Prison: A Problem, Not a Paradox. Is It Solvable?

Too many people are in jail.  The rate of incarceration is just going up and up.  Is it doing any good?

If you look at the two graphs above, you’ll see that the prison population in the United States has soared, while the amount of violent crime has plummeted.  The prison population of 1.5 million is about triple what it was in 1980.  Meanwhile, according to the DOJ’s figures, violent crime is about a third of what it was in 1980.  It’s an uncanny correspondence, that incarceration has tripled while violence has thirded (yes, that’s a real word).

Some people look at this and say there’s an inherent absurdity, an inherent injustice, that even though crime is down jailings are up.  Others say it’s obvious that, if you jail the people who commit crimes, they’re not going to be walking around to commit as many crimes.  One sees a paradox, the other sees causation.  (These are not straw men, by the way.  These positions have been taken on the pages of the New York Times and the Wall Street Journal, among others.)

There really isn’t any paradox, of course.  It’s not like more people are being imprisoned than there are crimes being committed.  Last we heard, everyone in prison was convicted of something.

What’s going on here is that more and more convictions are resulting in incarceration.  Crime may be down, but the proportion of crimes you’re likely to go to jail for is way up.

Nonviolent crimes, in particular, are far more likely to get you a jail sentence these days.  Since about the start of the Clinton administration, the number of different kinds of nonviolent offenses has skyrocketed.  And drug crimes have been a growing proportion since the Reagan years.

Several factors are involved in this dramatic increase in prison for nonviolent offenses.  One is a dramatic increase in regulatory violations that have been criminalized.  Regulatory agencies have started using criminal law as a tool — a tool that is wrong for the job, and one they are ill-equipped to use.  Voluminous regulations are created to micromanage how people can live their lives and operate their businesses.  Fines, denial of permits, and other civil penalties are the normal and appropriate method for enforcing compliance with all the regulations.  But over the past generation, regulators have become emboldened to impose criminal penalties for violations of their rules.

These regulations are rarely drafted by anyone who has the slightest clue of what criminal law is, why it exists, and how it works.  So they tend to leave out little things like mens rea.  Everything’s a strict-liability crime with them. In the regulatory world, simple mistakes are indistinguishable from deliberate transgressions.  When the penalty is denial of a permit, that’s not a problem.  But when the penalty is prison, it’s a big problem.  And everything’s a federal offense, which almost always means a felony.  Instead of, you know, regulating conduct, the regulators use the criminal law to keep the unruly masses in line.  And more people face prison as a result.

Another factor is the elected politicians’ desire to look “tough on crime.”  Which results in a steady ratcheting-up of sentencing for existing crimes, as we’ve discussed before.

It also results in the creation of new crimes, harsher statutes to deal with the public outcry of the moment, like crack or hate crimes or insider trading or what have you.  These new offenses are rarely necessary, as existing laws tend to already punish the conduct.  But the new ones often carry greater minimum sentences, and that’s the whole point.  So more people are facing prison, and for longer stretches of time, than before.

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The situation is getting out of hand.  It’s gotten to the point where small corrections aren’t going to cut it.  Drastic measures would be needed.  And drastic measures being, you know, drastic and all, they’re not likely to be undertaken any time soon.

But let’s say we’ve got a genie who’s offered to grant us three wishes here.  What would they be?

Wish one would be regulatory reform: Nothing may be criminalized except by a statute passed by the legislature.  Crime is that thing which is so offensive to the general population, or so harmful to the community, that society agrees it should be punished by the deprivation of one’s life, liberty or property.  It is a cultural thing, created by the people.  The people need to have a say, if it’s going to be legitimate.  Rulemakers and bean counters cannot be permitted to do it behind our backs, even if they think it’s for our own good.  That’s not how it works.

Wish two would be conceptual: No conduct may be criminalized unless it actually causes real, perceptible harm, and it’s done with some criminally bad state of mind.  That means no strict-liability offenses — accidents and mistakes must be protected from penal consequences.  That also means no victimless crimes — certain “quality of life” offenses, personal-use drug offenses, and white-collar offenses are going to go out the window.  (And with drug convictions accounting for roughly half of federal inmates and a fifth of state inmates at the moment, this right there would cut out a huge chunk of the excess prison population.)  But white-collar thieves, organized drug dealers, and the like will still face punishment for conduct that society rightly abhors.

