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Article Excerpt
I. INTRODUCTION
The single most striking statistic in the American criminal justice system is its thirty-year expansion in prison population. From 300,000 prisoners in 1977, the prison population has risen steadily to over 1.5 million as of June 30, 2005, a 400% increase. By 2005, states were collectively spending over $43 billion per year on corrections. That this followed nearly fifty years of relative stability makes the growth all the more remarkable.
This growth touches on myriad major social issues: how governments have responded to declining faith in the welfare state; how the American legal system--and American society more generally--treats its minority and poorer citizens; how states and counties allocate their scarce financial resources, and how the federal government influences theses decisions; how governments respond to shifting patterns in crime and social disorder. Not surprisingly, given its far-reaching effects and implications, the prison system's growth has spawned a large literature examining the causes, implications, and justifications (or lack thereof) for this profound shift in the use of incarceration.
I have two goals in this Article" to provide a systematic analysis of what we know about the forces that have driven this growth, and to set forth a framework for producing more reliable and accurate results in the future. In particular, I evaluate an empirical literature that spans criminology, economics, law, political science, and sociology. While hundreds of articles and dozens of books have been written about recent trends in U.S. prison populations, most have been predominantly normative or historical in their approaches. A small core of articles, however, has attempted to evaluate the factors influencing these trends using sophisticated empirical models, and it is on these that I focus. That is not to say at all that the other approaches are unimportant, but they require a different sort of evaluation.
An accurate empirical understanding of prison growth is vital for policy planners of all stripes. Reformers concerned with the magnitude of the prison population may not know whether to focus on the adoption of sentencing guidelines, more expansive representation for the indigent, or the use of commission-drafted fiscal impact statements unless they know whether the growth of the prison population has been driven by racial inequalities, the poverty of defendants, or legislative budgetary concerns. Conversely, those who support incarceration for utilitarian or other normative (e.g., retributive) reasons need to understand the factors driving its expansion to assess its appeal. A clearer appreciation of how we got here and where we are heading benefits everyone--from fiscal conservatives to social liberals.
I find, however, that in general the current empirical literature answers these questions poorly. Those who study prison populations have settled on a well-defined set of widely accepted explanatory theories. But the efforts to test these theories suffer from numerous important limitations that inhibit their ability to identify causal effects accurately. That is not to say that we know nothing at this point, but our current knowledge is quite rough.
In this Article, I set out to accomplish two specific tasks. First, I flesh out what it is that we know, and (of equal importance) what we do not know. Though limited, the current findings do provide some useful insights. In particular, the studies point to seven broad claims, four with respect to prison admissions and three with respect to total population. First, the studies suggest that the admissions rate increases with the crime rate, the percent of the population between the ages of twenty-four and thirty-five, and the percent of the population that is black; and falls with personal income per capita. The studies provide fewer insights for the models looking at total prison population, due at least in part to complex (and unaddressed) dynamic features of those models. Nonetheless, the results imply that total prison population rises with the crime rate, the percent of the population between eighteen and thirty-five, and the percent of the population that is black.
Second, as part of a larger empirical project looking at prison growth, (1) I discuss numerous methodological limitations with the current studies and improvements that will lead to more accurate and stable results. I focus on four concerns in particular: that models (1) suffer from uncorrected endogenous relationships; (2) exhibit little stability within and across articles, either due to problems of omitted variable bias or deeper structural limitations; (3) rely on poorly chosen variables (both dependent and independent); and (4) consistently use the same data rather than looking for alternative sources of information. Of course, in a world of limited and sometimes flawed data, it may prove impossible to satisfy a theoretical gold standard, and it is important not to cross the thin line between idealism ("we can do it better") and nihilism ("we will never be able to do it well enough")--or at least not without caution (and evidence). Some of the problems with the current studies can be overcome to produce increasingly reliable results, and I explore several such possibilities in this Article. But it also important to identify those issues that are, at least for now, intractable, and to consider the implications of such blind spots.
