Locked In

INTRODUCTION

AMERICAN EXCEPTIONALISM

THE STATISTICS ARE AS SIMPLE AS THEY ARE SHOCKING: THE United States is home to 5 percent of the world's population but 25 percent of its prisoners. We have more total prisoners than any other country in the world, and we have the world 's highest incarceration rate, one that is four to eight times higher than those in other liberal democracies, including Canada, England, and Germany.¹ Even repressive regimes like Russia and Cuba have fewer people behind bars and lower incarceration rates.

It wasn't always like this. Just forty years ago, in the 1970s, our incarceration rate was one-fifth what it is today. It was comparable to that of most European countries, and it had been relatively stable all the way back to the mid- to late 1800s. It was, in short, nothing out of the ordinary.

In fact, the prison boom started so suddenly that it caught most observers by surprise. In 1979, a leading academic wrote that the incarceration rate would always remain fairly constant, because if it climbed too high, state governments would adjust policies to push it back down.² As Figure 1 makes clear, however, the timing of that paper could not have been worse. The number of people in state or federal prisons rose from just under 200,000 in 1972 to over 1.56 million in 2014; the incarceration rate grew from 93 per 100,000 to 498 per 100,000 (peaking at 536 per 100,000 in 2008). Another 700,000 people are in county jails on any given day, more than two-thirds of whom have not been convicted of any crime and are simply awaiting trial.³

Figure 1 US Incarceration Rates, 1925–2014

Source: Patrick A. Langan, John V. Fundis, Lawrence A. Greenfield, and Victoria W. Schneider, "Historical Statistics on Prisoners in State and Federal Institutions, Year-End 1925-1986," US Department of Justice, December 1986, accessed October 11, 2016, www.bjs.gov/content/pub/pdf/hesus5084.pdf, and US Department of Justice, Bureau of Justice Statistics, "Data Collection: NPS Program," www.bjs.gov/index.ctm?ty=dcdetail&iid=269.

Remarkably, these numbers understate how many people are locked in prisons and jails each year. In 2014, approximately 2.2 million people were in state or federal prisons at some point, and perhaps as many as 12 million passed through county jails.⁴ Although the data are patchy, it's clear that tens of millions of Americans have spent time in prison or jail since the 1970s. Historians, sociologists, criminologists, and economists disagree over exactly what changed in the 1970s that caused the surge, but clearly something—or a lot of things—changed, and our prison populations took an unprecedented turn.

Figure 2 Crime Trends, 1960–2014

Source: US Department of Justice, FBI, "Uniform Crime Reports," www.bjs.gov/.

One clear cause was rising crime. Starting around 1960, crime rates started to climb steadily. By 1980, violent crime rates had risen by over 250 percent, and property crime rates by over 200 percent; after a brief lull in the early 1980s, violent crime spiked again in 1984, peaking in 1991 at almost 400 percent of its 1960 level (more or less).⁵ By the start of the 1990s, violent crime in America had never been worse, and property crime remained as bad as it had been in 1980. (See Figure 2.)

It's not surprising, then, that prison populations also increased sharply during these decades. Surely this was in part just a mechanistic response, since more crime leads to more arrests, and thus to more convictions and more prisoners. But a mechanistic response cannot fully explain what happened with incarceration. The impact of rising crime on prison populations is difficult to measure empirically, and it can only be done with a fair amount of uncertainty, but the best estimate of that impact suggests that rising crime over the 1970s and 1980s can explain, at most, just half the increase in prison populations over those two decades. And that relationship likely weakened during the 1990s, as prison populations continued to rise even as crime declined.

Few, however, pushed back against this relentlessly rising incarceration rate. During the 1980s and 1990s, support for increased incarceration was strong. Crime was rising throughout the 1980s, making tough-on-crime policies popular, and although crime began a slow and steady decline in the 1990s, many viewed incarceration as a primary cause of that decline and thus continued to support it. There were some brief calls for reform at the start of the 2000s, as crime continued to decline and state budgets contracted in the wake of the dot-com crash, but they were fleeting. Economic recovery came quickly, and any nascent reform efforts quickly foundered.⁶ With the fiscal crisis of 2008, reformers revived their efforts, and the movement finally started to pick up steam. With prison populations at all-time highs and crime dropping to forty-year lows during a fiscal collapse far deeper and more sustained than the 2000 contraction, the opportunity to push for real reform seemed to be at hand.

