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October 23, 2014

"How Changes in American Culture Triggered Hyper-Incarceration: Variations on the Tazian View"

The title of this post is the title of this notable new paper by Christopher Slobogin now available via SSRN. Here is the abstract:

American imprisonment rates are far higher than the rates in virtually every Western country, even after taking into account differing rates of crime.  The late Professor Andrew Taslitz suggested that at least one explanation for this puzzle is the relative lack of “populist, deliberative democracy” in the United States.

This article, written for a symposium honoring Professor Taslitz, examines that thesis from a comparative perspective, looking in particular at how differences between American and European attitudes toward populism, capitalism, religiosity, racial attitudes and proceduralism may have led to increased incarceration rates.  It also tries to explain another puzzle that has received little attention: why these cultural differences, which have existed for some time, only had an impact on incarceration rates after the 1960s.

October 23, 2014 at 05:29 PM | Permalink


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Mighty high fallutin' talk.

It is much simpler.

The coddling of criminals by the lawyer in the 1960's resulted in an explosion of the crime rate. People got scared, tired, and angry. The lawyer profession came up with a brilliant solution, mostly to save itself from the wrath. Mandatory guidelines, to stop the coddling by biased, pro-criminal judges.

The crime rate drops 40%. Mission accomplished. Because the criminals were in stir, guidelines dropped their fecundity as well. That prevented each from spawning 10 more criminals by 10 different hussies. This benefit keeps on giving, after the devastation of the guidelines.

Posted by: Supremacy Claus | Oct 23, 2014 11:16:40 PM

Could it be that the hyper rate of incarceration occurred because the reform movement was let by lawyers? Lawyers tend to dumb-down problems. Would the result have been different if social scientists had played a more influential role?

Posted by: Tom McGee | Oct 23, 2014 11:18:30 PM

Tom. I asked psychology friends, would they like to take over the criminal law, since punishment is its sole tool, and they know a lot about that. The reply was loud, resounding, and unanimous. No. They would do far worse than the lawyers, all felt.

Posted by: Supremacy Claus | Oct 24, 2014 5:18:34 AM

SC, the problem is antisocial behavior, which manifests itself in several different ways as it unfolds over a period of time. Before the fact, when the problem is not fully knowable, it manifests itself as a crime. After the fact, which is a time when the problem is fully knowable, it manifests itself as a criminal offense and a risk that the person in question will commit another crime. A sound plan for correcting the problem calls for a response to each of these manifestations of the problem.

The current approach to the problem is just too simplistic. Sorry, punishment is not the sole tool. The expertise that lawyers bring to addressing the problem is not the only expertise that is needed.

Lawyers tend to focus on the first manifestation of the problem; in other words, they dumb-down the problem. Social scientists and judges tend to focus on the second manifestation of the problem, namely the criminal offense. An offense is conduct that disaffirms one or more social norms. We punish people to reaffirm those social norms.

Social scientists and odds-takers focus on the risk that another crime will be committed. Crimes and offenses do not change once committed, risk does. Lawyers and judges are not positioned within the system, and they not equipped by training and experience to deal with risk. An alternative mechanism is needed to deal with risk, which is ongoing and affects not only the duration, but level of incapacitation.

Finally, social scientists focus on reducing that risk if possible.

Posted by: Tom McGee | Oct 24, 2014 1:32:53 PM

Tom. Pretty much agree on most points. I have dumbed it down so far, even the lawyer can get involved with the risk side. 123D. That arithmetic is within the math ability of the lawyer. Count to 3 violent crimes with injuries. Then incapacitate by the death penalty. That would add up to several thousand a year. It would end crime even if no deterrence takes places. I makes the violent criminal go missing. Nor does it involve any form of future forecasting, a supernatural power attributable to God. It only involves past convicted conduct. The death penalty is not even a real punishment. The Eighth Amendment does not apply. It is an expulsion.

Posted by: Supremacy Claus | Oct 24, 2014 9:07:08 PM



Posted by: Tom McGee | Oct 26, 2014 1:37:38 PM

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