Americans Behind Bars: The International Use of Incarceration, 1992-93: Part II

Why Hasn't Incarceration Had More Impact on Crime?

1. The "Criminal Justice Funnel"
   
2. The Impact of Demographics
   
3. The "Replacement" Effect

Common sense would tell us that locking up offenders should have an impact on crime. Certainly, some offenders are incapacitated or deterred through incarceration. What seems surprising at first, though, is the relatively limited nature of this impact, particularly given the massive use of incarceration in the United States. An examination of three key issues in demographics and criminal justice processing, though, reveals why the prison system has such a modest impact on crime:

a. The "Criminal Justice Funnel"

First, the criminal justice system operates as a "funnel." At the top of the funnel are all the crimes that are committed, and at the bottom, the number of offenders sentenced to prison. The slope of the funnel is quite steep since for many offenses, the crime is never reported to the police, an arrest is not made, a conviction is not obtained, or an offender is not sentenced to prison. Generally, fewer than 3 percent of all serious crimes result in a prison sentence.

One unknown variable is the fact that some convicted offenders have committed additional crimes which have gone undetected. Incarcerating these offenders therefore responds to more than just the single crime of conviction. Yet even if we multiply the 3 percent figure by a factor of five or ten, it is clear that the system is still only able to use incarceration for a relative handful of serious offenses.

b. The Impact of Demographics

The prison system is also limited by the impact of demographics; in particular the fact that a disproportionate number of crimes is committed by 15-18 yearold males. For the crimes of burglary, robbery, and assault, for example, the peak age of crime commission is 18. (24) Within six years, these rates are half their peak. This "aging out" of crime phenomenon has two implications for policy: 1) for each succeeding year that offenders are locked up in prison, fewer crimes are being prevented than the year before; and, 2) unless the factors leading to high crime rates in the 15-18 year age range are addressed, incarceration will remain an "after the fact" response that fails to address the new annual cohort of potential offenders.

c. The "Replacement" Effect

Finally, the "replacement" effect of crime commission limits the utility of incarceration as a means of crime control. As we have seen most clearly for drug offenses, the massive increase in the use of imprisonment for drug offenders in the 1980s had little discernible impact on drug abuse or drug crimes. As long as a market exists for drugs, new potential sellers will emerge to take the place of those who are locked up.

Why Are African American Males Incarcerated at such High Rates?

We and others have documented the dramatically high rate of incarceration and criminal justice supervision of African-American males. As can be seen in the table below, the number of incarcerated black males exceeds the number of black males enrolled in higher education. This is clearly a sign of a long term crisis in the making for both the black community and the nation.

In recent years, the plight of African-American males has been the subject of much discussion. A 1990 report of The Sentencing Project documenting that one in four young black men was under some form of criminal justice control received widespread national attention. A variety of activities have been undertaken to both study these issues and to address them programmatically. These have included Congressional hearings, the formation of task forces, community based programs, and others. Despite this level of activity, though, the number of incarcerated African-American males has increased from 499,000 in 1990 to 583,000 by 1992-93.

An analysis of the causes of this distressing situation is complex. An examination of recent trends, though, points to both social policy factors and criminal justice policies that relate directly to this problem.

One of the key issues facing the nation today is the problem of youth violence, an area in which African-American males are over-represented both as victims and perpetrators. Research in this area by criminologist Delbert Elliott indicates a number of directions in which social policy plays a significant role in producing differential outcomes by race.

Elliott's review of comparative rates of youth violence finds that rates of violence are high overall and that they cut across racial and class lines. (26) Youth self report studies show that for 16-17 year old males, 20-25 percent of the population report having engaged in "serious violent offending," defined as aggravated assault, forcible rape, robbery, and homicide. Racial differences are relatively modest by age 18, the rate of reported violent offending among blacks is only 18 percent higher than for whites.

After the teen years, two trends emerge. First, the vast majority of violent youth cease their involvement within a few years of its onset. Of those youth who were engaged in violent behavior as teens, nearly 80 percent report discontinuing such behavior by their twenties.

For black youth, though, nearly twice as many persist in their violent offending after age 21. The one significant exception to this pattern, though, is among those males who are employed. Within this group, there are no discernible differences by race.

