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.
Over the past few months, I have given some talks about public policies that could reduce the extraordinary number of Americans who are in state or federal prison. The audiences in every case were blessedly bright and engaged. Yet they also had a broadly shared misunderstanding about how two drugs are related to the U.S. rate of imprisonment.
At each talk an audience member expressed the view that over-incarceration would drastically diminish soon because states were now legalizing marijuana. I responded by asking everyone present to shout out their estimate of what proportion of people currently in a state or federal prison were serving time for a marijuana-related offense. The modal answer across audiences was around one third, which explains the shocked looks that greeted my pointing out that even under the most liberal possible definition of a marijuana-linked incarceration (e.g., counting a marijuana trafficker with 10 other felony convictions as being in prison solely due to marijuana’s illegality), not even 1% of the U.S. prison population would be so classified.
Not wanting to discourage people, I said that there was a different drug that was responsible for many times as many imprisonments as marijuana and for which we could implement much better public policies. I then asked people to guess which drug it was. Give it a try yourself (answer after the jump). Continue reading “The Link Between Overcrowded Prisons and a Certain Drug”
Per capita admissions to prison are at a 20-year low
Like most people who write about trends in incarceration, I generally focus on how the size and nature of the entire U.S. prison population changes from year to year (e.g., here). This sort of analysis can reveal important things, for example that after rising every year for more than three decades, the size of the prison population has been dropping for three years in a row. But at the same time, such analyses tell us little about what state and federal policymakers are doing regarding prisons right now.
All policymakers are at some level trapped by decision accretion, and prisons are a perfect example of the phenomenon. The high level of incarceration in the U.S. is the product of decisions made over many years prior to when the current group of policymakers was on the scene. For example, while I have complained about the abolition of federal prison parole as a cause of overcrowding, I also recognize that many of the elected officials who voted for it have died of old age, and hardly any are still in office. Even if the current Congress re-established parole tomorrow, it would take years to unring that bell. Likewise, people who have committed heinous crimes for which they are serving multi-decade sentences do not simply evaporate with each election. And that’s critically important in evaluating how quickly current policymakers can reduce incarceration levels given that the majority of the state prison population is composed of violent offenders who are serving long sentences.
To try to get around this analytic problem of decision accretion swamping recent trends, I used the latest Bureau of Justice Statistics data to compute the annual rate of admissions to state/federal prison. As the chart below reveals, the large amount of recent change in this variable was obscured in my prior analyses, which looked only at total prison population size. I was startled and encouraged to see that under current policies, we are at a two decade-year low in the prison admission rate. To provide historical perspective, peg the change to Presidential terms: When President Obama was elected, the rate of prison admission was just 3% below its 2006 level, which was very probably the highest it has ever been in U.S. history. But by the end of Obama’s first term, it had dropped to a level not seen since President Clinton’s first year in office.
When I was a doctoral student, I wrote a desk-jockey dissertation. I analyzed a gigantic dataset to examine informal economic transfers within low-income families.Â Then I took a Yale postdoc. One of the first people I met there was Dr. Frederick Altice, who was a key investigator and clinician providing care to HIV-infected prisoners and drug users at the community health care van, a needle-exchange-based health services targeting street drug users. This was the mid-1990s and New Haven was an epicenter for HIV among drug users. It was a pretty awful time for the city. At least New Haven had intrepid people like Rick who worked to limit the public health harms and the human suffering.
One of my first times out, a woman stepped on the van to get some care. She was a sex worker and a person who injected drugs. Within the close quarters of that van, many of the other people waiting gave her a little extra room. She was very grimy, probably homeless. Â Rick called her over. He pulled out an apple, and split it with his penknife. He handed her one piece, and said, â€œWhy donâ€™t you share this with me?â€Â As they ate together, he conducted a beautiful clinical interview that explored her incredible range of serious health problems.
I interviewed Rick today at Wonkblog. We talked about a range of pertinent issues in correctional care. If anything, Rick understates the challenge. Connecticut is quite unusual in providing generous Medicaid to many low-income adults who would be uninsured in other states.Â
The federal prison system faces serious challenges, but confusing it with the entire US prison system obscures how they can be addressed
The Department of Justice’s Inspector General has released a report highlighting challenges within the federal prison system. The IG correctly identifies overcrowding as a root cause of numerous other problems, including inhumane conditions for prisoners, risk to correctional officers and budgetary burden.
Unfortunately, some of the media coverage and blog commentary about the report made the mistake of equating the federal prison population with the “US prison population”. This conflation leads to a misunderstanding both of the unique nature of the problem in federal prisons and the range of the solutions, because the federal prison system is a small, atypical part of the U.S. prison system.
If you don’t know that the federal prison system is different than the (almost entirely state-run) U.S. prison system, you would misunderstand the IG report to mean that the US prison population is relentlessly rising and is increasingly composed of drug offenders. In fact, the number of people in US prisons has been dropping since 2010 and the proportion of inmates serving time for drug offenses hasn’t been so low since the 1980s.
