Mass incarceration is a hard problem, not an easy one.

Freeing the innocent and harmless won’t solve over-incarceration.
How do you control the dangerously guilty?

Getting out of the mass-incarceration trap is hard. We currently have five times our historical incarceration rate and seven times the incarceration rate of most of Western Europe. We also have a frighteningly high rate of homicide and other violent crime, albeit only about half as high as it was twenty years ago.

To get back to our historical level, which would be a high level compared to the rest of the civilized world, we need to reduce the headcount behind bars by 80%. Pick five prisoners, and you need to let four of them out.

And no, you can’t do that by releasing innocent, harmless people. You need to release some seriously guilty and dangerous people. Which means you need to figure out a way to make them less dangerous that doesn’t involve putting them under lock and key.

Megan McArdle gets this right.


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:

8 thoughts on “Mass incarceration is a hard problem, not an easy one.”

  1. It would also help to make it more difficult for convicted criminals, whether on probation or having served their prison term, to get hold of guns. Perhaps through – let's try a daring thought experiment – rigorous and universal background checks.

  2. So, not to dismiss the obvious cultural and economic reasons why Americans might be more violent than Europeans … but, do we also take different (worse) drugs? Is it partly that the drugs people use here make them more violent? I am not at all against trying to attack our cultural predispositions, but I wish I understood better why we are more violent. I can think of a bunch of reasons that might explain it … but I don't actually know. (And I seem to recall, isn't a lot of it in the South? Or am I being North-ist?)

    From what I read in the paper, those ankle gizmos definitely do not work well enough to parole, say, rapists. I'm a two-strikes person when it comes to that kind of crime. For a property crime, I would definitely favor more HOPE. Keep … HOPE … alive.

    Not sure why she picked that particular photo. Or I guess it was an editor?

    1. I doubt it's the drugs. Americans have been persistently more violent than Europeans since before this country was a country.

    2. I'm personally very skeptical of the claim that Americans are more violent than Europeans; for example, while several affluent Western European democracies have a serious problem with hooligans, hooliganism is virtually non-existent in the US [1].

      The primary reason why incarceration levels are much lower in Western Europe seems to be that criminal offenders are less frequently sent to jail and often for more shorter terms than you'd expect in the US.

      That starts with pretrial detention. While some countries have their own issues with pretrial detention [2], pretrial detention in all its forms is much rarer than in the US (most people who could get bail in America would not even be arrested in the first place in the typical Western European country); arrest upon being charged is generally only used when the suspect is a flight risk or they may engage in obstruction of justice, such as intimidating witnesses or destroying evidence, and even then the arrest must be proportionate.

      In addition, jail/prison sentences are considerably less common and sentences much shorter than in the US, while pretrial diversion, fines, and suspended sentences are much more common. While the electorate may want harsher sentences just as much as in the US, most Western European countries have career judiciaries (that includes prosecutors) who are largely immune to populist demands and are more interested in outcomes. They also generally have a much more realistic understanding of what it means to spend X years behind bars than the average person. And even politicians tend to be able to resist the demand for harsher sentences more.

      It is worth noting that this is not a free lunch; obviously, you're going to at least let some criminals go who will commit another crime. But it does avoid some of the criminogenic effects of incarceration. For example, a jail or prison sentence will generally increase the recidivism risk, while a large majority of those who receive only a fine or suspended sentence will never reoffend. Of particular interest here is the group of 18-20 year old males who are disproportionately likely to commit a criminal offense, but whose recidivism risk quickly tapers off afterwards if given the chance. So, if you want to reduce the prison population, you want to do it before people are sent there and not after prison has turned them into career criminals; that's like trying to put toothpaste back in the tube.

      In general, it's also not necessarily the case that European crime rates are lower than American crime rates. You'll have lower violent crime rates, but I suspect that at least part of that is due to penal codes creating a (relative) incentive for criminals to prefer non-violent crimes. My godfather (who is a German prosecutor) once said, jokingly: "We are a nation of bike thieves." He was referring not only to what happened during the German occupation of the Netherlands (his wife is Dutch), but also to the prevalence of petty theft in German crime statistics.

      [1] Which is not to say that riots and such never occur, but there's really no such thing as organized hooliganism in America.

      [2] In particular, the length of pretrial detention in some countries raises serious concerns about the right to a speedy trial.

      1. Hi Katja,

        That Europe has the luxury of worrying about hooligans is a sign of how relatively safe it is: Americans have to worry about street gangs with firearms. As I am sure you know, the homicide rate in the US has dwarfed that of Western Europe for decades. Trying to understand the differences in cultural attitudes toward crime is impossible if that fact (and be fair, it's not a "claim", it's a fact) is not acknowledged.

