« South Carolina Supreme Court engages in notable debate over how it engages in capital proportionality review | Main | Rounding up some new commentary prompted by a new Justice Jackson »

April 8, 2022

A new normal?: federal prison population now growing by over 1000 persons for multiple months

In this post on March 18, I noted that the federal prison population had grown by over 1100 persons in just four weeks from mid February and mid March.  Specifically, "Total Federal Inmates," on March 17, 2022 stood at 154,194, nearly 1150 more prisoners than the total number of federal inmates on February 17, 2022, when the number stood at of 153,053.  It is now early April, and checking in at the federal Bureau of Prisons updated reporting of "Total Federal Inmates," one now sees that it has only taken three weeks for another 1000+ person surge of federal prisoners.  As of April 7, 2022, the official BOP count reads at 155,274, and so another 1080 more federal prisoners have been added to the population compared to the total on March 17.

As I have said before, I am inclined to guess that this recent spike in the number of federal prisoners reflects some "return to normal" operations for the federal criminal justice system, with fewer COVID-related delays in cases and prison admissions (and fewer COVID-related releases).  But, whatever the particulars, if this level of month-over-month growth in the federal prison population were to continue through much of the current year, 2022 could end up becoming a year for historically high increases in the federal prison population.  Such a development (especially after 2021 being a year of notable federal prison population growth) would be particularly significant given that candidate Joe Biden promised to "take bold action to reduce our prison population" and to "broadly use his clemency power for certain non-violent and drug crimes." 

April 8, 2022 at 09:11 AM | Permalink

Comments

Doug --

Where you had an artificial and temporary depression of a function (in this instance, the operation and consequences of the criminal justice system during the height of COVID), and the emergency then abates, you're then going to have an artificial and temporary rebound in that function. That tells us very little about long-term trends.

Also, whether the prison population is going up or down is not exclusively a function of policy. It is (and should be) a function of how much serious crime is happening. In other words, how much incarceration we have is not merely a function of how much we want in an ideal world. It's a function of how much is forced on us by criminal behavior in the actual world, which is less than ideal.

Posted by: Bill Otis | Apr 8, 2022 9:24:57 AM

@Bill Otis: Is it also not a function of policy? Congress frequently invents new crimes and federalizes existing ones that were previously local. Less often (but sometimes) it de-criminalizes or reduces penalties.

Posted by: Marc Shepherd | Apr 8, 2022 10:29:20 AM

Marc Shepherd --

"Is it also not a function of policy?"

Yes, certainly over the long term. Less so over the short term. My comment was intended only to make the point that Doug need not worry about the present increase in the prison population because, with prison as with much of the rest of government and commercial functions, we're just making up now for what got delayed over the last two years.

If a point be made of it, though, I don't much worry about changes in the prison population, as I am of the view (1) the individual holds to key to staying out of prison by simply behaving in the normal, honest way our parents taught us when we were kids, and (2) in any event, the measure of the success of the criminal justice system is not the incarceration rate but the crime rate.

Posted by: Bill Otis | Apr 8, 2022 12:52:23 PM

Well, it's interesting. If the prison population is a function of the amount of criminal behavior, there was a great decrease in crime during the Trump administration.

During the 4 years of the Trump administration, the prison population decreased by 36,608. I cannot find the data I had, but during the 3 weeks of Jan. 2021 there was a dramatic decrease that took the bop population down to around 152,000. That is not a precise number. That decrease would be in addition to the 36,608 decrease.

During the first 5 years of the Obama administration the bop population increased by 17,975 and reached it's all time high in 2013 of 219,298. The population rose by 22,779. At the end of his term the population stood at 192,170, a decrease of 16,589 during his 8 year term.

Since 2014, the prison population has decreased every year, the largest decrease was in the last year of the Trump administration with a decrease of 21,652. 2021 was the first year the bop population had increased since 2014. That indicates that the increase is not necessarily related to back to normal after covid since there has not been a year since 2014 when there wasn't a significant decrease.

Posted by: beth curtis | Apr 8, 2022 2:04:14 PM

Beth --

There is always a lag time between the commission of a crime and the time (if ever) the criminal goes to prison. I don't know what that lag time is; I imagine it varies a good deal depending on the type of crime, the resources of law enforcement, and the scheduling and culture of the courts in the jurisdiction where the crime occurred.

But be that as it may, I remain of the view -- unrefuted so far as I know -- that the prison population would shrink dramatically without any change in policy or law if individuals would quit stealing stuff, deal honestly with others, and abjure violence. That would not make the prison population zero, but it would put a huge dent in it.

