Mass Incarceration in the United States

By Alex Resney

Published Winter 2019

Special thanks to Porter Johnson for editing and research contributions

+ Summary

In both per capita and absolute terms, the United States criminal justice system is the largest in the world, housing almost 2.3 million people. Some of the challenges facing this system are policies regarding drug offenses that date back to the War on Drugs, a lack of rehabilitation of convicts, and the “tough on crime” narrative that dominates American media. This mass incarceration impacts society at all levels, from the community to the individual. It places an economic burden on the American public, affects the health and wellbeing of the families of incarcerated individuals, leaves those in the criminal justice system with a litany of physical and mental health issues, and contributes to the disenfranchisement of formerly incarcerated individuals. Additionally, there are a disproportionate number of people of color in the criminal justice system further exacerbating racial inequality. Leading practices for mass incarceration include reforming current policies (specifically those relevant to drug offenses), offering assistance when re-entering society, juvenile therapy, and an alternative prison sentence that offers growth and rehabilitation opportunities.

+ Key Takeaways

• The US makes up 25% of the world’s prison population while containing just 5% of the world’s total population
• There are more Americans in prison today (approximately 2.3 million in 2018) than any other time in US history despite the fact that crime rates are the lowest they have been since 1970
• The majority of drug offenders return to prison within a year of their release
• Policies from the the War on Drugs unreliable convictions, the privatization of prisons, and poor prison conditions have contributed to a racialized, ineffective justice system
• More effective and just criminal policies and practices exist – most notably through rehabilitation services and treating drug use through healthcare instead of criminal sentencing

+ Key Terms

Mass Incarceration—Current American experiment in incarceration, which is defined by comparatively and historically unparalleled rates of imprisonment.¹

Recidivism—“Criminal acts that resulted in rearrest, reconviction or return to prison with or without a new sentence during a three-year period following a prisoner’s release.”²

Felony—A crime, typically one involving violence, regarded as more serious than a misdemeanor and punishable by imprisonment for more than one year or by death.

War on Drugs—Increase on federal drug control from the 70’s through the 90’s that greatly intensified the criminalization of drug offenses and led to overcrowding of prisons.³

Mandatory Minimums—Laws created in 1986 during the War on Drugs that require judges to hand down a minimum prison sentence based on the charges a prosecutor brings against a defendant, regardless of the circumstances of the crime or the characteristics of the individual.⁴

Excessive Punishment—The increase in the average prison sentence for certain criminal offenses.

Exoneration—When a person convicted of a crime is later released upon being proven innocent.⁵

Disenfranchisement—The state of being deprived of a right or privilege, especially the right to vote (often occurs during a criminal sentence and continues after release).

Context

The United States contains only 5% of the world’s population, but accounts for a quarter of prisoners worldwide (approximately 2.3 million people at the end of 2018).^{6, 7} Home to the most prisoners in the world, the US also claims the highest incarceration rate in the world.⁸ There are more Americans in prison today than in any other time in US history, despite the fact that US crime rates are the lowest they have been since 1970.⁹ The violent crime rate and property crime rate each fell 48% between 1993 and 2016, but the incarceration rate and prison population continue to climb.¹⁰ Since 1970, the incarcerated population has increased 700% (from 338,029 in 1970¹¹ to 2.3 million in 2018).¹² This dramatic increase in the incarceration rate is known as mass incarceration: an unprecedented amount of individuals spending time in prison, especially those from disadvantaged neighborhoods and people of color. Much of the increase in the prison population can be attributed to policies implemented during the War on Drugs, which substantially increased the length of prison sentences and the total number of prisoners. These policies disproportionately impacted people of color: today black inmates make up 40% of the US prison population compared to 13% of the US population as a whole.¹³

Populations in US prisons

More than 60% of people in prison today are people of color, and one out of every 3 black boys born today can expect to go to prison at some point in his lifetime, as can one in every 6 latino boys—compared to one of every 17 white boys (see Figure 1).¹⁴ In addition to the racial disparity in the prison population, people of color are sentenced more frequently and for longer than white offenders. In the federal system, black citizens are 20 times more likely to be sentenced to life without parole for a nonviolent crime than white citizens.¹⁵ Black males continue to receive sentences 19.1% longer than white males convicted of similar crimes.¹⁶

Gender plays a role as well, as women’s prison populations have seen higher growth since 1978 compared to men.¹⁷ Nationwide, women’s state incarceration rate grew 834% over 40 years.¹⁸ Additionally, more than half of the incarcerated women (62%) are mothers of children under the age of 18.¹⁹ Women are also more commonly the primary caregivers which further disrupts family dynamics.

