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February 8, 2018

"Mass Incarceration and Its Discontents"

The title of this post is the title of this notable new review essay authored by Katherine Beckett now appearing in Contemporary Sociology.  Here is how the essay gets started:

The contours of mass incarceration are, by now, broadly familiar.  The U.S. incarceration rate began an unprecedented ascent in the 1970s.  This trend continued through 2007, when 760 of every 100,000 U.S. residents — nearly 1 in 100 adults — lived behind bars, five million others were on probation or parole, more than ten million were booked into jail, and nearly one in three U.S. residents had a criminal record (Kaeble and Glaze 2016, Table 4; PEW Center on the States 2008; Sabol 2014; Subramanian et al. 2016).  The scale of confinement now sharply differentiates the United States from comparable countries, where incarceration rates range from a low of 45 per 100,000 residents in Japan to 145 in England and Wales (Walmsley 2015).  By 2015, the U.S. incarceration rate had fallen to 670 per 100,000 residents, a drop of nearly 12 percent (Kaeble and Glaze 2016). Still, the United States remains the world’s leading jailer (Wagner and Walsh 2016).

The emergence of mass incarceration in the United States has spawned a tremendous amount of social scientific research.  A number of studies analyze its proximate causes and show that shifts in policy and practice (rather than rising crime rates) were the primary driver of penal expansion.  Other studies analyze the consequences of mass incarceration, documenting, for example, its disparate and adverse impact on people, families, and communities of color.  Some assess how penal expansion affects not only the incarcerated, but also those who are stopped, frisked, arrested, fined, and surveilled — even in the absence of incarceration or conviction.  And a substantial body of research shows that penal expansion has had far-reaching sociological effects that tend to enhance — and mask — racial and socio-economic inequalities.

Although the decline in incarceration since 2007 has been modest, it has nonetheless triggered much discussion regarding the need for, and prospects of, reform.  Yet researchers are debating more than the likelihood that meaningful change will occur; they also offer competing understandings of the problems that require attention and the solutions that should be enacted.  The books reviewed here — Hard Bargains: The Coercive Power of Drug Laws in Federal Court, by Mona Lynch; Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, by John F. Pfaff; and Sentencing Fragments: Penal Reform in America, 1975–2025, by Michael Tonry — speak to these pressing questions and offer surprisingly different ideas about what needs to be done to reverse mass incarceration and improve the quality of justice produced in American courts.  In particular, and in contrast to the arguments of Lynch and Tonry, Pfaff makes the case that time served has not increased and therefore that efforts to enact comprehensive sentencing reform are misguided and would have little impact.  In my view, this provocative claim is inconsistent with the best available evidence, much of which is brought to life in Mona Lynch’s Hard Bargains.

February 8, 2018 at 11:52 AM | Permalink


The way David Duke publishes only articles adverse to Jews and to blacks, Prof. Berman only posts articles supporting decarceration. David Duke is honest about his hate. Prof. Berman is pretending to be an academic. Education is the presentation of both sides. Presenting one side is indoctrination.

Posted by: David Behar | Feb 8, 2018 2:05:51 PM

Did you miss, David, the extended reprinting of AG Sessions' speech, a few posts back, talking up sentencing increases and increased incarceration? I am pretty sure the AG was not calling for decarceration in that speech.

That said, I am always and often quick to concede that all academics (like all humans) have biases of all sorts, obvious and not so obvious, and that these biases in various ways, obvious and not so obvious, impact what we notice and make time to write about. (E.g., in part because I only speak English, I pay relatively little attention to non-US sentencing and I am unable to even real know about sentencing scholarship authored in other languages.) I am sorry if you are troubled by the biases you see in this space, though it may match the troubles that others have expressed to me about the biases they see in your comments. You are, of course, welcome to decide to no longer read/comment here if you do not like the environment; as you may know, others have told me they will like the environment more if you were no longer to read/comment here.

Posted by: Doug B | Feb 8, 2018 2:31:49 PM

So England has 1/5 the % of blacks, and 1/5 the % of people per capita imprisoned? Or to put it another way, England's incarceration rate is roughly 1/2 of North Dakota's?

Glad we're comparing apples to apples and OJs to OJs.

Posted by: The Gloved Hand | Feb 8, 2018 4:51:48 PM

Doug. Thanks for proving my point by the rarity of posts that support victims. You found one. Scroll down 100 more, find me another. Sessions is also not a good example. He does not know a lot about cannabis. He has a weak character, in not purging all the agents of the Obama administration from the DOJ and from the FBI. He recused himself from the Russia investigation, so he could relax, and let his boss take the heat. Not a good example.

For pride in craft, as an academic, with curiosity and a thirst for knowledge, you need to make the posts 50% pro-criminal, 50% pro-victim. You are the one claiming to be an academic, and not an advocate like David Duke.

Posted by: David Behar | Feb 10, 2018 11:47:08 AM

David, the fact you do not appreciate that all academics are are unavoidably advocates (especially social science academics) -- and that progressive legal academics have been saying this for more than a century -- reflects the shallowness of your perspectives and understanding of the world.

