The political cause of overcrowded prisons: dysfunctional political systems, not crime, cause mass incarceration
The Political Cause of Overcrowded Prisons:
Dysfunctional Political Systems, Not Crime,
Cause Mass Incarceration
By Ty Evans
Submission to PEN American Center
Annual Prison Writing Contest
August 24, 2015
Ty Evans #158293
1 Park Row
Michigan City, IN 46360
The Political Cause of Overcrowded Prisons:
Dysfunctional Political Systems, Not Crime,
Cause Mass Incarceration
The United States leads the world in numbers of prisoners and has an
“incarceration rate . . . unmatched by any other society in any historical era.”1 This distinction was achieved about a decade ago, following thirty years of rapid prison growth that began in the early 197 O’s. The costs of this endeavor, both ﬁnancial and in moral standing, have pushed this issue to the forefront of American politics.
This essay addresses questions central to the public debate on mass incarceration: Why is America’s incarceration rate so high? Was it necessary, and is it necessary today? Are there better alternatives‘?
I will argue that international and inter-state comparisons support my thesis that high incarceration rates are a product of dysfunctional political systems, and that international incarceration rates have no correlation to crime rates. By understanding the ultimate cause of mass incarceration, reasonable alternatives may be devised and implemented.
America’s Incarceration Explosion
From 1925 to 1973, about 110 people were incarcerated in the United States for every 100,000 members of the population? Right-wing conservatives backed Nixon’s
“War on Crime,” and sentencing laws were revised nationwide in the 197 0’s. A prison construction boom began. Reagan’s “War on Drugs” a decade later
‘ United States v. Bannister, 786 F.Supp.2d 617, 649 (E.D.N.Y. 2011), quoting Am. L. Inst, Model Penal
Code: Sentencing xx (Tentative Draft No. 2, 2011).
2 Id., citing Joan Petersilia, When Prisoners Come Home: Parole and Prisoner Reentry (2003), 21. accelerated the conservative agenda, leading to even stricter criminal penalties.
Legislatures cited public safety, in response to high crime rates, as justification for more prisons.
By 2008, the United States held 2.3 million people in prisons and jails, with another 5.1 million on probation or parole.3 In a 2011 international comparison, the
United States led all countries with an incarceration rate of 707 per 100,000 population, more than ﬁve times the World median of 132, and seven times higher than Western Europe. See Table 1. Crime rates declined in the 1990’s and have been relatively static after 2000, a decline attributed in large part to demographic and economic factors, and not to increased punishments.4 The “evidence indicates it is unlikely that the rise in incarceration rates played a powerful role in this trend.”5
As one district court judge concluded, “Today’s high incarceration rate bears little relationship to the prevalence of crime.”6
Costs and Beneﬁts of Incarceration
A balance sheet contrasting the costs and beneﬁts of incarceration is difficult to prepare because the accounting requires both objective and subjective elements.
The objective costs begin with the ﬁscal burden shouldered by the states. On average, 6.2% of state budgets in 2007 were devoted to corrections.7 A Brookings
3 Bureau of Justice Statistics, 2008. Prisons —— 1,518,559; jails — 785,556; parolees —— 828,169; probationers
4 Philip J. Cook & Jens Ludwig, “The Economist’s Guide to Crime Busting,” Wilson Q., Winter 2011, 62-
5 National Research Council, J. Travis, et al., The Growth of Incarceration in the United States: Exploring
Causes and Consequences (2014), 340.
6 United States v. Bannister, at 651.
7 Bureau of Justice Statistics, 2008.
Institute project shows that direct corrections expenses now total $80 billion a year, and the total expenditure exceeds $260 billion once police, judicial, and legal services are included.3 Virtually no tangible goods or services are produced, rendering the entire system an exercise in lost productivity.
Subjective costs include the incalculable harm done to other parts of society.
