The Tough-On-Crime Trap

Atul Gawande's New Yorker piece on solitary confinement deserves to be read in tandem with Cato Unbound's symposium on American incarceration rates. The former looks at a particular issue in prison policy, and the latter at the general trend toward ever-greater imprisonment, but both invite the reader to ponder the ways in which one of the biggest policy successes of the past twenty-five years - the large-scale reduction in the crime rate - has enmeshed us in a net of moral compromises from which it's difficult to escape.

The turn toward mass incarceration and tough sentencing was championed, largely by conservatives, in response to what amounted to a long period of emergency in American life: A murder rate that had doubled over twenty years, a robbery rate that had quintupled, an urban landscape that seemed increasingly ungovernable, and so on. And the turn worked: The estimates of its impact vary, but most scholars agree that increased incarceration played a substantial role in the plunging crime rates of the 1990s.

But as you might expect, a policy turn undertaken during a period of emergency will eventually produce diminishing returns - as Steven Levitt puts it, "the two-millionth criminal imprisoned is likely to impose a much smaller crime burden on society than the first prisoner" - even as it imposes substantial moral costs. And precisely because the tough-on-crime approach was largely vindicated by events, it's extremely difficult for elected officials to walk back from some of the dubious practices that have grown up around it - like, say, the possibly cruel-and-unusual use of long-term solitary confinement. As Gawande writes:

Commissioners ... could eliminate prolonged isolation with the stroke of a pen. So, I asked, why haven't they? He told me what happened when he tried to move just one prisoner out of isolation. Legislators called for him to be fired and threatened to withhold basic funding. Corrections officers called members of the crime victim's family and told them that he'd gone soft on crime. Hostile stories appeared in the tabloids. It is pointless for commissioners to act unilaterally, he said, without a change in public opinion.

This political dynamic explains why the chances for effective prison reform probably depend on Nixon-to-China conservatives, who can put the credibility the Right has built up on law and order to good use. (It wouldn't hurt if conservatives were willing to champion some alternative approaches to crime reduction as well.) But they probably also depend on crime rates staying flat, or falling - and in the current downturn that may be too much to hope for.