Why and How to Reduce

America’s Prison Population

UNLOCKING NOVEMBER 2007

AMERICA

PUBLISHED BY:
THE JFA INSTITUTE | 5 Walter Houp Ct, NE | Washington, DC 20002 | www.jfa-associates.com
 Why and How to Reduce
America’s Prison Population
UNLOCKING
AMERICA

NOVEMBER 2007
WWW.JFA-ASSOCIATES.COM
 Authors
James Austin, President, The JFA Institute
Todd Clear, Professor, John Jay College of Criminal Justice
Troy Duster, Professor, New York University
David F. Greenberg, Professor, New York University
John Irwin, Professor Emeritus, San Francisco State University
Candace McCoy, Professor, City University of New York
Alan Mobley, Assistant Professor, San Diego State University
Barbara Owen, Professor, California State University, Fresno
Joshua Page, Assistant Professor, University of Minnesota

Acknowledgments
Many people made important contributions to this report either by providing data, reviews of earlier
reports, and editing of the final report. They include Patricia Hardyman, Charles Jones, Frank Zimring,
Ron Huff, Michael Jacobson, Marvin Mutch, Keith Hardison, Judith Green, Eric Sterling, Gene
Guerrero, Nkechi Taifa, Susan Tucker, Aurie Hall, Robert Schwartz, Debra Rubino, Belinda Cooper,
Amy Solomon, Rachel Barkow, Jodi Lewen, and Frank Cullen.

Funding provided by:

THE ROSENBAUM FOUNDATION

and

OPEN SOCIETY INSTITUTE

Designed by:
Darcy Harris
www.herdesignereye.com

iv
 UNLOCKING AMERICA
Why and How to Reduce America’s Prison Population

TABLE OF CONTENTS

1
Prologue

3
I. Crime Rates and Incarceration

11
II. Three Key Myths about Crime and Incarceration

15
III. The Limits of Prison-Based Rehabilitation and Treatment Programs in Reducing the Prison Population

18
IV. Decarceration, Cost Savings, and Public Safety

20
V. Six Recommendations

29
VI. Concluding Remarks

v
 Unlocking America

Prologue
“Mr. Libby was sentenced to 30 months of prison, two years of probation and a $250,000
fine…I respect the jury’s verdict. But I have concluded that the prison sentence given to Mr. Libby
is excessive.”—President George W. Bush. July 2, 2007.

President Bush was right. A prison sentence for Lewis is driving imprisonment policies, it is not primarily crime.
“Scooter” Libby was excessive—so too was the long three Prisons are self-fueling systems. About two-thirds
year probation term. But while he was at it, President of the 650,000 prison admissions are persons who have
Bush should have commuted the sentences of hundreds failed probation or parole—approximately half of these
of thousands of Americans who each year have also re- people have been sent to prison for technical violations.
ceived prison sentences for crimes that pose little if any Having served their sentences, roughly 650,000 people
danger or harm to our society. are released each year having served an average of 2-3
In the United States, every year since 1970, when only years. About 40% will ultimately be sent back to prison
196,429 persons were in state and federal prisons, the as “recidivists”—in many states, for petty drug and prop-
prison population has grown. Today there are over 1.5 mil- erty crimes or violations of parole requirements that do
lion in state and federal prisons. Another 750,000 are in not even constitute crimes. This high rate of recidivism is,
the nation’s jails. The growth has been constant—in years in part, a result of a range of policies that increase surveil-
of rising crime and falling crime, in good economic times lance over people released from prison, impose obstacles
and bad, during wartime and while we were at peace. A to their reentry into society, and eliminate support sys-
generation of growth has produced prison populations tems that ease their transition from prison to the streets.
that are now eight times what they were in 1970. Prison policy has exacerbated the festering national
And there is no end to the growth under current poli- problem of social and racial inequality. Incarceration rates
cies. The PEW Charitable Trust reports that under current for blacks and Latinos are now more than six times higher
sentencing policies the state and federal prison popu- than for whites; 60% of America’s prison population is ei-
lations will grow by another 192,000 prisoners over the ther African-American or Latino. A shocking eight percent
next five years. The incarceration rate will increase from of black men of working age are now behind bars, and
491 to 562 per 100,000 population. And the nation will 21% of those between the ages of 25 and 44 have served
have to spend an additional $27.5 billion in operational a sentence at some point in their lives. At current rates,
and construction costs over this five-year period on top of one-third of all black males, one-sixth of Latino males, and
the over $60 billion now being spent on corrections each one in 17 white males will go to prison during their lives.
year.1 Incarceration rates this high are a national tragedy.2
This generation-long growth of imprisonment has Women now represent the fastest growing group of
occurred not because of growing crime rates, but because incarcerated persons. In 2001, they were more than three
of changes in sentencing policy that resulted in dramatic times as likely to end up in prison as in 1974, largely due
increases in the proportion of felony convictions resulting to their low-level involvement in drug-related activity and
in prison sentences and in the length-of-stay in prison that the deeply punitive sentencing policies aimed at drugs.
those sentences required. Prison populations have been The massive incarceration of young males from mostly
growing steadily for a generation, although the crime rate poor- and working-class neighborhoods—and the tak-
is today about what it was in 1973 when the prison boom ing of women from their families and jobs—has crippled
started. It is tempting to say that crime rates fell over the their potential for forming healthy families and achieving
past dozen years because imprisonment worked to lower economic gains.
them, but a look at data about crime and imprisonment The authors of this report have spent their careers
will show that prison populations continued to swell long studying crime and punishment. We are convinced that
after crime rates declined and stayed low. Today, whatever we need a different strategy. Our contemporary laws

1
and justice system practices exacerbate the crime prob- demonstrate that incarcerating large numbers of people
lem, unnecessarily damage the lives of millions of people, has little impact on crime, and show how the improper
waste tens of billions of dollars each year, and create less use of probation and parole increases incarceration
than ideal social and economic conditions in many sec- rates while doing little to control crime. We then turn
tions of our largest American cities. to ideas about how to change this flawed system. We
This report focuses on how we can reduce the set out an organizing principle for analyzing sentencing
nation’s prison population without adversely affecting reform, embracing a retributive sentencing philosophy
public safety. For this to happen, we will need to reduce that is mainstream among contemporary prison policy
the number of people sent to prison and, for those who analysts and sentencing scholars.
do go to prison, shorten the length of time they spend Based on that analysis, we make a series of recom-
behind bars and under parole and probation surveil- mendations for changing current sentencing laws and
lance. People who break the law must be held account- correctional policies. Each recommendation is practi-
able, but many of those currently incarcerated should cal and cost-effective. As we show through examples of
receive alternative forms of punishment, and those who cases in which they have been tried, they can be adopt-
are sent to prison must spend a shorter period incarcer- ed without jeopardizing public safety. If implemented
ated before coming home to our communities. Our rec- on a national basis, our recommendations would gradu-
ommendations would reestablish practices that were ally and safely reduce the nation’s prison and jail popu-
the norm in America for most of the previous century, lations to half their current size. This reduction would
when incarceration rates were a fraction of what they generate savings of an estimated $20 billion a year that
are today. could then be reinvested in far more promising crime
We first summarize the current problem, explain- prevention strategies. The result would be a system of
ing how some of the most popular assumptions about justice and punishment that is far less costly, more effec-
crime and punishment are incorrect. In particular, we tive, and more humane than what we have today.

“Punishment Does Not Fit the Crime” Some Recent Examples

“Offenders” Prior Record Crime Description Prison Sentence

Original sentence
Elisa Kelly Nine counts of contributing
Hosting drinking party for son’s of 8 years- later
George Robinson None to the delinquency of a
nine friends at parent’s home reduced to 27
Mother and stepfather3 minor
months
Cecilia Ruiz
Deleting a DUI conviction from
Single parent – two children None Forgery 42 months
the county DUI data base
ages 6 and 84

Jessica Hall
Threw a cup of McDonald’s
Unemployed mother of three Throwing a missile at an
None coffee at another car that cut her 24 months
children with Marine husband occupied vehicle
off while driving
serving in Iraq5

Provided false testimony to U.S.

Lewis “Scooter” Libby6 None Perjury 30 months
Attorney (four counts)

Inappropriately touched two girls

Stephen May7 None Child Molestation and a boy – there was no sexual 75 years
activity or penetration

17 year old male had consensual

Aggravated child
Genarlow Wilson8 None oral sex with a 15 year old girl at 10 years
molestation
a party that was video taped.

1
Public Safety, Public Spending: Forecasting America’s Prison Population 2007-2011. Philadelphia, PA: Pew Charitable Trusts, 2007.
2
In some cites the percentages are higher. For example, in Baltimore, one in five young black men between ages 20 and 30 is incarcerated, and 52% are under some form
of correctional supervision. Jason Ziedenberg and Eric Lotke. Tipping Point: Maryland’s Overuse of Incarceration and the Impact on Public Safety. Washington, DC: Justice
Policy Institute, 2005.
3
Washington Post, July 4, 2007, pages A1, A11, “Penalties for Teen Drinking Parties Vary Widely in Area”.
4
Washington Post, June 30, 2007, page B4, Ex-Aide Given 3 ½-Year Sentence.
5
www.washingtonpost.com/wp-dyn/content/article/2007/02/17/AR2007021701560.htt
6
Washington Post, July 4, 2007, page A4, “Bush Says He’s Not Ruling Out Pardon for Libby”.
7
State of Arizona vs. Stephen May, Maricopa Superior Court, No. CR2006-030290-001 SE.
8
abcnews.go.com/Primetime/LegalCenter/story?id=1693362&page=1.

2
 I
By far the major
Crime and Incarceration
WHY THE PRISON EXPLOSION?
America’s incarceration rate is explod-
ing. In 1970, there were fewer than 200,000
Western democratic countries manage
with prison populations far smaller than
ours.
people in prison. By 2006, there were ap- By far the major reason for the increase
reason for the proximately 1.6 million state and federal in prison populations at least since 1990
increase in the prison prisoners (or nearly 500 per 100,000 popu- has been longer lengths of imprisonment.
lation). Each year over 730,000 people are The adoption of truth in sentencing provi-
populations at least sions that require prisoners to serve most
admitted to state and federal prisons, and
since 1990 has been a much larger number (over 10 million) go of their sentences in prison, a wide variety
longer lengths of to local jails. If we add to the prison popu- of mandatory minimum sentencing pro-
imprisonment. lation the nearly 750,000 people incarcer- visions that prevent judges from placing
ated in local jails today—at the beginning defendants on probation even when their
of 2007—the total number imprisoned in involvement in the conduct that led to
the U.S. on any given day is 2.2 million.1 the conviction was minor, reductions in
The United States is the world lead- the amount of good time a prisoner can
er in imprisonment. China, with a much receive while imprisoned, and more con-
larger population, has the second largest servative parole boards have significantly
incarcerated population, with 1.5 million impacted the length of stay.
imprisoned. With 737 people incarcerat- For example, in a special study by the
ed per 100,000 persons, the U.S. also leads U.S. Department of Justice on truth in
the world in rates of incarceration—well sentencing, between 1990 and 1997, the
above Russia, which has the next high- numbers of prison admissions increased
est rate of 581 per 100,000.2 The other by only 17% (from 460,739 to 540,748),
while the prison population increased
Table 1: Sentence Lengths, Time Served, and Length of Parole
Supervision, 1993 versus 2002
by 60% (from 689,577 to 1,100,850). This
larger increase in the prison population
Length of Supervision 1993 2002
can only be caused by a longer length of
stay.3
Average Sentence 66 months 65 months This is further confirmed in Table
1, which shows sentence lengths, time
Average Time Served 21 months 30 months served, and period spent on parole super-
vision. These U.S. Department of Justice
Average Parole Supervision 19 months 26 months
data are based on individuals released in
Total Time Under Supervision 40 months 56 months 1993 and 2002. The 2002 data underesti-
mate the average length of current prison
Source: Prison Statistics. US Department of Justice, Office of Justice Programs, Bureau of Justice sentences because they do not include
Statistics.1 Aug. 2006. http://www.ojp.usdoj.gov/bjs/prisons.htm
time served by prisoners sentenced under

1
William J. Sabol, Todd D.Minton, and Paige M.Harrsion. Prison and Jail Inmates at Midyear 2006. Bureau of Justice Statistics
Bulletin, Washington, DC: US DOJ,Office of Justice Programs, 2007.
2
Prison Brief—Highest to Lowest Rates. International Centre for Prison Studies, King’s College, London. 2006 http://www.kcl.
ac.uk/depsta/rel/icps/world/
3
Paula M. Ditton and Doris James Wilson. “Truth in Sentencing in State Prisons.” Washington, DC: US DOJ, Bureau of Justice
Statistics, 1999.