These collateral consequences include the effect incarceration has on families of prisoners —— higher rates of divorce, separation, domestic violence, and developmental and behavioral problems among children.9 Mass incarceration is most acutely felt in disadvantaged communities where poverty, unemployment and family disruption combine to create a permanent underclass.1°
The beneﬁts of incarceration ~ deterrence, incapacitation, retribution and rehabilitation —— justify some costs. A sense of justice is required for any civilized society to function. But the controversy here isn’t whether this system should be in place, but rather to what degree it should be used. The political stance of being
“tough on crime,” however, is not synonymous with being effective on crime. As numerous developed nations have proven, low crime rates and low incarceration rates can co—exist. See Table 1, Western Europe, East Asia.
In a world with nearly 200 countries, it’s extraordinary to rank first in any statistical category. Being top dog in categories like military spending, nuclear
8 United States v. Valdovinos, 760 F.3d 322, 331 (4th Cir. 2014) (dissent), citing The Hamilton Project,
M. Kearney, et al., Ten Economic Facts about Crime and Incarceration in the United States (2014).
9 Bruce Western & Becky Pettit, “Incarceration and Social Inequality,” Daedalus, Summer 2010, 15. power generation, per capita CO2 emissions or corn production probably doesn’t strike the average American as indicative of any kind of societal or governmental problem. But being #1 at locking up one’s citizens, whether with or without due process, invites criticism and undermines America’s moral standing in the world.
It’s hard to accuse any other nation of being unfair to its people when that nation can reply, “Yeah, but we don’t lock up as many as you do.”
A look at international data reveals an alarming trend. In Table 1, the world’s countries have been separated into regions to reﬂect their similar cultural and political systems, in order to make fair comparisons. In each region one quickly discovers that the highest incarceration rates are in countries controlled by dysfunctional political systems. The lone exception is England, which has an incarceration rate near the world median of 132. The regional breakdowns and incarceration leaders are these:
Region # Ave Highest Rate Government, 2000-2012
Central America 288 Cuba 510 Communist dictatorship since 1959
Former USSR 15 243 Russia 470 Former Communists, led by Putin
East Asia 7 226 North Korea 600 Communist dictatorship
South America 13 215 Uruguay 289 Marxist, Pres. Mujica since 2010
Islamic 19 137 Iran 284 Rightist, Islamic extremist
Eastern Europe 16 136 Slovakia 188 Rightist, P.M. Radicova, 2010-2012
Southeast Asia 11 118 Thailand 435 Rightist, “Red Shirts” under Thaksin
Subsaharan Africa 40 95 Rwanda 492 Militaristic, with ethnic conflict
Western Europe 17 95 England 148 Parliamentary Democracy
Standing atop this list of oppressive misﬁts, composed of Communists, right- wing extremists and racists, is the United States.
‘° Robert J. Sampson & Charles Loeffler, “Punishment’s Place: The Local Concentration of Mass
Incarceration,” Daedalus, Summer 2010, 20-21.
There is nothing special about America’s demography, culture, or historical background setting it apart from the rest of the world that would cause mass incarceration. Every country has problems — ethnic conﬂicts around the world are arguably worse than in the United States, and every culture deals with violence, drugs and crime. The United States simply chooses to severely overreact to crime.
As Justice Kennedy summarized ten years ago: “Our resources are misspent, our punishments too severe, our sentences too long.”11
Elementary statistical analysis reveals no link between crime and incarceration.
A comparison of international crime rates and incarceration rates in Table 1 yields a statistical correlation factor of 0.054, where on a scale of O to 1, 1 is perfect correlation and 0 is none. Crime is not the cause of mass incarceration.
Historically, the only two countries that have had higher incarceration rates suspended due process and were about to embark on mass murder: Stalin’s gulag system beginning in the 1930’s, 12 and Hitler’s Third Reich during World War II.13 It should be of little comfort to Americans that on the scale of oppression by incarceration, the United States scores in the range just below history’s genocidal madmen and just above all modern dictators, racists and extremists.
