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The Illogic of Indiscriminate Incarceration

A new report concludes that two-fifths of Americans in prison don't belong there.

Seychelles, a group of 115 islands off the east coast of Africa with 92,000 residents, does not figure prominently on many lists, but it leads the world in locking people up. It is the only country with a higher incarceration rate than the United States.

If the reforms recommended in a new report from the Brennan Center for Justice were fully implemented, the U.S. would fall from second to fourth place on that list—behind Seychelles, St. Kitts and Nevis, and Turkmenistan, but still far ahead of every other liberal democracy, not to mention Iran, Saudi Arabia, and Zimbabwe. The report is nevertheless an admirable effort to grapple with the morally and fiscally pressing question of who belongs behind bars and who doesn't.

Between 1974 and 2007, the U.S. imprisonment rate (excluding people in local jails) soared from 102 to 506 per 100,000, thanks to changes in sentencing (including mandatory minimums and "three strikes" laws), parole (including "truth in sentencing" laws), and prosecutorial practices (including an increased tendency to bring charges). Since 2007 the imprisonment rate has declined a bit, but it is still more than four times as high as in the mid-1970s.

This imprisonment binge was largely a response to crime rates, which rose dramatically from the 1960s until the early '90s, when they began a long slide. Today the violent and property crime rates are half what they were in 1991.

Although "it is tempting to look at these data and assume that mass incarceration caused this decline in crime," the Brennan Center says, research suggests imprisonment played a modest role that shrank over time. It turns out that increases in the number of people behind bars and the amount of time they spend there yield diminishing returns.

In recent years, states such as California, Texas, New York, and New Jersey have seen crime rates continue to fall while substantially reducing their prison populations. The trick is figuring out which offenders can remain free and which prisoners can be released without compromising public safety. Prison should be reserved for the most serious offenders, and longer sentences are not necessarily better, especially in light of evidence that they do not enhance deterrence and may actually increase recidivism.

The Brennan Center argues that alternatives to incarceration, such as community service, electronic monitoring, restitution, and drug treatment, are generally appropriate for "lower-level crimes" such as minor drug offenses, minor property crimes, simple assault, and "lesser burglary" (involving unoccupied structures and no direct contact with victims). About 364,000 current prisoners fall into this category.

The report also recommends default sentences for half a dozen more serious crimes that are 25 percent shorter than current sentences. That change would reduce the average sentence for "serious burglary" from 1.7 to 1.3 years, for aggravated assault and nonviolent weapon offenses from 3 to 2.3 years, for drug trafficking from 3.4 to 2.6 years, for robbery from 4.2 to 3.1 years, and for murder from 11.7 to 8.8 years.

Since average time served in state prisons rose by 33 percent between 1993 and 2009, a 25 percent reduction would make state sentences about as long as they were in the early 1990s. Applying the reduction to current prisoners would allow 212,000 to petition for release. The Brennan Centers recommends that judges decide who should be freed on a case-by-case basis, taken into account the expected impact on public safety.

It costs taxpayers $31,000 a year to keep someone in prison. Releasing the 576,000 prisoners in the two categories identified by the Brennan Center, who represent two-fifths of the prison population, therefore would save about $18 billion a year, a quarter of state and local spending on corrections.

Indiscriminate incarceration and disproportionate penalties cost more than taxpayer money. They impose heavy, long-lasting burdens on offenders, their families, and their communities, all without enhancing public safety. That wasteful injustice can be corrected only if legislators are willing to rethink who goes to prison and why.

© Copyright 2016 by Creators Syndicate Inc.

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  • Hamster of Doom||

    Prison should be reserved for the most serious offenders, and longer sentences are not necessarily better, especially in light of evidence that they do not enhance deterrence and may actually increase recidivism.


    Humans have been imprisoning other humans since at least the days of Rome. Proposal: After X number of centuries of failure, humans give an idea up as unworkable in its current recognizable form. I'm willing to negotiate for X* - let's say five centuries. After five centuries, we give it up as a bad job.

    *You sick fucks. But at least a pitcher of beer and a pair of slightly-worn panties.

  • Karen24||

    Actually the Romans didn't use prisons in the same way we do. Their penalties were execution, banishment, or being sold into slavery. Prison is where people went between the trial and the other penalties. That said, we've been using prisons in the modern sense for a good long time with about the same results. Criminal punishments have diminishing returns pretty quickly. Note that in "Oliver Twist," Fagin's gang of pickpockets favored Tyburn Hill for their crimes. Tyburn was the site of public hangings, a large number of which were for pickpocketing. 150 years later and we're still not very good at this.

