About this Issue
The United States imprisons a greater portion of its population than any other country on earth. And, as it happens, American incarceration policies fall disproportionately heavily on disadvantaged black men, raising questions about the equity of the criminal justice system. Is that system a quiet extension of America’s shameful history of racial discrimination and persecution? However, if members of some groups commit more crimes than those of other groups, perhaps it should not be surprising that a greater portion of them are in jail. Moreover, if those in jail are indeed guilty of crimes, might not world-leading incarceration rates simply be what it takes to keep Americans safe? We’ll ask these tough question and more in this month’s issue of Cato Unbound, “Behind Bars in the Land of the Free.”
We’ve gathered together an all-star team of scholars to grapple with this fraught but profoundly important issue. Brown University’s Glenn Loury, author of the recent book Race, Incarceration, and American Values, offers this month’s lead essay. We’ll have replies from the University of Maryland economist John R. Lott, Harvard University sociologist Bruce Western, and eminent political scientist James Q. Wilson, the Ronald Reagan Professor of Public Policy at Pepperdine University.
A Nation of Jailers
The most challenging problems of social policy in the modern world are never merely technical. In order properly to decide how we should govern ourselves, we must take up questions of social ethics and human values. What manner of people are we Americans? What vision would we affirm, and what example would we set, before the rest of the world? What kind of society would we bequeath to our children? How shall we live? Inevitably, queries such as these lurk just beneath the surface of the great policy debates of the day. So, those who would enter into public argument about what ails our common life need make no apology for speaking in such terms.
It is precisely in these terms that I wish to discuss a preeminent moral challenge for our time — that imprisonment on a massive scale has become one of the central aspects of our nation’s social policy toward the poor, powerfully impairing the lives of some of the most marginal of our fellow citizens, especially the poorly educated black and Hispanic men who reside in large numbers in our great urban centers.
The bare facts of this matter — concerning both the scale of incarceration and its racial disparity — have been much remarked upon of late. Simply put, we have become a nation of jailers and, arguably, racist jailers at that. The past four decades have witnessed a truly historic expansion, and transformation, of penal institutions in the United States — at every level of government, and in all regions of the country. We have, by any measure, become a vastly more punitive society. Measured in constant dollars and taking account of all levels of government, spending on corrections and law enforcement in the United States has more than quadrupled over the last quarter century. As a result, the American prison system has grown into a leviathan unmatched in human history. This development should be deeply troubling to anyone who professes to love liberty.
Here, as in other areas of social policy, the United States is a stark international outlier, sitting at the most rightward end of the political spectrum: We imprison at a far higher rate than the other industrial democracies — higher, indeed, than either Russia or China, and vastly higher than any of the countries of Western Europe. According to the International Centre for Prison Studies in London, there were in 2005 some 9 million prisoners in the world; more than 2 million were being held in the United States. With approximately one twentieth of the world’s population, America had nearly one fourth of the world’s inmates. At more than 700 per 100,000 residents, the U.S. incarceration rate was far greater than our nearest competitors (the Bahamas, Belarus, and Russia, which each have a rate of about 500 per 100,000.) Other industrial societies, some of them with big crime problems of their own, were less punitive than we by an order of magnitude: the United States incarcerated at 6.2 times the rate of Canada, 7.8 times the rate of France, and 12.3 times the rate of Japan.
The demographic profile of the inmate population has also been much discussed. In this, too, the U.S. is an international outlier. African Americans and Hispanics, who taken together are about one fourth of the population, account for about two thirds of state prison inmates. Roughly one third of state prisoners were locked up for committing violent offenses, with the remainder being property and drug offenders. Nine in ten are male, and most are impoverished. Inmates in state institutions average fewer than eleven years of schooling.
The extent of racial disparity in imprisonment rates exceeds that to be found in any other arena of American social life: at eight to one, the black to white ratio of male incarceration rates dwarfs the two to one ratio of unemployment rates, the three to one non-marital child bearing ratio, the two to one ratio of infant mortality rates and the one to five ratio of net worth. More black male high school dropouts are in prison than belong to unions or are enrolled in any state or federal social welfare programs. The brute fact of the matter is that the primary contact between black American young adult men and their government is via the police and the penal apparatus. Coercion is the most salient feature of their encounters with the state. According to estimates compiled by sociologist Bruce Western, nearly 60% of black male dropouts born between 1965 and 1969 had spent at least one year in prison before reaching the age of 35.
For these men, and the families and communities with which they are associated, the adverse effects of incarceration will extend beyond their stays behind bars. My point is that this is not merely law enforcement policy. It is social policy writ large. And no other country in the world does it quite like we do.
This is far more than a technical issue — entailing more, that is, than the task of finding the most efficient crime control policies. Consider, for instance, that it is not possible to conduct a cost-benefit analysis of our nation’s world-historic prison buildup over the past 35 years without implicitly specifying how the costs imposed on the persons imprisoned, and their families, are to be reckoned. Of course, this has not stopped analysts from pronouncing on the purported net benefits to “society” of greater incarceration without addressing that question! Still, how — or, indeed, whether — to weigh the costs born by law-breakers — that is, how (or whether) to acknowledge their humanity — remains a fundamental and difficult question of social ethics. Political discourses in the United States have given insufficient weight to the collateral damage imposed by punishment policies on the offenders themselves, and on those who are knitted together with offenders in networks of social and psychic affiliation.
Whether or not one agrees, two things should be clear: social scientists can have no answers for the question of what weight to put on a “thug’s,” or his family’s, well-being; and a morally defensible public policy to deal with criminal offenders cannot be promulgated without addressing that question. To know whether or not our criminal justice policies comport with our deepest values, we must ask how much additional cost borne by the offending class is justifiable per marginal unit of security, or of peace of mind, for the rest of us. This question is barely being asked, let alone answered, in the contemporary debate.
Nor is it merely the scope of the mass imprisonment state that has expanded so impressively in the United States. The ideas underlying the doing of criminal justice — the superstructure of justifications and rationalizations — have also undergone a sea change. Rehabilitation is a dead letter; retribution is the thing. The function of imprisonment is not to reform or redirect offenders. Rather, it is to keep them away from us. “The prison,” writes sociologist David Garland, “is used today as a kind of reservation, a quarantine zone in which purportedly dangerous individuals are segregated in the name of public safety.” We have elaborated what are, in effect, a “string of work camps and prisons strung across a vast country housing millions of people drawn mainly from classes and racial groups that are seen as politically and economically problematic.” We have, in other words, marched quite a long way down the punitive road, in the name of securing public safety and meting out to criminals their just deserts.
And we should be ashamed of ourselves for having done so. Consider a striking feature of this policy development, one that is crucial to this moral assessment: the ways in which we now deal with criminal offenders in the United States have evolved in recent decades in order to serve expressive and not only instrumental ends. We have wanted to “send a message,” and have done so with a vengeance. Yet in the process we have also, in effect, provided an answer for the question: who is to blame for the maladies that beset our troubled civilization? That is, we have constructed a narrative, created scapegoats, assuaged our fears, and indulged our need to feel virtuous about ourselves. We have met the enemy and the enemy, in the now familiar caricature, is them — a bunch of anomic, menacing, morally deviant “thugs.” In the midst of this dramaturgy — unavoidably so in America — lurks a potent racial subplot.
This issue is personal for me. As a black American male, a baby-boomer born and raised on Chicago’s South Side, I can identify with the plight of the urban poor because I have lived among them. I am related to them by the bonds of social and psychic affiliation. As it happens, I have myself passed through the courtroom, and the jailhouse, on my way along life’s journey. I have sat in the visitor’s room at a state prison; I have known, personally and intimately, men and women who lived their entire lives with one foot to either side of the law. Whenever I step to a lectern to speak about the growth of imprisonment in our society, I envision voiceless and despairing people who would have me speak on their behalf. Of course, personal biography can carry no authority to compel agreement about public policy. Still, I prefer candor to the false pretense of clinical detachment and scientific objectivity. I am not running for high office; I need not pretend to a cool neutrality that I do not possess. While I recognize that these revelations will discredit me in some quarters, this is a fate I can live with.
So, my racial identity is not irrelevant to my discussion of the subject at hand. But, then, neither is it irrelevant that among the millions now in custody and under state supervision are to be found a vastly disproportionate number of the black and the brown. There is no need to justify injecting race into this discourse, for prisons are the most race-conscious public institutions that we have. No big city police officer is “colorblind” nor, arguably, can any afford to be. Crime and punishment in America have a color — just turn on a television, or open a magazine, or listen carefully to the rhetoric of a political campaign — and you will see what I mean. The fact is that, in this society as in any other, order is maintained by the threat and the use of force. We enjoy our good lives because we are shielded by the forces of law and order upon which we rely to keep the unruly at bay. Yet, in this society to an extent unlike virtually any other, those bearing the heavy burden of order-enforcement belong, in numbers far exceeding their presence in the population at large, to racially defined and historically marginalized groups. Why should this be so? And how can those charged with the supervision of our penal apparatus sleep well at night knowing that it is so?
This punitive turn in the nation’s social policy is intimately connected, I would maintain, with public rhetoric about responsibility, dependency, social hygiene, and the reclamation of public order. And such rhetoric, in turn, can be fully grasped only when viewed against the backdrop of America’s often ugly and violent racial history: There is a reason why our inclination toward forgiveness and the extension of a second chance to those who have violated our behavioral strictures is so stunted, and why our mainstream political discourses are so bereft of self-examination and searching social criticism. An historical resonance between the stigma of race and the stigma of prison has served to keep alive in our public culture the subordinating social meanings that have always been associated with blackness. Many historians and political scientists — though, of course, not all — agree that the shifting character of race relations over the course of the nineteenth and twentieth centuries helps to explain why the United States is exceptional among democratic industrial societies in the severity of its punitive policy and the paucity of its social-welfare institutions. Put directly and without benefit of euphemism, the racially disparate incidence of punishment in the United States is a morally troubling residual effect of the nation’s history of enslavement, disenfranchisement, segregation, and discrimination. It is not merely the accidental accretion of neutral state action, applied to a racially divergent social flux. It is an abhorrent expression of who we Americans are as a people, even now, at the dawn of the twenty-first century.
My recitation of the brutal facts about punishment in today’s America may sound to some like a primal scream at this monstrous social machine that is grinding poor black communities to dust. And I confess that these facts do at times leave me inclined to cry out in despair. But my argument is intended to be moral, not existential, and its principal thesis is this: we law-abiding, middle-class Americans have made collective decisions on social and incarceration policy questions, and we benefit from those decisions. That is, we benefit from a system of suffering, rooted in state violence, meted out at our behest. Put differently our society — the society we together have made — first tolerates crime-promoting conditions in our sprawling urban ghettos, and then goes on to act out rituals of punishment against them as some awful form of human sacrifice.