3
recent punitive laws (such
Table 2: Economic Loss to Victims and Costs of Incarceration
as “three strikes and you’re
out”) who have not yet been Prison
Average Prison Pretrial Total
released. Nevertheless, the Time Incarceration
Type of Crime Victim Sentence Time Time
average time served by those Served Costs*
Loss (in mos) (in mos) (in mos)
who were released still in- (in mos)
creased substantially—from Robbery $1,258 94 5 55 60 $113,000
21 to 30 months. Similarly, Burglary $1,545 52 5 29 34 $64,000
the parole supervision pe-
riod increased from 19 to Larceny Theft $730 34 5 20 25 $47,000

24 months, and the total Auto Theft $6,646 27 5 17 22 $41,000

average period of supervi- Source: Matthew R. Durose and Patrick A. Langan. Felony Sentences in State Courts, 2000. Washington, DC: Bureau of
sion increased from 40 to 56 Justice Statistics, 2003, and Callie M. Rennison and Michael Rand. Criminal Victimization, 2002. Washington, DC: Bureau of
Justice Statistics, 2003.
months.
Not only are our lengths
of imprisonment significantly spend over $200 billion each year to fund the criminal
longer than they were in earlier periods in our penal histo- justice system.6 In contrast, the total economic loss to vic-
ry, but they are considerably longer than in most Western tims of crime in 2002 was an estimated $15.6 billion, or
nations. For the same crimes, American prisoners receive about one-tenth of the total cost of the nation’s criminal
sentences twice as long as English prisoners, three times justice system.7 The typical (median) costs per crime for
as long as Canadian prisoners, four times as long as Dutch each victim was $100, which includes losses from prop-
prisoners, five to 10 times as long as French prisoners, and erty theft or damage, cash losses, medical expenses, and
4
five times as long as Swedish prisoners. Yet these coun- lost pay. While the financial losses and physical and emo-
tries’ rates of violent crime are lower than ours, and their tional injuries sustained by victims can be significant, they
rates of property crime are comparable.5 represent only a fraction of what it costs to incarcerate the
Most prisoners are incarcerated for crimes that do offenders.
not compare with the costs of their imprisonment. We Table 2 illustrates the vast disparity between the
economic losses associated with four common crimes
and the amount expended
to incarcerate the offender.
Figure 1: Crime and Incarceration Rate Comparisons For example, the average
loss associated with a rob-
bery reported to the po-
lice is $1,258. The typical
prison sentence for rob-
bery in the United States is
94 months, or about eight
years, of which the typical
time served is 55 months.
Together with the time
spent in jail pre-trial, the av-
erage robbery offender is
incarcerated for 60 months
at a cost of approximately
$113,000.
This historic rise in in-
carceration has often been
attributed to the “fact” that
4
David P. Farrington, Patrick A. Langan, and Michael Tonry, eds. Cross-National Studies in Crime and Justice. Washington, DC: US DOJ, Bureau of Justice Statistics, 2004.
5
Franklin E. Zimring and Gordon Hawkins, Crime Is Not the Problem: Lethal Violence in America. New York: Oxford UP, 1997.
6
http://www.ojp.usdoj.gov/bjs/eande.htm
7
Callie M. Rennison and Michael Rand. Criminal Victimization, 2002. Washington, DC: Bureau of Justice Statistics, 2003.

4
 Unlocking America

in the early 1970s, the U.S. faced a steadily increasing crime rate swung up and down until 1992 when it began
crime problem, leaving no choice but to increase the use a steady decline.
of incarceration massively. But this explanation for the im- The UCR is one of two ways that the government tracks
prisonment binge is misleading and incomplete. Crime crime rates. The other, the National Crime Victimization
rates have grown in other countries and states within the Survey (NCVS), was established in 1973 in recognition
U.S. without provoking a large growth in prison popula- of the fact that the UCR had major biases in the way it
tions. There are various ways a country can respond to in- gauged crime. The NCVS is often considered a more ac-
creased crime; more prisons is just one of them. Moreover, curate and complete picture of crime in the U.S., as it is
statistics show that it was not primarily a rise in crime that based on interviews of household members.
fueled the increase in incarceration rates. As shown in Figure 2, NCVS shows no increases in
Figure 1 compares changes in the nation’s crime property crimes from 1973 to 1980. Similarly, NCVS show
rates—as measured by the FBI’s Uniform Crime Reports no increase in violent crimes between 1973 and in 1993,
(UCR) that are based on police records that primarily re- unlike the UCR data which showed a steady increase over
flect victim reports to their local police departments— the same time period. There is contradictory evidence
with changes in the rates of incarceration from 1931 to of a 1970s crime epidemic, which was a major rationale
2004. After being relatively stable for decades, between for expanding the use of imprisonment.9 Regardless of
1964 and 1974 the UCR Crime Index—which measures which measuring method is used, there was no large drop
murder, assault, rape, burglary, robbery, theft, auto theft, in the incarceration rate before crime rates began to in-
and arson—increased significantly even as the incarcera- crease after 1963. While a variety of theories exist as to
tion rate remained relatively stable.8 Thereafter, the UCR why crime rates rose from 1964 to 1974, the cause was not
a large drop in prison pop-
ulations, which remained
Figure 2: UCR and NCVS Crime Rate Comparisons fairly stable until 1973.10
Prison populations began
increasing only after crime
rates had already stabilized
or, according to the crime
victimization surveys, had
already began to decline.
Beginning in the
1960s, law and order ad-
vocates declared a war on
crime. Conservative politi-
cians (starting with Barry
Goldwater in the early
1960s), backed by religious
groups (the Moral Majority
of the 1970s) and right-
wing media figures (such
as talk-radio hosts of the
1980s), argued that crime
was out of control largely
because lenient judges
gave lawbreakers too

8
Prison populations fell by about eight percent between 1960 and 1970. This small drop could not remotely have been a major cause of the 2.4-fold rise in UCR index
offenses in that decade. Sourcebook of Criminal Justice Statistics. US DOJ, Bureau of Justice Statistics. 278, 500 http://www.albany.edu/sourcebook/
9
Criminologists debate the sources of the discrepancy between the growth in violent crime shown in UCR data and the decline shown by the NCVS. The U.S. Department
of Justice has suggested that victims were more likely to report crimes to the police, and law enforcement agencies improved their recording and reporting systems. If these
explanations are correct, these changes in reporting created the illusion of a growing crime problem when there actually was none. Also note that the NCVS property rate is
based on the number of households, which is lower than the number of persons.
10
As the NCVS was started in 1973, it cannot be used to determine if—or how much—crime rates increased between 1964 and 1973. Most criminologists agree, however,
that there was an increase, and that some of the increase was due to demographics–the large numbers of baby boomers passing through their high crime-committing years.
People aged 15 to 24 commit a substantial proportion of index crimes. The persons in the baby-boom cohorts started reaching 15 in 1964, and began turning 40 around 1990.
But demographics cannot explain all of the increase.

5
 Why and How to Reduce America’s Prison Population

many chances before they

were punished, predatory
criminals avoided punish- Figure 3: Incarceration Rates by Crime Category (1980-2003)
ment because of technicali-
ties in the law, and criminals
returned to the streets after
serving short sentences.
These advocates of a war
on crime suggested harsh
mandatory punishments
were needed that would
both incapacitate people
convicted of serious crimes
and deter others from
breaking the law.
The media contributed
to the fervor over the “crime
problem” through its unre-
lenting focus on crime—the
more heinous and sensa-
tional, the better. Broadcast
journalists discovered that
sensational crimes drew
large audiences. The media Remedying social inequities, they maintained, was
publicized horrific but rare crimes (the kidnapping and not the job of the government and would not reduce
murder of Polly Klass, the sexual murder of Megan Kanka, crime. Their solution—more people in prison—rested on
and the attack perpetrated by Willie Horton while on work the use of an institution that had become substantially
release). In so doing, it led Americans to believe wrongly discredited among penologists in the 1960s. Their views
that they were at high risk of being assaulted, raped, or were enthusiastically supported by the federal govern-
murdered. ment, which subsequently funded studies to identify the
During this same period, a growing number of neo- “career criminal.”
conservative social scientists claimed that “law and order” Public receptivity to this hawkish perspective was
ideas and policies rested on a sound scientific foundation. enhanced by anxieties associated with the rapid rise in
In 1975, political scientist James Q. Wilson published the crime during the 1960s, the eruption of riots in a number
widely read Thinking About Crime, in which he soberly of American cities, and the advent of the civil rights and
admonished liberal/humanitarian social scientists to re- feminist movements, challenging longstanding racial and
member that “...wicked people exist. Nothing avails except gender hierarchies. These developments, exploited by
to set them apart from innocent people.”11 well-funded conservative polemicists whose arguments
For Wilson and those who initially shared his views, were widely publicized in the media, helped to shape
incapacitating what they believed was a growing and public response to the high-profile death of athlete Len
more menacing type of criminal was a necessary weapon Bias from a cocaine overdose in 1986. Along with the
in the war against crime. By insisting that only stepped- growing use of crack cocaine, his death sparked a rapid
up criminal justice interventions could cope with crime, government response. All these factors converged, creat-
Wilson and others like John J. DiIulio and William Bennett ing a “perfect storm” that drove the imprisonment binge.
were arguing against the strategies recommended by the Thus after 1975 many laws were passed, supported by
riot commissions of the 1960s and by experts on pov- politicians of both parties, designed to increase the prob-
erty and racial problems: alleviating poverty, combating ability of a prison sentence rather than jail or probation,
discrimination, and opening up opportunities that had dramatically increasing the length of prison sentences for
previously been shut off by racial discrimination and class certain crimes, and requiring prisoners to serve a greater
inequality. proportion of their sentences—three results that we will

11
James Q. Wilson. Thinking About Crime. New York: Random House, 1975. 235. See also by Wilson: “Lock ‘Em Up.” New York Times Magazine 9 March 1975: 11.

6
 Unlocking America

discuss in greater detail below. Priests are charged with child molestation. Doctors bill
New legislation increasing the penalties for the sale Medicare for procedures they did not perform. Each day
and possession of cocaine, particularly crack cocaine, in- thousands drive while legally drunk, with sometimes-fatal
tensified the upward trend. As is evident in Figure 3, in- consequences.12 Self-report surveys find that lawbreaking
creased penalties for drug offenses strongly fueled much is widely distributed among the young, especially males.
of the growth of state prison populations starting in the As many as one-third of all boys are arrested before reach-
late 1980s. Since then most of the growth in prison sys- ing adulthood. A majority of males will be arrested for a
tems has been due to the increased incarceration of per- non-traffic offense at some point in their lives.13
sons for violent crimes (mostly robbery and assaults) and But given that most of us commit some type of crimes
behavior related to “public order.” Once begun, prison ex- in our lifetimes, the most severe punishments are targeted
pansion has continued under its own momentum, oblivi- toward lower class citizens. It is this class of people we are
ous to any obvious need and unrelated to any useful so- willing to punish disproportionately to their criminal acts.
cial function, at large social
cost. Though penologists
Table 3: If Black and Latino Prisoners
have called attention to the Had the Same Jail and Prison Incarceration Rates as White Prisoners
failures of mass imprison-
ment, the expansion has Male Female
Current Prison Population If Same
Race Incarceration Incarceration
taken on a life of its own. Prisoners Incarceration Rates as Whites
Rates Rates
Along the way,
Americans have become Whites 731,200 681 75 731,200
accustomed to demonizing
certain people who break Blacks 899,200 4,834 352 125,773
the law. This is somewhat
odd, given the fact that Latino 392,200 1,778 148 136,540
breaking the law is neither
a rare nor demonic act. Total 2,022,600 993,513
Few citizens go through
life without ever violating a
law. This willingness to punish them is rooted in our culture
A significant number of Americans cheat on their tax- of individualism, which holds that we are free-willed and
es, steal from their employers, receive stolen goods, pur- fully responsible for our acts. This belief speaks to our ten-
chase illegal cable boxes, illegally download music, use il- dency to assign personal blame for every disapproved act.
legal drugs, or participate in many other illegal acts. Hardly The truth is that many factors, particularly race and eco-
a day goes by without a newspaper story about corporate nomic status, affect our life situations and limit or expand
executives indicted for fraud, insider trading, or price fix- our available choices.
ing. Politicians are arrested and convicted for soliciting Consider young people with college-educated par-
or accepting bribes. The most prestigious Wall Street firms ents. Middle and upper-class parents impart values of
have engaged in large-scale illegal trading practices. Some achievement through education to their children, arrange
of our most successful and idolized entertainment figures for their admission into better schools, help them get into
are indicted for shoplifting, domestic violence, drunk driv- good colleges, and support them after graduation while
ing, possessing drugs, and molesting children. Policemen they attempt to start their “careers.” Their children have
are filmed using excessive use of force on citizens, make a much higher chance of succeeding in America’s econo-
arrests based on racial stereotypes, deal in drugs, plant my than youth from poor, welfare dependent, and often
evidence on innocent people, and lie under oath. Sports broken families who are exposed to a much different life,
figures are accused of rape, assault and taking steroids. including dangerous public housing buildings and dys-

12
In 2002, an estimated 1.5 million drivers were arrested for driving under the influence of alcohol or narcotics—surely more escaped arrest. In 2004, the National Center for
Statistics and Analysis reported that just over 17,000 people died in alcohol-related crashes in 2003. This is slightly more than the 16,503 murdered or who died from non-
negligent homicide in the same year.
13
In a study of a Philadelphia male birth cohort, 35 percent of the youths had at least one incident of contact with the police before age 18. These 3,475 boys with a contact
were linked to 10,214 offenses, including 2,786 index crimes (Marvin E. Wolfgang, Robert M. Figlio, and Thorsten Sellin. Delinquency in a Birth Cohort. Chicago: University of
Chicago Press, 1972. 65, 68-69. By age 30, 47% had at least one police contact for a non-traffic offense (James J. Collins.Offender Careers and Restraint: Probabilities and
Policy Implications. Washington, DC: US DOJ, Law Enforcement Assistance Administration,1977). In a similar study carried out in Racine, Wisconsin, 59-69% had a non-traffic
police confrontation by the same age. Joan Petersilia. “Criminal Career Research: A Review of Recent Evidence.” Crime and Justice: An Annual Review of Research 2 (1980):
321-79.

