I help run a show called Unsafe Space, where people do standup on controversial topics followed by a discussion with experts and the audience.
Our most recent show was on incarceration, featuring Heather Mac Donald of the Manhattan Institute and City Journal, Thaddeus Russell, author of A Renegade History of the United States, and comedians Petey DeAbreu and J-L Cauvin. It was a fun and interesing show — you can listen to the podcast here. Afterwards I had more questions and felt some arguments deserved more attention; I’ve posted them along with some research to help keep the discussion going.
What is the cause of high incarceration rates?
The first argument on the show was over whether that US incarceration was high because the US had higher rates of crime than other first-world countries, or that it it was a natural response to the prohibition of drugs, prostitution and gambling. However, one position that wasn’t explored was that high incarceration rates are an effect of tough-on-crime laws passed during the 1970s through 1990s.
First, while the US murder rate is indeed about 4 times higher than the UK, it’s still relatively rare. Gallup polls and the UN’s International Crime Victims Study found the US had similar or lower overall rates of violent and property crime as Canada or Western Europe. Despite this, the US’s prison population is three to five times higher. Drug use is higher in the US, but under 20% of the US prison population is in jail for drug offenses and few are imprisoned for gambling or prostitution, so it isn’t enough to make up the discrepancy.
One in-depth study on from the National Research Council found a few factors driving high incarceration:
“During the 1980s, the U.S. Congress and most state legislatures enacted laws mandating lengthy prison sentences — often of 5, 10, and 20 years or longer — for drug offenses, violent offenses, and ‘career criminals.’ In the 1990s, Congress and more than one-half of the states enacted ‘three strikes and you’re out’ laws that mandated minimum sentences of 25 years or longer for affected offenders. A majority of states enacted ‘truth-in-sentencing’ laws requiring affected offenders to serve at least 85% of their nominal prison sentences.”
A Washington Post investigation also interviewed several experts who pointed to the US’s unique system of directly electing sheriffs, prosecutors, and other justice officials. This translated into a greater impact on the justice system from a populace eager to get tough on crime after the spike in lawlessness of the 60s and 70s. it. It was compounded by the US investing less in mental health facilities or safety nets than other countries and more people ending up in prison than alternative programs.
The discrepancy between countries is illustrated in Justice Policy Institute’s report “Finding Direction: Expanding Criminal Justice Options by Considering Policies of Other Nations”:
These charts indicate that despite having similar prohibitions (and regardless of the merits of them), other countries are able to maintain them without the US’s uniquely high incarceration rate. Given the US’s higher rate of drug use but (purportedly) similar rate of violent and property crime, it suggests that illegal drug markets are not the chief factor driving those crimes.
With all that said, it’s possible I’m not getting the whole picture, and I’m sure other experts have seen these arguments before. What do you think?
Was mass incarceration led by progressive politicians?
The argument was also made that incarceration had been increasing since the 1920s at the behest of liberal politicians, starting with the new-dealers.
However, data from the Federal Bureau of Prisons indicates that there was a big spike in the prison population in the 1970s after remaining roughly stable since the 1930s.
So what was going on here?
Many sources point to the efforts of Republicans in the 60s and 70s — Barry Goldwater is said to have had one of the first tough on crime platforms, and Nixon’s anti-drug efforts, popularly known as starting the War on Drugs.
That said, Democrats pushed many influential pieces of legislation — including minimum sentencing laws and Bill Clinton’s 1994 crime bill, though these are often framed as a response to pressure to show they’re not “soft on crime.”
What defines a progressive? Are the economic and racial identities distinct, and has the definition changed over time? To what extent is it relevant to point fingers at who is responsible?
Audience member: it isn’t an honest conversation if you don’t address the role of racism in the criminal justice system.
Russell and Mac Donald generally agreed there was presented was that there wasn’t a racist conspiracy to disempower black men as presented in “The New Jim Crow,” and that while racism was responsible for the ghettoization of black communities that created crime, deliberate action was not; rather, tough on crime approaches were driven by minority communities disproportionately affected by crime.
This led one audience member to say that it wasn’t an honest conversation without addressing the role of racism, which would be present in any institution.
It’s worth noting that for racism doesn’t just manifest itself in conspiracies. Bias in the criminal justice system can also affect things like biased sentencing, jury verdicts, and targeting by law enforcement. A Slate article, “What it’s like to be black in the criminal justice system,” uses charts from various studies to illustrate discrepancies at each stage of the justice system. This is at odds with the assertion during the show that no criminologists found evidence of racial bias in the criminal justice system.
A Bureau of Justice and Statistics analysis found significant racial disparity in sentencing for black males — but also noted it might not be due to individual racial bias, but the fact that courts that gave out harsher sentences across races tended to serve more black people. It also noted that many variables are highly correlated with race — education, employment status, etc — and it bundled them in with race rather than controlling for them. A different approach could yield different results. Which is the right decision?
It also may be too abrupt to dismiss the role of deliberate action in creating disproportionate minority incarceration rates.
Strategies like George H.W. Bush’s Willie Horton ad (which even its creator disavowed and Republican strategists at the time called racist) relied on stoking white fear of black crime, rather than supporting minority communities. Denying felons the right to vote disproportionately disenfranchises poor minorities. Was that political move really an attempt to address the needs of minority communities or, as the New York Times writes, to gain political advantage? Nixon’s War on Drugs was allegedly described by his domestic policy chief as an attempt to fight blacks and hippies. Another advisor apologized to the NAACP in 2005 for focusing on whites and ignoring black votes — a strategy Republicans gave detailed interviews about at the time.
On a local level, leaked audio documents an NYPD Captain pressuring an officer to stop more black and hispanic males for subway violations. The Department of Justice’s report on Ferguson found myriad racial discrepancies and examples of terrible behavior among police. How are those explained by the view that racial discrepancies are not perpetuated by police and that they’re fighting for minority communities? Pointing to racial differences in the rate of offense can explain part of the discrepancy (and is too often ignored), but it may not explain all of it: police were more than twice as likely to search black drivers after a traffic stop, even though they were 26% less likely to have contraband than whites. The investigation also found that police abused “failure to comply” charges by using them to arrest people who had no legal obligation to comply (and who were 94% black). Also, while national rates of offending may be higher as measured by the National Crime Victims Survey and other tools, no similar data exists for local cases like Ferguson or for ambiguous offenses like resisting arrest— so the assumption that all of Ferguson’s starkly different racial punishment rates must be because they offended more isn’t actually substantiated.
An Atlantic article observes that though the DOJ report documents what might be considered conservative’s worst fears of government — extracting onerous fines and money from its citizens— conservative media has generally not decried it (with exceptions). Focusing on that victims and perpetrators of crime are disproportionately minorities doesn’t excuse documented instances of victimization at the hands of police or profit-focused policing. Or is this argument a red herring? What do you think?
If you’ve read this far, I’m curious to hear your thoughts. You can leave a comment below or on our facebook page.