Within the United States, regional breakdowns also reveal a political trend. See
Table 2. Regional leaders in incarceration have comparatively rightist, conservative
" Greenhouse, “High Court Justice Supports Bar Plan to Ease Sentencing,” N. Y. Times, June 24, 2004,
‘2 Anne Applebaum, Gulag: A History (2004).
’3 Saul Friedlander, The Years of Extermination: Nazi Germany, 1939-1945 (2007). state legislatures, which are the bodies that create sentencing schemes. Two political patterns exist, one in the South, and another in the rest of the country.
In the South, state—level politics have historically resulted in oppression and disenfranchisement of the black minority.” The eras of slavery, Reconstruction, Jim
Crow laws and segregation still reverberate, belied by the South’s still-abysmal record on poverty, education and prisons. Despite the presence of large percentages of potential black voters, white legislators have dominated Southern state politics.
A reasonable deﬁnition of a dysfunctional political system is one that does not fairly represent the interests of all segments of the population, and nowhere is this more true than in the American South.
Elsewhere, high incarceration rates follow in the path of super-majority conservative state legislatures. In 2011, regional leaders Arizona, Idaho, Indiana,
Ohio and West Virginia all ﬁt this description, with the ﬁrst four controlled by conservative Republicans.“ Connecticut heads the Northeast, albeit with an incarceration rate below the national average. An unopposed conservative agenda appears to accelerate a state’s imprisonment rate.15
Another way of assessing the political trend is to observe that the top eight states in incarceration rate, and 14 of the top 16, voted Republican in the 2008 and
” Michelle Alexander, The New Jim Crow: Mass Incarceration -in the Age of Color Blindness (2004).
'5 National Conference of State Legislators, January 31, 2011. Supermajority states, with 60% control of both House and Senate, were: Republican —— (16) — AL, AZ, FL, GA, ID, IN, KS, MO, NH, ND, OH, OK,
SD, TX, UT, WY. Democrat —— (9) —— CA, CT, DE, HI, MD, MA, RI, VT, WV.
16 An accurate numerical measure of states’ political “conservatism” has not been quantiﬁable by this author.
2012 Presidential elections.” This is a fairly good indicator of the conservative
Versus liberal split between states, and strongly suggests that the overuse of prisons is a politically-motivated legislative choice.
Disnronortionate Sentencing in America
The War on Crime has had only one weapon in its arsenal —- make sentences
1onger.13 This over-simplistic approach ignored the ultimate causes of crime’s rise in the 1960’s —— poverty, unemployment and demographic changes.19
A political “arms race” on sentencing evolved, as every politician postured to be
‘ tougher on crime than his opponent. Hand-in-hand with the lock ‘em up mentality is the idea that individual lawbreakers are responsible for the rising prison population. They made bad choices, and the state must punish them. But for the same crimes, American prisoners receive sentences two to ten times longer than prisoners in England, Canada, Sweden and France?“ Legislatively-mandated longer prison sentences, not a unique individual American propensity for crime, are responsible for the increased prison population.”
A breakdown of America’s prison composition by offense shows the severity of sentences for all types of offenders. In 2010, 53.2% were in for violent crimes, 18.3% for property crimes, 17.4% for drug offenses, 10.5% for public order offenses, and
‘7 Federal Election Commission, “Presidential Election Results by State, 1960-2012,” in 2014 World
Almanac, 515. A
‘8 James Q. Wilson, “Lock ‘Em Up: And Other Thoughts on Crime,” NY. Times Mag., March 9, 1975,
19 James F. Austin, et.al., JFA Inst., Unlocking America: Why and How to Reduce America ’s Prison
Population (2007), 4; Petersilia, 13-32.
2° Austin, et.al., 4.
2‘ United States v. Bannister, at 650.
0.6% for other crimes.22 If all nonviolent offenders were released, the incarceration rate would still be 376 per 100,000, three to four times higher than it should be.
Disproportionate sentences on all offenses, not justlnonviolent offenses, are Why prisons are full.
Government policy on crime is a political issue in every country, yet the United
States is the only democracy that overreacts to crime with lengthy prison sentences.
