Mass incarceration as wasteful government spending

How could a “fiscal conservative” approve of spending $200,000 of public money to punish a $500 drug transaction?

Now that corporate bigwigs are facing prison time, some conservatives have discovered that law enforcement is part of “big government.” Adam Liptak of the New York Times gets in a good crack at Ed Meese for joining hands with the folks he used to call “the criminals’ lobby.” But Liptak doesn’t point out how shallow the civil-libertarian trend among conservatives really is, partly because he conflates conservatives with libertarians.

I doubt that Meese or his employers at the Heritage Foundation are going to start listing pornography or cannabis among the things that are “over-criminalized,” or worrying about the astounding expansion of state power reflected in keeping 2.4 million people behind bars. Their focus is on the federal system, which means they’re leaving out 90% of the issue, since the federal system has fewer than a tenth of the prisoners.

When you start hearing the people who call themselves fiscal conservatives acknowledging that a five-year sentence for five grams of crack means spending $200,000 of public money to punish a $500 transaction, or listing over-incarceration as an example of “wasteful government spending,” then you can consider whether the conservatives have actually recovered from their mindless love affair with cruelty toward “criminals.” Until then, the least hypothesis that covers the facts is that they’re just worried about some of their rich buddies going to the clink.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

23 thoughts on “Mass incarceration as wasteful government spending”

  1. I think the continued drug war during Republican AND Democratic administrations, during Republican AND Democratic Congresses, demonstrates that this love affair with incarceration is bipartisan in nature. Have I missed regular efforts to decriminalize drugs, beaten back by the Republicans? (Cue the usual excuse that the Democrats are just too frightened of Republican attacks to raise a finger to implement their real views. Yeah, right.)

    Because I haven't missed the repeated efforts to criminalize gun ownership, beaten back by Republicans.

    Both parties are way too fond of incarcerating people who violate their social preferences. The real scandal is that neither party lifts a finger to UNincarcerate anybody when they get the upper hand. Each party has the rights it prefers to violate, but does nothing to restore the rights it doesn't really feel like violating. Why, you'd almost think they don't care about the rights they're supposedly interested in defending, only the ones they specialize in attacking.

  2. I wish that some reporter would have the guts to ask Obama (as none asked the two presidents who preceded him), whether he thought that the nation would have been better off if he, Obama, had been caught possessing drugs, convicted, and incarcerated, and almost certainly prevented from attending law school and ending up as president. If his answer is "no," then the follow-up question would be, then why are you ruining other people's futures? It is not just Congress that is to blame. If Obama can cease to enforce federal marijuana laws against sick people in states that permit medical marijuana, then he can cease to enforce them altogether. He would thereby set an example for state governors not to enforce state drug laws.

  3. Well, that's a good way to make sure no conservative reads your book. Why should anyone take you seriously?

    How about this for a response: Mark doesn't usually distinguish between conservatives and libertarians, so we should doubt his good faith on this point. Mark complained bitterly about "honest services" fraud prosecutions, but apparently his opposition is only to those cases involving Democrats. Principles, you know. Mark doubts that Heritage will start listing pornography and cannabis as "overcriminalized." I doubt most would consider pornography overcriminalized, since the only effective criminal regulation of pornography is of child pornography, and I think even Mark favors the criminalization of that. I spent two minutes look at Heritage's site and found one article on drug policy–not a big topic apparently at Heritage (sorry Mark!). That one article–Drug policy, from scratch, by Charles Stimson of Heritage–concludes with this: "Finally, we need to honestly re-evaluate sentencing policies at the federal and state level. The best sentencing guidelines provide hefty prison terms for suppliers and dealers — and reasonable flexibility for judges to deal with small-time users. They also provide effective rehabilitation and treatment programs to dissuade future use." The Heritage fellow's position is opposed to legalization, but I'm not sure how far he is from Mark's position on the matter. Not that it matters–even if he agreed with Mark I'm sure he'd be wrong, because he's at Heritage. Mark complains that some of his political opponents are focusing on only a part of the problem, because they're focused on federal, not state, issues. I'm not this even rises to the level of a disagreement, except perhaps in the People's Liberation Front kind of political world that Mark apparently runs in.

  4. "I doubt most would consider pornography overcriminalized, since the only effective criminal regulation of pornography is of child pornography."

