Follow Up Notes on Mass Incarceration and Crime

Here are a few more thoughts on mass incarceration, policing, and crime, in both the American and global context. 

I haven’t heard the following argument but conservatives might make it in defense of mass incarceration: America has more prisoners because America has more crime. This argument would say, in effect, that we aren’t more punitive than a country like Canada—rather, we just have more criminals and thus more people in jail.

And the argument isn’t totally crazy. America does have much higher rates of one type of crime—homicide. Our national homicide rate is anywhere from two to eight times that of other, similar wealthy democracies. So, all things equal, we should be expected to have more people in prison for murder than these other countries. And we do.

The problem is that this hardly explains the disparities in prison rates. The incarceration rate in America, as of 2020 according to World Prison Brief, was more than six times as much as Canada, though our homicide rate is about twice as high. Do we have more violent crime, specifically homicide, than similar countries? Yes. Does this explain the disparity between America and other similar countries? No. Because we also have a far more punitive criminal justice system, with much harsher initial punishments, mandatory sentencing, three strikes provisions, and extreme drug laws that are enforced with severity in poor and especially urban areas. 

If Canada were to unfortunately experience the American homicide rate it would have more prisoners than it currently does but it would not remotely approach the American incarceration rate. This is in part because as political scientist Marie Gottschalk documents, long prison sentences compound on one another. Unlike almost every other country on earth, America has many prisoners serving life sentences and many others serving multi-decade ones. These people remain in the prison population for extended periods of time, whereas criminals in other countries, even serious ones, rarely serve sentences of more than ten or fifteen years. This makes it difficult for the prison population to shrink since so many prisoners are in there for life. Even the recent (possibly temporary) covid-related drop only took a 14% bite out of our prison population.

The American system of punishment used to resemble that of other wealthy democracies. In the old American prison system, before the massive expansion brought on by the war on crime and the war on drugs, we were more like Europe. An example of this was the so-called Dime and a Half sentence, in which those sentenced to “life in prison” usually only served 10 and a half years before being released. Not anymore. Life without the possibility of parole, as well as other multi-decade sentences, are common here.

On another note, why do the poor, in some cases, commit more crimes? As Geo Maher notes in his new work, inner cities, which have high rates of property and violent crime, are characterized by “systematic neglect and active looting, a lack of social welfare programs, and unequal access to education and opportunities.” They have also experienced substantial deindustrialization in recent decades, with good manufacturing work replaced by minimum wage service work. We can connect this to the more recent deindustrialization of rust belt and small town white America which has seen its own growing problem—deaths of despair due to drugs, alcohol, and suicide. So part of the explanation, for both inner city crime and rural deaths of despair, is that people in both groups experience such hopelessness and desperation that they cannot access or imagine accessing the aspirational middle class life that defines the mainstream American Dream. They are thus more likely to spurn it through the turn to crime or abandon it through the turn to drugs and suicide. (There is much to say here— this paragraph really merits its own blog post).

The question remains—How do we get to the virtuous feedback loop of so many other countries, with both low violent crime rates and low incarceration rates? In the most general sense, our system of policing and incarceration does not work. It has failed to create a society that is safe by the standards of the wealthy democracies of the world while at the same time creating the authoritarian stain of mass incarceration. The answer to this question will look very different than the practices that have defined America for the past half century.

Mass Incarceration in America: Defenders and Critics

The latest edition of National Review (October 4, 2021) contains a piece by Andrew McCarthy entitled “Fictions of the carceral state.” In this essay McCarthy takes to task leftist critics of mass incarceration in America. At no point in the essay does McCarthy identify any leftist writer or organization by name. Let’s not make this same mistake. Here I will engage with and critique this specific article by conservative writer, lawyer, and former assistant US Attorney for the Southern District of New York, Andrew McCarthy, writing for the prominent conservative magazine National Review.

Okay, let’s get started. In 2019 there were some 2.1-2.3 million Americans behind bars, depending on how and who ones counts. (Technically, prisons hold those sentenced to long terms while jails hold those serving one year or less. I will use the term “prison population” more loosely to refer to all Americans behind bars). That number dropped by a few hundred thousand over the course of 2020, due to covid and the impact of some mild pre-covid criminal justice reforms in California and other states. According to data compiled by the Vera Institute of Justice there were approximately 1.8 million Americans behind bars in late 2020, a notable drop.

