Unlocking America
A November 2007 report on criminal justice in the United States was completed by professors from across the country, including,
James Austin, President, The JFA Institute, Washington D.C.
Todd Clear, Professor, John Jay College of Criminal Justice
Troy Duster, Professor, New York University
David F. Greenberg, Professor, New York University
John Irwin, Professor Emeritus, San Francisco State University
Candace McCoy, Professor, City University of New York
Alan Mobley, Assistant Professor, San Diego State University
Barbara Owen, Professor, California State University, Fresno
Joshua Page, Assistant Professor, University of Minnesota
Funded by the Rosenbaum Foundation and Open Society Institute, the report is filled with statistics, tables, charts, documentation and recommendations for how and why to reduce America’s prison population. The full report is available on the web at
http://www.jfa-associates.com/publications/srs/UnlockingAmerica.pdf
A few highlights, edited and presented in brief, are below:
The United States is the world leader in imprisonment. China, with a much larger population, has the second largest incarcerated population, with 1.5 million imprisoned. With 737 people incarcerated per 100,000 persons, the U.S. also leads the world in rates of incarceration—well above Russia, which has the next highest rate of 581 per 100,000. Other Western democratic countries manage with prison populations far smaller than ours.
Not only are our lengths of imprisonment significantly longer than in earlier periods in our history, for the same crimes, Americans receive sentences twice as long as English prisoners, three times as long as Canadian prisoners, four times as long as Dutch prisoners, five to 10 times as long as French prisoners, and five times as long as Swedish prisoners. Yet these countries’ rates of violent crime are lower than ours, and their rates of property crime are comparable.
In the United States, every year since 1970, when only 196,429 persons were in state and federal prisons, the prison population has grown. Today there are over 1.5 million in state and federal prisons. Another 750,000 are in the nation’s jails, bringing to total to 2.2 million. The growth has been constant—in years of rising crime and falling crime, in good economic times and bad, during war and peacetime. Prison populations are now eight times those in 1970. Under current sentencing policies state and federal prisons will grow by another 192,000 prisoners in five years. And the nation will spend an additional $27.5 billion in operational and construction costs on top of the over $60 billion now spent.
It is tempting to say that crime rates fell over the past dozen years due to imprisonment policies, but a look at data about crime will show that prison populations continued to swell long after crime rates declined. Today, whatever is driving imprisonment policies, it is not primarily crime.
Prisons are self-fueling. About two-thirds of the 650,000 prison admissions are persons who fail probation or parole—approximately half of these people are sent to prison for technical violations. In many states these violations include petty drug and property crimes or violations of parole requirements that do not even constitute crimes. This high rate of recidivism is, in part, a result of a range of policies that increase surveillance over people released from prison, impose obstacles to their reentry into society, and eliminate support systems that ease their transition from prison to the streets.
Americans have become accustomed to demonizing certain people who break
the law. This is somewhat odd, given that few citizens go through life without ever violating a law. A significant number of Americans cheat on their taxes, steal from their employers, receive stolen goods, purchase illegal cable boxes, illegally download music, use illegal drugs, or participate in many other illegal acts. Hardly a day goes by without reports of corporate executives indicted for fraud, insider trading, or price fixing. Politicians are convicted for accepting bribes. The most prestigious Wall Street firms have engaged in large-scale illegal trading practices. Some of our most idolized entertainment figures are indicted for shoplifting, domestic violence, drunk driving, possessing drugs, and molesting children. Policemen are filmed using excessive use of force on citizens, make arrests based on racial stereotypes, deal in drugs, plant evidence on innocent people, and lie under oath. Sports figures are accused of rape, assault and taking steroids. Priests are charged with child molestation. Doctors bill Medicare for procedures they did not perform. Each day thousands drive while legally drunk. Self-report surveys find that lawbreaking is widely distributed among the young, especially males.
As many as one-third of all boys are arrested before reaching adulthood. A majority of males will be arrested for a non-traffic offense at some point in their lives. But given that most of us commit some type of crimes in our lifetimes, the most severe punishments are targeted toward lower class citizens. It is this class of people we are willing to punish disproportionately.
Middle- and upper-class people understand that their families and close associates are not defined entirely by their law violations. But they often lack understanding for those whose life circumstances are different from their own. The demonization of criminals has become a special burden for young black males, of whom nearly one-third will spend time in prison during their life. Today approximately 60% of those incarcerated are black or Hispanic. In effect, the imprisonment binge has created our own American apartheid. While we may differ on the basis for racial differences in imprisonment, there can be no disagreement that this is not the sign of a healthy society.
