America has the highest incarceration rate in the world, outstripping even Russia, Cuba, Rwanda, Belarus, and Kazakhstan. Though America is home to only about one-twentieth of the world’s population, we house almost a quarter of the world’s prisoners. Since the mid 1970s, American prison populations have boomed, multiplying sevenfold while the population has increased by only 50 percent. Why?
Two days later, Obama became the first sitting president to visit a prison. Speaking immediately after his visit, the president blamed mandatory drug sentencing as a “primary driver of this mass-incarceration phenomenon.” To underscore that point, he met with half a dozen inmates at the prison, all of whom had been convicted of nonviolent drug offenses. Three days earlier, he had commuted the federal prison terms of 46 nonviolent drug offenders, most of whom had been sentenced to at least 20 years’ imprisonment.
The president is echoing what liberal criminologists and lawyers have long charged. They blame our prison boom on punitive, ever-longer sentences tainted by racism, particularly for drug crimes. Criminologists coined the term “mass incarceration” or “mass imprisonment” a few decades ago, as if police were arresting and herding suspects en masse into cattle cars bound for prison. Many blame this phenomenon on structural racism, as manifested in the War on Drugs.
Like President Obama, Alexander blames mass incarceration on the racially tinged War on Drugs. “In less than thirty years, the U.S. penal population exploded from around 300,000 to more than 2 million, with drug convictions accounting for the majority of the increase.” And the War on Drugs was supposedly driven by coded racial appeals, in which elite whites galvanized poor whites to vote Republican by scapegoating black drug addicts. The fault, she insists, does not lie with criminals or violence. “Violent crime is not responsible for the prison boom. . . . The uncomfortable reality is that convictions for drug offenses — not violent crime — are the single most important cause of the prison boom in the United States,” and minorities are disproportionately convicted of drug crimes.
Alexander’s critique is catnip to liberals. The New Jim Crow stayed on the New York Times best-seller list for more than a year and remains Amazon’s best-selling book in criminology. And it dovetailed with liberal and libertarian pundits’ calls to legalize or decriminalize drugs, or at least marijuana, as the cure for burgeoning prisons.
President Obama’s and Alexander’s well-known narrative, however, doesn’t fit the facts. Prison growth has been driven mainly by violent and property crime, not drugs. As Fordham law professor John Pfaff has shown, more than half of the extra prisoners added in the 1980s, 1990s, and 2000s were imprisoned for violent crimes; two thirds were in for violent or property crimes. Only about a fifth of prison inmates are incarcerated for drug offenses, and only a sliver of those are in for marijuana. Moreover, many of these incarcerated drug offenders have prior convictions for violent crimes. The median state prisoner serves roughly two years before being released; three quarters are released within roughly six years.
For the last several decades, arrest rates as a percentage of crimes — including drug arrests — have been basically flat, as have sentence lengths. What has driven prison populations, Pfaff proves convincingly, is that arrests are far more likely to result in felony charges: Twenty years ago, only three eighths of arrests resulted in felony charges, but today more than half do. Over the past few decades, prosecutors have grown tougher and more consistent.
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Nor is law enforcement simply a tool of white supremacy to oppress blacks. As several prominent black scholars have emphasized, law-abiding blacks often want more and better law enforcement, not less. Harvard law professor Randall Kennedy emphasized that “blacks have suffered more from being left unprotected or underprotected by law enforcement authorities than from being mistreated as suspects or defendants,” though the latter claims often get more attention. Most crime is intra-racial, so black victims suffer disproportionately at the hands of black criminals. Yale law professors Tracey Meares and James Forman Jr. have observed that minority-neighborhood residents often want tough enforcement of drug and other laws to ensure their safety and protect their property values. The black community is far from monolithic; many fear becoming crime victims and identify more with them than they do with victims of police mistreatment.
There is no racist conspiracy, nor are we locking everyone up and throwing away the key. Most prisoners are guilty of violent or property crimes that no orderly society can excuse.
