25% of the world’s prison population are housed in America, a country with 5% of the world’s population. It has the largest prison population in the world as well as the highest incarceration rate other than the Seychelles. The incarceration rate of 707 per 100,000 inhabitants is close to 5 times the rate of the UK while the prison population of more than 2.2m, is nearly 600,000 higher than China, a country more than 4 times it’s size. Add to this the 4.8m people on parole or probation and the result is that 2.9% of the US adult resident population (or the entire population of Hong Kong) is under correctional supervision.
A high incarceration rate is interesting in that it is both a symptom and cause of a dysfunctional society. On the one hand there can perhaps be no clearer indicator of a broken society than one that needs to lock up it’s citizens with such terrifying regularity. While on the other this practice serves only to accelerate the further deterioration of society’s fabric. For many reasons that I will discuss in due course America’s criminal justice system is set up not just for failure but to create a vicious cycle of degradation so severe that without total reform it risks completely undermining the future of this great country.
An impotent War
So how did it come to this? To blame it entirely on drugs or more specifically the war on drugs would be simplistic, but not massively wide off the mark. One cannot entirely ignore the impact decreasing socio-economic mobility, increasing inequality, and the prevalence of guns has on crime statistics. However, without a doubt the single largest contributor to the incarceration problem is the war on drugs started by Nixon back in 1971, the institutionalised consequences of which continue to be felt to this day. This, coupled with the perverse incentives of an increasingly privatized prison system, have directly resulted in America standing alone amongst western democracies in terms of its incarceration rate.
Let’s start with the war on drugs and a few facts. In the 44 years this “war” has been carried out the use of illegal drugs in America has increased by almost every measure available. Add to this the fact that Americans’ per capita alcohol consumption is at a similar level as in 1971 and that 52 Million people Americans, over the age of 12, have used prescription drugs non-medically in their lifetime, one thing becomes clear, ‘drugs’ in their many forms are here to stay. Perhaps the only success story in the state’s attempt at curbing drug use is in terms of cigarettes.
Though it will be obvious to some, before going further, perhaps I should justify the categorising of some prescription drugs, alcohol and cigarettes in the same category as the illegal drugs targeted by the war on drugs. Firstly, prescription drugs. A prescription painkiller such as Oxycontin is molecularly almost identical to Heroin they differ primarily in their intended uses and legal status. Their chemical compositions, physiological impact, and addictive tendencies have far more in common than separates them. Moreover, the number of Americans that consume prescription drugs non-medically in any given month is almost twice the number that consume illegal drugs (excluding Marijuana). Then there’s alcohol and cigarettes. Again the main differentiating factor between these and illegal drugs is simply their legal status. Study after study have shown that these two drugs are more harmful than the majority of illegal drugs. The compartmentalization applied by society when dealing with all these different drugs is due solely to societal conditioning and serves only to make sensible conversations regarding drugs far more challenging than it should be.
I do not mean to suggest that the problems associated with these other drugs are not also substantial. The prescription drug issue in America for instance is a huge problem that is currently not being addressed adequately. However, despite the sizeable problems caused by alcohol, cigarette, and prescription drug abuse we can learn a lot from the fact that this abuse, in the most-part, is treated as a public health issue rather than a criminal one. Criminalising drug users is an extremely expensive practice, it costs an average of $31,286 a year to keep someone behind bars in America. Moreover, it also directly reduces the productive work force and the tax contributing population. This is not only an expensive tactic for reducing drug use, it is also an incredibly ineffective one. As mentioned earlier, despite imprisoning millions of non-violent drug offenders drug use has not reduced in America since the war on drugs started.
Even worse than the expense and ineffectiveness of these policies is the fact that treating drug users as criminals serves only to actually criminalise them. Placing them behind bars drastically reduces their future opportunities in life, while moreover surrounding them with criminals of a more violent nature only serves to perpetuate this type of behavior. The rate of recidivism is therefore understandably incredibly high in the US, with about three-quarters (76.6 percent) of released prisoners rearrested within 5 years of being released. To add to all this there is also a potentially even greater indirect impact of criminalizing drug users. It has led to millions of children growing up with parents behind bars. The impact of this on their chances in life is enormous and without significant change the numbers impacted will only continue to increase.
If criminalizing non-violent drug offences is in itself an ineffective tool, the lack of common sense on which these laws were based and the severity and lack of flexibility with which they are applied only serves to exacerbate their impotence. Two particularly awful manifestations of this are the unjustified disparity with which different drugs are often treated and mandatory minimum sentencing.
To take one example of the non-sensical way in which some drug laws were created one only needs to look at crack vs. coke. Despite the myths, crack cocaine is simply powdered cocaine processed with baking soda and water. The difference is primarily in their user bases with crack used mainly by poor black people, powdered cocaine on the other hand maintains a predominantly white and wealthy user base. Nonetheless, the pharmacological effects of cocaine and crack are the same. Crack is simply more powerful as more cocaine enters the brain when it is smoked rather than inhaled. But claims that crack is 50 times more addictive than cocaine were simply more myths created by politicians for political expediency. The result of which is the laws on crack are exponentially more draconian than those for powdered cocaine. President Obama improved this somewhat when redressing the imbalance from 100:1 to 18:1 for sentencing of crack vs. powdered cocaine possession. However, that still means that possessing 5g of Crack will get you a sentence of the same severity as 90g of powdered Cocaine. The second example is mandatory minimum sentencing. This policy completely removed the opportunity for judges to apply common sense when sentencing drug cases. Resulting in the worst cases with people being locked up in prisons in America for the rest of their lives for possessing minimal quantities of drugs.
