Getting Prison Reform Right

There’s a great little article about prison growth and reform over at Slate. Fordham Law Professor John Pfaff notes that prison populations in the United States have grown unsustainably large, and suggests that this recession is a good time to reconsider our illusions about the causes of that growth. He then goes on to debunk five myths of prison reformers:

1. Long sentences drive prison population growth.

The median time served is and has remained 2 years for several decades. People don’t go to prison for longer, rather, we’re putting more people in prison, such that victims of those absurd three-strikes rules or of mandated sentences are balanced by the number of people serving short stints. Surprise: prison growth is driven by prison admissions! That said, Pfaff doesn’t really address the prison/jail distinction in this statistic: how many people would have served smaller sentences in county jails but are now being sent to state prisons because of sentence enhancements, felony inflation, and ‘predatory felon’ rules that target those with prior convictions?

2. Low-level drug offenders drive prison population growth.

Only 20% of the inmate population is made up of drug offenders, “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.” That said, drug crimes do play a role in increasing sentencing down the road, when a person convicted of a minor drug offence receives a sentence enhancement for future crimes. Even still, 300,000 people in prison for drugs alone is a lot. 

3. Technical parole and probation violations drive prison population growth

Some people argue that increased drug testing and location monitoring of parolees leads to increased re-incarceration, but apparently there’s no statistical evidence of this. It may not be contributing to prison overcrowding, but it remains a highly intrusive form of state surveillance. In some instances (house arrest with a GPS locator, regular drug tests, and a job requirement) it’s not clear why we should exclude parolees from the overall population of the imprisoned.

4. In the past three decades, we’ve newly diverged from the rest of the world on punishment.

Pfaff’s argument here is very strange: I almost devoted my entire post to it. He shows that we’ve always been much more punitive than our European cousins, which is no news to anyone who’s ever read Tocqueville: our nation’s commitment to individuality has a heavy social conformity componennt that underwrites a political competition over harshness towards criminality. Ok, fine.

Then Pfaff goes on to make the following argument, for no discernable “debunking” reason. Many statistics on prisons date from the 60s and 70s, and in these we have a tended to chart a steady increase in prison populations. However, over a longer time span the prison + mental institution incarceration rates have been flat compared to population growth, and thus it makes the most sense to see the statistics focusing just on prison populations from the 60s and 70s as a historical aberration. We had just gone through a massive de-incarceration of non-voluntary admissions to mental hospitals in the 60s and 70s, and since then the modern prison has been taking up the slack left by the insane asylum since the 1950s.

Foucaultians take note: the shift in institionalization from the mental hospital to the prison is apparently a matter of managing the unemployed, the aberrant, and the transgressive, just as the shift from the work house to the mental hospital was. 

5. The incarceration boom has had no effect on crime levels.

Pfaff notes the difficulties in finding correlations between crime and incarceration, but then cites Stephen Levitt’s (of Freakonomics fame) statistics suggesting that increased incarcertation reduced crime in the 90s by 30%. The argument assumes that criminals are a fairly stable subset of the population that will be either acting out their criminal tendencies or waiting in prison to be released. Catching and incarcerating that subset of the population is the best form of law enforcement. This is the same study that attributes 25-30% of the decline in crime rates to the legalization of abortion, because eliminating unwanted children, who often become future criminals is even better than catching and incarcerating them.

Yet Levitt also found that 10-25% of the 90s’ decline in crime was due to burgeoning police forces. I like reading Freakonomics, but I’m not sure he’s got the cross-polination of causes right, yet. Doesn’t increased policing lead to increased incarceration?

More controversially, perhaps employing police officers and incarcerating potential criminals work on the same vector. Both law breaking and employment in law enforcement offer opportunities for respect on the basis of the threat and effectuation of violence: might they not draw from the same class of potential criminals? That’s a pretty offensive speculation, but it’s the kind of thing that Levitt’s drive to uncanny explanatory economics really encourages. I’m waiting for confirmation on the initial statistic that incarceration reduces crime from someone with less self-promotional goals.

Conclusions:

Pfaff thinks we need to start shifting resources from prisons to policing, which is a version of the famous argument that a certain punishment is better than a harsh one. At the same time, he thinks we need to stop meting out any punishments at all for minor infractions, whether or not they’re drug related. When it comes to drug policy, he thinks we need to switch our focus away from decriminalization and towards eliminating mandatory minimums, three-strikes rules, and ‘predatory felon’ enhancements. All fair advice from an expert in his field, yet there’s a lurking fallacy:  Pfaff ignores the symbiotic relationship between police and prisons in his assessment. How can increased policing be effective if they’re not catching and convicting criminals? Something’s got to give: an unenforced drug law is no drug law at all, so why not decriminalze the problem? The alternative is to eliminate prison sentencing for minor violent and property crimes, which doesn’t make much sense.

