Thoughts on Incarceration and Casework

by Reihan Salam

Dylan Matthews reminds us that mass incarceration in the U.S. is largely a state-level phenomenon. He also points to the important fact that while drug convictions account for a high share of admissions to prison, they account for a considerably smaller share of incarceration rates:

The most recent Bureau of Justice Statistics (BJS) estimates find that there are 1,353,198 people incarcerated at the state level and 217,815 incarcerated federally. So about 13.9 percent of U.S. prisoners are in federal institutions; the other 86.1 percent are in state facilities. And most prisoners at the state level are not there for drug crimes.

In 2004, about 20 percent of state-level inmates were incarcerated on drug convictions, Raphael and Stoll find. Compared with the federal population, those incarcerated at the state level are much likelier to have committed violent offenses. In 2004, 14 percent were in prison for homicide, 9 percent for rape or sexual assault, 12 percent for robbery and 8 percent for aggravated assault. In 2011, it was much the same, according to BJS stats on state inmates serving sentences of a year or more. Fifty-three percent of inmates were in prison for violent offenses, 18.3 percent for property crimes, 10.6 percent for “public order” offenses such as drunk driving, weapons possession or vice offenses, and 16.8 percent for drug convictions.

Raphael and Stoll’s estimates of what’s accounting for the higher incarceration rates suggest that violent crimes are a big part of the state-level story. They find that harsher sentencing for violent offenders explains 48 percent of growth in incarceration rates, compared with about 22 percent attributable to increases in drug sentencing, and 15 percent due to increases in property crime and other sentences.

Then again, most people who go through state criminal justice systems do so on drug offenses. If you look at admission rates, rather than incarceration rates, at the state level, drugs become a much bigger part of the picture. For admissions, Raphael and Stoll find “relatively modest increases for violent crimes and property crimes and pronounced increases for drug offenses, parole violations, and other less serious crime.” And while higher admissions for less serious crimes with shorter sentences don’t affect the incarceration rate as much as increases in sentencing for serious crimes, they do dramatically affect the lives of those admitted, who have to find work as ex-offenders and live with the sundry restrictions states impose upon those who’ve served time.

One can imagine a scenario in which drug offenses are treated more leniently, yet incarceration rates remain quite high. A few thoughts come to mind. The first is that for non-violent offenders, and perhaps for violent offenders who’ve demonstrated that they no longer pose a serious threat to the community, we ought to make greater use of “Prison Without Walls” strategies, like forcing offenders to use sophisticated monitoring devices to control their movements and their behavior, an idea Graeme Wood described in The Atlantic in the summer of 2010:

Devices such as the ExacuTrack, along with other advances in both the ways we monitor criminals and the ways we punish them for their transgressions, suggest a revolutionary possibility: that we might turn the conventional prison system inside out for a substantial number of inmates, doing away with the current, expensive array of guards and cells and fences, in favor of a regimen of close, constant surveillance on the outside and swift, certain punishment for any deviations from an established, legally unobjectionable routine. The potential upside is enormous. Not only might such a system save billions of dollars annually, it could theoretically produce far better outcomes, training convicts to become law-abiders rather than more-ruthless lawbreakers. The ultimate result could be lower crime rates, at a reduced cost, and with considerably less inhumanity in the bargain.

The second is that we might ease the transition from prison to civilian life by imposing rigorous work requirements on offenders, as Stephanos Bibas has recommended in National Review. Bibas suggests that the wages earned by prisoners be distributed to a number of stakeholders, including crime victims, inmates’ families, the state government (to help defray the cost of incarceration), and finally the inmates themselves. 

And third, we ought to consider revising the division of labor between state and local governments with regards to financing incarceration, per William Stuntz in The Collapse of American Criminal Justice:

As things stand now, cities and counties pay nearly all of local police budgets, while state governments pay for building and running state penitentiaries. That allocation of budget responsibility makes it easy for local governments to impose too many prison sentences while hiring too few police officers. The incentives would change for the better if states, or state and federal governments taken together, paid half the bill for local policing (the charge would come to about $34 billion per year), while local governments paid half the cost of the prison beds they used (roughly $21 billion per year). Both cost-shifting measures are important, but the first is more so. Long ago, state and federal governments assumed a large share of the responsibility for paying for urban public schools, though the evidence that more money means better school performance is thin. The evidence that hiring more police officers improves crime control — without ramping up prison populations — is more robust. Yet cash-strapped cities are left to fund their police forces on their own. The predictable result is underpoliced city streets. [Emphasis added]

Taken together, these strategies could do a great deal to limit the downsides of mass incarceration. 

The Agenda

NRO’s domestic-policy blog, by Reihan Salam.