By VIKRANT P. REDDY
AND MARC A. LEVIN
Since the 1980s, the
United States has built prisons at a furious pace, and America now has the
highest incarceration rate in the developed world. 716 out of every 100,000 Americans are
behind bars. By comparison, in England and Wales, only 149 out of every 100,000 people are
incarcerated. In Australia—famously founded as a prison colony—the number is 130. In Canada, the
number is 114.
Prisons,
of course, are necessary. In The Scarlet Letter, Nathaniel Hawthorne observed that “The
founders of a new colony, whatever Utopia of human virtue and happiness they
might originally project, have invariably recognized it among their earliest
practical necessities to allot a portion of the virgin soil… as the site of a
prison.” As long as there are people, there will be conflict and crime, and
there will be prisons. Prisons, however, are not a source of pride. An unusually
high number of prison cells signals a society with too much crime, too much
punishment, or both.
There
are other ways to hold offenders—particularly nonviolent ones—accountable.
These alternatives when properly implemented can lead to greater public safety
and increase the likelihood that victims of crime will receive restitution. The
alternatives are also less costly. Prisons are expensive (in some states, the
cost of incarcerating an inmate for one year approaches $60,000), and just as policymakers should
scrutinize government expenditures on social programs and demand
accountability, they should do the same when it comes to prison spending. None
of this means making excuses for criminal behavior; it simply means “thinking
outside the cell” when it comes to punishment and accountability.
This
argument is increasingly made by prominent conservatives. Bill Bennett, Jeb
Bush, Newt Gingrich, Ed Meese, and Grover Norquist have all signed the Statement of Principles of Right On Crime, a campaign that
advocates a position on criminal justice that is more rooted in
limited-government principles. They are joined as signatories by the
conservative criminologist John Dilulio and by George Kelling, who helped usher
in New York City’s successful data-driven policing efforts under Mayor Rudolph
Giuliani. Some groups, like Prison Fellowship Ministries, approach the issue
from a socially conservative perspective. Others, like the American Legislative
Exchange Council and the State Policy Network, have fiscal concerns top of
mind. Regardless, a sea change is underway in sentencing and corrections
policy, and conservatives are leading it.
Between 1992 and 2011, the U.S. prison population increased by
nearly 73 percent. To the extent that the
recent rise in incarceration incapacitated violent offenders, it was valuable.
For nonviolent offenders who are not career criminals, however, incarceration
can be counterproductive. As is sometimes said, prisons are graduate schools
for crime. This is more than apparent in numerous states where recidivism rates
exceed 60 percent.
Unnecessary
incarceration of nonviolent, low-level offenders also destroys families.Mitch Pearlstein at Minnesota’s Center of the
American Experiment has pointed out that incarcerated men “are less attractive
marriage partners, not just because they may be incarcerated, but because rap
sheets are not conducive to good-paying, family-supporting jobs.” It is common
sense that neighborhoods suffering from high incarceration rates also suffer a
plague of single-parent homes and troubled children.
This, in turn, leads to dysfunctional communities that are mistrustful
of law enforcement. Most American children are taught that they may always ask
the police for help. In some American neighborhoods, however, children are
taught never to engage with the police.
For this—high recidivism rates, ravaged families, and maladjusted
neighborhoods—Americans pay dearly. In 2011, Americans spent over $63 billion on corrections, a 300 percent
increase since 1980. Prisons are the second-fastest growing component of state
budgets, trailing only Medicaid.
This
might be acceptable if evidence indicated that growing incarceration rates made
Americans substantially safer. That is not the case, however. Because more
incarceration incapacitates more people, increasing incarceration can indeed
lower crime, but it can also reach a point of diminishing returns where
spending the next dollar on better law enforcement or probation reduces more
crime than spending it on incarceration.
Consider the recent drop in crime rates. Although a general rise in
incarceration over the last few decades has partly coincided with a nationwide
crime decline, evidence in recent years calls into question the extent of the
correlation and whether we have reached or exceeded that point of diminishing
returns. From 1998-2007, crime rates fell in 48 states. Incarceration rates
increased in 40 of the states, and they decreased in eight. Increased
incarceration could not have been responsible for crime falling in the eight
states that reduced incarceration. To criminologists, the bottom line is that
once incarceration reaches a level necessary to incapacitate dangerous and
violent offenders, it is hard to posit a clear correlation between further
increases in incarceration rates and reductions in crime.