Contributing Factors

Excessive Punishment

Excessive punishment has contributed to the largest prison population in US history. In June 1971, President Nixon declared a "War on Drugs" and significantly increased the size of federal drug control agencies, pushing measures including mandatory sentencing, the Three Strike System, truth-in-sentencing laws, and no-knock warrants.²⁰

This increase in the total number of sentences as well as the increase in length of prison sentences have directly contributed to mass incarceration. One of the main policies responsible for this boom in the prison population are mandatory minimums, which require judges to hand down a sentence based on a prosecutor’s charges instead of the circumstances of the crime and the character of the individual.

Drug offenders make up 46% of the federal prison population²¹ (up from 25% in 1980),²² most of whom have no prior criminal record for a violent offense.²³ In addition to the population increase of drug offenders in prison, their average sentence has also increased dramatically. The average time federal drug offenders serve in prison increased 182% from 1986 to 2004, nearly tripling from an average of 22 months²⁴ to 59 months.²⁵ This policy shift has directly led to the overcrowding of prisons, as their prisoners stay longer than ever before.

The other major policy change came in the form of truth-in-sentencing laws, which required offenders to serve a substantial portion of their prison sentence before being eligible for release (most requiring 85%). These laws effectively abolished parole in the federal system and in many states, and contributed to aggravated overcrowding in prison and longer prison sentences without an incentive for good behavior.²⁶ The Three Strikes Law, which imposes a mandatory 25 years to life sentence without parole on offenders convicted of any felony with 2 previous convictions, further exacerbated the impact of excessive punishment and prison overcrowding.²⁷ Combined, these policies led to the number of people serving life and life-without-parole sentences in the United States quadrupling since 1986.²⁸ Today, every 1 in 9 incarcerated people is serving a life sentence, a third of which will have no chance for parole. These sentences are still rising in use, increasing 22% from 2008 to 2012.²⁹

Mental Health

Of the incarcerated population, 14.5% of men in jail and 31% of women have a mental illness.³⁰ These individuals serve longer sentences and are more frequently victims of violence during incarceration. Inmates with mental illnesses remain in prisons longer than those who do not because they are more likely to break the rules and therefore are less likely to earn a reduced sentence for good behavior. In Orange County Jail, inmates with mental illnesses have almost twice as long jail terms as those without mental illnesses (51 days instead of 26); in New York’s Rikers Island Jail, the disparity rises to over 4 times (215 days instead of 42).³¹

Unreliable Convictions

The dramatic increase in the exoneration rate reveals that unreliable convictions have led to more innocent people in United States jails than ever before, increasing the incarcerated population and directly contributing to mass incarceration. Between 1989 and 2017, 2,161 people have been exonerated by DNA evidence³² after spending an average of 14 years in prison.³³ Since 1973, 164 individuals have been exonerated and released from death row, serving an average of 11.3 years behind bars before their innocence was proven.³⁴ In more than half of these cases, perjury or false accusations lead to wrongful convictions, and nearly half also involved misconduct by government officials (coercing false confessions, failure of law enforcement to turn over exculpatory evidence to prosecutors, prosecutors withholding exculpatory evidence from the defense, misleading jurors about observations, mishandling, mistreating, or destroying evidence, pressuring witnesses not to testify, etc.).³⁵

The US Justice System has also become a system based on the plea bargain: individuals plead guilty to a crime in exchange for a shorter prison sentence. Although plea bargaining is arguably more efficient, it is also arguably less just. Over 90% of convictions are the result of guilty pleas (97% of federal convictions and 94% of state convictions).³⁶ Of those, it is estimated that between 2% and 8% are plea bargains of innocent people who falsely plead guilty to avoid lengthy and costly trials that may result in an even longer sentence. This statistic means that likely between 44,000 and 176,000 US citizens are serving time for crimes they did not commit because they pled guilty in order to avoid harsher punishments.³⁷ More than 10% of the individuals whom the Innocence Project has helped exonerate via DNA evidence pleaded guilty (40 of 362).³⁸ This is an especially significant problem among individuals of lower economic backgrounds who cannot afford an attorney to build a defense and therefore must rely on overburdened public defenders.

