Tackling Mass Incarceration Requires More Than Freeing Nonviolent Drug Offenders

A new report emphasizes that the U.S. would still have a very high incarceration rate even if all drug war prisoners were released.

The number of people in U.S. jails and prisons fell substantially in 2020: by 25 percent and 15 percent, respectively. But according to a new report from the Prison Policy Initiative (PPI), those drops were largely due to pandemic-related bottlenecks in the criminal justice system, which drove a 40 percent drop in prison admissions even as releases from prisons fell. And the total number of people confined in jails and prisons was still nearly 2 million, meaning that the United States still had an appallingly high incarceration rate.

The PPI report debunks several influential misconceptions about the causes of mass incarceration in the United States. It notes that the war on drugs does not play as big a role as commonly thought, that the distinction between "violent" and "nonviolent" crimes is misleading, and that detainees in jails, most of whom have not been convicted, are often overlooked, even though they account for nearly half of people behind bars. A fuller understanding of the factors driving these numbers shows that many frequently proposed reforms are inadequate if the goal is an incarceration rate more in line with those of other liberal democracies.

Even if we discount official numbers from authoritarian governments in countries such as China and Cuba, the U.S. is clearly an outlier when it comes to the share of its population behind bars. The U.S. incarceration rate in 2020 was 573 per 100,000 residents, more than four times the rate in England and Wales, more than six times the rates in France and Italy, more than eight times the rate in Germany, and 15 times the rate in Japan.

While the U.S. also has a higher crime rate than most of those countries, that does not account for the huge gap in incarceration rates. According to the World Population Review, the overall U.S. crime rate is 47.7 per 100,000 people, compared to 46.07 in Great Britain, 51.99 in France, 44.58 in Italy, 35.79 in Germany, and 22.19 in Japan. The main difference is not the number of crimes but the severity of the penalties imposed on people who commit them.

In 2020, according to the PPI report, U.S. jails and prisons held 374,000 drug offenders on any given day, which is a lot of people locked up for conduct that violates no one's rights. Drug offenses nevertheless accounted for just 14 percent of the state prison population and 21 percent of people in local jails. They play a much bigger role in the federal system, where they accounted for a third of people in jail and nearly half of people in prison. But the federal system accounted for just 11 percent of the total.

The PPI report notes that "4 out of 5 people in prison or jail are locked up for something other than a drug offense," which means the U.S. would still have a very high incarceration rate even if all "nonviolent drug offenders" were released. "To end mass incarceration," the report says, "we will have to change how our society and our criminal legal system responds to crimes more serious than drug possession. We must also stop incarcerating people for behaviors that are even more benign."

Nearly three-fifths of state prisoners in 2020 were classified as "violent" offenders, a category that criminal justice reforms typically do not address. Although politicians and the general public tend to assume that "violent" offenders pose a grave threat to public safety, that is not necessarily true. The PPI report notes that, depending on the jurisdiction, the category can include people who never physically harmed anyone, such as purse snatchers, burglars of unoccupied homes, and even methamphetamine producers.

While most "violent" offenders are indeed guilty of violence, it does not necessarily follow that keeping them locked up as long as possible is a just or cost-effective solution. The PPI report notes that recidivism rates for violent criminals and sex offenders are relatively low and fall steadily with age, which casts doubt on the public safety rationale for keeping them locked up. Although "the risk for violence peaks in adolescence or early adulthood and then declines with age," the report observes, "we incarcerate people long after their risk has declined."

That is not what most crime victims seem to want. According to a 2016 survey of 800 crime victims by the Alliance for Safety and Justice, most preferred prevention and rehabilitation programs rather than long prison sentences. If politicians took their cues from those crime victims, they would emphasize crime prevention rather than retribution. That approach is supported by evidence indicating that when it comes to deterring crime, the likelihood and swiftness of punishment is more important than its severity.

"As lawmakers and the public increasingly agree that past policies have led to unnecessary incarceration," the report says, "it's time to consider policy changes that go beyond the low-hanging fruit of 'non-non-nons'—people convicted of non-violent, non-serious, non-sexual offenses….If we are serious about ending mass incarceration, we will have to change our responses to more serious and violent crime."

While there is no escaping the need to address violent criminals as part of the solution to mass incarceration, it remains true that the U.S. locks up a lot of people for less serious offenses. In addition to 146,000 drug offenders, for example, state  prisons in 2020 held 124,000 people for "public order" offenses, including illegal gun possession and driving under the influence. In 2019, according to the PPI report, "at least 153,000 people were incarcerated for non-criminal violations of probation or parole," a.k.a. "technical violations."

In 2020, misdemeanor sentences accounted for a quarter of the total jail population. The PPI report notes that "defendants can end up in jail even if their offense is not punishable with jail time," because judges often issue "bench warrants" when "a defendant fails to appear in court or to pay fines and fees."

The vast majority of the 547,000 people in local jails—more than 80 percent—had not been convicted. Many were locked up simply because they could not afford bail, which underlines the importance of reforming pretrial detention so that it does not amount to a punishment for poverty.

While left-leaning criminal justice reformers generally recognize the need for bail reform, their priorities may be misplaced in other ways. The PPI report debunks the idea that "private prisons are the corrupt heart of mass incarceration," noting that such facilities hold less than 8 percent of people in jail or prison. "The vast majority are in publicly owned prisons and jails," the report says. "Some states have more people in private prisons than others, of course, and the industry has lobbied to maintain high levels of incarceration, but private prisons are essentially a parasite on the massive publicly owned system—not the root of it."

A serious attempt to address mass incarceration has to be based on a clear-eyed assessment of who is incarcerated and why. It also requires thinking seriously about what incarceration is meant to accomplish. If the aim is to protect people from predatory criminals, the system needs to do a much better job of focusing on offenders who pose a continuing threat to public safety serious enough to justify the cost of locking them up.