Black Democrats, responding to their constituents’ understandable fears, have played leading roles in toughening the nation’s drug laws. In New York, black activists in Harlem, the NAACP Citizens’ Mobilization Against Crime, and New York’s leading black newspaper, the Amsterdam News, advocated what in the 1970s became the Rockefeller drug laws, with their stiff mandatory minimum sentences. At the federal level, liberal black Democrats representing black New York City neighborhoods supported tough crack-cocaine penalties. Representative Charles Rangel, from Harlem, chaired the House Select Committee on Narcotics Abuse and Control when Congress enacted crack-cocaine sentences that were much higher than those for powder cocaine. Though many have come to regret it, the War on Drugs was bipartisan and cross-racial.
More fundamentally, The New Jim Crow wrongly absolves criminals of responsibility for their “poor choices.” Alexander opens her book by analogizing the disenfranchisement of Jarvious Cotton, a felon on parole, to that of his great-great-grandfather (for being a slave), his great-grandfather (beaten to death by the Ku Klux Klan for trying to vote), his grandfather (intimidated by the Klan into not voting), and his father (by poll taxes and literacy tests).
But Cotton’s ancestors were disenfranchised through violence and coercion solely because of their race. Cotton is being judged not by the color of his skin, but by the content of his choices. He chose to commit a felony, and Alexander omits that his felony was not a nonviolent drug crime, but murdering 17-year-old Robert Irby during an armed robbery. All adults of sound mind know the difference between right and wrong. Poverty and racism are no excuses for choosing to break the law; most people, regardless of their poverty or race, resist the temptation to commit crimes. Cotton is not a helpless victim just like his ancestors, and it demeans the free will of poor black men to suggest otherwise.
So the stock liberal charges against “mass incarceration” simply don’t hold water. There is no racist conspiracy, nor are we locking everyone up and throwing away the key. Most prisoners are guilty of violent or property crimes that no orderly society can excuse. Even those convicted of drug crimes have often been implicated in violence, as well as promoting addiction that destroys neighborhoods and lives.
But just because liberals are wrong does not mean the status quo is right. Conservatives cannot reflexively jump from critiquing the Left’s preferred narrative to defending our astronomical incarceration rate and permanent second-class status for ex-cons. The criminal-justice system and prisons are big-government institutions. They are often manipulated by special interests such as prison guards’ unions, and they consume huge shares of most states’ budgets. And cities’ avarice tempts police to arrest and jail too many people in order to collect fines, fees, tickets, and the like. As the Department of Justice found in its report following the Michael Brown shooting in Missouri, “Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs.” That approach poisons the legitimacy of law enforcement, particularly in the eyes of poor and minority communities.
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Conservatives also need to care more about ways to hold wrongdoers accountable while minimizing the damage punishment does to families and communities. Punishment is coercion by the state, and it disrupts not only defendants’ lives but also their families and neighborhoods. Contrary to the liberal critique, we need to punish and condemn crimes unequivocally, without excusing criminals or treating them as victims. But we should be careful to do so in ways that reinforce rather than undercut conservative values, such as strengthening families and communities.
Conservatives cannot reflexively jump from critiquing the Left’s preferred narrative to defending our astronomical incarceration rate and permanent second-class status for ex-cons.
Historically, colonial America punished crimes swiftly but temporarily. Only a few convicts were hanged, exiled, or mutilated. Most paid a fine, were shamed in the town square, sat in the stocks or pillory, or were whipped; all of these punishments were brief. Having condemned the crime, the colonists then forgave the criminal, who had paid his debt to society and the victim.
That was in keeping with the colonists’ Christian faith in forgiveness, and it meant there was no permanent underclass of ex-cons. Preachers stressed that any of us could have committed such crimes, and we all needed to steel ourselves against the same temptations; the message was “There but for the grace of God go I.” The point of criminal punishment was to condemn the wrong, humble the wrongdoer, induce him to make amends and learn his lesson, and then welcome him back as a brother in Christ. The punishment fell on the criminal, not on his family or friends, and he went right back to work.
