US competitiveness tax 1: Correctional Industrial Complex
Criminal Justice Throughout the World
Correctional Population in the United States, 2010
Lauren E. Glaze
December 15, 2011 NCJ 236319
Presents statistics on the number of offenders under the supervision of adult correctional authorities in the United States at yearend 2010. Persons supervised by adult correctional authorities include those in the community under the authority of probation or parole agencies that supervise adults and those incarcerated in state or federal prisons or local jails. The report provides the change in the total correctional population, by correctional status, during 2010. It also examines the impact of the changes in the community supervision and incarcerated populations during the year on the change observed in the total correctional population.
Highlights include the following:
During 2010, the number of persons under supervision of adult correctional authorities declined by 1.3% (91,700 offenders), reaching 7.1 million at yearend.
About 7 in 10 persons under the supervision of adult correctional systems were supervised in the community (4,887,900) on probation or parole at yearend 2010, while about 3 in 10 were incarcerated (2,266,800) in local jails or in the custody of state or federal prisons.
About three-quarters of the decline in the total correctional population (down 91,700) during 2010 was attributed to the decline in the number of probationers (down 69,500) during the year.
Rough justice in America Too many laws, too many prisoners
Never in the civilised world have so many been locked up for so little
Jul 22nd 2010 | Spring, Texas | from the print edition
Mass Incarceration Creates Costly Disaster Across America
Mon, 04/04/2011 - 07:18 — washington
Linn Washington Jr.
Herman Garner doesn’t dispute the drug charge that slammed him in prison for nine years.
Garner does dispute the damning circumstance that doing the time for his crime still leaves him penalized despite his having ended his sentence in the penal system.
Garner carries the “ex-con” stain.
That status slams employment doors shut in his face despite his having a MBA Degree and two years of law school.
“I’ve applied for jobs at thousands of places in person and on the internet, but I’m unable to get a job,” said Garner, a Cleveland, Ohio resident who recently published a book about his prison/life experiences titled Wavering Between Extremes.
Recently Garner joined hundreds of people attending a day-long conference at Princeton University entitled “Imprisonment Of A Race,” that featured presentations by scholars and experts on the devastating, multi-faceted impact of mass incarceration across America.
For most felons, the punishment extends well beyond the completion of the sentence
The U.S. imprisons more people per capita than any country on earth, accounting for 25 percent of the world’s prisoners, despite having just five percent of the world’s population.
America currently holds over two million in prisons with double that number under supervision of parole and probation, according to federal government figures.
Mass incarceration consumes over $50-billion annually across America – money far better spent on creating jobs and improving education.
Under federal law persons with drug convictions like Garner are permanently barred from receiving financial aid for education, food stamps, welfare and publicly funded housing.
But only drug convictions trigger these exclusions under federal law. Violent bank robbers, white-collar criminals like Wall Street scam artists who steal billions, and even murderers who’ve done their time do not face the post-release deprivations slapped on those with drug convictions on their records, including those imprisoned for simple possession, and not major drug sales.
“Academics see this topic of mass incarceration as numbers, but for millions it is their daily lives,” said Princeton conference panelist Dr. Khalilah Brown-Dean of Yale University.
Exclusions mandated by federal laws compound the legal deprivations of rights found in the laws of most states, such as barring ex-felons from jobs and even stripping ex-felons of their right to vote.
“Mass incarceration raises questions of protecting and preserving democracy,” Dr. Brown-Dean said, referencing the estimated five-million-plus Americans barred from voting by such felony disenfranchisement laws.
Many of those felony disenfranchisement laws date from measures enacted in the late 1800s which were devised specifically to bar blacks from voting, as a way to preserve America’s apartheid.
During the 2000 presidential election Republican officials in Florida manipulated that state’s anti-felon voting law fraudulently to bar tens of thousands of blacks from voting. For example, many people with common names like John Smith who shared their name with a felon were barred from voting, despite having no criminal record.
Republican George W. Bush won by Florida by a razor thin 537 vote margin…a margin secured by that felon disenfranchisement scheme. That victory in the state where George W.’s brother Jeb served as governor sent him to the White House.
Policies creating barriers to things like education and employment make it “increasingly difficult” for persons recently released from prison to “remain crime-free” according to a report released earlier this year by the Smart on Crime Coalition.
More than 60 percent of the two-million-plus people in American prisons are racial and ethnic minorities.
