Don't Throw Away the Key
Lessons from the "Get Tough
On Crime" Initiatives
by Marc Mauer
Resist newsletter March/April
In 2003 the U.S. Supreme Court issued
a remarkable decision in regard to the "three strikes and
you're out" law in California. The 1994 law, the most far-reaching
of its kind, called for a sentence of 25 years to life for conviction
of any felony following two prior convictions for violent or serious
felonies. The two cases before the Court involved one man whose
third strike of stealing three golf clubs from a sporting goods
store resulted in a sentence of 25 to life and another found guilty
of stealing $153 worth of videotapes from a K-Mart store on two
occasions and sentenced to 50 to life. The Court, in deferring
to the judgment of the California legislature, found that the
law did not represent cruel and unusual punishment, and let the
As a result, California taxpayers will
be spending well over $1 million to incarcerate these two men
for their low-level property crimes. Such is one outcome of the
three-decade-long race to incarcerate.
To understand the contours of this movement,
we can best observe it by looking at changes in the prison population.
From a combined prison and jail population of about 330,000 in
1972, we have since had a five-fold increase, yielding a prison
population of 2.1 million today, and creating a situation that
many are increasingly referring to as mass incarceration. This
prison population translates to a rate of incarceration of 724
per 100,000 population, placing the United States comfortably
in the world lead in this regard, with a rate five to eight times
that of most other industrialized nations.
While the US has a higher rate of violent
crime than most comparable nations, the dramatic increase in the
use of prison is related almost entirely to changes in policy,
and not crime rates. That is, policymakers at all levels of government
have enacted laws and procedures designed to send more people
to prison and to keep them there for longer periods of time. For
the period 1980-1996, for example, a time when the inmate population
tripled, 88% of this rise was a result of changes in sentencing
policy, and just 12% due to changes in crime.
The general direction of these policy
changes has involved legislative restrictions on judicial discretion
at sentencing, and the wide adoption of mandatory sentencing policies.
These have been applied most frequently to drug offenses, requiring
judges to sentence offenders to fixed terms in prison regardless
of individual circumstances. Many states have also enacted restrictions
on parole release, earned good time, and other policies, thus
increasing time served in prison. And at the extremes, 130,000
people-one of every 11 people in prison-are now serving life sentences,
one-quarter of them life without parole. These figures have nearly
doubled since the early 1990s.
While these policies have ostensibly been
enacted to reduce crime, in fact their impact is far more tenuous
than many believe. In addition, rarely have "get tough policies
been established after a careful consideration of available research
on their expected effects. Rather, they have derived from the
virtually uniform bipartisan consensus among political leadership
that "tough on crime" policies are key to one's electoral
prospects. In recent years, these dynamics have been exacerbated
by pressure from rural political leaders seeking new prison construction
as a form of economic development to aid their beleaguered communities.
While these calculations often turn out to be misguided, they
have contributed to the momentum for prison expansion that has
also set in motion a broadranging set of collateral consequences
that are exerting a substantial burden on low-income communities
The Incarceration-Crime Relationship
Since the early 1990s there has been much
discussion about the steady decline of crime rates. Many observers
have attributed this to the dramatically increased prison population
during this period, arguing that either through incapacitation
or deterrence placing more people behind bars has reduced overall
The full results are not all in yet, but
the emerging research view shows us that the dynamics of the crime
decline are far more complex than a simple incarceration-crime
relationship might appear. We can see this in several ways.
Studies to date suggest that the rise
in imprisonment during the 1990s was responsible at best for a
quarter of the decline in violent crime. That is not a trivial
impact, but it also tells us that at least three-quarters of the
decline was not due to greater use of prison. Several factors
explain most of the decline. These include a relatively strong
economy during this period, the waning of the crack cocaine epidemic
and its associated violence beginning in the early 1990s, the
movement toward community policing in some cities, and behavioral
changes among young people to avoid situations of potential conflict
Increasingly, we are finding that high
rates of incarceration may also result in counterproductive effects
on crime. This comes about due to high mobility in certain neighborhoods
caused by people cycling in and out of prison. As a result, there
is a fraying of social bonds between families and neighbors, and
the loss of informal controls that normally contribute to public
For example, when a low-level drug offender
is sent to prison, that person's crime "potential" is
removed from the community for a period of time, but so also are
whatever positive connections the person maintains with the community.
That is, people sent to prison cannot commit crimes while they
are incarcerated, but they also cannot function as parents, workers,
consumers, and neighbors.
