04/24/2012 11:36 am ET Updated Jun 24, 2012

Mass Incarceration as a Public Policy

Journalists John R. Emshwiller and Gary Fields have published numerous articles in the Wall Street Journal that brought attention to the ease with which average citizens could find themselves tangled in the web of America's criminal justice system.

An article they coauthored on Monday, April 9, 2012, included a graph illustrating how the number of people sentenced for federal crimes each year has doubled since 1996. Federal judges sentenced more than 80,000 people in 2010 for criminal offenses, a number that didn't include people sentenced for criminal offenses in state courts -- presumably millions more.

Those who wonder how the land of the free became the land of the incarcerated should consult Chapter One of The Oxford Handbook of Sentencing and Corrections. Professor Jonathan Simon, the Adrian A. Kragen Professor of Law at Berkeley Law, authored the chapter, which he titled "Mass Incarceration: From Social Policy to Social Problem."

Professor Simon wrote that few people truly understood the origins of the public policy that led to mass incarceration. His chapter made a powerful case showing that high imprisonment rates were the result of a systematic, deliberate strategy. That logic suggested that our nation's massive prison system wasn't a failure at all, but a resounding success. Legislators and policy makers strove to build more prisons and lock more people in cages, warehousing them for lengthy periods of time. The objective of building a massive prison system didn't include mechanisms that would encourage prisoners to work toward earning freedom, to redeem themselves, or to prepare for a return to society as law-abiding citizens. The public policy didn't concern itself with recidivism rates, but instead aspired to keep society safe with the questionable strategy of simply removing offenders from society for the duration of their sentences. The public policy required the building of many more prisons, necessitating expenditures without accountability that united both political parties at all levels of government.

In his chapter, Professor Simon cited the late James Q. Wilson, a distinguished scholar who wrote the seminal book Thinking About Crime in 1975, as being one of the most influential leaders to advocate for higher rates of imprisonment. My understanding of Professor Wilson's work was that he believed our society lacked the capacity to rehabilitate anyone. Instead of squandering resources on programs designed to prepare offenders for law-abiding lives, Professor Wilson advocated that legislators and policy makers should embrace an "economic model" of crime. Such a theory held that the only effective way to lower crime rates would be to raise the cost of crime with stiffer punishments. Lawmakers embraced the theory, passing more laws that penalized criminal behavior much more severely. Consequently, prison population levels began their steady rise that extended over a 30-year period. As originally intended, the result became a massive prison system, one that incarcerated 2.3 million people.

Professor Simon's scholarship analyzed the societal influences that led to America's massive prison system. He explored "temporal" and "spatial" dimensions, questioning whether spiking rates of imprisonment were a part of an era and whether the phenomenon was unique to the United States. Although Professor Simon concluded that the era of mass incarceration has come to an end, too expensive to continue as a public policy, he cautioned that no one should expect incarceration rates to drop precipitously. The end of "mass incarceration" only meant that the hyperbolic growth of the past 30 years would stop, with prison population levels reaching a plateau. Those population levels would not revert to historic lows, as an entire ecosystem that would continue has been built around our massive prison system. It would have lasting, nefarious consequences of social problems which Professor Simon suggested were only just beginning.

Those problems won't only include recidivism, but intergenerational recidivism. And as the Wall Street Journal articles point out, they will include more people being tangled up in the criminal justice system even though those people don't know they are breaking any laws. It's all part of the original design behind mass incarceration.