“The U.S. imprisons more than South Africa did under apartheid. A nation that promotes democracy has a racial caste in its prisons. We must break that caste system,” said the special guest speaker at the “Imprisonment” conference, Pennsylvania Death Row Journalist Mumia Abu-Jamal, who telephoned from prison.
Racism is written all over the economically/socially debilitating practices embedded in mass incarceration.
An often cited University of Wisconsin study found that 17 percent of white ex-con job seekers received interviews, compared to only five percent of black ex-con job seekers – a race-based disparity that is additionally devastating for people of color like Garner.
Ohio State University Law Professor Michelle Alexander, the featured speaker at that Princeton conference streamed live on the internet, said a major reason why imprisonment rates soared during the past four decades despite decreases in crime rates is anti-crime policies craftily manipulated by conservative Republican officials for political purposes.
Harsh anti-crimes policies of the 1970s and 1980s were largely a “punitive backlash” to advances of the Civil Rights Movement, said Alexander, author of the hugely popular 2010 book The New Jim Crow: Mass Incarceration in the Age of Colorblindness.
Pennsylvania’s prison population, for example, soared from 8,243 in 1980 to 51,487 in 2010, while the California prison population leapt during the same period from 23,264 to over 170,000.
Incarceration costs are especially obscene when compared to college costs.
A report released in January 2011 by Pennsylvania’s auditor general noted the Keystone State now spends $32,059 annually to imprison one person…a cost that exceeds the annual $20,074 tuition for the MBA degree program at Penn State University.
A report released in January 2010 by a UCLA professor noted that the Golden State spends over $48,000 annually to imprison one person, more than four times the tuition cost of UCLA for a California resident. Back in 1980, California spent more of its state budget on higher education than on prisons, but that had reversed by 2010, with more of that state’s budget going for prisons than for higher education.
America’s corrosive War on Drugs – a “war” that basically ignores drug kingpins – has devastated black families, author/professor Alexander said.
“A black child today is less likely to be raised in a two-parent household than during slavery,” she said.
“In major urban areas almost one-half of black men have criminal records. Thus they face a lifetime of legalized discrimination,” encompassing exclusions from employment and access to financial assistance required to secure a viable quality of life.
Africa-Americans are 13 percent of America’s population and 14 percent of the nation’s drug users but are 37 percent of persons arrested for drugs and 56 percent of the inmates in state prisons for drug offenses, noted the 2009 congressional testimony of Marc Mauer, executive director of the Sentencing Project and a conference panelist.
Both ex-felon Herman Garner and Dr. Eddie Glaude Jr., chair of Princeton’s Center for African American Studies, which hosted the conference, expressed similar views on the impacts of mass incarceration.
Dr. Glaude said mass incarceration is a “moral crisis with political and social consequences for America’s future,” during his remarks opening the conference.
Garner, in an interview, described the US prison system as the “biggest problem” in the American black community.
While politicians pushing punitive policies help drive mass incarceration its budget- busting persistence implicates the blind-eye of society, said one conference panelist, history professor Dr. Khalil Gibran Muhammad, the new director of the fabled Schomburg Center for Research in Black Culture in New York City.
“Middle-class whites and blacks in the U.S. are a new kind of ‘Silent Majority’ regarding mass incarceration,” Dr. Muhammad charged. “This ‘Silent Majority’ supports unjust policies of increased law enforcement and incarceration as the only way to address crime,” ignoring proven alternative approaches like “jobs, education and ending societal inequities.”
Famed Princeton Professor Dr. Cornell West criticized both the black middle class and black leadership for inaction on mass incarceration.
“The new black middle class and black leadership are not attuned to the suffering in poor black communities,” West said during the conference’s Keynote Conversation between him and Professor Alexander.
“We need more middle-class people with genuine respect for the poor. This is more than serving as role model mentors,” he said.
Author Alexander said ending the “mind-boggling scale” of mass incarceration requires “a major social movement.”
One attendee at the Princeton conference, Daryl Brooks, an activist in Trenton, NJ who operates the respected “Today’s News N.J.” blog, backs Alexander’s suggestion.
“To fix this problem we need mass boycotts. America only understands money and violence. We need to shutdown businesses like during the 60s,” said Brooks, who spent three-years in prison for a conviction he says was false, aimed at crushing his activism.
“Blacks leaders allowed this incarceration to happen by doing too little to challenge this repression,” Brooks said.
