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December 5, 2011

Professor Becker and Judge Posner examine mass incarceration in the US

This week's topic on  "The Becker-Posner Blog" is the question "Does America Imprison Too Many People?." Regular readers likely know that I think the answer to the question in yes, and Professor Gary Becker and Judge Richard Posner also seem to come to this conclusion. Here are the concluding paragraphs from Professor Becker's analysis of the question:

Elsewhere I have discuss why the US should decriminalize and legalize drugs (see, for example, my post on 3/20/2005 called “The Failure of the War on Drugs”). If the US were to do that, the prison population would eventually fall by over 30%.  The imprisonment of blacks and women would fall by even larger percentages since these groups are more likely to be in prison on drug-related charges.  Such a policy change would also release police and other resources that have been used to catch and punish drug dealers to concentrate on crimes where victims suffer great harm.  These crimes would then fall, perhaps because more offenders would be caught and imprisoned.  The US might still imprison a larger fraction of its population than peer countries, but the differences would become much smaller than at present.

Imprisonment should be rarely used also for other victimless crimes, for crimes that do not greatly harm victims, and for crimes where victims can be adequately compensated by fines and other monetary punishments.  In these cases, punishment should consist of fines, probation, and other ways that do not require imprisonment.  Eliminating imprisonment for drugs and other victimless crimes,and for many other crimes would cut greatly the US’ bloated prison population, reduce the spending on prisoners, and cut down the depreciation of the market skills of offenders who did not commit serious crimes.

Here are the concluding paragraphs from Judge Posner's analysis of the question:

There are a number of other possible explanations for the conjunction of a high rate of imprisonment with a high crime rate.  One is not enough police, or intelligent enough police, to prevent and detect crime effectively.  Another is a high elasticity of supply for criminal activity, so that discouraging or preventing one person from committing crimes induces someone else to enter the crime industry.  Another (suggested above) is that we define crime too broadly, criminalizing activities that in other countries are lawful; our high rate of sexual offenses against minors is a function in part of a high age of consent (18).  Or we may make too little use of fines, and of regulatory and private-litigation alternatives to criminal punishment.  The prevalence of gun ownership may be a factor, along with the proximity to the United States of countries in Latin America that are large producers of illegal drugs.  And finally crime rates are particularly high in the southern states of the United States, and that may have deep cultural roots.

Reform is difficult when the causes of a problem are multiple or unknown. And because the direct monetary costs of the criminal justice system are not very great by current standards (only about $40 billion a year), and there is strong hostility among the general public to criminals (another cultural fact, perhaps), and because our huge prison system provides a great deal of employment, there is no pressure for reform.  Yet the indirect costs of high levels of incarceration must be very great, in the form of the lost output of the large number of prisoners, most of whom are of working age.

December 5, 2011 at 10:32 AM | Permalink


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Posner is quoted as saying, "There are a number of other possible explanations for the conjunction of a high rate of imprisonment with a high crime rate."

Posner is a smart man, but in this instance, he doesn't have a clue.

The present high rate of imprisnonment is, to use Posner's locution, in conjunction with a LOW crime rate, not a high one. As a number of Doug's prior entries attest, and is independently confirmable in BJS statistics, the crime rate now is HALF of what it was twenty years ago when the incarceration rate took off. The crime rate now, at or near the peak of the number of persons in prison, is at its lowest levels since the 1950's.

You can argue causation all you want, but Posner's statement that there is a conjunction of a high rate of imprisonment and a high crime rate is simply and massively false.

Posted by: Bill Otis | Dec 5, 2011 12:54:23 PM


I think that Posner is referring to a high crime rate compared to other countries, not a high crime rate compared to the historical U.S. crime rate. Posner is trying to explain why the United States, even now, has a higher crime rate than other countries that imprison far fewer people.


Posted by: AnonymousOne | Dec 5, 2011 1:54:42 PM

If you actually read the commentary, you will see that AO is correct.

Posted by: anon | Dec 5, 2011 2:20:29 PM

You will have to excuse bill ....this is one of his sore spots like of like sex crimes law is mine. If bill will go back and read the details the writers are NOT saying we shouldn't continue to and expand locking up VIOLENT and REPEAT offenders. Just that in cases where there is NO REAL HUMAN VICTIM or no REAL as apposed to statuatary violance... We have better and less expensive alternatives for first offenders.

