The U.S. Supreme Court's decision in Brown v. Plata on May 23 ordering the state of California to reduce its prison population by more than 30,000 (from more than 140,000 to 110,000 inmates) over the next two years has received headlines, editorials and letters to the editor in newspapers around the country, as it should have. But since both the reasons for this decision, and its likely consequences, are easily misunderstood, and its historical implications are not widely appreciated, many fallacious comments about it are already widespread, both among the general public and even in the dissents penned by the four Supreme Court Justices who disagreed with the majority opinion. For that reason, as a psychiatrist with more than forty years' experience in developing methods of violence prevention both in prisons and following the release of prisoners to the community, and whose testimony as an expert witness in this case was in agreement with what turned out to be the majority opinion of the Court, I would like to explain why this Supreme Court decision is a major, and very positive, historical event.
The main effect of this decision is to begin the process of undoing two of the most damaging and destructive mistakes that have been made in American life in the past half century, one in our criminal justice system, and the other in our mental health system. The mistake in our criminal justice system is the failed experiment in social engineering called "mass incarceration," as a result of which the U.S. now has a higher rate of imprisonment than we have ever had before in our history, and more than any other country on earth, with rates ten times higher than any European country's, and even higher than the most repressive police states, such as Iran, Syria, Russia and China. The mistake in our mental health system has been our failed "de-institutionalization" of the mentally ill in America, which would more appropriately be called "trans-institutionalization," since a majority of the mentally ill have merely been transferred from the failed mental hospitals of the past into the even worse prisons of the present.
But let me first emphasize that the Supreme Court did not justify its decision on the ground that its purpose was to undo those two mistakes, which only legislatures can do. Rather, they ordered the state of California to reduce the overcrowding in its prisons because that was an urgent matter of life and death that violated the Constitution's ban on "cruel and unusual punishment." The severity and consequences of the overcrowding in California's prisons had caused not merely a problem in living conditions; it had caused a problem in dying conditions. Even as the litigation was going on, solid documentation from the prisons showed that one California prisoner was dying every five to six days from preventable but untreated medical and psychiatric causes, and that the provision of adequate medical and mental health care was impossible when the prisons were so overcrowded that even the doctors' offices and infirmaries had to be used as bedrooms. This failure to provide necessary medical care amounted to inflicting a de facto death penalty on each prisoner who died as a result.
Nevertheless, even though the express purpose of the Supreme Court's decision was not to remedy the mistakes I summarized above, I think it is important to recognize that the effects and implications of this decision -- its side-effects, if you will -- could be to begin the process of correcting the historic errors to which I will devote the remainder of this article.
To deal with the criminal justice and penal systems first: During the first three quarters of the twentieth century the rate of imprisonment in the United States was essentially unchanged, at roughly 100 prisoners (plus or minus twenty) per 100,000 population. Beginning in the mid-1970s, after President Nixon declared wars on both "Crime" and "Drugs," we began for the first time in our history escalating our incarceration rate uninterruptedly from year to year, so that we now have a rate of more than 700 per 100,000 population.
For the first three quarters of the twentieth century, before we began increasing the rate at which we put people into prison and kept them there, the rate of violent crime in our society increased and decreased from one time period to another, completely independently of the imprisonment rate.
For example, before we began the orgy of mass incarceration, murder rates in America increased to epidemic levels on two occasions, beginning in 1904 and 1921, and then decreased back to normal (endemic) levels without our making any changes in the incarceration rate.
Many people have had the mistaken impression that the era of "mass incarceration" that began after Nixon declared his "war on crime" was responsible for the ending of a third murder epidemic that began in 1970, Nixon's second year in office, and did not end until 1997, Clinton's fifth year in office (by which time the majority of new prisoners had for many years been men who had never committed a violent crime in their lives, let alone one as serious as murder). But even a cursory review of the relationship between imprisonment and murder will suffice to show that the theory that the increase in imprisonment led to the decrease in murder is contradicted by the facts. Let me explain.
In 1970, when our imprisonment rate was still about 100 per 100,000 Americans, exactly where it had been for the first three quarters of the century, our age-adjusted murder rate was 8.3. By 1985 our imprisonment rate had doubled, to about 200 per 100,000. What was our murder rate then? Still 8.3 per 100,000. By 1996 our imprisonment rate had doubled again, to about 400 per 100,000. What was our murder rate then? Absolutely unchanged, at 8.3 per 100,000.
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