Criminal Justice

Prof. Andrew Leipold Guest-Blogging About "Is Mass Incarceration Inevitable?"

|The Volokh Conspiracy |

I'm delighted to report that Prof. Andrew Leipold (Illinois) will be guest-blogging this week about his new American Criminal Law Review article, Is Mass Incarceration Inevitable?

The claim that American justice system engages in "mass incarceration" is now a cliché, albeit one that seems entirely justified by both the number and rate of people who are behind bars. As a result, a large number of states and the fed­eral government have engaged in wide-ranging reform efforts to shorten senten­ces, divert people from prison, and in general reduce incarceration numbers to more manageable levels. Although these efforts have made modest gains, there has been little discussion of whether their ultimate goal is feasible-reducing incarceration levels to a point where "mass" incarceration is no longer an apt description.

This article explores the likelihood of a meaningful, sustained reduction in incarceration rates. It begins by asking what we really mean by mass incarcera­tion and finds that while the definition is surprisingly complex, the label ulti­mately seems justified. Then, using existing and original compilations of data, the article examines some of the less-obvious obstacles to reducing prison popula­tions. In particular, it highlights the difficulty of reducing incarceration rates without addressing the problems created by those convicted of violent crimes, something few reforms have been willing or able to do. It also argues that those who believe prison reform will lead to economic savings-a primary motivation in virtually every state-are misguided, and that illusion of economic savings might ultimately derail the reform efforts.

The article then takes a further step and suggests that efforts to decrease incarceration levels will inevitably be frustrated unless the most influential per­son in the creation of mass incarceration, the prosecutor, is induced to play a more central role. To date, reform efforts have routinely targeted everyone in the process except prosecutors, and this article offers both suggestions on why this is so and an argument for why prosecutors are an indispensable part of any change. The article concludes with the sobering prediction that, as useful as recent reforms have been, as currently constructed they will ultimately be inad­equate to erase the mass incarceration label for years to come.

This is obviously an important and interesting topic, and I much look forward to Prof. Leipold's posts.

NEXT: Response to The Lost History of the "Universal" Injunction

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  1. I’ve often wondered if the vast majority of crimes wouldn’t be better served by short jail terms — 30 days instead of years in prison. I don’t pretend to have any real knowledge of this field, but it seems to me that a quick trial and short jail spell would be a better deterrent. Even a single year in prison would leave me feeling lost when I got out — all my friends would be strangers, even family, and what with the criminal record, how would I ever get a decent job? 30 days, on the other hand, would be enough to deter me from ever wanting to repeat it, but not long enough to resume life after. On the other hand, I am not a criminal.

    I also know there are some criminals who are such a danger to society that prison is where they belong. But maybe it would be better to find out 30 days later than after 5 years — let them prove their uselessness as soon as possible.

    And if someone’s social circle is criminals, you want them to be isolated from their previous life — but years crowded together with other criminals isn’t going to do that.

    1. I’ve read some writers on the subject suggest that longer sentences lower the chance at conviction, thus lowering the deterrence value of punishment, whereas shorter sentences would lead to a higher conviction rate and more deterrence, so at least for some types of crime, it may be better to reduce sentences.

      1. I sometimes wonder … suppose sentences for all first time burglars, robbers, etc were full restitution (including court costs etc) plus a week in jail, and no felony conviction which makes employment so hard. Second offenses within a year, bump it to a month. Third offenses, a year, then 5 years, then life.

        I have read many reports that brains don’t fully mature til age 25 or so, that most robberies and burglaries and assaults are committed by males younger than that, etc. My thinking is that you give them the benefit of doubt for that first stupidity, give them a taste of what lockup is all about, but don’t ruin their lives. If they re-offend 3 years later, treat it the same, but if they re-offend six months later, lock them up long enough that they can’t just take a short vacation from work, but still have a chance at getting another job (how else could they pay restitution?). After that, one last chance; maybe a year in lockup will turn them around, maybe not. But after that, the purpose of lockup is not deterrence, but to protect the public.

        Not all crimes would be eligible for the one week jail sentence. Use a weapon (gun, knife, brass knuckles, baseball bat) and you are in lockup for a long time right from the start. Arson or any other kind of public endangerment; or any assault for hire, or any kind of organized joint venture (gang of bank robbers).

        The point is to give young solitary “harmless” criminals a chance to remain productive so they can pay their restitution and instead of soaking up taxes in jail.

        I have too little experience or knowledge of crime and incarceration for anything other than curiosity about the matter. But I do think our current system is way too much of a typical government sledge hammer, indiscriminate and heavy.

        1. Not many of those criminals are capable of repaying the damage that they caused. Most burglars do more damage breaking in than the value of what they steal – which they then fence for 10 or 20 percent, and immediately spend that little bit of cash. Muggers and armed robbers only make a little more, at the risk of causing serious injury or death at every crime; they can’t pay their victims’ hospital bills, and there is no such thing as restitution for the psychological effects. And thieves steal because they can’t keep even a minimum wage job, let alone one that will support them, their offspring, and have anything left over for restitution.

  2. You have to start with an analysis of what properly ought to put somebody behind bars, and what shouldn’t. And then if that results in more people behind bars than you like, maybe you should be concerned about how many people ought to be behind bars?

    The libertarian position is that far too many things are illegal, and that very illegality sucks more and more of the economy into the black market. You make drugs illegal, drug distributors can’t get police protection, so they hire urban gangs, and urban gangs start growing because they’re flush with cash.

    IOW, you make things that shouldn’t be, illegal, and you get more of things that should be illegal, too.

  3. The question that makes liberals very uneasy over this whole thing is “how many people must you lock up (essentially warehouse and keep out of society) in order for the vast majority of people to be safe on a day to day basis?” Especially if you want to have unfettered immigration and do everything in your power to prevent a homogenous society the answer is going to be “one heck of a lot” which is pretty much what we found out during the 90’s.

    If you libertarians really want to address this then it is time to build a wall, stop 95% of immigration, stop feeding the leftist beast the is the “education” system.

    1. I sometimes think that the US has passed the point of no return on too many fronts, and that things will have to get a lot worse now, before they’ll get better. Trump looks like a halt in the decline in some regards, but he’s getting next to no backup from within the institutional GOP, so in the end he’s likely to be just a road bump. The deep state is just TOO deep, in the end.

      Of course, I’m going on 61, and pessimism is pretty common in old farts like me.

    2. Do you actually believe that immigrants cause more problems that the war on drugs and prostitution?

      1. Do you have to believe that influenza causes more deaths than cancer, to think that we should be fighting it?

        1. Do you think immigration needs to be brought up in every post? Does constraining discussion to the topic at hand upset you?

  4. I knew a young person who along with a cousin stole a car. The police started chasing them which resulted in a crash. The driver of the car, the cousin, was able to get away but because of the injuries the young person did not. The young person refused to squeal on the other person and so the D A charged him as an adult and the young person was sent to prison. Later after the young person got out of prison in a conversation stated that if he could have gotten out of prison in the first couple of weeks he would have never went back. But the longer he was there the easier it was for him to negotiate the system.
    So it might be worth looking into that young offenders when sent into the system would be treated as hard as it is legally possible then in a short time given the option to get out. If they choose to get they would be on probation for the rest of the sentence but if he screws up he returns back to prison and start at Day One again. It might work and if it did it would save the lives of many young people. Now there would be limitation on who would be given that option. As part of that option if the defendant would also have his record cleared.

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