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More on the Prison Population--Stuntz

Thanks for the kind post, David.

Many of the comments to my last post took issue with the claim that America’s enormous prison is a serious social problem, and that “pretty much everyone familiar with the justice system” agrees with that sentiment. I shouldn’t have used those words; obviously, there are reasonable and decent people who disagree with that claim.

Here’s what I should have said in that opening paragraph.

Virtually all academics who study crime and/or criminal justice do agree with that claim. Both James Q. Wilson and John DiIulio, the leading conservative intellectuals of the last generation on the subjects of crime and punishment, agree with that claim. Every conservative and/or Republican law professor I know who teaches and writes about criminal justice agrees with the claim. (For what it’s worth, I’m a registered Republican, and voted for the current President Bush twice.) All the liberal Democrats I know in my line of work agree with the claim, and blame conservative Republicans for the problem: one reason I wrote the post the way I did.

During the 1990s, I participated in a police training program run by the FBI at Quantico, Virginia, where I spoke with several thousand local police officers. At the beginning of that decade, the overwhelming majority of those officers saw their chief job as locking up more criminals. By decade’s end, those police officers were mostly looking for ways to keep crime under control without putting more men behind bars—because, in their view, too many are behind bars as it is. Occasionally, I speak to groups of judges. The large majority of the ones I’ve met—again, conservatives and liberals alike—say the same thing: mass incarceration in black neighborhoods has long since passed the point of diminishing returns, and is probably counterproductive.

Here’s the kicker: even if you believe, as I don’t, that all of the two million-plus prison and jail inmates deserve the punishment they’ve received, mass incarceration is still a bad and dangerous practice. In the 1990s and this decade, the jurisdictions that saw the biggest crime drops were the jurisdictions that locked up the fewest criminals, not the most. Deterring crime requires not only that would-be criminals fear punishment; it requires that would-be offenders fear the stigma that criminal punishment carries. When a prison term becomes a rite of passage, even a badge of honor for young men in high-crime communities, deterrence fails. At the level at which we currently imprison young black men, that sensibility is either bound to take root soon, or already has. That isn’t just me talking; you can read Daniel Nagin’s analysis of short- and long-term deterrence in Crime & Justice, vol. 23, beginning at page 1. Nagin is probably the leading criminologist in America today.

All that said, I basically agree with one of Heather McDonald’s claims in a recent article: that America’s enormous, disproportionately black prison population is not primarily the product of white racism. (Link: here.) Urban crime—meaning, disproportionately, black crime—has become an issue politicians in both parties use to seek white suburban and small-town votes. That isn’t racism—it’s politics; politicians always strive to seize on issues that expand their pool of voters and contract the other side’s pool. If the politics of crime is racist, then liberal, pro-civil rights politicians are as guilty of racism as ordinary bigots who are indifferent to the fate of black communities. When we reach that point, the word “racism” has lost its bite. White voters and politicians have been grossly inattentive to the effects of the policies they promote, and the policies themselves are, I believe, bad ones. Still, there is a big difference between bigotry and bad judgment.

On the other hand, I do NOT agree with McDonald that the black portion of the prison population is simply a function of high black crime rates. As I explained in an earlier post, urban blacks are systematically underpunished for violent crime, and vastly overpunished for drug crime. It’s a complicated story, not easily reducible to the good-and-evil dichotomies that Americans tend to embrace in conversations about crime and criminal punishment.

The solution to the problem of swollen prison populations, in my view, is to give more power over policing and criminal punishment in high-crime city neighborhoods to people who live in those neighborhoods. A century ago, that’s how criminal justice worked in Northern cities—and both crime rates and imprisonment rates were much lower than they are today. To put the point another way, outside the South, American criminal justice used to be governed by a kind of neighborhood democracy. Today, the system is governed by a democracy of angry neighbors. That’s a change for the worse.


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Comments ( 12 )

The solutions is to expedite the murder trials, and execute the guilty promptly. This will keep the prison population down to minimum. And swift justice is what the victim's family need.

I cannot emphasis enough how much I agree with most of your post.
But I'm not sure about the conclusion.

It seems to me that "Domestic Policing" may be a product of a nostalgic view of the way things were as the Good Old Days.
If we look at your proposal through the lens of current writings on the ways the "Neighborhood" is constructed by local government law, and the use of local government law as a way to segregate minority groups, moving back to neighborhood policing may lead to a result where the strong groups would create effective private police forces, while the minority (black) communities would be left with no effective police at all in. It would, of course, reduce incarceration rates, but would also reduce the safety of these streets to the point where is would be a life threat to live there.

And a quick note for Saqib: I still cannot believe you actually think that killing more people is a legitimate way to deal with the rising incarceration rates.

I agree with your point about high incarceration rates reaching the point of diminishing marginal returns, and your point that prison cannot be a deterrent when it is a right of passages borders on profound.

Maybe you're right about urban minorities being disproportionately punished for drug crime. But I wonder if many of the "drug convictions" are really cases where the defendant is guilty of many things (drugs, assault, theft) and the prosecution brings the drug charges because they are the easiest to prove and carry the harshest punishment. Another possible factor in our long prison terms might be that we have the world's most generous system of criminal procedure. This makes catching criminals much harder, especially for non-drug crimes. So, we punish the criminals we do catch more.

As to what should be done, I think that punishments for most non-drug crimes (theft, child porn, and violent crimes) come to mind should remain harsh, and a swifter death penalty wouldn't bother me at all. Drug crime is a different story. Perhaps the best solution is a combination of increased efforts to treat addiction and increased efforts to help prisoners become re-integrated back into society. This is something that several folks from Prison Fellowship which whom I've spoken see as critical, and it might help recidivism rates.

Thanks for the clarification. I think there's something to the "domestic policing" idea, but I too worry about what we might call the accountability problem. Devolving policing policy to neighborhoods, including decisions about who would be jailed, might, it seems to me, empower some very real oppression. I guess I have a hard time figuring out exactly how domestic policing could be distinguished clearly from, say, a mafia organization that "kept the peace" but at a pretty high price. I know that's not what you have in mind, but the two aren't that separate, are they?

I am not saying that "killing more people" will address the prison population problem.

What I am saying is "executing all convicted murderers promptly" will reduce the prison population.

Killing murderers is not revenge, it's reckoning.

"If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of innocent victims. I would much rather risk the former. This, to me, is not a tough call." - John McAdams, of the Marquette University/Department of Political Science


I think we are radically different in the way we perceive the death penalty and the idea of it as a tool for deterrence (and I set the question of whether or not it does deter aside for now).

Relaying on deterrence as a justification for punishment is problematic to begin with. It signifies the place where the Criminal Justice system transforms to nothing more than a Crime Control mechanism.

It does not do justice with the criminal, but uses him as a tool for social control. You could say it's a necessity, but it is not just.
If we do this by taking away his life - execute as a means of deterrence, the injustice is intolerable. It means we killed someone because it serves our interests. Not because it was just.

For me "killing a bunch of murderers" is a very big deal. It is still a killing of people. Overlooking this is de-humanizing them, and this is something I can't accept.


It does not do justice with the criminal

We all talk about justice for the criminals. What about justice for the victims?


"One of the uses of our system of justice is to warn others... We are reforming, not the hanged individual, but everyone else." Michel de Montaigne

Prof Stuntz:

I'm not sure of the nature of your disagreement with McDonald.

If big city police cleared MORE violent crimes, do you think that they'd be arresting more blacks, or nonblacks? If they arrested more blacks that would make the disparity worse. If more non-blacks, the only way that could happen was if non-blacks were the perpetrators of more crimes against blacks then blacks were. And I've always heard blacks were victims of crime more.

McDonald's City Journal article also adds statistical evidence for here claim that it isn't just drug offensese

"Critics follow up their charges about crack with several empirical claims about drugs and imprisonment. None is true. The first is that drug enforcement has been the most important cause of the overall rising incarceration rate since the 1980s. Yet even during the most rapid period of population growth in prisons—from 1980 to 1990—36 percent of the growth in state prisons (where 88 percent of the nation’s prisoners are housed) came from violent crimes, compared with 33 percent from drug crimes. Since then, drug offenders have played an even smaller role in state prison expansion. From 1990 to 2000, violent offenders accounted for 53 percent of the census increase—and all of the increase from 1999 to 2004.

Next, critics blame drug enforcement for rising racial disparities in prison. Again, the facts say otherwise. In 2006, blacks were 37.5 percent of the 1,274,600 state prisoners. If you remove drug prisoners from that population, the percentage of black prisoners drops to 37 percent—half of a percentage point, hardly a significant difference. (No criminologist, to the best of my knowledge, has ever performed this exercise.)

The rise of drug cases in the criminal-justice system has been dramatic, it’s important to acknowledge. In 1979, drug offenders were 6.4 percent of the state prison population; in 2004, they were 20 percent. Even so, violent and property offenders continue to dominate the ranks: in 2004, 52 percent of state prisoners were serving time for violence and 21 percent for property crimes, for a combined total over three and a half times that of state drug offenders. In federal prisons, drug offenders went from 25 percent of all federal inmates in 1980 to 47.6 percent of all federal inmates in 2006. Drug-war opponents focus almost exclusively on federal, as opposed to state, prisons because the proportion of drug offenders is highest there. But the federal system held just 12.3 percent of the nation’s prisoners in 2006."

One thing that frustrates me in this hand-wringing over the US's high incarceration rate is that no one even acknowledges the steep drop in crime rates over the last 20 years. Prison may be expensive, but what about the social costs if crime rates were as high as they were in the 1970s and 1980s? Can we at least admit that incarceration *might* be related to this drop in crime?

Prof. Stuntz, you have a more reasonable position on incarceration than most other commentators. What is your view?

Those statistics are fascinating, but I'm not sure I agree with the conclusions McDonald draws from them.
(I should cabin this by saying (1) I haven't had a chance to check McDonald's methodology, and (2) I completely agree with the conclusion that politics and not abject racism is to blame for the current situation.)

First, I'm not sure it's accurate to use convicted crimes as an independent variable here (as opposed to, for example, indicted crimes), given the massive percentage of defendants that plead out and the hefty sentences available for drug crimes. When drug crimes serve as leveraging tools to push cases to plea deals for lesser offenses, we can't rely on the fact that the crime of conviction reflects fully the crimes on the original indictments.

One could argue in response that it doesn't matter -- if a defendant committed (and was indicted for) multiple offenses, a drug count on a multi-count indictment of otherwise non-drug related charges doesn't change the fact that the drug laws are not to blame for their imprisonment. But, it seems there are several problems with this argument: 1) there are, depending on the jurisdiction, several crimes that don't reveal the nature of the underlying criminal conduct (e.g., conspiracy to commit a felony, parole violation). Convictions for such crimes still won't read as drug offenses even if the underlying offense involves narcotics. 2) If the hefty drug sentences are being used to push defendants to execute deals when they would otherwise fight the charges, the ultimate charge of conviction, while not drug related, still reflects the impact of the drug system. 3) if drug laws are serving as predicates for sentence enhancements of other crimes (e.g., if a person is convicted of assault and receives a more substantial sentence because they had been convicted of a drug crime before that), then the enhancement in the second sentence is still part of the drug law system. Finally 4) drug law and policy may in fact be breeding the commission of other crimes. Apart from the obvious association btw violence and the illegal nature of the drug trade (I'm thinking here about the relationship btw prohibition and the mob), the punitive nature of our prison system does little to address addicts' need for treatment, and dealers' need for other forms of gainful employment (or maybe that's better phrased as "our need for addicts to get treatment and dealers to get other jobs").

All this is to say, I don't think you can just "remove drug prisoners from [the] population" to zero-out the impact of drug sentencing laws.

Second, I'm not sure I agree with McDonald's point about comparative rates of incarceration for violent/property/drug crimes. Putting aside all the difficulties I've just mentioned about splitting apart the imprisoned population based on ultimate crimes of conviction, even if we assume, as she suggests, that 70% of the prison system is comprised of non-drug offenders, it does not follow that the drug laws aren't the source of troubling rates of incarceration. Needless to say, a 20-30% reduction of the prison population would have a substantial impact.

The question then is why focus on drugs and not violent/property crimes. I think we all agree generally that imprisoning an individual has massive costs (to the person and to the society at large), but can be justified in certain circumstances by the substantial benefits it can yield. The question then is not "how much of what group," but, "how much of what group and why?". That is, it is not enough to compare numbers and say, "this group makes up more or less of the change in prison population." Instead, the question is whether the benefits of incarcerating more of that particular population justifies the costs.

Put another way, the best way to look at it may be as one would look at a budget: dividing up necessary and unnecessary expenses. Uncontrolled increases in necessary expenses are one kind of problem, and hard to deal with. But, increases in unnecessary expenses are both a bigger and a more manageable issue (bigger because they should have been managed and weren't). If, in fact, the 30% comprised by drug offenders is unnecessary (and the rise in violent incarcerations is), even if imprisonment increases were equal parts drugs and violent offenders, one could point to the share comprised by drug offenses and claim that they are the bigger (or at least more immediate) problem.

(Phew! Hope that wasn't too long and was at least semi-coherent.)


Convictions in opposition to the death penalty are often passionate and deeply held. That would be no excuse for reading them into a Constitution that does not contain them, even if they represented the convictions of a majority of Americans. Much less is there any excuse for using that course to thrust a minority’s views upon the people. Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us — the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which JUSTICE BLACKMUN did not select as the vehicle for his announcement that the death penalty is always unconstitutional — for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina, cert. pending, No. 93-7200. How enviable a quiet death by lethal injection compared with that! If the people conclude that such more brutal deaths may be deterred by capital punishment; indeed, if they merely conclude that justice requires such brutal deaths to be avenged by capital punishment; the creation of false, untextual, and unhistorical contradictions within “the Court’s Eighth Amendment jurisprudence” should not prevent them. (Callins v. Collins, Director, Texas Department of Criminal Justice, Institutional Division., 1994)

Callins v. Collins, Director, Texas Department of Criminal Justice, Institutional Division., 510 U.S. 1141 (The Supreme Court February 22, 1994)