Lots of modern politicians rally their voters under the banner of “law and order.” But there’s nothing especially novel about electing tough-on-crime strongmen. According to the National Research Council’s “The Growth of Incarceration in the United States”, the American prison population was stable between the 1920s and the early to mid-1970s.
After that, public discourse and policy took a punitive turn, resulting in the number of prisoners more than quadrupling over the next 40 years. America’s current penal community is 2.2 million strong, which is one-quarter of the world’s prisoners and an incarceration rate as much as 10 times higher than other democracies.
Furthermore, according to the Bureau of Justice Statistics, as many as 68% of prisoners get re-arrested within three years of being released. Around 83% of prisoners recidivate within nine years of their release.
These figures are disquieting on their own, but they’re only part of the story. Someone who didn’t know better might suspect that the design of America’s criminal justice system in its current form purposely generates new prisoners and recidivists — not rehabilitates them.How Did America Get This Way?
In the 1970s and '80s, American politicians found they could score easy points with voters by promising “deterrents,” rather than measures that would tackle the root causes of crime: income inequality, mental illness and drug abuse. Maybe we should call this the “Batman moment.” We started choosing our leaders by how many poor, mentally ill, minority and forgotten citizens they could punish, rather than by the number they could lift out of poverty and struggle.
One of the policies birthed by “tough-on-crime” culture was so-called “truth in sentencing” laws. In the early '80s, the federal government practically threw grant money at states in exchange for passing these laws, which ensured that prisoners served the full measure of their sentence — no matter what.
Another jaw of what some call “the recidivism trap” is the lack of rehabilitative opportunities for inmates once the prison system has subsumed them. We know that attaining education, social bonds, employment opportunities and other connections to people and institutions has a close link with moderating criminal behavior.
After leaving prison, a person who’s gone without treatment for their underlying mental health and addiction issues, if any, and whose station in society remains unchanged from the day they were arrested, has two roads in front of them. One leads to gainful employment and rehabilitation and the other to new crimes and more prison time. We aren’t doing enough to make the first road a realistic option for those who’ve already paid their debts.
Many of America’s Prisoners Are Not Criminals
Worse, we tend to cull this massive and growing prison population from the most disadvantaged communities in America. Those suffering from mental illnesses or substance abuse disorders frequently find themselves at the mercy of the arrest-incarceration and re-arrest-and-reincarceration cycle because they get treated like criminals, rather than victims of disease or environment.
It is also a very poorly kept secret that the reason for escalating the war on crime and drugs in the first place — most notably by the Nixon administration — was to criminalize the black and anti-war communities. Nixon’s advisers have been explicit about this point since.
America is now hearing calls from far and wide to expunge its rosters of low-level drug offenses. Doing so would go a long way toward healing some of the damage wrought by cynical law-and-order presidents and senators.
In a report called “How Many Americans Are Unnecessarily Incarcerated?” the Brennan Center for Justice explained why it believes 39% of the American prison population shouldn’t be there. Their research found what they called “little public safety rationale” behind their sentences. A significant portion of these 576,000 individuals have already served lengthy sentences or are low-level, non-violent offenders.
The latter, argues the Brennan Center, would be far better off receiving treatment, probation, community service and other methods for re-assimilation than with prison sentences. Moreover, returning them to society would free up $20 billion per year, which is enough to hire hundreds of thousands of schoolteachers or probation officers.
How Can We Fix This?
Criminal justice reform is a popular topic among politicians and voters all along the political spectrum. But what forms should it take?
One immediate step is to abolish private prisons. The concept is ethically horrifying to begin with, but it’s also resulted in the assembly of one of the most powerful lobbying organizations in the country.
For-profit prisons hold 8.2% of the U.S. inmate population today, after peaking in 2012. Even so, they have a grossly disproportionate amount of influence on sentencing laws. Private prisons earn $3.3 billion per year off the backs of inmates and spend hundreds of thousands of dollars at a time getting tough-on-crime politicians elected. Bunks get filled and pockets get lined, and our laws stay harsh.
Addressing that harshness of the law is step two. The Brennan Center advocates for eliminating prison sentences for low-level crimes, except in highly unusual circumstances, and making prison sentences more proportional to the crime committed.
There are plenty of other changes to make, too. Some states do not allow past convictions to weigh on your case if you find yourself in court a second time, but this isn’t true everywhere. It’s enough of a problem that The Marshall Project calls it out directly in their steps for reducing recidivism. Doing so requires that we acknowledge “desistance behaviors,” which provide a “social context” for crimes, rather than a binary choice.
In other words, if a person who committed a violent crime in the past later gets arrested for shoplifting, they are exhibiting desistance — or an attempt to become more law-abiding. The United States needs a desistance-minded approach to addressing and preventing crime. A compassionate, rather than punitive, attitude toward low-level criminals.
We also need to stop disproportionately arresting people of color. Full stop. The racial disparities in the American penal system have an outsized impact on communities of color. Communities known for crime tend to stay that way, despite our myths about second chances and upward mobility.
A report to the United Nations about racism in America’s justice system found that people of color are more likely to get arrested, convicted and sentenced to harsh prison sentences than white people. The same has been true for generations. Denying it’s a problem, or that it contributes to recidivism, makes you part of the problem.
What Are Prisons For?
There is rare bipartisan support for overhauling the justice system in America. Getting it right means asking ourselves what prisons are supposed to accomplish in the first place. They’re, first of all, meant to keep the public safe. But as we’ve seen, the policing of our population often has an extremely tenuous relationship with the concept of public safety.
Prisons are, second of all, for ensuring that people who do cause harm to society can atone for their crimes and improve themselves in the bargain. Recidivism is a symptom. It’s a sign that we live in a country that doesn’t care about its neighbors and would rather sweep its problems under the rug than solve them for good. We can do a lot better.