Why Are Prisons Overcrowded?

-- By AlexKonik - 14 Feb 2012

We are defined by what we do. Our criminal legal system is defined by what it enforces – not the ideals that we teach in our law school criminal law courses, our college Political Science departments, or high school government classes, or our grade school Social Studies lessons. Historians will not look to our civics lessons, the teachings of our churches, or our presidents’ speeches to learn our society’s values. They will look to our practices.

It is with this understanding that we should look to our criminal justice system and answer: Do the results we see reflect our desires?

We learned in 2010 that prisons in California have become crowded to a degree that violates the Eighth Amendment to the US Constitution. How could this happen? What has caused our prisons to become so stunningly overcrowded?

1. There aren’t enough prisons
2. There are too many criminals
3. There are too many laws

If we take seriously the effects of and not only the ideology behind confining large segments of our population, we must acknowledge that the answer is “c.”

We are doing all money can by to address “a.” The number of prisons is on the rise, with the vast majority of the growth coming in the form of privately owned and operated prisons. The number of prisons under court order to limit population fell 70% from 2000 to 2005; it seems that Plata-type pleas are being heard. If “a” is the problem, a few more years of vigorous prison growth should ease our minds. In fact, the only prison metrics that fell from 2000 to 2005 are medium security and community-based public facilities.

In 2010 there were 0.6% fewer people in prison than in 2009, the first annual fall in prison population since 1972. According to the Department of Justice, this was mostly the result of a decrease in state prison admissions. It was not due to an increase in release rates, and it certainly wasn’t helped by the increase in the federal prison population. This small drop in population is certainly interesting, but focusing on it misses the larger trend that 1 in 201 American residents are in prison, with the average time served at about two years.

We recognize that some people must be in prison because they are very violent and a continual danger to their communities; or they have done something very wrong that deserves punishment; or maybe we need to appear tough on crime; or we believe that prison is the best place to reform a violent mind. Our society’s seldom questioned ideology has us believe that we must deprive some people of liberty, even if we are hesitant to do so. We must understand that it is a necessary part of society; those people are sick. Once we have convinced ourselves of this, it is best not to think of it and just fund the private companies who build jails to hold our outcasts.

This ideological belief is useful; we cannot have murders roaming the street looking to kill again. Our justifications work well to protect ourselves from violent crimes, and to a lesser extent property crimes.

But violent and property crime rates have been steadily falling since 1992 while incarceration rates have been on the rise (10% increase from 2000 to 2005).

What type of behavior is being punished by prison sentences such that 1 in 201 American residents are held captive in prison (this excludes jail and other corrections)? And once we know, what story can we tell ourselves to approve of our own actions, to approve of what we fund and not only the great ideology we would like attributed to ourselves?

Our prison population has been exploding due to penalty enhancements like three-strikes and mandatory minimum rules, a growth in criminal offenses in the U.S. Code, an increase in the rate of juveniles prosecuted as adults, and an overwhelming focus on non-violent drug offenders.

Nonviolent drug offenses make up 51% of the federal prison population and 18% of state populations, about 340,000 residents, or 1 in 900 US residents. These are the reasons that the U.S. boasts the highest incarceration rate in the world, and continues its growth as violent crime rates fall.

When we pay a tax, we do not think of the prisons we fund. But this is what we do, whether or not we can justify an ideology behind it.

I find this argument a little baffling. The predicate is peculiar, to start with. Asking how California's prisons became unconstitutionally overcrowded, we could say simply that we are socially inclined to imprison more people (men, actually) than we can afford to hold in conditions we can legally impose. Why are we determined to imprison so many men? No evidence whatever is presented that we have "too many laws." You clearly think that we should not imprison so many "non-violent drug offenders," though whether we should imprison only those people who commit drug-related violence or also those who are part of the same business remains unclear. But "we imprison some criminals we should treat in other, less expensive and socially burdensome fashions," is not the same as "we have too many laws."

Nor do you seem to acknowledge that "we have too many prison construction contracts," or "we have too many people whose livings are made as guards," and "no politician has an interest in fighting the construction companies, the guards' unions, and the anti-crime populist primary challenger all at once" were unspoken alternatives to "C."

I don't understand the proposed underlying sociology, either. Most societies deal somehow in an organized fashion with the social stability issue presented by the violent tendencies of young men. Power maintains itself in part by delivering social stability, and the volatility of youth often poses direct threats to its own survival. War has always been the primary form in which societies export this potential instability. Industrial employment, whether or not accompanied by the violent discipline of slavery, is another mechanism of power's self-protection. It is imperfect, compared to war, because it doesn't winnow the population: it buys stability, as the Chinese Communist Party is currently quite elegantly demonstrating.

War of the sort that exports the mass of young men prone to violence is no longer acceptable in this society, or in most parts of the world. Our aristocracy, meanwhile, is no longer willing and able to provide full employment, and has been appropriating the social surplus so ravenously for the last generation that working class wages have been falling steadily in real terms, which had not happened for the previous three lifetimes. Statistics on imprisonment as a proportion of total population are not very useful. Relevant rates, which you don't give, are for the imprisonment of men 18 to 35 or 40, and particularly for working-class young men, particularly from the ethnic communities most heavily disfavored by the current ruling class.

Seen from the perspective of those communities, the real, and staggering, rates of imprisonment suggest that we have used several trillion dollars over the last generation to incapacitate a significant proportion of those young men who would otherwise be in the street without employment or a stake in the maintenance of the current social power structure. Profiting from the incapacitation were the capitalists who build and maintain prisons; the working-class populations that produce guards; the largely rural communities for whom prisons became necessary local industries; the gangs and other large organized criminal enterprises who used the prisons as recruiting-grounds and universities; and the politicians and law-enforcement agencies who were paid, bribed, supported, and otherwise diversely enriched by all the foregoing. Also profiting, were the middle-class, largely law-abiding, tax-paying voters who experienced long-term declines in the crime rate—emphasized by new forms of local informational media that had better ways to sell things than the "if it bleeds, it leads" formula of nearly obsolete local television broadcast news—and enhanced feelings of social well-being, as well as a less, but measurable reduction in their actual risk of violent or semi-violent victimization. They drastically overpaid for this, unless one takes into consideration their own stake in maintaining overall social stability, and particularly in keeping working-class resentment at bay, even if by these violent means.

Quite possibly, of course, your view of the systemic structure is different. I think the route to the improvement of the essay lies in explaining your approach with greater clarity.

-- AlexKonik - 14 Feb 2012