With nearly all the Democratic candidates for president on record as favoring drastic cuts in prison populations, and even Republicans joining President Donald Trump in celebrating measures to release inmates serving long terms under the First Step Act, it’s possible to imagine that the end of the country’s long nightmare of mass incarceration is in sight.
But a University of Illinois Law professor offers a more cautious view, arguing that the “structural barriers” to reducing prisoner numbers, combined with doubts about the depth of public appetite for prison reform, makes it likely that the U.S. will continue to lead the world in the number of people it incarcerates for the foreseeable future.
Although there’s widespread consensus among experts that spending time in prison “might be exacerbating the crime problem rather than easing it,” few authorities at the state or federal levels appear willing to risk the political problems that might accompany transformative change, argued Andrew W. Leipold, Edwin M. Adams Professor at the University of Illinois College of Law, in a recent article in the American Criminal Law Review.
That, he suggested, should make us skeptical about the expectations raised by the reformers’ rhetoric.
“No realistic amount of sentencing and criminal law reform is going to change the distinctive space the United States now occupies (in the number of incarcerees),” warned Leipold.
His article, entitled, “Is Mass Incarceration Inevitable?”, contended that it is likely to take as long—possibly longer—to get prisoner counts back to where they were in the 1980s, as it took to get them to today’s numbers which, despite a decline, continue to make the U.S. the world’s largest per-capita jailer of its citizens.
“The United States could cut its national incarceration rate in half and still have a higher rate than 24 of the 25 countries with the largest economies (everyone except Russia),” Leipold wrote.
According to Leipold, hopes by reformers on both sides of the partisan divide that reducing mass incarceration will save large amounts of tax dollars, are also misplaced.
“Criminal justice reform that is serious about reducing the size of prisons, doing it safely, and then sustaining the gains that are made, needs to invest in additional services, including widely available substance abuse and mental health treatment,” he wrote.
“But these programs are expensive, and at least in the short term, can more than offset any financial savings from a reduced the inmate population. The experience among the states has shown that the relationship between decreases in the prison population and decreases in spending are tenuous.”
Many critics have made similar points, while arguing that serious reductions are not only a moral imperative in a society where an overwhelming number of those sitting in prison are from poor, minority populations; they offer a pathway to finding alternatives to long sentences that otherwise increase the likelihood of recidivism.
But Leipold maintained that the shift in U.S. attitudes towards punishment may only be skin deep.
“The notion that we are unnecessarily incarcerating people apparently resonates with people, but so does the fear of crime,” he wrote.
He added that although crime has dropped steadily over the last two decades, “for at least the last 12 years, a Gallup poll has revealed that about two out of three respondents believe that crime is getting worse from year to year.”
So, he suggested, “maybe the apparent change in attitude toward incarceration that has fueled sentencing reform efforts is overstated.”
Leipold singled out prosecutors as one of the key barriers to change, noting that reformers have largely overlooked their role as drivers of high incarceration rates.
“Criminal justice reform is an intensely political undertaking, and prosecutors are a powerful force in the political arena,” he wrote. “It would hardly be surprising if prosecutors as a group opposed policy changes that limited their authority and influence.”
Taking Swipes at ‘Progressive’ Prosecutors
That point, in fact, is at the center of a burgeoning debate about the so-called “progressive” prosecutors elected in a number of cities, whose reform efforts have triggered a backlash from critics ranging from Attorney General William Barr to police unions, who charged their “soft-on-crime” approach is endangering public safety.
The recent controversy over Barr’s comments erupted after Leipold wrote his paper, and he does not refer to it. But his argument appears to support the contention of reform prosecutors that a focus on re-thinking who we send to prison, and why, is critical to fundamental reform.
“However we define mass incarceration, the situation is unlikely to change unless there is a meaningful effort to reduce the length of stay for inmates,” Leipold wrote, adding that the rethinking needs to begin with traditional attitudes to punishment of violent criminals.
“It will be very hard to escape a world of mass incarceration without addressing those convicted of violent crimes,” he added. “While it is true that property and drug crime dwarf the amount of violent crime in this country, more than half of prison inmates are behind bars because they were convicted of a violent offense.
“This too should not be surprising. Violent crimes have higher clearance rates, (and) after conviction, the offenders are the most likely to receive a prison sentence rather than probation, and those convicted of violent crimes receive the longest sentences among those who are sent to prison.”
He went on to write:
Indeed, about 25 percent of prisoners nationwide are incarcerated for homicide or sexual assault, even though these crimes make up less than 0.2 percent and 1.5 percent, respectively, of the index crimes each year. We could tomorrow release 50 percent of all burglars who are now behind bars, all thieves, all those convicted of drug crimes, fraud, drunk driving, and weapons offenses, and still have the highest rate of incarceration among the world’s largest economies and the second highest number of inmates.
Leipold suggested that this puts the onus on prosecutors to change the way they see their jobs.
“Prosecutors are not only advocates, but also ministers of justice,” he argued. “And there will be many who are troubled by the high incarceration rates and by the social and financial costs that prison imposes.
“But the point remains that prosecutorial changes in approach are still discretionary rather than mandatory, and that prosecutors can limit the effect of many reforms if they do not agree with the premises of reform.”
Leipold noted that prosecutors’ near-monopolistic control over sentencing is a relatively recent phenomenon.
In 1980, he pointed out, then-Attorney General Benjamin Civiletti urged prosecutors to show restraint in influencing a defendant’s punishment, and called for a “clear separation of prosecutorial and judicial responsibilities” when it came to sentencing, with courts naturally taking the lead role, according to Leipold.
But the rise of plea bargaining, “coupled with the restraints imposed on judges by federal and state sentencing guidelines,” in an effort to clear crowded court dockets effectively threw such a balancing of roles onto the dustbin of history, Leipold wrote.
According to Leipold, bringing back the “Civiletti notion of prosecutorial modesty” would be a useful first step in attacking the roots of mass incarceration.
“Change will require a greater engagement by prosecutors,” he wrote. “Formal restrictions on their critical role are not likely to materialize, which leaves persuasion and cooperation as the tools of engagement.
“Whether prosecutors collectively are ready and willing to take an active role in the process remains to be seen. If yes, there is reason to be hopeful that the prison system can become permanently smaller and more effective.
“If not, it seems very likely that the label of mass incarceration will continue to apply for many, many years to come.”
To read Leipold’s essay, please click here.
Stephen Handelman is executive editor of The Crime Report. Readers’ comments are welcome.