INCARCERATION POLICY STRIKES OUT
Exploding prison population compromises the U.S. justice system
BY BEN TRACHTENBERG
AT MIDYEAR 2007, U.S. PRISONS AND JAILS
held 2,299,116 inmates, meaning more
than 1 percent of American adults were
incarcerated. We top the world in per
capita imprisonment, increasing our lead
every year. Since 2000, while the total
U.S. population increased by 7 percent,
our prison population has grown by 19
percent. Our massive imprisonment costs
needless billions and, perversely, hinders
effective crime control. We need to reduce our prison population.
Few dispute the value of imprisonment
in fighting crime. Especially with repeat
violent offenders, prison may be the only
way to prevent a dangerous criminal from
hurting more innocent victims. But many
instances of incarceration transparently
fail to serve any serious preventive purpose, especially given the costs.
Consider nonviolent convicts sentenced for drug possession. Or septuagenarians who, sent away for decades under
a “three strikes” law, now receive geriatric care from
prison infirmaries. Unthinking overreliance on imprisonment simply drains public treasuries without providing any future benefit. California recently predicted
that, by 2012, its prisons would cost more annually than
its state university system. A starker illustration of our
misplaced priorities is difficult to imagine. Already, the
state’s yearly prison budget exceeds $10 billion. California, not alone in its catastrophic embrace of imprisonment, exemplifies national trends of rising prison
populations and uncontrollable prison costs.
not afford to neglect these programs or they will
pay down the road tenfold—in prison costs, welfare
budgets and elsewhere. Beyond monetary costs, citizens will suffer needless increased crime when offenders who never belonged behind bars eventually
return to the community more dangerous than before.
Although the federal government holds only 9 per-
cent of American inmates, federal
policy contributes to massive over-
imprisonment by the states. For ex-
ample, Congress passed laws restricting
federal crime-control dollars to states
implementing so-called truth-in-sen-
tencing programs, which aim to ensure
that convicts actually serve the time
announced at sentencing.
The justification was that parole
boards, prison officials and judges collaborated to announce harsh punishments—thereby satisfying victims and
the general public—while imposing far
less serious sentences. The result, however, has been sentences not only more
“truthful” but also much longer. By abolishing parole and good-behavior credits,
states have created nightmares for prison wardens, who
no longer have carrots to offer prisoners in exchange for
civilized conduct. In addition, prisoners who do behave
well and cease to threaten the community cannot rejoin
society, meaning taxpayers fund needless incarceration.
By adopting “smart on crime” programs instead of
knee-jerk toughness, states can reduce crime while
spending less. Reworked federal incentives would encourage smart state policymaking. While no one supports freeing rapists and murderers, warehousing every
offender wastes money, destroys lives and contributes
to our shameful status as the world’s leading incarcerator. We need Washington to reward good policy, not
costly grandstanding that bankrupts our state governments and confines more than one of every 100
American adults. ■
SMART IS BETTER THAN TOUGH
THESE OUTRAGEOUS EXPENSES MIGHT BE TOLERABLE
as a necessary evil if we had no better options. Yet often, nonincarceration alternatives, such as drug treatment for addicts and community service for small-time
thieves, cost less and reduce misery across the board.
A rational criminal justice system would—while shortening sentences of certain offenders—keep others out
of prison altogether. With alternative treatments and
punishments, a state shrinks its prison budget, allows
convicts to keep their jobs and support their families,
and makes recidivism less likely.
But alternative programs work only when properly
funded. A state spending every dollar on prisons may
think it cannot afford drug treatment programs and fully
staffed probation offices, especially when the economy
demands budget cuts. The opposite is true: States can-
Ben Trachtenberg is a visiting assistant professor of law
at Brooklyn Law School.
This essay was selected by the ABA Journal Board
of Editors as the winner of the 2009 Ross Essay Contest. This year’s topic was: “Write an open letter to
the new president and Congress describing the most
important priority for improving the U.S. justice system.” The contest, which carries a $5,000 prize, is supported by a trust established in the 1930s by the late
Judge Erskine M. Ross of Los Angeles.
