Ross Douthat asks the right question about de-carceration: how to do it while protecting public safety. I offer an answer: swift-certain-fair community supervision.
Three things to like about Ross Douthat’s Sunday column on incarceration:
1. Â He starts in the right place: the sheer scale and horror of mass incarceration, especially as practiced in this country. (Douthat is right: by any reasonable definition, SuperMax is torture.)
2. He acknowledges the key fact: there aren’t enough harmless prisoners that releasing them would solve the problem. If we want to get to civilized levels of incarceration we need to let out some seriously guilty and possibly dangerous people. Â Just to get back to the U.S. historical level – already about 50% above European rates – we would have to let out four out of five current inmates. That means freeing large numbers of armed robbers, rapists, and murderers.
3. And he asks the right question: how to do that without ending our twenty-year winning streak in crime reduction.
Fortunately, I think there’s an answer to that question: learning to manage offenders without putting them behind bars. The key to that – and, it turns out, to de-brutalizing the institutions themselves – is a system of rules and sanctions based on swiftness, certainty, and fairness.
The evidence for success in swift-certain-fair community corrections is pouring in. The next step is to extend it to the currently imprisoned population through some form of graduated re-entry. Since that’s a new idea, we can’t be sure in advance how well it would work, or which version of it would work best in any given population. But once you ask the right question – how to reduce incarceration while improving public safety – you’re well on the road to finding the right answer.
FootnoteÂ Douthat makes the implicit assumption that keeping someone who might commit crime behind bars naturally tends to reduce crime. That would be true if incarceration didn’t have criminogenic side-effects, both at the individual-offender level and the community level. But in fact it does, and as the scale of incarceration grows the crime-control benefits shrink (since you’re locking up less and less dangerous prople) while the costs grow. Useem and Piehl estimate that in the median state the marginal prisoner somewhat increases the crime rate.Â If this is right, then the first slice of de-carceration won’t come at any cost in the form of increased crime even if it’s not coupled with improved community supervision. But that surely wouldn’t be true of making the reductions we actually need to make in the prison headcount.
Most people in state prison are there for a violent offense
Dana Goldstein at the Marshall Project has created a useful interactive graph showing who is in prison and how we might build further on the de-incarceration trend which started five years ago. Goldstein also echoes a point that Mark Kleiman and I have made here many times: It’s a myth that prisons are full of non-violent drug offenders.
The chart below presents Bureau of Justice Statistics data on state prisons, which is where almost 90% of U.S. prisoners reside. Violent crime has consistently been the leading cause of imprisonment, and most state prison inmates are serving time for a violent offense. Importantly, the data reflect current controlling offense only and thus understate the proportion of prisoners who engage in violence: Many inmates currently serving time for a non-violent offense have prior convictions for violent crimes.
These data make de-incarceration more complex in at least two ways , which is perhaps why so many people don’t want to believe them.
First, the noble ongoing efforts to reduce the size of the prison population should take substantial care to protect public safety as violent offenders are released. Mass dumping of violent offenders into communities with no monitoring and no services would be dangerous for them, for their families, and for their neighbors. Further, if it leads to released prisoners committing high-profile acts of violence, it could also choke off political support for continued de-incarceration.
Second, even assuming the best of all policy worlds in which reducing incarceration continues to be a priority, the U.S. is probably too violent of a society to ever shrink its prison population to a Western European level. The proportion of the U.S. population that is serving time for violent crimes is larger than the proportion of the Western European population that is serving time for all offenses combined.
I have drawn attention to the welcome three-year decline in the size of U.S. prison population. Because a huge state with a huge prison population (California) recently began a historic realignment of corrections from the state to county level, some skeptics have worried that the apparent positive news about prisons is an illusion borne of a shell game, i.e., As many people as ever are behind bars, they’ve just been moved from state prisons to local jails. A new report by the Bureau of Justice Statistics (BJS) provides the means to assess whether this gloomy hypothesis is correct.
As the chart shows, the number of people in jail began declining around the same time as did the number of people in state and federal prisons. The BJS estimates that about 54,000 fewer people were in jail in mid-year 2013 versus mid-year 2008. This is despite California’s realignment policy, which caused the Golden State’s jail population to rise rapidly by 11,100 inmates between mid-2011 and mid-2013. For 2012, during which 2/3 of this spike in growth occurred, the California increase was so large that it pushed the change in the national jail population from negative to positive. But the broad national move towards de-incarceration overwhelmed even California’s jail growth by 2013, returning the country to the path of reducing the jail population.
Analyses of the recent decline in the number of inmates which have focused just on prisons (e.g., mine) have thus understated rather than overstated the trend toward de-incarceration in the U.S.
South Dakota’s correctional reforms teach important lessons
South Dakota has passed an extensive package of legislation that will forestall the planned building of new prisons and invest in community-based supervision and health services. Sentences for violent offenders will stay tough and even in some cases get tougher. But non-violent offenders who have drug, alcohol and mental health problems will be presumed eligible for probation. Similar efforts are ongoing in many states, but South Dakota illustrates three aspects of the state of correctional reform in the U.S..
1. Conservatives are serious about reducing the number of people in prison. It has been noted for some time that a number of conservative thinkers (e.g., Pat Nolan, Bill Bennett) have expressed an interest in correctional reform. But that doesn’t ensure that conservatives holding elected office feel the same way. The reforms in South Dakota, an extremely conservative state in which Republicans dominate both houses of the legislature and also hold the governorship, demonstrate that conservative interest in reform is real and will be reflected in new policies (One could add as further examples the reforms in South Carolina and Texas).
2. Interest in reducing the growth of prisons will not go away when states get their budgets back in balance. This is a commonly expressed fear, but South Dakota undertook its reforms with its annual budget in surplus and a sizable rainy day fund in the bank.
3. Even though prisons are primarily a state issue, federal government action matters for reform. South Dakota pioneered the remarkable 24/7 Sobriety program, an effective community-based response to repeat drunk drivers, many of whom would otherwise ultimately be imprisoned. It was a local invention, but it was made possible by a federal government grant. Likewise, the state’s planned expansion of other alternatives to prison will be supported through federal grant programs that have drawn bipartisan Congressional support starting in George W. Bush’s presidency and continuing into Obama’s. Finally, no one in the White House is using the bully pulpit to whip voters into a frenzy about crime and drugs, which gives state lawmakers more room to maneuver without being seen as soft on crime.
All of which is to say that correctional reform has, thank goodness, a bright future in this country.