Multitudes Behind Bars

The latest New York Times story about unique features of the American legal system, "U.S. Inmate Count Dwarfs Other Nations’" looks at the number of people in prison in the U.S.  In a nutshell:

  1. The U.S. has the largest number of people behind bars, and the highest per-capita incarceration rate of any country (Russia is second).
  2. This is not primarily about America’s racial divisions or general violence level: minorities are overrepresented in prison everywhere, and European countries have comparable levels of assault, but much lower levels of murder.  Over half of the murder-rate discrepancy is explained by the number of guns in circulation in the U.S.
  3. About the same proportion of people go into prison each year in the U.S. and in other countries, but they stay there longer in the U.S. because they get longer prison sentences.
  4. Crime and violence are treated as matters for expert resolution in other countries, but they are seen as political issues in the U.S., which means public demand for longer prison terms translates into law quickly and effectively.
  5. Lots of the difference between foreign and U.S. imprisonment rates comes from laws which impose prison sentences for minor drug offenses and property crimes, which rarely lead to prison terms anywhere but America.

It’s good to see this much-misunderstood topic being addressed in the U.S. press.  Tyler Cowen rightly calls over-incarceration one of the underreported scandals of American society.*  And there’s a nice comparative angle to the piece, too.  The author interviews Michael Tonry and James Whitman, who’ve done a lot of good work on the question why America has such a drastically higher incarceration rate than comparable countries.

European commentators sometimes exaggerate differences between the U.S. and Europe, but here, there really is a wide gulf.  Western European penal codes typically use prison as a last resort, mandate that sentences be as short as possible, and that prisons themselves should reduce the harm caused by confinement and prepare the prisoner to lead a crime-free life upon release.  The result is a policy that reserves actual prison time only for serious offenders, and sends people to prison for a fraction as long as they go in America.  There’s been a conscious policy choice in countries like the Netherlands and Germany to respond to most non-serious crimes (non-lethal assaults and burglaries, drug use and sales, prostitution) with reactions less than imprisonment.  The theory is that these peoples’ problems can be managed in the community, and sending them to prison will only aggravate their problems.

Of course, not all ordinary voters agree with these policies.  However, they have no real chance of influencing them.  In Europe, criminal justice policy is made by the national legislature in close cooperation with criminologists, psychologists, and lawyers.  There’s no direct public influence (the same can be said of monetary or foreign policy in the U.S.).  This can be controversial, especially after some high-profile incident of recidivism.  Mass-market tabloids will complain of how soft-on-crime judges and lawyers are, just as they do in the U.S.  However, as with so many topics of public outrage, the only result is a few tabloid headlines and a few dozens irate letters to the editor.  Then, everything fizzles.

To get to a point where ordinary Germans could actually exercise direct influence over criminal-justice policy, they’d have to mount a sustained grass-roots campaign and overcome innumerable structural and political hurdles (such as the fact that judges are chosen by a civil-service system that insulates them from external political influence).  Since this isn’t feasible, Germans who would like to see tougher criminal laws have only one real choice: switch their vote to another political party.  But even that doesn’t bring significant change.  Although political parties in Germany disagree on some aspects of criminal-justice policy, they all agree that making criminal-justice policy should be left to the experts.  In Europe, political grandstanding about crime is just that: grandstanding.  No matter how outraged they become, ordinary citizens can never force drastic increases in penalties. 

Things are different in the U.S., where judges are elected and politicians exquisitely sensitive to the public’s fear of crime.  When crime rates increase, as they did from the mid-1970s to the mid-1990s, Americans get and demand results from their political system.  This graph says it all:


Examples of direct public control over crime policy abound.  The state of Oregon, for example, reintroduced the death penalty in 1984 as a result of a statewide popular referendum.  The famous California ‘Three Strikes and You’re Out’ law (which requires long mandatory prison sentences for someone convicted of a third felony) was initially drafted by a photographer from Fresno, Mike Reynolds, after his daughter had been murdered.  During a 1994 gubernatorial campaign in which crime rates were a key issue, both the legislature and the governor pledged to enact Reynolds’ proposal word-for-word, and carried through on that promise.  So in California, one man — who had no legal training — drafted a law that passed through the entire lawmaking bureaucracy and review process without being changed, and became the law of the land for 20 million people.  This level of direct public participation in criminal-justice policymaking is unthinkable in any European state. 

And, of course, this level of direct public participation has led to mass incarceration in the U.S.  Esepcially in states in the South, where incarceration rates are sky-high, the social consequences of having such huge numbers behind bars will last for decades.  American prison inmates have no right to keep their stay in the joint private; for the rest of their lives their criminal records will be listed in public databases which every employer, landlord, and prospective girlfriend will check.  Many convicted felons lose their right to vote forever.  Follow-up and re-integration programs for released prisoners are primitive.  In Texas, until very recently, released prisoners get nothing more than $50 and a bus ticket back home.  Whatever drug-treatment and vocational-rehab treatment slots exist are hopelessly overbooked.  Prison healthcare also leaves a great deal to be desired, although it’s generally better than what’s available in the free world for people at the lowest depths of American society.

There does seem to be a growing realization in the States that overincarceration is a problem, at least in more liberal states like Minnesota and New York.  In the deep south, though, where incarceration rates are sky-high, there’s been little change.  In the U.S., criminal-justice policy is a one-way ratchet towards ever stiffer sentences.  Relentless politicking on the issue has drilled a fear of seeming ‘soft on crime’ into politicians, so few are willing to challenge the status quo and call for ‘softer’ sentences.  Also, prisons are often located in depressed rural areas, where they become the main source of decent jobs.  They have now become a significant state-funded jobs program, and we all know how difficult those are to cut.  So, even though crime rates in the U.S. have been dropping significantly since the mid-1990s, criminal-justice policy still emphasizes imprisonment — only the rate of increase in the prison population changes, not the rate of imprisonment itself.  Whether that will change in the near future is anybody’s guess.  I’m not holding my breath…