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April 23, 2008
Examining America's affinity for incarceration
Adam Liptak has this new piece in the New York Times, headlined "Inmate Count in U.S. Dwarfs Other Nations’." Here are excerpts:
The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.
Indeed, the United States leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment. Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations.
Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences....
There is little question that the high incarceration rate here has helped drive down crime, though there is debate about how much.
Criminologists and legal experts here and abroad point to a tangle of factors to explain America’s extraordinary incarceration rate: higher levels of violent crime, harsher sentencing laws, a legacy of racial turmoil, a special fervor in combating illegal drugs, the American temperament, and the lack of a social safety net. Even democracy plays a role, as judges — many of whom are elected, another American anomaly — yield to populist demands for tough justice.
Whatever the reason, the gap between American justice and that of the rest of the world is enormous and growing.....
Of course, sentencing policies within the United States are not monolithic, and national comparisons can be misleading. “Minnesota looks more like Sweden than like Texas,” said Mr. Mauer of the Sentencing Project. (Sweden imprisons about 80 people per 100,000 of population; Minnesota, about 300; and Texas, almost 1,000. Maine has the lowest incarceration rate in the United States, at 273; and Louisiana the highest, at 1,138.)
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Time perhaps to dig out the wise words in Kahlil Gilbran's famous poetic essays - The Prophet. Here is an extract:
Oftentimes have I heard you speak of one who commits a wrong as though he were not one of you, but a stranger unto you and an intruder upon your world.
But I say that even as the holy and the righteous cannot rise beyond the highest which is in each one of you,
So the wicked and the weak cannot fall lower than the lowest which is in you also.
And as a single leaf turns not yellow but with the silent knowledge of the whole tree,
So the wrong-doer cannot do wrong without the hidden will of you all.
Like a procession you walk together towards your god-self.
You are the way and the wayfarers.
And when one of you falls down he falls for those behind him, a caution against the stumbling stone.
Ay, and he falls for those ahead of him, who though faster and surer of foot, yet removed not the stumbling stone.
And this also, though the word lie heavy upon your hearts:
The murdered is not unaccountable for his own murder,
And the robbed is not blameless in being robbed.
The righteous is not innocent of the deeds of the wicked,
And the white-handed is not clean in the doings of the felon.
Yea, the guilty is oftentimes the victim of the injured,
And still more often the condemned is the burden-bearer for the guiltless and unblamed.
You cannot separate the just from the unjust and the good from the wicked;
For they stand together before the face of the sun even as the black thread and the white are woven together.
Posted by: peter | Apr 23, 2008 4:15:08 AM
Adam Liptak wrote: "Even democracy plays a role, as judges — many of whom are elected, another American anomaly — yield to populist demands for tough justice."
This isn't quite accurate. Liptak expanded on this notion that "democracy" results in high incarceration later in the article:
"Several specialists here and abroad pointed to a surprising explanation for the high incarceration rate in the United States: democracy.
"Most state court judges and prosecutors in the United States are elected and are therefore sensitive to a public that is, according to opinion polls, generally in favor of tough crime policies. In the rest of the world, criminal justice professionals tend to be civil servants who are insulated from popular demands for tough sentencing.
"Mr. Whitman, who has studied Tocqueville’s work on American penitentiaries, was asked what accounted for America’s booming prison population.
"'Unfortunately, a lot of the answer is democracy — just what Tocqueville was talking about,' he said. 'We have a highly politicized criminal justice system.'"
The U.S. is not more democratic than "the rest of the world." Those civil law Western countries where "civil servants who are insulated from popular demands for tough sentencing" are given control have more active and greater rates of participation in their democracy than does the U.S. So, far from those systems being "undemocratic," they are, in fact, set up democratically. And while it's true, of course, that the direct election of judges in the U.S. "politicizes" the criminal justice system here, that politicization cannot accurately be called "democratic" when only an extremely small percentage of the public participates in shaping them. After all, we're talking about state and local elections here, which have even much smaller participation rates than national presidential elections, where only half of registered voters participate. (That only half of registered voters participate means the true participation rate of eligible voters is probably closer to a quarter. For local elections, it may one-tenth or fewer of the electorate that participates.)
Instead of saying, "democracy" is responsible for America's incarceration rate, it would be more accurate to say that a dysfunctional democracy in which the majority of the population is effectively disenfranchised is the culprit.
