Why today’s criminal justice reform efforts won’t end mass incarceration

February 8, 2019
Posted in Blog
February 8, 2019 Editor

Why today’s criminal justice reform efforts won’t end mass incarceration

WN: The article highlighted below is outstanding commentary on the horror and bankruptcy of mass incarceration.

John Pfaff December 21, 2018

excerpts:

Even with all the attention it receives, the scale of incarceration and punishment in the United States can still be hard to comprehend. On any given day, about 1.5 million people are in state and federal prisons; another 750,000 are in county jails (most still awaiting trial); and over 4.5 million are on probation or parole. Over the course of a year, over 600,000 people enter prison, and roughly the same number are sent home; and over 10 million people are admitted to jails annually. About 2.5 million more enter or leave parole or probation.

Put differently, the United States is home to about 5 percent of the world’s population but holds over 20 percent of the world’s prisoners and nearly one-third of its women prisoners. The only countries with rates even close to ours are places like El Salvador, Turkmenistan and Cuba; allies like Canada, France and Germany have rates on the order of one-tenth ours (yet have similar crime rates and substantially lower homicide rates). Ours is a massive experiment in punitive social control that imposes disproportionate costs on people of color and those who are poor—and one that is nearly impossible to justify even remotely, at least on public safety grounds.

Remarkably, our brutal punitiveness is a relatively new development. From the 1920s, when we first have regular, reliable data, to the 1970s, our incarceration rate was relatively stable and not much different from Europe’s. In the mid-1970s, however, our prison population and incarceration rate started growing. Some talk of it “exploding,” but that mischaracterizes what happened. From 1972 to 2010, the prison population steadily rose every single year, almost always by less than 10 percent. Perhaps we should not be surprised that prison population rose as the crime rate soared from the early 1960s to 1991, but it continued to rise even as crime fell steadily and sharply over the 1990s, 2000s and most of the 2010s.

In 2010, however, total prison populations dropped for the first time in nearly four decades and then fell again in every year between 2011 and 2016 except one (2013). Preliminary data suggest that it fell again in 2017. The total decline has not been great nor widely spread—the total drop is just under 7 percent through 2016, half that decline is in the state of California alone, and only half the states have experienced a drop—but after 40 years of unstopping, nationwide increases, any sort of reversal is worth celebrating.

Yet it is still important to ask what exactly we are celebrating. It could be that the United States is emerging from some sort of punitive fever and that this is the start of a major recalibration of how we confront crime. It is equally possible, however, that this is just a small correction and that we are heading for a new, stable incarceration rate a bit below where we peaked in 2010 but still far higher than that seen overseas, than in our own country 100 years ago or than what public safety actually requires.

Unfortunately, there are already some troubling signs that some level of mass incarceration is here to stay. Some states have started to roll back the reforms they just passed, and most reforms continue to ignore several fundamental underlying causes that led to mass incarceration in the first place. So let’s take a look at why we should aim to cut prison populations, why our current reforms look so tenuous and the difficult issues we have to confront to achieve real reform.

What Goes Up

Incarceration and crime have a complicated relationship, at least in the United States. Reported crime started to rise in the 1960s, but prison populations held steady for almost a decade; only from the mid-1970s to the early 1990s did crime and prison figures rise together. Then, from about 1991 onward, crime steadily fell, but prison populations kept on rising.

Defenders of incarceration see nothing surprising about this story: Crime rose in the 1960s and 1970s because prison populations did not rise, and crime fell in the 1990s and 2000s because prison populations increased. The evidence, however, simply does not support this narrative. An ever-growing stack of studies consistently shows that long and ever-longer prison sentences do not significantly deter crime; that prisons are ineffective at rehabilitating those detained in them; and that while incarceration prevents those who are in prison from committing offenses outside those institutions while they are confined, it also increases the risk that they will reoffend upon release.

But even these studies do not justify our reliance on incarceration. It is increasingly clear that other approaches could have achieved the same reduction in crime at far less cost—not just financial cost but social cost as well. Within the “conventional” criminal justice system, for example, a dollar spent on policing produces far more crime reduction than a dollar spent on prisons. Recent studies have shown that programs like Cure Violence, which relies on trained community members rather than police to intervene and stop violence, can be quite effective. Improved employment also reduces crime significantly, as does improved access to health care and drug treatment.

