Over the last few months, America's criminal justice debate has been focused on policing. But incarceration remains a divisive issue. The key question here is whether the U.S. has a "mass incarceration" problem; if it does, then mass decarceration is the obvious solution. While there is certainly a subset of the American prison population whose incarceration does not serve a legitimate penological end, that subset is not large enough to sharply cut prison rolls by, say, 50 percent—a goal the presumptive Democratic Party presumptive nominee, Joe Biden, has explicitly committed to pursuing. Pursuing that sharp a reduction in incarceration would necessarily require releasing, or refusing to incarcerate, chronic, often violent, offenders who pose a significant risk to the public's safety—particularly in communities already struggling with elevated crime levels, economic blight and other social problems.
The question of whether the U.S. over-incarcerates on a "mass" level is one many attempt to answer via international comparisons. Presenting America's incarceration rate alongside that of another Western European democracy can, at first glance, seem shocking; but such arguments reflect an oversimplification that masks major differences that go a long way toward explaining the delta between America's prison population, and, say, Germany's (to take Mr. Levin's example).
The most obvious of those major differences is the rate of serious (as opposed to general) crime—the sort that is most likely to be met with a long term of imprisonment. In 2018, Germany, with a population of approximately 83,200,000, saw 2,471 homicides (including both murder and manslaughter). Let's compare that with just a handful of high-crime slices of the U.S. Four contiguous community areas in Chicago (Humbolt Park, East Garfield Park, West Garfield Park and Austin) saw 121 homicides in 2018, with a combined population of about 189,846. Two police districts in Baltimore (western and southwestern) saw 100 homicides that year, with a combined population estimated at 103,052. Detroit's eighth and ninth precincts (combined estimated population of 160,354) saw 81 homicides in 2018. And three St. Louis neighborhoods (The Greater Ville, Wells-Goodfellow and Baden) saw 34 homicides between them in 2018. Their combined population was approximately 19,352. In other words, just a few small slices of just four American cities saw, in 2018, 13.6 percent of the homicides seen in the whole of Germany despite housing just 472,604 people (equivalent to about 0.5 percent of Germany's population).
Another reason the United States has such a large percentage of the world's prisoners is simply a function of national wealth. As one of the world's most prosperous nations, America is able to dedicate an enormous amount of resources to its law enforcement apparatus. This is a feature; not a bug. There are many nations, like Brazil, with much more serious violent crime problems than ours and significantly smaller prison populations. Their lower incarceration rates are much more likely due to economic limitations than to a more permissive posture toward violent crime.
The reality is that though there is certainly room for decarceration at the margins, imprisonment is a sanction generally reserved for serious, higher-rate offenders who have proven themselves highly likely to reoffend if/when released. Historically, only about 40 percent of those convicted of state-level felonies are sent to prison. In terms of who is in prison, just six very serious offense categories accounted for nearly 64 percent of state prisoners in 2018: murder (14.3 percent); rape/sexual assault (13.1 percent); robbery (12.8 percent); aggravated/simple assault (10.8 percent); burglary (9.1 percent); and weapons offenses (3.7 percent). On the other hand, drug offenders, who garner a lot of attention from decarceration advocates, constituted just over 14 percent of state prisoners in 2018—and state prisoners accounted for 88 percent of the nation's total prison population. Not only are drug offenders a small portion of the overall prison population, but they don't serve very much time. Nearly half (45 percent) are out in less than a year; one in five are out in less than six months. Still, 15 percent of the prison population isn't exactly small potatoes; but the mere fact that someone is serving time primarily (i.e., not necessarily exclusively) for a drug offense does not mean he/she can be accurately categorized as "non-violent" and released without endangering the public.
According to a Bureau of Justice Statistics (BJS) study, released drug offenders actually had a higher recidivism rate (83.8 percent) over a nine-year observation period than those released after serving time for a violent offense (78.7 percent). More than three-quarters of those drug offenders were arrested for a non-drug crime; and more than a third were arrested for a violent crime, specifically. However one views the merits of the drug war, there's no getting around the reality that there is a significant amount of overlap between drug and violent offenders, such that the incapacitation effects of prosecuting drug crimes often prevent violent offenses. That reality was illustrated by a datapoint released by the Baltimore Police Department, showing that 70 percent of 2017homicide suspects in Charm City had a prior drug arrest in their criminal history.
Overall, a whopping 83 percent of released state prisoners are rearrested for at least one crime after they're released from prison, highlighting the importance of incapacitation—one of the four main penological ends served by incarceration. The other three are rehabilitation, deterrence and retribution. The shootings, homicides and other violent crimes plaguing many of America's neighborhoods are driven significantly by repeat offenders who have already had (and blown) many "second chances." In Chicago, the average homicide or shooting suspect had (in 2015 and 2016) an average of 12 prior arrests. Another BJS study found that, over a 12-year period, 36 percent of those convicted of violent felonies in large urban counties were on probation, parole or awaiting trial at the time of their arrests.