Three Key Myths about Crime and Incarceration
Myth #1: We can identify “career criminals” and their imprisonment will reduce crime.
Most people who commit crimes stop committing crimes by the age of 25. One of the primary justifications for lengthy sentences is that we can identify early in life the “career criminals” who continue to commit most serious crimes. These people, it is argued, must be “incapacitated” for long periods of time. However, scientific efforts to develop methods for identifying career criminals have failed. Studies find that delinquents who had been incarcerated were more likely to commit crimes later in life than those who had been sentenced to probation or local jail time. The implication is that imprisonment itself can encourage later criminality.
Myth #2: Tougher penalties are needed to protect the public from “dangerous” criminals.
The failure to accurately identify the small number of offenders who do commit particularly horrendous crimes after serving their sentences fueled demands for longer sentences across the board. In other words, if we can’t single out the truly dangerous, we will assume anyone with two or three convictions for a relatively wide range of offenses is a habitual criminal, and keep them all in prison for an extremely long time. On this basis, a number of states adopted mandatory sentencing, truth-in-sentencing and “three strikes” laws. These have done little to reduce crime. This is because rates of return to serious crime by those released from prison are not high. Just 1.2% of those who served time for homicide and were released in 1994 were rearrested for a new homicide within three years, and just 2.5% of released rapists were arrested for another rape. Sex offenders were less likely than non-sex-offenders to be rearrested for any offense. Their rates of re-arrest were only 5.3%. A substantial percentage (over 60%) of released prisoners are eventually rearrested, but mostly for drug offenses or violations of parole regulations. Studies make clear that, while many people who are released from prison end up back behind bars, they are a fraction of the overall crime problem. Lengthening their sentences as a means of dealing with crime will at best have only marginal impact.
Myth #3: Tougher penalties will deter criminals
The hope that brutal prisons and longer sentences will deter crime is as old as the invention of the prison itself. This notion simplifies and distorts the dynamics of criminal behavior. When most people commit a crime, they correctly believe that they will not be caught. (About 60% of all crimes are not reported to police.) The FBI reports that 4.6 million arrests were made for property or violent crimes, a number representing only 19% of the reported victimizations. State and federal courts dealing with serious felony crimes produce about one million convictions—of which 68% result in a prison or jail sentence. Therefore, the chances of being arrested, convicted, and sentenced to jail or prison are quite small. Further, different types of crimes vary markedly in their potential for being deterred and people differ in their susceptibility to being deterred by the threat of punishment.
The population roughly divides into three groups:
1) those who, because of personal values and social commitments, would not knowingly commit crimes under any circumstances;
2) those who are deterred when they believe that there is some risk they will be caught
3) those who are not deterred.
The type of crime most likely to result in arrest and conviction tends to be committed by those least likely to be deterred—generally young males excluded from the conventional pathways to success and already severely punished by the juvenile justice system. The vast majority of these youth desist from crime after their twenties for reasons unrelated to any penalties imposed. Ironically, those who are deterred when punishment is seen as likely—polluters, price fixers, slum lords, inside traders, stock swindlers, workplace safety violators, and other “white-collar” criminals—receive relatively lenient punishment when caught.
The persistent faith that prisoners can be discouraged from returning to crime by subjecting them to harsh penalties, and that the population at large will be deterred from committing crimes more effectively with severe penalties, has never had empirical support. Decades of research on capital punishment have failed to produce compelling evidence that it prevents homicide more effectively than long prison sentences. Community penalties, it has been shown, are at least as effective in discouraging return to crime as institutional penalties. Rigorous prison conditions substantially increase recidivism. Evaluations show that boot camps and “scared straight” programs either have no effect on recidivism or increase it. “Tough” sanctions are popular, but they do not reduce crime.
Studies on the impact of incarceration on crime rates come to a range of conclusions that vary from “making crime worse” to “reducing crime a great deal.” Though conclusive evidence is lacking, the bulk of the evidence points to three conclusions:
1) The effect of imprisonment on crime rates, if there is one, is small;
2) If there is an effect, it diminishes as prison populations expand; and
3) The overwhelming and undisputed negative side effects of incarceration far outweigh its potential, unproven benefits.
A recent “meta-analysis” of treatment programs reviewed 291 evaluations of adult offender treatment programs, both in-prison and in-community, conducted in the United States and other English-speaking nations. It reports that 42% of the evaluated programs, including jail diversion programs, domestic violence programs, faith-based, psychotherapy or behavior therapy for sex offenders, boot camps, electronic monitoring, and restorative justice programs had no impact on recidivism. Of the 167 effective programs, only one-fourth were prison-based. Of these, the reduction in recidivism rates generally ranged from 4% to 10%. These recidivism reduction results are similar to those found in other major evaluations of “what works” (or “doesn’t work”). Notably, many other programs do not reduce recidivism and may actually increase rates of failure.