The Obama Administration is doing too little to address mass incarceration and its impacts, many of the Princeton panelists and conference attendees agreed.
These critics blast the Obama Administration for what they called its tepid approaches to the torturous scourge of 240 sexual assaults daily in state and federal prisons, charging it with foot-dragging on the Prison Rape Elimination Act which was approved by Congress during the administration of George W. Bush.
While Obama fulfilled a campaign pledge to address the sentencing disparity penalizing crack cocaine more harshly than powder cocaine (crack is derived from powder cocaine), Obama’s proclivity for bipartisan consensus has resulted in legislation that lower but did not eliminate the disparity.
A 1995 US Sentencing Commission report called for eliminating the scientifically bogus disparity a recommendation rejected by Democratic President Bill Clinton and the Republican controlled Congress – the first ever rejection of a Commission recommendation.
That crack-powder legislation did not apply retroactively, thus failing to mitigate stiff crack cocaine sentences (often ten years for simple possession) that leaves blacks and Hispanics languishing in federal prisons. (Federal authorities rarely prosecute whites for crack cocaine violations despite federal statistics documenting that whites are the nation’s largest users of crack cocaine.)
“Obama and [US Attorney General Eric] Holder have no courage when it comes to the prison-industrial complex,” Dr. Cornell West said.
A Country of Inmates
WASHINGTON — One area where the United States indisputably leads the world is incarceration.
The United States has 2.3 million people behind bars, almost one in every 100 Americans. The U.S. prison population has more than doubled over the past 15 years, and one in nine black children has a parent in jail.
Proportionally, the United States has four times as many prisoners as Israel, six times as many as Canada or China, eight times as many as Germany and 13 times as many as Japan.
With just a little more than 4 percent of the world’s population, the United States accounts for a quarter of the planet’s prisoners and has more inmates than the leading 35 European countries combined. Almost all the other nations with high per capita prison rates are in the developing world.
There’s also a national election in the United States soon. This issue isn’t on the agenda. It’s almost never come up with Republican presidential candidates; one of the few exceptions was at a debate in September when the audience cheered the notion of executions in Texas.
Barack Obama, the first black president, rarely mentions this question or how it disproportionately affects minorities. More than 60 percent of the United States’ prisoners are black or Hispanic, though these groups comprise less than 30 percent of the population.
“We’ve had a race to incarcerate that has been driven by politics, racially coded, get-tough appeals,” said Michelle Alexander, a law professor at Ohio State University who wrote “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.”
The escalating cost of the criminal-justice system is an important factor in the fiscal challenges around the United States. Nowhere is that more evident than in California, which is struggling to obey a court order requiring it to reduce its overcrowded prisons by 40,000 inmates.
Today, there are 140,000 convicts in California’s state prisons, who cost about $50,000 each per year. The state pays more on prisons than it does on higher education.
Yet the prisons are so crowded — as many as 54 inmates have to share one toilet — that Conrad Murray, the doctor convicted in the death of the pop star Michael Jackson, may be able to avoid most prison time.
California isn’t unique. In Raleigh County, West Virginia, the county commission has worried that the cost of housing inmates at its Southern Regional Jail may imperil basic services, including education. That problem is exacerbated as the state keeps more prisoners longer at such regional facilities to alleviate its overcrowding problems.
The prison explosion hasn’t been driven by an increase in crime. In fact, the crime rate, notably for violent offenses, is dropping across the United States, a phenomenon that began about 20 years ago.
The latest F.B.I. figures show that murder, rape and robberies have fallen to an almost half-century low; to be sure, they remain higher than in other major industrialized countries.
There are many theories for this decline. The most accepted is that community police work in major metropolitan areas has improved markedly, focusing on potential high-crime areas. There are countless other hypotheses, even ranging to controversial claims that more accessible abortion has reduced a number of unwanted children who were more likely to have committed crimes.
However, one other likely explanation is that more than a few would-be criminals are locked up. Scholars like James Q. Wilson have noted that the longer prison terms that are being handed down may matter more than the conviction rates.
This comes at a clear cost. For those who do ultimately get out, being an ex-con means about a 40 percent decrease in annual earnings.
Moreover, research suggests that children from homes where a father is in jail do considerably less well in life and are more prone to becoming criminals themselves.