7
 Why and How to Reduce America’s Prison Population

functional public schools. For many of these youth, the DID PRISON EXPANSION CUT CRIME?
expectation or norm is to drop out of high school and end Proponents of prison expansion have heralded this
up hanging out in neighborhoods filled with other under- growth as a smashing success.18 But a large number of
educated, unemployed young people.14 Rather than go- studies contradict that claim. Most scientific evidence
ing to college they are headed toward prison. suggests that there is little if any relationship between
Where lawbreakers differ culturally and socially, oth- fluctuations in crime rates and incarceration rates. In
ers are less able to empathize with their life circumstanc- many cases, crime rates have risen or declined indepen-
es. Middle- and upper-class people understand that they dent of imprisonment rates. New York City, for example,
themselves, their families, and close associates are not de- has produced one of the nation’s largest declines in
fined entirely by their law violations. But they often lack crime in the nation while significantly reducing its jail and
understanding for those whose life circumstances are dif- prison populations.19 Connecticut, New Jersey, Ohio, and
ferent from their own. Massachusetts have also reduced their prison populations
The demonization of criminals has become a special during the same time that crime rates were declining.20
burden for young black males, of whom nearly one-third A study of crime and incarceration rates from 1980 to
will spend time in prison during their life.15 The fear of black 1991 in all 50 states and the District of Columbia shows
men and other factors fuel the racially disproportionate that incarceration rates exploded during this period. The
imprisonment and convinces many Americans that black states that increased incarceration rates the least were just
males are an especially “dangerous” class of people, dif- as likely to experience decreases in crime as those that
ferent from the rest of us, the so-called “law-abiding.”16 increased them the most.21 The study’s authors pointed
Today approximately 60% of those incarcerated today are out that although San Francisco and Alameda counties in
black or Hispanic.17 In effect, the imprisonment binge cre- California reduced the number of individuals sentenced
ated our own American apartheid. to state prison, their crime rates dropped as much if not
To illustrate the significance of race in our incarcera- more than those California counties that increased their
tion policies, we estimated the size of today’s prison and prison commitments.
jail population assuming blacks and Latinos had the same Other studies reach similar conclusions, finding “no
incarceration rate as their white counterparts. The results consistent relationship between incarceration rates and
are striking. As shown in Table 3, if blacks and Latinos had crime rates”22 and “no support for the ‘more prisoners, less
the same rates of incarceration as whites, today’s prison and crime’ thesis.”23 One study discovered an initial decrease
jail populations would decline by approximately 50%. While in crime related to increases in rates of incarceration, but
we may differ on the basis for racial differences in impris- no decrease from further increases in incarceration.24
onment, there can be no disagreement that this is not the Focusing on California, whose incarcerated popula-
sign of a healthy society. tion more than tripled during the 1980s, Franklin Zimring

14
See Pierre Bourdieu and Jean Claude Passeron. Reproduction in Education, Society, and Culture. London: Sage Publications, 1990, and, Jay MacLeod. Ain’t No Makin’ It:
Aspirations & Attainment in a Low-Income Neighborhood. Boulder, CO: Westview. 1995. These books address the issues of transmission of cultural capital and success.
15
Prevalence of Imprisonment in the U.S. Population, 1974-2001. Washington, DC: US DOJ, Bureau of Justice Statistics, 2003.
16
Controlling for crime rates, prison populations have grown faster in states with more black residents. Katherine Beckett and Bruce Western. “Governing Social Marginality:
Welfare, Incarceration, and the Transformation of State Policy.” Punishment and Society 3 (2001): 43-59; David F. Greenberg and Valerie West. “State Prison Populations and
Their Growth, 1971-1991,” and David F. Greenberg, “’Justice’ and Criminal Justice.” Criminology 39.3 (2001): 615-53. Darnell F. Hawkins, Samuel L. Myers Jr., and Randolph
N. Stone, eds. Crime Control and Social Justice: The Delicate Balance. Westport, CT: Greenwood Press, 2003.
This is not to deny that for UCR crimes, rates of black involvement are higher than rates of white involvement. However, these disparities do not fully explain the racial
disparities in prison populations, or their growth.
17
Prisoners in 2004. US DOJ. Washington, DC: Bureau of Justice Statistics, 2005.
18
John DiIulio. “Prisons Are a Bargain, by Any Measure.” New York Times 26 Jan. 1996: A19.
19
Between 1993 and 2001, violent crime in New York decreased by 64%, and homicides by 69% while its jail population dropped by 25%, and the number of people
sentenced to prison fell by 42%. Some analysts attribute the dramatic reductions in serious crime and felony arrests to the introduction of new methods of policing, particularly
Compstat. However, San Diego, which also reduced its commitments to prison, experienced comparable declines in crime without using New York’s methods (Michael
Jacobson. Downsizing Prisons: How to Reduce Crime and End Mass Incarceration. New York: NYUP, 2005. 37, 113, 125-27.
20
Ibid., 128.
21
Irwin and Austin, loc. cit., 154-56. For an updated version of this type of analysis, see: Jenni Gainsborough and Marc Mauer. Diminishing Returns: Crime and Decarceration
in the 1990s. Washington, DC: The Sentencing Project, 2000.
22
Michael Lynch. “Beating a Dead Horse: Is There Any Basic Empirical Evidence of the Deterrent Effect of Imprisonment.” Crime, Law and Social Change 31.4 (1999): 361.
Lynch examined data on U.S. crime and imprisonment trends from 1972 through 1993.
23
Tomislav V. Kovandzic and Lynne M. Vieratis. “The Effect of Country-Level Prison Population Growth on Crime Rates.” Criminology & Public Policy 5.2 (2006): 234. The
authors examined the effect of incarceration on crime rates in different Florida counties.
24
Raymond Liedka, Anne Morrison Piehl, and Bert Useem. “The Crime-Control Effect of Incarceration: Does Scale Matter?” Criminology & Public Policy 5.2 (2006): 245-76.
This study analyzed the data on crime rates and incarceration rates for all 50 states and the District of Columbia in the period from 1972 to 2000. The authors believe that
whatever gains were achieved in the dramatic rise in imprisonment that began in the 1970s, there was a diminishing effect over time.

8
 Unlocking America

and Gordon Hawkins concluded that this remarkable ex- These studies have led former pro-incarceration ad-
pansion was paralleled by a reduction in crime of about vocates to change their positions. James Q. Wilson now
15%. Almost all this decrease was in burglary and larceny. concedes that we have reached a tipping point of “dimin-
For the other offenses the reduction was “weak to negli- ishing returns” on our investment in prisons.28 According
gible.” The role of the prison expansion in bringing about to Wilson, judges have always been tough on violent of-
even that 15% was doubtful, because arrest statistics fenders and have incarcerated them for relatively long
showed that the drop occurred mainly for juveniles, who periods. However, as states expanded incarceration, they
were less likely than adults to be locked up.25 A contrary dipped “deeper into the bucket of persons eligible for pris-
view has been offered by some analysts, such as William on, dredging up people with shorter and shorter criminal
Spelman, who argues that the crime rate today would be records.”29 Increasing the proportion of convicted crimi-
25% higher were it not for the large increases in impris- nals sent to prison, like lengthening time served beyond
onment from 1970 to 1990.26 Assuming for the sake of some point, has produced diminishing marginal returns
discussion that this figure is correct, it is not a large ef- in crime reductions. Similarly, former incarceration ad-
fect, considering the enormous increase in imprisonment vocates such as John DiIulio and former U.S. Attorney
needed to achieve it. However, Spelman’s estimate is prob- General Edwin Meese are calling for a repeal of manda-
ably too large. His analysis is based on national trends and tory minimum sentencing and challenging the wisdom of
does not explain why some states and counties that low- a massive imprisonment policy.30
ered their incarceration rates experienced the same crime
reductions as states that increased incarceration; and his THE NEGATIVE SIDE EFFECTS OF INCARCERATION
estimates of crime reductions rely on controversial data in Incarceration may not have had much impact on
the form of prisoners’ own claims about how much crime crime, but it has had numerous unintended consequenc-
they had committed before incarceration. More signifi- es, ranging from racial injustice and damage to families
cantly, Spelman agrees that further investment in expand- and children to worsening public health, civic disengage-
ing the prison population will have little if any impact on ment, and even increases in crime.
crime rates. Bruce Western demonstrates the extraordinarily dis-
More recent estimates based on individual states and parate impact of imprisonment on young black males
counties within states have estimated the crime-reduc- compared to any other subgroup of society. For example,
tion impact of prison growth to be much smaller or non- he shows that nearly one-half of all young black males
existent.27 Research on crime and incarceration does not who have not finished high school are behind bars, an
consistently indicate that the massive use of incarceration incarceration rate that is six times higher than for white
has reduced crime rates. male dropouts. He then shows how incarceration dam-
In sum, studies on the impact of incarceration on ages the lifetime earnings, labor market participation, and
crime rates come to a range of conclusions that vary from marriage prospects for those who have been to prison
“making crime worse” to “reducing crime a great deal.” and concludes that the U.S. prison system exacerbates
Though conclusive evidence is lacking, the bulk of the evi- and sustains racial inequality.31
dence points to three conclusions: 1) The effect of impris- British penologists Joseph Murray and David
onment on crime rates, if there is one, is small; 2) If there is Farrington have analyzed data sets about child develop-
an effect, it diminishes as prison populations expand; and ment from three nations and found that parental incar-
3) The overwhelming and undisputed negative side ef- ceration contributes to higher rates of delinquency, men-
fects of incarceration far outweigh its potential, unproven tal illness, and drug abuse, and reduces levels of school
benefits. success and later employment among their children.

25
Franklin E. Zimring and Gordon Hawkins. Incapacitation: Penal Confinement and the Restraint of Crime. New York: Oxford UP, 1995. 101; Thomas B. Marvell and Carlisle
E. Moody Jr. “Prison Population Growth and Crime Reduction.” Journal of Quantitative Criminology 10.2 (1994): 109-40, similarly found just a small reduction in crime resulting
from national prison expansion.
26
William Spelman. “The Limited Importance of Prison Expansion.” The Crime Drop in America, Revised edition. Ed. Alfred Blumstein. New York: Cambridge UP, 2006.
97-129. Spelman based this estimate on the amount of crime recently incarcerated felons told interviewers they had committed the year before their arrest. Spelman then
assumed that incarcerating and incapacitating those individuals averted the same amount of crime he assumed would be committed subsequently.
27
Bruce Western. Punishment and Inequality in America. New York: Russell Sage, 2006; James P. Lynch and William J. Sabol. “Did Getting Tough on Crime Pay?” Crime
Policy Report No. 1. Washington, DC: Urban Institute, 1997. http://www.urban.org/publications/307337.html; Don Stemen. Reconsidering Incarceration: New Directions for
Reducing Crime. New York: Vera Institute of Justice, 2007.
28
James Q. Wilson. “Crime and Public Policy.” Crime. James Q. Wilson and Joan Petersilia. Oakland, CA: ICS Press, 1995: 489-507.
29
Wilson, op. cit., 501.
30
Jacob Sullum. “Prison Conversion: After studying non-violent drug offenders, a criminologist who once said, “Let ‘Em Rot” now says “Let ‘Em Go.” Reason Aug./Sept. 1999.
31
Bruce Western, op. cit. See also, Raphael, op. cit.

9
 Why and How to Reduce America’s Prison Population

Their comparative analysis of data from high-imprison- changed election outcomes across the nation, including
ment and low-imprisonment nations reveals that the in the two most recent presidential elections, weakened
negative effects of incarceration are most pronounced the political influence of minority communities, and de-
when a nation’s incarceration rate is high, as it is in the tracted from civic participation by large classes of people
United States.32 of color.34
Epidemiologist James Thomas has analyzed incarcer- Clearly, prison terms have a residual impact on the
ation rates in North Carolina, and shows that high rates of families and communities of the imprisoned. Enduring
incarceration are associated with increased rates of teen- years of separation from family and community—de-
age single-parent births and the risk of sexually-trans- prived of material possessions, subjected to high levels
mitted diseases among women. Other analyses have of noise and artificial light, crowded conditions and/or
shown that the high rate of HIV among black women can solitary confinement, devoid of privacy, with reduced op-
be attributed to incarceration rates of black men.33 tions, arbitrary control, disrespect, and economic exploi-
There are an estimated five million Americans who tation—is maddening and profoundly deleterious. Anger,
are ineligible to vote because of felony convictions. frustration, and a burning sense of injustice, coupled
About half of these are African-Americans; consequently, with the crippling processes inherent in imprisonment,
black communities’ have lost a significant amount of po- significantly reduce the likelihood that prisoners are
litical power. Christopher Uggen and Jeffrey Manza have able to pursue a viable, relatively conventional life after
demonstrated that the loss of voting rights by felons has release.

32
Joseph Murray and David Farrington. “Effects of parental imprisonment on children.” Crime & Justice: A Review of Research. Forthcoming; and Joseph Murray, Carl-Gunnar
Janson, and David Farrington. “Crime in Adult Offspring of Prisoners: A Cross-National Comparison of Two Longitudinal Samples.” Criminal Justice & Behavior 34 (2007):
133-49.
33
James Thomas and Elizabeth Torrone. “Incarceration as Forced Migration: Effects on Selected Community Health Outcomes.” American Journal of Public Health 96 (2006):
1762–65; Rucker C. Johnson and Steven Raphael. “The Effects of Male Incarceration on Dynamics of AIDS Infection Rates Among African-American Women and Men.”
Unpublished paper presented to the incarceration study group of the Russell Sage Foundation (July 2006).
34
Christopher Uggen and Jeff Manza. Locked Out: Felon Disenfranchisement and American Democracy. New York: Oxford UP, 2006.

10
 II Three Key Myths
about Crime and Incarceration
The research summarized above
shows that mass incarceration has a lim-
periods of time to reduce crime signifi-
cantly. However, scientific efforts to devel-
Why has there ited potential for reducing crime and has op methods for identifying career crimi-
been such a growth collateral consequences that outweigh its nals have failed.
in imprisonment? benefits. Why then has there been such a In 1978, a National Academy of Science
The incarceration growth in imprisonment? The incarcera- study by a panel of prestigious criminolo-
explosion has been tion explosion has been based on a series gists concluded that while most people
based on a series of ideas that were widely accepted once, have a relatively brief and modest crimi-
of ideas that were
widely accepted and but have turned out to be erroneous. The nal career, a small group persists in crime.
broadly popular at three main myths are: However, the panel was unable to produce
the time, but have 1. There are “career criminals” we can any valid methods for identifying the per-
turned out to be identify and whose imprisonment sistent criminals at the beginning of their
erroneous. will reduce crime; criminal careers.35
2. Tougher penalties are needed to Shortly thereafter, a group of RAND
protect the public from “dangerous” researchers thought they had found a way
criminals; and to identify persons who would eventually
3. Tougher penalties will deter crimi- become repeat offenders. They discovered
nals. a group of “high-rate offenders” among
Because these ideas have been so samples of males imprisoned for robbery
central we discuss them in some detail. and burglary in three states (California,
Texas and Michigan).36 Significantly, the
Myth #1: There are “career criminals” vast majority of the surveyed prisoners re-
we can identify and whose imprison- ported committing very few if any crimes
ment will reduce crime. the year before they were arrested (five or
less). But the so-called “high-rate” offend-
One of the primary justifications for ers, who comprised 10% of the samples,
lengthy sentences is that we can identify claimed they had committed 4-5 robber-
the “career criminals” or “violent predators” ies and burglaries per week in the pre-
who commit most of the serious crime ceding year. The researchers developed a
and who are not deterred or rehabilitated profiling scale that distinguished the high-
by short sentences or alternative punish- rate offenders, whom they labeled “violent
ments to incarceration. These people, it is career criminals”, from the others. Peter
argued, must be “incapacitated” for long Greenwood claimed that if the people so
35
Jacqueline Cohen. “Research on Criminal Career: Individual Frequency Rates and Offense Seriousness.” Criminal Careers and
“Career Criminals. Alfred Blumstein et. al., eds. Washington, DC: National Academy Press, 1986.
36
Peter Greenwood and Alan Abrahamse, op. cit.; Jan M. Chaiken and Marcia Chaiken. Varieties of Criminal Behavior. Santa
Monica, CA: RAND, 1982.

