Why Nations Jail

Economist Deirdre McCloskey calls the massive increase of living standards that began 200 years ago “the Great Fact.”[1] When looking at the hockey stick–shaped graph of world GDP over time, its importance is obvious. Today’s material wealth is so much greater than the past’s, and it arrived so quickly, that it must play a central role in any theory of social change.

The U.S. imprisonment trend also looks like a hockey stick. Stable and modest growth occurred throughout the early twentieth century. Then in the 1970s, the line shot up, quintupling by the 2000s. Aside from dampening economic optimism, this trend evokes a similar visceral reaction to McCloskey’s. The change in U.S. inmate population has been so big and its accumulation so fast that it can’t be ignored.

David Garland coined the phrase “mass imprisonment” because he thought the phenomenon deserved a name all its own. Like Europe’s “great confinement” of the 17th century or Russia’s “gulag archipelago,” modern America’s mass incarceration appears unique via two defining features, its sheer size and its racially disparate application.[2] The term has become standard parlance, and such “American” features take center stage in most causal explanations. Popular accounts tend to focus on economic conditions; America’s individualist culture; its history of slavery, segregation, and racism; and conservative political preferences regarding prohibition and retribution. To fix incarceration, it’s implied that America must change its conscience and support controls against racial bias, better social programs for the poor, drug decriminalization, and less punitive policing.

Culture, racism, and the drug war obviously matter. But I’d like to challenge some of these presumed causes by simply asking how much they fully explain global patterns, and how much their implied reforms would substantially reshape the trends. I argue that popular narratives have largely overlooked some factors that substantially contribute to prison growth.

In economic theory, the “Great Fact” has received an appropriately international analysis.  Yet I worry that prison discourse is too focused on the United States, when in fact incarceration transcends the American experience. Most countries have experienced growth. Ecuador, Indonesia, Cambodia, Israel, Serbia, and Georgia don’t share much economic, partisan, or cultural American-ness, yet all doubled their prison populations in a decade, while Britain took three.[3] An analysis solely of U.S. idiosyncrasies can’t explain global or historic patterns. Academic research has developed empirical evidence and nuanced theories for why some nations imprison more than others, but media commentaries lag behind, and their oversimplifications carry practical consequences.

Is American-style capitalism, with its supposed inequality and market volatility, partially to blame for large inmate populations? Maybe somewhat. Economic factors like unemployment, welfare spending, and union power correlate with cross-country imprisonment rates,[4] but causation cannot be discerned. Many studies have investigated this popular view with ambiguous results.[5] In short, no data confirms a consistent relationship between more liberal market economies – or higher economic performance – and larger prison populations. In fact, more economically free countries host less homicide and yet have better crime reporting.[6]

Is racism the primary driver of American mass imprisonment? While U.S. history is undoubtedly plagued by the legacy of slavery, and significant bias still infects our system, these experiences don’t much explain why other nations host similarly disparate prison populations. Or, sometimes, worse. From the peasant classes of ancient Greece,[7] to Romani inmates in today’s Czech Republic, or to Turkish prisoners in Germany, in each context one finds a greater proportion of the socially disadvantaged than is found in their general society. In fact, in England, Canada, and Australia, the minority to white inmate ratios all outpace the United States.[8]

The advent of American mass incarceration also occurred alongside measurable racial progress. The relationship between race and imprisonment is not clearly causal from the former to the latter. The facts suggest more about the racial effects of imprisonment than they do how race drives growth in the prison population.

Is America’s vengeful culture responsible? Again maybe partially, but such features don’t explain why so many other nations have multiplied their prisons without similarly rugged individualists supporting Nixon- or Reagan-ite tough on crime policies. While measured U.S. opinions do seem more punitive than in the past,[9] less is known for cross-country comparisons. Most experimental evidence suggests vengeful preferences are common across identities,[10] and economist Naci Mocan reports the opposite cultural relationship, with poor, war-torn, and collectivist countries hosting more vengeance.[11]

The shared timing of American incarceration with drug prohibition seems too tightly linked to be coincidence. But prohibition is not a sufficient explanation for U.S. rates, let alone for global patterns. Here’s why.

