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.