In fact, the confluence of low crime and tight budgets has led to a surprisingly bipartisan push for reform during a time when those on the Left and the Right can barely agree on whether it is raining outside. Coalitions have brought together not just left-leaning reformers who have long opposed the social costs and the disparate racial impacts of our prison system, but also a complicated assortment of conservatives, including both budget hawks, who now prioritize cutting corrections budgets over their traditional tough-on-crime perspectives, and conservatives who are more ideologically committed to reform, such as redemption-focused evangelicals.⁷

In 2010, for the first time since 1972, the US prison population edged downward. And then it continued to fall for three of the next four years. By the end of 2014, the last year for which we have national data, it was about 4 percent smaller than it had been in 2010.⁸ That's not a large drop, and certainly not one that challenges our position at the top of the international incarceration tables, but—perhaps!—it's a sign of things to come.

For reformers hoping to make deep cuts to our prison populations, these may seem like exciting times. State and federal prison populations are dropping, and every month or so it seems like someone is introducing a new bill in a state legislature or in Congress to change the system even more. The issue is also becoming popular among members of the general public. In a survey of registered US voters by the Pew Research Center in early 2016, 44 percent of all respondents said they believed that "reforming the criminal justice system should be a top priority"; the percentage rose to 73 percent for black respondents and 48 percent for Hispanics.⁹ By the start of 2016, the nascent Black Lives Matter movement had forced Democratic presidential candidates to address criminal justice issues more candidly and more often, especially as they pertained to race. Because of all this, many think the reform movement is making great strides.

I am not so optimistic.

At the heart of my pessimism is the fact that the current reform efforts rely on a conventional wisdom about prison (population) growth—what I will call the "Standard Story"—that either substantially oversimplifies or simply gets wrong the factors driving the incarceration epidemic. Reforms built on misconceptions will disappoint at best and fail at worst. My motivation for writing this book is to highlight the mistakes and shortcomings of the Standard Story; to point out the more important, but generally underappreciated, causes of prison growth; and to suggest a set of reforms that are more likely to yield durable change, but that so far seem to be all too absent from reform conversations.

The core failing of the Standard Story is that it consistently puts the spotlight on statistics and events that are shocking but, in the grand scheme of things, not truly important for solving the problems we face. As a result, it gives too little attention to the more mundane-sounding yet far more influential causes of prison growth. For example, a core claim of the Story, made perhaps most forcefully by Michelle Alexander in her book The New Jim Crow: Mass Incarceration in the Age of Color-Blindness, is that our decision to lock up innumerable low-level drug offenders through the "war on drugs" is primarily responsible for driving up our prison populations. In reality, only about 16 percent of state prisoners are serving time on drug charges—and very few of them, perhaps only around 5 or 6 percent of that group, are both low level and nonviolent.¹⁰ At the same time, more than half of all people in state prisons have been convicted of a violent crime. A strategy based on decriminalizing drugs will thus disappoint—and disappoint significantly. Yet we see little to no efforts to reform the treatment of people convicted of violent crimes.

The Standard Story also argues that increasingly long prison sentences have driven growth, and thus that cutting back sentences would effectively cut prison populations. President Barack Obama made this claim in a major 2015 speech, and it has been made repeatedly before and after by innumerable academics, journalists, and policymakers. The claim isn't exactly wrong: by international standards our sentences are long, and if people spent less time in prison, obviously prison populations would decline. In practice, however, most people serve short stints in prison, on the order of one to three years, and there's not a lot of evidence that the amount of time spent in prison has changed that much—not just over the 1990s, 2000s, and 2010s, but quite possibly over almost the entire prison boom.

The far more significant change, as I will explain more fully throughout this book, is the increased rate at which people get sent to prison in the first place. The primary driver of incarceration is increased prosecutorial toughness when it comes to charging people, not longer sentences. Stopping prosecutors from sending people to prison to start with would be far more effective in cutting incarceration rates than reducing the amount of time prisoners spend in prison once they get there—and this fact points to a very different set of reforms than those generally proposed.

The Standard Story also talks extensively about the "prison industrial complex"—a term made famous by journalist Eric Schlosser—and the power of the companies that run private prisons.¹¹ Tellingly, when 2016 presidential candidate Bernie Sanders decided to show his concern for criminal justice reform, his first step was to submit a law that attempted to ban private prisons altogether. For her part, Hillary Clinton publicly returned the relatively meager campaign donations she had received from private-prison executives once it became public that the donations had been made.

Private spending and private lobbying, however, are not the real financial and political engines behind prison growth. Public revenue and public-sector union lobbying are far more important. As states and counties have become wealthier, they have spent more on corrections (and everything else), and reining in that spending is much harder to do than limiting private firms' access to corrections contracts. Similarly, the real political powers behind prison growth are the public officials who benefit from large prisons: the politicians in districts with prisons, along with the prison guards who staff them and the public-sector unions who represent the guards.