This Article proceeds as follows. Part II lays out the broad trends in prison population and discusses the various theories developed over the years to explain them. Part Ill then critically reviews the current empirical literature, identifying the insights we can draw from it and highlighting the open questions. Part IV focuses on several significant improvements for future efforts that lead to more reliable results.
II. A BRIEF HISTORY OF PRISON GROWTH
A. TRENDS IN THE USE OF PRISON
Figure 1 is by now well known. The U.S. prison population fluctuated gently from the 1920s to the 1970s, but by the late 1970s it had started a slow and steady expansion that has continued unabated ever since. State expenditures on corrections grew rapidly during this period as well: data from the Census suggest that the share of state expenditures dedicated to corrections grew by approximately 4% per year during the 1980s and 1990s, reaching nearly $43 billion in 2005. And these numbers ignore the collateral implications of prison growth, such as its effects on inmates (both while in prison and after), their families, and their communities.
[FIGURE 1 OMITTED]
Showing that prison populations have soared is easy; explaining why they have is more difficult. Figure 2 suggests one reason why simple solutions may be hard to find. This Figure plots the variation in annual state incarceration rates between 1977 and 2004. It is clear that growth in the U.S. prison population has been accompanied by a divergence in state behavior. The rate of growth has varied widely across the states: between 1977 and 2004, prison population grew by only 59% in North Carolina, but by 678% in North Dakota and 538% in Mississippi. (2)
[FIGURE 2 OMITTED]
The trends in expenditures appear to be less divergent. Figure 3 plots the variation in the percent of state budgets dedicated to corrections. As in Figure 2, the average rises slowly and steadily, but in Figure 3 the range between the upper and lower bounds appears relatively stable. No state appears to dedicate more than 5.8% of its budget to corrections in a given year. Nonetheless, in 1998 over $30 billion was spent on corrections; in 2005, nearly $43 billion. Regardless of whether this is too much or too little--a challenging normative and empirical question beyond the scope of this Article--the total amount, along with the number of people incarcerated, indicates the critical importance of understanding the dynamics of prison growth.
[FIGURE 3 OMITTED]
B. THE GENERAL THEORIES OF PRISON GROWTH
Though the issue of relatively short-term prison population trends has only recently attracted significant scholarly attention, the prison as an institution has long been studied. Among the most prominent to explore its role in society are Emile Durkheim, Max Weber, Michel Foucault, and Georg Rusche and Otto Kirchheimer. (3) Durkheim considers the historical rise of the prison, arguing that it becomes the primary form of punishment as a society matures. (4) His concern, however, is not with the trends in prison populations over several years within a society, but instead with the evolution of prison's use as the society itself develops. Weber focuses more on the rationalization of punishment, examining its centralization and use of hierarchical systems, uniformity, specialization, penal infrastructure, and professionalism. (5) And Foucault, like Durkheim, explores how the prison developed at a macro level, tying its birth to the growing efforts by the state to control its citizens. (6)
Despite their importance to our understanding of the prison as an institution, these canonical sociological works provide little insight into the question of recent prison population trends. The one notable exception is the work of Rusche and Kirchheimer, which in fact explicitly considers prison population change during a given historical era. Rusche and Kirchheimer adopt a political-economic perspective, arguing that prison policies adapt to reflect changes in the labor market: the tighter the labor market, the less incarceration is used. While admitting that non-economic factors matter, they assert the centrality of economic forces. (7)
Given the general absence of scholarship looking at prison population trends--and one could never expect scholars writing before the 1970s and 1980s to predict the subsequent explosion--recent researchers have developed new theories, and built on the old, to explain prison growth. Their efforts fall into four broad schools of thought: the "crime theory," which links prison populations to crime rates; the "economic theory," to the importance of labor market and economics conditions; the "demographics theory," to shifts in race and age; and the "political theory," to changes in political ideology or manipulation by politicians seeking reelection. (8) Four other, less overarching theories have been noted as well: the deinstitutionalization of the mental health system, the expansion of prison capacity, the imposition of population caps by federal courts, and the fiscal health of the states. Each of these theories also provides important insights into the mechanics of population growth. I will consider each in turn.
