The Many Factors Leading to Mass Incarceration

I first want to thank the other contributors for replying to my essay. I’ve now had the time to read each response and learned much in the process. I merely offer some brief comments regarding each in turn below.

Mike Riggs agrees with my observation that the criminal justice system, like many other forms of bureaucracy, has the tendency to concentrate benefits and disperse costs. Thus punitive outcomes are often unhinged from their practical intentions. The criminal justice system instead can foster waste, domination by private interests, rent-seeking, corruption, and the like. Mike proceeds to note correctly that such does not prove the U.S. system is excessive relative to other nations, or that other national levels are preferable to our own. I agree.

This context dependency is one of the major implications of my previous study co-authored with Claudia Williamson. Different nations with different institutional patterns face different costs and benefits to punishment via imprisonment. The strategies for social control that prove effective in one environment may not work for another. If other nations rely upon forms of social control other than prisons, it does not necessarily follow that the United States can efficiently reduce its prison population by simply substituting for these other social controls. Other social controls carry costs, and how those costs will manifest in the U.S. experience is uncertain.

First, common law countries have far fewer bureaucracies dedicated to providing social welfare services like housing, health care, and employment assistance relative to civil law nations. Insofar as it is these types of infrastructural bureaucracies that are leveraged as social controls, it is not known how much investments in similar bureaucratic structures will cost in the American context.

Substituting away from incarceration within a common law environment may require large upfront costs to instigate and establish comparable bureaucracies to provide social monitoring and enforcement in lieu of imprisonment. In addition to the direct costs of financing new bureaucratic infrastructures, such institutional forms can be argued to correlate with weaker economic performance and a greater potential for corruption, especially when implemented in nontraditional contexts like the demographically and economically diverse population of the American citizenry.

In other words, without denying the potential for failures from the current American prison system, some enduring legacy of larger incarceration rates may be inevitable or dare one say socially optimal for the United States or other common law countries relative to civil law counterparts.

Sadly we know a lot more about what does not sufficiently explain incarceration patterns than we know for certain about what does. We have good theory to suggest that some amount of greater levels are to be expected in common relative to civil law countries, but we don’t know precisely how much more imprisonment is necessarily warranted from these organizational differences. We lack objective criteria for discerning inefficiently excessive rates from an innocuously stable equilibrium from currently observed cross-national patterns.

Mike writes pointedly, “[w]hat 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 met by sanctions other than prison.” Again, unfortunately, we know less about what the relevant costs of implementing “other sanctions” in the United States entail and how they would compare to the status quo. We also don’t know what purposes or functions incarceration may be currently servicing apart from those explicitly declared in the rationale of legislation. I agree that asking “how do we unjail?” is perhaps better and more challenging than “why do nations jail?” but the former inquiry is largely unknowable without the latter.

In my opening essay, I referred to Nicolai Lacey’s focus on voting systems along with my own research with Claudia Williamson on legal origins, both as examples of institutional theories highlighting the importance of organizational structures. Basic organizational theory suggests hierarchically structured systems tend to suffer more errors of overidentification than decentralized systems.


I suggest that some degree of the cross-country variation of incarceration rates can be understood in this light. Despite Adam Gelb’s correct observation that, “[e]ach state has its own criminal code that controls how offenders are sentenced and its own budget that determines the availability of alternatives to incarceration,” it seems that substantial changes in the balance of criminal justice decisionmaking between the federal and local levels can help explain a substantial facet of these global trends. In other words, even though the American system has historically been and remains today organized according to some significant degree of decentralized decisionmaking, the modern surge of mass imprisonment and a variety of other identified failures in the criminal justice system can be linked to these organizational patterns becoming on the margins less localized and more governed and shaped by federal level authority.

My suggestion would be to focus more upon the relative changes in institutional organization that have occurred in the American criminal justice system, rather than to focus upon its organizational pattern in absolute terms. I admit there is no clear or objective ability to identify what degree of decentralization is optimal for the American system. But it still seems reasonable and accurate to notice that the role of the federal government in criminal justice decisionmaking radically expanded in the twentieth century and thus displaced a significant level of local autonomy. In general, I think popular narratives placing primary blame upon Republican-dominated tough on crime campaigns should be substantially broadened to recognize that many of the seeds of today’s mass incarceration were in fact sown much earlier amidst the progressive era and the New Deal. Small townships previously independent from federal legislation or financing were newly equipped with more formally managed and financed resources than previously.

By the time the war on drugs was launched in the 1970s most states and local townships had ceded significant authority to the federal legislature and increased their dependence upon federal financing. Complying with federal policies was that much more a political and social inevitability. At the global level, nations similarly walking away from locally autonomous criminal justice sectors in favor of more nationally managed controls seem to share proportionate placements within the imprisonment spectrum.

Yes, the U.S. national prison population rate cannot be understood without some due attention to the amalgamation of different state incarceration processes that comprised it. But it is also reasonable and true to notice that a substantial majority of the states began to incarcerate similarly as their relevant decisions were more heavily shaped by federal incentives.

Case in point, much of the national trend is driven by states like California, Texas, Louisiana, and Florida. All of which as border states have a challenging time dealing with key national immigration and prohibition policies. Louisiana in particular as founded by the French civil tradition at first seems at odds with my general focus on legal origins, but it need not be perceived as such. Louisiana is further demonstration that effective reforms are not as simple as just benchmarking civil law tactics. Civil law strategies likely operate differently when placed in non-civil law contexts.

In a way, Louisiana is a tragically archetypal case taking the worst facets of both legal origin traditions. Despite rising to one of the nations most prosperous early states, thanks to key geographic location for trade and shipping, the civil law legacies of formal legal codes in the financial sector weakened Louisiana’s economic performance over time. The civil law legacy meant low wealth and job prospects and an oftentimes corrupt political system and infrastructural oversight. Louisiana citizens face an environment of failing public schools, high crime, and real monetary incentives for illegal participation in the drug trade. Coupled with the bias toward punitive severity fostered by the national common law, it is not surprising that if Louisiana were its own nation it would lead the world in imprisonment.

Last, I was fascinated by some of the references noted in Susanne Karstedt’s essay. In particular, she mentions Elizabeth Brown’s work finding a correlation between Republican representation and modern reform success. This is something I think various facets of the literature have alluded to without popular recognition for sometime. Thus I’m glad to see it mentioned here. Mainly, while the political left should be applauded for rightly expressing concerns over the conspicuously unequal effects of mass imprisonment, the right may require due recognition for having the more viable strategies of reform. In short, the United States imprisons so much because it can, and curtailing this national trend may require real limits upon how much or on what federal and local authorities are permitted to spend money on.

Though still, I’m hesitant to share Susanne’s optimistic belief that mass incarceration is en route to being an artifact of history. First, her prediction was shared by the majority of researchers and commentators in the 1970s, ironically preceding incarceration’s largest and fastest growth. What makes their forecasts so wrong then but more feasible today?

Susanne rightly notices 2009 and the financial crises had a halting effect on prison growth and such is consistent with the research suggesting the greatest reform potentials stem from fiscal limitations. States across the nation, with low to empty budgets and growing public attention to the failures of the drug war and police misconduct are less approving of spending on criminal justice than in the past. But as much of the behavioral science surrounding these trends suggest, such punitivity is at least a common feature of the human condition. While both political parties seem to be embracing at least the rhetoric of criminal justice reform, it remains to be seen how the political process will insulate itself in the long run from repeating the sorts of punitive escalation that led us here in the first place.

Also from this issue

Lead Essay

  • 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

  • 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.

  • 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.

  • 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.