It is a central reality of our time that a wide racial gap has opened up in cognitive skills, the extent of law-abidingness, stability of family relations, and attachment to the work force. This is the basis, many would hold, for the racial gap in imprisonment. Yet I maintain that this gap in human development is, as a historical matter, rooted in political, economic, social, and cultural factors peculiar to this society and reflective of its unlovely racial history. That is to say, it is a societal, not communal or personal, achievement. At the level of the individual case we must, of course, act as if this were not so. There could be no law, and so no civilization, absent the imputation to persons of responsibility for their wrongful acts. But the sum of a million cases, each one rightly judged fairly on its individual merits, may nevertheless constitute a great historic wrong. This is, in my view, now the case in regards to the race and social class disparities that characterize the very punitive policy that we have directed at lawbreakers. And yet, the state does not only deal with individual cases. It also makes policies in the aggregate, and the consequences of these policies are more or less knowable. It is in the making of such aggregate policy judgments that questions of social responsibility arise.
This situation raises a moral problem that we cannot avoid. We cannot pretend that there are more important problems in our society, or that this circumstance is the necessary solution to other, more pressing problems — unless we are also prepared to say that we have turned our backs on the ideal of equality for all citizens and abandoned the principles of justice. We ought to be asking ourselves two questions: Just what manner of people are we Americans? And in light of this, what are our obligations to our fellow citizens — even those who break our laws?
Without trying to make a full-fledged philosophical argument here, I nevertheless wish to gesture — in the spirit of the philosopher John Rawls — toward some answers to these questions. I will not set forth a policy manifesto at this time. What I aim to do is suggest, in a general way, how we ought to be thinking differently about this problem. Specifically, given our nation’s history and political culture, I think that there are severe limits to the applicability in this circumstance of a pure ethic of personal responsibility, as the basis for distributing the negative good of punishment in contemporary America. I urge that we shift the boundary toward greater acknowledgment of social responsibility in our punishment policy discourse — even for wrongful acts freely chosen by individual persons. In suggesting this, I am not so much making a “root causes” argument — he did the crime, but only because he had no choice — as I am arguing that the society at large is implicated in his choices because we have acquiesced in structural arrangements which work to our benefit and his detriment, and yet which shape his consciousness and sense of identity in such a way that the choices he makes. We condemn those choices, but they are nevertheless compelling to him. I am interested in the moral implications of what the sociologist Loïc Wacquant has called the “double-sided production of urban marginality.” I approach this problem of moral judgment by emphasizing that closed and bounded social structures — like racially homogeneous urban ghettos — create contexts where “pathological” and “dysfunctional” cultural forms emerge, but these forms are not intrinsic to the people caught in these structures. Neither are they independent of the behavior of the people who stand outside of them.
Several years ago, I took time to read some of the nonfiction writings of the great nineteenth century Russian novelist Leo Tolstoy. Toward the end of his life he had become an eccentric pacifist and radical Christian social critic. I was stunned at the force of his arguments. What struck me most was Tolstoy’s provocative claim that the core of Christianity lies in Jesus’ Sermon on the Mount: You see that fellow over there committing some terrible sin? Well, if you have ever lusted, or allowed jealousy, or envy or hatred to enter your own heart, then you are to be equally condemned! This, Tolstoy claims, is the central teaching of the Christian faith: we’re all in the same fix.
Now, without invoking any religious authority, I nevertheless want to suggest that there is a grain of truth in this religious sentiment that is relevant to the problem at hand: That is, while the behavioral pathologies and cultural threats that we see in society — the moral erosions “out there” — the crime, drug addiction, sexually transmitted disease, idleness, violence and all manner of deviance — while these are worrisome, nevertheless, our moral crusade against these evils can take on a pathological dimension of its own. We can become self-righteous, legalistic, ungenerous, stiff-necked, and hypocritical. We can fail to see the beam in our own eye. We can neglect to raise questions of social justice. We can blind ourselves to the close relationship that actually exists between, on the one hand, behavioral pathology in the so-called urban underclass of our country and, on the other hand, society-wide factors — like our greed-driven economy, our worship of the self, our endemic culture of materialism, our vacuous political discourses, our declining civic engagement, and our aversion to sacrificing private gain on behalf of much needed social investments. We can fail to see, in other words, that the problems of the so-called underclass — to which we have reacted with a massive, coercive mobilization — are but an expression, at the bottom of the social hierarchy, of a more profound and widespread moral deviance — one involving all of us.
Taking this position does not make me a moral relativist. I merely hold that, when thinking about the lives of the disadvantaged in our society, the fundamental premise that should guide us is that we are all in this together. Those people languishing in the corners of our society are our people — they are us – whatever may be their race, creed, or country of origin, whether they be the crack-addicted, the HIV-infected, the mentally ill homeless, the juvenile drug sellers, or worse. Whatever the malady, and whatever the offense, we’re all in the same fix. We’re all in this thing together.
Just look at what we have wrought. We Americans have established what, to many an outside observer, looks like a system of racial caste in the center of our great cities. I refer here to millions of stigmatized, feared, and invisible people. The extent of disparity in the opportunity to achieve their full human potential, as between the children of the middle class and the children of the disadvantaged — a disparity that one takes for granted in America — is virtually unrivaled elsewhere in the industrial, advanced, civilized, free world.
Yet too many Americans have concluded, in effect, that those languishing at the margins of our society are simply reaping what they have sown. Their suffering is seen as having nothing to do with us — as not being evidence of systemic failures that can be corrected through collective action. Thus, as I noted, we have given up on the ideal of rehabilitating criminals, and have settled for simply warehousing them. Thus we accept — despite much rhetoric to the contrary — that it is virtually impossible effectively to educate the children of the poor. Despite the best efforts of good people and progressive institutions — despite the encouraging signs of moral engagement with these issues that I have seen in my students over the years, and that give me hope — despite these things, it remains the case that, speaking of the country as a whole, there is no broadly based demand for reform, no sense of moral outrage, no anguished self-criticism, no public reflection in the face of this massive, collective failure.
The core of the problem is that the socially marginal are not seen as belonging to the same general public body as the rest of us. It therefore becomes impossible to do just about anything with them. At least implicitly, our political community acts as though some are different from the rest and, because of their culture — because of their bad values, their self-destructive behavior, their malfeasance, their criminality, their lack of responsibility, their unwillingness to engage in hard work — they deserve their fate.
But this is quite wrongheaded. What we Americans fail to recognize — not merely as individuals, I stress, but as a political community — is that these ghetto enclaves and marginal spaces of our cities, which are the source of most prison inmates, are products of our own making: Precisely because we do not want those people near us, we have structured the space in our urban environment so as to keep them away from us. Then, when they fester in their isolation and their marginality, we hypocritically point a finger, saying in effect: “Look at those people. They threaten to the civilized body. They must therefore be expelled, imprisoned, controlled.” It is not we who must take social responsibility to reform our institutions but, rather, it is they who need to take personal responsibility for their wrongful acts. It is not we who must set our collective affairs aright, but they who must get their individual acts together. This posture, I suggest, is inconsistent with the attainment of a just distribution of benefits and burdens in society.
Civic inclusion has been the historical imperative in Western political life for 150 years. And yet — despite our self-declared status as a light unto the nations, as a beacon of hope to freedom-loving peoples everywhere — despite these lofty proclamations, which were belied by images from the rooftops in flooded New Orleans in September 2005, and are contradicted by our overcrowded prisons — the fact is that this historical project of civic inclusion is woefully incomplete in these United States.
At every step of the way, reactionary political forces have declared the futility of pursuing civic inclusion. Yet, in every instance, these forces have been proven wrong. At one time or another, they have derided the inclusion of women, landless peasants, former serfs and slaves, or immigrants more fully in the civic body. Extending to them the franchise, educating their children, providing health and social welfare to them has always been controversial. But this has been the direction in which the self-declared “civilized” and wealthy nations have been steadily moving since Bismarck, since the revolutions of 1848 and 1870, since the American Civil War with its Reconstruction Amendments, since the Progressive Era and through the New Deal on to the Great Society. This is why we have a progressive federal income tax and an estate tax in this country, why we feed, clothe and house the needy, why we (used to) worry about investing in our cities’ infrastructure, and in the human capital of our people. What the brutal facts about punishment in today’s America show is that this American project of civic inclusion remains incomplete. Nowhere is that incompleteness more evident than in the prisons and jails of America. And this as yet unfulfilled promise of American democracy reveals a yawning chasm between an ugly and uniquely American reality, and our nation’s exalted image of herself.
Glenn C. Loury is the Merton P. Stoltz Professor of the Social Sciences at Brown University
Reforms that Ignore the Black Victims of Crime
Charges of racism flow freely in Professor Loury’s recent book and this essay. He makes it seem that we lock up blacks because whites are afraid of them or that we simply dislike them and want to keep them locked up and away from the rest of society. But Loury forgets an important fact: for violent and property crime there is always an individual victim who gets hurt — for black criminals that victim is overwhelmingly black. Nor does he recognize how extremely progressive criminal penalties are. He also neglects acknowledging that we can’t determine if the number of people in prison is “too high” without discussing the benefit from prison — without discussing how many crimes were deterred.
Many blacks have their lives disrupted by the criminal justice system, but the lives and property of many blacks are also protected by that same system. Looking at only the cost of imprisonment seems a very strange way to answer the question of whether we should change the current system.
Why Focus on the Race of the Criminals and Not Also the Race of the Victims?
Who are the victims of crime? Blacks overwhelmingly commit crime against other blacks. For example, in 2007, 90.2% of black murder victims were murdered by blacks.  To go even further, poor blacks commit crimes against poor blacks.  Is it less racist to care about the victims or the criminals? If we punish black criminals a lot, isn’t it possible that the reason we are doing it is because we care about the black victims?
Take the high criminal penalties for crack cocaine. Many have argued along the lines of Loury and called the penalties racist because they have put many more blacks in prison than whites. But were the penalties set up to put blacks in prison? There is a very plausible alternative: they were set up because the lives of many blacks were being destroyed by blacks and people thought that they could help by having large penalties on those involved with crack. As someone who served as the chief economist for the U.S. Sentencing Commission when these penalties were adopted, I can say that many people talked about the horrible damage being done by crack to inner cities. No one ever mentioned that they wanted to punish blacks. While I personally didn’t support the separate higher penalties for crack, both liberal and conservative members of the Sentencing Commission voted for the change. The primary person who objected to the increase, Michael Block, is a conservative.