1. The Crime Theory
The crime theory posits that a powerful factor influencing incarceration rates is crime. Its simplest version is quite intuitive: rising crime rates should increase prison admissions and populations (and declines in crime should lead to corresponding reductions, perhaps with a lag). Yet this theory has often been viewed with suspicion. (9) Perhaps this is due in part to the graphical evidence. As Figure 4 demonstrates, between 1960 and 2004 crime and incarceration did not move in a highly synchronized manner.
[FIGURE 4 OMITTED]
In the 1970s, Alfred Blumstein attempted to establish the lack of a crime/prison-population connection more rigorously. Along with Soumyo Moitra, he argued that a complex feedback loop linked crime and incarceration to keep the prison population constant. Their theory held that as crime rises and drives up the prison population, the minimum level of deviance needed for incarceration rises as a counterweight, keeping the prison population relatively fixed regardless of the crime rate. (10) Blumstein later recanted this theory in light of the prison population boom that started in the 1970s, (11) but he has continued to argue that the relationship between crime and punishment is weak. In a recent article written with Allen Beck, he states that only 12% of the growth in state prison populations between 1980 and 1996 was tied to changes in offending (with the remaining 88% due to increased incarcerations and longer sentences). (12) And Blumstein is not alone. Zimring and Hawkins, for example, echo his views, pointing to evidence that suggests that a single incarceration occurs for every 100 felonies committed. (13)
Nonetheless, it appears that crime does in fact influence the incarceration rate. The studies below that include measures of the crime rate consistently find a positive relationship between crime--violent crime in particular--and prison populations or admissions. Moreover, recent work suggests that these estimates understate the true effect because they ignore the simultaneous relationship between prisons and crime. (14)
2. The Economic Theory
The economic theory suggests that underlying economic conditions are powerful forces driving prison populations. Rusche and Kirchheimer's book is often considered the seminal work in this field. (15) It argues that penal practices respond to labor conditions: the more abundant labor is, the less care the penal system shows to those who fall within its grasp. David Rothman and Michael Ignatieff built on this political-economy theory to claim that the prison was developed to reassert control and social stability as capitalism undermined the ancien regime and its traditional forms of control. (16)
Rusche and Kirchheimer's theory, however, suffers from several shortcomings, which David Garland lays out clearly. In particular, prisons often operate at a loss and thus not (as Rusche and Kirchheimer claim) to the benefit of the state; penal practices often differ across states and countries with similar economic conditions; and ideology and politics surely play a role. (17) Furthermore, such a theory over-anthropomorphizes capitalism. Penal practices can shape and control the labor market only if there is a high degree of coordination between police, judges, and non-legal actors in the business world. (18) Ignatieff, at least, later openly backed away from his own argument, admitting that revisionist histories of the prison, including his own 1978 work, "contained three basic misconceptions": they overstated the state's monopoly of social control, the centrality of the state's "moral authority" to "social order," and the extent to which "all social relations can be described in the language of subordination." (19)
Note, however, that even if Rusche and Kirchheimer and their successors failed to develop a convincing overarching theory, they are right to draw our attention to the potential importance of economic conditions. Judges may be more willing to sentence the unemployed, and to sentence them to longer sentences. (20) And poverty can encourage crime and thus increase prison populations. In these cases, unemployment influences incarceration even though the judges are not involved directly in macro-level social control. When unemployment is higher, judges are simply more likely to face unemployed defendants at sentencing (and to give them longer sentences). Furthermore, greater income inequality may make the "underclass" appear more "different," leading judges--perhaps unconsciously--to sentence such defendants more harshly. Thus while theories of coordinated social control are problematic, it remains important to evaluate how economic factors operate in less direct, but still important, ways.