    True, but every once in a while someone goes to prison for selling pornography that does not portray a minor; i.e., pornography that is "obscene" under the Miller test. The fact that such pornography is criminalized at all means that it is overcriminalized.

  5. But Thomas, I don't think Mark is concerned with the criminal justice system out of ideology – I think he's concerned because he thinks it is actually unfair and inefficient.

    Let me put it another way.

    The modern conservative movement is all about limiting the size and scope of government. However not when it comes to anything the military wants, or the costs of massive incarceration. This is a matter of principle – or ideology. If you listen to a large portion of the conservative base, "they are taking away our freedoms" is a constant refrain. I think this is the main sentiment driving would-be conservative reformers, especially libertarians.

    That the system is wasteful (paying 100x more than the social cost of the crime) or inefficient (not actually doing anything to positively alter behavior) is not an ideological argument. It is results oriented, as is often the case with liberal solutions. It's not that we favor government intervention because we love government, it's just that we have no special reason NOT to employ it.

    I think in recent years the right has proven to be radically ideological in this regard. Just as the left may have been radically opposed to business 50 years ago, the right is now radically opposed to government. This is utter irrational ideology at work.

  6. 1. Back in primary reality, Republicans in general and Ed Meese in particular made being "soft on crime" an issue against Democrats. In the struggle over the 1994 crime bill that was one of the causes of the Gingrich Revolution, Democrats liked "crime prevention" programs such as midnight basketball, while Republicans demanded prison-building grants tied to "truth in sentencing" laws. No, Democrats haven't recently been a tower of strength on this issue, but the partisan complexion of the origins of our current policies is pretty clear.

    2. No sensible person thinks that using little kids to make sex videos shouldn't be a crime. But current Federal law makes it a felony to "possess" "child pornography," where:

    a) Anyone up to the age of 18 – older the the age of consent in some states – is a "child." So a seventeen-year-old boy who takes a topless picture of his seventeen-year-old girlfriend can face federal prison time.

    b) "Pornography" is defined so broadly that the old Coppertone ads could easily count.

    c) "Possess" is defined so broadly that you can "possess" child pornography not only unintentionally but completely without your knowledge.

    d) The crime is the same even if the "child" is never harmed. Taking a photo of a fully clothed seventeen-year-old and Photoshopping it into something suggestive is "producing child pornography."

    These are precisely the sorts of issues that so bother Meese & Co. when applied to fountain-pen robbery of various kinds.

    3. I support the idea of "honest services" fraud. On the facts, I doubt Don Siegelman was guilty of that crime, and believe that his prosecution was part of a political vendetta rather than a good-faith exercise in law enforcement.

  7. Google Meese + pornography, or Meese Report. His argument was that pornography was undercriminalized.

  8. Republicans made being "soft on crime" an issue against Democrats because Democrats were soft on crime. But that is largely irrelevant, as is your decades old antipathy for Ed Meese and the opposition to the Clinton "crime bill". What is relevant is the relative responsibility of the parties for the issues that Liptak discusses, and you don't have anything to say on that question.

    I'm not sure what to say about your position on child pornography, except that you've managed to surprise me again. You concede that criminalization of the production of child porn is ok–big concession!–but making a market in it doesn't seem to bother you. Moving through your concerns, I don't think you've considered countervailing considerations, so I'm not sure you've thought much about this at all. But I would say that, to the extent the issues you raise in (b) and (c) are real, they should be corrected. But surely in weighing the need for correction one is allowed to prioritize, to weigh the difficulties of correction, and to consider the range and extent of socially beneficial behavior criminalized or deterred by the absence of the correction.

    Finally, yes, I understand you support "honest services" fraud prosecutions. You just don't like the statute when it's used against Democrats like Siegelman or like Georgia Thompson in Wisconsin. In fact, when the 7th circuit, which is hostile to "honest services" fraud prosecutions, threw out Thompson's conviction, you applauded. Which again makese sense, so long as we all understand that your principles in this area are low and partisan. I will say this: you're no hypocrite, you advertise your low principles quite openly.