11
identified were incarcerated for at least eight years, crime tinguished the careers of “desisters” from “persisters”. Laub
would decline by 20%. Because the lower-rate offenders and Sampson also found that delinquents who had been
could be released after serving reduced sentences, prison incarcerated were more likely to commit crimes later in
expansion could be avoided. life than those who had been sentenced to probation or
These claims were widely disseminated by the U.S. local jail time. The implication was that imprisonment it-
Department of Justice and used by elected officials to self can encourage criminality.
justify sentencing reforms such as mandatory minimums, In a subsequent study, Michael E. Ezell and Lawrence
truth in sentencing, and the abolition of parole boards. E. Cohen published their analysis of the criminal careers of
However, when Greenwood and his associate Susan three cohorts of “serious chronic offenders” released from
Turner later followed a group of released prisoners iden- California youth prisons in the 1980s and 1990s. Although
tified as high-rate offenders by their profiles, they found the offenders varied in the amount of crime they commit-
that these individuals had not committed crimes of the ted after their release from prison, all “aged out” of crime.39
type and at the rate expected.37 Similar to the other studies, Ezell and Cohen could not find
More recent research, nearly twenty years after the any background characteristics that reliably distinguished
first studies on the topic, continues to discredit the claim those with different post-release criminal trajectories.
that career criminals can be identified early by a profiling Other researchers have employed mixes of psychologi-
system. John Laub and Robert Sampson have re-exam- cal test scores and behavioral measures to predict seri-
ined data from Sheldon and Eleanor Glueck’s 1930s semi- ous violent recidivism or involvement in new sex crimes.40
nal publication following the life careers of 500 Boston These methods predict recidivist crime better than ran-
delinquents.38 Although the vast majority desisted from dom guessing, but they are also inaccurate.
crime after the age of 25, a small minority persisted in Though improvements in statistical methods for
committing crime into their later years. Using all available predicting violent recidivism have produced modest
criteria, Laub and Samson could not distinguish these gains in accuracy, they rely on data that would normally
“persisters” at the beginning of their delinquent careers not be available in a typical criminal justice applica-
from the others who had followed the normal pattern of tion.41
criminal involvement in adolescence and desistance after Criminologists have been unable to develop prac-
their early twenties. tical and reliable methods to select those who will be-
Laub and Sampson were able to find a different set come career criminals.42 Attempts to incarcerate based
of predictive factors, none of which could be observed on any predictive criteria will inevitably end up incar-
when the young people first committed crimes. Instead, cerating a large number of people who do not persist in
they found there were major “turning points” in a person’s serious crime. As advocated later in the report, sentenc-
life—such as getting and holding a good job, enlisting in ing should not be based on what we think a person will
the military, marrying, and establishing contacts with con- do but rather on what they have done and in proportion
ventional institutions and groups—rather than personal- to the seriousness of the crime.
ity characteristics or early childhood experiences that dis-

37
Peter Greenwood and Susan Turner. Selective Incapacitation Revisited: Why High-Rate Offenders Are Hard to Predict. Santa Monica, CA: RAND, 1987. Christy A. Visher
also found methodological weaknesses in the study; see “The Rand Inmate Survey: A Reanalysis.” Criminal Careers and “Career Criminals,” Vol. 2. Alfred Blumstein et. al.,
eds. Washington, DC: National Academy Press, 1986.
38
Sheldon and Eleanor T. Glueck. Unraveling Juvenile Delinquency. New York: The Commonwealth Fund, 1950. John Laub and Robert Sampson continued the follow up
study of this cohort into the members’ 70’s. John Laub and Robert Sampson. Shared Beginnings, Divergent Lives: Delinquent Boys to Age 70. Cambridge, MA: Harvard UP,
2006.
39
Mike E. Ezell and Lawrence E. Cohen. Desisting from Crime: Continuity and Change in Long-Term Crime Patterns of Serious Chronic Offenders. New York: Oxford UP,
2005. 163. This “aging out” of crime is a consistent finding of most research on criminal careers. See, for example, David Greenberg. “Delinquency and the Age Structure of
Society.” Contemporary Crises 1.2 (1977): 189-224; David Farrington. “Age and Crime.” Crime and Justice: An Annual Review of Research. Michael Tonry and Norval Morris,
eds. Chicago: University of Chicago Press, 1986: 189-250.
40
Erica Beechner-Monas and Edgar Garica-Rill. “Genetic Predictions of Future Dangerousness: Is There a Blueprint for Violence?” Law and Contemporary Problems 69
(2006): 301-41; Richard Wollert. “Low Base Rates Limit Expert Certainty When Current Actuarials Are Used to Identify Sexually Violent Predators: An Application of Bayes’
Theorem.” Psychology, Public Policy, and Law 12 (2006): 56-85; Robert A. Prentky et. al. “Sexually Violent Predators in the Courtroom: Science on Trial.” Psychology, Public
Policy, and Law 12 (2006): 357-93.
41
John Monahan. “The Future of Violence Risk Management.” The Future of Imprisonment. Ed. Michael Tonry. New York: Oxford UP, 2004. 237-63.
42
Kathleen Auerhahn. “Selective Incapacitation and the Problem of Prediction.” Criminology 37.4 (1999): 703-34; Jacqueline Cohen. “Incapacitation as a Strategy for Crime
Control: Possibilities and Pitfalls.”Crime and Justice: An Annual Review of Research 5 (1983): 1-84; Jacqueline Cohen and Jose A. Canela-Cacho. “Incarceration and Violent
Crime, 1965-1988.” Understanding and Preventing Violence: Consequence and Control, Vol. 4. Albert J. Reiss and Jeffrey A. Roth, eds. Washington, DC: National Academy
Press, 1994; Rudy A. Haapanen. Selective Incapacitation and the Serious Offender: A Longitudinal Study of Criminal Career Patterns. New York: Springer-Verlag, 1990.

12
 Unlocking America

Table 4: Percent of Arrests Attributed to Released Prisoners

Arrests in 7 States Number Percent

Total Arrests in 1994-97 2,994,868 100

Total Arrests of Prisoners Released in 1994-97 140,543 5

Total Arrests of Released Prisoners for Violent Crimes 36,000 1

Source: Recidivism of Prisoners Released in 1994. US DOJ. Washington, DC: Bureau of Justice Statistics, 2002

Myth #2: Tougher penalties are needed to protect These laws have done little to reduce crime. Few
the public from “dangerous” criminals. convicted persons have the requisite number of previ-
ous felony convictions to qualify for the enhanced sen-
We can’t seriously address our crime problem until tences.45 This is because rates of return to serious crime
repeat offenders learn that they will get no more breaks on the part of those released from prison are not high.
from the criminal justice system. … When incarcerations Just 1.2% of those who served time for homicide and
increase, serious crimes go down. were released in 1994 were rearrested for a new homicide
43
—Andrew Thomas, County Attorney, Maricopa County, Arizona within three years of release, and just 2.5% of released
rapists were arrested for another rape. Sex offenders were
The failure of efforts to develop methods of accu- less likely than non-sex-offenders to be rearrested for
rately identifying the small number of offenders who do any offense.46 Their rates of re-arrest for a new sex offense
commit particularly horrendous crimes after serving their were only 5.3%. A substantial percentage (over 60%) of
sentences fueled demands for longer sentences across released prisoners are eventually rearrested, but mostly
the board.44 The logic of this argument was that if we can’t for drug offenses or violations of parole regulations. Many
single out the truly dangerous, we will assume that any- of those eligible for sentence enhancements under these
one with two or three convictions for a relatively wide “habitual offender” statutes are at an age when they are
range of offenses is a dangerous habitual criminal, and reducing their involvement in crime, or abandoning it al-
keep them all in prison for an extremely long time. On the together.
basis of this reasoning, a number of states adopted man- The U.S. Department of Justice conducted a major
datory sentencing, truth in sentencing and in some states study of criminal involvement of prisoners who had been
“three strikes” laws, all of which extend prison sentences. released in 1994. It found that only 5% of the 3 million ar-

Table 5: Chances of Being Caught

Indicator Number % of Total

Victimizations 25,036,030 100

Reported to Police 9,721,205 39

Arrests 13,699,254 55
Less Drug, Alcohol, and Other Victimless Crimes 4,642,803 19

State and Federal Felony Convictions 983,823 4

Convictions Resulting In Prison or Jail 680,000 3

Source: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Prison Statistics. Online. Available: http://www.ojp.usdoj.gov/bjs/keyfacts.
htm. Accessed: August 1, 2006.

43
Christian Richardson. “Thomas: Probation Out in Major Felony Cases.” East Valley Tribune 29 Nov. 2006.
44
Jonathan Simon. “Reversal of Fortune: The Resurgence of Individual Risk Assessment in Criminal Justice.” Annual Review of Law and Social Science 1 (2005): 397-421;
Bernard E. Harcourt. Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age. Chicago: University of Chicago Press, 2007.
45
Franklin E. Zimring, Gordon Hawkins, and Sam Kamin. Punishment and Democracy: Three Strikes and You’re Out in California. New York: Oxford UP, 2001.
46
A meta-analysis of 61 studies also concluded that sex offenders have low rates of recidivism. See R. Karl Hanson and Monique T. Bussierre. “Predicting Relapse: A Meta-
Analysis of Sexual Offender Recidivism Studies.” Journal of Consulting and Clinical Psychology 66 (1998): 348-62; and R. Karl Hanson et. al. “Sex Offender Recidivism: What
We Know and What We Need to Know.” Annals of the New York Academy of Science, Sexually Coercive Behavior: Understanding and Management. Robert A. Prentky et. al.,
eds. (2003): 154-.

13
 Why and How to Reduce America’s Prison Population

rests made in seven states between 1994 and 1997 were of cial commitments, would not knowingly commit crimes
recently released prisoners (Table 4).47 California’s “three under any circumstances; 2) those who are deterred
strikes” law has had a number of evaluations; almost all when they believe that there is some likelihood they will
found that it failed to reduce crime.48 be caught and punished; and 3) those who are not de-
These studies make clear that, while many people terred. The type of crime most likely to be reported and
who are released from prison end up back behind bars, to result in arrest and conviction tends to be committed
they are but a fraction of the overall crime problem. by those least likely to be deterred—generally young
Lengthening their sentences, as a means of dealing with males excluded from the conventional pathways to suc-
crime will at best have only marginal impact. cess, many of whom already have been severely punished
by the juvenile justice system early in their lives and are
Myth #3: Tougher penalties will deter criminals unlikely to be deterred in the future. The vast majority
of these youth desist from crime after their twenties for
The hope that the presence of brutal prisons will de- reasons unrelated to any penalties the state imposes on
ter law violators is as old as the invention of the prison it- them. Ironically, those who are deterred when punish-
self. Contemporary supporters of longer sentences argue ment is seen as likely—polluters, price fixers, slum lords,
that longer and harsher punishments are necessary to inside traders, stock swindlers, workplace safety violators,
deter crime by making criminals think twice before com- and other “white-collar” criminals—receive relatively le-
mitting another crime. This notion simplifies and distorts nient punishment when caught.
the dynamics of criminal behavior. When most people At the turn of the 19th century reformers realized
commit a crime, they correctly believe that they will not that brutal prisons embitter prisoners rather than reform
be caught. According to NCVS surveys, about 60% of all them. Yet this persistent faith that prisoners can be dis-
crimes are not reported to police. The FBI reports that 4.6 couraged from returning to crime by subjecting them
million arrests were made for property or violent crimes, to harsh penalties, or that the population at large can be
a number representing only 19% of the reported victim- deterred more effectively with severe penalties than with
izations. State and federal courts dealing with serious milder ones, has never had empirical support. Decades of
felony crimes produce about one million convictions—of research on capital punishment have failed to produce
which 68% result in a prison or jail sentence. Therefore, compelling evidence that it prevents homicide more
as illustrated in Table 5, the immediate chances of being effectively than long prison sentences.49 Community
arrested, convicted, and sentenced to jail or prison are penalties, it has been shown, are at least as effective in
quite small. discouraging return to crime as institutional penalties.50
Further, different types of crimes vary markedly in Rigorous prison conditions substantially increase recidi-
their potential for being deterred and people differ in vism.51 Evaluations show that boot camps and “scared
their susceptibility to being deterred by the threat of straight” programs either have no effect on recidivism or
punishment. The population roughly divides into three increase it.52 “Tough” sanctions are popular, but they do
groups: 1) those who, because of personal values and so- not reduce crime.

47
Recidivism of Prisoners Released in 1994. US DOJ. Washington, DC: Bureau of Justice Statistics, 2002.
48
John L. Worrall. “The Effect of Three-Strikes Legislation on Serious Crime in California.” Journal of Criminal Justice 32 (2004): 283-96.
49
Sarah T. Dike. Capital Punishment in the United States. Hackensack, NJ: National Council on Crime and Delinquency, 1982; Richard A. Berk. “New Claims about
Executions and General Deterrence: Deja Vu All Over Again?” Journal of Empirical Legal Studies 27 (1998): 209-19.
50
Joan Petersilia and Susan Turner. Prison versus Probation in California: Implications for Crime and Offender Recidivism. Santa Monica, CA: RAND, 1986.
51
M. Keith Chen and Jesse M. Shapiro. 4 Dec. 2006. “Does Prison Harden Inmates? A Discontinuity-Based Approach.” Cowles Foundation, Harvard University http://home.
uchicago.edu/c~jmshapir/prison120406.pdf/
52
Doris Layton MacKenzie and James O. Finckenauer. Scared Straight: Delinquency and the Panacea Phenomenon. Englewood Cliffs, NJ: Prentice Hall, 1982; Doris Layton
MacKenzie. What Works in Corrections; Reducing the Criminal Activities of Offenders and Delinquents. New York: Cambridge UP, 2006; Mark W. Lipsey. “What Do We Learn
from 400 Research Studies on the Effectiveness of Treatment with Juvenile Delinquents?” What Works: Reducing Reoffending. Ed. J. McGuri. New York: Wiley, 1995.