Possibly we might want to legalize drugs (though Loury never makes that point), and that would certainly take many blacks out of prison relative to whites, but it wouldn’t come near to eliminating the gap. For example, from 1976 to 2004, whites committed about 47 percent of murders. Blacks committed almost all of the remaining murders.
Loury’s “veil of ignorance” reference relies completely on focusing on what happens to criminals, not victims (Loury, 2008, pp. 32-35). If we value the black victims as much as the race of the criminals, it is hard to see how using Rawls’ logic would change the status quo.
When Are There Too Many People in Prison?
So the United States puts more people in prison than other countries? By itself that isn’t evidence that something has gone wrong. Do higher arrest and conviction rates and longer prison terms, and the death penalty deter crime? The evidence that punishment deters criminals is overwhelming. While that evidence should be sufficient, the United States has a high prison population, but the United States also appears to have a relatively low violent crime rate compared to most other developed countries.
A sophisticated analysis wouldn’t just say the penalties are too high, it would compare the costs of enforcement against the reduced costs from the crimes that are deterred. One good place to start is to recognize the benefits from deterrence. Changes in arrest rates account for up to about 18 percent of the variation in murder rates (see Lott, 2007, Chapter 4). Conviction rates explain up to another 12 percent. Prison sentences another 10 percent and the death penalty another 10 percent.
I don’t put much weight in the cross-sectional analysis apparently favored by Loury simply because it is much easier to control for differences across countries with panel data, but the United States’ high prison rate is at least balanced off by a relatively low violent crime rate. The International Crime Victimization Survey (ICVS) indicates that for the violent crime categories of sexual assault, robbery and aggravated assault, the U.S. looks remarkably safe.  This is even truer for the more serious categories of sexual assault and robbery. Prison is costly, but one could only imagine how much higher American crimes rates would be without it.
While murders make up only a fraction of violent crimes, they are by far the most costly type of crime. The ICVS doesn’t compare murder rates. The U.S. white murder rate is comparable to many countries in Europe, and is just a fraction of Russia’s, one country that Loury compares the US to. The difference is driven blacks. Murders in the United States are overwhelmingly a minority problem. But the bottom line is that for murder deterrence matters. Even for the death penalty the vast majority of published refereed academic work finds that the death penalty deters crime (Lott, 2007, pp. 136-7).
Why Focus on Prison as the Only Penalty?
The fact that blacks go to prison at relatively high rates is not the same thing as saying that they disproportionately bear the lion’s share of criminal penalties. Prison represents only one part of the penalties imposed on criminals, and for most criminals it is a small part of the penalty. Huge collateral and other criminal penalties are ignored. Ironically, Loury raises the issue of stigma and fails to mention the research that measures the penalty of stigma imposed by the legal process. He raises the issue of voter disenfranchisement in other work (e.g., Loury, 2008, p. 22), but he doesn’t mention all the other collateral penalties imposed on criminals. The criminal justice system discriminates against higher-income criminals (Lott, 1992a, 1992b).
Take the case of a bank embezzler with an income one standard deviation above the mean: he or she faces a total monetary penalty that is 4.94 times greater than that for an average income embezzler. The analogous bank larcenist faces a 2.1 to 1 ratio over the one with the mean income. Therefore, if the low- and high-income criminals in both cases are to face the same expected penalties from conviction, the high-income embezzler must face a probability of conviction that is only 20.7 percent of that of the mean income embezzler and the high income larcenist a probability that is only 47 percent of that of mean income larcenist. When the corresponding values for two standard deviations above the mean are used, the relative probability of convictions fall to only 11 and 30 percent.
These numbers can underestimate the true differences across criminals. For example, if the real reduction in earnings persisted for five years beyond the last year of probation or parole and the real interest rate was two percent, the present value of lost earnings for an average bank embezzler is $31,020 and for embezzlers with income one and two standard deviations above the mean the present values are $190,818 and $364,028.
Loury advocates more progressive criminal penalties, but criminal penalties are already extremely progressive. Yet, it isn’t clear why an economist would advocate having greater penalties for a criminal simply because he has a higher income. Economists normally view criminal penalties as making the criminal bear the harm that he is imposing on others. Progressive penalties aren’t consistent with that. If Loury is after more equality in society, why not instead use the income tax to redistribute wealth?
There are at least 32 different types of collateral penalties from felony convictions — including the loss of professional and business licenses, prohibitions on working for the government or getting union jobs, lost rights to inheritances and pension funds, partial or complete divestment of assets, loosing life and automobile insurance, lost parental rights and rights in divorce, and prohibitions on running for public office and owning guns (Lott, 1992b, p. 585). Overall these penalties are greater for higher-income criminals.
The Total Monetary Penalty from Committing a Crime (All values are in 1984 dollars) 
[Click table for larger version]
Another Type of Criminal Penalty: The Death Penalty
From 1976 to 2004, 65 percent of executions involved whites, but whites committed only 47 percent of murders.  If we valued the lives of black victims more, possibly we should have an even greater penalty. But it is hard to look at this data and claim that the death penalty is obviously adversely applied against minorities.
Unfortunately, to the extent that notions of racial justice have entered into the criminal justice system they have actually harmed the most vulnerable around us. There are many obvious benefits from hiring minority and women officers. For example, minority police officers may be more effective in minority areas simply because residents could be more forthcoming about information that will facilitate arrests and convictions or because of the officers’ ability to serve as undercover agents. Trust is important for other reasons, as reports of riots erupting after white officers have shot blacks attest.
The problem though is the way minorities have been brought into law enforcement. By eliminating or reducing standards on basic intelligence tests, police departments appear to have lowered the quality of new hires across the racial spectrum and made police less effective in solving crime. These lower quality recruits have increased crime rates, and the largest increases have occurred in more heavily minority areas.
Loury is a distinguished academic, but, disappointingly, he has provided an extremely narrow and distorted view of the criminal justice system. Minorities have faced real problems and there is undoubtedly discrimination in the legal system as there has been in other areas of American life, but making inaccurate claims about perceived slights doesn’t help the cause. In Loury’s response, I look forward to understanding why we should care about black criminals but not their black victims. Indeed, in his various writings I can’t find any reference to the costs that crime imposes on victims. It is hard to claim that we have too many people in prison without some reference to what is being accomplished by that punishment. He references notions of stigma or collateral penalties in a very inconsistent way. He calls for a progressive criminal penalty structure and ignores the literature showing that we already have an extremely (arguably overly) progressive system.
John R. Lott, Jr. is a Senior Research Scientist at the University of Maryland
 Expanded Homicide Data Table 5, FBI Uniform Crime Report, 2007 (http://www.fbi.gov/ucr/cius2007/offenses/expanded_information/data/shrt…).
 Obviously, many of the black murders are committed against other black criminals, but the victims of other crimes are much more clearly likely to be innocent. In any case, the question Loury must answer is what weight do we put on those who have been murdered
 Using the International Crime Victimization Survey helps to ensure that the same crimes are being compared across countries and to deal with the fact that victims might not report crimes to police at the same rate in all countries. (http://www.unicri.it/wwd/analysis/icvs/statistics.php)
 Please see Lott (1992a and 1992b) for a discussion of how these estimates were derived. The first four cases assume a white, single, male Californian with no previous criminal history. The fifth category assumes the criminal is from the District of Columbia. Sample mean values for each crime category are used for each group’s age, presentence income, and the dollar value of the drugs involved in the crime, and these estimates also assume that the crimes involved no breach of trust. Negative predicted fines are set equal to zero, and all values are in July 1984 dollars. In the first three cases, if the criminal was from a different circuit court with lower preconviction incomes, the reported drop in postconviction income would be lowered for both high- and low-income criminals and conviction tended to result in higher incomes after conviction for those with the lowest preconviction incomes. S.D. = standard deviation.
 Data obtained from four primary sources: Bureau of Justice Statistics, Capital Punishment, 1985-2004; (http://www.ojp.usdoj.gov/bjs/pubalp2.htm#cp), Sourcebook of Criminal Justice Research, 1978-1986, U.S. Department of Justice, Criminal Justice esearch Center, Albany, NY.; FBI Supplementary Homicide Reports, 1976-2004, (http://www.ojp.usdoj.gov/bjs/homicide/tables/oracetab.htm); and FBI Uniform Crime Reports, 1976-2004, (http://www.ojp.usdoj.gov/bjs/homicide/tables/totalstab.htm).
Lott, John R., Jr., “An Attempt at Measuring the Total Monetary Penalty from Drug Convictions: The Importance of an Individual’s Reputation,” Journal of Legal Studies, Vol. 21, no. 1, January 1992a: 159-187.
Lott, John R., Jr., “Do We Punish High Income Criminals too Heavily?” Economic Inquiry, Vol. 30, no. 4, October 1992b: 583-608.
Lott, John R., Jr., “Does a Helping hand Put Others At Risk?: Affirmative Action, Police Departments, and Crime,” Economic Inquiry, Vol. 38, no. 2 (April 2000): 239-277.
Lott, John R., Jr., More Guns, Less Crime: Analyzing Crime and Gun Control Laws, Second edition, University of Chicago Press: Chicago, Illinois (2000).
Lott, John R., Jr., Freedomnomics: Why the Free Market Works and Other Half-Baked Theories Don’t, Regnery Publishers: Washington, DC, 2007.
Loury, Glenn, “Social Identity and the Ethics of Punishment,” Tanner Lecture II, 2007.
Loury, Glenn,Race, Incarceration, and American Values, MIT Press: Cambridge, Massachusetts, 2008.
Addressing the Problems that Lead to Prison
Glenn Loury rightly directs our attention to the troubling fact that we have put into prison a large fraction of our citizens, especially African American men. No one can be happy with this state of affairs. It is difficult to create and sustain a decent society when many of its members are former convicts.
Worrisome as this may be, Loury says little about why this happened other than to say we are a nation of “racist jailers” who operate a “greed-driven economy” and have created a “so-called underclass” that reflects the “moral deviance” of all of us. He looks askance at those who speak about the “purported net benefits to ‘society’ of greater incarceration.”
I am one of those, and I do not feel inclined to apologize. Loury does not refer to the scholarly work of those social scientists who have worked hard to understand why we imprison so many people and with what results. Let me summarize what Daniel Nagin, David Farrington, Patrick Langan, Steven Levitt, and William Spelman have shown. Other things being equal, a higher risk of punishment reduces crime rates.
These scholars do not entirely agree one with the other and all recognize that there are problems in these analyses, but none, I think, would say that the benefits to society of imprisonment are merely “purported.” They are real. Offsetting these benefits are costs, some of which Loury discusses. To discuss imprisonment seriously one must compare the costs and the benefits. Loury does not try to do this.