Racial Bias

Racial Disparity

Racial disparities in sentencing play a pivotal role in mass incarceration. From 1994 to 2002, the average time black drug offenders served in prison increased 73% while white drug offenders spent 28% more time in jail on average.³⁹ Studies show that people of all races use and sell illegal drugs at remarkably similar rates: according to the 2003 National Study on Drug Use and Health, 38.2% of white young adults (ages 18-25), compared to 30.6% of black young adults and 27.5% of latino young adults, reported illicit drug use in the last year.⁴⁰ Despite this, racial disparities in sentencing continue in some states:

• Black men have been admitted to prison on drug charges at rates 20 to 50 times those of white men.⁴¹
• Prosecutors were found to pursue a mandatory minimum sentence for black people twice as often as for white people charged with the same offense.⁴²
• Black males receive sentences 19.1% longer than white males convicted of similar crimes.⁴³
• Black US citizens spend almost as much time in prison for a drug offense (57.2 months) as white citizens do for a violent offense (58.8 months).⁴⁴

This disparity in race in the prison system can be seen beyond policies from the War on Drugs. Race is not proportionately representative in US prisons when compared to the US population as a whole. The largest disparity is seen among the black population (see Figure 3).⁴⁵

Mandatory Minimums

There are many possible explanations for the discrepancy in racial representation in prisons today, but one of the most direct is that black communities were targeted and criminalized as a result of the War on Drugs.⁴⁷ One 1995 study found that 95% of those asked to picture a drug user envisioned a black person.⁴⁸ The mandatory minimums were enforced on drugs stereotyped as drugs of choice for people of color. Crack cocaine has historically been typecast as a drug used by black citizens, while powder cocaine users have been stereotyped as white. The minimum penalty for 500 grams of powder cocaine was equal to just 5 grams of crack (a 100:1 disparity). Possessing 50 grams of crack led to a 10-year sentence.⁴⁹ The maximum penalty for possession of any amount of powder cocaine or any other drug remained at no more than one year in prison. There is no empirically-justified reason for the disparity in cocaine sentencing; instead it contributes to a racial disparity in the US justice system. In 2015, possession of crack led to a conviction 18 times more frequently than possession of powder cocaine.⁵⁰ The US black population comprised 80% of those convicted of offenses involving crack cocaine, despite the fact that the latino and white populations accounted for more than two-thirds of crack users.⁵¹ Before the creation of mandatory minimum sentences for crack cocaine users in 1986, the average federal drug sentence for black US citizens was 11% higher than for white; by 1990, it was 49% higher.⁵²

Socioeconomic Status

Socioeconomic status, including education, poverty, and earning potential, can impact the likelihood of an individual serving time in prison, thereby contributing to American mass incarceration. While only 18% of the general population do not have a high school diploma or General Education Development (GED), the rate is twice that (40%) among American inmates.⁵³ The likelihood of not obtaining a high school diploma increases among people of color (see Figure 5).⁵⁴ A lack of educational attainment is therefore highly correlated with incarceration.

Income level can also play a large role. The median annual income of American prisoners was $19,185 prior to their conviction, which is 41% less than non-incarcerated people of similar ages.⁵⁵ Inmates are also more likely to have a disability. An estimated 32% of prisoners and 40% of jail inmates reported having at least one disability. This statistic means that prisoners are almost 3 times more likely and jail inmates are more than 4 times more likely than the general population to have at least one disability.⁵⁶ Education and income level are inextricably linked, and when combined disproportionately affect people of color and those who come from lower income backgrounds. The most vulnerable American people (e.g. people of color, people with disabilities, impoverished individuals, and those with less education) are those who are most likely to go to prison. Together, socioeconomic disadvantage and policies from the War on Drugs combine to reinforce mass incarceration through class and racial bias.