“People ask why so many black kids are growing up without fathers,” said Ms. Alexander. “A big part of the answer is mass incarceration.”
It seems clear that the U.S. penal system discriminates against minorities. Some of this is socioeconomic, as poorer people, disproportionately blacks and Hispanics, may commit more crimes.
Much of the inmate explosion and racial disparities, however, grow out of the way the United States treats illegal drugs. It began several decades ago with harsher penalties for crimes involving crack cocaine, which was more widely used by blacks, than powder cocaine, which was more likely to involve whites. A larger issue is how the U.S. criminal justice system differentiates in its treatment of drug sellers — who get the book thrown at them — versus drug users, who, at most, get a slap on the wrist.
A hypothetical example: A black kid is arrested for selling cocaine to the members of a fraternity at an elite university. The seller gets sent away for 25 years. The fraternity is put on probation for a semester by the university and nothing else.
In all likelihood, the convicted seller is quickly replaced, and few of the fraternity kids change their drug-use habits. The lesson: neither the supply nor the demand has changed, and the prison population grows.
Given their budgetary difficulties, about half the states are actually reducing their prison populations. Smart selective policies are cost-effective. Many criminologists and sociologists say the proclivity to commit crimes diminishes with age; the recidivism rate for convicts over 30 is relatively low, and most every analysis suggests that parole and probation are far less expensive for taxpayers than incarceration.
Nevertheless, the politics of the crime issue cuts against any rational approach. Even if recidivism rates are low, it’s the failures that attract attention. In 1988, the Democratic presidential nominee, Michael S. Dukakis, was savaged when it was revealed that one convict, Willie Horton, who was furloughed on his watch as governor of Massachusetts committed a rape while at large. Four years ago, the former governor of Arkansas, Mike Huckabee, a Republican, was hurt in his bid for his party’s nomination by reports of crimes committed by felons who were paroled during his time in office.
“One case where a parolee does something very wrong is sensationalized,” Ms. Alexander said, “and many, many others are kept behind bars for a long time.”
Correction: November 20, 2011
An earlier version of this article incorrectly stated that the furloughed convict Willie Horton had committed a murder while at large.
The death penalty in 2009
Death Penalty: From Amnesty International
More than two-thirds of the countries of the world have abolished the death penalty in law or in practice. While 58 countries retained the death penalty in 2009, most did not use it. Eighteen countries were known to have carried out executions, killing a total of at least 714 people; however, this figure does not include the thousands of executions that were likely to have taken place in China, which again refused to divulge figures on its use of the death penalty.
THREE pickup trucks pulled up outside George Norris’s home in Spring, Texas. Six armed police in flak jackets jumped out. Thinking they must have come to the wrong place, Mr Norris opened his front door, and was startled to be shoved against a wall and frisked for weapons. He was forced into a chair for four hours while officers ransacked his house. They pulled out drawers, rifled through papers, dumped things on the floor and eventually loaded 37 boxes of Mr Norris’s possessions onto their pickups. They refused to tell him what he had done wrong. “It wasn’t fun, I can tell you that,” he recalls.
Mr Norris was 65 years old at the time, and a collector of orchids. He eventually discovered that he was suspected of smuggling the flowers into America, an offence under the Convention on International Trade in Endangered Species. This came as a shock. He did indeed import flowers and sell them to other orchid-lovers. And it was true that his suppliers in Latin America were sometimes sloppy about their paperwork. In a shipment of many similar-looking plants, it was rare for each permit to match each orchid precisely.
In March 2004, five months after the raid, Mr Norris was indicted, handcuffed and thrown into a cell with a suspected murderer and two suspected drug-dealers. When told why he was there, “they thought it hilarious.” One asked: “What do you do with these things? Smoke ’em?”
In this section
Prosecutors described Mr Norris as the “kingpin” of an international smuggling ring. He was dumbfounded: his annual profits were never more than about $20,000. When prosecutors suggested that he should inform on other smugglers in return for a lighter sentence, he refused, insisting he knew nothing beyond hearsay.
He pleaded innocent. But an undercover federal agent had ordered some orchids from him, a few of which arrived without the correct papers. For this, he was charged with making a false statement to a government official, a federal crime punishable by up to five years in prison. Since he had communicated with his suppliers, he was charged with conspiracy, which also carries a potential five-year term.
