Time to End the Criminal-Punishment Binge

Mass incarceration has not reduced crime, but it has made prison a more common experience for poor black men than joining a union or doing military service.

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For decades now, America has been pursuing a deeply punitive anti-crime social policy: the criminal-punishment binge. It is what lies at the root of the heavy overrepresentation of blacks -- and increasingly, Latinos -- in our nation's jails and prisons. Our only hope of creating a fair and equitable criminal-justice system is to turn away from the false belief that punishing more people at ever-younger ages, for longer periods of time and for an ever-widening array of infractions is the only sensible response to the problem of crime.

The rise in incarceration has largely been driven by social policy -- not by changes in the amount or severity of crime. The strategy was advanced under many slogans, from restoring law and order to our streets, to getting tough on crime, to waging a war on drugs, to turning out of elective office anyone who might be seen as "soft on crime."

The policy tools attached to this binge include mandatory minimum sentences, truth-in-sentencing guidelines, sentencing enhancements for various offenses, crack-versus-powder-cocaine sentencing differentials, the federalization of many of what were once only state criminal offenses, trying juveniles as adults, three-strikes-and-you're-out provisions and greater availability of the death penalty.

The result is an epic expansion of our reliance on jails and prisons as the response to crime, so much so that the U.S. is now the world's leader at incarcerating its own citizens. As the title of a 2008 Pew Charitable Trust report (pdf) put it, one in 100 Americans is now behind bars. This shocking declaration was surely emphasized by the report authors in order to jar us into considering the enormous waste of dollars and human lives that the new mass-incarceration society entails.

And we know something else: The rise of mass incarceration has had a disproportionate effect on African-American communities, especially those that are low-income. The one-in-100 stat increases to one in 31 for Americans who are under some form of criminal-justice supervision (if you include those also on probation and on parole). For black Americans, however, that latter figure stands at a thoroughly depressing 1 in 18.

But it gets even worse. We are at a point where 1 in 15 black men is in jail or prison -- and for those between the ages of 20 and 34, the rate is 1 in 9.

University of California sociologist Loïc Wacquant has labeled the situation a new fourth state of racial oppression. In the wake of the successive collapse of slavery, Jim Crow and then ghetto segregation as mechanisms of black oppression and white supremacy, we get what he calls the "carceral state," or what legal scholar Michelle Alexander labels the "The New Jim Crow."

For Some, Incarceration Becomes the Norm

I want to stress three points about racialized mass incarceration. First, incarceration is so extreme and so biased on the basis of class and race that prison has become an ordinary life experience for poorly educated blacks, in a manner not characteristic of any other segment of American society.

Black men in the post-World War II generation who did not graduate from high school had a less than one-in-five chance of going to jail or prison by the time they were 30 years old. Similarly educated black men born in the Vietnam era, however, had a three-in-five chance of spending some time in prison by the time they reached the same age. That is, nearly 60 percent of black men in this more recent cohort were destined for jail or prison -- a figure that is sure to be worse for the most recent cohorts of poor and poorly educated black men.