Five myths about prison growth.

The law, lawyers, and the court.
Feb. 19 2009 3:08 PM

Reform School 

Five myths about prison growth dispelled.

Overcrowded jails. Click image to expand.
Inmates at the Mule Creek State Prison in California

The United States has a prison population like nowhere else. With one out of every 100 adults behind bars, our incarceration rate is the highest in the entire world. Our inmates—1.5 million in prison, with another 800,000 in jail—comprise one-third of the world's total. This is a surprisingly recent development. After barely budging for 50 years, our incarceration rate increased sevenfold (to 738 per 100,000 people) between 1978 and 2008.

The system is now at its breaking point. Federal judges in California just issued a tentative order demanding that the state release nearly 60,000 inmates over the next three years to alleviate intolerable overcrowding. New York state's sentencing commission released a 326-page report calling on the Legislature to cut back on severe drug sentences. And with budgets growing ever-tighter in a collapsing economy, states are beginning to realize that large prison populations are boom-time luxuries they can no longer afford.

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Reform is inevitable. But if we are going to rein in our prison populations, we should do so based on facts, not on unfounded perceptions or shocking anecdotes. So let's start by dispelling some of the myths that surround the breathtaking prison growth of the past three decades.

Myth No. 1: Long sentences drive prison population growth. The stories that capture our attention are the low-level crooks who get 25 years for stealing three $400 golf clubs. But these cases get a lot of press precisely because they are exceptional. And the attention goes to the sentence imposed, not the time actually served, which may be far shorter.

Our data on time served is imperfect at best, but it appears that the time served by the median prisoner is about two years, sometimes much less. It is easy to focus on the people who are serving decades-long sentences for life or life without parole, but they make up only about 10 percent and 2.5 percent of the total prison population, respectively. The two-year median, meanwhile, holds true both in notoriously punitive states like Michigan and in more lenient ones like Minnesota. Not only is the absolute amount of time served low, in general, but in many states that amount remained flat over much of the 1990s.

So what is actually driving prison population growth? Admissions. Far more offenders who in the past would have received nonprison sentences are being locked up for short stints, driving up the overall population. Stop admitting as many people, and the prison population would shrink rapidly. Cutting back on long sentences is far less likely to have the same meaningful effect.

Myth No. 2: Low-level drug offenders drive prison population growth. It is popular, perhaps almost mandatory, to blame the boom on the War on Drugs. But it is just not true. Only 20 percent of inmates in prisons (as opposed to jails) are locked up for drug offenses, compared with 50 percent for violent crimes and 20 percent for property offenses; most of the drug offenders are in prison for distribution, not possession. Twenty percent is admittedly much larger than approximately 3 percent, which was the fraction of prisoners serving time on drug charges in the 1970s. But if we were to release every prisoner currently serving time for a drug charge, our prison population would drop only from 1.6 million to 1.3 million. That's not much of a decline, compared with the total number of people in prison in the 1970s—about 300,000.

In fact, the war on drugs does play a role in the prisoner increase. But it's an indirect one. State "predicate felony" laws, for example, impose longer sentences on offenders with prior records: A drug conviction may not send someone to prison, but it will make him serve more time for any future crime he commits. This suggests that simply tackling long drug sentences, as reformers in New York state have done, may miss the real problem.

Myth No. 3: Technical parole and probation violations drive prison population growth. Recent advances in drug testing and other forms of monitoring have sparked concern that we are sending more and more parolees back to prison for minor infractions. And as with all the factors discussed here, there is a kernel of truth to this one. In 2005, about one-third of all people admitted to prison were on parole at the time (though not necessarily returning because of a violation). But the rate of parolees returning to prison has been stable for the last decade, suggesting that this doesn't account for recent growth.

More important, changes in the number of people being returned to prison from parole closely follow changes in the number of prisoners being paroled out of prison—and there are always more people going out than going in. In other words, the number of parolees returning to prison is rising only because the number of people out on parole is rising.

Myth No. 4: In the past three decades, we've newly diverged from the rest of the world on punishment. Given that our incarceration rate before the mid-1970s is one-seventh the rate of today, it is easy to think that we're suddenly acting like outliers. But the fact is that American views on punishment have been harsher than Europe's since the birth of this country (although politicians may overestimate the extent to which they must be tough on crime to win elections). More strikingly, if we look back historically at the lockup rate for mental hospitals as well as prisons, we have only just now returned to the combined rates for both kinds of incarceration in the 1950s. In other words, we're not locking up a greater percentage of the population so much as locking people up in prisons rather than mental hospitals. Viewed through this lens, what seems remarkable is not the current era of mass incarceration but the 1960s and '70s, during which we emptied the hospitals without filling the prisons. Any reform agenda that does not acknowledge the ingrained nature of our punitive impulses will surely fail.

Myth No. 5: The incarceration boom has had no effect on crime levels. Sometimes, crime rates have fallen as the prison population has risen (the 1990s and 2000s) or risen as the population fell (the 1960s). At other times, however, the crime rate has risen even as the prison population also rose (the 1970s and '80s). Perhaps, people argue, no real relationship exists between the two.

But this is not the right way to think about the problem. We have to ask what the crime rate would have been but for a given number of prisoners, and simple population trends cannot answer this. The best numbers available, controlling for a host of challenging statistical problems, suggest that the growth in prison populations contributed to up to 30 percent of the crime drop during the 1990s.

Thus, reducing prison populations may lead to more crime. But only to a point. Many of the low-level offenders we lock up today do not pose serious threats, so if we let them out first or don't send them to prison to begin with, the effect may be initially slight. Moreover, while prison has helped reduce crime, it's not the most efficient tool we have. A dollar spent on police, for example, is 20 percent more effective than a dollar spent on prisons.

Given that, what's the most cost-effective prison reform strategy? We need to stop admitting many minor offenders, even if they're serving only short sentences. We need to focus less on high-profile drug statutes and more on the ways small-fry drug convictions cause later crimes to result in longer sentences. Once we start admitting fewer people to prison, we should shift money from prisons to police. If this seems like tinkering, rather than a sweeping fix, that's because it is. See Myth No. 4: Reformers shouldn't waste their breath trying to turn us into Europe.

John Pfaff is an associate professor of law at Fordham Law School.