Imprisonment can legitimately satisfy a social and personal need for retribution toward those who violate society’s laws. Most contemporary philosophies of punishment give a large role to retribution. In addition to satisfying victims’ needs, punishing lawbreakers according to what they deserve can perform important social functions. Punishment can promote social solidarity, while failure to respond to crime weakens commitment to social norms. At the same time, excessive punishment can exacerbate social tensions and widens divisions, reducing solidarity. It can corrode a nation’s political culture, and obstruct efforts to deal constructively with social problems. Retribution should not be used as an excuse for mindless punitiveness as is the case now. The essence of retribution is to punish people proportionately, based on the crime they have committed. Excessive leniency and undeserved harshness both violate the principle of proportionality. Failure to limit the severity of punishment to what is deserved is unjust. It alienates citizens from the government and undercuts the effectiveness of law enforcement. When those who are punished are disproportionately poor and members of minority groups, it is inevitable that they will believe that the law is being used to repress them, rather than holding them accountable for their crimes.
FOUR RECOMMENDATIONS THAT WILL REDUCE
PRISON POPULATION WITH NO ADVERSE IMPACE ON CRIME RATES
1: Reduce time served in prison.
Reducing sentencing severity would mean probation or a short jail sentences for some; for others, it would mean less time spent in prison, as well as less time on parole. This central recommendation is grounded in three facts:
1) many prisoners are now serving longer prison terms;
2) the longer prison terms are not proportionate to the severity of the crimes they were convicted of
3) the extension of their length of incarceration has no major impact on their recidivism rate, or crime rates in general.
2: Eliminate the use of prison for parole or probation technical violators.
Today anywhere from 50-65% of the 650,000 prisoners admitted to state prison are those who have failed probation or parole. Of those who have failed, about half are being sent to prison for technical violations. Such violations include absconding from supervision, failure to pay supervision fees, restitution costs, or fines, failure to attend treatment, drug use as detected by urine-analysis, failure to maintain employment, or being arrested (but not convicted) for misdemeanor or felony level crimes. While these behaviors are troublesome, they do not reach the level of seriousness of requiring incarceration for many months or years in state or federal prison. The U.S. Department of Justice reports that parole violators returned to prison serve an average of 18 months before being re-released. Prosecutors and correctional officials erroneously believe that unless individuals are re-incarcerated for technical violations, the individuals will commit serious crimes in the future. There is no scientific evidence to support this belief and attendant policy, yet it continues to be the primary rationale for re-incarcerating tens of thousands of people for criminal or non-criminal behavior for which ordinary citizens could not be incarcerated.
3: Reduce the length of parole and probation supervision periods.
There is little evidence that lengthy parole and probation terms decrease crime. Probation or parole supervision failure is most likely to occur within the first 12 months of supervision; thereafter, supervision is more of a nuisance than a means for assisting people after prison or preventing them from committing another crime.
New research indicates that parole supervision is largely ineffective with respect to reducing recidivism. The obvious explanation is that people who have no parole obligations when they leave prison (“max out”) can only be returned to prison if they are convicted of a new felony crime. Conversely, those placed on parole and probation can be re-incarcerated for either non-criminal behavior or misdemeanor crimes. A 2005 Urban Institute study, among others, revealed that individuals released with no parole supervision return to prison at a significantly lower rate than those released on parole.
4: Decriminalize “victimless” crimes, particularly those related to drug use.
In recent years, behaviors have been criminalized that are not dangerous and pose little if any threat to others. They involve the consent of all immediate parties. Common examples in American history have included abortion, gambling, illicit sexual conduct that does not involve coercion (e.g., prostitution and, until recently, homosexual activity), and the sale and possession of recreational drugs. According to the U.S.Department of Justice, approximately 30-40% of all current prison admissions involve crimes that have no direct or obvious victim other than the perpetrator. The drug category constitutes the largest offense category, with 31% of all prison admissions resulting from such crimes.
Politicians and the public have ignored the lessons of Prohibition in formulating drug policy. In an attempt to eliminate harms caused to individuals, their families and society from the abuse of heroin, cocaine, marijuana, and other drugs, legislatures have passed laws sending large numbers of users, abusers and low-level dealers to prison with very long sentences. This prohibition, like the earlier one, has led to violence as dealers have sought to eliminate rivals in the lucrative market. Like Prohibition, it has resulted in the distribution of adulterated drugs that have injured and killed users.