As his legal bills exploded, Mr Norris reluctantly changed his plea to guilty, though he still protests his innocence. He was sentenced to 17 months in prison. After some time, he was released while his appeal was heard, but then put back inside. His health suffered: he has Parkinson’s disease, which was not helped by the strain of imprisonment. For bringing some prescription sleeping pills into prison, he was put in solitary confinement for 71 days. The prison was so crowded, however, that even in solitary he had two room-mates.
A long love affair with lock and key
Justice is harsher in America than in any other rich country. Between 2.3m and 2.4m Americans are behind bars, roughly one in every 100 adults. If those on parole or probation are included, one adult in 31 is under “correctional” supervision. As a proportion of its total population, America incarcerates five times more people than Britain, nine times more than Germany and 12 times more than Japan. Overcrowding is the norm. Federal prisons house 60% more inmates than they were designed for. State lock-ups are only slightly less stuffed.
The system has three big flaws, say criminologists. First, it puts too many people away for too long. Second, it criminalises acts that need not be criminalised. Third, it is unpredictable. Many laws, especially federal ones, are so vaguely written that people cannot easily tell whether they have broken them.
In 1970 the proportion of Americans behind bars was below one in 400, compared with today’s one in 100. Since then, the voters, alarmed at a surge in violent crime, have demanded fiercer sentences. Politicians have obliged. New laws have removed from judges much of their discretion to set a sentence that takes full account of the circumstances of the offence. Since no politician wants to be tarred as soft on crime, such laws, mandating minimum sentences, are seldom softened. On the contrary, they tend to get harder.
Some criminals belong behind bars. When a habitual rapist is locked up, the streets are safer. But the same is not necessarily true of petty drug-dealers, whose incarceration creates a vacancy for someone else to fill, argues Alfred Blumstein of Carnegie Mellon University. The number of drug offenders in federal and state lock-ups has increased 13-fold since 1980. Some are scary thugs; many are not.
Michelle Collette of Hanover, Massachusetts, sold Percocet, a prescription painkiller. “I was planning to do it just once,” she says, “but the money was so easy. And I thought: it’s not heroin.” Then she became addicted to her own wares. She was unhappy with her boyfriend, she explains, but did not want to split up with him, because she did not want their child to grow up fatherless, as she had. So she popped pills to numb the misery. Before long, she was taking 20-30 a day.
When Ms Collette and her boyfriend, who also sold drugs, were arrested in a dawn raid, the police found 607 pills and $901 in cash. The boyfriend fought the charges and got 15 years in prison. In a plea bargain Ms Collette was sentenced to seven years, of which she served six.
“I don’t think this is fair,” said the judge. “I don’t think this is what our laws are meant to do. It’s going to cost upwards of $50,000 a year to have you in state prison. Had I the authority, I would send you to jail for no more than one year…and a [treatment] programme after that.” But mandatory sentencing laws gave him no choice.
Massachusetts is a liberal state, but its drug laws are anything but. It treats opium-derived painkillers such as Percocet like hard drugs, if illicitly sold. Possession of a tiny amount (14-28 grams, or ½-1 ounce) yields a minimum sentence of three years. For 200 grams, it is 15 years, more than the minimum for armed rape. And the weight of the other substances with which a dealer mixes his drugs is included in the total, so 10 grams of opiates mixed with 190 grams of flour gets you 15 years.
Ms Collette underwent drug treatment before being locked up, and is now clean. But in prison she found she was pregnant. After going through labour shackled to a hospital bed, she was allowed only 48 hours to bond with her newborn son. She was released in March, found a job in a shop, and is hoping that her son will get used to having her around.
Rigid sentencing laws shift power from judges to prosecutors, complains Barbara Dougan of Families Against Mandatory Minimums, a pressure-group. Even the smallest dealer often has enough to trigger a colossal sentence. Prosecutors may charge him with selling a smaller amount if he agrees to “reel some other poor slob in”, as Ms Dougan puts it. He is told to persuade another dealer to sell him just enough drugs to trigger a 15-year sentence, and perhaps to do the deal near a school, which adds another two years.
Severe drug laws have unintended consequences. Less than half of American cancer patients receive adequate painkillers, according to the American Pain Foundation, another pressure-group. One reason is that doctors are terrified of being accused of drug-trafficking if they over-prescribe. In 2004 William Hurwitz, a doctor specialising in the control of pain, was sentenced to 25 years in prison for prescribing pills that a few patients then resold on the black market. Virginia’s board of medicine ruled that he had acted in good faith, but he still served nearly four years.
