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Monday, October 22, 2012

Intractable U.S. incarceration policy

Berkelely Law's Jonathan Simon is a reliably perceptive analyst of American criminal justice policy.  His observations here on Calif. Gov. Brown's recent statements about prison policy are depressingly insightful.  Brown, speaking on the state's plan to meet the Brown v. LaPlata mandate that it reduce prison overcrowding from 200% capacity to a mere 137% of capacity, assured the public that reform would avoid "let[ting] felons out of prison."  It's another small sign of politically intractable reform of America's incarceration rate--the world's highest by far--has become, even in the wake of the 2008 crash and state budget crises.

The U.S. incarceration rate grew from 220 (per 100,000 residents) in 1980 to 753 in 2008.  The same year, only two other OECD states had rates over 200 (Czech Rep., 206; Poland, 224); data here. Criminal justice scholars and policy advocates had some hope that budget pressures, plus twenty years of declining crime rates, would prompt states to reverse policies that keep prison rates so absurdly high.  There have indeed been a range of state efforts to moderate sentencing policy.  But the results have been depressingly modest.  Incarceration growth rates slowed in 2008-09, but it was growth nonetheless.  2010 (the latest data year) saw the first decline in the U.S. prison population in decades--a whopping 0.3%. Brown's rhetoric--from a Democratic governor in a Democratic state that spends more on prisons than higher education despite its intractable budget crisis--suggests we shouldn't get our hopes up for that rate of decline to increase much. In fact, some states have managed to cut prison costs without cutting prison populations; 2/3 reduced prison expenditures in 2009-10, but only 1/2 also had a decline in prison populations.

An insightful report by the Center for Economic and Policy Research calculates that U.S. governments could save $16.9 billion a year (22.8% of corrections spending) by shifting half of current non-violent inmates to probation and parole, a policy change that would put America back to its 1993 incarceration rate of a mere 521.  That would drop us--huge victory!--to merely the world's fourth highest incarceration rate, behind Russia, Rwanda and Cuba.  Alas, that achievement doesn't seem likely anytime soon.

Posted by Darryl Brown on October 22, 2012 at 05:19 AM | Permalink


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I don't believe that the increased privatization of prisons has caused the over-incarceration problem, but I do believe that it will make it more difficult to address the problem. In the same way that the police lobby actively opposes sane reform of drug laws because it will undermine a key rationale for law enforcement jobs, the private prison industry has a huge incentive to lobby for more prisons, increased criminalization of previously civil offenses, and longer mandatory-minumum sentences, and will spend the very money it's receiving from the public fisc on attacking politicians who support reform as "weak on crime."

Lots of people seem to place faith in our fiscal crisis to give politicians the backbone to make reforms under the cover of deficit reduction, but the deficit has been climbing nearly unabated for 40 years and it has not provided any impetus yet for politicians to reform drug or incarceration laws sensibly. Any issue on which politicians can be criticized as "weak" tends to have a one-way rachet effect. They can make more and more odious laws, but they cannot make reforms that a lobbying industry will call "weak".

The two steps necessary to reform our politics so that sensible, pragmatic reforms can occur is to eliminate partisan primary elections, so that more moderates are elected, and remove money from politics. California has admirably taken on the former, and I expect that we will see some moderation of California politics over the coming years as the system begins to work. I hope that other states will follow. As for the latter, in the light of recent Supreme Court decisions, it seems unlikely that the influence of money on politics will be reduced in this generation.

Posted by: Jonathan | Oct 23, 2012 9:21:29 AM

Fair points, Mark. I think the arguments are persuasive that our incarceration rates do cause most of the decline in offending and probably have counter-productive crimogenic effects, but you're right to note the difference between evidence/analysis to that effect and shifting public opinion on prison policy. One additional hurdle is that the U.S. homicide rate is historically higher than that of European nations even when it is at its low points, e.g., 1950s and now.
Harcourt's work on the combined hospital commitment/incarceration rates is especially intriguing, though as he notes it is puzzling in part because the populations of those two sets of institutions are so different; the civil commitment population was much more white and female, for one.

Posted by: Darryl Brown | Oct 23, 2012 4:52:13 AM

I would also like to see the numbers of incarcerated reduced and changes to our drug laws. However there are two critical policy issues that need to be addressed in this context:
1. The last time we went through a cycle of moderating sentencing in the 60s and 70s we saw an upsurge in crime. You can argue causation v correlation but there is no doubt the crime rates have declined as incarceration has risen. You need to make the public comfortable there will not be a reply of the earlier scenario.
2. The current incarceration rate is similar to what the combined incarceration rate plus mental hospitalization rate was 40 years ago. With deinstitutionalization our prisons now house many people who decades ago would have been committed to mental hospitals. Again, this issue would need to be addressed in order to gain public confidence.

Posted by: Mark | Oct 22, 2012 4:36:39 PM

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