The Story of Incarceration
And what it tell us about criminal justice reform
My Twitter Feed last week included a very interesting chart from the Prison Policy Institute. I hadn’t realized it was released last year (on pie day — 3/14). But it still paints a very interesting picture of incarceration in America. The full report can be seen here.
As they suggest, this data had to be compiled from a variety of resources. Because (as I’ve written) criminal justice in America actually involves thousands of independent jurisdictions, there is no overarching authority tracking these things. They have done herculean work and it is instructive for how we understand the end-point1 of our criminal justice system.
Here’s their pie chart, which is remarkable in its detail. Even more is given within the report itself.
Let’s imagine this pie chart as the face of a clock. From 11:002 to about 2:30, we have individuals held in local county or municipal jails. From 3:20 to 4:45, we have the federal system. From 4:50 to 11:00 are state prisons. The balance (that hodgepodge on the right) would run from 2:30 to 3:20.
Clearly, state prisons are the primary location of inmates. That segment makes up 54% of the total. But those are divided over 50 states, each of which has their own approach to incarceration. Some are more lenient than others. Some are downright draconian.
Reform of this sector (assuming a goal of reducing mass incarceration, which I support) requires action in each individual state. Federal prisons and jails (i.e., what is the Biden administration doing about crime in America?) only account for 11% of the incarcerated population. Reform of this sector (through bipartisan approaches like the First Step Act) is important but has a relatively small impact.
While the local segment is roughly half the size of the state sector, it contains an important difference. Under 20% of those in local jail have actually been convicted of a crime. The rest are in jail awaiting adjudication because they haven’t been able to post bail. To put that back in my clock analogy, those in jail after conviction would run from 1:42 to 2:30 while those awaiting trial would encompass almost the first two and three quarter hours.
The report documents the average level of bond required for release before trial. For those who are already poor, the average level of bail required was roughly equal to their annual income (2015 data). The motivation behind legislators and prosecutors looking to move toward the elimination of cash bail is not a liberal pipe dream for those who don’t care about crime. It’s about the inhumanity (and cost) of keeping people incarcerated while innocent.3
Why are people being held in institutions? The most common answer is violent offenses4 at 43% (I’ve left the bar at the right out of the denominator). This is followed by drug crimes5 at 18% and property crimes at 16%. The balance are public order offenses ranging from DUI, Weapons, or outstanding warrants.
A quick word about the bar on the right, especially the juvenile piece. Of the 36,5006 incarcerated juveniles, over 35% are incarcerated for status offenses7 (e.g., truancy, incorrigibility), technical violation (related to prior probation), or drug possession.
Speaking of probation (or parole) violation, the majority of those incarcerated for “revocation” are there for technical violations of non-custodial terms and not for new offenses. Reform of how we manage probation and parole seems like a fruitful area of exploration.
The report also makes clear that private prisons make up a relatively small population (under 8%) of those incarcerated. Eliminating them feels good but barely makes a dent in mass incarceration.
So where do we start? First, we need a hard look at the nearly half-million people in jail awaiting trial. This detention is disruptive to jobs, housing, marriages, and childrearing. There have to be better ways of insuring that people show up for trial.
Second, I would evaluate how many “public order” crimes require long sentences.8 Is someone convicted of a DUI resulting in injury or death a serious recidivism risk? Should gun possession result in immediate charges?9 While drug crimes receive a lot of attention, we should separate possession from trafficking.
What the report doesn’t touch on are the incentives that keep things the way they are. Here are three to think about. First, many prisons are located in rural areas (they need land). But that feeds the local economy through jobs and purchasing power. Lessen the incarcerated population and you threaten already struggling rural communities across the country. Second, Census counts do not record prisoners at their home address but where they are incarcerated. That means that mass incarceration directly feeds the gerrymandering we currently see. Third, politicians love to be tough on crime. Since police departments don’t control or prevent crime as opposed to responding to it (more Wednesday), the only measure the politicians have are prosecutions, sentences, and incarceration. Anything less than maximums (even though these sentences are hard to defend in terms of preventing recidivism) cannot be tolerated.
I’m grateful to the folks at the Prison Policy Institute for their hard work in putting together this data. It’s clear that we have options to address mass incarceration in our society. What we need is the political will to act on them.
Sort of. I’ll address probation and prison revocation later.
I would have preferred for the local jail section to have started at 12:00, but then they’d have trouble with the detailed vertical expansion on the right.
Even the elimination of cash bail legislation included set-asides for flight risks and potential for violence.
The report documents that the “violent” category can be hard to pin down. Burglary of an empty business is a property crime. Doing so with a gun is a violent crime. Robbery is a property crime. Purse snatching is a violent crime. You can also see this with regard to auto theft: joyriding is a property crime and carjacking is a violent crime.
Drug possession is the charge for 56% of the drug offenses at the local level. That may be a downward plea bargain for those with intent, but not for those not yet adjudicated.
The pie chart shown says 36,000 but there’s an extra 500 shown in the detailed report.
Offenses related to being underage
I’ll come back to the long sentence question on Friday.
Again, this may be related to downward pleas. Still, it becomes difficult not to see these charges as potentially discriminatory when entire states are coming out in favor of permit-less open carry.