14
 III The Limits of Prison-Based
Rehabilitative and Treatment Programs
There is a growing belief that prison
populations can be reduced simply by
causing crime and recidivism rates to in-
crease. Rather—and it is important to be
expanding rehabilitative and treatment clear about this—prison populations in-
The danger of programs within our prisons. This position creased because laws were passed that
relying on treatment is based largely on new studies showing increased the number of people sent to
and programs to that treatment or rehabilitation services prison and their length of stay.
solve America’s can reduce recidivism and thus reduce Even if treatment programs were ef-
imprisonment crisis is the number of persons being re-admit- fective in reducing recidivism, recidivism
that when recidivism ted to prison after release. Increasingly, is not the primary cause of the explosion
isn’t reduced, completion of rehabilitative or addiction in the prison population, as we have ar-
imprisonment will be treatment programs can and do result in gued above. Evidence suggests, however,
regarded as the only
viable answer to the a reduced period of confinement. that such programs are in fact not par-
crime problem. Our concern is that we delude our- ticularly effective in reducing even the
selves that treatment programs hold the portion of prison overcrowding caused
key to reducing the prison population. by recidivism. The most recent probation
Prison populations did not increase in the and parole success rates and the reasons
1970s because programs disappeared, for not completing probation or parole

Table 6: Probation and Parole Success Rates—1995-2003

OUTCOME MEASURES PROBATION PAROLE

SUCCESSFUL COMPLETIONS

1995 62% 45%

2000 60% 43%

2003 59% 47%

REASON FOR FAILURES

Re-incarcerated 16% 38%

New Conviction and Sentence 5% 11%

Revocation 7% 26%

Other 4% 1%

Absconded 4% 9%

Other 22% 6%

Source: Probation and Parole in the United States, 2003. US DOJ. Washington, DC: Bureau of Justice Statistics, 2004.

15
 Table 7: 1983 and 1994 Prisoner the reduction in recidivism rates generally ranged from
Three Year Follow-Up Recidivism Rates 4% to 10%. These recidivism reduction results are similar
to those found in other major evaluations of “what works”
Recidivism 1983 Prison 1994 Prison (or “doesn’t work”). Notably, many other programs do not
Measure Releases Releases reduce recidivism and may actually increase rates of fail-
ure.55
Re-Arrested 63% 69%
Treatment and rehabilitative programs tend to be
most effective when they are disassociated from gov-
Re-Convicted 47% 47% ernment coercion.56 Someone who doesn’t want to be
rehabilitated is not a promising candidate for being re-
Re-Imprisoned 41% 40-52%* habilitated. Requiring someone to sit through a program
designed to deal with dependence on alcohol or drugs
*52% readmission to prison with California prisoners and 40% without California may lead to resentment and shammed participation. It
prisoners included.
is not likely to bring about the inner transformation that
Sources: Recidivism of Prisoners Released in 1994. US DOJ. Washington, DC: will end involvement in crime. The association of help
Bureau of Justice Statistics, 2002; Recidivism of Prisoners Released in 1983.
US DOJ. Washington, DC: Bureau of Justice Statistics, 1989. with punishment that occurs when courts require treat-
ment is likely to discourage those who could benefit from
supervision have not changed since the U.S. Department programs to seek them out on their own. The presence of
of Justice began reporting them in 1995 (Table 6). The substantial numbers of reluctant participants may under-
same holds true for recidivism rates of prisoners released mine the quality of the programs, reducing their ability to
from prison (Table 7). The Bureau of Justice Statistics help those who want to be helped. Those who adminis-
national recidivism rates of prisoners after release have ter programs are likely to become demoralized if they are
not changed between 1983 and 1994. Figure 4 shows forced to accept “clients” sent to them by a court, rather
recidivism rates for the states of Washington and New than working with those who seek help on their own.
York, which have been recording their three-year return Even under the most optimistic assumptions, the ef-
prison rates as early as 1985. Thus despite a number of re- fect of in-prison rehabilitative programs is to reduce fail-
forms that have been designed to increase the availability ure rates by 10% or so. If all correctional programs were
of program services, recidivism rates have remained un- to achieve this level of success, they would reduce failure
changed.53 rates for about one-third of those confined from about
A growing literature on “what works” in correctional 40% to about 30%. A 10% reduction in return-to-prison
programming has found that many programs have no rate for one third of the population translates to an overall
impact on recidivism rates. A recent “meta-analysis” of system rate reduction in recidivism of 3%. This is not large
treatment programs reviewed 291 evaluations of adult enough to substantially reduce a prison population.
offender treatment programs, both in-prison and in-com- The inability of rehabilitation programs to stem prison
munity, conducted in the United States and other English- expansion can be seen in several major states. The Florida
speaking nations.54 It reports that 42% of the evaluated Department of Corrections reported that it offered a wide
programs, including jail diversion programs, domestic vi- array of treatment, education and vocational programs to
olence programs, faith-based, psychotherapy or behavior over 6,500 prisoners released in 1995 and 1996. For those
therapy for sex offenders, boot camps, electronic moni- who completed the programs, a recidivism rate reduc-
toring, and restorative justice programs had no impact on tion of 6-10% was achieved. But the estimated number
recidivism. of prisoners thus not returning to prison because of in-
Of the 167 effective programs, only one-fourth were volvement in the programs was about 400 or two percent
prison-based treatment programs. Of these programs, of the more than 18,000 persons admitted to prison in

53
See “State of New York Department of Correctional Services” (undated), 2001 Releases: Three Year Post-Release Follow-Up. Albany, New York; and the Washington State
Department of Corrections Web site at: http://www.doc.wa.gov/BudgetAndResearch/ResearchData/Recidivism20.pdf/
54
Steve Aos, Marna Miller, and Elizabeth Drake. Evidence-Based Adult Corrections Programs: What Works and What Does Not. Olympia, WA: Washington State Institute for
Public Policy, 2006. Only 20% of the evaluations used random assignment procedures to create treatment and control groups. The other studies used “matching techniques”
to approximate the attributes of the “treatment” group, which is less rigorous.
55
Donald A. Andrews. “Principles of Effective Correctional Programs.” Compendium 2000 on Effective Correctional Programming. Laurence L. Motiuk and Ralph C. Serin, eds.
Ottawa: Correctional Service Canada, 2001; Larry Sherman et. al. Preventing Crime: What Works, What Doesn’t, What’s Promising. Washington, DC: National Institute of
Justice, 2006.
56
Ojmarrh Mitchell, David B. Wilson, and Doris L. MacKenzie, “The Effectiveness of Incarceration-Based Drug Treatment on Criminal Behavior,” which is a meta-analysis of
in-prison treatment programs for drugs.

16
 Unlocking America

the same year. Indeed, while these

programs operate, both prison ad- Figure 4: Three-Year Recidivism Rates
missions and the prison population
have continued to escalate.57
In California, a recent study
by the state’s Inspector General’s
Office concluded that California’s
$1 billion investment in drug treat-
ment for prisoners since 1989 has
been “a complete waste of money,”
and has failed to reduce recidivism
rates. In fact a study by UCLA found
that the state’s two largest in-prison
programs produced higher recidi-
vism rates for inmates who partici-
pated in the programs as opposed
to those who did not receive treat-
ment.58 Some of the reasons cited
for the lack of impact are improper
program design and operations.
With respect to treatment in much less reducing the size of the prison population.
lieu of incarceration, we agree that large numbers of per- These are unreasonable burdens to place on programs
sons charged with felony crimes should be sentenced to that are, by their very nature, limited.
alternatives to state prison that also provide treatment There is no question that providing meaningful
services and education programs. But numerous stud- work, education, and self-development programs to
ies of prison diversion programs show that these, too, prisoners promotes more human and safer prisons. And
may not reduce prison admissions. Too often, alternative a growing body of research, as noted below, suggests
programs have been reserved for people who would not that prisoners who seriously take advantage of well-ad-
otherwise have been sentenced to prison.59 In some in- ministered rehabilitative services and complete the pro-
stances, diversion programs actually increase prison pop- grams are more likely to succeed in achieving satisfying
ulations. This can occur when people who plead guilty conventional lives after prison than persons who do not
to be eligible for treatment fail to complete the program receive these services. But expanding treatment services
and end up being sent to prison. In many of these cases, has not been shown to be an effective means of reduc-
they would have had their charges dropped if they had ing prison populations. Indeed, relying on treatment and
not pled guilty or been given a county jail sentence or a programs to solve America’s imprisonment crisis carries
shorter prison sentence than the one they received after the risk that, when they fail to reduce recidivism, impris-
failing the treatment program.60 onment will be regarded as the only viable answer to the
Ultimately, the purpose of treatment and rehabilita- crime problem.61 Treatment programs are necessary and
tion—and the criteria for assessing their usefulness and humane, but they are not answers to the crisis of prison
efficacy—should not be a major reduction in recidivism, overpopulation.

57
Analysis of the Impact of Inmate Programs on Recidivism. Tallahassee: Florida Department of Corrections, 2001 http://www.dc.state.fl.us/pub/recidivismprog/index.html/.
58
Matthew L. Cate. “Special Review into In-Prison Substance Abuse Treatment Programs Managed by the California Department of Corrections and Rehabilitation.”
Sacramento: California Bureau of Audits and Investigations, 2007.
59
Larry Sherman et. al., op. cit.
60
Joan Petersilia. “A Decade of Experimenting with Intermediate Sanctions: What Have We Learned?” Corrections Management Quarterly 3.3 (1999): 19-27.
61
In 1973, New York Governor Nelson Rockefeller proposed the infamous Rockefeller drug laws, imposing life sentences for possessing or selling drugs, after concluding that
treatment programs for heroin users were not working. Other states followed suit with similarly long sentences for drug-law violators. These laws are widely seen as failures
because they imprison low-level “mules” or street-level dealers for very long stretches, without capturing major operators or substantially reducing drug use. It is only because
so much faith had been placed in rehabilitation that the publication of Robert Martinson’s conclusion that most treatment programs had not been shown to be effective could
have been construed, 30 years ago, as providing support for prison expansion. Robert Martinson. “What Works? Questions and Answers about Prison Reform.” The Public
Interest 35 (1974): 22-54.

17
Decarceration,
Cost Savings, and Public Safety
The overuse of incarceration, along
with the mistaken justifications that have
supported this policy, have corrupted and
compromised our criminal justice policies
jail or on probation and parole for long
periods of time is not an effective crime
control strategy. One study found that af-
ter imprisonment exceeded a certain tip-
IV
and paralyzed efforts to reform them. The ping point, it became counter-productive.
net result is an expensive system that re- When too many men are removed from a The facts indicate
lies much too heavily on imprisonment, is community, family and social life are de- that placing so many
increasingly ineffective, and diverts large stabilized, leading to higher crime rates.63 people in prison and
sums of taxpayers’ money from more ef- Making matters worse, we have
jail or on probation
and parole for long
fective crime control strategies. Even squandered lean government budgets periods of time is not
some of the leading criminologists who on corrections (responding to the symp- an effective crime
lobbied for putting more people in prison tom) instead of funding programs that control strategy.
are now advocating that we invest some shepherd dislocated young people onto
of the tens of billions we are now spend- conventional paths (responding to the
ing on imprisonment in more productive cause). While we build prisons, we do not
crime-reduction practices. increase funding for academic and techni-
cal education, job training, healthcare, af-
The impact of a $1 million investment fordable housing, or other social services
in ... cash and other incentives to that assist people in getting a foot in the
disadvantaged students to graduate door to a better life.
from high school would result in a
The loss of manufacturing jobs in re-
reduction of 258 crimes per year, and
parent training therapy for families with cent decades has reduced the opportuni-
young “acting out” children 160 crimes ties for non-white, inner-city youth to get
per year, compared to a reduction of their feet in that door.64 Prison expansion,
60 crimes a year through building and by stigmatizing such a large number of
operating prisons.62 black and Latino male youth, has placed
an additional obstacle in their path. It in-
But to make such investments we terferes with family formation, strains ex-
must reduce the system that is draining isting family relationships, and disrupts
our resources. The facts indicate that plac- careers.65 Because employers commonly
ing large numbers of people in prison and discriminate against minorities and also
62
Peter W. Greenwood et. al. Diverting Children from a Life of Crime. Santa Monica, CA: RAND, 1998.
63
Dina R. Rose and Todd R. Clear. “The Problem with ‘Addition by Subtraction’: The Prison-Crime Relationship in Low-Income
Communities.” Invisible Punishment: The Collateral Consequences of Mass Imprisonment; Marc Mauer and Meda Chesney-
Lind, eds. New York: The New Press, 2003. 181-94;Todd R. Clear. Imprisoning Communities: How Mass Incarceration Makes
Disadvantaged Places Worse. New York: Oxford UP, 2007.
64
John M. Hagedorn. People and Folks: Gangs, Crime, and the Underclass in a Rustbelt City. Chicago: Lake View Press, 1988;
Loic Wacquant. “When Ghetto and Prison Meet and Mesh.” Punishment and Society 3.1 (2001): 95-134; Steven Raphael,
op. cit.; Bruce Western, op. cit.; Thomas J. Sugrue, The Origins of the Urban Crisis: Race and Inequality in Postwar Detroit.
Princeton, NJ: Princeton UP, 1996.
65
John Hagan and Ronit Dinovitzer. “Collateral Consequences of Imprisonment for Children, Communities, and Prisoners.”
Crime and Justice: A Review of Research 26 (1999): 121-62; Bruce Western. Punishment and Inequality in America. New York:
Russell Sage, 2006.