Elliott concludes that the key to reducing adolescent violent behavior lies in enabling these individuals to make a successful transition to the adult roles of work, marriage, and parenting. He finds that:

...race and class differences in serious violent offending are small during adolescence, but become substantial during the early adult years. This difference does not appear to be the result of differences in predispositions to violence, but in the continuity of violence once initiated. Race, in particular, is related to finding and holding a job, and to marriage and stable cohabiting rates. In essence, race and poverty are related to successfully making the transition out of adolescence and into adult roles. (27)

While incarceration may be necessary to respond to certain violent behaviors, its role in enabling young offenders to make the transition to work and family is virtually nonexistent. For middle class youth who have access to resources, this transition is far more likely to take place successfully with or without any intervention by the criminal justice system.

Compounding these problems in the larger community and economy are criminal justice policies of recent years which have further marginalized African-American young males. As we have noted previously, the "war on drugs" in particular has played a substantial role in exacerbating the continuously increasing rates of incarceration. The other major outcome of this "war" has been to increase the already substantial disparity in incarceration suffered by African-Americans.

The New "Law and Order" Climate

1. Crime rates compared to what?
   
2. Media access and sensationalism.
   
3. Political grandstanding.
   
4. Intersection of race and crime.

A visitor from another planet might be forgiven for being utterly confused about the direction of American criminal justice policy. The observer would first note that two decades of steadily increasing rates of incarceration had not resulted in any Americans feeling safer from crime. He or she might understandably then believe that a reconsideration of incarceration policies would be in order.

Looking at activities in Congress and state legislatures, though, it is clear that little of this is taking place. Congress and at least a dozen states have passed "Three Strikes and You're Out" laws mandating life without parole for certain three-time offenders. (28) Despite rising costs of corrections, prison construction continues almost unabated in most parts of the country. And, public opinion polls show substantially heightened concern about crime along with support for various restrictive sentencing policies.

How does one explain this seeming inconsistency between reality and public policy? Many criminal justice observers have noted the fact that fear of crime appears to be increasing even as crime rates remain about the same as ten years ago. Several factors explain this:

a. Crime rates compared to what?

While it is true that crime rates are about the same as ten years ago, they are significantly higher than thirty years ago. Therefore, most adults can remember a time in their early life when they felt, and were, significantly safer than they are today. So, whether crime is up a little or down a little from year to year, there is an understandably greater concern about its impact on daily life.

A second issue in this area regards the distinction between crime rates the proportion of crime for a given population and the actual number of crimes. When one reads news accounts of cities experiencing record numbers of murders, for example, it is often the case that the rate of murder is lower than in previous years. While the murder rate in the U.S. is clearly intolerably high, distortions such as this only contribute to misperceptions and a heightened climate of fear.

b. Media access and sensationalism

Public policy in the area of crime control has for a long time been overly influenced by a relative handful of sensational events. The Willie Horton issue of the 1988 Presidential campaign was one of the most prominent examples, along with more recent events such as the 1993 tragic murder of 12 year old Polly Klaas in California and the killings on the Long Island Railroad commuter train. Atypical as these events may be, they create a distorted perception of the actual risks of violent crime.

Another factor in this area is the broader variety of media outlets that now exist and the more sensational forms of reporting engaged in by many of them. The police highway tracking of O.J. Simpson and his subsequent court appearances illustrate ways in which violent crime comes into the American home in a much more direct way than in the past.

c. Political grandstanding

One of the more significant political developments on crime policy in recent years is that under the Clinton administration, the Democrats have tried to "take the crime issue away" from Republicans. Public opinion polls show this strategy to have been largely successful, with more respondents indicating confidence in the Democrats to control crime.

In large part, though, this has been little more than promoting the "get tough" approach that the Republican party has been perceived to offer for many years. The President's support for "Three Strikes and You're Out" in his State of the Union message, Congressional support for more prison construction, and the failure to make any significant inroads on the issue of mandatory sentencing indicate a willingness to pursue many of the major policy thrusts of the Reagan/Bush era.

The primary distinction made by the Democratic leadership in contrast with the past has been the call for a "mix of punishment and prevention" approach to crime. Few persons would argue with the need for such a mix in general terms. The flaw in this approach, though, is that it presupposes that an "equal" mix of punishment and prevention is what is called for today. As the history of the past twenty years has demonstrated, there has been absolutely no reluctance to engage in punishment, even to the point of becoming a world leader in the use of incarceration. At the same time, due to budgetary constraints and a changing political climate, resources devoted to prevention in a broad sense have declined in many respects.

