‘Long Prison Terms Are Wasteful Government Spending’

Criminologist Mark Kleiman on replacing severity with swiftness and certainty

UCLA criminologist Mark Kleiman says he’s “angry about having much too much crime and an intolerable number of people behind bars.” Kleiman believes America’s astronomical incarceration rate isn’t making us safer. In his recent book When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton University Press), he argues that when it comes to punishment, there is a tradeoff between severity and swiftness. For too long the U.S. has erred heavily on the side of severity, he says, but concentrating enforcement and providing immediate consequences for lawbreakers can reduce crime while putting fewer people in prison.

reason.tv’s Zach Weissmueller spoke with Kleiman late last year. To see a video version of the interview, go to reason.tv/video/show/professor-mark-kleiman-on-too.

reason: What motivated you to write this book?

Mark Kleiman: I wrote When Brute Force Fails because I’m both excited and angry. I’m angry about having much too much crime and an intolerable number of people behind bars, and excited because out in the field people are doing things that could change that.

There are more people behind bars in the United States than in any other country in the world. We have more prisoners than China does. We have 5 percent of the world’s population; we have 25 percent of the world’s prisoners. If the criminal justice system were a parent, we’d call it abusive and neglectful. It punishes too much and not often enough. We have a criminal justice system that does not know what every competent parent knows: that you change people’s behavior by giving them clear rules and by enforcing those rules consistently and quickly and fairly.

reason: What are the main reforms you’re suggesting?

Kleiman: The worst thing about our criminal justice system is its randomized draconianism. We’re very severe in the way we punish people, but we do so very irregularly and very erratically. The basic reform is to substitute swiftness and certainty for severity. 

The average probation violation leads to no punishment at all, but an occasional probation violation will lead to six months in prison. That’s the best possible way to fill up your prisons and not change anyone’s behavior. The typical probation department does drug testing and tells people that they’re not supposed to use. If the test comes back positive, the probation officer says, “Don’t do that again.” The next time it happens, the probation officer says, “Don’t do that again.” The third time, the probation officer says, “You know, if you keep doing this, you’re going to get in trouble.” The fourth time, he says, “This is your last warning.” And about the eighth or ninth or 12th time, they’re seeing the judge, and the probationer might be off to prison for six months. Lunacy. He had no way of knowing that the last “last warning” was really the last warning.

(Interview continues below video.)

reason: In the book, you say, “Concentrating enforcement attention works better than dispersing it.” Explain what you mean.

Kleiman: If you’ve got a large number of violations and can’t punish all of them, there are two approaches: You can punish more or less at random, in which case everybody learns that mostly he’s going to get away with it. Or you can pick some subset of offenders, of offenses, of locations, of times—pick some part of the universe—and say, “OK, here’s the rule within that part of the universe.” Concentrated enforcement means deciding what you’re not going to tolerate and who you’re not going to tolerate doing it, directly communicating that threat to the people whose behavior you want to change, and then carrying it out.

reason: You advocate a system that favors swiftness over severity. Why?

Kleiman: If offenders were perfectly rational, crime control would be easy: ratchet up the severity of the punishment to the point where even a small probability of being caught means it’s not worth it. That’s what we’ve been trying for the last 30 years, and it basically hasn’t worked. Everybody is more sensitive to immediate consequences than to future consequences. Everybody is more sensitive to certain than to uncertain consequences. Offenders are probably more like that than the rest of us: They’re more reckless; they’re more impulsive. Therefore it’s even more important to move the consequences close in time to the events and to have the link be highly probable.

reason: You also say there’s a tradeoff between swiftness and severity. 

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  • Fist of Etiquette||

    The alternative to the expense of all these prisons is so obvious. It had some highly publicized study back in the early 80's. Walling off Manhattan and dumping our convicts there is your best solution, and it has the added benefit of killing two birds with one stone. Just don't fly Air Force One over its airspace.

    (On second thought, go ahead.)

  • GregorySmith3||

    OK, Fist of Etiquette, how do you intend to punish rape, robbery, assault, and all the other crimes?

    The fact is that every criminal in jail is a criminal that can't hurt society.

  • NAR||

    Prisons breed organised crime and turn nonviolent drug offenders into violent foot soldiers for criminal gangs.

    Robbery could be dealt with as a civil matter (debtors' work prison to pay back for the damages incurred to the victim).

    The number of rapists in prison is quite low.

  • Federal Dog||

    "Just don't fly Air Force One over its airspace.'

    What's the point of walling them off then?

