Mass Incarceration and the "Degree of Civilization"

By Ken Strutin, Published on September 4, 2012

Incarceration is when a person loses their freedom pending trial or by serving a sentence. Mass incarceration is when millions of people are imprisoned and kept there based on a generation of tough on crime policies.1 Viewed another way, incarceration is a personal problem; mass incarceration is everyone's problem. And the number of people behind bars, which is higher in the United States than anywhere in the world, creates a ripple effect throughout the criminal justice system and society at large.

The picture of modern prison population concentration might be visualized as three concentric circles. At the core is individual incarceration, someone awaiting trial or serving a sentence; in the next ring are those who have been sentenced to jail or prison, termed "mass imprisonment"; and the outer most ring encompasses everyone who is behind bars for any and all reasons, i.e., mass incarceration. And the "mass" nature of imprisonment might be read broadly to include people travelling through, or languishing in, the transinstitutional pipelines of civil confinement,2 Immigration and Customs Enforcement3 and other institutions.4

Prison expansion and growing inmate populations are have been linked to tough on crime policies and crime rates.5 However, mass incarceration (aka hyper incarceration, over-incarceration and more narrowly, mass imprisonment)6 and its causes have been unmoored from these linkages according to recent studies by scholars and analysts.7

Indeed, the responses by legislatures, courts and policy makers to prison overpopulation have resolved into balancing budgets with smart on crime approaches.8 And in some instances the courts have ordered remedies for unconstitutional conditions of confinement arising from overcrowded and dilapidated facilities.9 Indeed, there is a movement afoot to reexamine mass incarceration in terms of sentencing laws,10 monitoring prison conditions,11 exploring alternatives,12 as well as early release and reentry solutions.13

"The degree of civilization in a society can be judged by entering its prisons."14 Thus the remarkable rise and preeminence of the United States as the world leader in incarceration has inspired intense study of this punishment by many academic disciplines, public interest institutions and government agencies.15 This article focuses on a small portion of recent and notable publications from these sources along with a list of current awareness sites.












1 In essence, this is the "Iron Law of Prison Populations": "the total number of prisoners behind bars is purely and simply a result of two factors: the number of people put there and how long they stay." Todd R. Clear & James Austin, Reducing Mass Incarceration: Implications of the Iron Law of Prison Populations, 3 Harv. L. & Pol'y Rev. 307, 308 (2009). In addition, many can end up serving de facto life sentences due to parole board policies. See generally Daniel Weiss, California's Inequitable Parole System: A Proposal to Reestablish Fairness, 78 S. Cal. L. Rev. 1573 (2005); Edward R. Hammock & James F. Seelandt, New York's Sentencing and Parole Law: An Unanticipated and Unacceptable Distortion of the Parole Boards' Discretion, 13 St. John's J.L. Comm. 527 (1999); De Facto Life Without Parole, N.Y. Times, Aug. 12, 2012, at SR12.

2 See Brad Health, Sexual Predators Rarely Committed Under Justice Program, USA Today, March 19, 2012 ("Six years ago, the federal government set out to indefinitely detain some of the nation's most dangerous sex offenders, keeping them locked up even after their prison sentences had ended. But despite years of effort, the government has so far won court approval for detaining just 15 men. Far more often, men the U.S. Justice Department branded as 'sexually dangerous' predators remained imprisoned here for years without a mandatory court hearing before the government was forced to let them go, a USA TODAY investigation has found. The Justice Department has either lost or dropped its cases against 61 of the 136 men it sought to detain. Some were imprisoned for more than four years without a trial before they were freed."); Adam Liptak, Extended Civil Commitment of Sex Offenders Is Upheld, N.Y. Times, May 17, 2010 ("In a broad endorsement of federal power, the Supreme Court on Monday ruled that Congress has the authority under the Constitution to allow the continued civil commitment of sex offenders after they have completed their criminal sentences.").

3 See Immigration Detention (ACLU)("Immigration detention in the United States has reached crisis proportions. Over the last 15 years, the detention system more than quintupled in size, growing from less than 6,300 beds in 1996 to the current capacity of 33,400 beds. In 2010, the Department of Homeland Security (DHS) held 363,000 immigrants in detention in over 250 facilities across the country.").