This realization redirects attention in a productive way by raising a question: What is different about federal prisons that makes them out of step with the broader national de-incarceration trend? They differ in many ways of course, but the most critical for overcrowding is that Congress abolished parole in the federal system in 1984. Nearly three decades without the option of paroling rehabilitated inmates virtually assures that a prison system will become overcrowded.
If Congress would move to reverse that policy, and the Bureau of Prisons would do a better job of implementing Attorney General Holder’s recently proposed expansion of compassionate release (which the IG report argues is not being well used) the federal prison system would quickly fall in line with the rest of the US prison system as a contracting rather than expanding enterprise.
The death sentence might be justifiable, but life without parole is hard to fathom. Still, there’s Whitey Bulger.
Unlike some of my friends, I can imagine situations where the death penalty would be justified. (That doesn’t mean I think there’s a way to make it work under U.S. legal and social conditions.)
But life-without-parole – accepted by some as a superior alternative – strikes me as almost always unjustified. Even if you agree with me that sometimes it’s possible to say “This person deserves to die,” how could you possibly say convincingly “The person this person will become in fifty years deserves to be in prison until he dies?”
That said, do I get to make an exception for Whitey Bulger? Though note that he was charged with racketeering rather than drug dealing, so though he drew two life sentences plus five years (a rather metaphysical verdict, if you read it literally) he didn’t actually get Lw/oP.
Footnote And no, though I can understand the politics of the situation, I can’t actually justify President Obama’s failure to commute a bunch of these sentences. If the pardon process is too opaque, then appoint three while male conservative Republican retired federal judges as an unofficial “clemency committee,” with a pre-commitment to commute any sentence for which they unanimously recommend commutation.
Rates of imprisonment have been declining among African-Americans for over a decade. This trend began long before the recent decline in the overall size of the prison population. The change is mainly due to reduced black male incarceration because prisoners are overwhelmingly male.
The decline in African-American women’s rate of incarceration remain important though, both in absolute terms and also in terms of the white-black disparity in imprisonment. This chart from the Bureau of Justice Statistics is striking. African-American women’s rate of imprisonment has plunged, while at the same time the white women’s rate has increased. The gap between the two hasn’t been this small in a generation.
When voters are suffering, they will reject politicians who tell them their pain isn’t real and follow anyone who seems to listen
Ed Kilgore argues that my account of why many liberal politicians supported mandatory minimum sentences and other “tough on crime” policies left out one important motivation:
I remember graphically (because I worked for him at the time) when Zell Miller, who (lest we forget) had an early reputation as a reasonably progressive “populist”, came out for a “Two Strikes and You’re Out” law during the run-up to his difficult 1994 re-election campaign as Georgia governor. True, the provision only applied to offenders convicted of violent crimes, but the gambit was typical of the tendency of many Democrats to adopt mandatory minimum schemes to avoid being outflanked on the right on the crime issue.
Ed is a seasoned political observer and his observation rings true. I would like to take it one step further: WHY was it frightening for liberal politicians to be viewed as soft on crime? The correct answer is not “because conservatives had fooled the public into worrying about crime” but that crime had been increasing for decades and the public were desperate for politicians to respond.
As Mark Kleiman has noted, the American left lost on the crime issue starting in the 1960s and 1970s because it stopped listening to the public (not unlike how the left later lost the public education issue). The extraordinary surge of crime that began in the 1960s caused enormous suffering. And when Americans are suffering, they get very angry when politicians tell them their suffering is no big deal (“Many neighborhoods are as safe as ever!”), or is really due to something else (“We don’t have a crime problem, we have a poverty problem!”), or that the public should apologize for being upset (“Complaining about crime is just coded racism”). Americans who feel unheard often express their anger by voting for some politician — any politician — who seems to be listening. And when it came to crime, for many years most of those politicians were conservative.
Liberals were in shock on crime policy for a long time afterwards. They had been talking amongst themselves when they should have been listening to people outside the bubble. California Republicans made the same mistake when they decided to go anti-immigrant in the 1980s. The Tea Party is committing the same blunder right now as they plan out where they will store all the roses the public will supposedly buy them if the federal government is shut down on October 1. Failure to listen isn’t a left or right thing. Rather, it’s a thoroughly human weakness about which political parties should be constantly vigilant.
Perhaps the dynamic of political parties not listening until the suffering public rebels is an unavoidable part of politics in a democratic republic. It’s healthy insofar as it puts power in the hands of the citizenry, but it’s malign in that it can led to the adoption of some destructive public policies. Given a choice between submitting meekly to a political party that tells them to STFU and a bad policy proposed by someone who seems to be listening, suffering voters will go for the bad policy most of the time. Perhaps the lesson for the political class is that if you want good public policy, respond to unhappy voters by taking the cotton out of your ears and putting it in your mouth. If you don’t, they will find someone else who will.