        1. Well, I see a significant difference. Street gangs are a social problem, not a cultural one; a major cause for the formation of street gangs is economic (and ethnic) marginalization. There's nothing inherently American about street gangs; the same circumstances that lead to the formation of street gangs in America lead to their formation elsewhere, too. I'd hazard that we are mostly seeing the effect of having a lot more people marginalized by society than most European countries. But that's a difference in degree, not in kind, and European countries have their own problems related to economic marginalization. See the 2011 Tottenham riots or burning cars in Berlin. And yes, I'm fully aware of how bad it can be; my first roommate in college grew up in downtown Detroit, the type of area where kids in school learned to take cover under the tables in case of a shooting.

          Hooliganism, on the other hand, is a problem sui generis. It is not limited to the unemployed; the majority of hooligans are otherwise normal working class people. Frank Renger, one of the hooligans who had sent French police officer Daniel Nivel into a coma during the World Cup in Lens in 1998 – just to be clear, he was kicking Nivel while Nivel was lying on the ground in a pool of his own blood, unconscious – was a gainfully employed father of two [1].

          Contrary to what is commonly believed, most hooliganism is not just a case of sports fans becoming violent as a result of disappointment in a loss or as the result of random confrontations with members of an opposing team that happen to escalate; for hooligans, the violence is a goal in and of itself, and a source of enjoyment, which is actively and purposely being sought. Hooligans experience excitement and emotional arousal from participating in violence and expressly seek out these situations. A soccer match is often just a backdrop for this experience (aside from team affiliation creating tribal identities). This is a cultural and psychological phenomenon, and not just a social response due to being stuck in a "no hope, no future" situation.

          Homicide in America is a somewhat unique case, from which you cannot easily extrapolate to other forms of violence; for example, if you look at UNODC robbery statistics as another category of violent crimes, for example, the US are actually not an outlier compared to European countries (above average, but not the worst; granted, this is a category that is fraught with classification problems that can make it hard to make direct comparisons, there is no evidence that America is a huge outlier [2]. In any event, robbery statistics do not point towards Americans having a particular propensity for violent crime.

          I suspect that gun ownership rates are at least part of the reason for America's high homicide rate (especially, but not only, in conjunction with street gang violence, where it serves as a multiplier). Not because guns make people more violent, but because violence is more likely to become lethal when one of the participants in an altercation happens to carry a gun.

          [1] Since we are talking about prison sentences: he was sentenced to five years of prison and was released on probation after four years of a month and appears to have been successfully rehabilitated.

          [2] Though there can be significant differences in subcategories; for example, while Germany registered over 50,000 robberies (including attempts) in 2013, armed robbery was virtually unheard of. This is probably in part because the minimum sentences for armed robberies are massively higher under the otherwise fairly lenient German Penal Code (minimum sentence of three years for carrying a weapon during a robbery, five years for using it), so you have to be a particularly stupid criminal when there are other equally rewarding [3] crimes that carry much lower sentences.

          [3] And I mean "rewarding" in the purely economic sense, of course, not as an endorsement of fraud or theft.

  3. Here in DC we have a little independent TV station call MHz Network that shows a lot of European crime dramas (with subtitles!) I got hooked on a Danish show called Unit One about a homicide detective squad. And one thing that really surprised me was the short sentences the criminals got – 3 or 5 years for manslaughter, 8 or 10 for second degree murder, almost nothing more than 12 or 15 years, even for murderers with multiple victims.

    Assuming that the show is realistic about sentencing in Denmark, maybe our prisons are full, not because we are more violent than Europeans, but because we lock criminals up for much longer sentences than they do.

    1. In general, yes, sentences tend to be considerably shorter. The rationale is that sentences beyond 5-10 years do not really accomplish anything (beyond five years, probably nothing but incapacitation and a bit of general deterrence). At this point, finite prison terms and life sentences start to blur together. More than ten years in prison will destroy the average person.

      That said, homicide is a special case. First, penalties for homicide tend to be vastly different across Europe. There are countries that do not even have life sentences, while other countries have mandatory life sentences for murder. Some of the latter (such as Germany) still have extremely low incarceration rates compared to the US. Second, murderers tend to have very low recidivism rates (for any crime). Murderers are generally not career criminals, but tend to kill due to unique circumstances (except for some categories such as gang violence and organized crime).

      It is also important to keep in mind that several countries have provisions for preventive detention of dangerous criminals who can be kept behind bars beyond their normal sentence because they remain a risk to society (see, e.g., Norway and Anders Behring Breivik). This allows them to protect society from such criminals without cranking up sentences across the board in ways that hit both first-time and repeat offenders alike.

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