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June 17, 2011

"Five myths about incarceration"

Five-myths-145x100 The title of this post is the headline of this new piece in the Washington Postauthored by Marc Mauer and David Cole.  The piece merits a full read, but here I will spotlight the author's set-up and statement of their "five myths."

No country on Earth imprisons more people per capita than the United States.  But for America, mass incarceration has proved a losing proposition.  The Supreme Court recently found California’s overcrowded prisons unconstitutional, and state legislators want to cut the vast amounts of public money spent on prison warehousing.

Why are so many Americans in prison, and which ones can be safely released?  Let’s address some common misunderstandings about our incarceration problem.

1. Crime has fallen because incarceration has risen....

2. The prison population is rising because more people are being sentenced to prison....

3. Helping prisoners rejoin society will substantially reduce the prison population.....

4. There’s a link between race and crime....

5. Racial disparities in incarceration reflect police and judges’ racial prejudice.

I am very interested in any and all reader reactions to these "five myths."  In particular, I would like to hear any comments/arguments contending that one or more of these myths are not really myths, and I would also would like to hear any comments/arguments contending that there are other more important myths about incarceration that did not make Mauer and Cole's list.

June 17, 2011 at 04:56 PM | Permalink


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I would add the following myth:

6. There is a clear line that distinguishes law-abiding citizens from criminals.

Most people believe we have a system of precise laws, when in reality we have a system deliberately based on very broad and vague laws that create huge amounts of prosecutorial discretion. The article places the blame for our incarceration crisis on the legislative branch, but I would argue that an additional cause has been a decrease in the exercise of prosecutorial restraint over the last two decades.

The article concludes as follows: "The United States imprisons a larger proportion of its population than Russia or Belarus. Our incarceration rate is eight times that of France. These tragic statistics force us to ask: Would the American public accept these rates if incarceration were distributed more equally across race and class?"

That is a great conclusion, but I would add that people also need to realize that, because of the broad reach of most of our criminal statutes, there is nothing at all that PREVENTS incarceration from being distributed equally across race and class. Moreover, that is precisely what is starting to happen.

Posted by: Edward | Jun 17, 2011 7:23:47 PM

As an example of the above, see this June 16 article from the LA Times:

Details emerge about ‘child pornography’ yearbook photo

An inappropriate "child pornography" picture published in a Big Bear High School yearbook depicts a 17-year-old male student with his hand inside the clothing of a 15-year-old female student, officials said Thursday.

Cindy Bachman, a spokeswoman for the San Bernardino County Sheriff's Department, said the students appear in the background of the photo and "are not the intended focus of the photograph." The picture was taken at a school dance.

However, authorities said they were concerned enough about the picture that they demanded that all Big Bear High School students return their 2011 yearbooks to the school so that the photo can be removed or covered up. They also warned that those possessing the photograph risk criminal charges involving the possession of child pornography.

The school has offered to reimburse students who do not want their yearbooks back.

The picture was brought to the attention of school officials after the yearbook was distributed last week, and they notified the Big Bear Sheriff's Station, which is conducting an investigation.

A detective has contacted both of the students in the photograph, Bachman said.


Posted by: Edward | Jun 17, 2011 8:04:47 PM

I'm at a loss for words about my feelings on the above cited article other than to ask what type of people go out of there way to look for something like this. Truly people with a sick mission in life that have nothing better to do or most likely, those caught up in their own self righteousness who continue to push the laws that would actually threaten to prosecute someone over something like this and high school kids at that. Where in the world do these people come from. This is really a sad statement of the levels our society has stooped too let alone what we've allowed it become.

Posted by: james | Jun 18, 2011 12:10:50 AM

Professor Berman,

Even on the Mauers and Cole's telling the first so-called myth (i.e., "Crime has fallen because incarceration has risen.") is not a myth. Per Mauer and Cole:

"Harvard University sociologist Bruce Western believes that increased incarceration accounts for only about 10 percent of the drop in crime rates; William Spelman, a professor of public affairs at the University of Texas, puts the figure at about 25 percent."

So even they concede that crime has fallen because incarceration has risen; the only debate is over the magnitude of the decrease in crime (and whether the benefit is worth the cost). As Steven D. Levitt, professor of economics at the University of Chicago, has written of the U.S. experience in the 1990s, "[t]he evidence linking increased punishment to lower crime rates is very strong." Stevn D. Levitt, Understanding Why Crime Fell in the 1990s, Journal of Economic Perspectives (Win. 2004).