Half the states have laws that lock up habitual offenders for life. In some states this applies only to violent criminals, but in others it applies even to petty ones. Some 3,700 people who committed neither violent nor serious crimes are serving life sentences under California’s “three strikes and you’re out” law. In Alabama a petty thief called Jerald Sanders was given a life term for pinching a bicycle. Alabama’s judges are elected, as are those in 32 other states. This makes them mindful of public opinion: some appear in campaign advertisements waving guns and bragging about how tough they are.
Watching hairs go white, and lifetimes ebb away
Many Americans assume that white-collar criminals get off lightly, but many do not. Granted, they may be hard to catch and can often afford good lawyers. But federal prosecutors can file many charges for what is essentially one offence. For example, they can count each e-mail sent by a white-collar criminal in the course of his criminal activity as a separate case of wire fraud, each of which carries a maximum sentence of 20 years. The decades soon add up. Sentences depend partly on the size of the loss and the number of people affected, so if you work for a big, publicly traded company, you break a rule and the share-price drops, watch out.
Jim Felman, a defence lawyer in Tampa, Florida, says America is conducting “an experiment in imprisoning first-time non-violent offenders for periods of time previously reserved only for those who had killed someone”. One of Mr Felman’s clients, a fraudster called Sholam Weiss, was sentenced to 845 years. “I got it reduced to 835,” sighs Mr Felman. Faced with such penalties, he says, the incentive to co-operate, which means to say things that are helpful to the prosecution, is overwhelming. And this, he believes, “warps the truth-seeking function” of justice.
Innocent defendants may plead guilty in return for a shorter sentence to avoid the risk of a much longer one. A prosecutor can credibly threaten a middle-aged man that he will die in a cell unless he gives evidence against his boss. This is unfair, complains Harvey Silverglate, the author of “Three Felonies a Day: How the Feds Target the Innocent”. If a defence lawyer offers a witness money to testify that his client is innocent, that is bribery. But a prosecutor can legally offer something of far greater value—his freedom—to a witness who says the opposite. The potential for wrongful convictions is obvious.
Badly drafted laws create traps for the unwary. In 2006 Georgia Thompson, a civil servant in Wisconsin, was sentenced to 18 months in prison for depriving the public of “the intangible right of honest services”. Her crime was to award a contract (for travel services) to the best bidder. A firm called Adelman Travel scored the most points (on an official scale) for price and quality, so Ms Thompson picked it. She ignored a rule that required her to penalise Adelman for a slapdash presentation when bidding. For this act of common sense, she served four months. (An appeals court freed her.)
The “honest services” statute, if taken seriously, “would seemingly cover a salaried employee’s phoning in sick to go to a ball game,” fumes Antonin Scalia, a Supreme Court justice. The Supreme Court ruled recently that the statute was so vague as to be unconstitutional. It did not strike it down completely, but said it should be applied only in cases involving bribery or kickbacks. The challenge was brought by Enron’s former boss, Jeff Skilling, who will not go free despite his victory, and Conrad Black, a media magnate released this week on bail pending an appeal, who may.
There are over 4,000 federal crimes, and many times that number of regulations that carry criminal penalties. When analysts at the Congressional Research Service tried to count the number of separate offences on the books, they were forced to give up, exhausted. Rules concerning corporate governance or the environment are often impossible to understand, yet breaking them can land you in prison. In many criminal cases, the common-law requirement that a defendant must have a mens rea (ie, he must or should know that he is doing wrong) has been weakened or erased.
“The founders viewed the criminal sanction as a last resort, reserved for serious offences, clearly defined, so ordinary citizens would know whether they were violating the law. Yet over the last 40 years, an unholy alliance of big-business-hating liberals and tough-on-crime conservatives has made criminalisation the first line of attack—a way to demonstrate seriousness about the social problem of the month, whether it’s corporate scandals or e-mail spam,” writes Gene Healy, a libertarian scholar. “You can serve federal time for interstate transport of water hyacinths, trafficking in unlicensed dentures, or misappropriating the likeness of Woodsy Owl.”