The damage of misaligned incentives
As if this was not bad enough the issue is further compounded by the way police are incentivized to pursue the war on drugs. Firstly, under the laws of civil forfeiture police in America are allowed to seize assets, including cash, from persons suspected of involvement with crime or illegal activity without necessarily charging the owners with wrongdoing. This money can then be used to fund that police district’s operations (John Oliver has a great section on this crazy practice). Secondly, police receive bonuses for the quantity of cases solved. With the prevalence of drug use high, the easiest and lowest friction way of making arrests is simply to profile and sweep through poor neighbourhoods making stop and searches. While this has led to ever-increasing numbers of drug arrests it appears to have simultaneously detracted from the police’s focus on solving violent crimes due to the lower chance of a payout, resulting in ever lower success rates. If these are two examples of inherently fallible systems doomed to exacerbate the issues of the war on drugs the next example of misaligned incentives has consequences for the incarceration rate overall.
While the war on drugs has been taking place America’s prison population has had an additional boost due to the increasing proportion of prison services being contracted out. At best this shift towards privatization can be seen as poor and naïve policy-making by governments that hoped to achieve economic benefits from this move. At worst however it is simply a further case of corporate interests winning out over public interest in a political system so skewed in favour of the former that this is more representative of a pattern than an anomaly. While prisons operated by private corporations currently only account for 8% of the total prison population according to the DOJ, their share has been rapidly increasing and unless tempered represents a significant threat to the already overpopulated prison system. There are many other social justice issues as a direct consequence of private corporations running prisons, such as their use of prisoners for labour in what has been compared to a new form of slavery. However, so as not to be drawn down that rabbit hole I’ll focus here on the direct impact it has on the incarceration rate.
At the root of why the prison outsourcing phenomenon has negative consequences for America’s incarceration rate is the fact that private corporations should be expected to “maximise the spread between the amount billed and the actual cost of delivering the service” i.e. profit maximize. This is not a speculative accusation but simply a statement of fact given the management of America’s public corporations have a fiduciary duty, enforced by law, to maximize profits for shareholders. Unsurprisingly the manifestations of this legal and financial theory are policies with major direct consequences for the incarceration rate. These include mandated occupancy rates, the exertion of political influence on policies regarding the stringency of sentencing, and underinvestment in the treatment and rehabilitation of prisoners.
Two thirds of prisons operated by private companies are governed by contracts that mandate a minimum occupancy rate of 90%. Where this isn’t fulfilled, the government, i.e. the taxpayer, pay the prison providers for each empty bed. Prisons run by private corporations bill per prisoner and therefore maximize revenue by having 100% occupancy rates. Anything that helps to fill their prison beds is therefore positive for their top line. Tougher sentencing and high recidivism are two such phenomena and the attitudes of America’s two largest private prison providers, GEO and Corrections Corporation of America, on these issues are brazenly obvious. These two companies and their associates “have funneled more than $10 million to candidates since 1989 and have spent nearly $25 million on lobbying efforts”. Unsurprisingly large chunks of this money has gone to support Republican candidates and their policies regarding tougher drug enforcement and sentencing and in particular the detention of illegal immigrants. These are exactly the sorts of policies that need reform of an entirely different kind, to move away from this culture of imprisonment.
The other area of clearly misaligned incentives is in terms of the cost of running private prisons. In trying to minimize the cost of running prisons private corporations are incentivized to reduce the money spent on the treatment and rehabilitation of prisoners. However, along with security, these should be two of the integral functions of a prison. The purpose of a prison should be on the one hand to isolate prisoners away from society in a secure environment while on the other to treat and rehabilitate them so that one day they can be released and integrated back into society as a legally functioning member. Private corporations however have no reason to be interested in that latter part. Not only do treatment and rehabilitation cost money but moreover, a high rate of recidivism amongst their released prisoners ultimately equates to less empty prison beds.
The need for wholesale change
The scale of the incarceration issue is frighteningly enormous. Bringing the incarceration rate down to what could be deemed acceptable is a mammoth task that requires wholesale change rather than tampering round the edges. First and foremost a leader is required who, instead of focusing on short-term political expediency, comes out and says the war on drugs is a complete failure that can never be won and only serves to undermine America’s social fabric. Drug laws should be entirely overhauled to focus on treatment and rehabilitation rather than imprisonment for non-violent drug offences. Removing mandatory minimum sentences and three-strikes laws would be a decent starting point. But in my view change should be even more radical with the default for non-violent drug offences prescribed holistic rehabilitation not prison. Simultaneously there needs to be a study of monumental proportions into the current prison population comprised of non-violent drug offenders. The ultimate aim of which should be commuting as many of these sentences as possible. The rules around how police forces enforce drug laws also require complete overhaul to incentivize them to focus on solving violent crimes rather than non-violent ones. And the contracting out of prison operations should stop entirely, at least until a way can be found to align the incentives of the corporations running them and society as whole. In my view this is probably not possible and prisons should instead always be publicly run. However, there are some practices aimed at realigning incentives that are worth at least experimenting with. Social impact bonds are one such instrument, whereby prisons are financially rewarded for the rehabilitation of prisoners i.e. high employment and low recidivism rates for their ex-prisoners. These have been used with some success in the UK but are far from proven instruments as yet.
We have at least seen a flattening out and even slight decline of the incarceration rate under President Obama, the first time this has happened since the war on drugs began. However, the changes to-date during his tenure, while certainly positive, are sadly a long way short of those required. Unless there’s a significant shift in policy sometime soon the financial and social costs of having such a high incarceration rate appear likely to continue for at least another generation.