sentences as morally required to offset the harm caused. I personally do not subscribe to that belief, and it is a position I find hard to reconcile with the Christian faith I have been taught, of a Jesus who talks of love and forgiveness. But I will concede that to the extent such retributive instincts fuel our desire to punish, arguments about deterrence and aging out of violence will fall on deaf ears. But to the extent that our policies should be designed to maximize safety at the lowest fiscal and social cost—and I think many if not most people think this is a central goal—then we can treat violence in a far less, well, violent way.
The politics here, however, are a nightmare. We could send fewer people to prison for violence than we already do, we could incarcerate those we send there for less time, and we could release many of those already in prison for violence far earlier than they are currently slated to be sent home, and as a general matter the public would be just as safe as before, if not safer. But the politics of crime is not driven by the general outcome. It is driven by politicians who are terrified of that one bad, outlier case that grabs the media’s attention.
The Politics of Punishment
Ever since its founding, American attitudes toward crime and criminals have been harsher than those in Europe, even if our prison populations did not differ much throughout most of the 20th century. This harshness, however, is compounded by the fact that our criminal justice system is haphazardly organized in ways that consistently incentivize severity and punish lenience.
Perhaps somewhat surprisingly, the heart of the problem is an excess of democratic accountability. In no other country are criminal justice actors so immediately accountable to the public. We are the only nation in the world that elects its prosecutors, and, for all intents and purposes, the only one that elects its judges as well. Moreover, our single-member district, first-past-the-post process for electing legislators means that even senior legislative leaders are at risk of losing their seats in any election—and bad crime stories are a powerful political tool for opponents to use.
And while Americans voters care a lot about crime, they respond far less to broad overarching trends and far more to highly salient, shocking, “newsworthy” cases—which are often newsworthy because they are unusual. As a result, they are far more attuned to errors in leniency—when a preventable, headline-grabbing crime occurs—than to the far-more-often invisible excess severity.
In no other country are criminal justice actors so immediately accountable to the public.
This effect is so common that it has a name: the Willie Horton Effect, named after William Horton, a man who was serving time for homicide in Massachusetts and who in 1986 absconded from a furlough program that allowed inmates to visit with family. A year later he committed a violent rape and assault in Maryland, and his story was used in a virulently racist ad run against Massachusetts governor Michael Dukakis when he ran for president in 1988. That the furlough program had a success rate of over 99 percent never came up; one shocking crime stripped public awareness of the program of all context and support.
Excessive severity, however, imposes little to no downside for elected officials. How do you prove the counterfactual that someone would not have reoffended had he been locked up for less time? Perhaps we can show it with data, but a regression will never have the political power of a flesh-and-blood victim.
And it is clear that the Willie Horton Effect persists to this day. Arkansas saw its prison population drop by over 9 percent in 2012, only to rise by over 17 percent in 2013, as a single murder that year by a single parolee led to immediate policy changes. Even New York City’s progressive mayor, Bill de Blasio, proposed changing diversion programs in the state in the wake of a single murder of a New York City police officer.
This politically driven harshness is then magnified by other ill-conceived distortions in the system. Prosecutors, for example, are county officials, elected by and generally paid for by the county they serve, while prisons are paid for by the state. So not only is being harsh politically safe, but a different government picks up the tab. In fact, less-harsh options, like county jail or probation, are also paid for by the county, so it is actually cheaper to be harsher and shift the costs away from the county to the state prison system.
Our continuing legacy of racial segregation further amplifies this punitiveness. Wealthier, whiter suburban voters often wield disproportionate electoral influence when it comes to electing the prosecutor. These voters like the feeling of crime going down—but they face none of the costs of aggressive policies. After all, it is not their brothers or fathers or uncles or sons who face the unnecessary police stops or arrests or indictments or convictions or prison terms. Those costs are disproportionately borne by poorer people of color in the city, whom those voters do not know or even interact with.
These problems have always been with us. But they are more problematic now because as our prisons have grown, so, too, have the groups that benefit from them—and who thus have an incentive to manipulate people’s punitiveness and fear of crime for their own ends. Though many would at this juncture quickly point to private prison firms, they are not the main ones “profiting” off prisons. They hold about 9 percent of the nation’s prisoners and generally have little impact on policy.
Mass incarceration is the product of a deep, racially driven punitiveness, combined with incentives that make harshness politically safe and leniency dangerous.
It is various public sector actors who truly benefit. About two-thirds of $50 billion we spend on prisons—$33 billion or so—goes to the wages and benefits of prison staff. It is not surprising, then, that (public sector) correctional officer unions fight reforms, given how much is at stake. That many if not most prisons are located in economically distressed areas and provide some of the few well-paying jobs in the region only magnifies this effect.
Or consider the impact of “prison gerrymandering.” When drawing legislative districts, 44 states count prisoners as residing in their prison, not their prior home—but do not let them vote. All across the country, state and local legislators know that a decline in prison population means a decline in their district’s population for election purposes, putting their seats at risk of redistricting.
Moreover, there is a particularly stark partisan bent to this distortion. Prisoners are disproportionately people of color from cities, which suggests they are disproportionately Democrats. Prisons are increasingly located in more conservative rural areas. This “prison gerrymandering” thus inflates Republican statehouse representation while simultaneously suppressing Democratic turnout, creating a powerful partisan resistance to deep changes.
All of these responses are perfectly rational. Yet so far, no effort has been made to address these and other defects that politicians and various interest groups exploit. Reform efforts have opted to capitalize on favorable conditions (low crime, high prison populations, soaring costs) to push reform bills through the same broken system that gave us mass incarceration and mass punishment in the first place. As long as these political incentives remain in place, it will not take much of a rise in crime, whatever its causes, to see reforms start to crumble.
It was never going to be possible to significantly scale back our outsized reliance on prisons easily. Mass incarceration did not arise by accident or due to one or two small mistakes. It is the product of a deep, racially driven punitiveness, combined with a vast array of incentives that consistently make harshness politically safe and leniency dangerous. Our seven-year reduction in prison populations is certainly something to celebrate, but those reductions are modest and always vulnerable. And they will remain modest and vulnerable unless we tackle some very difficult issues, such as how we treat violence and the even the basic design of our criminal justice systems.
Yet these issues are not intractable. One reason why California has seen such a large decline in its prison population is that it is one the state to actually confront the fiscal moral hazards of county prosecutors having unlimited access to state-funded prisons. There have even been a few small, halting steps toward treating violence less harshly. Neither major structural political change nor comprehensive shifts in the response to violence is dominating discussions about criminal justice reform, but each is increasingly making itself heard. There are still many ways for broad, comprehensive reform to fail but many—if challenging—ways for it to succeed as well.