One may ask, Why don’t other democracies react the same Way?
Structurally, American democracy differs from most other democracies: there is no parliament. A parliamentary system, which is the mode of government for nearly all other democratic nations, allows minority groups to have seats in government and a strong voice in the legislature. A tyranny of the majority masquerading as majority rule is rare. A parliament represents all segments of society, and parliaments have a better record at addressing the underlying causes of crime without adopting a conﬁnement strategy.
A Constitutional defect also allows American sentences to spiral out of control.
The Eighth Amendment prohibits “cruel and unusual” punishments, but as Justice
Antonin Scalia points out, “the Eighth Amendment contains no proportionality guarantee.”23 A sentence does not have to be proportional to the offense, it can be anything legislators want. Thomas J efferson’s Bill For Proportioning Punishments
22 Bureau of Justice Statistics, Sentenced Prisoners, 2010.
2’ Harmelin v. Alichigan, 501 U.S. 957, 965 (1991). was rejected by the Founders, dooming America to a system that has legalized the capricious administration of justice.
A third structural defect is the de facto imbalance of power between the three branches of government when it comes to criminal justice. Pardon power was designed to give the executive branch authority to curb excessive sentences. In practice, governors are loath to let prisoners out, lest they be Willie Horton-ized, ala
1988 Presidential candidate Michael Dukakis.-‘Z4 Pardons have steadily diminished to the point where they are now exceedingly rare and constitute no check at all on the legislatures or judiciary.
Congress, however, has the ability to reshape corrections policy nationwide, and make America’s imprisonment rate comparable to other democracies. A federal approach is required because states certainly aren’t going to downsize prison populations without strong external incentives.
Planning a Way Out
A plan to reduce mass incarceration must first begin with a new philosophy regarding who needs to be in prison. Speaking on the subject of solitary confinement within Mississippi’s Department of Corrections, Commissioner Christopher Epps explained that strict guidelines help distinguish between “Who you are afraid of’ versus “who you are mad at.”-‘*5 Separation from society should primarily be reserved for those we fear.
2‘ James T. Patterson, Restless Giant: The United States ﬁom Watergate to Bush V. Gore (2005), 222-223.
25 Elizabeth Bennion, “Banning the Bing: Why Extreme Solitary Conﬁnement is Cruel and All Too Usual
Punishment,” Indiana Law Journal, Vol. 90, No. 2, Spring 2015, 783. Epps reduced solitary from 1300 to
316 prisoners, established rehabilitation programs, and saw violence drop 50%.
Congress has the power to overcome the aforementioned structural defects and end mass incarceration. Tangible incentives offered by the federal government can persuade states to reverse current sentencing schemes, provide programs that will reduce recidivism and enhance public safety, and provide release mechanisms for current prisoners.
A Mass Incarceration Reduction Act (MIRA) would look something like this:
Federal funding for rehabilitation centers, offering education and training in conjunction with community colleges and vocational centers?“
Reinstate prisoner eligibility for the Pell grant, which was eliminated by
Congress in 1994.27
Provide the same education and training beneﬁts to correctional officers, in order to develop a long-term, educated and committed work force.
Separate inpatient treatment facilities for drug offenders, sex offenders,-23 and mentally ill prisoners.29
State-controlled, federally-designed Sentence Modiﬁcation Boards that would use risk assessment tools and consider prisoners’ disciplinary records, education, training and employability, the factors most determinative of lower recidivism.3°
2° See www.in.gov / Public Safety Budget. 2014-2015. State funding for prisoner education in Indiana was less than $9 million, 1.24% of the $720 million annual corrections budget. This percentage is typical in all
27 Christopher Zoukis, ‘‘Pell Grants for Prisoners: New Bill Restores Hope for Reinstating College
Programs,” Prison Legal News, August 2015, 32-35. The Bureau of Justice reports a rearrest rate of
67.8% within 3 years. Per the Texas Dept. of Justice, those who earn vocational training recidivate at I
20%; associate degree at 13.7%; bachelor’s degree at 5.6%; master’s degree less than 1%.
