Don't Throw Away the Key

Lessons from the "Get Tough On Crime" Initiatives

by Marc Mauer

Resist newsletter March/April 2006

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 sentences stand.

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 of color.

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 crime.

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 and violence.

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 safety.

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 system.

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.

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