Posted by: rodsmith | Dec 5, 2011 3:00:35 PM

The fact of the matter is that the high rate of incarceration in the USA has been in conjuction with a massively decreasing crime rate in the USA. And I'm not talking about drug crimes. I'm talking about murder, rape, robbery, aggravated assault, theft, burglary and similar "traditional" crimes. The statistics are here: http://www.disastercenter.com/crime/uscrime.htm

To the extent I misread Posner as saying something different, I was wrong. To the extent Posner muddies those waters by using the language he did, he's wrong.

The only important fact, of course, is not about either Posner or me. The important fact is that, at the peak of "incarceration nation," the crime rate is half what it was 20 years ago, when we started down this path. That is an astonishing success story, and it's past time for it to be welcomed as such.

Posted by: Bill Otis | Dec 5, 2011 3:24:48 PM


If you like it, you pay for it. I would rather not.

Give everyone (who has not committed a firearms felony, or violent (traditional definition, not bastardized legal) crime and the populace at large their full 2nd Amendment rights back. Soccer Moms and their political lackies have destroyed this country.

I have a problem with simple possession (drugs, firearms, too much cash, etc.) being labeled a felon and having their rights taken away. I also have a proble with LE pretending they are children on-line when most have insidious training than the HS or College Young men they entrap. I don't want my money paying for that.

Oh yeah, it really isn't my money.

Posted by: albeed | Dec 5, 2011 5:28:26 PM

Albeed, I don't know where you live, but in my part of the country there are lots of soccer moms who probably have a lisence to carry, and lots who just leave their gun at home.

Posted by: beth | Dec 5, 2011 6:08:06 PM

albeed: "I also have a proble with LE pretending they are children on-line when most have insidious training than the HS or College Young men they entrap"

me: do you also have a problem with them "entrapping" (note, this is not to say that what LEO is doing in those cases is legally entrapment) middle aged or dirty old men looking to arrange sex with children? Or going after icky pervs who are trading child pornography online? It is one thing to do as Judge Posner says to attribute the high age of consent to increased crime rates when you might be talking about a 19 year old who has sex with a 15 year old or the 19 year old with a nude picture of his 17 year old girlfriend - maybe they have a case that they are being overcriminalized, but its not exactly a secret what the age of consent is.

It is quite different when talking about a 49 year old who has sex with a 15 year old or a 49 year old with nude pictures of a 5 year old or pictures of a 5 year old getting raped. That is predatory behavior which the government should punish - and in my opinion, punished severely.

Basically, you can easily make a sympathetic case against prosecution of sex offenders - but the feds really aren't going against those offenders. Who the government is going after are icky pervs who are targeting children or rapists or middle aged men who are expected to know better (and honestly the 19 year old should know better as well) than to target a Middle Schooler - in every case, teh government should prosecute those offenders.

It is misleading in the extreme to believe that sex offender prosecution - especially by the feds - is simply 19 year olds having sex with 17 year olds.

Posted by: virginia | Dec 5, 2011 6:22:22 PM

virginia, other than it being icky, if a 15-year-old consents with a 19-year-old and then with a 40-year-old the next month, what is the more severe harm with the 40-year-old that requires a severe sentence compared to the light to no sentence for the 19-year-old?

Posted by: Anon | Dec 5, 2011 9:05:14 PM

Virginia, not all those who Receive cp are icky pervs. I don't condone cp but the sentences handed out for Possession and Receipt are too severe.
My husband was trading legal, adult pornography. Not exactly something to be proud of but not illegal. A drunken idiot sent him two pictures of cp. Feds found the drunken idiot and that led them to my husband. Two pictures Received = mandatory minimum of 5 years.
You are correct that it is misleading in the extreme to say that sex offender prosecution by the feds is all about 19 years olds and 17 years olds having relations or even exchanging pictures of themselves.
It is also misleading in the extreme to say that anyone who gets/receives/possesses cp is an icky perv.

Posted by: JS | Dec 5, 2011 10:11:53 PM


Thank you for another intelligent idea.

I meant by my previous post:

18-25 year olds with younger 15-17 year olds.

Hormones at that age are not likely to stay with you the rest of your life. Why destroy someone for life?

And yes, the FEDS destroy 18 year olds. I know of an actual case and it didn't make one s--t of difference.

Oh Yeah, we need icky pervs to compare ourselves to so we can feel better about ourselves, regardless of whether there was any ACTUAL contact or not.

