Better Question: How Do We Unjail?

I can’t speak to Dan’s research about the carceral legacy of British common law versus civil law (other than to say it seems plausible!), but I can, as an advocate for sentencing reform who works in D.C., vouch for his claim that concentrated benefits and dispersed costs are just as distortive in criminal justice policy as they are elsewhere in society, particularly since safety is one of only a handful of public goods every U.S. politician, regardless of party or ideology, feels obligated to deliver to his or her constituents. As they should, both as a matter of substance (i.e., it’s their job), and politics (i.e., it helps them keep their jobs). Americans will throw a politician out if it appears he or she has left them vulnerable to crime; they almost never throw a politician out for being overly punitive on their behalf.

Because public safety is such an important public good, the question of how mass incarceration came to be is less pressing to me (as Dan’s opening essay argues, we have many leads, but no one answer) than the more immediate question of how we can maximize the efficiency of the criminal justice system such that it delivers public safety while minimizing the cost as measured both directly in tax dollars and indirectly in the liberty of our errant neighbors.

To that end, I propose what I concede might be a very unlibertarian thought experiment: For a moment, imagine that our historically high incarceration rate – more than 700 per 100,000 – is not bad per se. After all, when we talk about the U.S. incarceration rate, it is usually in the context of our own national history and comparative politics. We say our current incarceration rate is “bad” because it is higher than it used to be, and it is doubly bad because it is higher than the incarceration rates of both the free countries of Western Europe and the oppressive regimes of China, Russia, Iran, Cuba, and Venezuela (and many others). But none of those comparisons tells us exactly what our rate should be, or whether the rates in those countries are prima facie better or worse than ours.

In this exercise, it makes more sense to approach incarceration by asking how we can incarcerate as much as we need to, but neither more nor less. I have never written this previously, but federal law actually provides a pretty good guide. Specifically, 18 U.S. Code § 3553 – the beginning of it, anyway – titled, “Factors to be considered when imposing a sentence,” says criminal sentences should serve the following goals:

reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

afford adequate deterrence to criminal conduct;

protect the public from further crimes of the defendant; and

provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

History suggests it’s unlikely that Congress has given us the perfect framework here. In fact, these four ideas actually date back to the Enlightenment, when philosophers like Cesare Beccaria proposed that criminal punishment serve a purpose beyond terrifying the poor into perpetual obedience.

So, while Congress has adopted a centuries-old framework by which we can determine “good” sentencing practices, our current habits and policies defy all four of these goals. For instance: a sentence of life without parole for drug “trafficking” – often a dysphemism for distribution of illegal drugs above an arbitrary weight threshold – is too often far more severe than the crime warrants; it does not deter drug trafficking; it protects no one if the offender was nonviolent (under all but the most preposterous theories of what constitutes a “violent crime”); and it provides no incentive for either a correctional facility to rehabilitate an offender or for the offender to seek rehabilitation.

What we know, then, is one simple, undeniable truth: incarceration often fails to serve any of the traditional purposes of criminal sentencing, and those purposes can often be me met by sanctions other than prison. The recognition of that fact alone should be sufficient for policymakers and the general public to question our reflexive reliance on incarceration as the country’s dominant method of punishment and crime control.

If only it were that simple.

The major challenge to ending unnecessary incarceration is not proving to legislators that “mass incarceration” is inherently bad (legislators who oppose reform claim confidently, and not unreasonably, that people who obey the law deserve to be safe more than people who break the law deserve to be free). Nor is the major challenge proving to policymakers that our prison population is too large (a claim that makes sense only in comparison to the historical record and the experiences of other countries, but doesn’t – and can’t – tell us how large our incarcerated population should be). The major challenge is demonstrating to legislators what decades of evidence shows conclusively: that safety and justice are not at odds, but are complementary to one another.

D’Amico’s essay – and his larger research program – offer valuable insight into how we got here. And that matters, both theoretically and for practical purposes. But for the 2 million people in America’s jails and prisons, and their family members, figuring out how to get where we need to be is far more valuable information.

Also from This Issue

Lead Essay

  • Why Nations Jail by Daniel D'Amico

    Daniel D’Amico begins his look at American mass incarceration by placing it in international context: Yes, we all know that we are a nation of jailers. But what have other countries been doing differently? Or the same? He notes that in recent years many other countries have dramatically increased their incarceration rates and incarcerated populations as well. He examines several proposed causes for our high incarceration rate, including racism, our free-market economic system, and our War on Drugs. He finds the latter the most persuasive of the frequently mentioned culprits. But then he proposes a new theory: Mass incarceration is particularly bad here - and in certain other countries - because of the public choice effects inherent in common law systems.

Response Essays

  • 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