The only counterargument Mauer and Cole muster on this front concerns Canada's experience. But they do nothing to make the case that Canada and the U.S. comprise an apples-to-apples comparison. There are good reasons to think they are not. For example, the U.S. has much higher rates of violent crime than Canada, for example, but lower rates of property crime, Canadian Centre for Justice Statistics, Crime Comparisons Between Canada and the United States (Dec. 2001), which suggests that there are factors other than differing prison policies at work that explain the differences between Canada and the U.S. and/or that the two countries' experiences are not readily comparable.

Christian Southwick
Practicing Attorney (Civil Law)

Posted by: Christian Southwick | Jun 18, 2011 1:05:47 AM


The crime rate has fallen. Only crime reporting has fallen.

The number of murders is 17,000. There are 100,000 unresolved cases of missing persons a year. The murder rate may be 70,000.

The lawyer has any competence to run the criminal law.

Government will protect you from criminals.

Blacks use more drugs. They use less.

Blacks have more criminality. They do not have elevated rates of antisocial personality disorder. They commit more crimes because of their high rates of bastardy, the lack of police protection of the black crime victim, and the criminal gets less punishment for victimizing a black person.

Self-help leads to a break down of order. Self-help should be encouraged with money rewards for the killing of a violent criminal by a citizen. Anyone who fails to fire on the criminal at the scene should be fined $100.

Judicial review is lawful. It violates Article I Section 1, and any state equivalent. There is no statutory or constitutional writing allowing it. Judicial review is insurrection against the constitution by irresponsible incompetents with the validity of two year olds throwing things around a room.

The conservative Justices are more punitive of criminals. They are the biggest criminal loving rent seekers of all. Hypocrites.

The lawyer can eff our nation for another 200 years with self-dealt impunity. No. There will be mass executions of the internal traitors, and internment camps for their running dogs, come the next major terror attack.

9/11 could not have been prevented. No. It is 100% the result of the lawyer political correctness and preference for our enemies over the interests of the ordinary citizen. The lawyer hobbled our warriors and kept the terrorists alive after the first 1993 bombing. After that attack, a million religious leaders, financiers and intellectual leaders should have been eliminated. To deter.

Posted by: Supremacy Claus | Jun 18, 2011 2:21:25 AM

i have to agree james. the real pervert was the one looking for and finding the photo!

Posted by: rodsmith | Jun 18, 2011 3:43:23 AM

Does anyone decry or disagree with what the French revolutionaries did with church Inquisitors? They beheaded and expelled 10,000 of them. That ended the Inquisition 1.0.

We are experiencing the Inquisition 2.0. The remedy is the same. Kill the entire lawyer hierarchy, about 15,000 internal traitors to our nation. To deter.

Posted by: Supremacy Claus | Jun 18, 2011 9:38:29 AM

People entering prison are
1. Residents with no prior incarcerations
2. Nonresidents with no prior incarcerations
3. Former prison inmates

if you want to reduce the number in prison
you have to reduce the number that enter because
two thirds are released within three years.

That means you have reduce the number
that return. We have been doing the opposite.

Posted by: John Neff | Jun 18, 2011 10:37:37 AM


You're off your meds again. remember: the yellow pill in the morning, the blue one at lunch, and the pink one at nightl.

Posted by: anon | Jun 18, 2011 4:24:21 PM

Anon: Thanks for being the only reader stupid enough to read my comments. None would ever get read save for your idiocy.

More Myths

Intent exists in nature.

The mentally incompetent to stand trial are less culpable of their crimes.

Retribution is not from the Bible and allowed in our secular nation as a proper motive of criminal prosecution.

Defense lawyers are on the side of the defendant.

Lawyers on the Supreme Court know something about crime or any other technical subject for that matter.

Posted by: Supremacy Claus | Jun 18, 2011 6:43:39 PM


Downloading child porn promotes and encourages child sexual abuse. (When legalization in several countries resulted in drops in child sexual abuse. It the law itself that promotes child sexual abuse by making prices high, and enabling huge profits for criminal syndicates that produce child porn.)

Posted by: Supremacy Claus | Jun 19, 2011 11:01:49 AM

Prof. Berman: Please, consider Myths in Criminal Law Posting every 3 months. So much is mythical.

Posted by: Supremacy Claus | Jun 19, 2011 1:51:55 PM

yep SC kind of like our 1920-30's alcohol probition...created the MOB!

Posted by: rodsmith | Jun 20, 2011 12:03:30 AM

Prohibition was underestimated. It was a time of great productivity, drops in social and health problems from alcohol.

It reduced consumption by only half. So the public did not buy into it. This a good lesson to apply to currently illegal drugs. Better to have a campaign against use, than to prohibit. Smoking went from 45% to 25% that way, with good drops in heart and lung problems. .

Posted by: Supremacy Claus | Jun 20, 2011 10:28:10 AM

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