Prisons are shrinking. That won’t necessarily last.

July 27, 2013

(Matt York/AP)

The Bureau of Justice Statistics on Thursday released its count of the number of prisoners in the country. There are 1,571,013 individuals under the jurisdiction of state and federal correctional authorities. However, that number represents a decline, having fallen 1.7 percent since last year -- the third consecutive annual drop and the largest of the three. This multi-year falling trend is also true if you consider everyone in the correctional system, or the nearly 7 million people you get when you include local jails, probation and parole. This is after decades of rapidly expanding prisoner populations in the United States.

Meanwhile, the Corrections Corporation of America (CCA), the nation’s leading provider of private, for-profit prisons, had a happy announcement in a recent PowerPoint presentation: State budgets will soon no longer be in crisis. One must imagine that CCA shareholders who are U.S. residents were excited that school budgets would no longer be slashed, public services more broadly would no longer be cut, and the dangerous state-level austerity holding back the economy would no longer be an issue. But the real excitement was over the idea that states could finally start arresting people again, thus filling the depleted ranks of the incarcerated.

Liberals debate the longer-term consequences of the past five years all the time. Is the financial sector well-regulated again? Did we roll back the expansive executive authority of the War on Terror, or solidify it? Did we invest enough in infrastructure when interest rates were at all-time lows? But a major question is still open for debate: Did the collapse of state budgets during the Great Recession put us on a permanent path to rolling back the United States’s high levels of incarceration?

On the first pass, the answer should be an obvious yes. States really did have a financial crisis. As the Center on Budget and Policy Priorities records, total state budget shortfalls topped $100 billion for each year from 2009 to 2012, with a $191 billion gap in 2010. States were looking for places to cut, and their prison budgets had grown at a rapid clip.

But a provocative paper from 2009 argued that we shouldn’t be so quick to assume that austerity would lead to a less punitive justice system. In  "Cell blocks & red ink: mass incarceration, the great recession & penal reform" (an earlier, ungated version here), University of Pennsylvania political scientist Marie Gottschalk argued that the Great Recession itself could make it harder to fix our criminal justice system, easily outweighing any advantages a budget gap would give reformers.

Citizens experiencing uncertainty over their economic future and facing huge dislocations might demand more, rather than less, security and control. Thus, economic insecurity may lead to even more scapegoating of specific populations and a subsequent jump in demand for punitive policies targeting those groups. Civil unrest that comes with economic distress can cause governments to conflate crime and social protests, which gives the state an opportunity to expand its law-and-order infrastructure. We may even see a version of "penal Keynesianism," where well-entrenched public-sector prison guard unions and private-prison shareholders fight to keep the status quo, arguing that the prison sector is synonymous with economic health and jobs. Also worth mentioning is the idea that reducing the penal population might require spending more in the short term in order to do it right, which states are not in a position to do.

Yet we’ve seen declines, and those declines may continue. What has happened? As Marc Mauer, executive director of the Sentencing Project, told me: "There’s no question the recession had an impact. But it’s a little too simplistic to say it is the main or driving force. The groundwork for this transformation has been laid over the past 10 to 12 years."

It's worth contemplating, with the help of the following two graphs, how extensive incarceration is in this country. Take the first one, which shows several countries and the United States over the past few decades (data: here, here). We have by far, the largest population, and it happened in the past 30 years:

And as Mauer notes, the rate of increase had slowed even before the economic crisis precipitated its collapse. Here’s the rate of increase for the entire correctional system, from the Department of Justice:

Bruce Western, a sociologist at Harvard and a leading expert in incarceration policy, told me that "since 2008, the policy conversation taking place has changed dramatically. Compared to even 10 years ago, it’s moved in a less punitive direction, with policymakers more interested in alternative solutions." Western notes, however, that it may take a long time to see the impact, because so many people currently incarcerated are serving such lengthy sentences.

Experts on incarceration policy note that two things have really driven our high level of incarceration. The first is the war on drugs. The second is a term that manages to be both anodyne and terrifying at the same time: "sentencing enhancement." This is the broad term for the wave of mandatory minimums, three-strike laws and truth-in-sentencing laws that became an important part of the legal infrastructure over the past 30 years.

These sentencing enhancements really set us apart from the rest of the world. As University of San Francisco School of Law’s Center for Law and Global Justice wrote in their report "Cruel and Unusual: U.S. Sentencing Practices in a Global Context," "[w]hat distinguishes the United States from the rest of the world, however, is the lack of judicial discretion in sentencing schemes aimed at recidivists and the length of sentences that result."

There’s been pushback on these in the recent past. Washington and Colorado have recently decriminalized marijuana. California’s famously harsh three-strike law was rolled back last fall so that offenders who have not committed violent or otherwise serious crimes will no longer get life sentences. Even more encouraging, this was a ballot initiative that garnered 69 percent of the vote.

Reformers should take comfort from the idea that this isn’t the first time we’ve de-institutionalized our population. As University of Chicago professor Bernard Harcourt writes in "Reducing Mass Incarceration: Lessons from the Deinstitutionalization of Mental Hospitals in the 1960s," the massive inpatient population in mental hospitals dropped almost 60 percent from 1965 to 1975.

Harcourt identifies three lessons from that movement that are applicable to and could accelerate a move away from mass incarceration. The first is using federal dollars to encourage state-level efforts to move people out of penitentiaries. The second would be better psychiatric care and technological innovation, such as GPS monitoring. And the third is shifting public perceptions of people who are incarcerated, documenting the prison abuses that have become the norm. (Check out Dylan Matthews’s coverage of "Orange is the New Black," as well as his interview with the author of the source material.)

The challenges Gottschalk identified won’t be going away, and there will be stumbles and new problems. However, perhaps one silver lining out of all the unnecessary misery of the Great Recession is that it’ll help put us on a path to a more sane criminal justice policy. As Gottschalk argues, quoting Winston Churchill, where we are at "is not even the beginning of the end. But it is, perhaps, the end of the beginning."

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Dylan Matthews | July 27, 2013