The recommendation of the Attorney General's Task Force on Violent Crime (of which I was a member)-- that federal aid be supplied to the states to assist in building correctional facilities--merely restates what countless governors, judges, and correctional officials have long said: our prison system suffers from neglect, overcrowding and inadequacy.
Nonetheless, arguments are raised against this or any other proposal to increase prison capacity. The "decarceration" movement is not as strong as it once was, but many liberal groups still call for a moratorium on prison construction. And many conservatives, despite their professed concern for law and order, regularly oppose higher spending on corrections. President Reagan, in his speech on crime yesterday, did not mention the task force's recommendations on prisons.
Few persons, and certainly not I, argue that prison is the only suitable disposition for convicted offenders. We are today witnessing a good deal of imaginative and constructive experimentation with other ways of handling the less serious, nonviolent offender--community service, victim restitution, intensive probation, supported work, and the like. But prison is the appropriate disposition for a large number of offenders. To understand why prison capacity must be increased to accommodate the staggering growth in prison populations, it is first necessary to dispose of certain misleading arguments against that increase.
1)"There are too many in prison who don't need to be there."
If by "need" you mean that prison should be reserved for persons who are uncontrollable, so pathologically unstable that they will be an immediate, violent menace to others if released, then the statement is partially true. But prison serves many purposes beyond confining the bloodthirsty--it deters would-be offenders, it incapacitates known offenders, it assures the innocent that justice is done and it averts private vengeance. Moreover, one should not suppose that judges today send to prison many persons convicted of minor offenses. In 1960 murderers, assaulters and robbers made up one- third of the prison population; by 1974, they made up nearly half. Only 1 percent of the prisoners are there for sex offenses other than forcible rape, only 5 or 6 percent for drug possession or marijuana trafficking.
2)"Better prisons only coddle criminals."
Society has the right to deprive a convicted offender of his liberty; it does not have the right to deprive him of the elements of human decency by exposing him to brutality, homosexual rape or riotous cellmates. And if arguments of justice and humanity do not move you, consider the practical problem: many judges will not sentence even serious offenders to prisons they regard as inhumane, and thus such criminals are put back on the street. In 1980, 19 states were operating prisons under court orders and another dozen faced serious court challenges.
3)"The United States already sentences to prison a higher proportion of its population than any other Western nation."
Strictly speaking, this is true, but what of it? It is analogous to saying we have a higher proportion of our population in hospitals or schools or offices than any other nation. The correct question is: what proportion of convicted offenders is imprisoned? When Kenneth I. Wolpin at Yale compared the United States and England, he discovered that a much smaller proportion of convicted offenders was imprisoned here than in England--for every offense. The United States has more people in prison chiefly because it has more crime.
4)"Prisons make matters worse because they are schools for crime."
I know of no systematic evidence for this familiar assertion. As far as we can tell from the many studies comparing offenders, prison neither rehabilitates nor debilitates--that is, on the average, the crimes committed by persons after leaving prison or after leaving a rehabilitation program are about the same as they were before they entered. It may well be that there are some offenders who commit more crimes after having gone to prison and some who commit fewer, but we have few studies that examine these fine distinctions. And one study--of serious juvenile offenders in Cook County, Ill.--discovered that the young men sent to institutions (i.e., reformatories) had lower offense rates after release than similar offenders who were given less restrictive treatment in the community.
5)"By the time new prisons are built, the crime rate will have fallen because of the aging of the population."
Predicting how many crimes will be committed in the future is at least as risky as predicting how many babies will be born or what the inflation rate will be. It is true that during the 1980s, young males--the principal source of criminals--will account for a smaller fraction of the population than during the 1970s. By 1990, males age 14 to 24 will make up less than 8 percent of the population; they accounted for about 10 percent in both 1970 and 1980. Between now and 1991, the number of 18-year-olds will decline by about 1 million, or about 25 percent.
But for several reasons we cannot infer from this population change a corresponding change in prison population. First, the rate at which young males commit crime may continue to rise, making up for the drop in their absolute numbers. Second, increases in the efficiency and severity of the criminal justice system may lead to a larger proportion of offenders' being convicted and sent to prison and a lengthening of the average prison term. Third, the peak age at which persons are sent to prison is older than the peak age at which they commit crimes, for the simple reason that judges ordinarily do not send offenders to prison unless they have acquired a significant prior record, usually as an adult.
Alfred Blumstein and his colleagues at Carnegie-Mellon University estimate that without any changes in conviction rates or sentence length, prison populations in Pennsylvania will not peak until 1990, and even then the decline in prison population will be slow throughout the remainder of the century.
6)"If we build more prisons, judges will just fill them up."
This argument is either false or meaningless, depending on what you think it implies. Taken literally-- that all prisons will be filled regardless of capacity--it is clearly untrue. Between 1960 and 1970, when the crime rate roughly tripled, prison population in the United States declined. Even during the period 1971- 75, after most state prison populations had started to rise sharply, there were 15 states in which prison population fell. Even today, there is hardly any statistical correlation between state prison capacity (which is a slippery concept at best) and growth in prison population.
What the argument really means, I suspect, is not that prison capacity determines prison population, but that having more prisons is bad because persons who should not be sent to prison will be sent once we remove the concern many judges rightly have: that certain prisons are inhumane. Put more bluntly, persons favoring a moratorium on prison construction have a stake in there being plenty of overcrowded, inhumane prisons so as to discredit the very concept of prison by suggesting that prison is necessarily inhumane. What poses as a statistical argument-- "you'll never catch up"--is in fact a philosophical argument--"prison is bad." And that brings us back to the first argument.
We need more prison capacity, not because that capacity will lead automatically to certain results, but because it will allow us to make choices we cannot now make without brutalizing people. Moreover, there are things we can do in addition to building facilities to increase capacity. Some prisoners are serving sentences far longer than can be justified by considerations of crime prevention or simple justice. If we shorten very long terms by, say, 10 percent, the prisoner serving that term will hardly notice (and thus we lose little in terms of deterrence or incapacitation) but the gains to the system in terms of lessened overcrowding may be significant.
It is time to speak dispassionately and constructively about how best to manage our prison population and to abandon the simplistic arguments that only confuse what should be a serious discussion.