These dynamics have been borne out in
a recent study in Tallahassee, Florida. Researchers there found
that imprisonment brings some reduction in crime at modest levels,
but that at higher levels it actually contributes to an increase.
While we should not discount whatever
effect greater imprisonment had on reducing crime, we also need
to keep in mind that this equation still does not tell us how
prison compares to other interventions. In fact, a good deal of
research in recent years demonstrates that investments in drug
treatment, school completion programs, and interventions with
families at risk produce greater crime reduction effects than
continued expansion of the prison system.
Mass Incarceration & Collateral Effects
While there have long been studies of
the effect of imprisonment on individuals who are incarcerated,
there is now increasing evidence of a broad range of collateral
effects of mass imprisonment on society. Most immediate is the
effect on the families of prisoners. There are now about 1.5 million
children in the US who have a parent in prison. For African American
children, one of every 14 has a parent behind bars on any given
day. For these children, the experience of shame, stigma, and
loss of financial and psychological support becomes a profound
aspect of their life experience.
The effect on these communities is compounded
by the fact tha imprisonment has become a commonplace experience
of growing up as a black male in the US. Government figures show
that a black male born today has a one in three chance of spending
at least a year in prison at some point in his life. Thus, while
children in well-off communities grow up with the expectation
that they will go to college, many in low-income communities now
grow up with the prospect of doing time in prison.
High rates of incarceration in low-income
communities also affect family formation and stability. This is
primarily caused by the fact that so many young men are "missing"
in these communities. In some neighborhoods in Washington, DC,
for example, there are only 62 men per 100 women, with most of
this gap explained by imprisonment. Thus, the prospects for finding
marriage and parenting partners are very limited. Further, with
so many people cycling in and out of prison each year, families
are disrupted due to the loss of economic support, the burdens
brought on by visiting and supporting loved ones in prison, and
the social stigma of having an incarcerated family member.
Incarceration, Priorities and Democracy
Building and maintaining prisons is expensive,
currently costing about $25,000 a year to house a person in prison
and $57 billion overall in the US. At the state level the rising
cost of imprisonment exerts a direct impact on funding for universities
and social services. Between 1985 and 2000, pending on corrections
rose at six times the rate of spending for higher education. Essentially,
policymakers are faced with a choice of whether they wish to contribute
to an expanded prison system or provide vital social services.
These figures take on particular meaning
when we recognize that the prison population in the US is incarcerated
for nonviolent property or drug crimes. Thus, we are spending
considerable funds imprisoning hundreds of thousands of offenders
who do not present great danger to the public and for whom alternative
means of treatment and supervision could be developed.
Current levels of imprisonment are also
increasingly influencing the nature of democratic society. Conviction
of a felony offense generally leads to the loss of the right to
vote for a period of time. In all but two states (Maine and Vermont),
felons in prison are prohibited from voting, and in two) thirds
of the states persons on probation or parole also cannot vote.
Most dramatically, persons convicted of a felony in 11 states
can permanently lose the right to vote, long after they have completed
serving their sentence. In the historic 2000 election in Florida,
where the presidency was decided by a margin of 537 votes, an
estimated 600,000 people who had completed their sentences were
ineligible to vote due to that state's restrictive laws.
In the upcoming Congressional elections,
five million people will be unable to vote as a result of a current
or previous felony conviction, including one of every eight black
males. Thus, we have a set of policies whereby extremely high
rates of incarceration translate into the loss of voting rights,
which in turn reduces the impact of communities of color in particular
in having a voice regarding the wisdom of these policies.
Prospects for Change
In recent years, there have been signs
of a reconsideration of the "get tough" approach to
crime. Largely driven by budget considerations, more than half
the states have enacted reforms to their sentencing and drug policy
laws, moving to divert low-level offenders into treatment programs
rather than prison. The concept of "prisoner reentry"-the
recognition that people in transition from prison to the community
need a variety of services and support-has begun to unite liberals
and conservatives around a practical approach to reducing recidivism.
And the growth of restorative justice, an approach that seeks
to bring healing to both victims and offenders, has gained ground
in a variety of settings both within and outside the formal justice
These developments are encouraging, but
their overall impact is still relatively modest. If we are to
truly reverse the nation's race to incarcerate, it will require
a significant shift in both the political climate and the cultural
commitment to punishment. That is a large goal, but one which
would affect not only the size of the prison population, but our
whole notion of community and problem-solving.
Marc Mauer is the Executive Director of
The Sentencing Project in Washington, DC. The second edition of
his book, Race to Incarcerate, has just been published by The
New Press. This article is based on a presentation to the international
Corrections and Prisons Association conference in Beijing.