“You’re (probably) a federal criminal,” declares Alex Kozinski, an appeals-court judge, in a provocative essay of that title. Making a false statement to a federal official is an offence. So is lying to someone who then repeats your lie to a federal official. Failing to prevent your employees from breaking regulations you have never heard of can be a crime. A boss got six months in prison because one of his workers accidentally broke a pipe, causing oil to spill into a river. “It didn’t matter that he had no reason to learn about the [Clean Water Act’s] labyrinth of regulations, since he was merely a railroad-construction supervisor,” laments Judge Kozinski.
Society wants retribution
Such cases account for only a tiny share of the Americans behind bars, but they still matter. When so many people are technically breaking the law, it is up to prosecutors to decide whom to pursue. No doubt most prosecutors choose wisely. But members of unpopular groups may not find that reassuring. Ms Thompson, for example, was prosecuted just before an election, at a time when allegations of public corruption in Wisconsin were in the news. Some prosecutors, such as Eliot Spitzer, the disgraced ex-governor of New York, have built political careers by nailing people whom voters don’t like, such as financiers.
Prison deters? Not much, not the worst
Some people argue that the system works: that crime has fallen in the past two decades because the bad guys are either in prison or scared of being sent there. Caged thugs cannot break into your home. Bernie Madoff’s 150-year sentence for running a Ponzi scam should deter imitators. And indeed the crime rate continues to drop, despite the recession, as Michael Rushford of the Criminal Justice Legal Foundation, an advocacy group, points out. This, he says, is because habitual criminals face serious consequences. Some research supports him: after raking through decades of historical data, John Donohue of Yale Law School estimates that a 10% increase in imprisonment brings a 2% reduction in crime.
Others disagree. Using more recent data, Bert Useem of Purdue University and Anne Piehl of Rutgers University estimate that a 10% increase in the number of people behind bars would reduce crime by only 0.5%. In the states that currently lock up the most people, imprisoning more would actually increase crime, they believe. Some inmates emerge from prison as more accomplished criminals. And raising the incarceration rate means locking up people who are, on average, less dangerous than the ones already behind bars. A recent study found that, over the past 13 years, the proportion of new prisoners in Florida who had committed violent crimes fell by 28%, whereas those inside for “other” crimes shot up by 189%. These “other” crimes were non-violent ones involving neither drugs nor theft, such as driving with a suspended licence.
And now the reckoning, in dollars
Crime is a young man’s game. Muggers over 30 are rare. Ex-cons who go straight for a few years generally stay that way: a study of 88,000 criminals by Mr Blumstein found that if someone was arrested for aggravated assault at the age of 18 but then managed to stay out of trouble until the age of 22, the risk of his offending was no greater than that for the general population. Yet America’s prisons are crammed with old folk. Nearly 200,000 prisoners are over 50. Most would pose little threat if released. And since people age faster in prison than outside, their medical costs are vast. Human Rights Watch, a lobby-group, talks of “nursing homes with razor wire”.
Jail is expensive. Spending per prisoner ranges from $18,000 a year in Mississippi to about $50,000 in California, where the cost per pupil is but a seventh of that. “[W]e are well past the point of diminishing returns,” says a report by the Pew Center on the States. In Washington state, for example, each dollar invested in new prison places in 1980 averted more than nine dollars of criminal harm (using a somewhat arbitrary scale to assign a value to not being beaten up). By 2001, as the emphasis shifted from violent criminals to drug-dealers and thieves, the cost-benefit ratio reversed. Each new dollar spent on prisons averted only 37 cents’ worth of harm.
Since the recession threw their budgets into turmoil, many states have decided to imprison fewer people, largely to save money. Mississippi has reduced the proportion of their sentences that non-violent offenders are required to serve from 85% to 25%. Texas is making greater use of non-custodial penalties. New York has repealed most mandatory minimum terms for drug offences. In all, the number of prisoners in state lock-ups fell by 0.3% in 2009, the first fall since 1972. But the total number of Americans behind bars still rose slightly, because the number of federal prisoners climbed by 3.4%.
A less punitive system could work better, argues Mark Kleiman of the University of California, Los Angeles. Swift and certain penalties deter more than harsh ones. Money spent on prisons cannot be spent on more cost-effective methods of crime-prevention, such as better policing, drug treatment or probation. The pain that punishment inflicts on criminals themselves, on their families and on their communities should also be taken into account.
“Just by making effective use of things we already know how to do, we could reasonably expect to have half as much crime and half as many people behind bars ten years from now,” says Mr Kleiman. “There are a thousand excuses for failing to make that effort, but not one good reason.”