Instead he points out, correctly, that America uses imprisonment more than do many other nations (though I suspect he ought not to take the public claims of imprisonment rates in China and Russia too seriously). But he ignores the results of prison in America: It helps explain why this country has a lower rate of burglary than Australia, Austria, Canada, England, Germany, and the Netherlands, and a lower rate of auto theft than Australia, Austria, Canada, England, and Sweden. On the other hand, America’s homicide rate remains much higher than in those nations.
America is more punitive, but except for homicide, it is also safer. The key moral and political question is whether our greater personal safety is worth our greater use of prison. Loury does not discuss this question.
There is an even more important question: Why is it that so large a percentage of African Americans spend time in prison? We cannot say that it is because America is “racist.” Racism exists here, but it cannot account for the fact that the racial identity of people who commit assaults and robberies is almost exactly the same as the racial identity of people who go to prison for those crimes.
We know this, not because we rely on police reports, but because the National Crime Victimization Survey asks thousands of citizens if they were the victims of crime and, if they were, for a description of who attacked or robbed them. The citizens themselves (including black ones) say that the attackers or robbers were black in the same proportion as blacks go to prison for these crimes.
The central question is why blacks commit these crimes in such high numbers. My research, like that of Orlando Patterson and others, suggests that slavery and Reconstruction deeply harmed African American culture by making intact families rare and denying to black victims the same degree of police protection that was afforded to whites.
By the middle of the nineteenth century and continuing down to the present, many black children have grown up in father-absent families. And after slavery ended black victims of crime were for many decades denied police and judicial protection. Though the civil rights laws have ended many abuses, the legacy lives on: 70 percent of black males in prison did not grow up with a resident father.
The high rate of imprisonment for African Americans is a wake up call for our historical failure to incorporate them into a functioning and constructive culture. How we might do this is a major issue on which no clear scholarly agreement exists.
We can, of course, wait until men get in trouble and then try to rehabilitate them. Good rehabilitation efforts provide some benefits, and despite what Loury implies, they are underway. But the gains, on the average, are small: recidivism rates are reduced by about 10 percent. Since two-thirds of all ex-cons commits a new offense within three years, a 10 percent reduction is not very much.
If we knew how to make street gangs less attractive to boys we could reduce dramatically the number of murders our cities experience, but so far we do not know how to do this. There are efforts under way to test some new ideas but the results are not yet in. In the meantime, law-abiding people move out of neighborhoods where gangs operate.
The best approach is to invest in crime prevention programs aimed at young children. Careful evaluations show that such efforts exist. They include the Perry Pre-School program, nurse home visitations, various parent-child training programs, and certain school-based programs. These have worked in at least one setting and a few have worked in several.
To argue that America is simply “punitive” is a profound error. There are countless efforts all over the country to reduce the chances that a child will become a criminal. These attempts, however, take hold only slowly because of three problems. First, many of the best prevention programs cost a lot of money for each child, and so we have to devote them to at-risk children if communities will be able to pay for them. But defining some children as “at-risk” means talking specifically about black and Hispanic children in welfare homes, a task that our politically correct society finds it hard to do. Second, the programs that work are typically small, intense efforts that may or may not work if they are scaled up to be state-wide or nation-wide efforts run, not by skilled therapists, but by ordinarily folks. Third, good programs often lose out to bad ones because the latter, though equally devoted to prevention, lack supportive evidence but have political muscle. The DARE anti-drug program is an example of the muscle without evidence.
If you wish to write helpfully about mass incarceration, it is necessary to talk about all of these questions: the benefits as well as the costs of incarceration, the difficulty in finding programs that will eliminate the crime-production tendencies of father-absent families, the greater value of prevention over rehabilitation, and the complex intellectual and political problems that attend any effort to make prevention strategies more commonplace.
Loury does none of this. He offers an impassioned cry from the heart, shaped in part by his own experience as a man of color who has passed through a courtroom and the jailhouse on his way to becoming a skilled and important scholar. But the impassioned cry is not enough. Generations of activists, leaders, and scholars have been at work on these matters. Dismissing their efforts as “the false pretense of clinical detachment and scientific objectivity” is to retreat from any chance at progress and defeat what Loury wants, namely, the completion of the task of civic inclusion.
Race, Crime, and Punishment
Debates about crime and punishment often follow a familiar script. From the left we hear about the social injustice perpetrated on poor and minority communities by the criminal justice system. The right fumes that the leftist critique ignores the problem of crime and the victimization avenged by police, prosecutors, and the prisons.
Both sides have a point. Glenn Loury’s essay on mass incarceration rightly observes that incarceration has become commonplace for young African American men, particularly those with no college education. This is new. We need only go back thirty years to find a time when prison was not a routine life event for black men with little schooling. The social consequences of mass incarceration have been devastating for poor African American communities, and there is no evidence that policymakers or policy experts seriously weighed these costs when designing a highly punitive system of criminal justice.
John Lott counters that policymakers did not target African Americans specifically. (James Q. Wilson’s essay was not posted at the time of this writing.) Instead, racial disparities in punishment are due to high rates of murder and other crime among blacks. What’s more, high rates of incarceration have produced large improvements in public safety that redound to the poor and minority communities that supply most of the nation’s prison inmates.
The challenge for policymakers is to absorb both these lessons — that harsh punishment leads to social injustice, and that crime is a grave problem for poor communities for which effective anti-crime strategies are needed.
The key point here is that a robust and sustainable public safety must be built on institutions that are seen as legitimate by the citizens who are governed by them. Here, I side with Loury. Such institutions must be inclusive, recognizing our shared humanity, and offering pathway back to the mainstream for those who have offended. Going further, inclusive and legitimate institutions will promote positive alternatives to crime even before would-be offenders have embarked on criminal careers.
To tackle these arguments about race, crime, and punishment, we first need to get some basic facts straight. There is a large research literature on racial disparities in criminal processing. Some of the simplest and most persuasive studies compare crime rates to imprisonment rates for blacks and whites. If disparities in crime equal disparities in imprisonment, high rates of black incarceration are plausibly due to crime, not harsh treatment by the authorities.
Early studies, from the 1980s, showed that about 80 percent of the 7-to-1 racial disparity in imprisonment was due to racial disparities in crime. The unexplained disparity, 20 percent of the total, emerged after arrest because of racial disparities in convictions, sentencing, and time served in prison. The recent paper by Michael Tonry and Matthew Melewski shows that the unexplained disparity has grown from 20 to 40 percent of the total racial disparity. In short, over half the large racial difference in imprisonment is related to high rates of crime among blacks, but fully 40 percent of the racial disparity is due not to crime, but other factors.
Though a large share of the disparity in incarceration cannot be attributed to crime, racial inequality is also narrowly defined in this research. No account is taken of the possibility that the criminal law is written in a way that penalizes the kinds of crime committed by blacks more heavily than the kinds of crime committed by whites.
While 40 percent of the racial disparity in incarceration is not due to crime but other factors, surely mass incarceration contributed to the tremendous decline in crime through the 1990s. Indeed, the 1990s crime decline produced a great improvement in public safety. From 1993 to 2001, the violent crime rate was halved, murder rates in big cities like New York and Los Angeles fell by half or more, and this progress in social well-being was recorded by rich and poor alike. I analyzed crime rates in this period and found that rising prison populations did reduce crime, but not by much. The growth in state imprisonment accounted for 2 to 5 percent of the decline in serious crime — one-tenth of the crime drop from 1993 to 2001. The remaining nine-tenths was due to things like the increasing size of local police forces, the pacification of the drug trade following the crack epidemic of the early 1990s, and the role of local factors which resist a general explanation.
But to acknowledge that the prison boom reduced crime is not to say that it was worth it. The modest decline in serious crime over an eight-year period was purchased for $53 billion in additional correctional spending and half a million new prison inmates. If we add the lost earnings of prisoners, the family disruption, and the community instability produced by mass incarceration, a steep price was paid for a small improvement in public safety. What’s more, nearby examples show that crime has been controlled without large increases in imprisonment. Violent crime in Canada, for example, also declined greatly through the 1990s, but Canadian incarceration rates actually fell from 1991 to 1999. New York maintained very low crime rates through the 2000s, but it is one of the few states that significantly cut its prison population over the last decade (see New York’s 2007 Crimestat Report, p. 38 [pdf]). Though large increases in imprisonment do reduce crime a little, the social cost is high and less punitive approaches have been equally successful.
All this analysis considers only the short-term reductions in crime produced by imprisonment. Because of the social costs of punishment — in the lost earnings and broken families of ex-prisoners — the seeds of recidivism are sown by incarceration itself. Ex-prisoners, without jobs or family ties, are more likely to re-offend. More fundamentally, the poor and minority communities that are disparately policed and punished come to view law enforcement, the courts, and the jails with suspicion and not as sources of legitimate order and support. We have few estimates of how much distrust in criminal justice institutions increases crime, though the effects may be very large.
The evidence I’ve reviewed indicates that mass incarceration has produced a public safety that is short-term, expensive, and vulnerable to reversal. Mass incarceration deepens inequalities in economic opportunities and family life, and receives little positive support from the communities it regulates most closely. The failure of the system is due exactly to the kind of social exclusion that Glenn Loury described.
Much of this discussion though risks irrelevance. Whether Loury is right or wrong, governors now want to shrink prison populations and spend less on corrections. For statehouses around the country, the system is not cost-effective. It crowds out spending on more urgent priorities like higher education, Medicaid, and schools. The question today is not whether we should give full vent to our punitive instincts, but what should we do instead.
Though the old orthodoxy claimed that programs for criminal offenders don’t work, a new round of well-designed evaluation studies are showing that transitional employment programs for released prisoners can yield significant reductions in recidivism and gains to employment and earnings. I estimate that a national program of transitional employment for all parolees in need of work, supplemented by drug treatment and housing, would cost $8 billion dollars, or about 11 percent of the total correctional budget. This program would more than pay for itself in reduced correctional costs and crime averted.
Prisoner reentry programs, however, are only incremental. A thorough reversal of mass incarceration will depend, as Loury implies, on a universalistic social policy that promotes opportunities for all members of society. Two policy debates are currently considering universalistic goals that promote opportunities for all. These debates are in the areas of health and education. Universal health insurance that includes coverage for mental illness and addiction will greatly improve the life chances of crime victims and those most likely to go to prison. In education policy, early child programs and measures to reduce high school dropout deal with the problems of crime and incarceration before the most serious damage has been done.
These efforts to build a broad social citizenship are premised on the common humanity that Loury envisions, repairing the racial and economic inequalities on which the prison edifice was built.
A Reply to Western
While we are waiting for some response from Glenn Loury to the various points raised in this discussion, I thought that I would respond to the points raised by Bruce Western.
