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Recidivism laws, like the three strikes laws discussed in the previous chapter, are one way to eliminate second and third chances, dictating lengthy sentences for repeat offenses. Another way that the criminal law punishes people who have offended one too many times is through probation and parole revocations. While severely understudied, parole and probation revocations generate about a third of prison admissions and possibly more. And perhaps no change better illustrates the change from a criminal justice to a criminal legal system than the increasing volume of incarceration generated through the parole and probation revocation process.
Sentencing is the next critical step after arrest and conviction. This chapter turns to the types of sentences that judges hand down and, with the next chapter, sketches the important role that judges play in Mass Incarceration. It shows that during the era of Mass Incarceration, judges sent more people to prison than they had in previous eras and for longer periods.
In 1970, the United States locked up approximately 200,000 people in state and federal prisons, with another 161,000 in local jails. The country’s incarceration rate – the number of people incarcerated as a percentage of the overall population – had been remarkably steady for decades and not that different from other Western nations, like England, France, or Germany.
The way that prisons fill can be depicted with an analogy. Imagine a road that leads to prison, the “prison road.” The police divert people who are traveling on other roads onto the prison road. Between this police-controlled entry ramp and prison are a variety of off-ramps. The first off-ramp is controlled by prosecutors who can decline to prosecute, diverting people off the prison road. Another off-ramp is operated by grand juries who can decline to indict or trial juries who can vote to acquit. A large off-ramp is operated by judges who can dismiss cases or impose noncustodial sentences. On the other side of prison are additional ramps operated by parole boards, who can shrink the prison population by ordering early release (or expand it via parole revocations), and governors who can do the same through clemency. This whole enterprise – the road, the prison, and the on- and off-ramps – is designed and funded by legislators.
The long reach of racism in American society is an important part of the Mass Incarceration story, but contrary to some recent accounts, the two phenomena are not the same. There are aspects of Mass Incarceration that can best be explained through a race lens and others that cannot. This chapter offers a way to distinguish between these aspects and explains why the distinction matters in understanding the rise of Mass Incarceration and the prospects for reform.
A return to the 1970s would mean a dramatic reduction in federal law enforcement and federal prisoners. While the vast majority of criminal prosecutions happen at the State and local level, the federal government is just as important a contributor to Mass Incarceration as the largest State. And it is the easiest place to see that Mass Incarceration is about policies, not crime.
The next chapters turn to reform. Most criminal justice experts agree that substantial change is needed to reduce the incarcerated population. There are, however, differing articulations of the ultimate goal and little precision about how to get there. Disentangling the two threads of criminal law enforcement in the United States can help. As explained throughout the book, there are, in essence, two parallel systems. One is the core system for addressing serious, often violent crimes like homicides, identifying those who commit such crimes and allotting appropriate punishments. This system is fairly characterized as the criminal justice system. The other is primarily a policy tool designed to address societal problems like drug abuse. This criminal legal system seeks to achieve each era’s distinctive policy goals by imposing punishment for violations of essentially regulatory laws. We can dramatically cut back on this second system, while preserving, and moderating the severity of, the first. That would return the country to a criminal justice system not unlike the model that existed up until the 1970s. All that is needed is to undo the changes described in Parts II and III, recasting those Parts as a blueprint for reform.
One important piece of the return to the 1970s is to return to 1970s levels of crime. The good news is we are already well on our way. As Figure 21.1, from the PEW Research Center, shows, the United States has been enjoying steady declines in the crime rate since the 1990s.1
In 1970, there were approximately 200,000 people in state and federal prisons and an incarceration rate of about 96 persons per 100,000 population.1 A variety of steps will be required to get back to these numbers. The previous chapters discuss ways to shrink the pool of people caught up in the criminal justice system by reducing the scope of American criminal law and decreasing offending. This chapter discusses ways to limit the number of people incarcerated from the remaining pool of law breakers. The two basic steps are (1) decreasing the number of admissions to prison/jail and (2) reducing the time served for those who are incarcerated.