The federal prison system is a small and atypical part of the U.S. prison system
I praised Attorney General Holder’s proposed changes to mandatory minimum sentencing procedures in federal drug cases. That said, the way some media outlets touted them in the subsequent news cycle grossly overstated their impact by not understanding the nature of the federal prison system. If you want to comprehend the realities of correctional policy in the U.S., not just regarding Holder’s proposals but more broadly, it is essential to appreciate that the federal prison system is a relatively small and atypical part of the U.S. prison system.
It is I suppose natural to assume that what is “federal” is large and what is “state” is small, and in some public policy areas (e.g., health care) this heuristic holds. But in prison policy, it’s the other way round. At any given time between 85-90% of the U.S. prison population are in state facilities. To give a comparison point, over the years the State of California’s prison system has often held nearly as many people as does the entire federal prison system.
So when the BBC World Service reports that the Attorney General’s proposals will have a huge impact because “half of U.S. prisoners are serving time for drug offenses”, they are being hyperbolic. Drug offenders constitute a small and declining proportion of the U.S. prison population. Half of federal prison inmates are serving time for a drug conviction, but that’s only about 6% of the US prison population as a whole. The federal percentage is high because of the unusual mandate of the federal system, which picks up the farrago of cases that are not charged by states. As a result of violent criminals rarely being charged at the federal level, the percentage of all other types of crimes in the federal system goes up.
Granted, it is easy to get this nuance wrong both because it is counter-intuitive that the federal system is such a small part of the national prison system, and, because some people quote federal prison statistics in intentionally misleading ways. For example, some people with axes to grind invoke federal prison statistics to imply that half of all U.S. prisoners are serving time for drug offenses or that a sixth of all U.S. prisoners are serving time in private facilities, neither of which is true.
But even taking these possible reasons for error into account, I must say the following to the BBC World Service: When your producer calls me before a broadcast and makes this mistake about the federal prison system, and I take the time to patiently explain the difference between the federal and state systems, and then your program host repeats the false claim on the air anyway, a little bit of my wonky heart dies.
Eric Holder helps the country recover from its agitated delerium about drug law enforcement and sentencing.
The federal government keeps about 100,000 people under lock and key at any given time for drug law violations. That’s more than half of all federal incarceration, though it’s a small share of total drug-law incarceration (about 500,000, including state prisons and local jails) and a tiny share of total incarceration (a disgraceful 2.3 million).
The structure of federal drug sentences – long, mandatory sentences based on drug quantity, prior record, and various features of the defendant’s conduct (e.g., having a gun, even if there’s no evidence of actual or threatened violence) – leads to some very long terms for relatively minor players. Even for major players, it’s often not easy to see the social gain from locking them up for 15 years instead of 5. If the goals of drug policy are to reduce drug abuse while minimizing violence and disorder, the marginal benefit of an extra year in prison (representing about a $40,000 expenditure) may be close to zero for many prisoners.
Today Attorney General Eric Holder announced a policy under which federal prosecutors will be encouraged not to plead the specific features of a case that lead to lengthy terms unless there’s some good reason to do so. That might seem like common sense. And, indeed, it used to not only common sense but standard practice. When I went to work for the Justice Departmetn in 1979, prosecutors were still quoting the old maxim that “The government carries its case when justice is done.”
That traditional view created an asymmetry in the system; the defense lawyer isn’t supposed to seek justice, but to zealously advocate for the interest of the defendant in being punished either not at all or as little as possible. There’s an alternative – in my view, discreditable – prosecutorial mind-set that restores the symmetry by making the prosecutor just as much a zealous advocate as the defense counsel. If the defense is seeking the minimum penalty, why shouldn’t the prosecutor seek the maximum? Mandatory-sentencing laws mean that the prosecutor doesn’t have to persuade a judge that the defendant deserves decades in the clink.
When Richard Thornburgh was Attorney General, he made that “notches-on-the-gunbelt” approach to prosecution official policy by recommending that in every case the prosecutor charge the most serious offense for which jury-worthy proof was available. John Ashcroft made that an absolute rule, with supervisory approval required for any exception. (In practice, of course, the maximum charge is more or less the opening bid in the bargaining over a guilty plea and “cooperation” against other defendants.) Holder had already partially reversed that position, calling for an “individualized assessment” of each case; today’s announcement creates a presumption against charging the specific acts that lead to mandatory minimum sentences unless there’s a reason to do so.
It’s hard to tell from the bare-bones official statement just how much of a difference today’s announcement will make. It doesn’t go as far as I might have gone, by requiring that a prosecutor who wants to ask for more than five years in a case not involving violence specifically justify that decision and have it approved in Washington. But in principle it’s the right thing to do, and the fact that Holder now thinks he can do it safely (unlike the situation with five-year crack mandatory, a problem that also could have been fixed administratively without waiting for legislation) suggests that some aspects of drug policy, and criminal-justice policy more generally, are – slowly and belatedly – recovering from their forty years of agitated delirium.
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