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| Jeffrey Bellin |
For the first time in decades, the U.S. no longer leads the world in either the number of people incarcerated or incarceration rate; China and El Savador, respectively, now top those lists.
That said, we are still near the top in both categories, and the recent progress is fragile. Resistance to criminal justice reform is mounting, and the federal prison population actually grew in 2022.[2]
But it would be a mistake to reembrace the policies that led to mass incarceration.[3] Those policies often didn't make us safer and, in fact, make it harder to focus on the things, like preventing violence, that really matter.
The script behind the emerging push to double down on tough-on-crime policies is a familiar one. Politicians highlight reports of rising crime and suggest that violence is the logical result of reducing jail and prison populations.[4]
In truth, experts struggle to understand why crime goes up or down, and most changes are better explained by factors outside criminal law, like economic conditions, average population age and even environmental toxins.[5]
The best estimates are that the U.S.' embrace of mass incarceration over the past 50 years reduced crime by only a modest amount, and most of that benefit happened early on — meaning that the past decades of overimprisonment are more about politics than crime control.[6]
In addition to the undeniable suffering created by locking away almost 2 million human beings, there is a steep financial cost.[7] Between 1982 and 2010, the total amount spent by states on incarceration, including parole and probation, rose from $15 billion a year to $48.5 billion annually. Between 1980 and 2013, annual federal corrections spending grew from under $1 billion to almost $7 billion.[8]
That's why reducing jail and prison populations shouldn't be controversial. It is mass incarceration that is the radical, expensive and unproven government policy. And it is a policy that the country chose largely by accident.
In the early 1970s, this country's incarceration and crime rates were low and unremarkable. Then, a temporary crime spike spurred a new age of bipartisan penal severity.
From liberal former Sen. Ted Kennedy, D-Mass., to conservative evangelist Pat Robertson, Americans wanted tougher laws, tougher cops, tougher prosecutors and tougher judges.
We got our wish. The changes spread through the system in two distinct but overlapping waves.[9] In the 1970s and 1980s, additional police and harsher laws targeted the crimes that were spiking: homicides, robberies, rapes, burglaries. When those crimes fell in the 1990s, however, arrests continued at around the same level, and prison admissions actually increased.
These numbers stayed high even as crime dropped because law enforcement shifted its focus to commonly occurring, easily detected and readily provable offenses like drug crimes, gun possession and assault. This transformed the punitive turn in American criminal law from a temporary response to a crime spike into a decadeslong status quo.
Those clinging to the policies that gave us mass incarceration brush aside these complexities, and ignore indisputable facts, like:
- Police don't detect, much less solve, most crimes — the highest clearance rates are for homicide at around 60% and drop off precipitously from there.[10]
- Long prison sentences don't deter crime — deterrence depends on the certainty of punishment, not its severity.[11]
- Recent jurisdiction-specific crime increases do not track the election of reformers or Democratic control.[12]
There is, in fact, little correlation between violent crime and harsh or lenient criminal justice policies.[13]
Understanding the past — and the unnecessary choices that this country made in response to the 1970s crime spike — is the best hope for a different future.
Sexual violence, armed robberies and murders were all serious crimes prior to the 1970s and were vigorously prosecuted. But that's where the similarities between past and present end.
We didn't use to arrest, much less prosecute, so many drug offenders. We didn't use to hold so many people in jail prior to trial. We used to sentence people to shorter prison terms.[14] And we relied on parole boards to let people out of prison, ensuring that prisons did not, as now, fill with the sick and elderly.[15]
In the past, pardons were frequent, and political leaders doled out mercy as a sign of strength, not weakness. For example, presidents used to offer clemency to thousands, at a time when the federal prison population was a tenth what it is today. Now, clemency is offered to only a handful of prisoners, with government officials tiptoeing cautiously to avoid political blowback.[16]
Particularly in light of the lengthy sentences being served by older people who no longer present any threat, there is no reason that commutations — sentence reductions — cannot become frequent again.
We used to be better at preventing violence and better at solving serious crimes, probably because that is where law enforcement focused its resources. The people who suffer the brunt of violent crime typically embrace that focus — and their cooperation is a key factor in reducing crime.