While there is broad agreement that this country incarcerates too many people, there is a distressing lack of clarity about how to address the problem. At one end of the spectrum are “abolitionists,” who view American criminal law enforcement, like slavery, as an illegitimate institution that can only be abolished, not reformed. Broadly speaking, abolitionists want to get rid of prisons, defund the police, and adopt noncoercive strategies to deal with crime. Or, as Woods Ervin, an organizer with Critical Resistance, a prominent abolitionist organization, explains, “abolition is a political vision with a goal of eliminating imprisonment, policing, and surveillance and creating lasting alternatives to punishment and imprisonment.”1 Abolitionists contrast their approach with that of “reformers.” Reformers view the criminal justice system with more optimism or, at least, as a necessary evil. They seek changes to, not the elimination of, existing law enforcement architecture. Abolitionists think reformers are too timid. Reformers think abolitionists are impractical.
There is a paradox in the American narrative of Mass Incarceration. In theory, making criminal laws more severe should not lead to large prison populations in the long term. That’s because as laws become more severe, crime becomes increasingly unattractive. That should lead, over time, to less crime and shrinking prison populations. No crime is worth the punishments currently on the books. And by now, decades into “tough on crime” policies, everyone should know that crime doesn’t pay. There should be no drug dealing, no unlawful weapons possession, no violence, no repeat offenders. It may sound silly, but if you look at the claims politicians made about why they were increasing criminal severity, this was the idea.
After making an arrest, a police officer typically refers the matter to the local prosecutor’s office. Once presented with a case, that office decides whether to charge the defendant with a crime and, if so, which crime(s). Even if prosecutors initially file a charge, they can still dismiss the case later on. If prosecutors do not dismiss the case, they can seek an informal resolution (often called “diversion”), negotiate a plea bargain on behalf of the government, or take the case to trial. These decisions about which cases to prosecute, and how, are important contributors to the incarceration rate. As this chapter explains, over the era of Mass Incarceration, prosecutors’ primary contribution was to follow the lead of police and legislators. Prosecutors applied the new tools enacted by legislators leading to more severe punishments for crimes generally. And, perhaps most importantly, they uncritically accepted the new mix of arrests forwarded to them by police, flooding the courts with a higher proportion of cases that were easy to prove and punish.
As we will see in the chapters to come, there is wide variety among and across different American jurisdictions in the causes and motives of the march toward increased penal severity. Generalization is possible but requires separating the system into two components: the “criminal justice system” and the “criminal legal system.”
Any book about “Mass Incarceration” should begin with an explanation of that phrase. Clarity about the phenomenon adds precision to explanations of how it came about and the transformative changes needed to reverse it.
Historian James Whitman notes that, historically, governors used pardons to maintain low prison populations. He relates the report of an English observer in 1835 that prisoners in New York “felt unduly wronged” if they did not receive a pardon after serving half of their sentences, a belief reinforced by the existence of “semiannual clemency sessions which resulted in the release of forty to fifty convicts simultaneously.”1 One explanation for the demise of executive clemency was its replacement with more formal types of executive lenience, such as parole.2 As noted in and , however, American jurisdictions would later severely restrict parole. And when that happened, a traditional safeguard against bloated prison populations – the pardon power – did not reemerge.
In 2019, the United States locked up almost 2 million people. And there is no simple explanation for what is going on. There were 196,300 people imprisoned for homicides and another 176,300 people in prison for drug offenses. Each of those numbers is close to three times the entire prison population of countries like France (75,000) or Germany (60,000), and each number rivals the United States’ total prison population in the early 1970s (200,000). Add in all the people incarcerated for other crimes, and those awaiting trial in jail, and you get 2 million – a number that would have been incomprehensible fifty years ago.1
In 1992, McDonald’s introduced a popular menu option that allowed customers to “Supersize” their orders. Around that same time, the United States supersized its criminal justice system. But it wasn’t like McDonald’s. At McDonald’s, the supersized order comes all at once. Voters would have balked had they gotten Mass Incarceration all at once. People could digest Mass Incarceration because it happened slowly, over time. It would be like ordering McDonald’s every week for forty years and getting a slightly larger burger each time. You could go from eating a tiny burger to a massive one without noticing the change.