Wish three would be much more extreme: Sentencing must be entirely individualized, to determine whether incarceration is actually necessary for this particular person.  That means no minimum sentences for anything.  That means person A can get probation for violating the same statute that gets person B fifteen years.  Too bad.  A lot of people are in prison who don’t belong there.

Mandatory minimums make no sense.  They appease those who cry “injustice” when they see person A get treated differently from person B, because person A has different circumstances.  But it is that very one-size-fits-all attitude of moral equivalence that is the source of great injustice.  Contrary to Clint Eastwood’s line in “Unforgiven,” deserve’s got everything to do with it.

Most people who get in trouble with the law never get in trouble again.  Depending on the study you read, the figure is somewhere around 83% of people whose first contact with the criminal justice system is their last.  We all know this is true, and that’s why we have things like probation and consent decrees and adjournments in contemplation of dismissal — to give people a chance to prove they’re not one of the ones we have to worry about, one of the recidivists we need to deter or remove through incarceration.  Similarly, rehabilitation — drug treatment programs and the like — is reserved for the rehabilitatable.

But these chances are only extended to those who commit minor offenses which, arguably, weren’t worthy of punishment in the first place.  But if the system was internally consistent, these alternatives to incarceration would be available at every level.

We can hear some of you protesting that some crimes are just so inherently bad that the criminal must be locked up.  Murderers and rapists, for example.  Well, what makes their crimes so inherently bad?  Is it the act itself, or some combination of the act and their own character?  It can’t be the act itself, or else there’d be no such thing as justifiable homicide.  The criminal’s personal characteristics, such as his mental state when committing the offense, are of course factors to be considered.  Why not include such factors as whether this person is likely to ever reoffend again?  Even a man who killed once in a fit of passion may pose zero threat of future violence.  Most killers probably do pose a threat, but what about the ones who don’t?  What interest does the state have in locking them up?  Surely there are other punishments that can exact the state’s revenge just as well.  And the victims and their loved ones always have the civil courts in which to seek their own redress — we keep forgetting that the prosecution is not the victim’s lawyer, and is not there to serve the victim’s needs.

Ah, but it’s not all about the criminal here.  Punishment also serves to deter others.  Shouldn’t there be some general sense that, if you kill someone, you’re going to go to jail?  Well, no.  The people who aren’t likely to ever do it again are the same ones who aren’t likely to do it in the first place, regardless.  They’re not deterred by the threat of prison; they’re deterred by the knowledge that it’s wrong.  Deterrence only works on those who are open to the possibility of doing it, and who are premeditating the crime enough to consider the costs and benefits.  It’s really irrelevant here.

Punishment only serves a few purposes, after all.  If, after weighing them all, they can be served by something other than incarceration, then why incarcerate?  If you’ve got a crime where there’s no need to deter this individual from doing it again, no point to deterring others similarly situated, no reason to think that prison will rehabilitate him, no need to keep him off the streets for public safety — what possible reason is there to imprison him?  The only reason that remains is retribution, a form of institutionalized revenge.  An unthinking, uncivilized infliction of harm without regard to whether it serves any purpose or not.  Our society has evolved beyond it as a justification for punishment.  So if that’s all that remains, then it shouldn’t be permitted to affect the sentence that is imposed.

No, mandatory minimum sentences make no sense.  They appease the wrong sensibilities, and only cause individual injustice and overpopulated prisons.  Wish three would be for every sentence to be entirely suited to the individual offender, as well as to the needs of society.

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None of these three wishes are going to be granted any time soon.  They require more gumption from our legislatures than is realistic to hope for.  And the third wish is likely to be shouted down from the left and the right, the egalitarians and the eye-for-an-eyers.  But they’d work to reduce the inherent injustice of our ever-growing rate of incarceration in this country.

Still, that’s just our idea at the moment.  We’re sure that many of you have better ideas.  Well, fire away, we’d love to hear them!