Why "Lock Them Up and Throw Away the Key" is Losing its Sheen

Unlike those wily, deviant, and dangerous criminals depicted on popular forensics and crime dramas, recent evidence indicates that many of the 2.3 million Americans currently in criminal custody are just a bunch of desperate people who have lost their way.

Not much editorializing is needed to highlight the gravity of America’s prison situation: a recently published Pew Center on the States study highlights the fact that “more than one in 100 adult Americans is in jail or prison.” Our prison population is the largest in the world (China is second) and we’re imprisoning people at a rate of about 8 – 10 times more than our European counterparts. Citing the Pew study, the Washington Post notes:

“Minorities have been particularly affected: One in nine black men ages 20 to 34 is behind bars. For black women ages 35 to 39, the figure is one in 100, compared with one in 355 for white women in the same age group.”

A Pew study of Arizona prisons last year similarly substantiates increasing incarceration of women, stating,

“The number of women admitted to Arizona state prisons (most often on drug-related charges) has increased 60 percent in the last 6 years, which is twice the rate of increase of male admissions.”

Incarcerating people who commit crimes finds a theoretical justification in modern rational choice theory, which posits that punishing people fairly and regularly will not only affect individual retribution, thereby engendering social fairness, but will also deter would-be criminals. In other words, knowing the fate of offenders, people will choose to behave in a law-abiding manner. By publicizing the likely, unsavory consequences of certain activities, society, it is thought, reduces crime.

The authors of the Pew study make clear their intention to challenge our overdependence on prisons as a productive means of social control. Susan Urahn, the Pew Center’s director, told the New York Times, “we aren’t really getting the return in public safety from this level of incarceration.”

While the publicity around the Pew study highlights the economic burden of mass imprisonment, the press is favoring a “balanced” discussion of whether or not an enormous prison population is socially sensible.

Detractors of Pew’s interpretation of the frightening data insist that mass imprisonment deters crime. In the same Times article noted above, University of Utah professor Paul Cassell is quoted: “the Pew report considered only half of the cost-benefit equation and overlooked the ‘very tangible benefits: lower crime rates.’” He goes on:

“While we certainly want to be smart about who we put into prisons…it would be a mistake to think that we can release any significant number of prisoners without increasing crime rates. One out of every 100 adults is behind bars because one out of every 100 adults has committed a serious criminal offense.”

Even a short-term comparison of rates of crime and imprisonment rates in major U.S. cities nullifies any correlation, let alone any argument for causality, between the two. In the past thirty years, the prison population has nearly tripled, while crime rates have fluctuated, spiking here and there in response to a complex combination of economic downturns, changes in policing techniques, the proliferation of certain drugs, and general demographic trends. The debate, for example, about New York City’s rock bottom crime rate is a fascinating one. Giuliani’s recent presidential flop proved that nobody, except maybe some New Yorkers, was stupid enough to believe that Giuliani single-handedly cleaned up the streets, but scores of criminologists seem unable to identify the elements that produced this particular chemistry, despite other city leaders’ desire to replicate it.

In response to Cassell’s “serious criminals” argument, the 40 per cent of California’s “recidivists” (two-thirds of those released from prison) who returned to prison for “technical infractions” or the 5,500 currently incarcerated D.W.I. offenders may beg to differ. We lock up non-violent offenders at rates incomparable with our European counterparts. Even as more types of conduct are criminalized in Europe, punishment for non-violent crimes is growing increasingly flexible. Indeed, the U.S. media are not publicizing criminality in such a way as logically to affirm rational, law-abiding behavior; we’re rightly outraged over things like the 1995 case of a California man who received his third strike, carrying a sentence of 25-life, for stealing a slice of pizza.

Defending Pew’s stance against the tough-on-crime opponents like Cassell, Urahn highlighted this statistical proof in a recent press conference:

“Increased incarceration doesn’t necessarily mean that states are going to see and increase in public safety — take New York and Florida, for example. Between 1993 and 2006, Florida’s prison population increased by 75 percent and its violent crime rate decreased by 41 percent. That might sound like an open-and-shut case for building prisons. But consider the case of New York: during the same time period, New York’s prison population decreased (by a modest 2 percent) and its violent crime rate decreased by 59 percent.”

“Three strikes” and similar “tough-on-crime” legislation, introduced in and maintained since the early 80’s, have certainly contributed to the enormous prison population. Effectiveness of Correctional Treatment: A Survey of Treatment Evaluation Studies, or “The Martinson Report” as it is commonly known, was used, initially by conservatives, to justify the dismantling of U.S. alternative sanctions and prison rehabilitation programs that continue to flourish in Europe. Famously misinterpreted and refuted by numerous subsequent studies of rehab programs, the 1974 “nothing works” thesis harmonized nicely with the backlash against the increasingly unpopular prisoner’s rights movement, ushering in “crack-down” style law enforcement and heavy-handed retribution for infractions considered mere misdemeanors in other countries.