Most criminologists believe that America’s costly increase in
incarceration over the last several decades is responsible for about 25 to 30
percent of the drop in the national crime rate. The rest is attributed to a
variety of factors hotly debated among social scientists. These include
demographic changes (moves to the suburbs and the aging of the population),
improved law enforcement strategies such as COMPStat and “broken windows” policing, and even reduced levels of lead in household products.
In
short, some of the increase in incarceration was necessary, but the pendulum
may have swung too far.
*
From
the 1960s through the early 1990s, crime was perhaps the dominant issue in
American domestic politics. Bernie Goetz, an armed citizen who shot four subway
muggers in 1984, became a vigilante icon. The 1988 presidential election was
arguably over after Michael Dukakis responded haplessly to George Bush’s
“Willie Horton ad,” which identified a Massachusetts felon serving life in
prison who committed armed robbery and rape on a weekend furlough. In 1990, a
story in Time was titled “The Rotting of the Big Apple,” and the cover ruefully depicted the muggings,
robberies, and murders for which New York City had become notorious.
Academics
like James Q. Wilson and Steven Pinker have suggested that abrupt changes in
cultural norms sparked in the 1960s may have caused the increase in crime
during this period. Whether cultural liberalism caused the problem is
debatable. What is not debatable is that cultural liberalism did everything it
could to ignore the problem. Many liberals averred that crime stemmed from
social problems like poverty and racism, and for this reason, law-enforcement
responses were pointless. Sometimes the liberal attitude was downright
silly. Norman Mailer suggested that graffiti—which is
nothing more than the vandalism of someone else’s property—was actually
academic commentary on architecture.
Conservatives
put their foot down and insisted on more incarceration: build new prisons,
increase sentence lengths, and enact truth-in-sentencing laws to limit parole.
As the argument gained steam, liberals fretted about appearing “soft on crime”
in elections, and in due course increasing incarceration became a bipartisan
cause. Governor Ann Richards, a Democrat, built a bevy of new prisons across Texas,
and Willie Horton’s name was actually floated by Al Gore in the 1988 Democratic
primary long before Bush ever raised it.
Predictably, labor unions interested in maximizing the number of jobs
for corrections officers also joined in the cause. The most notorious mandatory
minimum law in the country, California’s “Three Strikes,” was supported by
California’s powerful prison-guard unions. Unsurprisingly, California’s prisons
were 180 percent above capacity in 2011 when the U.S. Supreme Court upheld a federal
court order mandating that the state release prisoners to alleviate severe
overcrowding.
With
the tremendous support behind increased incarceration, prison building went too
far. The U.S. needed to incarcerate more people, and it did. Now, however, we
are incarcerating too many people and seeing diminishing returns. Alternative
sanctions for many nonviolent offenders would be less costly, less destructive
to families and individuals, and most importantly more effective at ensuring
public safety.
*
Serendipitously,
developments in research and technology have produced new strategies such as
electronic monitoring, problem-solving courts, and actuarial risk and needs
assessments that can better match offenders with the right level and type of
community supervision.
One
promising practice is the Hawaii HOPE Court which uses swift, sure, and
commensurate sanctions to promote compliance with drug tests and the terms of
probation. In the HOPE Court, the judge informs a drug offender that he will be
assigned a color and that he must call the court daily to see whether the color
has been randomly selected. If so, the offender must report to the court and
pass a drug test. Should he fail the test, he spends a short, but immediate,
stint in jail—often just a weekend.
HOPE
has led to a two-thirds decline in substance abuse and probation failures in
Hawaii. It works because swift and certain sanctions are more effective than
severe sanctions that come only after multiple probation violations have been
ignored. Cesare Beccaria, an 18th-century criminologist made this argument in a
1764 treatise. But an academic treatise is hardly necessary to understand why
HOPE works. A parent appreciates the importance of swift and certain sanctions
just as well as a professor. HOPE began in Hawaii, but HOPE-style courts are
sprouting across the country, and HOPE has become a cause célèbre among
conservative reformers.