  • Chip Your Pets||

    1. Oliver Twist was fiction.

    2. Even if that happened in real life, it may have been due to the low probability of being caught at that location due to the large crowds. Just like with speeding, low probability of being caught has to be balanced with more severe penalties in order to obtain compliance.

  • Karen24||

    Yes, it was fiction, but I doubt Dickens would have used that trope if there weren't some truth behind it. London at the time had quite a few places were large crowds gathered with rather less presence of law enforcement. (And because this is 2016 and the Internet, I am NOT defending pickpocketing as a profession*; I am simply noting that some of the methods of combating crimes don't actually have the desired effect.)

    *also because 2016 and Internet, I am not implying or suggesting that you, Chip Your Pets, think this at all.

  • Quixote||

    We must certainly not defend pickpocketing as a profession. Are we to allow these scalawags to pour forth into our neighborhoods like common rats? And what about the trolls of the Net, are we to allow them to go free as well? Provide the benefits of society to "satirists" who go around damaging our reputations? Any seedy individual who finds himself tempted to engage in such "speech" should fear for his liberty. Surely no one here would dare to defend the "First Amendment dissent" of a single, isolated judge in America's leading criminal "parody" case? See the documentation at:

    http://raphaelgolbtrial.wordpress.com/

  • TGoodchild||

    "It costs taxpayers $31,000 a year to keep someone in prison. Releasing the 576,000 prisoners in the two categories identified by the Brennan Center, who represent two-fifths of the prison population, therefore would save about $18 billion a year, a quarter of state and local spending on corrections."

    What does it cost the state to have those criminals otherwise running around, committing crimes?

    Also, many of the lesser possession charges are pled-down trafficking charges; there are very few if any actual "all I did was smoke a doob on my porch" prisoners.

    This all being said, there needs to be a larger focus on rehabilitation, education, and substance abuse treatment: unless someone is being locked up for 30+ years or executed, they will be back in society with few options other than to return to crime.

  • Karen24||

    Substance abuse treatment is the key here. Back in the day I had a job doing criminal background reviews for insurance coverage, and what I observed was that lots of people had the following progression: alcohol-related offenses like drunk in public, possession charges, then DUI, burglary, or assault. Intervention at the beginning likely could have prevented the later events. The saddest cases were people who went to prison from DUI's that had caused injuries to others, because those injuries could have been prevented. (Also, I had a good friend whose entire family was killed when a trucker with a history of booze offenses hit their SUV on the freeway in Houston. She got out; her husband and three kids died in the resulting fire. While she was there watching. Early intervention for the driver as well as a more-alert insurance company denying him liabilty could have saved four lives.)

  • Jordan||

    What does it cost the state to have those criminals otherwise running around, committing crimes?

    Your question is based on the premise that they will be out committing crimes. And I mean "crime" in the sense of violating people's rights, not whatever the State says you shouldn't do.

    Also, many of the lesser possession charges are pled-down trafficking charges; there are very few if any actual "all I did was smoke a doob on my porch" prisoners.

    So what? Those people don't belong in prison either.

  • gaoxiaen||

    + 1 Carlito

  • Chip Your Pets||

    Or we could reduce the incarceration rate the Chinese way, by more generous application of the death penalty and generally not taking care of prisoners so they die faster.

  • Bra Ket||

    It is kind of silly when you think about it. Basically send them to a retreat to lift weights and network with other criminals, while their forced absence causes the loss of their careers, housing situation, and non-criminal social networks on the outside.

    So many advantages to caning when you think about it. Oh but that's cruel.

  • sarcasmic||

    Yeah. Locking someone in a rape cage is humane, but caning is cruel.

  • Swiss Servator||

    robbery from 4.2 to 3.1 years, and for murder from 11.7 to 8.8 years

    Really? Good luck arguing we need to let robbers and murderers out earlier. How about rapists?

    The minor drug possession shouldn't even be a crime. That will ease somewhat as decriminalization of MJ continues.

  • ||

    I would suggest that there are two separate issues at work and that the solutions to each are very different. Drug offenders and any other victimless crimes should cease to be crimes, and no one should go to prison for such acts. Actual crimes should be punished proportionately to the harm caused, which would likely lead to some sentences being reduced, and others increased. (Murderers should not be out in 11.7 years).

