It’s well known that the United States has the largest prison population on Earth. It’s less obvious why this is the case. To truly understand mass incarceration, we should examine what caused America’s prison population to grow so dramatically over the last several decades.
The Growth of Incarceration in the United States: Exploring Causes and Consequences, a recent report by the National Research Council, helps explain the growth of America’s prison state. Last week I discussed the report’s findings regarding the impact of impact of mandatory minimum sentences, three strikes laws, truth in sentencing laws, and other harsh sentencing policies. This week I’ll discuss the report’s findings on the underlying causes of mass incarceration.
The authors begin by exploring how the federal government’s power and influence over criminal justice matters grew, and the substantial impact this had on the rising prison state:
Before World War II, the making, implementation, and enforcement of criminal justice policy in the United States were almost exclusively within the purview of the states or local authorities, not the federal government. From the 1940s onward, public officials and policy makers at all levels of government—from federal to state to local—increasingly sought changes in judicial, policing, and prosecutorial behavior and in criminal justice policy and legislation. These changes ultimately resulted in major increases in the government’s capacity to pursue and punish lawbreakers and, beginning in the 1970s, in an escalation of sanctions for a wide range of crimes. Furthermore, criminal justice became a persistent rather than an intermittent issue in U.S. politics. To a degree unparalleled in U.S. history, politicians and public officials beginning in the 1960s regularly deployed criminal justice legislation and policies for expressive political purposes as they made “street crime”—both real and imagined—a major national, state, and local issue. (105)
In response to race riots and other social unrest, “President Harry S. Truman and his supporters invoked the need for more “law and order” as they sought a greatly expanded role for the federal government in the general administration of criminal justice and law enforcement at the local and state levels and in the specific prosecution” (107). While Truman and his allies largely did not see their legislative proposals enacted, “all this legislative activity in the 1940s and 1950s deeply influenced how future discussions of law and order, crime, and the federal role in law enforcement would unfold. In advocating these measures, Truman and his allies helped establish a federal role in state and local law enforcement” (108).
The process of increasing federal control over criminal law continued, fueled by voices across the political spectrum. Civil libertarian impulses paved the way for an end to indeterminate sentencing and the rise of mandatory minimums. “The American Bar Foundation’s expansive research agenda in the 1950s and 1960s on the problem of discretion and arbitrary power also was a contributing factor to the political push for more uniformity, neutrality, and proceduralism in law enforcement and sentencing.” Also influential was “the American Legal Institute’s project to devise a Model Penal Code (to guide sentencing policy)” (108).
Of course, much of the political push for increased penal power came from the right. For example, the Goldwater campaign was among the first to push “law and order” as a key issue. After the Goldwater campaign, “the law-and-order issue became a persistent tripwire stretching across national and local politics. Politicians and policy makers increasingly chose to trigger that wire as they sought support for more punitive policies and for expansion of the institutions and resources needed to make good on promises to “get tough”” (108).
The 1965 Law Enforcement Assistance Act was a bipartisan bill that helped expand federal power in the realm of law enforcement. Liberal Democrats initially supported the act as a way of pushing proceduralism, police professionalism, uniformity, and fairness. However, more conservative politicians in both parties placed provisions into the act that served to expand police power and undermine the various rights that had been granted to suspects, defendants, and prisoners by the Warren Court. “Thus, with mixed motivations, both liberals and conservatives helped clear the political ground for this and subsequent measures that expanded the criminal justice system and ultimately gave local, state, and federal authorities increased capacity for arrest, prosecution, and incarceration” (110).
A similar process occurred with the Omnibus Crime Control and Safe Streets Act of 1968. The bill was initially supported by liberals, because early drafts “provided federal grants to police for equipment, training, and pilot programs and also greater federal investments in rehabilitation, crime prevention, and alternatives to incarceration” (110). Republicans and southern Democrats substantially influenced the bill, however, and “successfully inserted provisions on wiretapping, confessions, and use of eyewitnesses that curtailed the procedural protections that had been extended by Supreme Court decisions” (111).
There were a variety of racial factors at play in the rise of the “tough on crime” politics that pushed increased incarceration. The Democratic Party’s split on Civil Rights issues enabled the Republican Party to use crime as a wedge issue and a key component of their “southern strategy.” Associating crime and racial fears for political gain was nothing new. The major distinction was the coded nature of this racism:
The southern strategy was different in that it rested on politicizing the crime issue in a racially coded manner. Nixon and his political strategists recognized that as the civil rights movement took root, so did more overt and seemingly universally accepted norms of racial equality.14 In this new political context, overtly racial appeals like those wielded by Goldwater’s supporters in the 1964 campaign would be counterproductive to the forging of a new winning majority. Effectively politicizing crime and other wedge issues—such as welfare—would require the use of a form of racial coding that did not appear on its face to be at odds with the new norms of racial equality. As top Nixon aide H.R. Haldeman explained, Nixon “emphasized that you have to face the fact that the whole problem is really the blacks. The key is to devise a system that recognizes this while appearing not to [emphasis in original]” (Haldeman, 1994, p. 53). (116)
The southern strategy was key to the rise of mass incarceration, and white voters consistently support more punitive policies than blacks. However, it would be an oversimplification to suggest that black leaders and voters played no role in supporting the rise of punitive policies. For example, “some black activists in Harlem supported the Rockefeller drug laws, as did the city’s leading black newspaper (Barker, 2009; Fortner, 2013). In New York City and elsewhere, black leaders called for tougher laws for drug and other offenses and demanded increased policing to address residents’ demands that something be done about rising crime rates and the scourge of drug abuse, especially the proliferation of open-air drug markets and the use of illegal drugs such as heroin and then crack cocaine (Barker, 2009; Fortner, 2013; Forman, 2012)” (119).
Republicans often led the way in pushing punitive policies, but the push was generally bipartisan. Indeed, “The two parties embarked on periodic “bidding wars” to ratchet up penalties for drugs and other offenses. Wresting control of the crime issue became a central tenet of up-and-coming leaders of the Democratic Party represented by the center-right Democratic Leadership Council, most notably “New Democrat” Bill Clinton (Stuntz, 2011, pp. 239-240; Murakawa, forthcoming, Chapter 5; Schlosser, 1998; Campbell, 2007)” (120).
Ultimately, the U.S. government’s institutional features play a key role in explaining the rise of mass incarceration. As the National Research Council report notes, “the U.S. House and U.S. Senate have been far more likely to enact stiffer mandatory minimum sentence legislation in the weeks prior to an election. Because of the nation’s system of frequent legislative elections, dispersed governmental powers, and election of judges and prosecutors, policy makers tend to be susceptible to public alarms about crime and drugs and vulnerable to pressures from the public and political opponents to quickly enact tough legislation” (124). Electoral politics likewise makes prosecutors and judges behave in more punitive ways. “In the United States, most prosecutors are elected, as are most judges (except those who are nominated through a political process). Therefore, they are typically mindful of the political environment in which they function. Judges in competitive electoral environments in the United States tend to mete out harsher sentences (Gordon and Huber, 2007; Huber and Gordon, 2004)” (124).
This fits what we would expect from a public choice perspective. Research by Daniel D’Amico explores the perverse political incentives that give rise to disproportionate punishment in detail. Similar problems have also been explored in Paul Larkin‘s work on public choice theory and overcriminalization. This research can help us understand how America became the world leader in mass incarceration. Hopefully it can give us an idea of the institutional and ideological shifts that are necessary to change it.