Therefore, if a mix of punishment and prevention is what is actually needed, policymakers should begin to assess how to achieve that mix. Clearly, an emphasis on "front-end" preventive approaches and a decreased emphasis on "back-end" reactive approaches should be pursued if the nation is to reach a balance between punishment and prevention.

d. Intersection of race and crime

One of the defining issues of American criminal justice policy for many years has been the equation of crime with African-American males. The dynamics of this phenomenon are complex, but they center around the vicious cycle that has been created in the national consciousness.

For violent offenses in particular, African-American male rates of offending are considerably higher than for other groups. This fact is then portrayed in frequent media depictions of young black men as criminals, which lends support to policies designed to incarcerate ever larger numbers of them. Rarely in this process is any attempt made to understand how a 15 year old youth has become a school dropout who is selling drugs and carrying a gun, or what types of family and community responses might have prevented these developments. Few middle class families would willfully hand over their teenage children to the criminal justice system for punishment or rehabilitation, yet African-American males are processed into the system in historic numbers with little questioning by the larger community.

Lost in the process as well is the fact that for some offenses, African-Americans are disproportionately represented in the criminal justice system even though their rates of crime commission are not responsible for the disparities. The sentencing disparities between powder cocaine and crack cocaine have been well documented, showing that punishments for these two forms of the same drug are correlated with the race of the user in large part.

Finally, by looking only at prison populations for sources of disparity, we miss key aspects of the potential sources of disparity. For example, within the category of violent offenses, African-Americans arrest rates are approximately the same as the proportion of African-Americans in prison. If one were to look at white collar or corporate crimes, though, two issues would emerge. First, we would find that African-Americans are underrepresented as offenders, and second, that the system has historically put fewer resources into prosecuting these types of crimes. Thus, decisions regarding criminal justice priorities play a role in determining the composition of prison populations regardless of particular crime rates.

The Impact of the New "Law and Order" Movement

It is still too early to project the full impact of the various sentencing policies that have been adopted or are under consideration at the national and state level. Much of the impact will depend on how broadly the various proposals are crafted, and how they are implemented in practice. It is already clear, though, that the new "get tough" movement has been successful in producing a variety of harsh sentencing proposals, most notably, the "Three Strikes and You're Out" proposals.

The impact of these proposals will be felt in both fiscal terms and potential disruptions to components of the criminal justice system. Much of this can be seen most clearly in the California legislation, which is by far the broadest to date. In addition to providing life without parole for "three-time losers," the California statutes also increase sentences for a broad range of offenses. The Department of Corrections has estimated that the legislation will lead to an increase of 275,000 in the prison population over the next thirty years, with an additional operating cost of $5.7 billion annually. Further, the legislation will necessitate an additional $21 billion in prison construction costs.

The impact of "3 Strikes" laws has already been observed at trials and sentencing in a number of states:

• One of the first offenders sentenced under the Washington state law was 35year old Larry Fisher, whose third strike involved robbing a sandwich shop of $151 by pretending that the finger in his pocket was a gun. His previous two strikes involved pushing his grandfather down and taking $390 from him, and a $100 pizza parlor robbery that also did not involve a weapon.
• In the case of the first defendant to be tried in San Francisco under the state's new law, the 71-year old victim whose car had been burglarized refused to testify in court because she viewed the penalty as far too severe.
• In the first case to be tried in Los Angeles, jurors deadlocked on a routine burglary charge, reportedly because three jurors believed life in prison was an overly harsh penalty for a nonviolent crime.

The new generation of harsh sentencing policies will also have several lasting impacts: 1) prison construction required as a result of their implementation will represent a commitment to use of these institutions for at least fifty years; 2) funds diverted to increased costs of corrections will not be available to address a variety of crime prevention measures; 3) the already tragic levels of incarceration for African-Americans males will be increased; and, 4) political debate on crime will be further stifled and more focused on a narrow range of sentencing policies.

The ultimate measure of these proposals, of course, is their impact on crime. In this area, too, there is no reason to believe that these proposals will be effective. The demographics of crime commission show us that incarcerating a 50 or 60 year old offender is an extremely expensive means for preventing very few crimes. Rather than providing more resources to prevention and a more effective juvenile justice system, funding will be diverted to the creation of geriatric prisons that will hurt taxpayers financially but not provide them with any increased public safety.

Recommendations for a More Rational Crime Policy

The analysis of crime and incarceration described in this report tells us that the high rate of incarceration in the United States is not solely a product of higher rates of crime than other nations, nor has it achieved a substantial impact on reducing crime. Despite a quadrupling of the inmate population since 1973, Americans do not feel safer from crime and are still victimized by high rates of crime and violence.