There is one central aspect of the Standard Story, however, with which I agree: the critical role that race has played in driving up prison populations. Race does not come up much at the start of this book, where I focus on defining the factors causing mass incarceration. Showing that recent prison growth has been driven primarily by increased felony filings by prosecutors does not require an extensive analysis of race and punishment.

When turning to solutions, however, race becomes much more important. To figure out what we must do to responsibly reduce the prison population, we must understand why we have seen the results that we have—and that implicates race (along with class and other factors).¹² To address why prosecutors have become more aggressive in filing charges, for example, we must think about the impact of racial segregation. Urban prosecutors are elected at the county level, where political power is concentrated in the wealthier, whiter suburbs, while crimes disproportionately occur in the poorer urban cores with higher populations of people of color. This segregation of costs and benefits is a racial story more than anything else. Identifying prosecutorial aggressiveness as a driver of growth does not necessarily require much consideration of race and punishment—but correcting it does.

Despite my criticisms of the Standard Story, I believe that sizable cuts in the US incarceration rate are possible. But I believe that they will be harder to achieve than many hope, and that they will be far more tentative and vulnerable to reversal than many expect. There will be no moment when legislators sign a bill that will definitively end mass incarceration, allowing reformers to declare victory. The Standard Story explanation suggests that this may be possible. It is not.

To really change prison populations, we need a better model of what caused prison growth and what can reverse it. This book provides that model, reinterpreting the data used to support the Standard Story and calling on data that account has overlooked. In the end, this approach will suggest a set of solutions remarkably different from the ones typically proposed.

WHAT DO WE MEAN BY "MASS INCARCERATION"?

Before we jump into what has or has not caused "mass incarceration," it may help to ask what exactly that term means. Although widely used, it has no precise definition, and it is impossible to say at what point our incarceration rate moved from normal to high to "mass."¹³ Furthermore, although pretty much everyone agrees that we need to move away from today's "mass" incarceration to something less, what that number should be is unclear.¹⁴ Most targets—like Cut50's goal of "cut it in half"—seem to be chosen more for their intuitive appeal than for their precise policy implications.¹⁵ The criticisms over "mass incarceration" essentially boil down to claims that we have too many people in prison, although we don't really know how many too many; and that we should reduce that number, although we don't really know what the new goal should be.

Part of the problem is that no one has provided a metric for determining how many people in prison is "too many" (except perhaps prison abolitionists, for whom it is any number much greater than zero). Should we rely on some sort of strict cost-benefit analysis—and if so, what sorts of costs and benefits should we include? Does harm to the inmate count, for example, or harm to the inmate's family? And are there other moral values, such as retributivism or mercy, that argue for more or fewer people in prison, independent of any effect on crime or safety or budgets?

Further complicating efforts to determine where "mass" incarceration starts is the fact that it's not even clear how to define the incarceration rate. Traditionally we look at the number of prisoners per 100,000 people (as in Figure 1). Another way to measure the US incarceration rate is by the number of people imprisoned per 1,000 violent or property crimes, and these statistics tell a very different story. In the first method, incarceration probably becomes "mass" sometime in the late 1980s or early 1990s, by which point it had practically tripled from its mid-1970s levels. The second method, shown in Figure 3, demonstrates that when we scale by crime, not population, incarceration doesn't turn "mass" until sometime in the late 1990s or 2000s, well into the crime drop that began in 1991.

Figure 3 Prisoners per 1,000 Violent or Property Crimes, 1960–2014

Source: US Department of Justice, FBI, "Uniform Crime Reports," and Bureau of Justice Statistics, "Data Collection: NPS Program," www.bjs.gov/index.cfm?ty.

Neither of these methods is right or wrong. They simply represent two different ways of thinking about the incarceration rate, one in general historical terms, the other in terms that account for trends in crime. But they have quite distinct implications about where we now stand and about where we should aim to return. On top of all this, our ability to choose a new "target" incarceration rate is hampered by the fact that we lack a good understanding of the extent to which prison reduces crime. We perhaps know enough to make some broad claims—such as that rising incarceration has little effect on crime today—but we are constrained by not really knowing how much crime each additional prison admission prevents.

In fact, at every turn, efforts to measure the gains and costs of incarceration confront a host of empirical blind spots, an unfortunately all-too-common problem when studying crime and punishment. We lack clear estimates of how many crimes each person sent to prison would have committed if they had not been sent to prison. Nor do we fully understand how that kind of figure might have changed over time. Furthermore, there are all sorts of collateral costs that come from being sent to prison—lost income and family connections, diminished health—that are hard to measure. The possible benefits of incarceration are also hard to calculate, from the benefits to potential victims who escaped harm to the benefits to the general public that come from simply feeling safer.

