July 11, 2017

Judging Justice in America

By In Essays

Ever the entertainer, Benjamin Franklin welcomed guests one evening in 1787 at his Philadelphia home. The conversation turned towards a recent essay by Benjamin Rush entitled “An Enquiry into the Effects of Public Punishments Upon Criminals, and Upon Society.” Rush was a respected physician and a signer of the Declaration of Independence.

Criminal punishment was a far different affair then than it is today. Violators of most offenses considered serious could expect to face death. The remainder were shamed in the public square through floggings and use of the stockade. Rush thought he had a more effective and humane system – essentially the first modern prison, where criminals could quietly reflect on their crimes and in time be welcomed back into society.

It has been 230 years since that conversation and in the time since, America has increasingly relied on prisons as the backbone of the criminal justice system. Some justify imprisonment on the basis of justice, others on rehabilitation, and still others as a deterrent to crime. But, however the purpose of prisons is viewed, it is undeniable that in recent years they have been used like never before within the United States.

Many of the criminal justice statistics illustrating incarceration rates in the United States have been widely disseminated and are widely known. The numbers, though, are still breathtaking. More than 700 of every 100,000 individuals in the United States are currently incarcerated, higher than any other large country in the world and about five times higher than the world average. It is seven times larger than the comparable number in Canada and about twelve times larger than the comparable number in Japan.

The number of prisoners in selected countries per 100,000 population. Source: International Centre for Prison Studies.

That disparity has not always been true, though. For many years the United States had an incarceration rate roughly equal to the rest of the developed world. That rate reached a multi-year low in 1972 at 197 per 100,000 people and then increased at an unprecedented rate for the next thirty-five years before peaking in 2007 at 818. It has since fallen back slightly to its’ current level of 717.

Incarceration rates per 100,000 in the United States from 1880-2015. Source: Bureau of Justice Statistics and www.clemencyreport.org.

“Why this has happened?” is not an easy question to answer. Have Americans become significantly more crime-prone in recent decades? Or are Americans overwhelmingly more likely than other people in the world to commit a crime? With some caveats, the answer to both questions is certainly “no.” Perhaps most importantly we need to ask, are the resources being spent in the criminal justice system today wise investments in either the safety of the general population or the inmates themselves?

Crime and Punishment

A natural starting place to answering these questions is in the crime figures themselves. If more crimes are prosecuted from either more stringent enforcement of existing law or a larger number of activities being outlawed, then that would be a key clue in understanding the rising incarceration rate.

Of course, the crime rate did begin to move higher at an incredibly fast rate by the late-1960s. There were numerous reasons for this, among them, shifting demographics (the young commit more crime than the old). The 1968 election of Richard Nixon, who ran on a platform of “law and order” also fundamentally changed American’s view of the role of the criminal justice system.

The number of crimes committed in the United States as a percentage of the population, 1933-2015. Source: Bureau of Justice Statistics.

The late-1960s was a culmination of a period of social upheaval, political resistance, and the emergence of the baby boomers as young adults. Fear was prevalent, at times rightly so, for what the country would turn into if “law and order” was not restored. But, it was also the culmination of another trend – a trend towards the recognition of civil liberties, courtesy of the Supreme Court. The Court ruled in 1961 that if the police obtained evidence through an illegal search, that evidence was inadmissible in criminal proceedings (Mapp v. Ohio); they ruled in 1963 that every criminal defendant had a right to an attorney, regardless of whether they could afford one (Gideon v. Wainwright); and they ruled in 1966 that law enforcement officials must make suspects aware of the rights that they have (Miranda v. Arizona).

There was a sense at the time that one extreme had led to another and that criminals were now being coddled. In accepting the Republican nomination in Miami in 1968, Nixon himself said:

“Let us always respect, as I do, our courts and those who serve on them. But let us also recognize that some of our courts in their decisions have gone too far in weakening the peace forces as against the criminal forces in this country and we must act to restore that balance.”

As President, Nixon sought to follow through on his promises primarily through three pieces of legislation: the Omnibus Crime Control and Safe Streets Act of 1968 (this bill was passed while Lyndon Johnson was still President and the implementation was partly overseen by Nixon), the Organized Crime Control Act of 1970, and the Drug Abuse Prevention and Control Act of 1970.

(Yes, the irony is painfully clear that while shoving aside every law which stood in his way, President Nixon sought to bring “law and order’ to the country.)

The Omnibus Crime Control and Safe Streets Act targeted handguns, by making it illegal to transport firearms across state lines, as well as increased the Federal Government’s authority to wiretap citizens without their consent. The Organized Crime Control Act contained the original RICO statute and also gave U.S. Attorney’s broader authority to detain and protect witnesses. The Drug Abuse Prevention and Control Act of 1970 instituted the modern drug laws in the United States, which divide known drugs into various schedules, each with different potential penalties for possession or distribution as well as mandated control.

The problem was that after these statutes were enacted, crime did not fall but actually continued rising until around 1991 and in the interim new means of fighting crimes were introduced, including concepts like mandatory minimums, most notably in 1986’s Anti-Drug Abuse Act.

While these changes were seen on the Federal level, state and local trends tended to parallel the national mood.

So far, much of the story makes sense – even if past policies that were followed may not have been wise. Crime was seen as a problem, the country decided to get tough on crime, and unsurprisingly the number of prisoners in Federal and State prisons increased.

Of course, that cannot be the whole answer, because it in no way explains why in the years since crime began to fall after 1991, the incarceration rate continued going up. John Pfaff, a Fordham Law Professor who also holds a Ph.D. in Economics, has estimated that half of the increased incarceration between 1973 and 1991 was caused by the increase in crime. During that period of time, the incarceration rate per 100,000 people went from 197 to 534. So, based upon crime figures alone, it probably should have increased to 366. What caused the other half and what caused the continuing increase all the way to more than 800 in the years since 1991?