We have no illusions that the current tough climate on crime control policies will recede in the near future. Too many senseless crimes combined with too much media sensationalism and political grandstanding have created an emotional and politicized atmosphere that makes rational discussion of crime control policies exceedingly difficult.

Nevertheless, there remain many professionals and others who care about the crime problem and are genuinely searching for constructive responses. In addition, numerous public opinion surveys have documented that the public is far more responsive to a broad range of solutions to crime than is commonly assumed. The problem is that the range of choices generally presented in public policy discussions is exceedingly narrow.

In previous reports, we have suggested policy changes that could have an impact on rates of incarceration while providing more appropriate sanctions and services to offenders. These include:

• Repealing mandatory sentencing laws in order to restore appropriate judicial discretion;
• Treating the drug problem primarily as a public health problem rather than as a criminal justice problem;
• Supporting the expansion of a broader range of alternatives to incarceration to provide judges and communities with viable community based sentencing options;
• Establishing a national commission to examine the high rate of incarceration in the U.S., and of African American males in particular.

These and other policy changes would begin to control the spiraling rate of incarceration and associated costs. Implementing these policies, though, is a political problem, one in which there has been relatively little constructive leadership. It is far from certain that the political climate on crime can be altered significantly in the short run. If it is to change in the long run, though, a framework such as the following needs to be presented:

1. No "anticrime" proposals enacted today whether prison construction or prevention programs will have much impact on crime in the next several years. It is far more important to look toward the generation of youth being born today and to develop policies that will reduce their chances of becoming offenders as they reach their teen years.
2. The criminal justice system, as a reactive system, can only have a limited impact on crime. While a system of justice and sanctions is necessary, we should not look to the courts and prisons as the primary means of controlling or preventing crime.
3. Crime is a product of many factors, including individual, family, and community issues. Only an understanding of the complexity of these factors will enable us to develop a comprehensive strategy for responding to the problem.

For too long, public debate on crime has been polarized and stifling. As a result, we are faced with the problems of continuing high rates of crime, increasing rates of incarceration, and continuing public dissatisfaction. After twenty years of "getting tough," it is hard to imagine how new "tough" proposals will succeed any better than their predecessors. It is time to publicly acknowledge this crisis and to initiate a more honest and open debate about the pressing problem of crime.

Methodology for Prisoner Data

United States Data are for the years 1992-93 (the most recent available), and were derived from Bureau of Justice Statistics (BJS) reports detailing the number of prison inmates on December 31, 1993 and the number of jail inmates on June 30, 1992. From the total inmate figure, we excluded 2,804 juveniles being held in local jails as well as 50,966 inmates under federal or state jurisdiction who were being held in local jails, so as to avoid duplication with the jail count.

To calculate the racial composition of the state and federal inmate population, we used the figures of 47.9 percent black and 46.8 percent white from Correctional Populations in the United States, 1991 (BJS). The racial composition of jail inmates was derived in two steps. We first used the figures of 44.1 percent black and 40.1 percent white non-Hispanic from the 1992 jail report. We then estimated the portion of the Hispanic population (14.5 percent of jail inmates) by race, using Census Bureau estimates that the Hispanic population nationally is 95 percent white, 2 percent black, and 2 percent other. Male inmate populations were calculated by race by using the 1991 proportions for state and federal inmates and the 1992 overall data for jails. All racial data represent a small undercount, since data on race are not available for approximately 4 percent of state and federal inmates. Overall population data were taken from Census Bureau estimates for 1993.

A small margin of error is inevitable in these calculations. It is possible, for example, that the racial composition of the Hispanic inmate population is different than for the population as a whole. There is no reason to believe, though, that the overall inmate population estimates are off by a substantial margin.

Other Nations Sources for prisoner data include Human Rights Watch, Penal Reform International, Australian Institute of Criminology, Corrections Compendium, and Professor Nils Christie. Data for Asian counties are all for 1993; for Europe and other continents, data are for either 1992 or 1993.

Data for Russia are taken from three sources. The most current is from a report of a lecture given by the General Director of the Russian Prison System, as described by Nils Christie of the University of Oslo in the 1994 edition of Crime Control as Industry, documenting a total of 848,000 inmates. An April 1993 article by Gary Hill appearing in Corrections Compendium cites almost identical figures (845,000), and the State Department's County Reports on Human Rights Practices for 1993 lists the prison population as 827,000. We have used Christie's figure as the most current, and from it have deducted the 19,000 juveniles reported by Hill, so as to be comparable to the U.S. calculations.