First, when the inmates of asylums are included in imprisonment statistics, the trend line less conspicuously resembles a hockey stick.[12] Second, drug violations only make up about 17% of state inmates and represent about 20% of the growth since 1980, with current admission rates matching.[13] Without drug convictions, American incarcerations would have quadrupled rather than quintupled. Perhaps this underestimates the criminogenic effects of prohibition, but multiplicative growth seems to stand apart from drugs.

And again, if uniquely American factors cause mass incarceration, then why is there a global pattern?[14] The majority of popular explanations merely push the question back a stage. If American-style trends are to serve as general explanations for global imprisonment patterns, then other countries should share similar policy and cultural histories in proportion to their incarceration rates relative to the United States. What about the United States and other prison growth nations allowed for these phenomena to occur in the first place?

The common narratives are not wrong per se, but likely incomplete. Current research emphasizes a general relationship between social institutions and incarceration. Nations with similar political, economic, and cultural systems tend to host similar criminal justice procedures and similar prison populations.[15] Remaining debates largely surround how best to organize nations into institutional categories that make sense of the incarceration pattern. In short, what particular institutional types shape incarceration and how? Most tend to emphasize that social changes such as employment cycles, public opinions, or partisan trends shape class and racial tensions. Less appreciated is how the organizational patterns of institutions may relate to incarceration outcomes regardless of the particular interests or motivations of voters or policymakers.

One can understand this missing factor of organizational influence by thinking comparatively about American drug prohibition. Legalized narcotics are extremely rare. You can’t walk down the streets of Germany, Sweden, or England and sell heroin without getting arrested. Most countries prohibit drugs, but only America launches an ominously but fittingly titled “war on drugs.” It is not so much that we prohibit drugs, but rather how we finance and manage that prohibition, which sets us apart. I believe that America’s drug war, American criminal justice services more generally in recent decades, and those criminal justice systems that have behaved similarly, are all united by how much more power they afford to the national as opposed to local levels in criminal justice decisionmaking. And the result is mass incarceration.

Theory shows that more hierarchical organizations commit more errors of overidentification.[16] Increases in criminal legislation, arrest rates, convictions, and sentence lengths would all seem to be relevant manifestations. Similarly, many public choice scholars have noticed that by concentrating perceived deterrent benefits while dispersing costs, democratic politics rewards the expansive spending, employment, and voter appeasement accomplished through criminalization and prison growth.

Cross-country empirics also support the idea that organizational factors are at play. Nicola Lacey[17] has observed the organization of electoral processes correlate with incarceration rates. Nations with winner-take-all elections host greater political incentives to appease punitive biases. They also have more difficulty coordinating voting blocks for reform. In contrast, plurality systems foster more inclusion of minority interests.

Similarly, my recent paper coauthored with Claudia Williamson shows nations founded in the British common law tradition rather than civil law host larger incarceration rates. While the common law is typically more decentralized, we suspect criminal justice systems were historically founded and subsequently organized more hierarchically relative to other common law social sectors.[18] Furthermore this concentration of national power was exaggerated in the twentieth century.[19]

Just as market economies require decentralized networks of individual actors for technological innovation to occur, so too do legal norms and public policies likely benefit from competitive-like arrangements. When criminal justice authority is held at the local level, as is more common around the world and throughout history, authorities are better attuned to the local demands and concerns of citizens. Yet in our system, the typical response to perceived local biases in criminal justice is to further empower federal oversight. 

When local police forces multiply rapidly and are equipped with military style technologies thanks to federal financing, there are often unintended consequences. Though motivated by concerns for the disadvantaged, there is no practical guarantee that national power won’t also have structural biases. Yes, local cops, judges, and juries can be racist, but coping with better-funded riot police and swat teams is nonetheless a burden on poor minorities. From Ferguson to Baltimore we seem to be stuck with the worst of both worlds: racially biased local cops and a militarized national response.