Posted by: DK | Apr 23, 2008 9:16:23 AM
More than half of the persons admitted to prison in the US are because of a revocation of probation, parole or work release. We also know that of those released from prison two thirds will return within three years. The return rates are largest for mentally ill prisoners, drug offenders and repeat DUI offenders. The main benefits from prison are temporary incapacitation, some rehabilitation and making people who like retribution happy.
Deterrence does not involve any additional cost so if incarceration increases deterrence there is an additional benefit. My conclusion is that deterrence does work for first time offenders at the misdemeanor level but for persons who have been incarcerated two or more times for more serious offenses it is unimportant.
My estimate is that rehabilitation and incapacitation costs about $35,000 per inmate-year and if that estimate is correct the benefits of incapacitation and rehabilitation due to reduced crime would have to be larger than $80 billion per year or $270 per person to break even. The problem is that most persons have no idea what the benefits of reduced crime are because is it difficult to quantify the cost of a nonevent.
In a nutshell it is not obvious that incarceration works.
Posted by: John Neff | Apr 23, 2008 9:58:32 AM
Care is needed with how we use the parole/probation numbers. In California, it is true that over half of all admittees are parole violators. But in many other states, the number is closer to 1/3, according to data gathered by the BJS. And in some states--Virginia, Washington--it is almost or exactly zero (since they have no parole). And almost no one returns to prison due to probation violation--jail, maybe, but not prison (since probation tends to apply to minor crimes).
Plus, there is a tricky conceptual problem with parole admissions. Interesting, the rate of parole violations has remained relatively constant: we violate more people back, but we're releasing more people on parole as well, and the violation/release ratio has not moved much in the past ten years. So are violations contributing to release? If you're bailing out a boat with bigger and bigger buckets, and 33% of the water you bail out spills out of the buckets into the boat, is the spillage contributing to the water in the boat? Maybe, maybe not. Depends on how you look at it.
Posted by: John | Apr 23, 2008 10:36:45 AM
John, actually I've represented or otherwise witnessed several defendants sentenced to prison terms for probation violations in Virginia - so saying that probation violations do not contribute a significant numbers of prisoners in Virginia is not the case at all. Not really surprising when you consider how long the maximum sentence is on some of those "minor" felonies in Virginia - simple possession of a schedule 1 or 2 controlled substance other than marijuana can get a maximum of 10 years in prison. Grand larceny which in Virginia means one stole more than $200.01 worth of items can get a maximum of 20 years in prison. Those are two examples where a defendant might get probation only and a suspended sentence - not unusual to see a defendant in those types of cases get a 5 year suspended sentence and being placed on probation in 3 years - generally, the first probation violation will result in a jail sentence, but a second or subsequent violation will almost undoubtably result in a prison sentence.
Also don't forget that prosecutors have a tendancy to load up on charges - so defendants could end up with 15-20 years suspended time easily especially given some of the property crimes like credit card fraud or stealing a check (both of which can result from convictions on multiple crimes from a single act), . Finally, don't be mislead into thinking that a defendant with a more serious charge, such as robbery will not get put on probation after release from prison. Again, a defendant with such a conviction is likely to be on probation for 10 years following the release from prison with 10-20 years suspended time over their heads. Not hard to see how a probation violation can lead to a prison sentence in those types of cases.
It might be a bit difficult to tell though - often times people given prison sentences for probation violations in Virginia also have additional convictions - so such inmates may be classified as being convicted of a crime or a probation violation. Also it is worth noting that in Virginia, conviction on a probation violation counts as a separate felony conviction. Not sure how the BJS works with those aspects when given statistical analysis - but if you sit in on 10 probation violations at least where I practiced criminal law in Virginia, at least 2 are likely result in an actual prison sentence.
Posted by: Zack | Apr 23, 2008 2:45:46 PM
Zack, thanks for your comments--it is always helpful to get the practitioner's perspective. My no-probation argument came from what some BJS data seemed to say, but I trust your first-hand experience over the coding choices made by the BJS (or by the Virginia officials submitting the data).
Posted by: John | Apr 24, 2008 8:20:28 AM
Another thing to keep in mind regarding Virginia's numbers is that defendants convicted before the abolishment of parole are still released on parole. So, there still may be some defendants left who were sentenced for parole violations.
Even with no parole, defendants only serve 85% of their sentence barring a mandatary minimum. Obviously, defendants who were sentenced under "old time" serve a much lower percentage of their sentences.
Posted by: Zack | Apr 25, 2008 5:38:10 PM