4 See, e.g., Deborah N. Archer, Introduction: Challenging the School-to-Prison Pipeline, 54 N.Y.L. Sch. L. Rev. 867, 868 (2009/2010)("The school-to-prison pipeline is the collection of education and public safety policies and practices that push our nation's schoolchildren out of the classroom and into the streets, the juvenile justice system, or the criminal justice system."); Catherine Y. Kim et al., The School-to-Prison Pipeline: Structuring Legal Reform (NYU Press 2012); School-to-Prison Pipeline (ACLU).

5 See United States v. Gregg, 435 Fed. Appx. 209, 218-219 (4th Cir. 2011)("This case presents familiar facts seen in courts across the country: a defendant addicted to narcotics selling narcotics in order to support his habit. Unfortunately for Gregg and countless other poorly-educated, drug-dependant offenders, current drug prosecution and sentencing policy mandates that he spend the rest of his life in prison. He is not alone: the United States currently has the highest rate of incarceration in the world. . . . This staggering incarceration rate is traceable to the so-called 'War on Drugs,' which began in 1971 and picked up steam in the mid-1980s, when Congress decided to get 'tough' on drug-related crime by imposing lengthy mandatory minimum prison sentences for offenders convicted of participating in the illegal drug trade. . . . The mass incarceration of drug offenders persists into the second decade of the twenty-first century despite the fact that research consistently demonstrates that the current approach to combating illegal drug use and drug trafficking is a failure. (citations omitted)).

6 See Jonathan Simon, Chp 1 Mass Incarceration: From Social Policy to Social Problem in The Oxford Handbook of Sentencing and Corrections (Oxford University Press 2012) at 27-28 ("The phrase 'mass imprisonment' was coined by David Garland (2001b) in 2000 to describe the distinctive expansion of imprisonment in the United States between 1975 and the late 1990s. To Garland, mass imprisonment constituted a new regime of penality that differed along two dimensions from varying policies of imprisonment in use by modern societies since the end of the eighteenth century. First, U.S. imprisonment rates in the late 1990s marked a substantial departure from historic norms for the scale of imprisonment during the twentieth century by several magnitudes (Zimring and Hawkins 1991). Second, in contrast to a history of using imprisonment against individuals based on crime and criminal history, contemporary mass imprisonment reflected a 'systematic imprisonment of whole groups of the population' (Garland 2001b, 2; Feeley and Simon 1992 ). The conceptualization of mass imprisonment has been adopted by many other contemporary criminologists (Western 2006; Clear 2008 ). It has also been criticized on a number of grounds. For some, the term is inherently political rather than scientific, embodying a normative perspective on the social value of contemporary imprisonment. For others, the concept falsely implies that the risk of incarceration is evenly distributed in society, while it is clear that some demographic categories, particularly African American and Latino males, especially those without high school graduation, are incarcerated at dramatically higher rates than similarly situated whites (Wacquant 2009 ). Loic Wacquant has argued that the term 'hyper incarceration' could better capture the dramatic change in the scale of imprisonment without implying a false equality of incarceration risk. However, the term 'mass imprisonment' need not be misleading, and it captures an important degree to which incarceration risk has been generalized").

7 See United States v. Bannister, 786 F. Supp. 2d 617, 651 (E.D.N.Y. 2011)("While the movement to mass incarceration was prompted largely by concerns with violent crime, much of its focus is on nonviolent activities, particularly drug offenses. . . .Today's high incarceration rate bears little relationship to the prevalence of crime. '[T]he crime decline of the 1990s did coincide with a large increase in the prison population. But the large crime increase during the preceding period coincided with an even bigger jump in imprisonment, and incarceration rates continued to climb after 2000 even though crime rates were relatively static[.]' Cook & Ludwig, supra, at 64 (emphasis in original)." (citations omitted)).