The South African figures are taken from the 1993 report of the South African Prisons Service. The South African categories of "black" and "colored" are combined to produce the black male rate of incarceration. In previous reports, we have attempted to estimate the incarceration rate for the four "independent" homelands that were not recognized by any nation outside South Africa. This estimate was then incorporated into the overall figures for South Africa to derive a rate of incarceration. Since there are no current reliable figures for these homelands for 1993, we have not included them in either the prison data or the overall population data for South Africa. Therefore, the incarceration rates reported here are not entirely comparable to those of past reports. Since the homelands are now officially part of South Africa, we hope that in future reports data will be available for the entire population.

Although previous reports included data for China, there are no current data that are considered reliable by most observers.

Footnotes

1. Marc Mauer, "Americans Behind Bars: A Comparison of International Rates of Incarceration," The Sentencing Project (1991): Marc Mauer, "Americans Behind Bars: One Year Later," The Sentencing Project (1992).

2. The data for the U.S. that follow include both prison and jail populations unless otherwise noted, so as to be comparable to other nations which generally do not have the same distinctions.

3. Prison Conditions in Zaire, Human Rights Watch, January 1994.

4. Melinda Liu and Betsy McKay, "The FBI vs. Russia's Mob," Newsweek, July 25, 1994, p. 28.

5. Country Reports on Human Rights Practices for 1993, Department of State, February 1994, p. 1025.

6. Roy D. King, "Russian Prisons After Perestroika -- End of the Gulag? in Prisons in Context, edited by Roy D. King and Mike Maguire, Clarendon Press, 1994.

7. Due to data limitations, we have used a somewhat different means of calculating the rate of incarceration for South Africa than in previous reports. Therefore, these rates are not entirely comparable to prior figures. See Methodology for a more complete discussion of this.

8. "Faced With Unrest, Mandela Reduces Sentences for South African Prisoners," New York Times, June 11, 1994, p. 6.

9. In 1989, both prison and jail data were available for the same year. For this report, though, we use the most current data from prison populations for 1993 and jail populations for 1992.

10. Warren Young and Mark Brown, "Cross-national Comparisons of Imprisonment," in Crime and Justice: A Review of Research, Michael Tonry, editor, Vol. 17, 1993.

11. Ibid., p. 33.

12. Jan J. M. van Dijk and Patricia Mayhew, Criminal Victimization in the Industrialized World, Key findings of the 1989 and 1992 International Crime Surveys, Ministry of Justice, The Netherlands, November 1992.

13. James P. Lynch, "Imprisonment in Four Contries," Bureau of Justice Statistics, February 1987.

14. Young and Brown, p. 16.

15. Richard S. Frase, "Comparative Criminal Justice as a Guide to American Law Reform: How Do the French Do It, How Can We Find Out, and Why Should We Care?" California Law Review, Vol. 78, No. 3, May 1990.

16. Data calculated from Gilliard and Beck, op. cit.

17. Young and Brown, op. cit.

18. Young and Brown, p. 41.

19. Michael K. Block and Steven J. Twist, "Lessons from the Eighties: Incarceration Works," Commonsense, Vol. 1, No. 2, Spring 1994.

20. Patsy A. Klaus, "The Costs of Crime to Victims," Bureau of Justice Statistics, February 1994.

21. Patrick A. Langan, "America's Soaring Prison Population," Science, Vol. 251, March 29. 1991.

22. David P. Farrington and Patrick A. Langan, "Changes in Crime and Punishment in England and America in the 1980s," Justice Quarterly, Vol. 9, No. 1, March 1992, p. 28.

23. Darrell Steffensmeier and Miles D. Harer, "Did Crime Rise or Fall During the Reagan Presidency? The Effects of an 'Aging' U.S. Population on the Nation's Crime Rate," Journal of Research in Crime and Delinquency, Vol. 28, No. 3, August 1991.

24. Age-Specific Arrest Rates and Race-Specific Arrest Rates for Selected Offenses, 1965-1992, FBI, December 1993.

25. Source for education statistics: Carl M. Schmitt, Trends in Enrollment in Higher Education, by Racial/Ethnic Category: Fall 1982 Through Fall 1992, Department of Education, March 1994.

26. Delbert S. Elliot, "Youth Violence: An Overview," The Center for the Study and Prevention of Violence, March 1994.

27. Ibid. p. 5

28. California, Connecticut, Georgia, Indiania, Kansas, Maryland, New Jersey, New Mexico, North Carolina, Virginia, Washington, and Wisconsin.