    I suspect that the initial gains (reduced crime rate) under stricter sentencing were a direct consequence of removing the relatively few truly bad actors for longer periods. The fact that extending this logic to people who were not truly bad actors, unsurprisingly, did not improve things, since you were locking up people with no demonstrated tendency to harm others.

  • Karen24||

    This is a good plan. I would also recommend that some more scrutiny be applied in how cases are charged initially. If a particular incident really is manslaughter, don't charge capital murder and plead down. This practice is particularly bad in lower-level cases where a bar fight gets charged as attempted murder when at best it should be aggravated assault.

  • skeptikal||

    I totally agree. The worst part of mandatory minimums is not time served. It is the use of mandatory minimums to coerce innocent people to plea rather face absurd sentences.

  • BakedPenguin||

    Murderers should not be out in 11.7 years

    Second. All the other listed changes I'd be okay with, since those crimes can be undone.

  • skeptikal||

    True, but people who sell marijuana shouldn't serve 12 years, no matter how many times they've been caught.

  • ace_m82||

    My claim: Justice is repayment to the victim. The victim was the harmed party, and ought to be the one repaid. If the aggressor is found guilty, they should repay the victim (or victim's NOK). If the victim or victim's NOK decides to accept something other than full repayment, even if they wish to fully "forgive" the debt, that is their business, not mine.

    The idea that the "society" (aka "government") is the harmed party is absolutely ridiculous and is the basis for all kinds of tyranny and corrupt thinking.

    Getting back to repayment (basically tort) would remove the need for prisons, just keeping jails (for those awaiting trial).

    For anyone who claims that justice is something other than repayment, please give a good definition and don't forget Occam's razor.

  • Chip Your Pets||

    So if you get caught, you have to give back what you took; if you don't get caught, you get to keep it. Thus you can never lose by taking things, and unless you're always caught, you profit by taking things.

    I don't give a rat's ass about justice, as it's a meaningless word. I care about setting the proper disincentives for rights-violating behavior.

  • ace_m82||

    So if you get caught, you have to give back what you took; if you don't get caught, you get to keep it. Thus you can never lose by taking things, and unless you're always caught, you profit by taking things.

    Specifically, you pay back what you've taken, plus interest (a VERY old law) for the victim's inconvenience. Also, I'll throw in that you pay court costs.

    And you don't really profit from taking things in an armed society, because a society where only initiations of force are "illegal" is a society where you can keep and bear arms as you like.

    I wouldn't take up thieving in such a society, I like the lead content of my body just the way it is.

  • ace_m82||

    I don't give a rat's ass about justice, as it's a meaningless word. I care about setting the proper disincentives for rights-violating behavior.

    Interestingly enough, the "proper disincentives for rights-violating behavior", is repayment...

  • See.More||

  • Karl Hungus||

    So what of a serial killer who specifically targets prostitutes and the homeless; i.e., people who often don't have next of kin? Should there not be a mechanism in place to keep such a person from killing with impunity?

  • retiredfire||

    So, what happens when the criminal can't make the repayment, which, I'll wager, the vast majority can't?
    And what kind of "repayment" happens for physically assaulting someone? Just pay the medical bills?
    Not sure how much I would consider as "fair" repayment from someone, who killed a loved one.
    Tort is always there but getting the award actually paid is a whole different matter.
    A good part of the reason we formed governments was to represent society, so that we could place in its hands the disposition of those who harm others. The alternative is vigilante justice, a Hatfields and McCoys scenario.

  • Dadlobby||

    Mala en se or mala prohibita? We incarcerate poor men in debtors prisons for failure to pay "child support" (actually a child excise tax) even though inability to pay is shown, we incarcerate men for prohibition of substances and the use and distribution of "illegal" drugs even though incarceration has been shown to not be a deterrent. And what of sex for hire where we persecute people who are not coerced and are conducting a business transaction.

    When we talk of incarceration we need to also look at the fact that it is men who are incarcerated as multiple studies have shown the tendency to arrest men and give them higher sentences for the same acts as women (especially female pedophiles). Once incarcerate we ignore the inhumane treatment (physical and sexual abuse) and prison does nothing to rehabilitate, indeed only hardens the person towards society. And these are mala prohibita, those things which are "bad" only because government has said so.

  • skeptikal||

    I agree on all points EXCEPT child support. No, I don't want to lock up deadbeat dads, but on the other hand, that kid is as much their responsibility as it is the mom's responsibility. Somehow men who procreate have to be held accountable to help raise that kid.

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