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… 

4 thoughts on “Multitudes Behind Bars

  1. It comes down to a single critical difference; in the US the people remain sovereign – in Europe they (mostly) are not. It’s not true that the US lacks self-described enlightened elites in these areas fully willing to create European-style policies. No, the critical difference between the US and Europe is that in the US the people retain the last word of whom holds power – from the top down. Even the Supreme Courts of thr US and the various states are, in the end, responsible to and responsive to the people.

    I think another factor was a reform of the criminal justice system which backfired and produced a reactionalry response in the US. The reformers did not stay closely in touch with public attitudes on crime but rather forged ahead with fundamental reforms, frequently driven by lawsuit rather than lawmaking. I think they fell in love with their own supposed enlightenment and failed to realise the dangers of getting out too far ahead of public opinion until too late.

    It will be the work of many years repairing the damage. In fact it may well only occur with the passing of the older generations who remember the lawlessness of late 60’s and the 70’s.


  2. The repsonsiveness of the US system to the people (in the long term) is what differentiates US-style democracy from the European variety. Many European commentators have noted the effervescence of the 2008 presidential campaign and compared this favorably with leadership campaigns in most of Europe. I think the vitality of US political campaigns extends to other offices such as state governorships, city mayoralties, some (not all) congressional and senatorial districts, and even some judicial elections.

    The reason for this difference is, I think, the fact that these elections matter more in the US. I see Prime Minister Brown and Chancellor Merkel as far more constrained in the choices they can make by the system. Even though the UK PM’s office is shockingly powerful in some senses, the sovereignity of Parliament is increasingly constrained by European law and a strong independedent judicial establishment which interprets European law independet of the political system.

    The US judiciary is independent, but only in a ‘lifetime tenure’ sense at the very most. The judicial establishment in the US is ultimately subject to the political process in a way in which it is not in the UK. When Chief Justice Earl Warren retired he was replaced by a far different man, Warren Burger, and Burger was replaced by another much different man in William Renqhist.

    Federal judges usually enjoy lifetime tenure absent criminal malfeasance, but state judges are usually subject to the suffrage of the people albeit at longish intervals.

    As we have seen this system can have it’s dark side. It avoids the permanent ‘dictatorship’ of entrenched eletes (good) but also deprives the US of the benefits of rule by ‘philosopher-kings’ (aka enlightened elites) – should there be any such. I personally am a skeptic about such benefits, at least in the long term to very long term. Mandarism is a seductive siren of an idea, but I think history shows that mandarinates tend not to cope with swift change very well.


  3. One final point before I leave here.

    In most (all?) European countries judicial reform can be accomplished largely within the judicial establishment. If there is some kind of concensus within the european establishment reform can be imposed in several ways. Certainly this can happen within state boundaries, but much such reform seems to occur as a matter of european law enacted in Bruxelles. Finally this can be done as part of the Eu treaty enactment process. This latter vector of change is, I think, a primary reason why the propsed European constitution has encountered such extraordinary and vehement public opposition in many countries. It is seen as anti-democratic – and indeed it is that.

    In the US fundamental reform is driven by public opinion and suffrage. It is much more difficult to change the US legal system in a permanent way, but once public attitudes have evolved such changes tend to be extremely permanent and even popular. It is impossible to envision the return of Jim Crow (legalised discrimination) or eugenics laws in the US because there is risible public support for these things.

    But it requires a lot of groundwork. Citizens must be convinced, politicians persuaded, etc. The battle cannot merely be fought in legal journals and organs of ‘enlightened’ opinion but also in the popular press. Efforts to reform far ahead of public opinion are ultimately doomed to failure. Indeed the last such effort (the anti death penalty movement of the late 60’s) and much of the work surrounding the Mendoza decision actually backfired and set back the goals of the reformists by a generation or possibly longer.

    I think the tide may be turning on public opinion, but I think the reformers would be wise to view this strategically and not grab for cheap and easy victories enacted by expedient means. Change minds and hearts and the law will follow. Change the law without changing minds and hearts and you will fail – badly.


  4. Many convicted felons lose their right to vote forever.

    This is an interesting detail. It is something to keep in mind when you hear that the American way of determining criminal justice policy is more democratic: The people who have first-hand experience, as it were, with the prison system don’t get to vote anymore.

    In Germany it’s also relatively easy to lose your right to be elected to a public office (temporarily!), but losing your right to vote – while possible in specific circumstances (involuntary commitment to a mental institution) – is rare.


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