18
 Unlocking America

against ex-convicts, our current crime-control strategy that deliver a high quality of life as measured by good
dooms many people who start life with major disadvan- education, strong families, informal social controls, viable
tages. The long-term association of minority status with networks, and opportunities for stable, meaningful, and
crime in the public mind is strengthened when a highly well-paid work.67
disproportionate number of blacks and Latinos are locked While incarceration does not make us safer, decar-
up. ceration, as recommended in this report, would free up
In the long run, these stereotypes reinforce discrimi- the resources necessary to produce neighborhoods that
natory residential and employment patterns. Prospective are good places to live, work, and play, making people
employers, faced with a black male job applicant, are now safe (and feel safe) from common forms of interpersonal
more likely than in the past to suspect that the applicant violence and theft. It lies beyond the scope of this docu-
has a criminal record, and decline to offer a job.66 High ment to specify a program for doing this. There are, how-
rates of imprisonment may thus reduce legitimate stakes ever, steps that government, business, and community
in conformity and eliminate lawful alternatives to crime, organizations can take in preventing communities from
not just for those who are sent to prison but also for those deteriorating and in helping them improve when they
who are not. are in trouble. The criminal justice system has a role to
Careful analysis of variations in states’ crime and in- play in this process. Businesses will be reluctant to invest
carceration rates reveals a consistent relationship: states in communities where they will be at high risk for vio-
with the lowest crime rates also have the lowest incar- lence and theft. Neighbors will be reluctant to participate
ceration rates, and this is not primarily a result of incar- in and take responsibility for community affairs when
ceration reducing crime. Put differently, if incarceration the streets are unsafe. At the same time, it must be rec-
were the key to a safer society, cities and states with ognized that criminal justice agencies cannot do the job
exceptionally high incarceration rates (e.g., Baltimore, alone. We focus here on criminal justice, but insist that
Washington, D.C., Louisiana, Texas, and Oklahoma) would the contribution it makes must be informed by key facts
be the safest—not the most dangerous—places to live. we have spelled out above if the result is to be progres-
What makes a place safe are social and economic factors sive, humane, and effective.
66
John R. Lott Jr. “The Effect of Conviction on the Legitimate Income of Criminals,” Economic Letters 34 (1990): 381-85; Devah Pager. “The Mark of a Criminal Record.”
American Journal of Sociology 108 (2003): 937-75 and “Double Jeopardy: Race, Crime, and Getting a Job,” Wisconsin Law Review (2005): 617-60; Robert J. Sampson and
John H. Laub. Crime in the Making: Pathways and Turning Points Throughout Life. Cambridge, MA: Harvard UP, 1993; Joel Waldfogel. “The Effect of Criminal Conviction on
Income and the Trust Reposed in the Workmen.” Journal of Human Resources 29 (1994): 62-81 and “Does Conviction Have Permanent Effect on Income and Employment?”
International Review of Law and Economics 18 (1998): 25-40; Jeffrey Grogger. “The Effect of Arrests on the Employment and Earnings of Young Men.” The Quarterly Journal
of Economics 11 (1995): 51-71; Marc Mauer. Race to Incarcerate. New York: New Press, 1999; Richard B. Freeman and Jeffrey Fagan. “Crime and Work.” Crime and Justice:
A Review of Research 265 (1999): 225-90; Marc Mauer and Meda Chesney-Lind, eds. Invisible Punishment: The Collateral Consequences of Mass Imprisonment. New York:
New Press, 2002; Michael Tonry. Malign Neglect. New York: Oxford UP, 1995; Bruce Western. Punishment and Inequality in America. New York: Russell Sage, 2006.
67
Arnold S. Linksy and Murray A. Straus. Social Stress in the United States: Links to Regional Patterns in Crime and Illness. Dover, MA: Auburn House, 1986.

19
Recommendations
Our Orienting Idea: Punishment Should Fit the Crime.
We have argued that using imprison-
ment to reduce crime by deterring, incapaci-
tating, or rehabilitating is of limited value,
and is now yielding diminishing returns.
punishment to what is deserved is unjust. It
alienates citizens from the government and
undercuts the effectiveness of law enforce-
ment. When those who are punished are
V
What then should imprisonment be used disproportionately poor and members of
for? The size of the literature addressing minority groups, it is inevitable that they will Our resources
this subject is not matched by its success in believe that the law is being used to repress are misspent, our
forging a consensus on the matter, and we them, rather than holding them accountable punishments too
do not intend to settle all debates here. That for their crimes. severe, our sentences
said, we think it useful to be clear about our Public opinion polls have consistently too long.
own guiding thoughts. shown that substantial numbers of people —Justice Anthony M. Kennedy68
Imprisonment can legitimately satisfy think that the courts are too lenient. These
a social and personal need for retribution to- sentiments cannot be taken at face value,
ward those who violate society’s laws. Most and should not be allowed to dictate sen-
contemporary philosophies of punishment tencing policy unthinkingly. For example, the
give a large role to retribution. vast majority of crimes are neither as serious
In addition to satisfying victims’ needs, as the public believes them to be nor as hei-
punishing lawbreakers according to what nous as the media portrays them. As shown
they deserve can perform important social in Table 8, very few (about 15%) of the crimes
functions. Punishment can promote social for which people are arrested are either vio-
solidarity, while failure to respond to crime lent or serious property crimes. Yet many of
weakens commitment to social norms. At these arrests are resulting in prison terms.
the same time, excessive punishment can We have already noted that the costs of
exacerbate social tensions and widens divi- these crimes to the public are only a fraction
sions, reducing solidarity. It can corrode a of the costs of punishing those who are ar-
nation’s political culture, and obstruct efforts rested and convicted. The volume of serious
to deal constructively with social problems, crime attributed to released prisoners is also
including crime. much lower than is commonly believed.
Retribution should not be used as an In addition, many people do not fully
excuse for mindless punitiveness as is the appreciate how harsh and disruptive any
case now. The essence of the retribution is to form of imprisonment is because they have
punish people proportionately to what they never experienced the total loss of agency
deserve, based on the crime they have com- and privacy that imprisonment entails. Most
mitted. Excessive leniency and undeserved prisoners experience monotonous routines,
harshness both violate the principle of pro- medical neglect, physical danger, extreme
portionality. Failure to limit the severity of isolation, and a myriad of deprivations—all

68
Justice Anthony M. Kennedy. “Speech at the American Bar Association, Annual Meeting: An Address by Anthony M. Kennedy,
Associate Justice, Supreme Court of the United States.” American Bar Association. San Francisco, CA. 9 Aug. 2003.

20
 Unlocking America

of which worsen the trauma of imprisonment.

Table 8: Arrests by Type of Crime, 2005
When people are presented a fuller picture of the facts
of particular crime and the criminals’ characteristics, they Crime Type Number Percent
generally favor more moderate sanctions. Recent studies
show that “when nonviolent offenders are involved, there Total Arrests 14,094,186 100%
is substantial support for intermediate sanctions and for re-
Total Serious Violent 603,503 4%
storative justice.”
We also note that problems can potentially arise when Murder and non-negligent
14,062 0%
manslaughter
prosecutors, defense counsel and judges want to modify a
Forcible rape 25,528 0%
sentence by taking into account other factors that are more
related to the goals of deterrence, incapacitation and re- Robbery 114,616 1%
habilitation. For example, should we allow different prison Aggravated assault 449,297 3%
sentences for two people who have committed the same Total Serious Property 1,609,327 11%
crime but have different prior records or have been assessed Burglary 298,835 2%
to present a lower risk to public safety (male versus female,
Larceny theft 1,146,696 8%
older versus younger, drug addiction versus none)? Similarly,
one could argue that someone who has committed only a Motor vehicle theft 147,459 1%
very minor crime but has been assessed as a “high risk” to Arson 16,337 0%
commit a serious crime if released and hence in need of be- Drug abuse violations 1,846,351 13%
ing deterred, incapacitated or rehabilitated should be incar-
Alcohol/Liquor 2,525,924 18%
cerated as opposed to someone convicted of a more serious
crime but poses no such threat to public safety. Driving under the influence 1,371,919 10%
The prestigious American Law Institute’s recently issued Liquor laws 597,838 4%
Model Penal Code endorses a concept of “limited retribution”, Drunkenness 556,167 4%
which allows for the introduction of rehabilitative, deterrence
All Other Crimes 10,035,005 53%
and incapacitation factors which can influence sentences
within minimum and maximum limits based on retributive Other assaults 1,301,392 9%
considerations. This position has the merit of limiting the ex- Forgery and counterfeiting 118,455 1%
tent to which sentence lengths can be extended far beyond
Fraud 321,521 2%
what a defendant deserves. Prosecutors and judges current-
ly take such considerations into account as they negotiate Embezzlement 18,970 0%
pleas and set sentences. Stolen property; buying,
133,856 1%
Nevertheless we are concerned about the potential receiving, possessing
for injustice and discrimination associated with this practice. Vandalism 279,562 2%
When decisions made as to whether someone should be im- Weapons 193,469 1%
prisoned or for how long on the basis of what crimes one Prostitution 84,891 1%
might commit if released, or on the basis of a person’s needs
for rehabilitation, they will often be incorrect. Subjecting Non-rape sex offenses 91,625 1%
people who will not commit serious new crimes to prison Gambling 11,180 0%
sentences (or to longer sentences) simply on the basis of
Offenses against the family 129,128 1%
predictions that are false is simply unfair.
We are also concerned determinations of dangerous- Disorderly conduct 678,231 5%
ness or in need of treatment are likely to be skewed by ra- Vagrancy 33,227 0%
cial and class biases. Racial stereotypes sometimes operate
All other offenses 3,863,785 27%
unconsciously and can influence perceptions of dangerous-
ness even on the part of decision-makers who harbor no Suspicion 3,764 0%
conscious prejudices. Curfew/loitering 140,835 1%
Minority offenders’ personal circumstances may make
them appear to some judges as unlikely prospects for re- Runaways 108,954 1%
habilitation. Those who can pay for private drug or mental Source: UCR 2005, Federal Bureau of Investigation.

health treatment, provide restitution in large amounts to vic- *Percentages do not add up to 100% due to rounding.

21
 Why and How to Reduce America’s Prison Population

Table 9: Three Year Follow-Up

Rate of Re-Arrest of State Prisoners
Released in 1994, By Time Served in Prison

Time Served Three Year Re-Arrest Rates

6 Months or Less 66.0%
7-12 months 64.8%
13-18 months 64.2%
19-24 months 65.4%
25-30 months 68.3%
31-36 months 62.6%
37-60 months 63.2%
61 months or more 54.0%
Source: Prison Statistics. US DOJ. 1 Aug. 2006 http://www.ojp.usdoj.gov/bjs/prisons.htm/

tims and communities, or attend educational and vocational ing can thus be achieved by considering the criminal’s per-
programs often unavailable to the poor are likely to receive sonal circumstances, the circumstances of the crime itself
milder punishments than others who have committed ex- (e.g. was it spontaneous or premeditated?) and criminal re-
actly the same crimes. cord to influence the sentence.
This is especially so in the current political context, The implementation of these very general principles
which increasingly relies on the private sector to provide is a matter that deserves careful attention by state legisla-
correctional services. This means that middle-class criminals tors. It lies beyond the scope of this report to specify the details
with drug or mental health problems get help because they of such a sentencing scheme. Nevertheless, we insist that the
can pay for it—and stay out of prison—while poor people presumption against imprisonment should hold firm in all
who cannot do so go to jail. By reducing the magnitudes cases.
of sentences and restricting them within narrow limits, Given the excessive lengths of sentences now being
such disparities are likely to be reduced. But we remain con- imposed on many defendants, a reconsideration of sentenc-
cerned that poor and non-white people might be likely to ing structures should begin with the premise that sentence
receive harsher punishments within these limits. lengths should be reduced substantially. Furthermore, inno-
For all of these reasons we oppose the practice of vative methods of serving in-community sentences should
imposing prison sentences “so that the defendant can be be explored. Especially promising are programs of victim-
rehabilitated,” or “to protect society” from “a dangerous” offender restoration and community reparation such as are
person. On the other hand, retributivism does not require already operating in Europe, Australia and New Zealand.
that everyone who violates a given statute receive exactly
the same sentence. In determining the appropriate punish-
ment in a particular case, some characteristics of the person
FOUR RECOMMENDATIONS THAT WILL REDUCE
PRISON POPULATION
and the crime committed can legitimately be considered.
To reduce the prison population, we propose four rec-
All violations of a particular criminal statute are not alike. ommendations. If implemented, they would dramatically
A sentencing system should be “flexible enough to permit reduce current prison, parole, probation, and jail popula-
individualized sentences when warranted by mitigating or tions. All of these recommendations have been successfully
aggravating factors not taken into account in the establish- implemented in some fashion in several jurisdictions with
ment of general sentencing practices.” no adverse impact on crime rates.69 By lowering the prison
At the same time it should not be so unstructured as to population, the associated costs—tens of billions of dollars
create “unwarranted sentencing disparities among defen- now spent in an ineffective war on crime—could either be
dants with similar records who have been found guilty of returned to tax payers or reinvested by the public and pri-
similar criminal conduct.” Flexibility and equity in sentenc- vate sectors in those social, family, community, and economic

69
Reducing prison populations by shortening sentences and ceasing returning parole violators to prison could only occur over a span of several years and, therefore, there
would be little or no impact on crime rates due to influx of released prisoners. In several instances, prison populations have been reduced in a short period of time and there
was no resultant increase in crime rates. Similarly, decriminalization of drug crimes, even heroin and cocaine possession and use, has occurred with no increase in drug use
or other crimes.