Does the Higher Black Crime Rate Explain the Higher Black Incarceration Rates?
Western cites evidence that 80 percent of the high black incarceration rate during 1979 and only 57.4 percent in 2004 can be explained by the rates that blacks are arrested. These claims are taken as evidence of racism in the criminal justice system. To reach these conclusions, the national prison and arrest rates for whites and blacks are compared. 
Yet, there are many obvious explanations for this so-called “unexplained” gap. It would be more accurate to say that this is a “not tried at all to be explained” gap.
For example, why would blacks who are arrested be more likely to be convicted and spend longer in prison than whites? Two main reasons are the criminal’s criminal history and the severity of the crime. If you are a criminal who has no prior offenses, you are just not going to get as long of a prison term as a career criminal. United States Sentencing Commission data for individuals who were sentenced in the federal courts between October 1, 1991, and September 30, 1994 shows that the average black had a criminal history of 2.4 offenses and the average white 1.8 — a 33 percent higher rate for black criminals.
There is an obvious reason why we punish criminals with a longer or more severe criminal history more heavily. Each additional time the criminal is arrested and convicted the less likely that you are to believe that the next time the criminal is in front of the judge he is there simply by accident. We will punish repeat offenders more heavily simply because we are less worried about punishing innocent individuals. Does anyone want to seriously argue that we don’t want to include criminal history in sentencing?
The severity of the offense will also matter. The overall result only relies on the national arrest and prison shares for each race, but data is reported by type board categories of crime (e.g., “drugs”). Even breaking the national numbers into the single crime category of “drugs” lumps together recreational users and crack cocaine dealers. Depending on the year, the drug category also implies either the largest or second largest black arrest and prison population disparity. Blacks were more likely to have larger amounts of drugs involved in their conviction (Lott, 1992). It is also well known that whites are more likely to be recreational users and blacks more likely to be dealers. Thus, even with the category of “drugs,” you would expect blacks to get longer sentences without any reliance on racial discrimination.
Finally, there are the number of offenses that one is sentenced to prison for. The evidence that Western points to only looks at the worst offense during a particular sentencing — not the number or nature of the other offenses that the criminal was convicted of. Blacks are simply more likely to be charged and convicted of more crimes. That hardly seems surprising since blacks are more likely to be members of criminal organizations such as gangs.
If someone actually did a serious job on all these issues, they would likely find that blacks are underrepresented, not overrepresented, in the general prison population for the crimes they commit.
Beyond these foregoing problems, the work of Tonry and Melewski that Western cites is quite selective in what they were willing to report. For example, while they note the large share of blacks in prison for the death penalty, they neglect to point out that whites have a much higher execution rate. The absence is striking because the rest of their discussion focuses on penalties.
The Cost and Benefits of Deterring Crime
Bruce Western accepts that we should consider both the costs and benefits of law enforcement, but he only provides dollar values for the costs of deterrence in his discussion. He writes: “The modest decline in serious crime over an eight-year period was purchased for $53 billion in additional correctional spending and half a million new prison inmates.” Surely, $53 billion ($67 billion in 2009 dollars) over eight years seems like a large amount of money, though even after adjusting for inflation it is about 5 percent of just two large spending bills that President Obama has just signed into law (the “stimulus” bill and the $410 billion spending bill for the rest of this fiscal year).
The drop in violent crime from its peak in 1991 is huge. Between 1991 and 1999, violent crime fell by 231 violent crimes per hundred thousand people (a 31 percent drop, falling from 748 to 517 per 100,000). The murder rate fell by 42 percent from 9.8 to 5.69 per 100,000 people.
Suppose that the murder rate in 1999 had been the same as it had been in 1991. There would have been about 11,200 more murders that year. In today’s dollars, value of saved life would be $45 billion (Lott, 2009). If increased prison accounts for 10 percent of that benefit, as I argued in my previous post, that is an annual benefit of $4.5 billion from just the reduction in murder ($36 billion = 8 years * $4.5 billion). Of course, there are academic estimates of the victimization costs of rape, robbery, aggravated assault, and various property crimes that would also have to be included, and a rough calculation indicates that this likely doubles the total benefit to over $75 billion over eight years.
The $67 billion expenditure that Western points to over 8 years also has two parts to it — a capital expenditure portion for assets that will last more than eight years and a yearly labor and maintenance cost. I don’t have the time right now to break these numbers down, but this should further increase the size of the benefits relative to the costs.
Other Parts of the Debate
The claim of an “unexplained” gap between blacks’ share of arrests and prison is inaccurate. There are many explanations for this “gap.” Putting dollar values to the costs of punishment and not the costs of crime is also not very useful in conducting any type of cost-benefit calculation.
Yet, the foregoing responses are still playing on Loury and Western’s very narrow field. The points that I have raised about the extremely progressive nature of the total criminal penalty are still being completely ignored. Prison is important but it is just one part of the criminal justice system. Loury raises collateral penalties such as voting rights when it suits him, but he ignores the extremely long list of other collateral penalties when it doesn’t.
In any case, I am still looking forward to Loury’s response to the various points raised.
 The way these numbers for 1979 and 2004 are calculated also exaggerate the size of the gap to readers. It isn’t important to the point that I am making here so I am not going to go through this other than to state the way that I think that these numbers should be reported. Take the results pointed to for 1979. The percentage point difference between the gap Black’s share of the prison population and their share of arrests is 5.69 percentage points. For whites, the same number is 5.70 percentage points. Adding both together indicates a difference of 11.39 percentage points. Since these numbers are already in percent, those differences should be reported that way to show the disparity.
Lott, John R., Jr., “An Attempt at Measuring the Total Monetary Penalty from Drug Convictions: The Importance of an Individual’s Reputation,” Journal of Legal Studies, Vol. 21, no. 1, January 1992: 159-187.
Lott, John R., Jr., More Guns, Less Crime: Analyzing Crime and Gun Control Laws, third edition, University of Chicago Press: Chicago, Illinois (2009 forthcoming).
First Reply to My Critics
Please forgive my delay in replying to these criticisms, as my schedule has been especially tight the last few days. I will offer a brief response now, and will write more over the next week or so. Bruce Western’s response is largely supportive of my original thesis, and so I will say nothing now about his post. But, I do have few words for my critics.
It would appear that I and my critics — the eminent political scientist, James Q. Wilson, and the economist, John R. Lott — are, to some degree, talking past one another. Both Wilson and Lott complain that, by expressing revulsion and disgust at what I take to be a horrid, and uniquely American, practice of mass incarceration, I am overlooking the crime-reducing benefits of this policy, and giving short shrift to the welfare of the victims of crime. Moreover, both are alarmed by my focus on racial disparities in imprisonment in America, disparities which they do not see as raising any larger questions of social justice.
And yet, of course, I am fully aware that crime produces victims, and that one consequence of imprisonment is to deter or inhibit criminal offending. I also know that low-income, minority neighborhoods in American cities can be very dangerous places, both for those who visit as well as for those living there. Finally, I would of course agree with Lott and Wilson that the proper assessment of the rationality of our punishment policies requires one to weigh the benefits of imprisonment alongside its costs. None of this should need saying, but I am happy to say it explicitly if doing so will help a reader not to overlook my main point: that a truly disturbing set of institutions and practices for dealing with criminal offenders have arisen over the last three decades; and that the current situation reflects poorly on the nation as a whole, and demands to be reformed. This is no radical idea. Nor, indeed, is it original to me. One finds no less a centrist than Virginia Democratic Senator James Webb, agreeing with precisely this thesis in his opening statement for the hearings he convened on some 18 months ago under the title, “Mass Incarceration in the United States: At What Costs?”
I have written as I have, emphasizing the costs imposed on lawbreakers and those connected to them by our ways of dealing with crime, because in my opinion (a view that is shared by Sen. Webb among many others), our policy discourses and our punishment practice have given too little attention to such matters. We have, I would maintain, lost sight of the humanity of the “thug.” What Wilson calls my “cry from the heart” is intended, in part, to rectify this imbalance. (Would that we could hear more cries from the hearts of those who have conceived, advocated for and now administer this monstrous system. I am not seeking their apologies — just their considered reflection and constructive self-criticism. Being guided by the heart and using one’s brain are, in my view, complementary and not mutually exclusive activities.)
There is no shortage of pronouncements — from the journalists, the politicians and the academics who address these issues — about the risks posed by criminals, and the sufferings endured by the victims of crime. Everywhere one looks in the culture one sees voice given to how imprisonment serves the interest of the law-abiding. I simply want to rectify what I take to be an imbalance in our deliberations in this nation on the moral calculus of punishment. What’s so wrong with that?
John Lott seems to have scoured my writings on this subject searching for some recognition from me of the fact that black criminals prey largely on black victims. He is clearly disappointed not to have found the right quotation. Why, he seems to be asking — if I am really concerned about the well-being of black people, as such — would I take the side of the thugs? Lott writes as if he believes that it is only because society as a whole values the suffering of black victims rather more than do I that our prisons are so filled to overflowing with young black men. Forgive me if I find that suggestion to be just a bit disingenuous. I doubt seriously that the law-and-order political rhetoric directed at swing voters in America’s suburbs — which is, in fact, the motive engine behind the development of these policies — derives its appeal to those voters from their concern to reduce the depredations endured by inner-city residents. Nor do I believe that “stop snitching” campaigns — which proliferate in black communities around the country and which clearly show the low esteem and limited legitimacy enjoyed by the forces of law and order in those black communities — reflect a failure of black people to see their real allies in an eternal struggle against the common domestic enemy. Neither do I believe that the resentment of police behavior in their neighborhoods felt by many law-abiding black residents — resentment of the stop-and-frisk harassments, and the occasional shootings of innocent but “suspicious-looking” persons — reflect a lack of gratitude from those residents for the devotion of the police to keeping them safe.
The obvious and complex fact of the matter is that residents in these communities are deeply ambivalent about the law enforcement mobilizations to which they have become subject. And this is because, unlike most of the rest of the nation, those black urban residents know firsthand about the costs of mass incarceration to which I have been attempting of late to call attention. What Lott doesn’t say, but what is certainly the case, is that black victims and criminals are often the same persons; they frequently belong to the same households; and, on many an occasion, they are subjected to the same indiscriminate subjugation by the forces of order-maintenance deployed near their homes at the behest of majority. This is all to say that my lamentation at the devastating effects on poor and black communities of concentrated imprisonment hardly signals ignorance of, or indifference toward, the damage done by the criminals who may operate there.