Unlike prison, all these programs reduce crime more by preventing it in the first place than by detaining the person who committed it after the fact. As a result, they avoid that post-incarceration jump in offending that offsets much of the gain from prison and leads to still-more victimization. That also means they avoid many if not most of the social costs of punishment, which are staggering and uncounted. When we talk about the “cost of prisons,” the number we often hear is that we spend about $50 billion on state prisons and $30 billion on county jails. But that is just the fiscal cost—the budget dollars that the state and counties spend, at least two-thirds of which goes to staff wages.

But the real costs of prison are the harms that incarceration imposes on the people it locks up, their families and their communities. People are physically and sexually assaulted in prison, and some are killed by other inmates or even just by the horrific conditions in which the state decides to detain them, like unairconditioned cells in Florida and Texas. Prisons are a vector for diseases, and the risk of death by drug overdose soars immediately upon release. Time in prison leads to lower future income, and it heavily taxes family and friends who have to spend money on usurious charges for collect calls, on trips to distant prisons located far from the cities where most inmates lived before their incarceration, on providing the prisoner with money for snacks and toiletries. Having a loved one in prison imposes deep emotional costs on family members, and some evidence suggests that children with an incarcerated parent are themselves more likely to have contact with the criminal justice system in the future.

These are just a few amid the vast array of costs related to incarceration, and no study has begun to reliably estimate their magnitude. Importantly, all the alternatives to prison—even increased policing, with its attendant risk of police violence—surely impose fewer of these costs and appear to reduce crime as effectively if not more effectively. Some of these alternatives, like improved employment and Medicaid expansion, reduce crime while providing social benefits, making them that rare win-win. And in recent surveys, victims of crimes generally prefer these sorts of non-prison options as well.

This strategy, however, is a short-term one that brings with it some longer-term risks—some of which we are already starting to see materialize. Lurking in this framing is the idea that if crime starts to go up again, we might need to turn back to prisons. This clearly is not the intent of advocates who make this point, but it is nonetheless implicit, and almost explicit, in the arguments they make. And as violent crime has ticked up in some places over the past few years, so, too, has the push to undue reforms. We have framed decarceration as a low-crime luxury, not as sound policy regardless of what crime rates are doing.

Over the past year, we have seen states respond to increases in violence by rolling back reforms and pushing for more prison time. Alaska decided to respond to a rise in violence that was tied to the opioid crisis and a weak economy by repealing much of its expansive, barely-one-year-old criminal justice reform law—including provisions that had not even gone into effect yet and thus could not explain the rise in crime. Maryland recently adopted new mandatory minimums in response to gun violence in Baltimore, and Illinois did the same in response to violence in Chicago.

We need to find the political courage to attack prison as a crime-fighting tool head-on. Unfortunately, shifting away from prisons requires us to tackle two confounding issues that are at the heart of mass incarceration but defy easy fixes: changing how we respond to violent crimes and altering the dysfunctional political structures that give everyone from police to prosecutors to parole boards incentives only to be harsh and never to be lenient.

It is essential, therefore, to point out that our prison-focused response to violence is strongly at odds with the science of violent behavior. We often describe people who commit violent crimes as “violent offenders,” but that misstates how violence operates. While some people are undeniably more prone to violence than others, violence tends to be a young person’s issue, young men, in particular. As a result of various hormonal, neurological, physical and social factors, people “age into” violence in their mid- to late-teens and starting “aging out” sometime in their 20s and 30s and almost all by their 40s.

And yet we often impose our longest sentences on our oldest defendants because it takes time to generate a long record. In Pennsylvania, for example, a majority of defendants who are sentenced to life without parole because of a “third strike” are over 40—and thus are likely about to start desisting. Long sentences imposed on the young are similarly foolish, in part, because we remain incapable of identifying who, when young, poses a serious ongoing risk of violence but also because such sentences view the young man as irredeemably “violent,” contrary to all the evidence about how people change.

The age profile of offenders even cautions against over-using short prison terms to respond to crimes, even violent offenses. A growing body of evidence shows that a major pathway away from violent and antisocial behavior is social developments like reliable employment, marriage and finding a stable home. Just receiving a felony conviction interferes with all of these and thus can make it harder for someone to leave crime behind; prison only makes this harder still.

