Despite a declining crime rate, the United States maintains higher incarceration rates than even Russia and Cuba, raising questions about its reputation as the "land of the free."
Consider a scenario where a business doesn't need to persuade customers to choose its product and can bill non-customers regardless. Bureaucratic entities like the Postal Service, Amtrak, and the Department of Veteran Affairs enjoy this privilege. Now, imagine if this enterprise could enforce its services on users, irrespective of their preferences. Law enforcement stands as one of the few American institutions with such authority. Today, the U.S. boasts twice as many prosecutors as it did in the 1970s, and each one now sends more than double the number of individuals to prison compared to that era.
In the thought-provoking book, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, John F. Pfaff delves into why the United States incarcerates more people than ever, even as crime rates continue to drop. In the early 1970s, state and federal prisons housed 200,000 Americans; today, they incarcerate over 1.5 million. An additional 700,000 individuals are held in local jails, pushing the U.S. to have higher incarceration rates than Russia or Cuba.
Mr. Pfaff, a Fordham law professor and economist, asserts that the American criminal justice system defines too many offenses as warranting jail time, and prisons often function as revolving doors. He aptly likens incarceration to radiation therapy: it targets the disease but inflicts significant collateral damage.
In 2012, a Pew Survey revealed that 69% of Americans oppose the government's practice of imprisoning nearly 1 out of every 100 citizens. Reading "Locked In" clarifies why this number is so high. Contrary to claims linking higher incarceration rates to decreased crime, Mr. Pfaff cites multiple studies indicating, at best, a minuscule effect. Criminals who commit crimes of passion do not weigh the prospect of serving time heavily. Furthermore, most criminals become less violent with age, rendering lengthy prison sentences ineffective in enhancing safety.
Incarceration for what many consider non-crimes can have unintended consequences. When the U.S. Justice Department investigated the police in Ferguson, Missouri, following the 2014 shooting death of Michael Brown by an officer, they uncovered that the city's police routinely threatened citizens with jail for minor infractions like having an overgrown lawn. Law enforcement was employed to boost city revenue through ticketing and forfeitures, leading to a strained relationship between the public and the police.
Americans currently spend $200 billion on the legal system overall, with $50 billion dedicated to incarcerating fellow citizens. As if this weren't concerning enough, Mr. Pfaff compellingly argues that incarceration disrupts the lives of those imprisoned and their families long after their sentences conclude. Only half of those released secure employment within a year of release, while a significant number rely on Medicaid, welfare, and food stamps. Conservatives, in particular, should oppose policies that remove individuals from the labor force and make them dependent on government support.
The root causes of the incarceration problem and potential solutions are subjects of intense debate. Many critics of the criminal justice system, such as law professor Michelle Alexander, author of "The New Jim Crow" (2010), attribute it to institutional racism and the country's prison-industrial complex. While Mr. Pfaff concurs with much of what he calls the "standard story" about excessive incarceration in America, particularly among African-Americans, he emphasizes that this narrative overemphasizes certain factors, such as the war on drugs. To him, this issue is a minor aspect of a more significant problem. Similarly, government-financed "private" prisons, often discussed by reformers, only house 7% of those incarcerated by government order.
Instead, Mr. Pfaff places the blame on politicians who viewed expanding the government as the solution to all problems during the 1980s and 1990s. The 1994 Crime Bill, in particular, exacerbated the situation by broadening the range of offenses requiring jail time, establishing mandatory minimums, and contributing to the overcriminalization of society. These laws, according to the author, empowered prosecutors who operate "with wide discretion and little oversight." The legal system's incentives explain much of this trend. Prosecutors with political ambitions or aspirations to work at higher law enforcement levels seek to project a tough-on-crime image. This inclination transcends party lines and can be observed in the careers of figures like Rudy Giuliani, Eliot Spitzer, Chris Christie, and Martha Coakley.
Prosecutors face no consequences if they wrongfully incarcerate an innocent person or someone guilty of only a minor offense. They wield significant discretion in choosing charges and threatening jail terms. Mr. Pfaff demonstrates that once prosecutors decide to pursue a case, defendants plead guilty 95% of the time. Allowing prosecutors to dangle lengthy sentences as leverage in plea bargains means that almost nobody gets their day in court. Most defendants lack the resources for a proper defense, and public defenders, overburdened and inadequately compensated, cannot effectively represent them. Even if a person is innocent, prosecutors have no incentive to investigate, as leniency would harm their statistics. Prosecutors are also reluctant to risk being lenient to individuals, whether guilty or innocent, who might reoffend and attract media attention. The problem is exacerbated by the fact that all prosecution is local, while the costs of incarceration are borne by state or national taxpayers.
If America intends to reclaim its status as the "land of the free," Mr. Pfaff's conclusion is clear: a reevaluation of both the old "lock 'em up and throw away the key" perspective and the ability of prosecutors to send so many individuals to prison is imperative.
Mr. Stringham holds the K.W. Davis Endowed Professorship of Economic Organizations and Innovation at Trinity College and is the author of "Private Governance: Creating Order in Economic and Social Life."
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