Privatization of Prisons

Privatization of prisons made building prisons and incarcerating people a profitable business and likely increased the incarcerated population, directly contributing to mass incarceration. From 1990 until 2005, a new prison opened in the United States every 10 days, an unprecedented rate. Prison construction became so profitable that state legislators were constantly lobbied to use incarceration as the answer to a wide variety of problems (drug addiction, poverty, mental disabilities, etc).⁵⁷

For-profit prisons are run by third-party companies contracted by the government. The size of their contracts are usually determined by the number of inmates and the length of their sentences; therefore, the more inmates the prisons can hold for longer periods of time, the more revenue they generate. The first for-profit, private prison was established in Tennessee in 1984, and from 1990 to 2005, the incarcerated population in private prisons increased 1600%, much more than government-run prisons.⁵⁸ As of 2018, the private prison industry was worth $5 billion and incarcerated about 9% of all US prisoners (19% of federal prisoners and 75% of all immigrants detained by ICE).⁵⁹ The rapid building of prisons and the lower comparative cost of housing incarcerated people (as compared to federal and state-run prisons, mental institutions, and drug addiction recovery facilities) led to an increase in the incarcerated population and directly contributed to mass incarceration.

Recidivism

Another element that contributes to mass incarceration is the high recidivism rate, or the rate at which ex-convicts return to prison on new offenses. This is an issue that is cyclical in nature: a lack of rehabilitation efforts in prisons leads to an increased recidivismwhich leads to worse prison conditions, and thus recidivism. Given its complicated relationship, recidivism is both a cause that intensifies mass incarceration and a consequence of mass incarceration. More than 10,000 prisoners each week (650,000 each year) are released from federal and state prisons and return to their communities (a fivefold increase from the late 1970s).⁶⁰ A study that tracked 404,638 prisoners in 30 states after their release from prison in 2005 found that over half (56.7%) were rearrested by the end of their first year out of prison, and over three-quarters (76.6%) were back in jail within 5 years of their release date. Regardless of the crime committed, inmates return to prisons at alarmingly high rates. The same study found that the recidivism rate of property, drug, public order, and violent offenders ranged from 71.3% and 82.1%.⁶¹

A large reason for the high rate of recidivism is that ex-convicts have a difficult time finding work after leaving jail. Studies show that when job applicants have to check a box on an application that indicates that they have a criminal record, the odds that they are offered an interview is cut in half. Prisoners who entered the criminal justice system as minors have even more hurdles to overcome in order to live a normal life. Many have never had a bank account, driven a car, or held a job. For those incarcerated in or before the 90s, technology has changed so dramatically that they often lack the job skills necessary to be deemed a valuable employee.⁶²

Consequences

Race

As there are a disproportionate amount of people of color in prison today, it is important to note that more of the consequences of mass imprisonment directly affect them and their communities. Therefore, race will be included in the analysis of each of the following consequences.

Prison Conditions

Given the overcrowded nature of prisons due to high incarceration rates, prison conditions are often extremely poor. Prison overcrowding is a serious problem and can have a very negative impact on prison conditions and thus prisoner health. At the end of 2013, about half of states reported that they were operating at 99% or more of their operational capacity.⁶³ In 2014, 18 states were operating their prison facilities at more than 100% capacity, including California which operated at 175% of the design capacity.⁶⁴ The state’s inmate suicide rate was 80% higher than the national average.⁶⁵ It is important to note, however, that this suicide rate is not the case in every prison and the subsequent examples are some of the most extreme cases. In 2011, the overcrowding and prison conditions became so inhumane in California that the Supreme Court in Brown v. Plata required the state to release approximately 46,000 prisoners. At the time of the case, California’s prisons were housing almost double the 80,000 prisoners they were designed to hold (156,000 prisoners). The court found the inadequate mental and medical health care to be “incompatible with the concept of human dignity and [to have] no place in civilized society.”⁶⁶ The Supreme Court Opinion stated that:⁶⁷

• “The medical and mental health care provided by California’s prisons...has failed to meet prisoners’ basic health needs. Needless suffering and death have been the well-documented result.”
• “Prisoners are crammed into spaces neither designed nor intended to house inmates…[leading to] increased, substantial risk for transmission of infectious illness and a suicide rate approaching an average of one per week.”
• “Wait times for mental health care range as high as 12 months.”
• “72.1% of suicides involved some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable.”
• “In one prison, up to 50 sick inmates [were held] together in a 12-by 20-foot cage for up to 5 hours awaiting treatment.”