3. Demographic Theories
Demographic trends, especially changing age and race distributions, are also thought to influence the incarceration rate. The theories for age are relatively straight-forward. That age profiles and criminality are correlated is well known. But even controlling for crime rates, there may be a link between age profiles and incarceration patterns. First, while criminal behavior often starts in the late pre- and early-teen years, the juvenile justice system handles almost all offenders below age eighteen. Second, evidence suggests that adult courts are less willing to sentence the youngest offenders. Thomas Marvell and Carlisle Moody, for example, have produced results indicating that judges are more likely to lock up offenders between the ages of twenty-five to thirty-four than between eighteen and twenty-four. (21) Changing age patterns may therefore shift prison populations, independently of their effects on crime.
Given the interplay in American society among race, crime, and incarceration, it should come as no surprise that the theories linking race and prison populations are more complex (and more extensively discussed) than those examining age. Three strands in particular deserve attention. The first is the most direct, focusing on race's influence over day-to-day decisions concerning arrest, prosecution, and sentencing. This can be thought of as a theory of "institutional racism," with racial bias manifesting itself in the quotidian tasks that define the criminal justice system. Police may be more willing to arrest, district attorneys more willing to prosecute, juries more willing to convict, and judges more willing to incarcerate minorities (and to do so for longer terms). This would produce a positive correlation between the sizes of a jurisdiction's minority and prison populations. So far, however, most empirical studies examining institutional racism have focused on its impact on the racial distribution of prison populations, not on the populations' actual sizes; these studies have been inconclusive. (22) Thus the question of how institutional racism has influenced the size of the overall prison population remains relatively open.
The second strand emerges from the political theory, linking more punitive criminal policies to a strategic political backlash against the social changes of the 1960s, including the civil rights movement. Katherine Beckett provides a clear exposition of this position, arguing that political campaigns such as Barry Goldwater's 1964 presidential bid attempted to tie crime to political dissent, using attacks on the former to quash the latter. (23) Randall Kennedy similarly notes that among the many roles race has played in criminal justice, one has been as a "thinly veiled code" to signal opposition to the social transformation started in the 1960s, especially with respect to civil rights. (24)
This argument may appear to track Garland's "late modernity" theory (discussed more below), but it differs in important ways. Garland asserts that the state turned to law enforcement to justify its authority when it failed to provide an effective social welfare net; protection from crime was an effort by the government to gain legitimacy. In a sense, then, the second strand of the race theory is a cynical variant of Garland's, claiming that the turn to criminal policy was not a sincere effort to justify the government's role, but rather a political ploy to undo undesired policies.
The third strand is closely related to the crime theory. Advanced most strongly by Michael Tonry, it asserts that racial bias helped motivate (and continues to motivate) the war on drugs, and that this war has subsequently played a dominant role in the prison population surge. (25) Tonry argues that changing arrest patterns fueled the growth in prison populations, with race playing an important role in these changes. While it is widely accepted that the war on drugs has had a serious impact on minority (especially urban) communities, such a result can be blamed on racism only if it was foreseeable to the drug war's architects. Tonry makes just this claim, arguing that the effects of a supply-side, prohibitionist (rather than a demand-side, risk-reduction) approach on urban minority communities should have been clear to those who designed the policies. Note, though, that Tonry's argument is equally consistent with racial indifference and with racial animus.
Though this nation's long-running problems with race have surely influenced prison populations, each of the three strands above suffers from important reservations. First, each theory, particularly that of institutional racism, has a hard time untangling the correlation between race and class. Not only may police, prosecutors, juries, judges, and parole boards treat whites better than blacks, but they may treat the rich better than the poor; even in the absence of any class bias, the rich may be better able to avoid prison (or longer sentences) because they can hire better lawyers. To the extent that race and class are correlated, isolating the effect of race may be difficult, especially with aggregate state-level data.