Two centuries ago, the shift from shaming and corporal punishments to imprisonment made punishment an enduring status. Reformers had hoped that isolation and Bible reading in prison would induce repentance and law-abiding work habits, but it didn’t turn out that way. Now we warehouse large numbers of criminals, in idleness and at great expense. By exiling them, often far away, prison severs them from their responsibilities to their families and communities, not to mention separating them from opportunities for gainful work. This approach is hugely disruptive, especially when it passes a tipping point in some communities and exacerbates the number of fatherless families. And much of the burden falls on innocent women and children, who lose a husband, boyfriend, or father as well as a breadwinner.
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Even though wrongdoers may deserve to have the book thrown at them, it is not always wise to exact the full measure of justice. There is evidence that prison turns people into career criminals. On the one hand, it cuts prisoners off from families, friends, and neighbors, who give them reasons to follow the law. Responsibilities as husbands and fathers are key factors that tame young men’s wildness and encourage them to settle down: One longitudinal study found that marriage may reduce reoffending by 35 percent. But prison makes it difficult to maintain families and friendships; visiting in person is difficult and time-consuming, prisons are often far away, and telephone calls are horrifically expensive.
Conversely, prisons are breeding grounds for crime. Instead of working to support their own families and their victims, most prisoners are forced to remain idle. Instead of having to learn vocational skills, they have too much free time to hone criminal skills and connections. And instead of removing wrongdoers from criminogenic environments, prison clusters together neophytes and experienced recidivists, breeding gangs, criminal networks, and more crime. Thus, Mueller-Smith finds, long sentences on average breed much more crime after release than they prevent during the sentence. Any benefit from locking criminals up temporarily is more than offset by the crime increase caused when prison turns small-timers into career criminals. So conservatives’ emphasis on retribution and responsibility, even when morally warranted, can quickly become counterproductive.
Another justification for prison is that the threat of punishment deters crime. The problem with deterrence, however, is that we overestimate prospective criminals’ foresight and self-discipline. At its root, crime is generally a failure of self-discipline. Conservative criminologists such as the late James Q. Wilson and Richard Herrnstein pin primary blame for crime on criminals’ impulsively satisfying their immediate desires. They are short-sighted gamblers; who else would risk getting shot or arrested in order to steal $300 and a six-pack of beer from a convenience store?
Impulsiveness, short-sightedness, and risk-taking are even more pronounced among the very many wrongdoers whose crimes are fueled by some combination of drugs, alcohol, and mental illness. But those very qualities make it hard to deter them. We naïvely expect to deter these same short-sighted gamblers by threatening a chance of getting caught, convicted, and sent to prison for years far off in the future. Of course, optimistic, intoxicated risk-takers think they will not be caught. And if they have cycled through the juvenile-justice system and received meaningless probation for early convictions, the system has taught them exactly the wrong lessons.
To deter crime effectively, punishment must speak to the same short-sighted wrongdoers who commit crime — not primarily through threats of long punishment far off in the future, but more through swift, certain sanctions that pay back victims while knitting wrongdoers back into the social fabric. If we make punishments immediate and predictable, yet modest, even drug addicts respond to them. Hawaii’s Opportunity Probation with Enforcement (HOPE) is an intensive-probation program that has the hardest-core drug users face random urinalysis one day each week; violators immediately go off to a weekend in jail. Though the Left paints drug addiction as a disease requiring costly medical intervention, drug addicts can in fact choose to stop using drugs. Under HOPE, even habitual drug users usually go clean on their own when faced with the immediate threat of two days in jail. Well over 80 percent stop using drugs right away and remain clean, without any further treatment.
The contrast with ordinary probation is stark. Probation officers juggle hundreds of cases, rarely see their clients, and routinely ignore multiple violations until they unpredictably send a client back to prison at some point in the future. Probation thus teaches probationers exactly the wrong lesson: that they are likely to get away with violations. It is no wonder that HOPE succeeds where ordinary probation fails.
Applying the same insight to prisons could revolutionize them. UCLA professor Mark Kleiman notes that most inmates could be released early and watched round the clock with webcams, drug and alcohol testing, and electronic ankle bracelets via GPS. They could live in government-rented apartments, see their families, and work at public-service jobs, all at much less expense than prison. These surveillance methods could enforce rules such as strict curfews, location limits, and bans on drug and alcohol use, with swift penalties for noncompliance. But the Left hates the idea, in part because its critics blame crime on society rather than on wrongdoers who need to be held accountable, disciplined, and taught structure and self-control.
