Viewpoint

Do we ‘mass incarcerate’?

One of the common and increasingly popular critiques of the American criminal justice system is that it “mass incarcerates” our citizens. This critique often drips with accusations of racism. A recent book called mass incarceration the “new Jim Crow.” But this idea that teeming racists have hijacked our criminal justice system is nonsense and threatens to interfere with meaningful reform.

I don’t sentence groups of people to prison; I sentence individuals. I don’t sentence people to prison for being in certain groups; I sentence them because they committed crimes. The disparate impact that the criminal law has on some socio-economic groups is a stark reality that requires some honest reflection – not just as to whether, and where, the system may be skewed against certain groups, but also whether, and why, those groups may be committing certain kinds of crimes at higher rates than other groups. But disparate impact is not proof of racism, any more than it is proof of group criminality.

One of the hidden truths of the criminal justice system is that most judges, including me, give most criminals chance after chance on probation before we pull the plug and sentence them to prison. There are of course important exceptions, including mandatory sentences for violent crimes and for some drug crimes. But we sentence most felons to probation, and most of them then serially violate their probation until, finally, we send them to prison. Any solution to the problem of disparate prison impacts will therefore have to address not just the problem of different rates of arrest, conviction and incarceration, but also different success rates on probation.

Still, the critics are right that there are discrete aspects of the system that are driving sentence lengths too high, and that may even be the principal culprits in the “mass” part of mass incarceration. In fact, there is a large body of criminological research that shows that just a handful of criminal law doctrines – including three strikes laws and mandatory minima for simple drug possession – drive sentences substantially higher than the average citizen believes is just. These are also exactly the kinds of sentences that are jacking up imprisonment rates. Eliminating these overly harsh doctrines would go a long way toward solving the problem of exploding prison populations, without conflicting with our deepest notions of what is and is not just punishment.

But cries to reform the way we sentence violent offenders – eliminating life sentences for first degree murder, for example – would not only not put any significant dent in the “mass” part of mass incarceration, many of them are dangerous rejections of our shared notions of what is just.

Punishment is so deeply engrained in all of us – probably a remnant of our evolution in small groups – that every human society that has left a record has left evidence that it punished its wrongdoers. We can, and should, argue about whether there are too many Americans in prisons, but the positions we take on that issue should not be driven by misguided feelings that punishment is wrong, that only backward societies punish their wrongdoers, and therefore that all types of prison sentences should drastically be cut back.

Politicians will not heed calls to reduce sentences for serious crimes like murder, rape and aggravated robbery because ordinary citizens in fact do not support such reductions. Even less violent crimes, like burglary or theft, often deserve prison sentences because they tear the social fabric more broadly, even if not as deeply, simply because they are more frequent.

The rule of law, just like any rule, needs the deterrent bite of punishment to be effective. In fact, maybe high incarceration rates are not entirely something about which societies should automatically be ashamed. Part of the reason for relatively high incarceration rates in western societies is that those societies tend to have functioning governments which take the rule of law seriously. Would you rather live in Chad, which only incarcerates 39 out of 100,000 of its citizens, or in the Cayman Islands (330)?

Almost no one disagrees that our American rate of 700 prisoners per 100,000 is unacceptably high, and that that high rate is largely driven by our drug laws and by some of these discrete sentencing doctrines like mandatory minima sentences and three strikes. But in our zeal to reform our system, the goal should not simply be to reduce the number of prison sentences we impose.

Instead, we should be asking how to reduce the number of unjust prison sentences. Asking that question may lead us to targeted reforms that go a long way toward reducing the number of days Americans spend in prison, without doing violence to our intuitions of just punishment and our commitment to the rule of law.

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