Second, the actual effect of the political and rhetorical use of "crime" on prison populations is unmeasured. The route from political device to effective policy is long and complex. Not only is it often difficult for a legislature to pass a new law, but even once passed administrative intransigence can thwart meaningful implementation. As Theodore Caplow and Jonathan Simon note, "It is undeniable that some white Americans were pleased to see the benefits of the civil rights movement and affirmative action partly cancelled by the rise in the incarceration of African Americans, but there is no evidence that such bigotry drives the trend." (26)
And finally, while it is undeniable that the war on drugs has had a disparate racial impact, two concerns with Tonry's argument deserve attention. First, as work by researchers as diverse as Randall Kennedy and Steven Levitt has indicated, the impact of the war on drugs may have fallen disproportionately on the black population, but so too did the harms from the drug epidemics--crack in particular. (27) Second, the effect of the war on drugs on overall prison populations is often overstated. Despite large numbers of arrests, relatively few drug offenders are sent to prison. Drug offenders make up only 20% of state prisoners; property offenders comprise 20%, and violent offenders 50%. (28) Even if every prisoner in 1998 whose primary offense was a drug charge were released, the total population would have been approximately 1 million instead of 1.3 million: that is still more than triple the population in 1977. (29)
Race has surely played a role in prison growth. The magnitude of its role, and where it operates, however, remain open questions.
4. The Political Theories
The ascendant theory concerning recent prison growth ties it to changes in the political culture of the United States over the past thirty years. The theory actually consists of three closely related claims. The first argues that increasingly punitive criminal policies reflect a rightward drift in political culture and a backlash against a perceived-as-ineffectual welfare state. The second is a more cynical variant of the first, stating that politicians from both sides of the aisle use crime scares to lure away (or keep) voters. And the third posits that crime policy results from the interaction of moral panics and cyclic views on crime.
David Garland has developed perhaps the most ambitious exposition of the rightward-drift theory. (30) During the 1970s, two forces intersected: on the one hand, commitment to the rehabilitative ideal in criminal sentencing (and elsewhere) collapsed, and on the other hand a series of profound cultural changes (the oil shocks, the decline of industrialization, changing marriage patterns and gender roles, increased suburbanization, the rise of the television, expanding civil rights, and growing moral relativism) shifted the political views of the populace to the right. This political realignment caused the criticisms of the rehabilitative ideal to induce not small adjustments in penal policy but a sea change. As Garland notes, "Broad social classes that had once supported welfare state policies ... came to think and feel about the issues quite differently [in the 1980s and 1990s]." (31) The political readjustment undermined support for the welfare state and led to the introduction of crime control as a substitute for welfare. (32) Perceived as no longer successfully providing for their citizens, governments sought legitimacy by protecting people from risk, particularly crime. At the very least, tough-on-crime policies gave the perception that "something is being done," regardless of their actual effect. (33)
The second theory argues that crime is an effective electioneering device, suggesting that tough-on-crime rhetoric does not necessarily reflect the ideal views of the candidate. Michael Tonry, for example, argues that "[i]n times of anticrime hysteria, the safest position on crime issues may be the preemptive strike." (34) Theodore Caplow and John Simon similarly claim that "[i]t is widely accepted that political candidates for statewide office must establish themselves as favoring more severe punishments to stand a chance of election." (35) They assert that this is the result of a shift in political debates over the past thirty years from "traditional class and regional conflicts, towards conflicts about 'values,'" and that crime is an effective campaign topic because it is one of the few issues that commands consensus. (36) Katherine Beckett uses survey data to claim that public concern about crime lags, rather than leads, politicians' rhetoric about its importance, implying that politicians stoke the fear of crime as an electioneering device. (37)
And the final theory is Michael Tonry's claim...
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