The more that punishment exacerbates the breakdown of families and communities, the more the overweening state and its social services and law enforcement grow to fill the resulting void.
States like Texas and Georgia have already been experimenting with alternatives to endlessly building more prison cells. They have dramatically expanded inpatient and outpatient drug treatment as well as drug courts, diverted more minor offenders out of prison, kept juveniles out of state prison, and set up cheaper diversion beds for inmates who do not need to be in regular prison. For instance, Texas has begun creating special substance-abuse cells, so that repeat drunk drivers can get treatment instead of being housed with murderers and rapists. Risk-assessment tools can help to identify the sliver of recidivists and predators who pose the greatest danger and need long-term confinement.
Most of all, the government needs to work on reweaving the frayed but still extant fabric of criminals’ families and communities. Both excessive crime and excessive punishment rend communal bonds, further atomizing society. The more that punishment exacerbates the breakdown of families and communities, the more the overweening state and its social services and law enforcement grow to fill the resulting void.
The cornerstone of a conservative criminal-justice agenda should be strengthening families. More than half of America’s inmates have minor children, more than 1.7 million in all; most of these inmates were living with minor children right before their arrest or incarceration. Inmates should meet with their families often. They should be incarcerated as close to home as possible, not deliberately sent to the other end of the state. Visitation rules and hours need to be eased, and extortionate collect-call telephone rates should come down to actual cost.
We should also pay more attention to the victims of crime. Victims are often friends, neighbors, or relatives of the wrongdoers who must go back to living among them. Though victims want to see justice done — including appropriate punishment — that does not generally mean the maximum possible sentence. In surveys, victims care much more about receiving restitution and apologies. So prison-based programs should encourage wrongdoers to meet with their victims if the victims are willing, to listen to their stories, apologize, and seek their forgiveness. Having to apologize and make amends makes most wrongdoers uncomfortable, teaching them lessons that they must learn.
Over-imprisonment is wrong because state coercion excessively disrupts work, families, and communities, the building blocks of society, with too little benefit to show for it.
Another important component of punishment should be work. It is madness that prisoners spend years in state-sponsored idleness punctuated by sporadic brutality. It is time to repeal Depression-era protectionist laws that ban prison-made goods from interstate commerce and require payment of prevailing-wage rates to prisoners (making prison industries unprofitable). All able-bodied prisoners should have to complete their educations and work, learning good work habits as well as marketable skills. One could even experiment with sending able-bodied prisoners without serious violent tendencies to enlist in the military, as used to be routine (think of the movie The Dirty Dozen). Some of prisoners’ wages could go to support their families, cover some costs of incarceration, and make restitution to their victims.
Finally, inmates need religion and the religious communities that come with it. Most prisoners are eventually released, and we do almost nothing to help them reenter society, simply providing a bus ticket and perhaps $20. But faith-based programs like Prison Fellowship Ministries can transform cell blocks from wards of idleness or violence to orderly places of prayer, repentance, education, and work. After inmates are released, these faith-based groups can also perform much of the oversight, community reintegration, fellowship, and prayer that returning inmates need. Inmates must accept their responsibility, vow to mend their ways, and have fellow believers to hold them to those promises. Having a job, an apartment, and a congregation waiting for them after release from prison offers ex-cons a law-abiding alternative to returning to lives of crime.
American criminal justice has drifted away from its moral roots. The Left has forgotten how to blame and punish, and too often the Right has forgotten how to forgive. Over-imprisonment is wrong, but not because wrongdoers are blameless victims of a white-supremacist conspiracy. It is wrong because state coercion excessively disrupts work, families, and communities, the building blocks of society, with too little benefit to show for it. Our strategies for deterring crime not only fail to work on short-sighted, impulsive criminals, but harden them into careerists. Criminals deserve punishment, but it is wise as well as humane to temper justice with mercy.
— Stephanos Bibas, a University of Pennsylvania professor of law and criminology and a former federal prosecutor, is the author of The Machinery of Criminal Justice (Oxford). This article originally appeared in the September 21, 2015, issue of National Review.
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