July 2020

We all know that the United States imprisons many more people per capita than otherfree countries. But why? Progressives, conservatives, and libertarians all have their favored theories, but this month’s lead authors, Chris W. Surprenant and Jason Brennan, argue that none of them captures the whole story. Here to discuss with them this month are Clark Neily, the Cato Institute’s Vice President for Criminal Justice; and John Malcolm, the Heritage Foundation’s Vice President for the Institute for Constitutional Government and Director of the Meese Center for Legal & Judicial Studies. The conversation will continue through the end of the month, and comments on posts are open to readers during the same time period.

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Lead Essay

  • Chris W. Surprenant and Jason Brennan argue that the U.S. criminal justice system grew to the size that it is owing to the incentives faced by prosecutors, judges, police, and federal, state, and local legislators. Each had a solid but narrow reason to act the role that they did in recent decades, yet taken together, their actions produced a system that locks up more people than any other nominally free country. As incentives created the problem, Surprenant and Brennan recommend a set of policies that will align incentives toward de-incarceration.

Response Essays

  • John Malcolm notes that police misconduct is relatively rare and far from standard operating procedure. While the United States imprisons many more than do other free, developed nations, this has been at least partly the result of a pronounced crime wave that only began to abate in the mid-90s; it is at least arguable that other nations didn’t do enough to imprison the guilty, while we did. Disdain for the American justice system is likewise misplaced: Few would trade a trial in the U.S. system for a trial in Cuba or Russia, for example, their lower incarceration rates notwithstanding.

  • Clark Neily focuses on two factors behind the U.S. mass incarceration phenomenon, overcriminalization and plea bargaining. Overcriminalization, he writes, has come to make criminals of everyone, meaning that prosecutorial discretion reigns supreme. And plea bargaining brings defendants to surrender their constitutional rights under duress, as many fear the much longer sentences that prosecutors threaten to seek at trial.

Coming Up

Conversation through the end of the month.