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?