Nevertheless, for me, unlike for Lott or Wilson, it would appear, this situation is not a zero-sum game — a game that is characterized by innocent victims, on the one hand, and evil wrong-doers, on the other, and that requires us to take sides. My view of the matter is more holistic than that. I see damaged, stigmatized and marginalized communities, inhabited by human beings who could, given the right set of circumstances, end up in either camp. What is more, I see our response to the problem of criminal offending in such communities from a holistic point of view. This anti-crime mobilization is the most salient aspect of our social involvement in these communities — it is, as I have said, our social policy, writ large. It’s not the simple administration of justice over and against wrong-doers, on behalf of the rest of us. It is, rather, the method we have chosen to deal with the social consequences of our failure to extend equality of developmental opportunity to all of our citizens. And yet, no other country in the world has reacted to the problems of urban privation in quite the same way as we have done. How can Lott and Wilson be so confident that we have got this one right?
The claim that America is more punitive, but it is also safer than England, Denmark, France, or Canada, simply leaves me befuddled at the moral calculus that is being used to reach that conclusion. I’ve looked at the numbers. And, the differences in rates of burglary, auto theft and so forth between these countries are marginal; while the differences in their rates of incarceration are massive. If it needs to be said, I’ll say it: No, I do not see a 20 percent reduction in the risk of criminal victimization to be sufficient compensation for the construction of the institutions of mass incarceration with which we are now burdened, and which, in my view, corrupt our democracy at its very core. Neither would I accede to the implicit claim by Wilson and Lott that these cross-country differences are due primarily to the differences in the scale of imprisonment.
Moreover, and most crucially, I see the broader society as implicated in the creation and maintenance of these damaged, neglected, feared and despised communities. People who live there know that they are viewed by outsiders with suspicion and contempt. The plain historical fact is that such places as North Philadelphia, or the West Side of Chicago, or the East Side of Detroit did not come into existence by accident, or as the result of some natural processes. They are man-made social structures which were created and have persisted because the concentration of their residents in these urban enclaves serves the interests of others. This is what I mean when I say that the desperate and vile actions of some people caught in these social structures reflect not only their individual moral deviance, but also the moral shortcomings of our society as a whole. This claim of social responsibility, even in the actions of deviant individual criminals, is a coherent philosophical and moral position. I wish that my critics would address themselves to it.
There is much more to say, I and will try to say some of it in subsequent posts. Wilson observes, for instance, with what I can only describe as a glib resignation, that current-day racism cannot account for the fact that blacks are to be found among criminals in about the same degree as they are to be found among prisoners. Rather, says Wilson, the real culprit here is racism from an era long since passed — the institution of racial slavery and the abject failures of the post-Civil War Reconstruction. He and other scholars have shown, he claims, that these depredations, for which no remedy is to be had, have irreparably damaged “black culture.”
I strongly disagree with this position. I doubt that any coherent and non-circular definition of a distinctively “black” culture in this country is to be had. We are all symbiotically connected via institutions of the market, the media, and the state. Anything that happens in one quarter of society entails the actions, ideas and interest of those located in other quarters. Indeed, the very segmentation of our residential spaces and our social networks reflects this fact. Moreover, slavery was a very long time ago. There is much evidence to suggest that, while the effects of 19th-century events on the lives of black people in the 20th and 21st centuries are not negligible, the problems of American ghettos are of rather more recent origin. What about jobs? What about unequal access to social supports which have been elaborated since the 1930s, and upon which the working-class and immigrant “white” communities have so much relied? What about our failure to deliver anything approaching equal educational opportunity to the minority poor? What about the racial politics of resentment that conservative politicians have used to mobilize voters for generations — and not only in the South? What about the War on Drugs, which could have been foreseen to impose the vast majority of its punitive costs on black and Hispanic young men in the cities, despite the fact that the demand for illicit substances is to be found in every quarter of society, and knows no bounds of race or class? Lott’s and Wilson’s “see no racial evil” stance simply does not seem tenable to me. I will have more to say about this.
Wilson has said that it is a “profound error” for me to characterize imprisonment policies in this country as unduly punitive, since scholars and activists all across the land have for years been hard at work trying to prevent youngsters from entering upon, or lapsing back into, a life of crime. Nobody can be happy that we are forced to imprison so many of our most disadvantaged fellow citizens, he suggests. If only we knew how to make gangs less attractive to the youngsters living in the ghettos of our great cities; if only the black family were less prone to the scourge of father-absence; if only it were possible to call a spade a spade, so to speak, and in doing so to target what limited resources are available for crime prevention at “black and Hispanic children in welfare homes,” which are the ones most at risk of producing criminals — but for these impediments, things might be otherwise. One cannot write helpfully about this problem without addressing oneself to such matters as these, he says. And, so I will endeavor to do in subsequent posts, though I suspect that much of what I’ll have to say will not be to Professor Wilson’s liking. My bottom line is that I don’t think we have been trying nearly hard enough to resolve these problems. It is a lack of will, not of knowledge, that is the principle impediment, in my opinion. And, this lack of will derives from the fact that those most subject to the imposition of state coercion in the interest of public order are black and brown, poor and poorly educated, threatening and stigmatized, marginal and unsympathetic. They are them, not us, and we have been content to consign them to a dung heap of human debris to be warehoused in our prisons.
Talk about Policy, Please
Glenn Loury acknowledges that imprisonment in America reduces crime but dislikes imprisonment despite this. I look forward to learning what he would put in its place. If it is rehabilitation, I hope he will explain what rehabilitative programs exist that can reduce recidivism by more than small amounts. If it is crime prevention programs, I hope he will explain what programs he would add (based on evidence of their effectiveness) to the ones I have already endorsed. If he believes that a criminogenic culture exists among many young black men, I hope he will explain what causes it. In short, I hope he will go beyond his cry from the heart and talk about policy. To ignore policy, as he has done so far, is to leave readers of his remarks with nothing to discuss.
The Conversation We Need to Be Having
Jim Wilson wants to have the conversation he wants to have, and I want to have the one I want to have. He thinks his is the only relevant conversation — about policy. I think mine is, at this moment, the more urgent conversation — about values. I believe what we are doing is wrong. Jim doesn’t seems to think that’s worth discussing. I’m asking him to defend the current edifice of punishment in America, or to join me in trying to change it. “Nothing works” is not an argument. What would I have us do? There is no shortage of proposals for reform and mitigation of the American system of criminal justice. We could parse them. But that would not be an answer to the theme of my essay — that governing is about more than solving technical problems. It’s about expressing what we Americans stand for, as a people.
Racial Disparity and the Cycle of Enduring Disadvantage
In his reply to me, John Lott’s discussion of racial disparity points to several points of agreement, and perhaps one fundamental disagreement. Lott discounts studies of racial disparity of the kind that James Q. Wilson and I rely on in our discussions. The basic facts, however, are not disputed: The racial disparity unattributable to measures of crime grew from 20 percent in 1979 to 40 percent in 2009.
Lott indicates three factors which could account for the unexplained gap: (1) “racism in the criminal justice system” which he, oddly, attributes to me, (2) blacks are punished more severely than whites for the same crimes because they have more prior arrests, and (3) within broad offense categories, blacks commit crimes that are punished more severely.
Lott misses the key point, however. To account for the doubling of the unexplained racial gap in imprisonment, something about these factors must have changed. Maybe the racial gap in prior arrests has increased, maybe “racism in the criminal justice system” has increased. I’m not sure what Lott’s theory is here.
There are many other reasons why the unexplained racial disparity in imprisonment may have grown in addition to the three reasons that Lott considers. The criminal law has changed, proliferating aggravating factors in urban areas (e.g., proximity to schools), introducing new public order offenses, providing mandatory prison sentences for drug and other offenses, lengthening sentences for serious violence, and adding sentence enhancements for repeat offenders. All these changes disparately affect African Americans. Blacks with little schooling have also become worse off relative to whites. Young, low-education, black men now have relatively lower employment rates and fewer family supports than in the late 1970s. A good job and supportive family favorably influence decisions about pretrial incarceration, sentencing, parole release, and revocation. Thus, deepening social disadvantage translates into more prison time.
There’s also a larger context that’s missing. The drug arrest rate for blacks skyrocketed through the 1980s then remained at a relatively high level, while the drug arrest rate for whites increased only a little. This surely did produce a large pool of black men with an arrest and felony history, liable for imprisonment and sentence enhancements. Here, I think, Lott and I may agree. However, the driver of narcotics arrest rates in the 1980s was not crime, but a clear change in the policy — the war on drugs.
To pick up the Loury-Wilson thread, our most fundamental disagreement concerns the underlying assumption that racial inequality in incarceration would be justified by racial differences in criminal offending. I disagree, because the negative effects of incarceration threaten public safety and perpetuate social inequality. The massive investment in imprisonment, focused on poor African American communities has not served those communities well. Despite massive correctional expenditures, the urban poor — disparately African American and poorly educated — have neither greatly diminished in number nor moved closer to the social mainstream. Spending less on prisons, and more on early-child programs, as Wilson suggests, is a good step. Still, the adult men that fill the prisons are parents too, and they cannot be left out of the equation as we try to break the cycle of enduring disadvantage.
What Policies Can We Discuss?
Professor Wilson is exactly right about the need to discuss policy. Unfortunately, I can find only one clear policy recommendation, and it is not from Loury’s essay, but from his book — if blacks and whites commit the same crime, blacks should get a lower criminal penalty. Again, this is not based on any evidence, just an incorrect use of Rawls’ “veil of ignorance,” but it is still a policy. I will also briefly discuss some policies where there might be areas of agreement.
Bruce Western offers a possible area of agreement: we might want to decriminalize some activities. This would reduce the number of prisoners — blacks as well as whites. Drug possession and sales is one area, but there are surely a lot of white-collar crimes, such as insider trading, that could simply be treated as theft and not have to have their own set of criminal penalties (Bainbridge, 2008). In other words, firms could decide what types of stock trades their officers should engage in, rather than blanket bans. I suggested the possibility of cutting penalties for drugs in my original piece (there are both costs and benefits from such actions and the net effect isn’t completely obvious), but Loury avoided following up on this issue. I hope that we evaluate eliminating laws based upon the value of the law and not just on the groups that violate those laws at the highest rates.
Should Penalties be Higher for Whites than Blacks?
Loury’s book suggests that a Rawlsean approach implies that criminal penalties should be based on how we “apportion blame and affix responsibility for the cultural and social pathologies evident in some quarters of our society” (Loury, 2008, p. 33). In other words, blacks, who Loury believes suffer from these “cultural and social pathologies,” should have lower criminal penalties for the same crime. Norming — setting different required test scores for different groups — has become the standard for hiring people such as police so possibly it isn’t to surprising that we are now getting around to also applying it to criminals (Lott, 2000a). These different standards are very common. Blacks, not whites, with criminal records get hired to be police (Lott, 2000a). So possibly Loury sees this as no big deal. If you want to ensure that blacks commit even more crime relative to whites, to increase crimes primarily against fellow blacks, this is surely one way to accomplish that. Is this a serious suggestion? Do we want to protect white victims more than black ones? Will poor blacks get even lower criminal penalties for the same crime than more well-to-do blacks?