The reason I say this is to make the point that how much incarceration we have depends in part, yes, on some policy considerations, but depends mostly on whether people undertake or refrain from undertaking what any normal person would understand to be criminal behavior.

Posted by: Bill Otis | Apr 8, 2022 3:06:04 PM

Your point is well taken Bill. Prisons are full of people who earned their spot.

I think that the reason the US has such a large % of their population in prison compared to other civilized countries is not because US citizens are more violent and more prone to prey on their fellow man. It has to depend, to some extent, on what we prosecute and the length of sentences we impose.

Our criminal code is complex and obtuse. This allows for enormous discrepancies in enforcement and prosecution decisions. It is not a bright red line. Our prison population is aging which speaks to the length of sentences we impose.

Anyway, I don't disagree that there are predators who should not ever be your next door neighbor.

Posted by: beth curtis | Apr 8, 2022 4:36:32 PM

Hi Bill -
One question - you say that the way to stay out of prison is to "behave in the normal, honest way our parents taught us when we were kids". I believe that most of the prison population did not have parents who teach them that - what would you do with them (as well as other at risk teenagers who might end up in prison one day). You make it sound like staying out of prison is easy - I believe we must have empathy for those who either are in prison or at risk of ending up there as "even the wicked get worse than what they deserve". Thank you for reading.

Brett Miler

Posted by: Brett Miler | Apr 8, 2022 7:40:28 PM

Bill Otis wrote: "the measure of the success of the criminal justice system is not the incarceration rate but the crime rate".

I believe that an equal (and possibly more accurate) measure of success is the rate of recidivism. It is not, exclusively, the fluctuations in the numbers of criminals currently incarcerated, or how much time a criminal spends in prison, nor even the number of wrongdoers arrested in a given time period.

I believe it foolish to think that we as a society will modify criminal behavior exclusively through an increase in the punishment and warehousing of wrongdoers.

Failure is almost guaranteed when we focus exclusively upon "incapacitation, deterrence and punishment" while largely ignoring the remaining component - "rehabilitation".

When ALL components, including effective rehabilitation, are applied symmetrically, I believe that there will be an increase in successful outcomes, and a reduction in crime rates/prison populations.

Once released from custody, and confronted with their bleak futures, the now ex-felon remains largely unmotivated to change. Many then seek relief from their painful existence through substance abuse and further criminality, which is pretty much all they know how to do. We are then puzzled why they re-offend. After all, didn't they learn the lessons which we, in our infinite wisdom, taught them?? It can't possibly be that our lessons are imperfect, ineffective, incomplete, misguided and for some, actually have increased their proclivity to offend.

While we seek ideal common-sense policies necessary to rightfully keep our society safe and to incapacitate those who do our society harm, we largely ignore this rehabilitation component. The present-day prison rehabilitation efforts, with rare exception, is at best laughable. I can't say enough as to how lacking and ineffective these programs are, such as federal Residential Drug Abuse Programs - RDAP.

Why those who champion "get tough on crime" and "self-accountability" sit so quietly on the sidelines when it comes to preventive measures and effective rehabilitation of those they so effectively "deter, incapacitate and punish" (they got those parts down to a science) is somewhat of a mystery. "It's not my area" is not a very persuasive defense. We can all do better.

Posted by: Drug Cnslr | Apr 8, 2022 10:04:10 PM

Beth --

"I don't disagree that there are predators who should not ever be your next door neighbor."

Ha! I see you've been talking with my neighbors. Although they fret less about predation than about my rowdy outdoor barbeques.

Posted by: Bill Otis | Apr 9, 2022 12:34:07 PM

Brett Miller --

Society gives us 18 years to become more-or-less civilized. For the great majority, that's enough. Lots and lots of people know to be well behaved and honest by the time they're 12 if not before.

It's true that some people don't get the right parenting, and thus are at a disadvantage. This is one reason I favor traditional, married, two-parent, well-disciplined homes, which the data overwhelmingly show produce better socialized (and healthier and better educated) kids than these trendy "alternative lifestyles," i.e., the boyfriend of the week and drugs everywhere.

For kids who don't have the right parenting, there is often a grandparent, an aunt or uncle, a coach or a teacher who can at least partly fill in (for Clarence Thomas, it was his grandfather, see his memoir, "My Grandfather's Son"). Still, you have a point that these will not have the same start in life that most have. And that's where we get to tradeoff's (which is where we always get sooner or later). I think the best tradeoff is that society continues to expect people to behave according to law after you're 18, and impose at least some sort of penalty if you don't (that's how people learn). At the same time, I support prison reform (as opposed to "sentencing reform"), under which prison conditions would improve and rehab programs would become more numerous and better.