28 McKune v. Lile, 536 U.S. 24, 33 (2002): “The rate of recidivism of treated sex offenders is fairly consistently estimated to be around 15%, whereas the rate of recidivism of untreated offenders has been estimated to be as high as 80%.” .
29 On the mentally ill in prison, see: Ted Conover, Newjack: Guarding Sing Sing(2000), 138-151.
3° United States v. Bannister, at 65 8-659; citing Laura J. Moriarty, “Statistical Risk Assessment: Old
Problems and New Applications,” 52 Crime & Delinquency 178, 192 (2006); Petersilia, 17.
10 o Retroactivity for lower sentencing schemes as a matter of law under the Eighth
0 Goal of cutting prison population in half in ten years.
0 Long-term goal of an incarceration rate of 1 in every 500 adults, ﬁve times lower than the current rate of 1 in 100 adults.32
Federal funding under MIRA would be contingent on states meeting prison population reduction goals of 5% per year. The states would enjoy federal dollars for rehabilitative programs, enrich their population with what economists call “human capital,” and realize lower overall costs for corrections and criminal justice. And, as education and training studies have proven over and over, public safety will be enhanced because prisoners will have been prepared to enter the workforce. As it is, they are merely warehoused, and do not improve.33
A nation that recently spent over $1 billion a day on Wars in Iraq and
Afghanistan, which is enough to run the average state’s correctional system for over a year, can well afford to invest in a new “War on Crime” that actually works.
Mass incarceration, whenever and wherever it occurs, is a deliberate political choice. It is not the result of crime, drugs, violence, or poor personal choices by a
3' For example, in 2014 Indiana revised sentencing for dealing 5-10 grams of cocaine to a maximum of 16 years, do 12. The prior scheme allowed a maximum of 50 years, do 25, but those sentenced prior to July
1, 2014, cannot receive the lower sentencing range. Indiana Code 35—48—4~1.
32 Lao Xue, The Holy Book of Modern Taoism (USA: 2013), 124. “The health of a society may be judged by the number of people conﬁned and the conditions of their conﬁnement. No more than one person in
ﬁve hundred deserves the violence of loss of liberty. To exceed this only shows the violence of the state, not the violence of the people.”
33 Petersilia, 13-32.
11 nation’s citizens. Bad choices may land an individual in prison, but the duration of conﬁnement is determined solely by the state. In America, sentences across the board are disproportionate due to escalating sentencing schemes devised by state legislatures. The American political system simply overreacts to crime.
Political and social scientists recognize America’s mass incarceration strategy as a “moral, legal, social, and economic disaster” that “cannot end soon enough.”34 For too long, Americans have accepted mass incarceration as a natural consequence of
American culture, as if there are no alternatives. For too long, incarceration proponents have argued that incapacitation is the only Way to reduce’ crime, when
40 years of data and international comparisons have convincingly proven this premise untrue. The War on Crime is most effectively fought by addressing the underlying causes of crime, not by Warehousing prisoners, ignoring their need for education, training and treatment, and expecting them to magically do better once released.
Dysfunctional political systems are the root cause of mass incarceration, and it is the responsibility of Congress, and every state legislature in the United States, to fix the problem they created.
Z G’ ,.
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Word count, including footnotes, excluding tables: 3,942
34 United States v. Valdovinos, at 339, quoting Editorial, “End Mass Incarceration Now,” N. 1’. Times, May
24, 2014, SRl0. ‘
International Incarceration Rates and Crime Rates
Incarceration rates (INC) are from International Centre for Prison Studies, Oct. 3, 2012. wwwprisonstudies.org/world-prison-brief. (accessed 08-24-2014).
Numbers shown are number incarcerated per 100,000 population.
Crime rates (CR) are from Www.numbeo.com/crime/rankings by countryjsp “Crime Index by Country 2014 Mid Year” (accessed 08-24-2014). Rated on 0 to 100 scale, low to high.