Perhaps the most infamous example of poor prison conditions is the Julia Tutwiler Prison for Women in Wetumpka, Alabama. The prison was designed to hold 417 prisoners, but held more than double that by April 2013 (housing 928 prisoners). In a federal investigation into prison conditions, the Assistant Attorney General found that “at least 36 of the 99 total employees were identified as having had sex with prisoners—approximately 36% of current staff. If we include staff that were identified for other forms of sexual abuse and sexual harassment, the number of staff involved in sexually inappropriate behavior nearly doubles.”⁶⁸ Tutwiler Prison staff were able to coerce women into sexual acts in exchange for basic necessities like toilet paper and tampons.⁶⁹ The Julia Tutwiler Prison for Women was eventually closed in 2016, but no criminal charges against the officers were included in the settlement of a lawsuit brought on behalf of 50 women.⁷⁰

Private Prisons

Private prisons were originally created to lower the cost of prisons and to reduce overcrowding in prisons; however, these goals have led to fewer guards working more hours (48-hour shifts in Idaho’s largest prison) and less oversight by officials. This has resulted in misconduct and abuse of prisoners including 400 female prisoners in Kentucky that were removed from a prison that denied them medication and allowed them to be sexually abused by guards.⁷¹ Private prison employees earn an average of $5,000 less than government-employed prison employees and receive 58 less hours of training. In 2016, the Justice Department found that private prisons had a 28% higher rate of inmate-on-inmate assaults and more than twice as many inmate-on-staff assaults.⁷²

Race

A 2015 study showed a slight disparity in the treatment of incarcerated people based on race. While black male inmates made up 40% of the total prison population, they made up 45% of those held in solitary confinement.⁷³ The pattern continued, but was less extreme for latino inmates who made up 20% of the population of the study but 21% of those held in solitary confinement.⁷⁴ These proportions vary greatly geographically. In California, latinos constitute 42% of the total prison population, but more than double the percentage of those in solitary confinement (86%).⁷⁵ Meanwhile, whites were vastly underrepresented making up 22% of the prison population but only 9% of prisoners in solitary confinement (similar latino/white disparities were found in Texas and Mississippi).⁷⁶

The state of New York in particular has come under scrutiny for the racial disparity between prisoners and prison guards. A review by The New York Times that analyzed thousands of disciplinary cases against inmates in 2015 stated that black and latino inmates were disciplined more frequently than white inmates, in some cases twice as often. They were also sent to solitary confinement more frequently and for longer durations. Across New York, black prisoners were 30% more likely to get a disciplinary ticket than white prisoners and were 65% more likely to be held in isolation.⁷⁷

Physical Health

Healthcare in prisons is often inadequate due to the high volume of individuals who need care, which results in negative health outcomes for prisoners. In a study conducted by the Washington State Department of Corrections, the mortality rate for recently released inmates was 3.5 times the rate of the population of the state. In the first 2 weeks following release, this change became more stark—the mortality rate increased to 13 times that of the Washington population.⁷⁸ In another study in New York, spending 5 years in prison increased the likelihood of death by 78% after release—reducing a person’s expected lifespan at age 30 by 10 years.⁷⁹

Additionally, many diseases are more prevalent in prison and jail populations than in the general population.⁸⁰

• Hepatitis C is 9-10 times more prevalent in jail and prison populations than the general population.
• In 2002, TB was 17 times as prevalent in jails and 4 times as prevalent in prisons than in the general population.
• HIV is 4-5 times more prevalent in correctional facilities than in the general population.
• An estimated 40% of inmates have at least one chronic health condition (e.g. asthma or diabetes); nearly all chronic health conditions are more prevalent among incarcerated people than in the general population.

