The January 30 issue of the New Yorker has an intriguing article by Adam Gopnik, “The Caging of America: Why do we lock up so many people?” Perhaps we’ve grown a bit cynical, but we expected yet another inane media whine about increasing rates of imprisonment “despite” fewer crimes being committed. We were surprised to find a thoughtful — at times insightful — look not only at the reality of American incarceration, but also at what causes crime to go up and down. It’s rare enough for a news or magazine writer to do even that much. To his credit, Gopnik goes one further, making a creditable attempt at objectivity — dismissing, debunking and blaming both the right and the left — though his apparent left-ish leanings still come through from time to time.
Gopnik’s main points are these:
Incarceration is happening on an unprecedented scale in our history. It’s been growing ever faster since the 1970s. Its ubiquity and brutality have become accepted parts of the culture. Northern and Southern thinkers have come up with different explanations and solutions. Northern thinkers like William J. Stuntz see prison as a place for rehabilitation, and the injustices as the result of our system’s reliance on procedural correctness rather than individual justice, from the Bill of Rights through the present day — a problem to be solved by letting common sense and compassion be the focus on a case-by-case basis. Southern thinkers like Michelle Alexander see prison instead as a means of retribution, and the injustices of the system are part of its design to trap and control young black men.
As incarceration rates more than tripled between 1980 and 2010, the crime rate itself went down. “The more bad guys there are in prison, it appears, the less crime there has been in the streets.” The huge growth in imprisonment, and the policies that led to it (such as harsher drug laws, zero-tolerance policies, restricted sentencing discretion, etc.) were a reaction to the big-city crime wave of the 1960s ad 1970s — a crime wave that owed its existence to liberal policies that had crossed the line from mercy to abdication. Meanwhile, research began to reveal that rehabilitation doesn’t work, and bad guys weren’t getting better, and so all you could do was lock them up to keep them off the streets.
Starting in the 1990s, crime rates began to drop — by 40% nationwide, and 80% in New York City. Demographic shifts don’t account for it. Neither do broken-window policing, keeping the really bad guys behind bars, welfare reform, or other right-wing explanations. The left’s insistence that crime comes from poverty, discrimination and social injustice didn’t work, either, as none of those things changed enough to account for the drop in crime. The economy didn’t have an effect.
What did have an effect in New York City, however, was CompStat — the NYPD’s use of statistical analysis to focus police presence in places where it was needed most — with significant results on the occurrence of crime in those “hot spots.” The NYPD also began aggressively stopping and frisking people who fit the profile — not a racial profile, as everyone where it was happening were of the same race, but instead a “social” profile of “the thousand small clues that policemen recognized already.” Poor communities had to put up with more police intrusion, but they benefited from “a disproportionate gain in crime reduced.” (And though the NYPD uses stop-and-frisks of low-level offenders to identify them in the system in case they commit a real crime later, the other police forces around the country use it to actually lock up marijuana possessors — an offense that’s been decriminalized in New York since forever, but that still gets you jail everywhere else, it seems.) The result in New York City has been criminals being forced to stop committing crimes brazenly in public — many have either taken their activities indoors (and thus ended much need for violent turf wars) or stopped altogether.
Preventing criminals from doing their thing in place A did not lead others to do it in place B, but rather to nobody doing it at all. People stopped getting used to crime happening, stopped seeing people they knew committing crimes, and THAT was the biggest factor of all.
So what really happened was a cultural shift. Crime stopped being so much “something everyone’s doing,” and so much less likely to be something an individual would consider. Conservatives don’t like this, because it means it’s pointless to get tough on criminals. Liberals don’t like this, because it means it’s pointless to be nice to criminals.
So back to prison. If it doesn’t rehabilitate anyone, and it has hardly any deterrent effect whatsoever, then nobody should be in prison for a nonviolent crime. Locking up marijuana dealers and Ponzi schemers is pointless. They’d be just as deterred by the threat of lost reputation and assets, and having to do community service as their new full-time job — and if that won’t deter them then prison won’t either. Instead, prison should be reserved for that one person in a thousand who is a violent threat, or who has committed a truly awful crime.
It’s a lovely bit of writing, and our TL;DR précis doesn’t do it justice. Longtime readers of The Criminal Lawyer will note some common ideas, so it’s no surprise that we think so highly of it.
There’s a lot of scholarship going on right now about what’s wrong (and what’s right) with the American criminal justice system. Gopnik does a good job of summarizing what’s being published out there right now, and putting his own spin on it. Of course there are things we’d say differently, things we disagree with, points we think unrealistic. We could add plenty of things like how poor minority communities in the late ’90s actually teamed up with law enforcement, voluntarily and expressly waiving some of their Fourth Amendment rights to enable the cops to catch the drug dealers who were destroying their neighborhoods. We could argue that the whole “Northern/Southern” thing is a load of hogwash on both sides. We could take issue with the characterization of what conservatives actually believe. Still, we’re here not to bury Gopnik, but to praise him. This one’s not about what we think, for a change.
So give it a read. You won’t regret it.