A big chunk of America's criminal justice story is the frustrating tale of revolving courthouse doors. Chronic offenders, often with serious criminal histories, are repeatedly allowed back into their communities. All too often, that decision results in a loss of life—like the one stolen from Brittany Hill, who, according to prosecutors, was killed by two men, one of whom was out on parole despite having nine felony convictions, including second-degree murder. That case was similar to a one a few years earlier, in which a 56-year-old parolee was charged with a stabbing despite nine felony convictions and "at least 60 arrests," according to the Chicago Tribune. That case, too, was reminiscent of another in which a 38-year-old parolee was charged with pointing a gun at Chicago police officers before being shot—he too had nine prior felony convictions, according to the Tribune. And then there was the 2014 arrest of 51-year-old George Patterson by Chicago police for a murder committed while he was out on parole, despite having...you guessed it—nine prior felony convictions, according to CBS Chicago. And that's just Chicago over the last few years.
To be sure, there are certainly some people in prison who don't belong there. Mr. Levin has identified some. But there are also a lot of people on the street who belong in prison.
If you're wondering how that's possible given the draconian sentences you always read about, the answer is that, at least in terms of time served, sentences in the U.S. aren't actually all that long. The median amount of time served in state prisons is about 16 months, with nearly 40 percent of state prisoners serving less than a year before their initial releases. Lengthy sentences are mostly reserved for the most serious of crimes (or the most chronic of offenders). Nevertheless, 20 percent of those convicted of homicide, and nearly 60 percent of those convicted for rape or sexual assault, serve less than five years of their sentences, according to a recent BJS study of time served. And while there are certainly some older prisoners serving long sentences who probably aren't very likely to be violent, the vast majority of them are serving time for very serious offenses like murder. We must remember that retribution is a perfectly legitimate end for the criminal justice system—especially in cases involving murder, which sentences the family and friends of the victim to a life without their loved one.
It's certainly possible that some of the crimes committed by recidivists reflect prison's criminogenic effect. Whether that effect is large enough to outweigh the incapacitation benefits of incarceration—particularly for serious and high-rate offenders—is less clear. Such a claim is at least partly undermined by two pieces of research cited by Mr. Levin, both of which show that recidivism rates do not materially change with the amount of time spent in prison. One would expect that more exposure to a criminogenic environment would lead to more criminal behavior, but that does not seem to be the case.
Moreover, decarceration is not the only way to mitigate the potential criminogenic effect of incarceration. One potential contributor to recidivism is overcrowding, which, as I recently wrote, has been linked to certain maladaptive behaviors and can make strategically housing inmates according to their risk more difficult—another problem linked to worse outcomes for releasees. Overcrowding can be addressed by adding carceral capacity. But this creates a problem for decarceration advocates, who often highlight the savings of reform proposals that come via prison closures. As the pandemic has illustrated, limited carceral capacity can prove dangerous for inmates and prison staff alike.
Now, while much of this essay has focused on prisons, there is also a large jail population in the United States. But here, again, we must be circumspect about just how much room there is for decarceration without risking the public's safety. One of the most popular mechanisms through which jail populations across the country have been cut is bail reform. As I've argued elsewhere, heavy reliance on monetary pretrial release conditions will inherently produce inequities; therefore, release decisions should be based on risk rather than one's ability to pay. But in many jurisdictions, that risk is consistently miscalculated or ignored. Consider a recent analysis of bail reform in Chicago, which found that "after more generous release procedures were put in place, the number of released defendants charged with committing new crimes increased by 45 percent." Another study published by researchers at Princeton, Harvard and Stanford found that pretrial release was associated with a 37.6 percent increase in the likelihood of a defendant's rearrest prior to case disposition.
I feel compelled to repeat that none of this is to say that there isn't any fat to be trimmed from America's jail and prison rolls. There is. And the work that responsible reform advocates, like Mr. Levin and his colleagues, do to identify realistic opportunities is important, even if we may sometimes disagree about the advisability of a particular course of action. More than anything else, though, this is a debate that must be oriented around the government's first duty, which is to the public's safety—and that duty simply cannot be fulfilled without rejecting the sort of mass decarceration so many seem to be clamoring for.
This piece originally appeared at Newsweek
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Rafael A. Mangual is a fellow and deputy director for legal policy at the Manhattan Institute and a contributing editor of City Journal. Follow him on Twitter here.
This piece originally appeared in Newsweek