  • Vinny||

    Nah. Too lenient. instead we should take a cue from the law and order Romans:


  • Ragnar||

    Yes, immediate punishment is more effective than long prison terms. Justice needs to be swifter; I recommend beatings immediately after arrest.

  • sarcasmic||

    Our legal system teaches that if you are guilty and can afford a good attorney, there's good chance you will walk. And if you can't afford an attorney you might as well plead guilty and get it over with. All prison does is teach people how to survive in prison.
    That hardly seems useful to me.

    I say break out the stocks, whipping post and gallows.
    Trial, sentencing and punishment all in one day.

    Fuck the lawyers.

  • Law N. Order||

    Heh....butt-rape is funny.

  • ||

    The alternative to the expense of all these prisons is so obvious. It had some highly publicized study back in the early 80's. Walling off Manhattan and dumping our convicts there is your best solution, and it has the added benefit of killing two birds with one stone. Just don't fly Air Force One over its airspace.
    @ I paid $32.67 for a XBOX 360 and my mom got a 17 inch Toshiba laptop for $94.83 being delivered to
    our house tomorrow by FedEX. I will never again pay expensive retail prices at stores. I even sold a
    46 inch HDTV to my boss for $650 and it only cost me $52.78 to get. Here is the website we using to get
    all this stuff, BetaSell.com

  • George||

    Letting cops shoot pot-heads on sight will dramatically reduce the prison population and recidivism.

  • ||

    Stupid Constitution. If I had not sworn to protect and uphold it, I could almost agree with this nonsense.

  • Tony||

    Another way to fight drug use is to make the users gargle my cum.

  • sarcasmic||

    The Constitution forbids "cruel and unusual punishment".

    What is more "cruel and unusual" than having years of your life taken from you as you are locked in a cage while subjected to random beatings and anal rape, often for the crime of not being able to give thousand of dollars to a lawyer?

    Our justice system serves one purpose: to enrich the lawyers who write the laws.

    That's it.

    Fuck them. We need to scrap the whole thing and start over - first rule is that no lawyers may serve in public office.

    Did I mention that I hate lawyers?

  • some guy||

    Not just lawyers. Prison guards, judges, politicians, police, etc. all benefit under our current "justice" system.

  • ||

    I'm talking about the whole trial by jury thing.

  • Mainer||

    Why are prosecutors elected ?

  • H man||

    So voters can rein in a prosecutor that tramples the rights of the people. That's the theory.

    Reality meet theory. Theory this is reality.

  • some guy||

    Yeah, funny how often Reality kicks Theory in the face. The government should really do something about it...

  • ||

    I wonder if the theories presented in this article include applying this to those convicted of murder, rape, etc. It seems like the long term incarceration of violent offenders isn't just to punish them but also sequester them from society to protect the rest of us. I see where they're coming from I'm just having a hard time going along with this one.

  • T||

    He did discuss that prison should be for people we're afraid of, not mad at.

  • some guy||

    Yeah, he was basically saying prison should be resereved only for those who pose a direct physical threat to society, or who have committed large scale, high-dollar value crimes (Bernie Madoff).

  • Appalachian Australian||

    Essentially, prisons be abolished and we should only use jails for when there is actually a need to detain someone.

    Prison as a form of punishment is ineffective. I'm not sure what would work better, but am open to some kind of work camp or Singapore-style corporal punishment. It'd be less cruel and unusal than our prison-rape system.

  • Mike||

    "We’ve known for a long time that swiftness and certainty are more important than severity. What’s not adequately understood is that severity is the enemy of swiftness and certainty. A severe punishment can’t be swift because there’s a lot of due process involved, and it can’t be certain, because you’re chewing up a lot of resources."

    How does making the punishment less severe reduce the need for due process? How does it lead to higher arrest rates and greater conviction rates to achieve swiftness and certainty? Kleiman doesn't make much of a case other than the parole violation example, but that would seem to recommend higher incarceration rates for violators - not clear how that leads to lower prison populations.

  • H man||

    Good statment of the problem.

  • H man||

    I see upon further review he touches on concentrated enforcement. Still has problems though.

  • Old Bull Lee||

    I'm with you. I clicked on this expecting to hear some kind surprising solution, but he doesn't have much to offer. He's just defined the problem in different terms.

  • cynical||

    "How does making the punishment less severe reduce the need for due process?"

    Because people don't give as much of a shit if you get it wrong, basically. Not necessarily rational, but there it is.

  • Ehop||

    Because we know someone is not going to fight if he is facing a year in prison, but five he will.
    What is the magic number?
    There is no solution presented, just a guy who wants to get some grant money and write a book.

