The End of Penal 'One-Upmanship'


The National Academies’ exhaustive report, “The Growth of Incarceration in the United States: Exploring Causes and Consequences,released last month, covers nearly the entire body of scholarship on the causes of the incarceration boom.

The causes, as identified by the authors, derive from a charged political arena favoring longer sentences, the trend towards harsher methods of punishment, and the rapid development of increasingly punitive drug laws.

Certainly, the last four decades of criminal justice policy reflect this.

The “nothing works” view of correctional rehabilitation, widely circulated in the 1970s—the belief that such programs were costly, inefficient and “soft”—both preceded and contributed to the public's fondness for punitive sanctioning.

Policies like “Truth-in-Sentencing,” “Three Strikes” and assorted mandatory minimum sentencing schemes wrested discretion and decision-making from judges and placed them before legislatures that were all too willing to engage in penal one-upmanship.

Over this same time period, drug legislation favoring imprisonment grew at the state and federal levels. This is to say nothing about police departments' growing acumen at detecting crime and converting illegal activities into arrests.

As a result, the United States was saddled with a manifold increase in the percentage of citizens locked away, and an estimated nationwide bill of over $80 billion solely in correctional expenditures.

While the report acknowledges that some of the six-fold increase in the incarceration rate since the early 1970s was necessary and contributed to subsequent crime declines, the report marshals compelling data showing that the pendulum swung too far, sweeping in too many nonviolent, low-risk offenders into prisons while also keeping other inmates behind bars long beyond the point at which they could pose a risk to the public.

The authors are hesitant to say that a wholesale shift in sentencing policy will alleviate all of the ancillary problems or go much further towards suppressing crime. Their measured conclusion—that altering determinate sentencing schemes and adding proven non-carceral alternatives to a judge's toolbox will lower expenditures at no cost to public safety—is well established.

Texas has been employing smart alternatives to incarceration as a matter of practice since the issue came before the legislature in 2007. Since then, the state has managed to shutter three adult institutions and six juvenile lockups.

While the report is very much on target when addressing issues squarely within the criminal justice system, we take a cautious approach to the portion dealing with expanding social welfare programs.

The suggestion that, by virtue of being convicted of an offense individuals have a right to social services that others do not, could be taken by some as an invitation to unrestrained increases in government spending. This notion could also lead to public resentment based on the perception that offenders are receiving benefits not available to ordinary citizens.

Nonetheless, it is clear that services needed to target the criminogenic risk factors associated with recidivism, such as mental health treatment, should be provided. They can result in lower net costs to taxpayers when used in lieu of incarceration, as Judge Ricardo Hinojosa succinctly notes in the qualifying statement included in the report appendix.

The lengthy discussion on causality lends credence to this as well.

While there will always be disagreements around the edges, those should not detract from the general theme of the document: we are over-incarcerating, we do so at a tremendous cost, and there are smart alternatives available that will – if done right – preserve public safety and lower the burden on taxpayers.

By providing a heavy dosage of solid empirical evidence for these positions, this report will undoubtedly contribute to the ongoing efforts to better align with criminal justice policy with research rather than rhetoric.

Derek Cohen is a criminal justice policy analyst at the Texas Public Policy Foundation ( and Right on Crime ( Follow him on Twitter @CohenAtTPPF. Marc Levin is Director of the Center for Effective Justice at the Texas Public Policy Foundation and Policy Director of Right on Crime. Follow him on Twitter at @MarcALevin. They welcome comments from readers.

Comments are closed.