None of these arguments, of course, may sway the retributivist, who sees long prison sentences as morally required to offset the harm caused. I personally do not subscribe to that belief, and it is a position I find hard to reconcile with the Christian faith I have been taught, of a Jesus who talks of love and forgiveness. But I will concede that to the extent such retributive instincts fuel our desire to punish, arguments about deterrence and aging out of violence will fall on deaf ears. But to the extent that our policies should be designed to maximize safety at the lowest fiscal and social cost—and I think many if not most people think this is a central goal—then we can treat violence in a far less, well, violent way.

The politics here, however, are a nightmare. We could send fewer people to prison for violence than we already do, we could incarcerate those we send there for less time, and we could release many of those already in prison for violence far earlier than they are currently slated to be sent home, and as a general matter the public would be just as safe as before, if not safer. But the politics of crime is not driven by the general outcome. It is driven by politicians who are terrified of that one bad, outlier case that grabs the media’s attention.

Perhaps somewhat surprisingly, the heart of the problem is an excess of democratic accountability. In no other country are criminal justice actors so immediately accountable to the public. We are the only nation in the world that elects its prosecutors, and, for all intents and purposes, the only one that elects its judges as well. Moreover, our single-member district, first-past-the-post process for electing legislators means that even senior legislative leaders are at risk of losing their seats in any election—and bad crime stories are a powerful political tool for opponents to use.

And while Americans voters care a lot about crime, they respond far less to broad overarching trends and far more to highly salient, shocking, “newsworthy” cases—which are often newsworthy because they are unusual. As a result, they are far more attuned to errors in leniency—when a preventable, headline-grabbing crime occurs—than to the far-more-often invisible excess severity.

Our continuing legacy of racial segregation further amplifies this punitiveness. Wealthier, whiter suburban voters often wield disproportionate electoral influence when it comes to electing the prosecutor. These voters like the feeling of crime going down—but they face none of the costs of aggressive policies. After all, it is not their brothers or fathers or uncles or sons who face the unnecessary police stops or arrests or indictments or convictions or prison terms. Those costs are disproportionately borne by poorer people of color in the city, whom those voters do not know or even interact with.

These problems have always been with us. But they are more problematic now because as our prisons have grown, so, too, have the groups that benefit from them—and who thus have an incentive to manipulate people’s punitiveness and fear of crime for their own ends. Though many would at this juncture quickly point to private prison firms, they are not the main ones “profiting” off prisons. They hold about 9 percent of the nation’s prisoners and generally have little impact on policy.

Moreover, there is a particularly stark partisan bent to this distortion. Prisoners are disproportionately people of color from cities, which suggests they are disproportionately Democrats. Prisons are increasingly located in more conservative rural areas. This “prison gerrymandering” thus inflates Republican statehouse representation while simultaneously suppressing Democratic turnout, creating a powerful partisan resistance to deep changes.

All of these responses are perfectly rational. Yet so far, no effort has been made to address these and other defects that politicians and various interest groups exploit. Reform efforts have opted to capitalize on favorable conditions (low crime, high prison populations, soaring costs) to push reform bills through the same broken system that gave us mass incarceration and mass punishment in the first place. As long as these political incentives remain in place, it will not take much of a rise in crime, whatever its causes, to see reforms start to crumble.

It was never going to be possible to significantly scale back our outsized reliance on prisons easily. Mass incarceration did not arise by accident or due to one or two small mistakes. It is the product of a deep, racially driven punitiveness, combined with a vast array of incentives that consistently make harshness politically safe and leniency dangerous. Our seven-year reduction in prison populations is certainly something to celebrate, but those reductions are modest and always vulnerable. And they will remain modest and vulnerable unless we tackle some very difficult issues, such as how we treat violence and the even the basic design of our criminal justice systems.

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Editor

Wayne Northey was Director of Man-to-Man/Woman-to-Woman – Restorative Christian Ministries (M2/W2) in British Columbia, Canada from 1998 to 2014, when he retired. He has been active in the criminal justice arena and a keen promoter of Restorative Justice since 1974. He has published widely on peacemaking and justice themes. You will find more about that on this website: a work in progress.

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