Unfortunately, while Loury protests that “I am fully aware that crime produces victims,” he doesn’t seem to understand the implications of that statement. Loury relies on the “veil of ignorance” argument for this conclusion, but that in turn relies completely on focusing on what happens to criminals, not victims (Loury, 2008, pp. 32-35). If we value black victims as much as black criminals, it is hard to see how using Rawls’ logic would change the status quo.
So is the unexplained prison gap evidence of racism?
Comparing blacks’ and whites’ share of arrests and their share of the prison population does not allow you to measure racism. It doesn’t do so at a point in time or over time because there are so many things that have nothing to do with racism that can also be changing over this period. I previously mentioned three important differences that actually suggest that per arrest blacks don’t spend enough time in prison: a criminal’s criminal history, the commitment of more serious crimes, and a higher number of offenses (even when the primary offense is the same). I gave numbers for these other factors at a point in time because in past research I had calculated these numbers. Would it be nice to have additional academic work over time? Sure, but given how large the gaps are in these three factors alone, it is doubtful that in 2004 there is a gap that goes against blacks.
Let me put it this way, the 33 percent longer criminal history for blacks is all by itself almost equal to the so-called “unexplained” prison sentencing gap in 2004 by itself. The commitment of more serious crimes and a higher number of offenses would clearly explain much more than the claimed gap. If there were no changes in these factors over time, the “unexplained prison” gap (assuming that it measures racism) implies a less racist system over time — a system that is less racist against whites. The gap starts off large against whites and gets smaller over time. Instead, I would rather just argue that the approach Western uses, and the people he cites approvingly, are just wrong.
Of course, these penalties against whites are on top of the extremely progressive penalty system that I have pointed to time after time here. Loury and Western have spoken volumes by their unwillingness to even address the topic.
There is another irony. Why don’t they look at the death penalty for their “unexplained” punishment claims? Again, I think that the reason they ignore this is obvious. They ignore it because it shows the opposite of racism against blacks.
What if we wanted to help the victims of crime and deter some criminals?
It seems to me that there are real solutions. One that I would throw out is making it easier for blacks, particularly poor law-abiding blacks in urban areas, to get more guns. The gun ownership rate by blacks is very low, as is the gun ownership rate in high-crime urban areas (Lott, 2000b, Chapter 3). Many laws such as bans of inexpensive guns (bans of “Saturday Night Specials”) as well as high fees for concealed carry permits and training classes make it costly for the poor to get guns for protection, but my research convinces me that it is precisely poor blacks who live in high-crime neighborhoods who benefit the most from being able to defend themselves. It would be great if the police could instantly be there to protect people, but we have to acknowledge what the police clearly understand — they almost always get to the crime scene after the crime has been committed.
Personally, I would simply get rid of a lot of laws that make it more difficult for law-abiding people to own guns, and reduce or eliminate the various fees. Others might go further and actively encourage blacks to actively defend themselves.
Are we really going to debate these days that different criminals should have different penalties based on the criminal’s race? What is clear is that that will increase crimes against other blacks. Is that what we really what? There are alternatives to reduce the crime rate in poor black areas. Can’t we talk about those policies?
Again, it is also disappointing that neither Loury nor Western are willing even to acknowledge how incredibly progressive the current criminal penalty structure is.
 There are so many problems with the measure of unexplained prison arrest gap that it is hard to know where to start. Let me give one more example. Prison is a “stock” variable — it is determined by arrest and conviction rates and prison sentences over many years. The arrest rate is a “flow” variable; it only exists within the period of one year. Why anyone would want to compare the prison rate from many years with an arrest rate from a single year and say that a single arrest rate should explain the people who are in prison is a bit of a mystery to me.
 I have been using the categories of criminals desired by Loury and Western, but someplace it should be acknowledged that a lot of white criminals are actually Hispanics. For example, I suspect that even if one ignored all my other points about Western’s argument there was a significant change in the share of whites who were Hispanics in prison from 1979 to 2004, and this alone would play havoc with Western’s claim of increasing racism.
Bainbridge, Stephen M., “Manne on Insider Trading,” UCLA working paper, March 1, 2008
Lott, John R., Jr., “Does a Helping hand Put Others At Risk? Affirmative Action, Police Departments, and Crime,” Economic Inquiry 38, no. 2 (April 2000): 239-277.
Lott, John R., Jr., More Guns, Less Crime: Analyzing Crime and Gun Control Laws, Second edition. University of Chicago Press: Chicago, Illinois (2000).
Loury, Glenn, Race, Incarceration, and American Values. MIT Press: Cambridge, Massachusetts, 2008.
Lott Distorts the Argument
John Lott completely distorts my argument when saying that I favor a kind of “race-norming” of criminal punishment that would have blacks serving less time than whites when convicted of the same crime as whites. He quotes me selectively and out of context. Nowhere in my book, Race, Incarceration and American Values (MIT Press, 2008) do I advocate this. Lott is flailing at a straw man.
An Excerpt from Race, Incarceration, and American Values
Editors’ Note: Professor Loury suggested that we include the following excerpt from pp. 32-35 of his book Race, Incarceration and American Values. He writes, “Feel free to post this and let your readers decide whether or not they think I am advocating in this passage the promulgation of discriminatory criminal penalties favoring black offenders. Clearly, I am not so advocating.” We’ve taken his suggestion.
So put yourself in John Rawls’s original position and imagine that you could occupy any rank in the social hierarchy. Let me be more concrete: imagine that you could be born a black American male outcast shuffling between prison and the labor market on his way to an early death to the chorus of “nigger” or “criminal” or “dummy.” Suppose we had to stop thinking of us and them. What social rules would we pick if we actually thought that they could be us? I expect that we would still pick some set of punishment institutions to contain bad behavior and protect society. But wouldn’t we pick arrangements that respected the humanity of each individual and of those they are connected to through bonds of social and psychic affiliation?
If any one of us had a real chance of being one of those faces looking up from the bottom of the well — of being the least among us — then how would we talk publicly about those who break our laws? What would we do with juveniles who go awry, who roam the streets with guns and sometimes commit acts of violence? What weight would we give to various elements in the deterrence-retribution-incapacitation-rehabilitation calculus, if we thought that calculus could end up being applied to our own children, or to us? How would we apportion blame and affix responsibility for the cultural and social pathologies evident in some quarters of our society if we envisioned that we ourselves might well have been born into the social margins where such pathology flourishes?
If we were to take these questions as seriously as we should, then we would, I expect, reject a pure ethic of personal responsibility as the basis for distributing punishment. Issues about responsibility are complex, and involve a kind of division of labor — what Rawls called a “social division of responsibility” between “citizens as a collective body” and individuals: when we hold a person responsible for his or her conduct — by establishing laws, investing in their enforcement, and consigning some persons to prisons — we need also to think about whether we have done our share in ensuring that each person faces a decent set of opportunities for a good life. We need to ask whether we as a society have fulfilled our collective responsibility to ensure fair conditions for each person — for each life that might turn out to be our life.
We would, in short, recognize a kind of social responsibility, even for the wrongful acts freely chosen by individual persons. I am not arguing that people commit crimes because they have no choices, and that in this sense the “root causes” of crime are social; individuals always have choices. My point is that responsibility is a matter of ethics, not social science. Society at large is implicated in an individual person’s choices because we have acquiesced in — perhaps actively supported, through our taxes and votes, words and deeds — social arrangements that work to our benefit and his detriment, and which shape his consciousness and sense of identity in such a way that the choices he makes, which we may condemn, are nevertheless compelling to him — an entirely understandable response to circumstance. Closed and bounded social structures — like racially homogeneous urban ghettos — create contexts where “pathological” and “dysfunctional” cultural forms emerge, but these forms are neither intrinsic to the people caught in these structures nor independent of the behavior of people who stand outside them.
Race Norming and the Veil of Ignorance: What Else Could Loury Have Meant?
If someone reads Loury’s book and thinks that there is doubt about his answer to the “veil of ignorance” question, so be it. But Loury lists out a range of implications from what he thinks are the obvious answers to the Rawls’ question. Loury notes (2008, p. 32-33):
I expect that we would still pick some set of punishment institutions to contain bad behavior and protect society. But wouldn’t we pick arrangements that respected the humanity of each individual and of those they are connected to through bonds of social psychic affiliations? If any one of us had a real chance of being one of those faces looking up from the bottom of the well — of being the least among us — then how would we talk publicly about those who break our laws? … . What weight would we give to various elements in the deterrence-retribution-incapacitation-rehabilitation calculus, if we thought that calculus could end up being applied to our own children or to us? How would we apportion blame and affix responsibility for the cultural and social pathologies evident in some quarters of our society if we ourselves might well have been born into the social margins where such pathology flourishes? [Emphasis added.]
Either the whole Rawls discussion is a meaningless sideline or not. If it means something and Loury has a conclusion, which he certainly seems to, here are Loury’s own implications for that conclusion. If blame should be apportioned based on “cultural and social pathologies,” doesn’t that mean that blacks have on average greater offsets than whites and less blame for the same crime? That whites have greater “responsibility” for the crimes that they commit? If so, doesn’t that imply that blacks should face less of a penalty? And the poorest blacks at the very least.
My previous post noted that “Loury’s book suggests that a Rawlsean approach implies … .” Indeed, I think that the word “suggests” is quite mild. Yet, if Loury means something else besides how blame and responsibility and thus punishment should be apportioned between the races, I would be interested in knowing what he means. Are there any actual implications that Loury gets out of the “veil of ignorance” discussion?
Finally, I would be most interested in Loury’s response to the policy solutions that I discussed.
From Prison to Work
James Q. Wilson has remarked several times in this symposium that programs for prisoners will have only small effects, and we are better off supporting programs for young children. The implication is that we should divert some spending from prisons to early-child programs. Some early child programs have shown impressive long-term results, but I think it would be a mistake to reduce prison populations without also expanding programs for released prisoners. Some programs, such as transitional employment, can virtually pay for themselves. These programs provide community service jobs under close supervision at minimum wages. Because of the services they provide and the paychecks that flow to poor communities, the programs are intrinsically valuable, providing important benefits to adults with virtually no employment history. Yes, graduates of these employment programs often show only modest reductions in recidivism. But if that is the standard, we should also ask how much prison reduces recidivism.* By this measure, I think transitional employment and other prisoner re-entry programs are important supplements for a system of reduced sentences.