Posted by: Doug B | Feb 11, 2018 10:03:39 AM

Advocacy is indoctrination, not education. The remedy is to crush these institutions by removing all government subsidy for indoctrination. Every biased utterance should result in an IRS complaint. Legislation to defund such schools should be enacted. You are an indoctrinator making intelligent, modern students accept supernatural doctrines.

These treason indoctrination camps, such as all Ivy League universities, are receiving government funding for research and training, student loan guarantees, and tax exemptions. They are obscenely wealthy and powerful as a result of these government privileges.

The justification for these privileges is to subsidize education. Education requires the presentation of what is known about a subject. That requirement includes opposing views. Having an educated population means a wealthy and successful population. That is a good governmental purpose.

The presentation or over-representation of one side of any question is called indoctrination. That does not serve any governmental purpose.

So all governmental supports should just be stopped when Ivy League schools have a strong big government bias. Example. George W. Bush attended Harvard. Although pretending to be a conservative, he blew up the size of the Register of Federal Regulations, added a new, giant Department, blew up the deficit, and went on a nation building binge. He got indoctrinated at Harvard University.

People can begin this process of defunding by filing complaints at the Non-Profit Office of the Internal Revenue, demanding an end to the tax exempt status of each of those schools.

Here is the location of Form 13909, the Complaint Form.


Posted by: David Behar | Feb 12, 2018 7:17:53 AM

So, David, do you think US public schools should be required to present creationism as an "opposing view" to evolution (or that sun is the center of the Universe or the Earth flat)? Should public schools be required to present David Duke as an "opposing view" to MLK? Should it be required to present the "opposing view" that 9/11 was an inside job or that Prez Obama was not born in the US? Should be required to present the "virtues" of North Korea and Iran as an "opposing view" to Prez Trump? Or how about "opposing views" about education and technology as championed by the likes of Aaron Swartz and Ted Kaczynski?

It is reasonable and sensible aspiration for education to include the presentation of "opposing views," but what views are considered legitimate is itself a function of a range of social and political constructions. And that is my point --- everyone thinks their view of the world is true "education" and that opponents are seeking to indoctrinate. It is cute you have not yet figured out that you are simply making a point that sophisticated progressives have been making for centuries.

Posted by: Doug B | Feb 12, 2018 10:52:10 AM

Getting back to legal education, would your students not be enriched and be more effective at their trade if you taught them about the failure of many of the doctrines being presented for memorization and regurgitation on a a bar exam?

Take one example. Reason is the most reliable guide to moral decisions. Intellect is misled b the fall from Eden and the temptations of the flesh. The best guide to Reason is the New Testament. That book is the story of one man, Jesus. Should students not be told that is why reason/reasonable/reasonable person standard are the core of the common law, and not any of 100 possible, better, less mysterious alternatives. Were you told that at Harvard Law School? By the way, Reason is defined as the ability to perceive God.

Posted by: David Behar | Feb 12, 2018 11:30:31 AM

Doug, do you have a sentencing seminar? Do you tell students the reason for the mandatory sentencing guidelines? Do you tell them, they were followed by a 40% across the board drop in crime, and that they saved thousands of black lives by preventing their murders? Is that flat earth?

Posted by: David Behar | Feb 12, 2018 11:54:24 AM

David, I am not going to engage with all your peculiar theories and concerns, but I can tell you simply that lots of law professor spend lots of time teaching about the "failure" of many doctrines. In addition, I do teach my students that increases in crime and increased concerns about sentencing disparities prompted the passage of the Sentencing Reform Act of 1984 and many mandatory minimum statutes thereafter. I also note crime pattern after modern sentencing reforms, while also highlighting that the feds only prosecute about 10% of all felonies.

Posted by: Doug B. | Feb 12, 2018 4:18:06 PM

Very good. As a tax payer I support your candor. The fraction of federal crimes prosecuted is closer to one in a million, than to one in ten.

Getting back to flat earth doctrines, a hunter shoots another thinking him a deer. Another hunter shoots another after the other's wife paid him $10,000 to do so. Same act, same result. Different sentencing outcome based on the mental state of the defendant, rather than based on the damage to the victim, the same in both cases. The reading of minds is involved. Even the Medieval church from which this doctrine was plagiarized believed, God would judge the intent in Heaven after death. They did not believe minds could be read. You are teaching ideas, not even a Medieval church believed. Can you start to mention 1857 from the Catechism? It is brief and clear.

1857 For a sin to be mortal, three conditions must together be met: "Mortal sin is sin whose object is grave matter and which is also committed with full knowledge and deliberate consent."

A victim centric view would have strict liability for all crime. A non-denier view would do the same. You have to deny what your eyes are telling you to accept the mens rea. The guy is dead on the ground, no matter the mental state of the shooter.

If you look at the horizon, it curves. If you look at the shadow of the earth against the moon, it is round. Non-deniers saw the same as we do, 5000 years ago. Today, we send cameras in space. The earth looks like a globe.

Posted by: David Behar | Feb 13, 2018 2:16:22 AM

Concern for mens rea, David, has long been linked in law to beliefs about culpability and dangerousness. There are many modern strict liability crimes and sentencing enhancements, and I discuss these issues at length with students in all my classes.

Posted by: Doug B | Feb 13, 2018 10:52:19 AM

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