In 1984, Reagan signed into law broad, formulaic sentencing guidelines to establish “mandatory minimum” sentences, a trend aimed at taking sentencing decisions out of the hands of “liberal judges.” Rather than ease these regressive guidelines, Bill Clinton spent hundreds of millions dollars building prisons. He increased the prison population far more than Reagan or Bush. On Clinton’s watch, the prison population added 673,000 inmates, compared with Reagan’s 448,000. While income inequality increased outside, the disproportionate representation of minorities behind bars also increased under Clinton, largely because of discriminatory crack/cocaine sentencing, the repeal of which took place only last week.

It is, perhaps, topical (given the recent, rightful resurgence of interest in McCain’s connection to the S&L scandal) to contemplate the criminals who are not in prison. In his well-documented, incisive textbook, The Rich Get Richer and the Poor Get Prison, Jeffrey Reiman offered a bleak economic portrait of the enormous U.S. prison population.

“Among jail inmates in 1996, 36 percent were not employed prior to their arrest – 20 percent were looking for work and 16 percent were not. Approximately half of all inmates reported pre-arrest incomes below $7,200 a year.”

Contrasting these folks with wealthy corporate criminals, Reiman found that our criminal justice system “refuses to define as ‘crimes’ or as serious crimes the dangerous and predatory acts of the well-to-do – acts that…result in the loss of thousands of lives and billions of dollars.” Again, this obvious unfairness undermines the preventative impact of imprisonment, which, has grown to symbolize economic, rather than moral failure.

The Pew study articulates the extent to which prison affects most people. We pay billions of dollars for it and it siphons money from other important social programs like education and healthcare. It affects the sanctity of families and the safety of communities. It makes our society less representative and less fair.

As punishment grows increasingly harsher, which it has for the past 30 years, it impacts many offenders long after their sentences are over. In 2004, I was talking with my neighbor in Brooklyn about the upcoming presidential election. After 20 minutes of heated dialogue, I asked him who he was going to vote for. “I can’t vote,” he told me. It made our whole debate feel pretty pointless. In 2004, the Washington Post pointed out how the legal restriction of prisoner, parolee, and ex-felon voting rights deprived 4.7 million Americans voting rights, including 13 per cent of all black men.

The good news about the Pew study is that it exposes the reality that our current imprisonment rates are senseless. It highlights the extent to which we are wastefully taxing the country’s infrastructure. It asks us to imagine an alternative to this failed experiment that has grown into a grave social injustice. Given the importance of “tough-on-crime” rhetoric, however, it is unlikely that any of the presidential contenders will make meaningful commitments on this score.

But, then again, they won’t have to. Alternative sanctions, like those recently adopted in Texas (not coincidentally, the state with the largest prison population), will likely trend back in most states with large prison populations. Criminologists familiar with prison trends have been predicting the return to alternative sanctions recommended in the Pew study for a while, not because of the dawning of some new era of enlightenment, but because mass imprisonment is too expensive for cash-poor states. Building prisons is politically tricky, and our prisons are full.

More compelling, however, are the many studies and first-person accounts attesting to the debilitating effects of exposing people, even for short periods of time, to prison’s anti-social environment, replete with violence, drug abuse, sexual coercion, and dehumanization. In a recent press conference, Susan Urahn added a bold footnote to Pew’s cost-conscious thesis:

“We also have heard concern about the cost of corrections crowding out states’ ability to invest in several other important areas — preschool, education, economic development and so on. These are the investments states need to make to be competitive in the coming decades.

“Finally, there are also many who are concerned about the impacts of incarceration beyond the fiscal — the impacts on families and communities.”

The likely return to rehab, however, seems a coincidental pit stop on an otherwise dark path. Mandatory minimums and 3-strikes laws are not the simple causes of mass imprisonment, but symptoms of our extreme attitudes toward criminality. Fiscal cost is the most widely touted reason for not locking up non-violent people, probably because it shields politicians from expressing humanity for offenders. Without a social movement aiming to stimulate alternative conceptions of criminality and appropriate sanctions, we won’t escape our current course: a system that victimizes the most vulnerable communities and engenders cyclical experiences of violence and trauma, for which most people in the general population feel very little sympathy.

R.F. Blader can be reached at rfblader@gmail.com