Ky rgyksta n
Algeria average average
Suriname s average
D R Congo average
C. Afr. Rep.
Papua N G
World Median INC =
World Ave INC =
Correlation INC-CR = 0.054
United States - Ranked by:
(INC) Incarceration Rate
(V C) Violent Crime Rate
(DO) High School Dropout Rate
(POV) Poverty Rate '
(B) Percentage of Black Population
(C) Percentage voting Republican for President in 2008
(OR) Over-Reaction to crime, as a ratio of INC/V C
STATE INC vc DO POV B c on
LA 1 6 5 2 6 8 13
MS 2 33 2 1 1 14 1
OK 3 10 24 7 25 2 17
AL 4 15 8 5 5 5 12
TX 5 17 26 4 18 “ 15 11
GA 7 20 6 10 2 20 14
AR 8 9 10 9 11 7 29
FL 9 7 7 18 12 25 32
MO 13 11 39 28 19 22 28
KY 14 41 28 12 24 9 4
5c 15 2 ' 4 15 4 15 42
TN 21 1 30 11 10 10 47
STATE INC VC DO POV B C OR
WV 11 26 23 6 36 13 8
DE 12 5 14 40 8 44 36
VA 17 46 31 44 9 27 3
NC 25 23 19 14 7 23 26
PA 26 21 42 34 20 32 27
MD 29 8 36 45 3 45 46
NY 39 19 16 13 13 47 48
NJ 40 27 45 48 16 36 41
STATE INC VC DO POV B C OR
CT 33 32 11 47 21 41 20
VT 44 49 50 42 47 49 6
RI 45 39 18 23 31 48 37
NH 47 48 44 50 45 30 31
MA 49 14 37 36 27 42 ' 50
ME 50 50 38 29 44 40 23
STATE INC VC DO POV 8 C OR
IN 19 24 21 21 22 24 21
OH 20 28 32 19 17 26 18
MI 22 12 15 20 15 37 34
SD 23 26 33 26 42 19 10
WI 27 42 49 41 26 34 9
IL 31 13 35 24 14 46 40
KS 36 22 43 30 29 11 38
IA 38 35 46 39 38 6 29 25
NE 42 37 40 43 32 13 33
ND 46 40 48 31 43 18 45
MN 48 43 47 49 30 31 44
STATE INC VC DO POV B C OR
AZ 6 18 9 8 34 17 15
ID 16 45 41 25 49 4 2
NV 18 4 1 27 23 33 43
CO 24 25 27 32 33 28 22
WY 30 44 29 35 48 1 7
MT 34 34 34 16 50 21 19
NM 35 3 3 3 39 35 49
UT 43 47 25 46 46 3 24
STATE INC VC DO POV B C OR
AK 10 29 13 37 37 5 5
HI 28 16 22 17 28 43 35
CA 32 38 17 22 40 38 16
OR 37 31 12 38 41 50 30
WA 41 30 20 33 35 39 39
Table 2 - Sources:
INC — Calculated from 2010 U.S.
Census, and Bureau of Justice
Statistics, Prisoners in 2011.
VG - U.S. Department of Justice and F.B.I., Crime in the United
DO —— National Center for
Educational Statistics, U.S.
Department of Education, U.S.
Public High School Graduation
Rates by State, 200.9-2010.
POV —- U.S. Census Bureau, U.S.
Department of Commerce, Poverty
Rates by State, combined data from
2000, 2005 & 2010. '
B —- U.S. Census Bureau, U.S.
Department of Commerce, U.S.
Race and Minority Group
Percentages by State, 2010.
C ~ Federal Election Commission,
Presidential Election Results by
State, 1960-2012, in 2014 World
Almanac, p. 515.
OR —— Ratio, INC I VC.
All 50 States
Correlations, weakest to strongest:
INC —— VC 0.494
INC — C 0.528
INC —— B 0.539
INC —- DO 0.553
INC — POV 0.634
DO — POV 0.696
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