Texas,
in many regards, is the model for how conservatives have led a transformation
in corrections. In 2007, Austin number-crunchers projected that over 17,000 new
prison beds, at a cost of $2 billion to taxpayers, would need to be built in
Texas by 2012. Legislators refused to spend the money and instead allocated a
smaller amount to expand community-based options such as probation,
problem-solving courts, and evidence-based drug treatment. Since Texas shifted
to these alternatives in 2007, crime has dropped by 25 percent and the 17,000
prison beds are no longer needed. In 2011, Texas actually closed a prison. As
it enters the 2013 legislative session, Texas correctional facilities are an
additional 4,500 beds below capacity, and legislators are talking about closing
two additional facilities.
The
leader of this revolution in the Republican-controlled Texas House of Representatives
was Jerry Madden, a businessman from north of Dallas who says that prisons
ought to be prioritized for the people “we’re afraid of, [not] the ones we’re
mad at.” Governor Rick Perry signed these reform-oriented budgets and
legislation into law. Perry says that he “believe[s] we can take an approach to
crime that is both tough and smart…focus[ing] more resources on rehabilitating
[nonviolent] offenders so we can ultimately spend less money locking them up
again.”
Texas
is just the beginning. In 2012, Georgia, under Republican Governor Nathan Deal,
passed the nation’s most sweeping corrections reform bill. Deal has shown a
particular interest in rehabilitating drug offenders, and he has framed his
arguments in recognizably conservative language on taxes: “If we fail to treat
the addict’s drug addiction, we haven’t taken the first step in breaking the
cycle of crime—a cycle that destroys lives and wastes taxpayer resources.”
In
Louisiana, Governor Bobby Jindal has promised that his state will “hammer away
at the dubious distinction of [having] the highest incarceration rate in the
world.” In February, he presented legislators with a proposal that strengthens
the incentives for drug offenders to complete rehabilitation programs.
Other
states that have enacted major reforms led by Republican governors include
Ohio, Pennsylvania, South Carolina, and South Dakota.
Some
states have taken a performance-oriented approach that creates a fiscal
incentive to achieve better outcomes for public safety, victims, and taxpayers.
Arizona instituted a policy in 2008 that allowed a portion of state savings
from reduced incarceration to be redirected to counties—if the counties pursued
policies that diverted offenders from prison, reduced recidivism among those on
probation, and ensured that offenders paid restitution to victims. This
incentive-funding plan enabled local jurisdictions to implement proven
practices for better supervising those on probation, including addressing
substance abuse and mental illness. (Around 350,000 inmates in American prisons
and jails are mentally ill.) In the first three years after this incentive
approach was instituted, the rate at which Arizona’s probationers were revoked
to prison fell 38 percent and the number of new felony convictions among its
felony probationers dropped 41 percent.
Similar
incentive-funding approaches in juvenile justice have been successful in
reducing crime and overall costs in Ohio and Texas. For conservatives who have
long emphasized that incentives affect the behavior of individuals and systems,
the success of these policies is unsurprising.
Perhaps
the key indicator of conservative enthusiasm for criminal-justice reform is the
robust language in the 2012 Republican platform: “Government at all
levels should work with faith-based institutions that have proven track records
in diverting young and first time, non-violent offenders from criminal careers,
for which we salute them. Their emphasis on restorative justice, to make the
victim whole and put the offender on the right path, can give law enforcement
the flexibility it needs in dealing with different levels of criminal behavior.
We endorse State and local initiatives that are trying new approaches to
curbing drug abuse and diverting first-time offenders to rehabilitation.”
*
After
the 2012 election debacle, the consensus among conservatives for moving forward
seems quixotic: develop new policy prescriptions but without compromising
foundational principles. Criminal justice reform, however, is perfectly suited
for the mission. The model for conservative criminal justice—less spending,
better results, accountability, and greater reliance on faith, family, and
community rather than central government—is really the model conservatives
should be applying to all issues.
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