Yet for all the difficulty with establishing the "ideal" level of incarceration, we can still say with some confidence that prison populations are too large today. Prison growth has certainly started to exhibit diminishing returns. In the 1970s and early 1980s, prison populations were low while crime rates were rapidly growing. Rising incarceration helped stem the rise in crime, even if it couldn't completely reverse the impact of the other factors pushing crime up to begin with. Crime, however, is now low and prison populations are high, suggesting that the return on each additional prisoner is much smaller than it was in the 1970s or 1980s. Although there has been little rigorous work done on this issue, the best results we have (which I will discuss in more depth in Chapter 5) indicate that this is in fact the case. Rising prison populations continue to contribute to falling crime, but their impact has declined greatly, and it is becoming hard, if not impossible, to justify still larger prison populations on crime-fighting grounds.¹⁶

Moreover, although it is true that prison "worked"—using "worked" to mean only that crime would have been higher had prison populations not gone up, assuming everything else stayed the same—that does not mean that rising incarceration was the best response to rising crime. There were certainly better options available. A growing body of research indicates, for example, that noncustodial rehabilitation programs consistently outperform those run in prisons.¹⁷ Bolstering police forces is another option: the economist Steven Levitt once estimated that from a crime-reducing perspective alone, a dollar spent on police goes at least 20 percent further than a dollar spent on corrections.¹⁸ Yes, problems with policing today clearly suggest that a dollar spent on policing could often be even better spent on non-policing options, but whatever the problems with police, those with prisons are surely worse.

The benefits that incarceration has yielded in terms of reduced crime also have to be balanced against a wide array of often hard-to-estimate "collateral" costs. Some of these costs, such as the income that inmates have lost while they were incarcerated, and the lower pay they face once they have been released, are measurable. Others are harder to estimate, even with good data. How, for example, do we account for the emotional costs of having a family member locked up fifty or one hundred miles away from home? Or the personal and social costs of a prison system that disproportionately impacts minorities, and that in doing so reinforces racial biases and inequalities? Or the increased future health costs (not just the dollar costs, but the emotional and social costs as well) that those who have gone to prison face after release? Of course, there are a lot of benefits to incarceration that might be hard to quantify as well—but many of these could be obtained through non-incarceral measures, so shifting away from prisons wouldn't necessarily jeopardize them.

At the same time, it is possible to oversell the argument that our prisons are too large. Three particularly important problems stand out. First, debates tend to misstate who is in prison. Most prison-reform discussions start with something along the lines of, "We send too many nonviolent and drug offenders to prison." And although it is likely true that we send too many, that doesn't mean that these offenders make up most of the people in prison. In fact, over half of all state inmates are in prison for violent crimes, and the incarceration of people who have been convicted of violent offenses explains almost two-thirds of the growth in prison populations since 1990. Similarly, almost all the people who actually serve long sentences have been convicted of serious violent crimes. To make significant cuts to state prisons, states need to be willing to move past reforms aimed at the minor offender and focus much more on the (far more politically tricky) people convicted of violent offenses.

Second, most arguments in favor of prison reform overstate the impact of prison spending on state budgets. The $50 billion or so that states spend to run their prisons is certainly a lot of money, but that comes to about 3 percent of state spending, a percentage that has been fairly stable for roughly the past fifteen years.¹⁹ This is likely one reason why incarceration was allowed to continue with so little regulation for so long: because, in the end, prison spending did not limit spending elsewhere enough to generate much resistance.

And third, despite the fact that crime has essentially dropped for twenty-five straight years, crime rates are still fairly high. For all the decrease in crime rates since 1991, the official rate of violent crime in 2014 was still roughly twice that of 1960, and the rate of property crime was still one and a half times the 1960 rate.²⁰ So whatever the target prison population should be, we should be wary about returning to 1972 levels, when prison populations began their slow, relentless rise to the heights they have reached today.

Despite these three caveats, however, the evidence we have strongly suggests that prison populations are simply too large, and that cutting them back is sound policy. It's true that incarceration has focused much more on those convicted of violence than the Standard Story suggests, and that its overall financial cost is less than many think. Yet the costs of the high rate of incarceration are still enormous, not just economically, but socially and culturally as well, especially for the families and individuals touched by it.

Furthermore, recent experiences in many states make it clear that reducing prison populations need not lead to increases in crime. Between 2010 and 2014, state prison populations dropped by 4 percent while crime rates declined by 10 percent—with crime falling in almost every state that scaled back incarceration.²¹