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

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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


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.

  1. [1]Please look at several articles as well on American/Western will to world domination by clicking on "Selected Articles: Western Aggression Backed by Western Media”. The series of articles is introduced thus:
    The Western allies never run dry of resources to support their global war of terror and aggression, ostensibly an integral part of their foreign policy. They dynamically legislate laws lest the people awaken. They have the unbending support of the corporate media, which skilfully distorts reality. When will they ever back down from their destructive quest for colonies? Read our selection below.
  2. [2]It continued:
    ‘For seven months, Tiger Force soldiers moved across the Central Highlands, killing scores of unarmed civilians – in some cases torturing and mutilating them - in a spate of violence never revealed to the American public,’ the newspaper said, at other points describing the killing of hundreds of unarmed civilians. ‘Women and children were intentionally blown up in underground bunkers,’ The Blade said. ‘Elderly farmers were shot as they toiled in the fields. Prisoners were tortured and executed - their ears and scalps severed for souvenirs. One soldier kicked out the teeth of executed civilians for their gold fillings.”   The New York Times confirmed the claimed accuracy of the stories by contacting several of those interviewed.  It reported: “But they wanted to make another point: that Tiger Force had not been a ‘rogue’ unit. Its members had done only what they were told, and their superiors knew what they were doing. “Burning huts and villages, shooting civilians and throwing grenades into protective shelters were common tactics for American ground forces throughout Vietnam, they said. That contention is backed up by accounts of journalists, historians and disillusioned troops… ‘Vietnam was an atrocity from the get-go,’ [one veteran] said in a recent telephone interview. ‘It was that kind of war, a frontless war of great frustration. There were hundreds of My Lais. You got your card punched by the numbers of bodies you counted.’ Current likely Democratic Presidential candidate John Kerry was also quoted giving evidence before the Senate Foreign Relations Committee in 1971.  He reported that American soldiers in Vietnam had “raped, cut off heads, taped wires from portable telephones to human genitals and turned up the power, cut off limbs, blown up bodies, randomly shot at civilians, razed villages in fashion reminiscent of Genghis Khan, shot cattle and dogs for fun, poisoned food stocks and generally ravaged the countryside of South Vietnam in addition to the normal ravage of war, and the normal and very particular ravaging which is done by the applied bombing power of this country. Nicholas Turse [later author of: Kill Anything That Moves: The Real American War in Vietnam], a doctoral candidate at Columbia University, has been studying government archives and said they were filled with accounts of similar atrocities. ''I stumbled across the incidents The Blade reported,'' Mr. Turse said by telephone. ''I read through that case a year, year and a half ago, and it really didn't stand out. There was nothing that made it stand out from anything else. That's the scary thing. It was just one of hundreds.'' Yet there were few prosecutions.
  3. [3]Historian John Coatsworth in The Cambridge History of the Cold War noted:
    Between 1960, by which time the Soviets had dismantled Stalin's gulags, and the Soviet collapse in 1990, the numbers of political prisoners, torture victims, and executions of nonviolent political dissenters in Latin America vastly exceeded those of the Soviet Union and its East European satellites. In other words, from 1960 to 1990, the Soviet bloc as a whole was less repressive, measured in terms of human victims, than many individual Latin American countries [under direct sway of US Empire] ("The Cold War in Central America", pp. 216 - 221).
    What was true for Latin America was true for around the world: massive human rights abuses, assassinations, regime changes of democratically elected governments, etc., etc., etc. orchestrated by US Empire. Yet Americans invariably have wanted it both ways: to be seen as the exemplary "City on A Hill" that upholds universal human rights and democracy, while operating a brutal Empire directly contrary to all such elevated values, and a concomitant rapacious Empire market economy that takes no prisoners. This began of course even before the founding of the United States of America and continued apace, in its mass slaughter and dispossession of indigenous peoples, in its brutal system of slavery on which its obscene wealth in the textile industry in the first place was built. "The Land of the Free" conceit was a sustained con job on the part of America's leaders. It was also apotheosis of hypocrisy. American exceptionalism was/is true in one respect only: it was brutal like no other Empire in its eventual global reach.
  4. [5]
  5. [4] The highlighted article about renowned whistle-blower Daniel Ellsberg points to again what is utterly chilling, horror-filled, exponentially beyond immoral, American (hence the world's) reality: "Daniel Ellsberg: U.S. Military Planned First Strike On Every City In Russia and China … and Gave Many Low-Level Field Commanders the Power to Push the Button". [5]He has since written The Doomsday Machine: Confessions of a Nuclear War Planner. Of it we read:
    Shortlisted for the 2018 Andrew Carnegie Medal for Excellence in Nonfiction Finalist for the California Book Award in Nonfiction The San Francisco Chronicle's Best of 2017 List In These Times “Best Books of 2017” Huffington Post's Ten Excellent December Books List LitHub's “Five Books Making News This Week” From the legendary whistle-blower who revealed the Pentagon Papers, an eyewitness exposé of the dangers of America's Top Secret, seventy-year-long nuclear policy that continues to this day. Here, for the first time, former high-level defense analyst Daniel Ellsberg reveals his shocking firsthand account of America's nuclear program in the 1960s. From the remotest air bases in the Pacific Command, where he discovered that the authority to initiate use of nuclear weapons was widely delegated, to the secret plans for general nuclear war under Eisenhower, which, if executed, would cause the near-extinction of humanity, Ellsberg shows that the legacy of this most dangerous arms buildup in the history of civilization--and its proposed renewal under the Trump administration--threatens our very survival. No other insider with high-level access has written so candidly of the nuclear strategy of the late Eisenhower and early Kennedy years, and nothing has fundamentally changed since that era.
  6. [6]A classic instance of this aligning with "just war" is the United States' "war on drugs" as subset of "war on crime", while at the same time the CIA was a major worldwide drug dealer in league with other drug cartels -- all done to enhance American Empire during the Cold War -- and continues to the present. The four-part series mentioned below connects American Empire drug dealing to the current War on Terror, in particular in Afghanistan. This of course is colossal hypocrisy as well. Worse: the series posits American federal government administrations over many decades as the Ultimate Drug Cartel, with Blacks, Latinos, and generally the poor directly being knowingly poisoned en masse. Then they have been primary targets of the Drug Enforcement Agency, and thereby become victims of America's too often savage prison system that oppresses and brutalizes them all over again... See: "The War on Drugs Is a Failure, So [Attorney General] Jeff Sessions Is All for It". A citation from the article reads:
    In June [2017], the History Channel aired a four-part documentary series called America’s War on Drugs.” The series asserts that the war on drugs was actually a war of drugs—and that the CIA was essentially a partner in spreading drugs and drug use. The series follows how the U.S. intelligence agency, in an obsession with fighting communism, allied itself with U.S. organized crime and foreign drug traffickers and includes firsthand accounts from many involved. In an interview with Truthdig columnist Sonali Kolhatkar on her radio program “Rising Up With Sonali,” the series’ executive producer, Anthony Lappé, explains why the CIA got involved:
    It’s actually a pretty mind-blowing story when you look at the extent to which the CIA was involved with drug traffickers and drug trafficking throughout the Cold War. … If you look at Cold War policy against the Soviet Union, we were locked in a global battle for supremacy, where we have lots of proxy wars going on. … We needed to team up with local allies, and often the local allies we were teaming up with were people who had access to guns, who had access to underground networks, to help us fight the perceived threat of communism. There are actually a lot of similarities between what drug traffickers do and what the CIA does.
    Lappé elaborates by saying the hypocrisy of the war on drugs has been evident from the start: Secret CIA experiments with LSD helped fuel the counterculture movement, leading to President Richard Nixon’s crackdown and declaration of the war on drugs. The series also explores the CIA’s role in the rise of crack cocaine in poor black communities and a secret island “cocaine base.” In addition the documentary makes the connection between the war on drugs, the war on terror and the transformation of Afghanistan into a narco state and contends that American intervention in Mexico helped give clout to Joaquín “El Chapo” Guzmán and the super cartels, making it easier to send drugs across American borders. Watch Kolhatkar’s full interview with Lappé by clicking here. Please also see the now classic: The Politics of Heroin: CIA Complicity in the Global Drug Trade, by noted American historian Alfred McCoy. Of it we read:
    The first book to prove CIA and U.S. government complicity in global drug trafficking, The Politics of Heroin includes meticulous documentation of dishonesty and dirty dealings at the highest levels from the Cold War until today. Maintaining a global perspective, this groundbreaking study details the mechanics of drug trafficking in Asia, Europe, the Middle East, and South and Central America. New chapters detail U.S. involvement in the narcotics trade in Afghanistan and Pakistan before and after the fall of the Taliban, and how U.S. drug policy in Central America and Colombia has increased the global supply of illicit drugs.
    To be noted as well is Johann Hari's Chasing The Scream, which tells the tragic tale of America's long-standing offensive against drugs, and the way to end such a war worldwide -- that several nations are successfully embracing.
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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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