  9. Of interest perhaps is the 7th circuits opinion reversing Georgia Thompson's conviction, which concludes with this thought:

    Sections 666 and 1346 have an open-ended quality that makes it possible for prosecutors to believe, and public employees to deny, that a crime has occurred, and for both sides to act in good faith with support in the case law. Courts can curtail some effects of statutory ambiguity but cannot deal with the source. This prosecution, which led to the conviction and imprisonment of a civil servant for conduct that, as far as this record shows, was designed to pursue the public interest as the employee understood it, may well induce Congress to take another look at the wisdom of enacting ambulatory criminal prohibitions. Haziness designed to avoid loopholes through which bad persons can wriggle can impose high costs on people the statute was not designed to catch.


  10. Prof. Kleiman, I don't think its fair to act as though opposition to the War on Drugs is not well represented in mainstream conservative opinion. Here is the link to the February, 1996 National Review's cover story proclaiming that the war on drugs is lost. National Review also has been in favor of legalizing marijuana for a long time.

    The problem with lamenting the war on drugs is that willingness to engage in more or less organized drug dealing is probably a pretty good proxy for a willingness to commit other crimes. You have argued against those who portray convicts as "nonviolent drug offenders", realizing that defendants make guilty pleas to lesser crimes, and it is very likely that organized drug dealers use violence to further their drug dealing business. My guess would be that even if the sentences were reduced, many of the same offenders would end up in prison for other crimes anyway — instead of 20 years for drug dealing, maybe 5 years. But, then I would expect that many of the same people will end up back in prison — 2 years for assault, 5 for robbery or whatever. The long drug sentences may have the effect of identifying the most crime-prone among us, and taking them out of circulation until their testosterone levels drop enabling them to age out of crime.

    To me, the function that incarceration has in crime control is not as a deterrent to either the criminal or to others, but as simply removing criminals from society. So, the key is not to incarcerate those who have offended, but those who are likely to reoffend. To the extent that long sentences perform this function, some other proxy will have to be developed. We know who commits crimes — those with poor self control, low IQs and high testosterone. I don't see why these metrics should not be used in determining the length of incarceration.

    As to the fountain pen crimes, I think the long sentences themselves create perverse incentives. In Enron, the fervor to convict Lay and Skilling led the government to offer a deal to Fastow, who in my reading was the most thoroughly criminal of the bunch. I understand that Fastow kept about $10 million, which was in effect a payoff from the government for his testimony, and he spent a few years in prison. Is that a crazy deal? How many people would spend a few years in prison in exchange for $10 million? A lot, I would expect. Where in the hell was Fastow going to get $10 million otherwise? The guy was an idiot. The government let Boesky keep even more ($100's of millions, if I recall). The government has had a role in creating fraudsters — do it big enough and turn on your co-conspirators and you'll still be pretty well off afterward.

    The problem is the legal system doesn't seem to be doing a good job of distinguishing between the Bernie Madoffs who operate brazenly criminal enterprises, and people like Skilling, Lay, and Bernie Ebbers, who appear to be guilty of essentially smoking their own stash.

  11. Republicans made being “soft on crime” an issue against Democrats…

    This much, at least, is true. It's also relevant to "the relative responsibility of the parties for the issues." The party that made it a partisan issue, it turns out, bears greater responsibility for the acts that flowed from doing so. Not all the responsibility, but more of it. There are honorable & dishonorable exceptions, but I wouldn’t have thought the general statement is controversial.

    Commenters' seeming view that pornography & drugs aren't, at least in some respects, overcriminalized doesn't refute the claim that Edwin Meese (& the majority of the Republican Party) think they're not overcriminalized. Likewise w/ the view that fountain-pen crimes, or some of them, aren't undercriminalized or are overcriminalized. This sentiment also doesn't, by itself, establish that the contrast between these people's attitudes toward pornography & drugs & their attitudes toward fountain-pen crimes is w/o interest. If the blogger thinks it is of interest, the charitable view is that it’s because, among other things, he hasn’t been persuaded by reasons of the sort offered by commenters. Disagreement w/ a commenter isn’t a moral defect.

    Crass abuse of one’s host, though, is.

  12. K, you're just confused. If Republicans rightly pointed out that Democrats were soft on crime and Democrats responded by federalizing and overcriminalizing lots of things, that's not the fault of Republicans, it's the fault of Democrats. The fact–if it is a fact–that Democrats are incapable of properly modulating their stance on the issue isn't someone else's fault, it's their own. What's relevant to the issues Liptak discusses is, who passed these bills? I don't know the answer to that, and neither does Mark, but the thing is, I recognize that not knowing means that I don't know, while Mark uses his ignorance to make partisan attacks.

