United States incarceration rate defies the rule of optimal sanction that would promote equity and efficiency. It incarcerates 753 per 100,000; comparable European figures include 153 for England, 96 for France, 92 for Italy, 66 for Denmark and 90 for Germany. The high figures in the United States are caused by imposing punishment rather than rehabilitation as the pendulum for "tough on crime" swung in the 1980s. California's three strike laws, power under proposition 2, direct filing and other tough-on-crime measures are illustrative.
Over the past forty years the number of incarcerated people has increased 350 percent while population increased 33 percent, violent crimes rose 3 percent higher than 1980 while property crimes dropped from 496.1 per 1,000 in 1980 to 134.7 in 2008, according to the Bureau of Justice Statistics. This growth in incarceration rates is primarily attributed to changes in correctional policies that have been ruled by the Supreme Court, followed by the judiciary system, the Justice Department, and the prosecutors whose utility function for re-election by "being tough on crime," overrides national wellbeing.
For instance, the "three-strike laws "adopted in 1990 impose a life sentence on persons who have been convicted of three or more serious crimes. However, the definition of serious crimes depends on the each state. In most states, all three must be violent crimes. But in some states, this is not the case. California law mandates the life sentence for any third felony conviction so long as the first two were deemed "violent" or "serious." Moreover, an individual can receive multiple strikes from a single incident, leading to unexpected life sentences.
In Rummel v. Estelle, the Supreme Court upheld a life sentence with the possibility of parole for William James Rummel for a felony fraud crime amounting to $120.75. On his third offense, Rummel refused to return money received as payment for unsatisfactory repairs of an air conditioning unit, resulting with a life sentence. In Lockyer v. Andrade, Leandro Andrade received a mandatory sentence of 25 to life for stealing a total of nine videotapes at two different K-mart stores. Under California's three strikes law, any felony can serve as the third "strike" and thereby expose the defendant to a mandatory sentence of 25 years to life in prison.
Another case that demonstrates impacts of such minimum punishment laws is Ewing v. California. In 2000, Ewing stole three golf clubs worth $399 each and was charged and convicted of felony grand theft of personal property. During sentencing, Ewing requested the judge in the case exercise discretion permitted under California law and reduce the conviction to a misdemeanor. The judge declined and sentenced Ewing in accordance with the three strikes law. On appeal, Ewing argued the sentence of 25 years to life was grossly disproportionate to the crime and therefore a violation of the Eighth Amendment protection against cruel and unusual punishments. The court, reasoning that the three strikes law served the state's legitimate interests, rejected this claim. The California Supreme Court declined to hear the case.
Do these rulings promote equity and efficiency or have they become burdensome upon society? Why not employ alternative deterrent mechanism other than incarceration? A study has shown that a 10 percent increase in incarceration is associated with two to four percent drop in crime.
The dramatic increases in incarceration rates in the United States are influenced by a number of additional factors.
There is a drastic disparity when comparing the race of inmates to the general population in the United States. There are 69.13 percent Whites, 12.32 percent Blacks, and 12.55 percent Hispanic but the inmate population is 34.72 percent White, 43.91 percent Black and 18.26 percent Hispanics. We believe this significant disparity is attributed to racism.
Education and Race
There is a drastic difference in incarceration rates of black high school dropouts as compared to other races, which points to racial bias, as this difference is not explained solely by larger number of crimes being committed by blacks than other races.
The war on drugs
Non-violent drug offenders make up 25 percent of the incarcerated population (up from less than 10 percent in 1980). While in Europe, drug offenders may be sent to outpatient clinics, in the United States, enormous sums are spent waging war on drugs and incarceration. There is a disconnect between the intended results of our politicians and the actual results that the taxpayers are paying.
Types of crimes
According to the Center of Economic Policy Research (CEPR), only 8.5 percent of federal prison inmates have committed violent offenses, meaning that 91.5 percent of federal inmates committed non-violent crimes. 61.8 percent of all inmates (including jail, state prison, and federal prison) committed non-violent offenses. Since 1960, violent and property crimes have stayed relatively constant, yet incarceration rates have risen almost 450 percent. This rise in incarceration does not seem to be explained by the incident of crime rate. It follows that the impact of incarceration on crime rates is small. On the other hand, monetary cost to government budgets and social costs to prisoners, their families and their communities must weigh against incarceration...
In 2008, federal, state and local governments spend nearly $75 billion on corrections (mostly incarcerations). With so much of this money being allocated to non-violent offenses and the war on drugs, there have been significant budget cuts on education. Since these massive expenditures are not efficient for society, it would be much more beneficial to allocate some of this fund on education, which would entice the high-school dropouts to stay in school and pursue an education to make an honest living, as opposed to fall into a life of crime. Moreover, it is very expensive to build and maintain all of the new prison and jails that have been needed with such rises in incarceration rates... There are also other economically inefficient legal practices regarding cost. For instance, the lifetime per prisoner cost is estimated at 1.2 million, while instituting the death penalty cost at least 2-3 times more due to legal fees and appeals that vary per state.
In the Netherlands non-custodial sentencing has grown. Concurrently, prison and crime rates have both been falling. Britain has proposed replacing jail for lesser offenders with community work, fines and rehab. New York has adopted similar practices and cut its incarceration rate by 15 percent from 1997 to 2007, while reducing crime by 40 percent.
In conclusion, the incarceration approach has failed. It is very costly, unfair and ineffective. U.S. jails are overcrowded. By reallocating budgets to improving living conditions and education, crime rates will fall -- so will the stigma of U.S. incarceration and prosperity will rise.
Nake M. Kamrany is a Professor of Economics at the University of Southern California.
Ryan J. Boyd is a Research Assistant in Economics at the University of Southern California and a member of Global Income Convergence Group (GIC-G) in Los Angeles.