The November 9 Supreme Court arguments on whether it is cruel and unusual to impose life in prison without parole on violent juveniles who have not killed anybody understandably got prominent media coverage.
But a far more important imprisonment story gets less attention because it’s a running sore that rarely generates dramatic "news." That is our criminal-justice system’s incarceration of a staggering 2.3 million people, about half of them for nonviolent crimes, including most of the 500,000 locked up for drug offenses.
Forty percent of these prisoners are black, 20 percent are Hispanic, and most are poor and uneducated. This has had a devastating impact on poor black families and neighborhoods, where it has become the norm for young men — many of them fathers — to spend time in prison and emerge bitter, unemployable, and unmarriageable. (These numbers come from studies cited by Marc Mauer, executive director of the Sentencing Project, a reform group.)
America imprisons seven times as many people as it did in 1972, several times as many per capita as other Western nations, and many more than any other nation in the world.
Yes, violent criminals should be locked up for long enough to protect the rest of us. But the mass, long-term imprisonment of nonviolent, nondangerous offenders in recent decades and excessive terms for others has made us no safer while ruining countless lives and converting potentially productive citizens into career criminals.
The 13-year-old rapist and the 17-year-old serial robber-burglar who are serving life without parole in two Florida cases inspired impassioned comments from justices with opposing views. But the outcome may not have much impact on these two prisoners or anyone else. Even if the Court strikes down their sentences, the state will be free to resentence them to serve, say, 40 years before being eligible for parole, and thereafter to deny successive parole applications until they die. And even if the Court upholds life without parole, the state will be free in the future to relent and release them.
Meanwhile, the damage done by America’s prison binge over the past 30 to 40 years dwarfs the importance of all of the Court’s pending criminal cases.
The damage done by America’s prison binge over the past 30 to 40 years dwarfs the importance of all of the Court’s pending criminal cases.
To be sure, budget problems in recent years have forced some states to hold down their prison populations by relaxing drug sentences. And California is under federal court order to release 40,000 people from its badly overcrowded prisons. Perhaps the budgetary pressure will open more minds to the impressive body of research suggesting that imposing severe prison terms on more and more people is not the best way to fight crime.
Another glimmer of hope is that a bipartisan group of senators, with Obama administration support, is working to ratchet down the overpunishment of mostly nonviolent crack cocaine offenders, 80 percent of whom are black. Tens of thousands are now locked up under grotesquely excessive federal mandatory minimum sentences of five years (for simple possession of 5 grams of crack), 10 years (50 grams with intent to distribute), and more.
But the crack penalties are just the tip of an overpunishment iceberg. And although it’s not growing as fast as before, it’s not shrinking either. "What we’re seeing so far is just a slowing of growth — a tinkering around the edges," Mauer says.
At a cost of $60 billion a year, our prisons and jails do very little to counsel, educate, train, or otherwise prepare prisoners to get jobs and go straight after they’re released. They are barred from public housing, treated as outcasts by many employers, and often surrounded by other ex-cons in their neighborhoods. This makes for very high recidivism, with about two-thirds of those released being rearrested within three years.
The impact on black communities is especially dramatic.
• Blacks are imprisoned at a rate eight times as high as whites.
• Nearly 60 percent of black male high school dropouts, and nearly 30 percent of all black men (if current trends continue), will spend time behind bars — far more than in the worst days of segregation. The result: "In America’s inner cities, incarceration has become the more-likely-than-not norm, not the unthinkable exception," Georgetown University Law School’s David Cole recently wrote in The New York Review of Books.
• The number of drug prisoners increased elevenfold from 1980 to 1997, and the number of black drug prisoners more than quadrupled from 1985 to 1991, according to Cole. Not many of them fit the "drug kingpin" label used by politicians to justify long prison terms.
I don’t attribute these glaring racial disparities to racist animus. Blacks do commit highly disproportionate percentages of violent as well as nonviolent crimes. And some rich white men also get savagely severe prison terms, such as the 25 and 24 years — more than most murderers — imposed on former WorldCom CEO Bernard Ebbers and former Enron executive Jeffrey Skilling, whose appeal is now before the Supreme Court, respectively.
But it’s fair to say that our criminal-justice system is helping to create "a racially defined pariah class in the middle of our great cities," as Brown professor Glenn Loury says in his 2008 book, Race, Incarceration, and American Values.
The prison binge started out as a reaction to crime rates that began soaring in the 1960s, and the federal mandatory minimums were largely a response to the inner-city crack wars of the 1980s. But imprisonment rose more than crime, owing to adoption of draconian mandatory minimum sentences by state legislatures and Congress; restrictions on (and sometimes abolition of) parole; and other "tough on crime" policies.
The nascent countertrend noted above reflects not only budget pressures but also the efforts of reformers such as Sen. Jim Webb, D-Va.; Mauer; Julie Stewart, founder of Families Against Mandatory Minimums; and their counterparts at the state level. Although it has not yet reduced the prison population, there’s room for hope that it might.
How much could we reduce the prison population without turning loose a horde of violent predators? By a lot.
More than 20 states eased some criminal sentences between 2004 and 2006, including New York’s relaxation of its especially harsh Rockefeller drug law. Others have made it easier for well-behaved prisoners to win early release and diverted drug offenders from prisons to treatment programs. At least 19 states have also relaxed their felon disenfranchisement laws — one of the many indignities imposed on ex-prisoners who have served their time — since 1997.
At the federal level, there is an overwhelming policy case for abolishing all of the numerous mandatory minimum sentences that Congress adopted for drug offenses in 1986 and 1988, and relying instead on the common sense of the judges who know the facts of each case and the defendant’s history. Yes, some judges would be too lenient. But federal prosecutors can appeal lenient sentences.
So far, however, most of the Democrats who control Congress seem too worried about opening themselves up to unwarranted Republican attacks for being "soft on crime" to do away with mandatory minimums.
How much could we reduce the prison population without turning a horde of violent predators loose on the rest of us? By a lot.
Experts disagree about how much of the steep plunge in crime rates from about 1994 to 2004 is attributable to locking up so many criminals and how much it owes to demographics. But most of the estimated 1.2 million prisoners locked up for nonviolent offenses are not especially dangerous. Scholars including Mark Kleiman, a professor of public policy at the University of California (Los Angeles), contend that for violent as well as nonviolent offenders, long prison terms — which most potential criminals don’t expect to incur — do less to deter crime than would swifter and surer imposition of less onerous penalties. Even probation, Kleiman writes, can be a real deterrent if accompanied by tough conditions and oversight.
In his recent book, When Brute Force Fails: How to Have Less Crime and Less Punishment, Kleiman argues that the correct reforms would lead to "half as much crime and half as many people behind bars 10 years from now."
"Half as much crime" sounds pretty optimistic, in part because getting our criminal-justice system to do anything swiftly and surely would be a tall order. But reducing the number of people behind bars by several hundred thousand, or even 1 million, seems a reasonable goal.
After all, an incarcerated population of 1.3 million (down from 2.3 million) would still be four times as many — and well over twice as many per capita — as in 1972, when we had 326,000 prisoners.
But budgetary pressures and reformers can move us only so far toward more-sensible sentencing policies unless and until politicians become more enlightened about how best to fight crime.
And we cannot count on much help from the Supreme Court, which in 2003 upheld no-parole sentences, under California’s "three strikes" law, of 50 years for shoplifting $150 worth of children’s videos and 25 years for stealing three golf clubs.
This article appeared in the Saturday, November 14, 2009 edition of National Journal.