McCarthy spends much of his essay harping on these numbers. Of course it is important that we get the numbers right. Though, as I discuss below, it is not yet clear whether this drop represents a temporary or more long-term decline. But what is the broader point here? Why spend so much energy and time stressing the exact numbers? Does this disprove the arguments of the left? Does this small decline disprove the basic thesis that America has a system of mass incarceration and what can be called a “carceral state”? Does mass incarceration cease to exist when the number of incarcerated Americans falls under 2 million?

The fact remains that the USA still has the highest, or one of the highest, prison populations in the world, in both absolute and per-capita terms, even accounting for this small covid-related drop. As the detailed study by the Vera Institute of Justice notes, “the decrease was neither substantial nor sustained enough to be considered an adequate response to the COVID-19 pandemic, and incarceration in the United States remains a global aberration.”

And this is indeed a key part of the case against mass incarceration in the United States. The system of imprisonment developed in the US from the 1970s to the early 2000s (at which point prison numbers began to level off) was historically unprecedented both within America and around the world. Not only do the other wealthy democracies of the world have much lower prison rates—Canada, for instance, imprisons around 104 people per 100,000, compared to the US rate of 639 per 100,000—but even authoritarian states like China have lower rates. Indeed, according to the World Prison Brief, China incarcerated around 1.7 million people in 2020, a far lower rate than the US. Only a few countries, such as Cuba and Turkmenistan, even come close to the absurdly high rates of American incarceration. This should stand as a damning indictment of the American prison system. We do indeed have a carceral state, if any country on earth can be said to possess one.

McCarthy claims that “in point of fact our prisons are not teeming at all,” a response to supposed leftist arguments that our prisons are “teeming” with non-violent offenders. But McCarthy’s claim is absurd on its face. According to his numbers, the American incarceration rate peaked between 2006 and 2008 at 1,000 prisoners per 100,000 people, which is likely the highest incarceration rate in recorded human history. Even with the post-2008 slow decline and the more recent covid-related drop, America’s imprisonment rate remains the highest in the world. (The Vera Institute estimates that the American prison rate dropped to a low of around 550 per 100,000 in mid-late 2020, roughly tying Turkmenistan for the highest rate on earth).

It is also important to note that much of the recent drop in the American prison population occurred in the early stages of covid, i.e. the first half of 2020. The overall incarcerated population in the US started to increase again by late 2020, particularly in local jails. So we don’t know how many people are incarcerated in America in September 2021, partly because it takes time and careful scholarship to pinpoint the exact number. The point is, the decline in 2020 may have already partially reversed itself by now, data for which we won’t have until 2022. The broader point? While this drop in prison population is welcome to those opposed to mass incarceration, it should not be overstated, nor presumed to be permanent.

Back to McCarthy, who in his essay never mentions any other countries. But all other wealthy democracies manage to have low incarceration rates and lower rates of violent crime, particularly homicide. Why is this? The answer is complicated, and related to easy access to firearms, entrenched poverty, social and economic inequality, race relations, and many other factors. What we can say with confidence is that a world that has low levels of violence and low levels of incarceration is possible. So why not here?

At a more basic level, these absences in McCarthy’s essay point to the sheer inadequacy of his evidence and arguments. At no point does he seriously engage with any of the arguments on the left regarding mass incarceration nor does he engage with the criminal justice systems of any other country on earth. This myopia is common in conservative circles. For instance, it was only possible to fear-monger the prospect of universal healthcare, as Sarah Palin, Glenn Beck, and McCarthy himself have done, if one ignores the experiences of every other wealthy democracy on earth. Not a very promising line of argument.

Turning back to the development of the modern American prison system, McCarthy claims the prison boom from the 1970s to the 2000s contributed to the dramatic drop in violent crime that began in the early 1990s and lasted for roughly twenty years. It may have contributed, though the evidence is mixed. Sociologist Bruce Western’s detailed study, Punishment and Inequality in America, finds that the massive increase in imprisonment rates had only a limited impact on crime reduction. Many other factors contributed as well, which social scientists are still sorting through. The point is that it is not at all clear how much mass incarceration contributed to the twenty year drop in violent crime rates in America.

McCarthy also implies, and at times explicitly says, that the recent reductions in America’s prison population have caused the recent increases in violent crime. But he offers no evidence for this claim. Isn’t it likely that a series of more complex factors led to the 2020 and 2021 increase in violent crime? Do we, for instance, have any evidence that those released in 2020 in response to the pandemic went on to commit violent crimes? Again, we should recognize that these are complicated questions. They will require better data and careful analysis. However, it is presumptuous, and presented without evidence, for McCarthy to make the claim that those released in 2020 to reduce crowding and the dangers of covid infection went on to commit a wave of violent crimes. Some states, like New Jersey, were explicitly not releasing those convicted of murder or sex offenses. And more basically, there is zero evidence that those recently released contributed to a wave of violent crime.

