Prison Policy

Michael Albert

About 25 years ago I was at a dinner party with a bunch of leftist economics faculty and grad students, and I posed a hypothetical question to engender some dinner debate. If you had only two choices, I asked, would you open all prison doors and let everyone out, or would you keep everyone right where they are?

To my surprise there wasn't any debate. Only I was willing to entertain what everyone else saw as the utterly insane, ultra-leftist notion that opening the doors might be better than keeping everyone incarcerated with no changes. I then added the option of giving everyone let out a job and ample training, but still there were no takers.

Years later, would the result of such a query to leftists be the same? As context, our little experiment might best be undertaken in light of the oft-quoted notion that it is better to let ten criminals go free than to jail one innocent person. Of course that may be just a rhetorical put-on for gullible law students, but it is supposed to communicate that there is something utterly unthinkable about innocent folks festering in prison. Okay, this implies some calculations. For example, what is innocence and what is guilt, and how about letting one innocent person fester in order to jail twenty, or fifty, or a hundred, or a thousand malevolent psychopaths who would otherwise run amuck hurting and even killing way more innocent folks? On the other hand, what if the calculus is the opposite? What if the real question is should we keep one criminal in jail along with five or ten innocent folks, or let them all go free?

The crime rate in the U.S. is approximately the same as in comparably industrialized and citified Western Europe. The number of inmates per hundred thousand citizens in the U.S., however, is as much as fifteen times greater than in Europe, again depending on which country we choose for our comparison. Stereotypes aside, the rate of incarceration in Spain is a bit more than England is a bit more than France is a bit more than Germany is a bit more than Turkey…and Norway and Iceland are relatively crime free by comparison. The U.S. rate of incarceration is about fifteen times Iceland's, twelve times Norway's, a bit over eight times the Turkish rate, and a little over six times Spain's.

The high U.S. rates began spiraling dramatically upward about thirty years ago in tune with politician and media exploitation of a largely manufactured public fear of crime. Political candidates--Reagan being the game's most effective but far from its sole star--would drum up fear and then meet it with programs for warring on drugs, expanding the number of prisons, extending minimum mandatory sentencing, and imposing three strikes you're out innovations. When everyone from the cop on the beat, to the police chief, to the crime beat reporter, to the DA, to the judge hears nothing but an endless litany of lock 'em up and let 'em rot rhetoric, they all become predictably aggressive. Thus, between 1972 and 1998 the number of folks in prison rose by over five times to 1.8 million.

Most of the increase, unsurprisingly, has been due to jailing folks for nonviolent crimes such as possessing drugs, whereas in Europe such "crimes" rarely lead to prison. So in the U.S. we jail five, six, seven, or even eleven or fourteen folks who would be seen as innocent enough to stay out in society in Europe, for every one person we jail who the Europeans would also incarcerate. In other words, if we opened the doors right now, a horrendous proposal in most people's eyes, for every person the Europeans would have us jail, five to ten who they would deem innocent would be set free. This is rather sobering. If we would rhetorically let out ten guilty inmates to free one innocent one, surely we ought to happily let out one guilty inmate to free five to ten innocent ones--no? And then we ought to refigure our approach to laws, trials, and especially punishment and rehabilitation as well--no?

The data and most of the ideas above, by the way, did not come to me by way of a dinner party with radical leftists. Instead, I borrowed this material from an article in Scientific American, August 1999. The author, Roger Doyle, was examining some facts to see their numeric implications. Being honest of course means looking at facts and reporting them truthfully. Being left means looking a little deeper to find institutional causes, and then extrapolating from the conditions and causes one finds to proposals that further egalitarian and humanist values one holds dear. Doyle went on in his Scientific American essay to point out that (a) a key difference between young whites and (disproportionately jailed) young blacks was that the whites are more likely in our current economy to get jobs enabling them to avoid the need to steal or deal, (b) income differentials are vastly greater in the U.S. than in Europe and, (c) reading only a little into his words, that incarceration may be seen as a tool of control against the poor so that "high U.S. incarceration rates are unlikely to decline until there is greater equality of income."

Kudos for Scientific American's honesty and even radicalism, but what about our hypothetical leftist dinner party? If the difference between the U.S. and Europe isn't that Americans have more genes causing them to be anti-social but, rather, that Americans and particularly black Americans are put into circumstances by our economy which virtually require them to seek means of sustenance outside the law, and if, to be very conservative, half the inmates in the U.S. are arrested for victimless "crime" that would not even be prosecuted in Europe, doesn't it make sense to ask whether this entire U.S. prosecutorial and punitive legal apparatus is, in fact, utterly counter productive in its current construction?

Finally, this doesn't even broach another radical question. Why are some leftists sitting around a table, whether twenty five years ago or today, or why is anyone at all, anytime, for that matter, more worried about the occasional fearsome anti-social or even pathological thug/rapist/murderer who is caught and incarcerated going free, than they are by (1) the violent and willful incarceration of so many innocent souls who have worthy and humane lives to live if only enabled to do so; or (2) the gray flannel businessmen walking freely up and down Wall Street who preside over the misery of so many for their own private gain, each businessman a perfect biological incarnation of willful, self-delusional, and largely incorrigible anti-social behavior that operates at a scale of violence which the worst incarcerated thugs can never dream to approach, or (3) the government, which, on behalf of those gray flannel businessmen wrecks massive mutilation and devastation on whole countries, then calling it humanitarian intervention so that they can avoid the fatal injection death penalty our society prescribes for murder, much less for murder most massive such as they commit?

Our jails are ten to fifty times more crowded than the number of people a humane legal system would have to incarcerate and/or rehabilitate because ways to diminish that gap would entail reducing income differentials and improving the lot of society's worst off. Businessmen won't tolerate that, not without a fight, anyway.