The high profits of drug dealing are largely the consequence of legislation that eliminates competition from anyone unwilling to risk draconian penalties. Every time a dealer is taken out of circulation by a prison sentence, a new dealer is drawn in by the lure of large profits. The prosecution and imprisonment of low-level traffickers has increased racial disparities, and is the largest factor contributing to the rapid rise in imprisonment rates for women. Dealers’ use of violence to eliminate competition helps to sustain the myth linking drug use to violence. Notwithstanding our extraordinary effort to discourage the use and sale of illegal drugs, they remain widely available and widely used.
TWO ADDITIONAL RECOMMENDATIONS
5: Improve conditions of imprisonment.
Reducing the size of the prison population is not enough. We could not in good conscience recommend that anyone serve a prison sentence unless we ensure that those who end up behind walls are treated in a humane manner. Prisons that systematically deny human dignity, basic human rights, and life necessities are creating festering sores that poison the entire society. Clearly, prison terms have a residual impact on the families and communities of the imprisoned. Enduring years of separation from family and community—deprived of material possessions, subjected to high levels of noise and artificial light, crowded conditions and/or solitary confinement, devoid of privacy, with reduced options, arbitrary control, disrespect, and economic exploitation—is maddening and profoundly deleterious. Anger, frustration, and a burning sense of injustice, coupled with the crippling processes inherent in imprisonment, significantly reduce the likelihood that prisoners are able to pursue a viable, relatively conventional life after release.
Unsafe, inhumane, and secretive prisons not only traumatize the incarcerated but also contaminate prison staff and their families, as well as townsfolk near the prison. More generally, support for an inhumane prison system requires that prison workers and the public embrace the simplistic concept that prisoners are unworthy beings that deserve their harsh punishment above and beyond the segregation from society and loss of freedom.
There are five fundamental features of prison administration that should be acceptable to anyone interested in accomplishing the prison’s practicable purposes—punishment and deterrence—without engaging in unnecessary, counterproductive, and cruel practices.
1. Eliminate Cruel and Unusual Punishment
These include denial of adequate medical services, excessive use of physical force, and housing prisoners in exceptionally punitive arrangements, such as solitary confinement units. Federal courts have ruled that these practices violate the Constitution’s Eighth Amendment.
2. Safety
Prisoners should be protected from assault, rape, murder, etc., by other prisoners and staff. Effective strategies such as adequate surveillance, voluntary access to safe living areas within the prison, housing prisoners in small units, and “single-celling” should be practiced to ensure prisoners’ safety.
3. Health
Prisoners should have access to the resources and services required to maintain their physical and mental health. These include access to medical and psychiatric services, adequate diet, and recreation. Prisoners should not be subjected to physically and mentally deleterious incarceration regimens such as extended periods of isolation and restricted mobility, and excessive noise.
4. Programs
Any rational and humane system of punishment should provide access to opportunities that increase prison safety and improve prisoners’ chances of making it in the community after prison. Such programs would include academic, technical and citizenship education, as well as a wide variety of treatment programs that help prisoners improve themselves and develop more conventional, law-abiding interests and pursuits. These types of programs should be provided regardless of whether they reduce recidivism.
5. Post-Release Assistance
Most prisoners receive little or no preparation for release from prison or assistance subsequent to their release. They face extraordinary difficulties in achieving stability, viability, and life fulfillment on the outside. States should develop and provide access to transitional and permanent housing, education, vocational training and placement, counseling, coaching, and mentoring.
RECOMMENDATION 6: Restore ex-prisoner voting and other rights.
Prisoners face exceptional problems from their stigmatized status. They are barred from most city, county, and state employment and from some housing such as federally subsidized housing and are systematically denied employment by many private employers. Their right to vote varies from state to state, even from county to county in some states. It will be difficult to overcome private employers’ restrictions on hiring ex-prisoners, but persistent efforts should be made toward this goal. Perhaps laws against discrimination against employment of ex-prisoners can be adopted in the future. Government agencies, however, could easily change their policies. In San Francisco, the city government has removed the question regarding prior arrests on job applications. Other government jurisdictions should follow this example. Opening up relatively good-paying jobs to ex-prisoners greatly increases public safety by moving potential criminals into conventional pathways. Government subsidies for hiring ex-convicts could overcome some employers’ hesitations. In addition, exclusion from welfare, public housing, and subsidies should be ended as should rules barring ex-convicts from living in certain neighborhoods. Licensing restrictions should be maintained only when demonstrably necessary to protect the public
