Overincarceration and Underincarceration

Emily Badger of Wonkblog reports on new findings from the Sentencing Project, a prison reform advocacy group, on crime trends in states that have seen substantial decreases in their prison population:

It’s important to note that crime has been falling all over the country over this same time, for reasons that are not entirely understood (and, no, not entirely explained by the rise of incarceration). But the Sentencing Project points out that declining violent crime rates in New York and New Jersey have actually outpaced the national trend, even as these states have reduced their prison populations through changing law enforcement and sentencing policies.

We certainly can’t take these three charts and conclude that reducing prison populations reduces crime. But these trends do make it harder to argue the opposite — particularly in the most heavily incarcerated country in the world. As the Sentencing Project puts it, “in the era of mass incarceration, there is a growing consensus that current levels of incarceration place the nation well past the point of diminishing returns in crime control.”

I am inclined to agree with Badger and the Sentencing Project. The United States is an outlier among market democracies when it comes to incarceration. A subtler view, advanced by Mark A. R. Kleiman, a professor of public policy at UCLA, is that in the United States, the criminal justice system both underpunishes certain violent crimes, particularly against African Americans, while also relying too heavily on incarceration over deterrence. How can we both have underpunishment and overincarceration? Several mechanism are at play. Mandatory minimum sentences all but guarantee that prison sentences for some offenders are longer than is strictly necessary to incapacitate potential offenders or to deter future crime. Other perpetrators, meanwhile, get away with their crimes because crime-fighting resources are stretched thin and the residents of violence-plagued communities often fail to cooperate with the police out of fear of reprisals or the belief that doing so is futile, an attitude that contributes to underpunishment. 

The consequences of underpunishment are serious. Growing up in a violent neighborhood tends to lower cognitive outcomes and impulse control, and it makes it more likely that one will become criminally active. It reduces the upside associated with lawful behavior, as the wealth you accumulate is more likely to be taken from you, while also reducing the downside associated with unlawful behavior, as the stigma associated with being a perpetrator isn’t as great as it is in law-abiding communities, and a prison term is seen as (very nearly) a routine life event. In The Collapse of American Criminal JusticeWilliam Stuntz argued that a relatively modest incremental investment in policing could greatly reduce the level of violent crime while also reducing the prevalence of incarceration. Interestingly, Stuntz attributes underinvestment in policing to a structural flaw in how the U.S. finances crime control efforts: while police are largely financed at the local level, long-term incarceration is financed at the state level; it is thus predictable that local governments will underinvest in policing. (Indeed, the U.S. has far fewer police per capita than many other countries with much lower homicide rates.

Yet while the United States is on the wrong side of the curve, one wonders if some other countries are on the right side of it. For example, while the prison per population rate (per 100,000) of the U.S. as of the end of 2012 was 707, it was 72 in Norway, 60 in Sweden, 58 in Finland, 73 in Denmark, and 78 in Germany: all roughly in the neighborhood of one-tenth the U.S. prison per population rate. Unfortunately, while violent crime is generally less prevalent in these countries (particularly intentional homicide — the U.S. has a homicide rate five times that of Sweden), it’s by no means nonexistent. Police recorded rapes in Sweden, for example, are twice as high as they are in the United States, though we might attribute this to better reporting. But Sweden’s robbery rate (103 cases of robbery per 100,000 people) is fairly close to that of the U.S. (133). And its police recorded assault rate (927 cases per 100,000 people) far exceeds that of the U.S. (262). Broadly similar patterns obtain in a number of other affluent European countries. None of this is to definitively establish that, say, Sweden’s criminal justice system is too lenient, but it certainly points in that direction. So while it seems fair to say that the pendulum has swung too far towards reliance on incarceration as a crime control strategy in the U.S., the pendulum appears to have swung too far in the other direction in much of northern Europe. 


Reihan Salam — Reihan Salam is executive editor of National Review and a National Review Institute policy fellow.

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