Why We Should Lock Up Rich Criminals

It actually may end the nation’s mass incarceration problem.

Senator Elizabeth Warren at a rally. Source: Wikimedia

Elizabeth Warren has stood out as one of the 2020 race’s most important candidates for her policy proposals. A newsworthy Warren policy seems to come out every month. In January, it was her policy for a wealth tax, which would go beyond the high marginal tax rates that many progressives and 2020 candidates support. Her most recent proposal would place wealthy executives in jail for data breaches and other negligent behavior. This effort struck some observers as missing the bigger picture. Carissa Byrne Hessick and Benjamin Levin at Slate argued that such arrests would only further the nation’s infatuation with harsh prison sentences. They note that Warren is right to argue “the rich and poor are treated differently in the criminal system. But we should not use the much-criticized treatment of poor defendants, particularly poor defendants of color, as a model for policymaking.” The focus, according to Hessick and Levin, instead should be on restorative justice and regulatory regimes, even for unsympathetic individuals like pharmaceutical executives or the leaders of Cambridge Analytica.

Contrary to Hessick and Levin, placing wealthy criminals in jail would not contribute to mass incarceration. In fact, it would most likely diminish support for mass incarceration faster than any other concerted political effort.

Perhaps the main reason for poor prison conditions and mass incarceration is the lack of political power held by those in prison. They do not have the means or organizing power to fight back against horrendous prison conditions or restrictive sentencing. While prison terms have reduced since their peak in the 1990s, there are still millions of people incarcerated for nonviolent offenses or under the purview of mandatory-minimum and three-strike laws.

Locking up more rich people would significantly alter this state of affairs. It would create a class of criminals and prisoners that did have the means to influence lawmakers. Instead of locking up almost exclusively the homeless or the unemployed, state and federal officials would start putting campaign donors and titans of industry in prison. These men and women would then have both the means and the incentive to fight back against the carceral state. Prison officials would no longer be able to act sadistically with impunity. Politicians would also have an incentive to improve prison conditions and sentences in the form of potential campaign contributions from wealthy former prisoners and their friends.

For evidence of this case, look no further than the father of the president’s son-in-law, Jared Kushner. Charles Kushner was sentenced to two years in prison in 2005 on charges of campaign finance violations, tax evasion, and witness tampering. Partially as a result, Jared has been an active campaigner for prison reform. He was able to push President Donald Trump, who has been nominally opposed to shorter sentences, to support a modest prison reform bill. That bill, the First Step Act, was passed in 2019 in a nearly extinct example of bipartisanship. Without the prison experience of a wealthy individual, the bill most likely would not have had the support it needed to become law.

Opponents of mass incarceration for the wealthy have good intentions. They want to reduce the number of people in jail and believe that more jail sentences are inherently contrary to that goal. But opponents of mass incarceration are not simply political philosophers. They are activists, men and women who want to achieve political goals. The best way to accomplish those goals in today’s political climate is to recruit powerful, wealthy individuals to one’s side. And the best way to convince a person to fight against horrific prison conditions is the threat that they may have to suffer those conditions one day.