The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The discussion in this post is excerpted from Andrew Leipold, Is Mass Incarceration Inevitable? 56 American Criminal Law Review 1579 (2019).
We've all read the headlines. America incarcerates the most people, and does so at the highest rate, of any country in the world. In 2017 there were 1.5 million people in U.S. prisons and another 745,000 in jail. This means that the U.S. incarcerates at a rate that is 5-6 times higher than countries like Germany, the U.K., and France, and has a higher number of inmates than the reported figures for China and Russia. The U.S. numbers also are dramatically large when compared to our own history, as the prison population increased more than 700% since the early 1970s. Small wonder that "mass incarceration" is now the standard label to describe the state of U.S. corrections.
Despite the gloomy big picture, there are some reasons for optimism. States—which house almost all the inmates—are well aware of the situation, and some have been impressively active (and even more impressively, bipartisan) in addressing it. Many states have created criminal reform commissions whose goal is to reduce the incarceration rates, and over the last few years there has been a modest to significant drops in the number of people behind bars, although the numbers are still high. (Reports on state efforts can be found here, here, and here).
Targets of reform vary, but there are some usual suspects: efforts to reduce the prison population often focus on reducing mandatory minimums, reducing the sentences for certain drug crimes, and modifying 3-strikes laws. Efforts to reduce jail populations are increasingly targeting bail decisions and the effect of money bail on keeping poor arrestees behind bars.
But while the recent decline in prison populations is real, there are also reasons to wonder. Given the size of the U.S. inmate population and the extremely high rate at which we put people behind bars, will any reform efforts be enough to shed the "mass incarceration" label?
Over the next few posts I will be discussing this question, and (to cut to the chase) conclude that the answer is, sadly, no. There are both obvious and subtle barriers to reducing the inmate population to levels, ones that range from difficult to near-impossible to overcome. The size of the problem, the difficulties posed by violent crime, and the under-appreciated financial costs of reform all conspire to make it likely that any change will be marginal rather than dramatic. This series of posts will conclude with some suggestions on how we might approach these barriers, even if there are no guarantees that they will be overcome.
But before turning to the problems, two preliminary points:
1. Maybe this whole exercise is misguided. People are in prison (mostly) because they commit crimes, and so we might view incarceration simply as the inevitable byproduct of crime, prosecution, and conviction. Stated differently, maybe we don't have a mass incarceration problem, maybe we have a "mass criminality" problem, one that is more deserving of our attention.
Interestingly, both advocates and skeptics of efforts to reduce incarceration rates cite the intersection of imprisonment and crime rates to support their views. Reformers argue that while the crime rate has been steadily dropping since the mid-1990s, incarceration rates continued to climb for another 15 years—surely proof that as a society, we have simply become more punitive. Skeptics respond that of course crime declined while incarceration rates increased: that's the whole point. Whatever its other flaws, prison incapacitates those who are the most likely to engage in future crime, making mass incarceration a feature, not a bug.
The relationship between crime and incarceration rates is complex, and to wildly over-simplify the research, it appears that:
- Increased incarceration rates have had a meaningful effect on reducing crime, particularly in the early years of rapid prison growth. It is hard, however, to fix precisely the size of this effect.
- The continued high incarceration rates seem to provide a vanishingly small return in terms of crime reduction. As the National Research Council put it, "The incremental deterrent effect of increases in lengthy prison sentences is modest at best. Because recidivism rates decline markedly with age, lengthy prison sentences, unless they specifically target very high-rate or extremely dangerous offenders, are an inefficient approach to preventing crime by incapacitation."
Still, regardless of the inefficiency, we know that prisons work to some degree as a tool of incapacitation, making it tempting to swing our focus away from incarceration (the symptom) and toward criminality (the disease). But we shouldn't. Even if we can't solve the prison problem without tackling the crime problem, there are still reasons to address the high levels of incarceration, because if we don't, we miss the central point of the reform efforts.
Reformers argue that the status quo has two related problems. First, we now incarcerate a huge number of inmates unnecessarily—we keep too many people locked up and for too long who pose little statistical risk of reoffending, people who could be adequately sanctioned without incapacitative effect of prison. (Note that this argument does not come to grips with the retributive role that prison plays, a huge topic that requires a separate discussion.) Second, incarcerating people who do not pose a risk to society does affirmative harm: low-risk inmates who spend too much time around high-risk inmates become worse off, reducing their chances of successfully reentering society once they are released. It is worth our efforts to identify these people, regardless of the levels of crime in society.
2. It is shortsighted to discuss incarceration without acknowledging its intersection with race and poverty. The percentage of African Americans behind bars is substantially greater than their percentage of the population, a situation that has been true for decades. The high percentage of criminal defendants who poor has a similarly long history.
The merger of prison-reduction efforts with efforts to reduce the disproportionate effect on race and class raises wickedly complex questions. We might assume that reducing the prison population would inevitably benefit minorities and the poor, because currently they are so overrepresented among the incarcerated. But what if the reform efforts were to make the imbalance worse? Suppose, for example, that in looking for people who don't really "need" to be behind bars, we decide that those who commit corporate offenses should qualify. If this reform would disproportionately help the wealthy and increase the ratio of poor inmates, is it still a good idea?
Not surprisingly, I don't have solutions that will untangle the threads of incarceration, race, and poverty. But it is important when thinking about change to keep in mind the moral and political implications of these moves, and to remember that the "incarceration problem" is just as subject to the law of unintended consequences as every other reform effort.
In the next post, we'll begin at the beginning and ask what we mean by mass incarceration, and then look at some numbers to decide if there is any realistic hope of shedding that label.