8 See Bannister, 786 F. Supp. 2d at 655("Much of the cost of incarceration is due to the imprisonment of nonviolent offenders. If the number of such inmates were cut in half, taxpayers would be saved an estimated $16.9 billion annually." (citation omitted)); David Keene, Mollohan and Keene: Left and Right Agree on Criminal Justice Reforms, Wash. Times, Aug. 15, 2012 ("The Senate Judiciary Committee recently held a hearing to address rising prison costs. It's promising that Congress is talking about the issues, but the time for talk is over — it is time for Congress to act, and it should look to states for the road map. In several states, legislators have crossed the aisle to build consensus and enact reforms on a bipartisan basis, easily outpacing the federal government. In tough-on-crime Texas, the Republican chairman of the state House Corrections Committee worked with the Democratic chairman of the Senate Criminal Justice Committee to shepherd through legislation in 2007 that increased drug treatment capacity and expanded diversion from prison for nonviolent, low-level offenders. Similarly, the Georgia legislature unanimously passed a bill this year that diverts low-level offenders away from prison and, when appropriate, into drug treatment, reserving prison for dangerous offenders. States such as Kansas, South Carolina and Ohio have enacted similar legislation.").

9 See, e.g., Brown v. Plata, 131 S.Ct. 1910, 1923 (2011)("Overcrowding [in California state prisons] has overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsanitary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve. The overcrowding is the 'primary cause of the violation of a Federal right,' 18 U.S.C. S 3626(a)(3)(E)(i), specifically the severe and unlawful mistreatment of prisoners through grossly inadequate provision of medical and mental health care. This Court now holds that the PLRA does authorize the relief afforded in this case and that the court-mandated population limit is necessary to remedy the violation of prisoners' constitutional rights. The order of the three-judge court, subject to the right of the State to seek its modification in appropriate circumstances, must be affirmed."); Paige St. John, California Unlikely to Meet Prison Crowding Reduction Requirement, Los Angeles Times, Aug. 12, 2012 ("California's progress in relieving its teeming prisons has slowed so much that it probably won't comply with a court-ordered population reduction, and judges have raised the prospect of letting some inmates out early.").

10 See Principles of Effective State Sentencing and Corrections Policy (NCSL 2011); Valerie Wright, Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment (2010)("While the criminal justice system as a whole provides some deterrent effect, a key question for policy development regards whether enhanced sanctions or an enhanced possibility of being apprehended provide any additional deterrent benefits. Research to date generally indicates that increases in the certainty of punishment, as opposed to the severity of punishment, are more likely to produce deterrent benefits. This briefing paper provides an overview of criminological research on these relative impacts as a guide to inform future policy consideration.").

11 Notably, efforts at transparency in prison operations can conflict with concerns over security and budgets. See, e.g., Quinn: Security Concerns Prompted End to Media Tours of Prisons, CBS Chicago, Aug. 14, 2012 ("As WBBM Newsradio's Regine Schlesinger reports, state Treasurer Dan Rutherford recently criticized the governor's action, saying denying media access to the prisons removes a layer of transparency."); California Prisons Object to Expanding Media Access to Inmates, Los Angeles Times, July 23, 2012 ("California prison officials are opposing legislation that would increase media access to inmates, saying it would cost too much money to facilitate interviews.").

12 See, e.g., Mike Ward, Texas Prison Population Shrinks as Rehabilitation Programs Take Root, The Statesman, Aug. 11, 2012 ("Instead of sending more and more lawbreakers to prison, judges in Texas and other states are increasingly sentencing them to alternative treatment and rehabilitation programs that have proven more effective — and that cost much less.").

13See generally Reentry.Net; Prisoner Reentry Institute at John Jay College of Criminal Justice.

14 This truism of prison and society is attributed to Fyodor Dostoevsky. See Entry 1527 in Respectfully Quoted: A Dictionary of Quotations (1989) found on Bartleby.com.

15 See, e.g., Marie Gottschalk, The Long Reach of the Carceral State: The Politics of Crime, Mass Imprisonment, and Penal Reform in the United States and Abroad, 34 Law & Soc. Inquiry 439 (2009)("This essay reviews five books as they relate to the causes and political consequences of mass imprisonment in the United States and the comparative politics of penal policy: Ruth Wilson Gilmore's Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California (2007); Jeff Manza and Christopher Uggen's Locked Out: Felon Disenfranchisement and American Democracy (2006); Jonathan Simon's Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (2007); Michael Tonry, ed., Crime, Punishment, and Politics in a Comparative Perspective (2007); and Bruce Western's Punishment and Inequality in America (2006).")

16 "As of June 2012, this blog is no longer being updated. For news on prison legal issues, please visit the blog Evolving Standards of Decency."