In 2014, Pfaff published a fascinating paper in the Federal Sentencing Recorder that was titled, “Escaping from the Standard Story: Why the Conventional Wisdom on Prison Growth is Wrong, and Where We Can Go From Here.” In that paper, Pfaff delves into both what has and what has not caused the surging incarceration rate.

First, although a seemingly obvious explanation to the problem is an increasing number of drug offenders, the data contradicts that the “war on drugs” is a major cause of the rising incarceration rate. Although a much larger proportion of Federal prisoners are incarcerated for drug-related crime, the overall share of the prison population incarcerated for drug crimes is currently only about 19%.

Most recent data (2015) on the category of offenses for the U.S. prison population. Source: Bureau of Justice Statistics.

A time series of the data demonstrates convincingly that the “war on drugs” simply cannot directly explain the rising prison population. Since the peak of the crime rate in 1991, the percentage of incarcerations due to drugs has actually fallen somewhat from about 22% to the current 19%. Before that, it did rise a long way from 7% in 1980. Obviously, then, drug policies are one important explanation for rising rates of crime and rising levels of incarceration up until the early 1990s, but they do not fully explain the increase before 1991 and have no explanatory value in the years since then.

It has also been frequently hypothesized that longer sentencing is a big component of the increased incarceration rate. That is also false. Sentences may have increased, but time served has not. Pfaff demonstrates this by simply considering the number of releases and admissions to prison. If longer sentences were the culprit, then there would be an expectation that the growth in prisoners released would lag a large increase in admissions. It has not.

If statistics can rule out various hypotheses, then what is left is likely to be where the answer is found. If more crime, and thus more arrests, and longer sentences cannot explain the recent increase in the rate of incarceration until recently, then the only remaining explanation is that prosecutors are seeking jail time more often for those that are arrested. Can any evidence in the data support that conclusion?

Yes, it can. Data that Pfaff reviewed between 1994 and 2008 showed that prosecutors charged one in three arrested individuals with a felony in 1994, but two in three by 2008.

“Prosecutorial Discretion”

The United States is perhaps the only country in the world where prosecutors are elected by voters. (If there is an example of another country, please tell me. I can’t find one.) While responsibility to the electorate can be positive, that is not always the case. Prosecutors are politicians and they have to protect their jobs. The ultimate result is that putting someone in prison or garnering a conviction is now a “win” and losing or dismissing a case is now a “loss,” when the job of a prosecutor is to neither win or lose, but to arrive at the truth and seek justice. There are not going to be many advertisements asking for a vote on the basis of considering the evidence and finding it wanting or in showing mercy to a first time offender.

Local politicians are not dumb. They could see the extent of the effectiveness in “law and order” campaigning from candidates like Nixon and Reagan and just how much the scenarios they painted resonated with voters. Public opinion polls also suggested that much of the public was in favor of tougher crime laws.

Electing prosecutors and a growing consensus of the public that being “tough on crime” is the right thing to do can be very dangerous when economic inequality rises and racial disparities continue to exist. That’s because the majority of the electorate that vote for these policies can lack identification with those that are the victims of the policies. So long as most of those in prison are poor and black or Hispanic, middle and upper-class voters are not likely to think of themselves as potentially ending up in the same place. The situation repels empathy.

The Marshall Project, a non-profit organization that distributes news about the criminal justice system recently put together a video collage of various attack ads against politicians who are said to be soft on crime.

The overwhelming resolution of cases through plea bargaining also means that prosecutors have more say than even judges in how sentences are handed out. According to the Department of Justice, between 90% and 95% of criminal cases are resolved through a plea bargain. Within state court systems, about 8% of criminal cases went to trial in 1976 compared to only 2% in 2009, according to the National Center for State Courts. Similar data shows that there has been a corresponding decline in the ratio of cases that are dismissed by prosecutors.

Although the Constitution seemingly guarantees the right to a trial by jury, judges, prosecutors, and even public defenders are becoming shocked when someone chooses to exercise that right, rather than take what they are given.

Reforming Us

It is quite reassuring to recognize complex problems as simple. If for example, the problem of criminal justice reform was overwhelmingly the result of the aggressive prosecution of drug crimes, the path forward could easily be seen and a coalition mobilized. The stark reality, though, is that the problem very well could be us.

A democratic society that wishes to protect the rights of minorities must give up a small part of democracy to do so. There should be no vote on whether the First Amendment rights of particular individuals or groups should be honored. There should also be no vote for certain positions like prosecutor or judge. Unfortunately, no mechanism exists for rectifying this. But, that does not mean that voters themselves cannot demand more nuanced approaches to prosecution and a rejection of the winning vs. losing mentality that prevails in so much of the country.

That change can start by a shift in mindset from retribution to rehabilitation. There are certainly many criminals that are dangerous and need to be locked up for the protection of society, but there are many others who never should have been locked up or need help in re-establishing themselves in society after they are.

The Secretary of Justice in Kentucky was quoted in a recent Economist article as saying, “Kentucky prisons were full of people we’re mad at, not people we’re afraid of.” That might be the most concise explanation of how the incarceration rate has spiraled out of control to such an extent.

We can retrospectively understand that public square floggings are not the best means of discouraging crime. The time has come to recognize that mass incarceration is not a better one.

1 Comment
  1. Chris King July 29, 2017

    Here’s a mindset: If you think of the prison system as an academy for teaching effective criminal behavior, and removing young people from the productive work force, then you should realizing that locking up young men who have made mistakes is a good way to turn them into career criminals. Also, if the dominant culture ghettoizes young people in areas without adequate education, recreation, and community support then we are creating preschools for prisons.
    Take the lid off.


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