Still with all that said, the success of rehab is going to depend at least as much on the prisoner's genuine desire to change than it is on the programs offered. You can lead a horse to water.....................

Posted by: Bill Otis | Apr 9, 2022 12:49:54 PM

Bill wrote: "There is always a lag time between the commission of a crime and the time (if ever) the criminal goes to prison."

On top of that, most legislation is reactive. Congress decided that "we have to do something" about drugs, so it criminalized behavior that was formerly legal. Much of the question debated here is whether Congress properly reacted or over-reacted.

Bill says that "the prison population would shrink dramatically without any change in policy or law if individuals would quit stealing stuff, deal honestly with others, and abjure violence." Many Federal drug crimes do not involve any of those three things.

Posted by: Marc Shepherd | Apr 10, 2022 8:22:07 AM

Marc Shepherd --

Slightly less than a third of federal prosecutions are for drugs, meaning that more than two thirds of them aren't. About 90% of federal drug prosecutions are for trafficking, not simple possession. And of course the states together do many, many more prosecutions than the feds, and have a more nearly "traditional" share of the typical stuff, to wit, rape, robbery, larceny, scams, breakins, auto theft, etc. So my statement remains fully correct: the prison population would shrink dramatically without any change in policy or law if individuals would quit stealing stuff, deal honestly with others, and abjure violence.

The point behind the statement also remains correct: The main problem we have with incarceration is not public policy but the criminal behavior (mostly stealing in one form or another) that provokes a response from the law, as it should.

Posted by: Bill Otis | Apr 10, 2022 2:46:48 PM

Bill, I do not think you have addressed the fact that from 1991 to 2014, the FBI data showed a massive drop in index crimes in the US (total and violent crime rates both dropping roughly in half) and yet the national and federal prison population/rates expanded dramatically (both roughly doubling). Can you provide any reason to be truly confident, given that recent history, that "the prison population would shrink dramatically" from a decrease in crime without changes in policy?

Of course, very, very few of the crimes most prosecuted by the feds --- drugs, immigration, fraud, firearms --- are captured in the FBI crime data. (And the federal prison population is the focal point of this post.) It is quite clear that policy choices by the feds about just who and how to prosecute for these ubiquitous federal crimes matters a lot more than the baseline crime rate. Most obvious here is marijuana policy: there are obviously many more clear marijuana offenses in the multi-billion dollar marijuana industry today than ten years ago, but federal prosecution of marijuana offenses has dropped 80% over the last decade: See How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3965571

Posted by: Doug B. | Apr 11, 2022 9:20:50 AM

Doug --

Just very quickly for now: Do you really think that if criminally-inclined folks would think again and stop stealing (and swindling and scamming and committing other types of property crime, which dwarfs all other types) the incarceration rate would NOT plummet?

I seriously doubt you think that, but, since I don't like to have my positions presumed or stated for me, I'll let you speak for yourself.

Posted by: Bill Otis | Apr 11, 2022 11:24:10 AM

Bill, according to the latest prison data, only about 15% of state prison populations and only about 5% of the federal prison population involves property offenders. So even if there was no more property crime at all, we'd only reduce the current US prison population by about 1/8 (and that would likely take a many years, since some of the current property offenders may be in on lengthy recidivism terms).

Ending drug and public order imprisonments could have twice as much impact --- they account for about 30% of US prison populations --- though that is much more likely to happen through policy change than through behavioral change (since probably much less than 10% of all drug/public order offender are subject to prosecution/incarceration). If/when SCOTUS makes gun possession in public a constitutional right, there could be a notable ripple through some of the public order offenders, though I doubt many will get out as there seems to be a non-textual Second Amendment exception for some unclear array of disfavored Americans.

I do agree that if there was no serious crime in the US, there would likely be very little imprisonment. But because we tend to treat more and more stuff as serious in the US (and have all sort of very long sentences being served), I think policy changes have more opportunity to change modern prison realities. Look at federal system --- from 2013 to 2020, we went from roughly 220,000 federal prisoners down to 150,000. I do not think federal offending changed much over that span; indeed, I would speculate that drug, firearm, immigration and fraud offending all went up in that period. But various policies changes during Obama and Trump years lowered the federal prison population by nearly 1/3.

Posted by: Doug B. | Apr 11, 2022 12:34:27 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB