Too many people are in jail. The rate of incarceration is just going up and up. Is it doing any good?
If you look at the two graphs above, you’ll see that the prison population in the United States has soared, while the amount of violent crime has plummeted. The prison population of 1.5 million is about triple what it was in 1980. Meanwhile, according to the DOJ’s figures, violent crime is about a third of what it was in 1980. It’s an uncanny correspondence, that incarceration has tripled while violence has thirded (yes, that’s a real word).
Some people look at this and say there’s an inherent absurdity, an inherent injustice, that even though crime is down jailings are up. Others say it’s obvious that, if you jail the people who commit crimes, they’re not going to be walking around to commit as many crimes. One sees a paradox, the other sees causation. (These are not straw men, by the way. These positions have been taken on the pages of the New York Times and the Wall Street Journal, among others.)
There really isn’t any paradox, of course. It’s not like more people are being imprisoned than there are crimes being committed. Last we heard, everyone in prison was convicted of something.
What’s going on here is that more and more convictions are resulting in incarceration. Crime may be down, but the proportion of crimes you’re likely to go to jail for is way up.
Nonviolent crimes, in particular, are far more likely to get you a jail sentence these days. Since about the start of the Clinton administration, the number of different kinds of nonviolent offenses has skyrocketed. And drug crimes have been a growing proportion since the Reagan years.
Several factors are involved in this dramatic increase in prison for nonviolent offenses. One is a dramatic increase in regulatory violations that have been criminalized. Regulatory agencies have started using criminal law as a tool — a tool that is wrong for the job, and one they are ill-equipped to use. Voluminous regulations are created to micromanage how people can live their lives and operate their businesses. Fines, denial of permits, and other civil penalties are the normal and appropriate method for enforcing compliance with all the regulations. But over the past generation, regulators have become emboldened to impose criminal penalties for violations of their rules.
These regulations are rarely drafted by anyone who has the slightest clue of what criminal law is, why it exists, and how it works. So they tend to leave out little things like mens rea. Everything’s a strict-liability crime with them. In the regulatory world, simple mistakes are indistinguishable from deliberate transgressions. When the penalty is denial of a permit, that’s not a problem. But when the penalty is prison, it’s a big problem. And everything’s a federal offense, which almost always means a felony. Instead of, you know, regulating conduct, the regulators use the criminal law to keep the unruly masses in line. And more people face prison as a result.
Another factor is the elected politicians’ desire to look “tough on crime.” Which results in a steady ratcheting-up of sentencing for existing crimes, as we’ve discussed before.
It also results in the creation of new crimes, harsher statutes to deal with the public outcry of the moment, like crack or hate crimes or insider trading or what have you. These new offenses are rarely necessary, as existing laws tend to already punish the conduct. But the new ones often carry greater minimum sentences, and that’s the whole point. So more people are facing prison, and for longer stretches of time, than before.
The situation is getting out of hand. It’s gotten to the point where small corrections aren’t going to cut it. Drastic measures would be needed. And drastic measures being, you know, drastic and all, they’re not likely to be undertaken any time soon.
But let’s say we’ve got a genie who’s offered to grant us three wishes here. What would they be?
Wish one would be (more…)