Convictions: Slate's blog on legal issues

Crime Rates and Incarceration

Adam Liptak's article in The New York Times described America's extraordinary incarceration rate, a rate clearly outstripping that of any industrialized country. But Liptak overstates the case when he talks about the relationship between incarceration and the crime rate. He notes that, there is "little question" that the high incarceration rate here has helped drive down crime," while conceding that "there is debate about how much." He quotes former Judge Paul Cassell as saying that a "good case can be made that fewer Americans are now being victimized" because of tougher crime policies. The implication of this statement and others in the article is that while the incarceration rate may be too high, it is somehow a necessary cost of controlling crime.

While I don't pretend to be an expert in crime statistics, the relationship between crime rates and incarceration is not remotely clear and to many lead to a conclusion opposite to that of former Judge Cassell's. See The Sentencing Project, "Incarceration and Crime: A Complex Relationship." and "Lessons of the Get Tough movement in the United States." Violent crime, which increased in the 60s, has experienced a sustained declined over the next three decades, a decline which does not necessarily correlate with onerous incarceration policies, but rather with a host of other factors -- the economy, the extent to which the crack epidemic simply ran its course, community policing, demographics. In any case, incarceration rates increased not because they were somehow essential to control crime but because criminal justice issued had become politicized, fodder for political campaigns and news stories. Murder stories, for example, increased even when the murder rate decline in the 1990s.

Some have even improperly identified the federal sentencing guidelines as a cause of crime rate reduction. 54% of federal prisoners are serving time for drug offenses, according to The Sentencing Project, with only 11% for violent crime. Drug crime rates have increased regardless of the increase in imprisonment. In any event, even assuming increased incarceration contributes to the drop in crime, federal sentencing comprises only a fraction of the sentences meted out in courts around the country. And while some states have guidelines, many do not, and none have copied the federal system's mandatory approach.

Apart from the crime rate, we ought to be looking at what some have called the criminogenic effects of mass incarceration, particularly of African Americans, about which Liptak has written on other occasions. We should be considering whether the mass incarceration of African Americans, particularly for non violent offenses, has wreaked more havoc to those communities than their crimes have. Large numbers of people are reentering communities which have little or no ability to absorb them. While prisoners are not committing crime in their communities while they are incarcerated, they also are not functioning as parents, workers, consumers or neighbors. As Marc Mauer (of The Sentencing Project) reports, there are now about 1.5 million children in the U.S. who have a parent in prison: "The effect on these communities is compounded by the fact that imprisonment has become an almost inevitable aspect of the experience of growing up as a black male in the U.S." an attitude which contributes to repeating the cycle in the next generation.

In short, it is not remotely clear that the blunderbuss approach to crime -- imprisoning everyone for as long as possible -- works, much less in proportion to its considerable costs.

"Little question"?

Marty, I agree with your suggestion that yesterday's story by Adam Liptak in the New York Times may be the biggest legal story of the last several years -- notwithstanding all the ink and electrons we've spilled about torture, executive power, and so many other subjects. The fact that America leads the world in incarceration is a huge statement about how we view the rule of law, and the role of criminal justice in our society.  And, the fact that America still leads the world in violent crime raises fundamental questions about whether we're getting it right. 

However, I was a bit taken aback by Adam's statement regarding the link between jail time and crime:

There is little question that the high incarceration rate here has helped drive down crime, though there is debate about how much. [emphasis added]

Criminologists and legal experts here and abroad point to a tangle of factors to explain America’s extraordinary incarceration rate: higher levels of violent crime, harsher sentencing laws, a legacy of racial turmoil, a special fervor in combating illegal drugs, the American temperament, and the lack of a social safety net. Even democracy plays a role, as judges — many of whom are elected, another American anomaly — yield to populist demands for tough justice.

Whatever the reason, the gap between American justice and that of the rest of the world is enormous and growing.

Little question?  Really?  I think this assumes facts not in evidence about the relationship between incarceration and crime.  Adam alludes to this later in the story, but there are big questions about the ex ante and ex post effects of incarceration (and particularly the length and quality of incarceration) on crime.  There is an enormous body of literature discussing these questions in the drug crime context, and there is also literature to suggest that incarceration for minor crimes may increase violent and serious crime by hardening criminals inside the joint and networking them with other criminal actors.

Clearly, incarceration has some effect on crime.  As the saying goes, a thug in prison can't rob you.  But I think there's a lot more to this than what the story reports.  What do you think?

Above the Law?

What do Eliot Spitzer, Dickie Scruggs, and Tupac Shakur all have in common?

Ego and hubris, of course. But more specifically, a belief that they operated by different rules than the rest of us mere mortals. Not just that they could avoid being caught, or get out of trouble if caught, but that the law simply didn't apply to them because of their status. Each found this to be untrue in his own way.

In reading Chuck Philips' masterful profile of Shakur in today's Los Angeles Times, I was struck again by the shear volume of criminality in Shakur's life.  Some of this was typical Hollywood illicit activity—sex, drugs, alcohol, etc.—and some was marketing or puffery which aimed to connect his music about the "thug life" with real acts of violence.  But there's also a staggering amount of criminality that runs throughout many of the scenes in Philips' years of reporting on Shakur and the West Coast/East Coast rap rivalry: omnipresent weaponry; use of beatings to enforce contracts; bribery and extortion; and the list goes on. These are all crimes, but they were standard operating procedures for many of the principals involved because they believed they were above the law.

Similarly, Dickie Scruggs believed he lived on a higher plane than the lawyers around him. A well-timed Wall Street Journal profile paints Scruggs as even more mercurial and Macchiavellian than he appeared when played by Colm Fiore in The Insider—a movie dramatizing Scruggs' fight against tobacco companies. Scruggs won big by raising the stakes and waging scorched-earth litigation in the way that Sherman waged war by cutting a swath through Georgia from Atlanta to Savannah. But he also won by bending and twisting the rules, and shattering the friendships and alliances he built with other lawyers (including his own associates) in order to consolidate his winnings. This certainly wasn't the modus opperandi I learned in law school, nor in private practice, but it worked for Scruggs (for a while) because he was a billion dollar man who could simply buy his way out of tough situations. Until Friday, when he pled guilty to conspiring to bribe a Mississippi state-court judge in a battle with former colleagues over legal fees.

And then there's Eliot Spitzer—who fell into the net of federal law enforcement through means he was intimately familiar with as a former prosecutor who relied on things like "suspicious activity reports" to prosecute members of New York's financial community. Spitzer had to know both that his alleged sexual misconduct was unlawful, and that his financial transactions would raise eyebrows, but he paid no attention to those things. Spitzer spent years prosecuting other titans of Manhattan who felt they were above the law—but apparently the message never got through because he suffered from the same mistaken belief.

Pride goeth before the fall ...