Two final points to make in my critique of McCarthy, regarding recidivism and racism. First, recidivism. McCarthy writes as if all prisoners are hardened, repeat offenders. In his words, “the jails are filled with recidivist criminals, most of them violent.” He points to the high rates of recidivism. This is not a good argument. 

Imprisonment erodes the life chances of the incarcerated, who are already among the least well-off. In a careful summary of his research, Bruce Western notes that “ex-prisoners can find jobs after incarceration but these jobs usually offer no earnings growth and little employment security.” In addition, “few relationships survive incarceration…the life course [i.e. marriage, career employment, parenthood, homeownership] builds a web of social ties and obligations that prevents young men from straying into crime and other antisocial behavior, but incarceration prevents the life course from unfolding.” These rich ties are the glue that prevents a life from coming unstuck and devolving into crime. The formerly incarcerated do not have access to this glue.

Furthermore, recidivism rates indicate that prisons do not rehabilitate. Ex-convicts re-enter a society without training, resources, connections, or opportunities, and navigate a legal web in which they are always in danger of violating parole and frequently unable to procure gainful employment. They are, understandably, much more likely to be homeless than the general population. It is no surprise that they often return to a life of crime. Many also return to prison as “repeat” offenders because they violate parole. This of course raises the question as to why similar countries don’t suffer as much from these problems.

Second, racism. Even if the carceral state were not racist it would still be a monstrosity, a massive network of totalitarian institutions corroding our (imperfectly) democratic society. However, this is not the case. America’s prison population is disproportionately black and latino, in addition to poor and uneducated. Why? McCarthy insists it cannot be due to institutional racism. As he says, “the legal profession, including most prominently judges and leading criminal-justice practitioners, predominantly educated in elite law schools, is among the most self-avowedly progressive in the world. The notion that it would preside over a “systematically racist” process of prosecution, sentencing, and incarceration is ludicrous.”

This comment demonstrates a failure to understand how institutional racism operates. It is not premised on the participants possessing and acting on openly racist attitudes, although undoubtedly some police, lawyers, and judges are indeed racist. Institutional racism persists through subtler means (although not that much subtler). The infamous crack-cocaine disparity in sentencing punished possession of crack (a poor, black drug) 100 times more severely than possession of cocaine (a wealthy, white drug) even though the drugs are very similar. Similarly, prisons are not racist because the guards hate black people--they are racist because they disproportionately swallow up and destroy the lives of black and latino men.

McCarthy does note that black Americans commit homicide at a higher rate than white Americans, which partly explains the higher rate of black incarceration. But only partly. When it comes to the use and sale of illegal drugs, white Americans violate the law at higher rates. And yet drug violations are policed more heavily (one could almost say primarily) against inner-city blacks and hispanics. Criminologist Michael Tonry has demonstrated that it is primarily with regard to the war on drugs that the racism of the criminal justice system is most manifest.

More generally, those of us on the left ask: Why are the prisons so full of the least well off? The prisons are literally warehouses and cages filled to the brim with society’s cast aways—the poorest, least educated, most mentally ill, and most desperate Americans. If this is how we treat the least well off, by locking them in cages for extended periods of time, what does that say about us as a society? What would Jesus (“whatever you do for the least of my brothers, you do for me”) say about our carceral choices?

What we see with McCarthy is the embodiment of two standard conservative claims regarding significant cases of injustice: it’s not a big deal and nothing can be done about it anyway. (We have seen this for the past year and a half with the covid crisis). Thus, first the claim that American mass incarceration is not real, or not a serious problem, and second, the claim that it cannot be remedied without destroying American communities by releasing thousands of hardened criminals into the streets. Unfortunately for America, mass incarceration is in fact a big deal, indeed a profound injustice. Fortunately for America, something can be done about it. We are not stuck with a system of mass incarceration, as virtually every other country on earth demonstrates. And in the best cases, across Europe and much of East Asia, we have examples of countries that have both low rates of incarceration and very low rates of violent crime. Two related goals that we must achieve.

We do indeed have a carceral state. What we don’t have, and won’t have until we dismantle it and replace it with something far more humane, is a fully free, just, and democratic society.