Posted by: albeed | Dec 5, 2011 10:15:32 PM

sorry virginia! but in this you are WRONG!

" (note, this is not to say that what LEO is doing in those cases is legally entrapment) "

While the courts have chickend out becasue of the hate involved in sex crimes...it IS entrapment! just take a look at the 100's of not 1,000's of drug cases where the case was tossed when it was later discovered that wwhat the cops sold the druggie turned out to be sugar or other herbs instead of cocaine, mj and so on!

sorry if your convicting someone of talking to a 15 year or a 5 year old or a 50 year old and it is in FACT something else doing the talking...it's ENTRAPMENT!

Posted by: rodsmith | Dec 6, 2011 12:46:02 PM

well bill we agree with you on this!

"I'm talking about murder, rape, robbery, aggravated assault, theft, burglary and similar "traditional" crimes."

with the exception of theft...UNLESS it's a violent theft!...

those are the types we want locked up till they can play nice! The others are what we are saying there might be a better cheaper was to deal with.

Posted by: rodsmith | Dec 6, 2011 12:48:25 PM

anon: "other than it being icky, if a 15-year-old consents with a 19-year-old and then with a 40-year-old the next month, what is the more severe harm with the 40-year-old that requires a severe sentence compared to the light to no sentence for the 19-year-old?"

me: obviously it is not proper to look at victim characteristics in a case of this nature. It is proper to look at the offender characteristics - thus, in an ideal world, the punishment of the offender should depend upon the degree of sexually predatory behavior by the perp. Realistically, at least where I live, society has reached a presumption that an 15 year old having sex with an adult reflects sexually predatory behavior and the punishment of a 19 year old having sex with a 15 year old would be the same as the 40 year old having sex with the 15 year old. In either case, chances are there would be a short active jail or prison sentence (not likely to exeed one year) - maybe probation or prison depending upon prior record - following by going on the sex offender registry for life. My view is that in this case, the 40 year old is actually underpunished and the 19 year old is overpunished.

Now, I would hope that everyone would agree that a 40 year old who has sex with a 15 year old is engaging in predatory behavior - and has no problem with the 40 year old being punished by the short jail sentence and going on the sex offender registry his or her crime. I would argue that the crime is probably actually underpunished in this case because the sentence does not reflect the degree of sexually predatory behavior present in a 40 year old going after someone who is likely either in Middle School or in the first year of High School. The gap in maturity between a 15 year old and a 40 year old is extensive - society has decided that 15 year olds are not sufficiently mature to handle sex. There is also substantial harm from teen pregnacies and veneral diseases which are often the result of adult sexual predators going after children. Hence, there is substantial interest in going after these sexual predators who target young girls who society has decided lack sufficient maturity to make a rational decision about sex.

Hence, I have no problem with the 40 year old sexual predator getting the book thrown at him (or her!) Like I said, I would actually advocate that penalties be harsher - and the sexual predator who targets a child does not have a case that it is unfair that they get placed on the sex offender registry - they definitely belong there. And if some farsighted state would pass my modest proposal for Erika's Law which enabled convicted sex offenders to choose whether to be listed on the sex offender registry for life and have any residential restrictions a state might pass or undergo surgical castration and not be listed on the sex offender registry, the 40 year old man (female sex offenders are pretty much stuck going on the sex offender registry) with the 15 year old would definitely be covered.

Now the 19 year old with the 15 year old is different - simply because of the maturity level of the offender and the fact that there might little difference in maturity level between a 19 year old man and a 15 year old girl. Because there is no definite gap in maturity levels which can be presumed, the act was not necessarily sexually predatory. Thus, there is not necessarily society interest in punishing the 19 year old as being a sexual predator. It may or may not serve society's interest to give that 19 year old a life long felony conviction and lifetime on the sex offender registry.