    As for the rest, or what little I could make out of it: Mark doesn't bother to set out "these people's attitudes" toward pornography & drugs, so, no, he's not offering a contrast, he's simply calling names. And that's fine-he's a right to his opinions. But don't pretend that pointing it out is abusive. It's not.

  13. Horseball: I wasn't paying attention in 96, but I've never seen proof that Buckley's anti-drug-war cheerleading had any legs w/ mainstream conservatives, certainly not in Washington. Not that Mark is "anti-drug-war" in any way…

    Respectfully, drug policy to put potential future criminals on ice until their 30s is a bad idea. If incarceration is your only metric of success, it'll sure work. Just make sure to ignore all the horrible outcomes it also creates: mass criminality, bloody black markets (Juarez, Baltimore), disrespect for law and law enforcement, government corruption, budget reallocations from education and health care to incarceration, political witch hunts (how would putting Tommy Chong or Angel Raich in prison get crime-prone youths on ice?), erosion of civil liberties, scaring desperately needed jobs out of inner cities, etc. etc.

    Mark's relaxed cannabis policy would only help with some of those, but would make more enforcement resources available for the remaining "hard" drug markets, which provides better targeting for your theory: If bad people are going to sell illegal drugs for profit, they'll certainly sell other ones when cannabis is worthless.

  14. I'll limit myself to noting that I don't hold Republicans responsible for Democrats' (again, entirely real) shortcomings, just for their own, which are quite enough. I don't see how a competent reader could imagine otherwise.

  15. K, when a partisan crows about the other side's shortcoming, it usually implies he thinks his side doesn't equally share in that shortcoming. After all, you didn't post on the subject of how "The Republicans are as bad as the Democrats on this subject, except for that bunch over at National Review."

  16. K, I'm a perfectly competent reader, and this is what you said: "The party that made it a partisan issue, it turns out, bears greater responsibility for the acts that flowed from doing so." I read this to mean that, because the Republicans "started this" by pointing out that Democrats were soft on crime, they bear more responsibility, and I don't see any qualification on that. As I said, I don't think it's a sound claim, much less a noncontroversial one.

  17. Thomas, I suggest you not boast of your perfection, even as a reader. I don't say that because Republicans, as you put it, 'started this,' they’re responsible for everything Democrats did in response. Rather, they're responsible for their own contribution, & it turns out they're the more responsible party. I mean to acknowledge it could've turned out differently, that starting it doesn't by itself entail greater or sole responsibility.

    If one thought current policy is on the whole a good thing, I'd expect him to clamber for credit, so I suppose even this pointless anxiety to undo Republicans' responsibility for the current state of things is a sign of progress.

    Brett, what you say is true, & speaking for myself, I don’t think Democrats share equally in the responsibility here. Having stipulated that they haven't entirely covered themselves w/ glory, I still don't think they're as bad as the other side. Your exoneration of National Review is too fulsome; notwithstanding the occasional contrarian indulgence, brute force methods still enjoy support there, certainly more than in other places on the broad right. Their position rests on both evaluative & empirical errors.

  18. K, I've misinterpreted your position, which was adequately set forth above. (The "it turns out" I took to mean something other than what you meant by it.) In any case, as I said above, I don't know which party is responsible for the current state, and given that I think the reformers are right (and that Mark is right on drug policy), I have no reason to defend the current state of things. I would, however, like a bit of evidence for your assertion that we know who's responsible. Take the "honest services" fraud law, which is, I think, a disaster. That horribly vague law was adopted in 1988, when, if I remember my history correctly, we had a Democratic congress and a Republican president. I don't know who sponsored the bill, who wrote it, what the DOJ under Reagan thought about it, but it seems to me that I'd need to know those to evaluate responsibility. I don't think it's adequate to say, Reagan campaigned as "tough on crime" and even employed Ed Meese, so of course Republicans are responsible.

  19. Laws are passed and repealed by legislatures. Last I looked, the Democratic party has had control of both houses of Congress for most of the duration of the war on drugs. How many of their efforts to call for a ceasefire have been vetoed? "haven't entirely covered themselves with glory" is praising with faint damns. Try, "were entirely complicit".

  20. Decriminalizing drugs would not only reduce incarceration and free police to work on real crime, it would also unfund many nasty groups around the world such as the Colombian MRN, the Burmaese generals, and the Afghan-Pak Taliban.

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