  • Orson||

    Swift and sure anti-crime bill............

  • ||

    I'm tire of the China comparisson. If we treated our prisoners like they do in China we would have fewer prisons also because people would not want the punishment of their crimes.

  • ||

    The China example is not perfect, but it has merit in the fact that China is 3x as large as we are.
    Yes, we have very different justice systems, but so different as to have more than 3x the incarceration rate of China, and more than 5x the incarceration rate average in the world?

    I do agree that comparisons to Canada, Western European nations, and Austrailia, would be more appropriate, however.

  • TDOM||

    All Kleiman is suggesting is that we follow the basic principles of operant condeitioning as outlined by B. F. Skinner. For punishment to work, it must be swift and it must be consistent. It must also deter the behavior. Our current system does none of these things. In fact, it does just the opposite. In prison criminal behavior is rewarded and is prevelent. If you want to learn how to be a better criminal, go to prison. It's the best trade school in the country. Prison really needs to be about protecting socieity from those who are the most dangerous to society. Long prison sentences for repeat violent offenders are the best way to do that. For other types of offenders swifter, more certain, and less costly punishments are likely to produce better results.

  • ||

    This is ignoring the elephant in the room as best as it can. Yes, we should only be locking up the people who we are afraid of, not those who we are angry at. The Drug War is a prime example. Legalize it all, and prisons would be nearly empty overnight. Non-violent criminals that have been locked up over this absurd war is the bane of our tax paying existence.

  • 200 million morons||

    But we are afraid of drug dealers! Very afraid!

  • Appalachian Australian||

    Actually, I don't know anyone whose afraid of that friendly guy they met in college who can get them a bag of weed now and then.

    People are afraid of violent thugs like they see portrayed on TV.

  • ||

    I'm a felon, I lost my professional license so I can't work.The felony prevents me from doing anything really.I had 2 Dui's within 60 months, the second was during a mandatory interlock period hence the aggravating circumstances, I was a physically dependent drunk (shakes,seizures,etc).Anyway, I served 8 months 10 days in county jail, $20,000+ in fines,4 yrs license suspension,5 yrs supervised probation,testing,etc. I quit drinking 2 yrs ago.Unless the judge drops the felony (expungement in Az.) I'm basically ruined for life.This is for a crime that involved nobody!! OH, Try going 3-yrs without a drivers license.

  • Appalachian Australian||

    Roads should be privatised and the property owner should choose what happens on his roads (letting people drive on them drunk, not letting people drive on them who eat cheeseburgers while driving, etc.)

    This would limit DUI to a civil matter or at worst simple trespassing offence.

  • ||

    I'm sorry to hear about your situation. MADD and their nanny-state minions have turned a simple error of judgment into something sinister. Your punishment is about as harsh as it would have been for grand theft. A little harsher, in fact, when one considers the fines you are forced to pay and the lost wages. (which makes me wonder just how they expect you to pay a $20k fine when you cannot drive or work)

  • ||

    sounds good to me! A felony is by definition a heinous crime, it has lost its meaning.

  • موقع زفات||

    thank you

  • زفات||

    Not Funny

  • ||

    The earlier point about operant conditioning is a good one. Reward and punishment can be either certain or random and it can be either immediate or delayed.

    Negative behaviors are best curtailed with certain, immediate penalties. Positive behavior is best promoted with random, immediate reward.

    Now consider the converse: negative behavior is best PROMOTED with delayed, random punishment. It makes common sense when you consider that crimes bring an immediate and certain reward. It is this certain reward that motivates the criminal behavior in the first place.

    Just like gambling, delayed and random punishment breeds more crime because it actually enhances the thrill of committing the crime in the first place. Criminals laugh at law enforcement efforts precisely because we have turned the criminal justice system into a twisted and dangerous game of poker.

  • JustAnotherSerf||

    Totalitarian regimes pass vague laws with huge penalties which they enforce arbitrarily against whomever poses a threat to their power.

  • ||

    And we know China's prison population exactly how?

  • nike air max||

    is good

  • ||

    It's disappointing that the article repeats the lie that we have more people in prison than China. China has 7 million in prison labor camps, their term is "Lao Gai"; you could ask Harry Wu, he was in one for 19 years (Wu has a lot more credibility than the pustulent whores who sold us out on "free trade" with a criminal regime, he predicted exactly what has happened--the Chinese kleptocracy steals everything and the corporate pagans cater to them.
    I guess a lot of you libertarian types would have been for "free trade" with the Nazis or Stalin?


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