22
 Unlocking America

institutions that have more direct influence on crime rates. While these behaviors are troublesome, they do not
reach the level of seriousness of requiring incarceration for
RECOMMENDATION 1: Reduce time served in prison. many months or years in state or federal prison. In many
ways using the most severe form of punishment for behavior
The fundamental and most powerful reform that must that only a probationer or parolee can be imprisoned for is
occur if we are to have any hope of reversing the imprison- a clear example of where the punishment does not fit the
ment binge is to reduce the severity of the sentences they crime. For those that suggest that by incarcerating people
are given. For many prisoners now sent to prison, this would for non-felony crimes or non-compliance with the terms of
mean probation or a short jail sentence; for others, it would probation or parole we are preventing more serious crimes
mean less time spent in prison, as well as less time on parole. to occur, there is no scientific data to support such a claim. In
An in-depth examination of sentence lengths and time con- fact as shown in recommendation No. 3, the evidence is that
served is called for, it might begin with the presumption that parole supervision is either ineffective or criminogenic with
terms be cut back to what they were circa 1975 when the respect to public safety.
imprisonment binge began. Parolees who are returned to prison because of techni-
This central recommendation is grounded in three facts: cal violations often serve relatively long prison terms. The
1) many prisoners are now serving longer prison terms; 2) the U.S. Department of Justice reports that parole violators re-
longer prison terms are not proportionate to the severity of turned to prison serve an average of 18 months before being
the crimes they were convicted of; and 3) the extension of re-released. In Louisiana, the state with the highest incar-
their length of incarceration has no major impact on their re- ceration rate in the United States, the average length of stay
cidivism rate, or crime rates in general. As shown in Table 9 for a technical violator is 20 months. Conversely, the state
there is no association between length of stay and recidivism of Washington, by statute, does not allow technical violators
rates. Coupled with the previous research finding that re- to spend more than 60 days incarcerated for such violations
leased prisoners account for a small percentage of all arrests, and then only after a set number of violations.
one has to question the benefits of increasing the length of These data clearly suggest that we are spending a great
time served. deal of money and wasting a large amount of prison space
on people who fail to comply with parole and probation su-
RECOMMENDATION 2: Eliminate the use of prison for pervision rules and who have not committed new crimes.
parole or probation technical violators. Prosecutors and correctional officials erroneously believe
that unless individuals are re-incarcerated for technical viola-
Today anywhere from 50-65% of the 650,000 prisoners tions, the individuals will commit serious crimes in the future.
admitted to state prison are those who have failed to com- There is no scientific evidence to support this belief and at-
plete their terms of probation or parole. Of those who have tendant policy, yet it continues to be the primary rationale
failed probation or parole, about half are being sent to prison for re-incarcerating tens of thousands of people for criminal
for what is known as technical violations. Such violations in- or non-criminal behavior for which ordinary citizens could
clude such behavior as absconding from supervision, failure not be incarcerated.
to pay supervision fees, restitution costs, or fines, failure to
attend treatment, drug use as detected by urine-analysis, RECOMMENDATION 3: Reduce the length of parole
failure to maintain employment, or being arrested (but not and probation supervision periods.
convicted) for misdemeanor or felony level crimes.

Table 10: Re-Incarceration Rates by Type of Release for Selected States

Release Type Kentucky Texas Pennsylvania

Parole Supervision 53% 26% 50%

Discharges 18% 11% 19%

Total 35% 25% 42%

Source: James Austin, Patricia Handyman, and John Irwin. “Exploring the Needs and Risks of the Returning Prisoner Population.” (Presented to the From Prison to Home
Conference, Jan. 30-31, 2002).

23
 Why and How to Reduce America’s Prison Population

Currently, persons placed on probation and parole re- and possession of recreational drugs. According to the U.S.
main in this status for extended periods of time (after three Department of Justice, approximately 30-40% of all current
years or more). Violation of the rigorous rules imposed on prison admissions involve crimes that have no direct or obvi-
probationers and parolees can result in return to prison. As ous victim other than the perpetrator (see Table 11).72 The
we saw in Table 4, a substantial fraction of prison admissions drug category constitutes the largest offense category, with
are for these “technical” violations. 31% of all prison admissions resulting from such crimes.
There is little evidence that lengthy parole and proba- In the late 19th and early 20th centuries, the United States
tion terms decrease crime. A number of studies in California government conducted a large-scale experiment regarding
discovered that 1) there was no relationship between the the social consequences of creating a new category of crimes
time on supervision and parole success, and 2) parole versus by making it illegal to distribute alcohol. Prohibition aimed
no parole supervision on recidivism rates.70 Probation or pa- to stop people from drinking, and to an extent was success-
role supervision failure is most likely to occur within the first ful. But the price of this success was ultimately considered
12 months of supervision; thereafter, supervision is more of too high. Revenues from selling alcohol illegally swelled the
a nuisance than a means for assisting people after prison or coffers of organized crime and magnified levels of corruption
preventing them from committing another crime. in local governments. Gangsters gunned one another down
Now, there is new research evidence indicating that pa- to gain control of the lucrative market for illegal liquor. Many
role supervision is largely ineffective with respect to reduc- died from drinking alcohol put on the market without qual-
ing recidivism. Table 10 shows the recidivism rates by type of ity control. Eventually, Americans realized that Prohibition
release for Kentucky, Texas, and Pennsylvania. Here one can was doing more harm than good and repealed it.
see that people who complete their prison sentences with- Politicians and the public have ignored the lessons
out parole supervision have significantly lower recidivism of Prohibition in formulating drug policy. In an attempt to
rates than those placed on parole supervision. The obvious eliminate harms caused to individuals, their families and so-
explanation is that people who have no parole obligations ciety from the abuse of heroin, cocaine, marijuana, and other
when they leave prison (“max out”) can only be returned to drugs, legislatures have passed laws sending large numbers
prison if they are convicted of a new felony crime. Conversely, of users, abusers and low-level dealers to prison with very
those placed on parole and probation can be re-incarcerated long sentences. This prohibition, like the earlier one, has led
for either non-criminal behavior or misdemeanor crimes. A to violence as dealers have sought to eliminate rivals in the
2005 Urban Institute study, among others, revealed that indi- lucrative market. Like Prohibition, it has resulted in the dis-
viduals released with no parole supervision return to prison tribution of adulterated drugs that have injured and killed
at a significantly lower rate than those released on parole.71 users. The high profits of drug dealing are largely the conse-
quence of legislation that eliminates competition from any-
RECOMMENDATION 4: Decriminalize “victimless” one unwilling to risk draconian penalties.
crimes, particularly those related to drug use and Every time a dealer is taken out of circulation by a prison
abuse. sentence, a new dealer is drawn in by the lure of large profits.
The prosecution and imprisonment of low-level traffickers
In recent years, behaviors have been criminalized that has increased racial disparities, and is the largest factor con-
are not dangerous and pose little if any threat to others. A tributing to the rapid rise in imprisonment rates for women.
large group of people are currently serving time for behav- Dealers’ use of violence to eliminate competition helps to sus-
iors that have been criminalized to protect people from tain the myth linking drug use to violence. Notwithstanding
themselves. Their offenses involved the consent of all im- our extraordinary effort to discourage the use and sale of il-
mediate parties to the transaction. Common examples in legal drugs, they remain widely available and widely used.
American history have included abortion, gambling, illicit Though other Western nations have not decriminal-
sexual conduct that does not involve coercion (e.g., prosti- ized commerce in illegal drugs, they give greater weight to
tution and, until recently, homosexual activity), and the sale medical and public health considerations in the formulation

70
Dorothy R. Jaman, Lawrence A. Bennett, and John E. Berecochea. Early Discharge from Parole: Policy, Practice and Outcome. Sacramento: California Department of
Sacramento Corrections, 1974; Deborah Star. Summary Parole: A Six and Twelve Month Follow-Up Evaluation. Sacramento: California Dept. of Corrections, Research Unit,
1979; Patrick G. Jackson. “Living Together Unmarried: Awareness Contexts and Social Interaction.” Journal of Family Issues (1983), and Patrick G. Jackson. “Bay Area Parole
Project.” Mimeographed, 1978.
71
Amy L. Solomon, Vera Kachnowski, and Avinash Bhati. Does Parole Work? Analyzing the Impact of Post-Prison Supervision on Re-Arrest Outcomes. Washington, DC: The
Urban Institute, 2005.
72
Criminological literature refers to these crimes as “victimless” (Edwin M. Schur. Crime Without Victims: Deviant Behavior and Public Policy. Englewood Cliffs, NJ: Prentice
Hall, 1965), suggesting that they do no harm, which is not always the case. For that reason we call these crimes “consensual.”

24
 Unlocking America

Table 11: Most Serious Offense for Sentenced Prisoners, 2002 Prison Admissions

Most Serious Offense Percent

Number of admissions 508,955

Violent offenses 27%

Property offenses 30%
Drug offenses 31%
Possession 10%
Trafficking 15%
Other/unspecified drug 7%
Public-order offenses 12%
Weapons 3%
Driving while intoxicated 3%
Other public-order 5%
Other offenses 1%
Source: Prison Statistics. US DOJ. 1 Aug. 2006 http://www.ojp.usdoj.gov/bjs/keyfacts.htm/

of drug policy. The violence that surrounds drug trafficking Reducing the size of the prison population is not enough.
in the United States is largely absent in those countries, and We could not in good conscience recommend that anyone
governments are more receptive to needle exchange pro- serve a prison sentence unless we ensure that those who do
grams designed to limit the spread of AIDS.73 end up behind walls are treated in a humane manner. Prisons
This does not mean that the government should sim- that systematically deny human dignity, basic human rights,
ply walk away from the drug problem. It would be perfectly and life necessities are creating festering sores that poison
appropriate for governments to conduct educational cam- the entire society.
paigns about drugs, for example. Regulatory approaches, Unsafe, inhumane, and secretive prisons not only trau-
such as are now used for drugs that are not illegal should be matize the incarcerated but also contaminate prison staff
given serious consideration. The success of recent referenda and their families, as well as townsfolk near the prison. More
in several states allowing medical use of marijuana suggests generally, support for an inhumane prison system requires
that the public opinion may be changing.74 that prison workers and the public embrace the simplistic
concept that prisoners are unworthy beings that deserve
TWO ADDITIONAL RECOMMENDATIONS THAT BEAR their harsh punishment above and beyond the segregation
ON HUMANE JUSTICE from society and loss of freedom from incarceration itself.
In addition to the four recommendations to reduce the The state can operate prisons efficiently and effective-
prison population, there are two other recommendations ly while treating prisoners in a manner consistent with the
that need to be made that bear on the quality and fairness of minimum standards and rights for prisoners formulated by
our use of imprisonment. many private and public bodies in the 1960s and 1970s.75 In
the 1960s, the courts, particularly the U.S. Supreme Court, af-
RECOMMENDATION 5: Improve conditions of ter virtually ignoring the plight of prisoners for decades, is-
imprisonment. sued a number of decisions upholding prisoners’ rights and

73
Peter Reuter. “Why Can’t We Make Prohibition Work Better? Some Consequences of Ignoring the Unattractive.” Perspectives on Crime and Justice: 1996-1997 Lecture
Series, Vol. 1. Washington, DC: National Institute of Justice, 1997 http://www.ncjrs.gov/pdffiles/166609.pdf/
74
Between 1995 and the present, a majority of voters in state initiatives held in Alaska, Arizona, Colorado, Maine, Nevada, Oregon, the state of Washington, and Washington
D.C., voted to allow marijuana use in connection with medical treatment. In state and national polls, substantial majorities support legalizing marijuana for medical use. Details
are available at www.medicalmarijuanaprocon.org.
75
In 1955, the United Nations Congress on the Prevention of Crime and the Treatment of Prisoners adopted a set of Standard Minimum Rules for the Treatment of Prisoners.
See: Human Rights: A Compilation of International Instruments. New York: United Nations, 2002. Section G. In The Struggle for Justice: A Report on Crime and Punishment in
America. American Friends Service Committee. New York: Hill and Wang, 1971. 168-69, the Working Party for the American Friends Service Committee, which consisted of
individuals with a variety of prison-system experiences, produced one of the best-thought-out lists of humane conditions.

25
 Why and How to Reduce America’s Prison Population

due process, and banning cruel and unusual punishment. of whether they reduce recidivism.
These decisions produced an array of mandated changes in
prisons across the country. However, after the mid-1970s, 5. Post-Release Assistance
the Supreme Court effectively returned to the “hands-off” Most prisoners receive little or no preparation for
policy.76 release from prison or assistance subsequent to their re-
There are five fundamental features of prison adminis- lease. They face extraordinary difficulties in achieving sta-
tration that should be acceptable to anyone interested in ac- bility, viability, and life fulfillment on the outside. States
complishing the prison’s practicable purposes—punishment should develop and provide access to transitional and
and deterrence—without engaging in unnecessary, counter- permanent housing, education, vocational training and
productive, and cruel practices. placement, counseling, coaching, and mentoring.

1. Cruel and Unusual Punishment RECOMMENDATION 6: Restore ex-prisoner voting

Prison overcrowding, the adoption of excessively and other rights.
harsh and arbitrary control practices in reaction to prison
violence, and the growing general punitive attitude to- Prisoners face exceptional problems from their stigma-
ward prisoners have resulted in more punitive policies tized and reduced social and civil status. They are automati-
and practices. These include denial of adequate medi- cally barred from most city, county, and state employment
cal services, excessive use of physical force, and housing and from some housing such as federally subsidized housing
prisoners in exceptionally punitive arrangements, such as and are systematically denied employment by many private
solitary confinement units and cells. The federal courts employers. Their right to vote varies from state to state, even
have ruled that all of these practices violate the Eighth from county to county in some states.
Amendment of the United States Constitution. It will be difficult to overcome private employers’ restric-
2. Safety tions on hiring ex-prisoners, but persistent efforts should be
Prisoners should be protected from assault, rape, made toward this goal. Perhaps laws against discrimination
murder, etc., by other prisoners and staff. Effective strat- against employment of ex-prisoners can be adopted in the
egies such as adequate surveillance, voluntary access to future. Government agencies, however, could easily change
safe living areas within the prison, housing prisoners in their policies. In San Francisco, the city government has re-
small units, and “single-celling” should be practiced to en- moved the question regarding prior arrests on job applica-
sure prisoners’ safety. tions. Other government jurisdictions should follow this ex-
ample. Opening up these relatively good-paying jobs to ex-
3. Health prisoners greatly increases public safety by moving potential
Prisoners should have access to the resources and criminals into conventional pathways. Government subsidies
services required to maintain their physical and mental for hiring ex-convicts could overcome some employers’ hesi-
health. These include access to medical and psychiatric tations. In addition, exclusion from welfare, public housing,
services, adequate diet, and recreation. Prisoners should and subsidies should be ended as should rules barring ex-
not be subjected to physically and mentally deleterious convicts from living in certain neighborhoods. Licensing re-
incarceration regimens such as extended periods of isola- strictions should be maintained only when they are demon-
tion and, restricted mobility, and excessive noise. strably necessary to protect the public.
4. Programs
Any rational and humane system of punishment ESTIMATED IMPACT OF THESE RECOMMENDATIONS
should provide access to program opportunities that in- ON PRISON POPULATIONS
crease prison safety and improve prisoners’ chances of To illustrate what our recommendations can accom-
making it in the community after prison. Such programs plish in reducing prison populations without impacting
would include academic, technical and citizenship edu- crime rates and at considerable savings to taxpayers, we have
cation, as well as a wide variety of treatment programs developed rough projections based on three of the four ma-
that help prisoners improve themselves and develop jor recommendations for changing current sentencing and
more conventional, law-abiding interests and pursuits. correctional practices.:77
These types of programs should be provided regardless

76
See: Jack E. Call. “The Supreme Court and Prisoners’ Rights.” Federal Probation (1995): 36-46, for a discussion of the Court’s shift in prisoners’ rights matters.
77
We are unable to estimate the effect of reducing the length of parole and probation supervision.