When the police are viewed as working to solve and prevent serious violent crimes, the community turns out to support those efforts. But if officers are viewed as arbitrary, incompetent and worse, the witnesses they rely on to help solve serious crimes become less likely to volunteer information.[17]
While it is important to focus on reducing violent crime, there is no evidence that reembracing the policies that fueled mass incarceration will do that. Those policies may even prove counterproductive. For example, a December 2021 study from the Cato Institute found that certain prosecutions actually increased, rather than decreased, the likelihood of future crime.[18]
We should put aside tough-on-crime rhetoric and focus on preventing violence in more promising ways, like those offered by the Council on Criminal Justice's Violent Crime Working Group to prevent gun violence before it happens.[19]
The emerging resistance to criminal justice reforms illustrate not the merit of tough-on-crime policies, but the stubborn rhetorical appeal of the policies that fuel mass incarceration.
These policies are everywhere, the result of countless changes to local, state and federal laws and processes that emerged over decades. A few of those changes targeted the violent crimes that grab the headlines, but most did not.
This complexity means that while there is no silver-bullet solution to our overreliance on incarceration, we can continue to reduce prison and jail populations without threatening public safety.
Our current incarceration rate — over 500 incarcerated per 100,000 people — still far exceeds our long-standing historical rate of around 100 per 100,000, as well as the incarceration rates of other, lower-crime countries, including England, France, Germany and Japan.[20]
As our own history and the much lower incarceration rates around the world reveal, we do not need to choose between less violence and less incarceration. We can have both.
Jeffrey Bellin is a law professor at William & Mary Law School. He is the author of the new book, "Mass Incarceration Nation: How the United States Became Addicted to Prisons and Jails and How It Can Recover."
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.sentencingproject.org/research/.
[2] https://www.washingtonpost.com/opinions/2022/11/10/democrats-republicans-crime-voters-midterms/; https://www.washingtonpost.com/opinions/2023/01/15/dc-crime-bill-dangerous/; https://www.bop.gov/about/statistics/population_statistics.jsp.
[3] https://www.amazon.com/Mass-Incarceration-Nation-Jeffrey-Bellin/dp/1009267558/ref=tmm_pap_swatch_0.
[4] https://www.wsj.com/articles/safe-streets-are-a-policy-choice-incapacitation-incarceration-state-federal-prison-violent-crime-1990s-reagan-bush-barr-obama-sentencing-bail-11666785403.
[5] https://ucr.fbi.gov/hate-crime/2011/resources/variables-affecting-crime; https://www.niskanencenter.org/research-roundup-lead-exposure-causes-crime/.
[6] https://www.amazon.com/Mass-Incarceration-Nation-Jeffrey-Bellin/dp/1009267558/ref=tmm_pap_swatch_0; https://nap.nationalacademies.org/catalog/18613/the-growth-of-incarceration-in-the-united-states-exploring-causes.
[7] https://www.prisonpolicy.org/reports/pie2022.html.
[8] https://bjs.ojp.gov/content/pub/pdf/scefy8210.pdf; https://www.pewtrusts.org/en/research-and-analysis/fact-sheets/2015/02/federal-prison-system-shows-dramatic-long-term-growth.
[9] https://www.amazon.com/Mass-Incarceration-Nation-Jeffrey-Bellin/dp/1009267558/ref=tmm_pap_swatch_0.
[10] https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/topic-pages/tables/table-25.
[11] https://www.ojp.gov/pdffiles1/nij/247350.pdf.
[12] https://munkschool.utoronto.ca/research/violent-crime-and-public-prosecution.
[13] https://www.thirdway.org/report/the-red-state-murder-problem.
[14] https://www.sentencingproject.org/reports/no-end-in-sight-americas-enduring-reliance-on-life-sentences/.
[15] https://daily.jstor.org/what-should-we-do-about-our-aging-prison-population/.
[16] https://www.nbcnews.com/politics/white-house/biden-pardons-6-convicted-murder-drug-alcohol-crimes-rcna63748.
[17] https://www.penguinrandomhouse.com/books/100077/ghettoside-by-jill-leovy/; https://www.ojp.gov/ncjrs/virtual-library/abstracts/legitimacy-and-procedural-justice-new-element-police-leadership.
[18] https://www.cato.org/research-briefs-economic-policy/misdemeanor-prosecution-recidivism.
[19] https://counciloncj.org/10-essential-actions/.
[20] England: 136, France: 106, Germany: 67, Japan: 36. https://www.prisonstudies.org/highest-to-lowest/prison-population-total; https://worldpopulationreview.com/country-rankings/crime-rate-by-country.