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PUNISHMENT AND CRIME

Those who tar the criminal-justice system as racist often make a broader claim: incarceration doesn’t even lower crime, making the nation’s skyrocketing prison rolls a particularly senseless injustice.

Incarceration foes are right about one thing: the U.S. prison population has swollen dramatically over the last three decades. The per-capita rate of imprisonment increased three times from 1973 to 2000; the number of state and federal prisoners grew fivefold between 1977 and 2007, from 300,000 to 1.59 million. When inmates in jails are included, the total number in correctional facilities at the end of 2014 was 6.3 million, according to the Pew Center on the States. Three in 100 adults is in custody.

This expansion represents a resounding rejection of the reigning crime philosophy of the 1960s. The 1967 report of the President’s Commission on Law Enforcement and Administration of Justice, a classic Great Society document, argued that society could reduce crime only by eliminating poverty and racism, ideally through government-funded social programs. Consistent with this theory, prison capacity began dropping during the sixties and only stopped falling during the late 1970s, when crime reached intolerable levels. Thereafter, the states started adding prison beds and passing laws to keep offenders locked up longer and to reduce judicial discretion to issue very lenient sentences.

Few subjects have proved more contested in criminology than whether this prison buildup lowered crime—and, if so, by how much. Anyone entering the thickets of incarceration studies should abandon all commonsense assumptions, such as that locking away, say, a burglar, would reduce burglary rates. Not so, say the criminologists, and at first glance, the crime data from the late-twentieth-century prison expansion seem to support them. Only after 1991 was the rise in incarceration consistently accompanied by decreasing crime rates; in the 1980s, crime went up and down, even as the prison population steadily grew. And now that crime is falling, the criminology world finds itself even more puzzled by why the prison population keeps increasing.

Two of the most common theories as to why prison doesn’t lower crime are logically weak and empirically ungrounded. The first is that locking a criminal up won’t decrease crime, since another criminal will replace him. Yet while crimes meeting an illicit consumer demand may operate within a supply-and-demand framework, opportunities for violence and property crimes hit no natural ceiling. There are plenty of potential victims of violence and theft to go around; a potential robber need not wait for a competitor to go to jail before he can begin his own crime spree.

The second theory to explain why prison doesn’t work applies the law of diminishing returns to incarceration. As we lock up ever more people, we start scraping the bottom of the criminal barrel, the critics say. The prisoners we incarcerate become more innocuous than those picked up initially, so we get a diminishing bang for the buck for every new prisoner sent away.

However impeccable the economic reasoning behind this claim, there is no empirical evidence for it. The diminishing-returns argument assumes that the universe of unapprehended and unincarcerated criminals is shrinking. It is not. The chances of getting caught and sent to prison remain extraordinarily low. The JFA Institute, an anti-incarceration advocacy group, estimated in 2007 that in only 3 percent of violent victimizations and property crimes does the offender end up in prison. In 2004, only 1.6 percent of burglars were in prison, according to the Bureau of Justice Statistics. The people in prison today, says statistician Patrick Langan, are “not very different from prisoners in the past, in terms of their prior records.”

In the overwhelming majority of cases, whatever the race of the convicted, prison remains what it has always been: a lifetime achievement award for persistence in criminal offending. Absent recidivism or a violent crime, the criminal-justice system will do everything it can to keep you out of the state or federal slammer. It can be disconcerting for the average law-abiding citizen to hear a prosecutor’s typology of the crime universe: most thefts, for example, are considered “nonserious crimes” that do not merit prison sentences, unless they concern a huge amount of money or took place in the victim’s presence. Steal an unoccupied car or burgle an unoccupied home and you’ll probably get probation; hijack a car from a driver or stick up a pedestrian, however, and you’ll probably go to prison.

Columbia University law professor Dan Richman had a chance to test the “harmless offenders in prison” claim as chair of New York City’s Local Conditional Release Commission. Richman studied the criminal profile of Rikers jail inmates in late 2004. Jails are supposed to be where the most “innocuous” lawbreakers end up—those with misdemeanor convictions or sentences of less than a year. “It struck me how serious the offenders were,” he says. “I’d come from the academy, where there’s persuasive writing about over-incarceration. I had assumed there would be mostly first-time offenders in jail, but it wasn’t true.” About 40 percent of the inmates had prior felony convictions, Richman discovered, and the inmates’ most recent offenses, which had put them in jail this time around, were usually serious. People in for assault would have pleaded down from attempted manslaughter; possession pleaded down from distribution. “These weren’t people who were there by accident,” says Richman.

One can also test the theory that locking away offenders doesn’t lower crime by seeing what prisoners do when they get out. The Bureau of Justice Statistics studied the post prison careers of over 272,000 state prisoners released in 1994. Within three years, 67.5 percent of the group had been rearrested for 744,000 new felonies and serious misdemeanors. How many additional crimes they committed during those three years before getting arrested is unknown; estimates of the number of crimes that a typical unapprehended criminal commits per year range from zero to several hundred. And the ex-cons’ post-release crime spree seems not to have resulted from the negative effects of prison itself, since convicts who spent the longest time behind bars had significantly lower re-arrest rates than others.

Not all criminologists and law professors dispute that prison lowers crime. University of Chicago economist Steve Levitt hypothesized in 1996 that had incarceration rates not risen sharply from 1971 to 1993, violent crime would have been 70 percent higher and property crime almost 50 percent higher. More typical estimates attribute 10 to 25 percent of the 1990s crime drop to incarceration. And Berkeley law professor Franklin Zimring rejected the diminishing-returns argument against incarceration in his 2007 bookThe Great American Crime Decline. The fact that crime started dropping consistently only at the end of the decades-long prison buildup makes perfect sense, he argued, since that’s when the greatest number of criminals were off the streets.

 

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