Here’s the real lesson to draw from these (partly) debunked myths. Prisons are growing because we’re sending more people to prison.  We’re sending more people to prison because our larger police forces are enforcing laws against drug possession and traficking, as well as catching and convicting more violent criminals and property criminals than they used to. At the same time, the costs of recidivism are rising just as the rates of recidivism increase. We’re incarcerating people with prior convictions for longer, and imposing greater burdens to privacy, dignity, and human flourishing on paroled and released convicts.

As if that weren’t bad enough, we’ve got a structural problem:  at any one time, 1% of our population is in jail or prison, and that’s exactly the same ratio that we incarcerated in the halcyon 1950s, only we’ve replaced the treatment model with the retribution model. Our national culture will accept any excuse to incarcerate, whether it be madness, addiction, or violence. We justify this through explicit appeals to revenge and an implicit claim about safety and prevention that has little basis in fact. We trade prevention for retribution, and we get 60% recidivism rates. We want “safe streets,” but we get them at the cost of dangerous prisons. We want good guys, bad guys, and clear moral lines between them, but instead we make perpetrators into victims of a larger injustice.

I’ve long championed reinstating Pell Grants for prisoners so that they can leave prison with a leg up on higher education. The liberal arts are the techniques of freedom, and we ought to be giving prisoners access to both those techniques and the credentials of achievement. No one wants to devote educational resources to prisoners when they could be going to the ‘deserving poor,’ but studies show that the savings on the incarceration costs of recidivism are more than double expenditures for books and teachers. Prison guards cost more than literature professors, you know? This isn’t about dividing the pie amongst more worthy and less worthy causes: this is a move that will grow the pie.

4 thoughts on “Getting Prison Reform Right”

  1. I don't have much to add to this, other than my usual fawning over how good your blog is.

    But I really didn't know (or chose to repress the knowledge that) that prison guards cost more than literature professors. Blech.

    I'm teaching my "Justice" class again in the Fall. In the past, I've spent the first 1/2-2/3 of the semester doing a historical survey of philosophical considerations of "justice," and then turned to human rights violations and truth commissions in the end of the semester. I'm seriously considering changing things up next time and doing prisons. Any reading recs?

    1. It's not that prison guards get paid more, but that they cost more. (Salaries + benefits are roughly comparable in their respective settings, actually, though as you know we get paid to do more than just teach.) Money spent bringing a literature professor (or a philosophy professor, or an economics professor) into a prison to teach classes is twice as effective as money spent on simply warehousing prisoners, because that education translates into extraordinary reductions in recidivism. In other words, you've got to pay corrections officers for both the first time they guard a prisoner and for the 60% likelihood that they'll have to guard that prisoner again, for a longer period of time, once they've been released. With literature professors in the mix, you reduce that recidivism rate to 30%, and that's what makes professors cheaper. (Not to mention the fact that college professors in prisons get paid by the class instead of getting a salary.)

      Here's my "Crime and Punishment" booklist:

      Plato’s Laws
      Kant Groundwork for the Metaphysics of Morals
      Beccaria On Crimes and Punishments
      Arendt Eichmann in Jerusalem
      Foucault Discipline and Punish
      Braithwaite and Pettit Not Just Deserts
      Duff and Garland A Reader on Punishment
      US Court Cases: Furman v. Georgia (death penalty), Rummel v. Estelle (life sentence for minor recidivism), Robinson v. California (addiction not a crime), Hutto v. Finney (punitive isolation)

      I'm an especially big fan of the book Not Just Deserts, by Braithwaite and Pettit. It's recently gone out of print and copies cost a gajillion dollars though, so you might substitute with something else by Braithwaite. He has an interesting book on restorative justice, actually.

      Beyond that… PF Strawson's seminal paper "Freedom and Resentment" has always seemed like a good place to start the conversation, perhaps combined with Gary Watson's essay "Responsibility and the Limits of Evil." Your TRC reading list is going to be better than mine, though I'd be interested to hear your take on Agamben's Remnants of Auschwitz and Felman and Laub's Testimony.

  2. Ack. I just realized that you meant to distinguish 'prisons' from 'punishment,' which is a pretty important difference! Perhaps some of that can still be useful, but other than what I'd offered, I'd suggest: the Rose collection _The Celling of America_ and maybe the collaborative project "Ending the Culture of Street Crime," available here: http://www.worldcriminology2005.org/streetculture.pdf

  3. Yeah, I was thinking “prisons”… but your suggestions are still helpful (esp. the court cases).

    I saw Angela Davis here in town last year at the UofM, and she’s coming to Rhodes in 2 weeks. (Yeah, I’m practically wetting myself.) Her talk was not only one of the single greatest lectures I’ve ever heard, but it was also what prompted me to seriously consider switching the “application” part of my “Justice” class to prisons instead of TC’s and human rights violations. I’ll start giving the stuff you suggested a look, but feel free to keep the recs coming as they occur to you.

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