Therefore, in an ideal world, the world where states adopt my proposed Erika's Law, other provisions of Erika's Law will deal with youthful sex offenders who engage in consual but illegal sex. My suggestion - deferred disposition (and like the castration provisons, please ignore any possible Constitutional issues involved) but deferred disposition over time. See, there is really no way to tell whether the 19 year old is a budding icky perv who targets vulenaraable young girls or a 19 year old kid who is normally attracted to teenagers and will raise his target age to legal women once he gets older and more mature. So, this is what I would do. I would have a special disposition where the kid gets a couple days in jail and then goes on lightly supervised probation for 10 years. At the end of ten years, if the kid has shown no signs of targeting children (child pron, having sex with additional underaged children, etc.) dismissed - no conviction, no sex offender registry - the kid is just a normal kid who made a mistake and should not be saddled with the mistake the rest of his (or her) life. If the kid after being given the warning goes out and has sex with a 15 year old (or younger) or has child porn or whatever during hte ten years - they get convicted of the original offense and given the same treatment the 40 year old got because they have proven to be a budding icky perv. Erika's Law would then say you are convicted on go to jail or prison and then when released, the defendant goes on the sex offender registry for life and obey all residential restrictions which the state passes - or if they choose they want to avoid being a registered sex offender, get castrated.

Albeed, I would advocate a sliding scale for the "wait and see" approach under my proposed Erika's Law - a 18 year old with a 15 year old - the wait and see approach is proper. A 25 year old with a 15 year old - then, I say go straight to prison and then the sex offender registry (or castration if the 25 year old chooses). I'd place a limit of 5 year age differential before given the benefit of doubt - with more than 5 year's differece, I feel comfortable presuming that hte person is an icky perv.

Oh and if anyone has figured why my proposed law is named Erika's Law and what the connection between that and my objection to Bill Otis using the phrase Amerika Stinks, please don't tell Bill Otis. I'm trying to make him figure it out on his own Thanks :)

Posted by: virginia | Dec 6, 2011 2:01:38 PM


I agree with your sentiments. The neglected and delinquent teen girls with whom I worked 10 years ago were commonly involved with much older males--to their great detriment.

One was in the car with a 21 and a 23 yr old (males) when they were caught in an armed robbery. She was dating the older one with her Mom's approval.

Oh yeah, she was 13, and started dating him at 12.

Posted by: Adamakis | Dec 6, 2011 2:43:43 PM


Your 2:01 Comments are headed in the right direction and I concur in the majority, but not all. (Residency Restrictions for those off supervision are unconstitutional, no matter what a person in black robes says).

I would say that even a 23 year old with a 15 year old may be acceptable. One has to look at individual cases in all their entirety and this is why the LAW chooses the easy way out, and is an ASS.

When I played softball for my church team in the late 60's, there was a man on my team (23 years old) who was dating a 15-16 year old. They were married in the mid 70's, have 4 great kids and still love each other very much. I don't know if they fooled around or not when she was 15-16, but squeeze the wrong body part and you have a felony conviction.

Posted by: albeed | Dec 6, 2011 5:24:22 PM


"Now, I would hope that everyone would agree that a 40 year old who has sex with a 15 year old is engaging in predatory behavior"

guess what virginia you would be WRONG!

i know of at least one case here in florida where there are now 4 diff men of assorted ages who now have multi year prison sentences and get to follow it up with LIFETIME regisry and ILLEGAL LIFETIME parole.

each was convicted YEARS apart and in each case. the teenage girl was claiming to be a VIRGIN! yep she has now been deflowered at least FOUR TIMES by overage men! sorry SHE is the PREDATOR in my book. Needles to say she's never even had her hand slapped let along seen PRISON TIME!

Posted by: rodsmith | Dec 7, 2011 1:29:28 AM

I get the impression that Bill Otis is suggesting that the reason for the increasing prison population is reduction in crime.

Posted by: Huh? | Dec 7, 2011 1:58:15 AM

Becker is an economist stating the self-evident. Posner is a rare lawyer who is not a lawyer dumbass. He even has a brief mention of the rent seeking theory in his 600 page book on economics of the law.

Posted by: Supremacy Claus | Dec 7, 2011 7:17:53 AM

Virginia: Nature says, 14. That is the real age of adulthood. The age of 18 has no landmark event. It is a n arbitrary age to keep people out of the job market so unions can demand higher wages for cush jobs. The age 18 is a type of theft. The age of puberty goes down with fat times, so it should get reflected in the law. In fairness, 14 year olds should also have all privileges of adulthood, not just its responsibilities, e.g. voting, smoking, drinking, etc. Don't be a rent seeking feminist lawyer, a predator of productive males, especially of the black male, like the KKK.

Posted by: Supremacy Claus | Dec 7, 2011 7:25:15 AM

Since when is 40 billion not a " great" cost? What planet is Posner spending money on?

Posted by: Steve Prof | Dec 7, 2011 9:16:46 PM

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