Further, changes in social morality, public opinion, or traditional policy initiatives do little to reform the organizational patterns of institutions. Politics doesn’t typically aim at, nor is it capable of, fundamentally reshaping the political or legal process.

That’s a problem, because measured correlations between organizational factors and prison populations seem big. In our study, we initially merely sought to give descriptive magnitudes for relevant variables associated with incarceration.  A standard deviation decrease in an obvious factor like homicides (about 12.5 per 100,000 citizens) was associated with approximately 48 fewer inmates per 100,000 citizens, whereas French civil law countries hosted approximately 76 fewer inmates per 100,000 citizens than common law nations. The organizational features of institutions don’t just matter, they seem to matter a lot.

Second, institutional organization shapes incentives and thus may serve a more foundational role than standard causes. Suppose mass imprisonment occurred not because Americans were so morally outraged about drug use or fearfully retributivist regarding violence, but rather because policymakers and citizens were structurally encouraged to embrace legislation, enforcement, and spending. Legalizing particular drugs won’t change this general incentive structure; it will only divert it. With similar incentives in place, future increased crime rates or headline cases could reignite the imprisonment cycle, albeit under some other form of crime.

Policies that ignore structural influences may thus fall short. Worse, by expending real resources or by enhancing national authority they may add insult to injury. More accurate theories of incarceration may be needed to produce more effective reforms.

 

Notes


[1] D. McCloskey 2011. Bourgeois Dignity: Why Economics Can’t Explain the Modern World. Chicago: University of Chicago Press.

[2] D. Garland (ed) 2001. Mass Imprisonment: Social Causes and Consequences. London: Sage Publications.

[3] R. Walmsley 2010. “Trends in World Prison Population,” in Harrendorf, Heiskanen, Malby (eds) International Statistics on Crime and Justice. Washington, DC: United Nations Office on Drugs and Crime, notes prison growth in 68% of 144 nations from 1997-2007.

[4] T. Chiricos, M. Delone 1992. “Labor Surplus and Punishment: A Review and Assessment of Theory and Evidence,” Social Problems 39, 421-46; B. Western, K. Beckett 1999. “How Unregulated is the U.S. Labor Market? The Penal System as a Labor Market Institution,” American Journal of Sociology 104, 1030-60.

[5] J. Neapolitan 2001. “An Examination of Cross-National Variation in Punitiveness,” International Journal of Offender Therapy and Comparative Criminology. 45: 691-710, finds “[l]ittle to no support… for civilization theory, inequality, or unemployment variables.” J. Sutton 2004. “The Political Economy of Imprisonment in Affluent Western Democracies, 1960-1990,” American Sociological Review 69, 170-189, finds high labor force participation positively and significantly impacts incarceration rates.

[6] E. Stringham, J. Levendis 2010. “Chapter 6: The Relationship between Economic Freedom and Homicide,” in Gwartny, Hall, Lawson (eds) Economic Freedom of the World: Annual Report. Vancouver: Fraser Institute; R. Soares 2004. “Crime Reporting as a Measure of Institutional Development,” Economic Development and Cultural Change 52: 851-71.

[7] D. Allen 1999. The World of Prometheus: The Politics of Punishing in Democratic Athens. Princeton: Princeton University Press; D. D’Amico 2010. “The Prison in Economics: Private and Public Incarceration in Ancient Greece,” Public Choice. 145(3-4): 461-82.

[8] M. Tonry 1994. “Racial Disproportion in U.S. Prisons,” British Journal of Criminology. 34(5): 97-115; M. Mauer 2003. “Comparative International Rates of Incarceration: An Examination of Causes and Trends: Presented to the US Commission on Civil Rights,” Washington, DC: Sentencing Project.