* Critics will say that prison may not reduce recidivism, but it incapacitates criminals from crime and deters would-be offenders. Intensive community programming and supervision is also strongly incapacitative. The difference is that crime in prison against prison staff and inmates is uncounted in our assessments of prison incapacitation. A good case can also be made against the deterrent effect of severe punishment, but that’s a longer topic for another post.
Punishment versus Probation
Western and I agree that post-prison employment programs have only a small effect on recidivism, but he defends them by saying that prison also has only a modest effect on recidivism. He is correct, but he neglects the deterrent effect of prison and, in my view, exaggerates the incapacitative effect of intensive probation. Estimating the comparative deterrent and incapacitative effects of prison versus intensive probation (which may include some employment programs) is a difficult business. If Western has a blog-suitable estimate, I hope he will state it. But prison also has a retributive effect: people, especially victims of crime, want the wrongdoer to be punished. I doubt that many people think that burglars, robbers, and rapists are suitably punished if they are sent to an employment program. Therefore the question Western should answer is for what crimes would he rely on employment programs?
Deterrence and Retribution
Wilson argues that prison has a large deterrent effect on crime. I disagree. People are deterred from crime by the certainty and severity of punishment. Research reviewed by Dan Nagin (JSTOR subscription required) shows that the certainty of punishment deters more than the severity. People refrain from crime more out of a fear of getting caught, than a fear of the punishment that might follow. Additional police will thus deter crime more efficiently than additional prison time. Research also shows that people are deterred by the stigma of a criminal record. When severe punishment becomes commonplace, stigma, and its deterrent effect, are diluted. Today, 60 percent of young black male dropouts will go to prison. It is hard to see a strong deterrent effect in these statistics.
Wilson gets to the heart of the issue when he says that punishment expresses a retributive sentiment. Some people, he says, dislike work programs for released prisoners because the programs don’t quench the thirst for retribution. However, when the state’s vast power is used to vent feelings of righteous anger, we regularly over-reach, using that power to act out many different fears and anxieties, not just our anger at victimization. (The war on drugs was fueled partly by the frustrations of middle class families at the depredations of addiction at home, and not the scourge of drugs in poor urban neighborhoods.) The harshest retributive sentiments, sometimes stirred by political entrepreneurs, are also directed at the most disadvantaged and dishonored groups in society.
Retributive punishment — disproportionate and prejudiced — threatens public safety. Wilson’s proposal to offer employment programs only to “deserving” offenders illustrates the point. I think we should provide jobs, drug treatment, and other supports to people released from prison, precisely to reduce crime. Withholding this support, to vent our anger, only serves crime and the anger it causes.
For Lower-Income Criminals, Prison Deters Better than Reputation Loss
Western notes that “Research also shows that people are deterred by the stigma of a criminal record. When severe punishment becomes commonplace, stigma, and its deterrent effect, are diluted.” However, Western doesn’t seem to understand how these penalties work. The problem is that reputational penalties are much less important for those who have less to lose — those on the lowest rung of the ladder can’t be punished much this way. Unfortunately, that is why locking up people in prison might be a very important way of deterring those who have nothing else to lose.
For the same crime, white collar, higher-income criminals face much, much larger reputational penalties from the legal system than lower-income criminals. Of course, they also face larger fines and restitution, but the reputational penalties constitute the largest part of the total penalty. I provided the details in my first posting. There are two other findings to add: putting people in prison produces a bigger reputational penalty than arrest, and the longer the prison term, the larger the reputational penalty. Evidence on the reputational impact from arrest is hard to find, but the only reputational effects that I know of from arrest occur, for the same reasons, for high income criminals.
This creates an obvious problem for Western’s hope of relying on punishment short of imprisonment to deter poor criminals. While reputational penalties represent most of the penalty for higher-income individuals, for non-drug offenses, prison represents most of the penalty for the lowest-income criminals.
Let me provide some perspective to Western raising the issue of certainty versus severity. Certainty involves the probabilities of arrest and conviction. My first post cited my survey of the evidence that pointed to a similar pattern: “Changes in arrest rates account for up to about 18 percent of the variation in murder rates. Conviction rates explain up to another 12 percent. Prison sentences another 10 percent and the death penalty another 10 percent (see Lott, 2007, Chapter 4).”
Both certainty and severity matter, but relying on changing levels of certainty wouldn’t make much difference if there wasn’t a penalty to back it up, and the reverse is also true. And the cost-benefit discussion that I also provided in an earlier post was based on that same percentage for the impact of prison sentences.
No one has to rely on unjustified retribution to explain a preference for prison over a jobs program. The very thing about prison that upsets Loury and Western — the fact that it is punitive — is the precise reason why we want to have prison sentences: to deter crime, we need punishment. I think that it is that very intuitive point that would be behind people’s rejection of proposals that replaced prison with a jobs program. As I understand Western’s Brookings Institution article, the jobs program works in the shadow of the threat of prison. So it is impossible to evaluate the jobs program as a substitute for prison.
There is also one very serious cost of the jobs program that Western’s cost-benefit analysis for Brookings ignores. If the jobs program takes some of the long-term penalty sting out of committing a crime, a permanent program where people thinking of committing the first time knew about it, the jobs program could increase crime. Because of this it is likely that Western’s proposal has overestimated the benefits he claims exist.
Wilson’s arguments aren’t based on “disproportionate and prejudiced” anger, but on logical arguments about deterrence. Interestingly, Western keeps pointing to evidence such as the so-called unexplained arrest-prison gap, or now reputational penalties, that shows that high income and white criminals are the ones that get punished more severely by the legal system.
 You just can’t compare a one percent change in arrests or conviction rates and a one-month increase in prison, because the two are in different units. How much these variables explain of the change in crime rates depends on how much they change and the impact that they have. Prison sentence lengths tend only to change relatively gradually, especially when compared to arrest rates. I could also get into confusions over marginal versus average deterrence, but those discussions are beyond the scope of the current debate.
Deterrence and Values
Two points for Lott. First, he writes that “locking up people in prison might be a very important way of deterring those who have nothing else to lose.” How much deterrence does he see among the young African American dropouts, 60 percent of whom are going to prison, and many more are spending time in local jails? We are agreed that when people have very little, deterrence is a very (socially and financially) expensive proposition.
Lott also asserts that Wilson’s arguments aren’t based on “disproportionate and prejudiced” anger, but on logical arguments about deterrence. When Wilson asks what crimes are deserving of post-release services and what crimes are undeserving, this is an appeal to values. Which is fine. It’s the discussion Glenn Loury wants us to have. But it’s not about logic.
Bruce Western somehow manage to transpose my factual statements into political slogans with which he disagrees. I said prison deters. It does: see the research work of Daniel Nagin, Steven Levitt, and many others. He denies this (for reasons he does not explain) but then adds that the certainty of punishment deters crime. But the prospect of going to prison is punishment, and increasing the certainty of that, as Nagin and Levitt have shown, reduces crime. How, then, can he say that prison does not deter crime? I am puzzled.
Perhaps he means, as he later suggests, that having more police deters crime without regard to prison. But as my research and that of Robert Sampson has shown, it is not the number of police but how they are deployed that affects the crime rate. The reason is that deployment, properly done, increases the chance of an arrest being made, and the arrest can then lead to a prison sentence. He cannot accept the idea that society, and especially criminal victims, attach a high value to retribution. Apparently he has this view because he thinks that retribution will be directed at the most disadvantaged and dishonored groups in society. But that is hardly the case: If an ordinary first-time burglar had broken into the Democratic Party headquarters at Watergate, he would, if caught, probably have been placed on probation. But when, as it turned out, the first-time burglar was sent by the White House, he went to prison.
Suppose a woman has been raped. Would she be satisfied with sending the rapist to an employment program? I doubt it. She would expect him to be imprisoned whether he was a Harvard student or a high-school dropout. I think it is time for Western to tell us concretely what polices he would favor in lieu of prison and for what offenses. Glenn Loury does not want to discuss policies, he only wishes to exchange views about values. Is this also Western’s view? I cannot tell.
Let’s Think Through Our Values First
It’s not — as Prof. Wilson suggests — that I want to avoid an objective discussion of policy and only bandy about my subjective views concerning values. Rather, it’s that I think the values discussion is a necessary condition for a defensible policy discourse. We have to argue over what we’re trying to achieve before we can enter into a debate about how to achieve it. The differences aired here between Wilson and Western about the nature and importance of the retributive aspect of punishment sharply illustrate the wisdom of my position. My view is also confirmed, I would maintain, by the debate which has simmered just beneath the surface of our exchanges over the importance of public safety: “Prison deters crime” may be correct as a statement of fact. But whether this much prison is justified by that much deterrence is, inescapably, a question about values. If Wilson thinks he has no value positions, or that his positions are self-evident and not in need of defense, then I believe him to be mistaken.
A Few Unanswered Points
Prison isn’t cheap, but the alternative of not having it is much more expensive. Western’s argument is that crime is high despite the level punishment and so obviously prison doesn’t matter. What he doesn’t seem to acknowledge is that things can be much worse. A city with a murder rate of 25 per 100,000 people can find itself with a murder rate of 50. By the way, if Western is interested, my book More Guns, Less Crime actually shows that the deterrent effect of the legal system is greatest in the high-crime urban areas.
Despite Western’s comments, both retribution and anger can be rationally based. Values can exist for a reason.
Here are some of the points on which there haven’t been responses from Loury and Western.
– When one looks at the total penalty system, criminal penalties are extremely progressive. Western has now raised the importance of reputational penalties, but he won’t discuss or recognize what that implies for the progressivity of overall penalties. Fines and restitution are also much higher for higher-income criminals. If overall penalties are extremely progressive as the reputational data suggests, it must be dealt with in any discussion of “fairness.”
– Everyone agrees that there is a serious tragedy of black committing crimes at high rates and that that crime is overwhelmingly committed against black victims. The notion that a Rawlsean “veil of ignorance” argument would imply special treatment for black criminals doesn’t fly if we also care about black victims.
– The mislabeled “unexplained prison gap” raised by Western is more consistent with a system that is racist against whites than blacks, though that the penalty system appears to be becoming less racist against whites over time.
– Except for saying that I have somehow misinterpreted his book, Loury offers no alternative explanation for what he meant when he asked if we should “apportion blame and affix responsibility for the cultural and social pathologies evident in some quarters of our society.” When I read this in connection with setting penalties it suggests to me that blacks should face lower penalties than whites for the same crime. Loury disagrees but offers no alternative suggestion for what he meant.
Lott, John R., Jr., More Guns, Less Crime: Analyzing Crime and Gun Control Laws, Second edition. University of Chicago Press: Chicago, Illinois (2000).