26
 Unlocking America

Figure 5: Historical & Projected US Prision Population

1. Time served in prison would be reduced. 1. Time served in prison would be reduced.
2. Technical parole and probation violators would not Of the three recommendations, this one is clearly the
serve time in prison for such behavior. most important and most powerful in terms of reducing the
3. People convicted of “victimless” crimes would not be prison population. It also is the most acceptable to most poli-
sentenced to state prison. ticians and the public as it does not eliminate incarceration
We discuss below the implementation of these three but make the amount of time served proportional to the se-
policy reforms briefly.
Table 12: Current and Projected State Prison Systems Based on Recommendations
Current Practices New Practices
Time Served Time Served
Prison Admissions Admits Prisoners Admits Prisoners
(mos.) (mos.)
Total 650,000 27 1,446,250 422,500 19 666,250
New Court Admissions 390,000 30 975,000 292,500 21 511,875
Probation Technical Violators 65,000 30 162,500 32,500 21 56,875
Parole Violators 195,000 19 308,750 97,500 12 97,500
Parole Technical Violators 97,500 19 154,375 0 0 0

Incarceration Rate 483 per 100,000 222 per 100,0000

27
 Why and How to Reduce America’s Prison Population

The length of imprisonment can be modestly reduced supervision fees, maintaining employment, attending treat-
(3-5 months) by immediately increasing the amount of good ment, or many other non-criminal acts.
time awarded to prisoners for good conduct and program
completion. Within states with indeterminate sentencing, Collectively, these three reforms, if imple-
parole grant rates can be immediately increased especially mented, would drop the prison population by over
for prisoners who pose little risk to public safety. But ulti- 50% and produce an incarceration rate of 222 per
mately, legislation will be needed to remove many of the re- 100,000 people, which is what it was in 1986 and
strictions that have served to increase the period of confine- which is still well above the rates that existed for
ment (e.g., mandatory minimums, truth in sentencing, etc.). some 50 years before that. The prison population
would decline from 1.5 million to below 700,000 (see
Such reforms should be retroactive to the current prison
Table 12, and Figure 5). Persons convicted of seri-
population.
ous and violent crimes would continue to be incar-
cerated. But large numbers of probation and parole
2. Technical parole and probation violators would
violators and others now convicted of victimless
not serve time in prison for such behavior.
crimes would be diverted from state prison. All of
The imprisonment of technical parole violators is a
these reforms require no program funding—indeed
clear example where the punishment does not fit the crime. the adoption of such reforms would more than pay
Further, we also know that recidivism rates are lowest for for whatever prison and post-release programs that
persons who discharge from prison rather than facing a would be of benefit to released prisoners. All of this
lengthy period of parole supervision. can be done without negatively impacting the crime
This reform can be implemented administratively by rate.
not allowing revocations for such behavior. A number of
states have administratively implemented such reforms To those who say that these three basic recommen-
including Michigan, Oregon, South Dakota, and Texas. As dations are neither feasible nor practical we would sim-
noted earlier, the state of Washington passed legislation ply note that these practices and laws are now in place
more than 20 years ago that prohibits state imprisonment in many states and other countries. There are nine
for technical parole violators with no adverse impact on the states with incarceration rates that are near or well be-
state’s crime rate. For those who are readmitted for a parole low the 222 per 100,000 population rate. The state of
violation, the period of re-confinement would be far shorter Washington, by statute, does not allow parole violators
than what it has been (no more than 90 days). This is con- to be sent to prison. Louisiana recently passed legisla-
sistent with recent legislation in Louisiana, which limits the tion that greatly restricts first time technical violators
to be re-admitted to prison. Nevada recently passed
period of confinement for first time violators to 90 days and
legislation that reduced the period of parole supervi-
in Washington where violators can serve no more than 60
sion, which has increased the parole success rate and
days in a local jail. Similar to parole violators, few persons reduced the size and costs of the parole population.
should be sent to state or federal prison for anything that In the area of decriminalization, 12 states (Alaska,
does not constitute a conviction for a felony crime or for California, Colorado, Maine, Minnesota, Mississippi,
non-criminal behavior. Nebraska, Nevada, New York, North Carolina, Ohio, and
Oregon) and several European countries along with
3. People convicted of “victimless” crimes would New Zealand and Australia have largely decriminalized
not be sentenced to prison. or reduced the penalties for drug possession.78 A num-
Large numbers of persons arrested and convicted of ber of local cities have also modified their local ordi-
drug possession, disorderly conduct, public intoxication, nances and criminal justice practices to decriminalize
drunk driving, prostitution, curfew violation, vagrancy, loi- pot (Berkeley, Oakland, and San Francisco, California;
tering, gambling, and a wide variety of motor vehicle viola- Breckenridge, Colorado; Amherst, Massachusetts;
tions are being incarcerated in our jails and are being placed Madison and Milwaukee, Wisconsin; Urbana and
on years of probation. Once placed on probation, they are Carbondale, Illinois; and Colombia, Missouri). In all of
vulnerable to being sent to prison as probation violators these jurisdictions there has been no associated in-
for continuing such behavior, failing to pay their probation crease in crimes rates.

78
Robert J. MacCoun and Peter Reuter. Drug War Heresies: Learning from Other Vices, Times, and Places. New York: Cambridge UP, 2001.

28
 VI
Concluding Remarks
Reducing the number and length In order to reverse the current trends we
of prison terms will require changes in will have to find a way to re-allocate the
sentencing laws and parole and pro- money, political influence, and jobs that
bation practices. This will not occur the current system provides. This will
until the public passes referenda and not be easy and it will take many years to
successfully pressures legislators and ex- wean us off the excessive use of impris-
ecutives, or enlightened political leaders onment.
better understand the realities and move Our first goal was to document the
on their own to make necessary changes. negative and ineffective consequences of
There are a variety of methods and strat- mass incarceration in human, economic,
egies to achieve this goal. No particular and public safety terms. Our second was
political structure can guarantee or pre- to offer one basic and simple recommen-
vent the progress that is now needed. dation that by itself would have a signifi-
Sentencing commissions, for example, cant reduction in the prison population
have been excellent devices for control- -- shorter periods of imprisonment that
ling over-incarceration in some states are proportional to the harm inflicted
(Oregon, Minnesota), while in other juris- upon society and individuals. We hope
dictions, such as the federal, sentencing this report will stimulate a serious debate
systems have been specifically designed on the use of imprisonment and lead to a
to incapacitate as many people as possi- new policy of decarceration. If this would
ble, rather than focusing on what offend- occur, we could re-invest some por-
ers deserve. tion of the tens of billions of dollars we
We also recognize that as the system spend each year incarcerating millions of
of imprisonment has grown, so too has Americans into those communities and
the investment and the vested interests families that are now being unfairly dev-
that support its operations and growth. astated by imprisonment.

29
30
 About the Authors

JAMES AUSTIN is the President of the JFA Institute. Prior to that, he was the Director
of the Institute of Crime, Justice and Corrections at the George Washington University, and
Executive Vice President for the National Council on Crime and Delinquency. Dr. Austin received
his Ph.D. in sociology from the University of California, Davis. He began his career in corrections
with the Illinois Department of Corrections in 1970 at Statesville Penitentiary. He was named by
the American Correctional Association as its recipient of the Peter P. Lejins Research Award, and
received the Western Society of Criminology Paul Tappin award for outstanding contributions in
the field of criminology. He also has served as the Chair of the National Policy Council for the
American Society of Criminology. In 2007 he was appointed to the California Department of
Corrections and Rehabilitation Expert Panel on Adult Offender Recidivism Reduction Programs.
He is the co-author of Its About Time: America’s Imprisonment Binge (with John Irwin).

TODD CLEAR is Distinguished Professor, John Jay College of Criminal Justice, City
University of New York. He received a Ph.D. in Criminal Justice from The University at Albany.
Clear has also held professorships at Ball State University, Rutgers University, and Florida State
University (where he was also Associate Dean of the School of Criminology and Criminal Justice).
This year he was elected president of The American Society of Criminology. His work has been
recognized through several awards, including those of the American Society of Criminology, the
Academy of Criminal Justice Sciences, The Rockefeller School of Public Policy, the American
Probation and Parole Association, the American Correctional Association, and the International
Community Corrections Association. Dr. Clear is author of Imprisoning Communities: How
Mass Incarceration Makes Disadvantaged Communities Worse (Oxford University
Press, 2007)

TROY DUSTER is Silver Professor of Sociology and Director of the Institute for the History
of the Production of Knowledge at New York University. Professor Duster received his Ph.D. in
sociology from Northwestern University. He also holds an appointment as Chancellor’s Professor
at the University of California, Berkeley. He is the past-president of the American Sociological
Association and a member of the Board of Advisors of the Social Science Research Council. He
is the former Director of the Institute for the Study of Social Change, both at the University of
California, Berkeley.

DAVID F. GREENBERG is Professor of Sociology at New York University. He received

his Ph.D. in physics from the University of Chicago. He is the author, co-author or editor of
The University of Chicago Graduate Problems in Physics, with Solutions,
Mathematical Criminology, Crime and Capitalism, Linear Panel Analysis: Models
of Quantitative Change, The Construction of Homosexuality, and “Criminal”
Careers, as well as dozens of journal articles. His research focuses on crime and criminal
justice, law, deviance and social control, human sexuality, statistical methods and mathematical
modeling, computational linguistics and Assyriology. He (along with John Irwin) was a contributing
author to the American Friends Service Committee’s influential report Struggle for Justice: A

31
Report on Crime and Punishment in America. Professor Greenberg is a Fellow of the American Society of Criminology.

JOHN IRWIN is Professor Emeritus at San Francisco State University where he taught sociology for nearly three decades.
After serving a five sentence for armed robbery in California’s prison system, he received his Ph.D. in sociology from the University of
California, Berkeley. His considerable research on prisons and sentencing has been published in five books: The Felon, Prisons
in Turmoil, The Jail, It’s About Time: America’s Imprisonment Binge (with James Austin), and The Warehouse
Prison. He (along with David Greenberg) was a contributing author to the American Friends Service Committee’s influential report
Struggle for Justice: A Report on Crime and Punishment in America. As an organizer and leader of the Prisoners’ Union
in California, he worked closely with the California legislature on the Uniform Sentencing Act passed in 1976. He received the August
Volmer award from the American Society of Criminology for outstanding contributions to criminal justice.

CANDACE MCCOY holds an appointment at the Graduate Center of the City University of New York and teaches in the
doctoral program of the John Jay College of Criminal Justice. Dr. McCoy received a J.D. from the University of Cincinnati and a
Ph.D. in Jurisprudence and Social Policy from the University of California and is a member of the Ohio bar. She specializes in the
study of criminal justice policies, researching and teaching on such topics as sentencing, plea bargaining, jury decision-making, and
police practices. Her most recent publication on these matters is “Plea Bargaining as Coercion: The Trial Penalty and Plea Bargaining
Reform,” The Criminal Law Quarterly, Vol. 50, No. 1 (2005). Professor McCoy has conducted many evaluations of innovative
programs and has consulted widely with federal and state criminal justice agencies most recently as Chair of New Jersey’s Criminal
Disposition Commission, and is currently working with the Scottish Centre for Crime and Justice Research to develop restorative justice
practices as conditions of probation. She has received the American Society of Criminology’s Herbert Block Award for distinguished
service to the profession.

ALAN MOBLEY is an assistant professor in the School of Public Affairs at San Diego State University. He received his Ph.D.
in Criminology, Law & Society from the University of California, Irvine. While a prisoner in the Federal Bureau of Prisons he earned
Master’s (Sociology, Vermont College, 1994) and Bachelor’s (Economics, SUNY, 1991) degrees. Dr. Mobley is a founding member of
All Of Us Or None, an organizing initiative to guarantee civil rights for former prisoners. He sits on the editorial board of The Journal of
Prisoners on Prisons, and is a board member and Past-President of Visions for Prisons, a nonprofit agency offering support services
to prisoners and prison staff. His current action-research focuses on community and restorative justice, peacemaking and multi-
stakeholder dialog, and community based service-learning. He directs several grant funded projects in these areas.

BARBARA OWEN is a nationally-known expert in the areas of girls, women and crime, women-centered policy and women’s
prison culture. A Professor of Criminology at California State University, Fresno, she received her Ph.D. in sociology from the
University of California, Berkeley in 1984. Barbara Owen has written extensively on issues confronting women enmeshed in the
criminal justice system. She is the author of In the Mix, an ethnography on women’s prison culture and co-author of Gender-
responsive Strategies: Research, Practice and Guiding Principles for Women Offenders, which received the
University of Cincinnati award for contributions to correctional practice. She regularly consults for state and federal correctional
agencies on such gender related issues. Her work was most recently honored with the Saltzman Award by the Division of Women and
Crime, American Society of Criminology.

JOSHUA PAGE is an assistant professor of sociology at the University of Minnesota. He received his Ph.D. from UC Berkeley,
where he published research on prison education and conducted an in-depth study of the California Correctional Peace Officers
Association (CCPOA). Professor Page is currently writing a book on the CCPOA and the politics of punishment in California. Further,
he is directing a study on the transition of youthful offenders from juvenile correctional facilities into the community, identifying factors
that facilitate or obstruct the youths’ ability to live successful, crime-free lives. He is also gathering survey data on the attitudes,
demographic composition, and working conditions of prison officers in Minnesota.

32