[9] P. Enns 2014. “The Public’s Increasing Punitiveness and Its Influence on Mass Incarceration in the United States,” American Journal of Political Science. 58(4): 857-72.

[10] D. Houser, E. Xiao, K. McCabe, V. Smith 2008. “When Punishment Fails: Research on Sanctions, Intentions and Non-Cooperation,” Games and Economic Behavior. 62(2): 509-32; F. Guala 2012. “Reciprocity: Weak or Strong? What Punishment Experiments Do and Do Not Demonstrate,” Behavioral and Brain Sciences. 35(1): 1-15.

[11] N. Mocan 2013. “Vengeance,” Review of Economics and Statistics. 95(3): 969-82.

[12] B. Harcourt 2011. “An Institutionalization Effect: The Impact of Mental Hospitalization and Imprisonment on Homicide in the United States, 1934-2001,” Journal of Legal Studies. 40(1): 39-83.

[13] J. Pfaff 2015. “The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options,” Harvard Journal on Legislation. 52: 173-220.

[14] When statistical techniques are used the U.S. is not detected as an outlier. D. D’Amico, C. Williamson 2014. “Do Legal Origins Affect Cross-Country Incarceration Rates?” Journal of Comparative Economics, forthcoming. 

[15] M. Cavadino, J. Dignan 2006. Penal Systems: A Comparative Approach. Los Angeles: Sage.

[16] R. Sah, J. Stiglitz, (1986). “The Architecture of Economic Systems: Hierarchies and Polyarchies,” The American Economic Review. 76(4): 716-27.

[17] N. Lacey 2008. The Prisoners’ Dilemma: Political Economy and Punishment in Contemporary Democracies. Cambridge: Cambridge University Press.

[18] H. Berman 1983. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge: Harvard University Press.

[19] W. Stuntz 2011. The Collapse of American Criminal Justice. Cambridge: Harvard University Press.

Also from This Issue

Response Essays

  • Better Question: How Do We Unjail? by Mike Riggs

    Mike Riggs agrees that concentrated benefits and dispersed costs tend to operate in criminal justice policy just as they do in many other areas of society, and that our criminal justice policy is much the worse for it. Politicians receive the benefits of the system, in that it pays to look tough on crime. The accused receive the costs, and it is difficult for them, as a diffuse and distrusted minority, to organize action to correct matters. But what, he asks, is the proper level of incarceration? The purpose of our penal institutions is not to “terrify the poor into perpetual obedience.” It is to impart respect for the law, to deter crime, and to reintegrate former offenders into society in ways that will ensure they do not offend again. Our current system is manifestly a failure at these tasks, and Riggs recommends that we turn to penalties other than prison for a significant number of crimes that are now met with prison terms.

  • Laboratories of Incarceration by Adam Gelb

    Some states imprison vastly more than others, and it has nothing to do with their crime rates. In some, driving with a suspended license is a leading cause of prison time; in others, it is no cause for prison at all. Mandatory sentences, opportunities for early release, and how states treat administrative violations by former offenders all greatly influence various states’ prison populations. In a textbook example of public choice theory, the state government often pays for the prison system, while the local government pays for community supervision. As a result, local governments send former offenders back to prison as a way of saving money - at least in their own local budgets. Analyzing problems such as these at the state level can tell us much more about mass incarceration than international comparisons.

  • Great facts and new facts: The end of U.S. mass imprisonment? by Susanne Karstedt

    Susanne Karstedt looks at the relationship between wealth and imprisonment. Is it really the case that neoliberal nations prefer to warehouse their poor in jails? She finds that the evidence supporting this claim is weak. Yet budget constraints seem to reduce incarceration rates, and she says it’s no coincidence that mass imprisonment seems to have peaked and come to a halt in 2009. Ideologies can change, she argues, and conservatives - who once led the charge to get tough on crime - are now at the forefront of rethinking our overgrown prison system. Nations can change as well, she argues, and she cites Germany as a particularly good example of humane and effective imprisonment.

The Conversation