America is a world leader in incarceration. The U.S. locks up more people than any other country, the University of London’s Institute for Criminal Policy Research reports. An estimated 1.6 million individuals were held in state and federal prisons at the end of 2014, while roughly 1 out of every 36 adults fell under correctional supervision, according to the Bureau of Justice Statistics.
Democrats and Republicans alike agree that mass incarceration is a problem, and state and federal efforts are underway to enact criminal-justice reform. But enacting effective reform requires an understanding of what caused the problem in the first place.
The War on Drugs broadly refers to an escalation in law-enforcement activity intended to halt, and ultimately eradicate, illegal drug use. In the 1970s, President Richard Nixon proclaimed that “public enemy number one in the United States is drug abuse,” adding that “to fight and defeat this enemy, it is necessary to wage a new, all-out offensive.”
Tough sentencing laws and harsh punishments doled out for drug-related offenses are often blamed for mass incarceration. In July, President Obama even declared that the country has “locked up more and more nonviolent drug offenders than ever before, for longer than ever before. And that is the real reason our prison population is so high.”
But should the War on Drugs take all the blame?
While it has undoubtedly played a role in mass incarceration, it would be a mistake to characterize the War on Drugs as the sole driver, or to think that reforming drug sentencing laws alone will be sufficient to end the problem.
Roughly half of all inmates under federal correctional authority in 2014 were incarcerated for drug-related offenses, according to the Bureau of Justice Statistics. In contrast, only about 16 percent of inmates in state prisons, which house far more prisoners than federal facilities, were incarcerated for drug-related offenses in 2013.
If everyone in America currently held for a drug-related offense in state and federal prison were released, that would reduce those prison populations by approximately 20 percent. That would be significant in its own right, but it still wouldn’t be sufficient to end mass incarceration.
It’s easier to win popular support for the release of nonviolent offenders as opposed to violent criminals. But if the nation wants to end mass incarceration, Americans are going to have to consider ways to cut down on the violent offender prison population as well. In 2013, roughly half of all state prisoners were incarcerated for violent crime, a percentage that suggests that any serious effort to reduce the prison population will need to grapple with violent as well as nonviolent offenders.
The 1980s and ’90s saw a wave of laws enacted at the federal and state level enacting mandatory minimums and tough sentencing policies. Advocates for criminal-justice reform frequently point to harsh sentencing laws as a driver of mass incarceration.
But to what extent are mandatory minimums contributing to the problem?
John Pfaff, a law professor at Fordham University, argues that despite the existence of laws calling for lengthy sentences, many inmates actually spend far less time in prison than the maximum amount possible. There could be various reasons for this, such as inmates getting released from prison earlier than their sentences initially dictated due to parole, or prosecutors seeking shorter sentences than the maximum allowed. “We have very long sentences on the books but most people actually spend a fairly short amount of time in prison,” Pfaff says. So even if mandatory minimum laws were reformed or repealed, it’s likely that still wouldn’t solve the problem.
Instead Pfaff suggests that more attention needs to be paid to a high rate of incarceration driven by overzealous prosecutors. More people are being admitted to prison, regardless of the amount of time they spend incarcerated. “We need to focus on the question of who we send to prison in the first place and why,” Pfaff says. “That’s a much tougher question to ask.”
That’s not to say that reforming mandatory minimums wouldn’t have an impact. First, there’s the argument that when mandatory minimums are imposed, the punishment may not fit the crime, leaving low-level offenders to face unduly harsh sentences that could keep them locked up for an excessive amount of time and effectively put the rehabilitation out of reach. Critics also cite the high cost of enforcing mandatory minimums, and a disproportionate impact on communities of color as reasons for reform.
Private prisons are often cited as a factor that has contributed to mass incarceration, or at the very least made it worse. “It is hard to see the expansion of a for-profit industry with a permanent interest in putting ever more people in cages as consistent with either efficiency or justice,” an article published in The Economist in 2010 titled “The perverse incentives of private prisons” stated.
But would getting rid of private prisons be the best way to weed out the incentives in the criminal-justice system that contribute to a high rate of incarceration?
Not necessarily. To start, existing incentives could be reformed. Private prisons could even be set up to operate with a profit motive such as decreasing the prison population. “The real problem with private prisons isn’t the fact that a profit motive exists; it’s the way the contracts have been written,” Pfaff says.
What’s more, it would be a mistake to think that an incentive system geared toward locking people up only operates at the level of private prisons. Incentives that can contribute to mass incarceration exist elsewhere, too. “Private prisons are far from the only part of the perverse financial system,” says Inimai Chettiar, the Brennan Center’s justice program director. “I would like to see more attention paid to the incentives with public prisons, prosecutors, and law enforcement. Public and private prisons often receive more funding when they retain more prisoners. Prosecutors show success and results by volume. The incentives are all geared toward incarceration.”
Much has been made of the fact that many Republicans and Democrats on Capitol Hill believe that the criminal-justice system should be reformed. But can the federal government do enough to solve the problem of mass incarceration?
Since far more prisoners are held in state rather than federal prisons, it’s important to note how difficult, if not impossible, it would be to achieve any kind of long-term solution to mass incarceration using a legislative fix exclusively imposed at the federal level.
But that doesn’t mean that federal policy can’t be influential. There is a certain power to the bully pulpit, and legislation enacted at the federal level could help set the tone for additional reform at the state and county level. The federal government can also allocate funding that could influence criminal-justice policy on the basis of carrots and sticks. “State laws could be pushed along by federal incentives that encourage changes,” Chettiar says. “Achieving legal change is never about just one tactic. Ending mass incarceration requires action across the board.”
Here are some other questions left to consider:
What are the best ways to reduce the prison population made up of violent offenders in the U.S.? How could that be achieved with public support, and without threatening public safety?
Does the U.S. too broadly classify what constitutes violent crime, and should that definition be revisited?
If overzealous prosecutors are driving a rise in prison admissions, what’s the best way to enact reform, and what jurisdictional level should those efforts focus on?
Will it be possible to enact criminal-justice reform legislation in a presidential election year? What compromises should be deemed acceptable, or not acceptable, as lawmakers attempt to increase bipartisan support and overcome objections?
Maybe there’s an answer we haven’t considered yet. Drop your thoughts into an email to firstname.lastname@example.org.