Race

The impact of race on quality of health for prisoners is more nuanced and less stark than the effect of race on other consequences of mass incarceration.⁸¹

Mental Health

Mental illnesses are both a contributing factor and consequence of mass incarceration, since individuals suffering from mental health problems are more likely to be in prison and prison conditions often negatively impact prisoner mental health. In a hearing in front of the State Judiciary Committee, Fred Osher testified that mental illness is 3-6 times more prevalent in the incarcerated population than in the total population. He stated that about “2 million people with serious mental illnesses are admitted to jails across the nation [annually]...almost three-quarters also have co-occurring drug and/or alcohol disorders.”⁸²

Many argue that US prisons have become a new, less costly version of mental health facilities.⁸³ Individuals struggling with mental health also serve longer prison sentences, face higher rates of suicide, suffer from an increased likelihood of recidivism, and deal with worse prison conditions. Extra personnel are required for inmates with mental health problems to monitor for suicide attempts, increasing the cost of incarceration per person (as compared to inmates without mental health problems). Across the board, jails spend 2-3 times as much money on inmates struggling with mental health than on those who do not.⁸⁴

Although solitary confinement has been used for centuries, it became common during the War on Drugs due to overcrowding in prisons causing riots and assaults on guards. Solitary confinement became a quick fix that gave prison guards control in prisons that were over capacity.⁸⁵ About 75,000 incarcerated people are held in solitary confinement in the United States at any point in time, spending 23 or more hours per day in small cells, allowed to leave for showers, brief exercise, or medical visits. They cannot receive telephone calls or have visitors. While prisoners in solitary confinement make up only 3% to 8% of the national prison population, they account for approximately half of all prison suicides.⁸⁶ The suicide rate among the incarcerated population is 3-4 times that of the US population as a whole. Suicide is the leading cause of death in jails, claiming 35% of all inmate deaths at the local level.⁸⁷ Research is limited on how prison conditions directly relate to suicide in prison; however, some risk factors for suicidal ideation among incarcerated individuals include social isolation, lack of purposeful activity, bullying, a history of mental illness, a history of suicide attempts (including family members), hopelessness (not seeing a future beyond incarceration), poor social support, and having experienced the death of a child or partner.⁸⁸

Bad behavior is more frequent among mentally ill prisoners than among those without mental illness (such as assaults on prison guards and behavior infractions), but they are also more frequently victims. According to a 2007 prisoner inmate survey, over a 6 month period, approximately 1 in 12 male inmates with mental disorders reported at least one incident of sexual victimization by another inmate as compared with one in 33 without mental disorders. Among females, this difference was 3 times higher. Given these behavioral problems, a disproportionate amount of mentally ill prisoners end up in solitary confinement.⁸⁹ Mental illness is therefore a contributing factor, since individuals who suffer from mental illnesses are overrepresented in prisons and often serve longer sentences for bad behavior, as well as a consequence, since prisoner mental health often deteriorates as suicidality increases due to the individual’s background and poor prison conditions.⁹⁰

Race

The majority of prisoners in prisons and jails suffer from mental health problems. However, the impact of mass incarceration on mental health is remarkably similar across racial groups, with white prisoners experiencing the highest prevalence of mental health problems, followed by black and latino prisoners.⁹¹

Disenfranchisement

Following incarceration, many prisoners lose rights available to other US citizens. In 12 states, individuals with criminal records are disenfranchised, or lose their right to vote permanently. In a majority of states, ex-convicts cannot vote during their probation period. As of 2016, approximately 6.1 million Americans (or about 2.5% of the US population) are disenfranchised due to a felony conviction. This number has dramatically increased following the policies that were “tough on drugs.” Only about 1.17 million individuals were disenfranchised in 1976. That number doubled by 1996 and has reached a record high today. However, in November 2018, Florida voters approved a constitutional amendment which could restore voting rights for up to 1.4 million Floridians, approximately a quarter of those previously disenfranchised.⁹² If individuals who completed their sentences were given voting rights, 77% of the 6.1 million disenfranchised individuals would be able to vote again.⁹³ Experts have pointed out that only those who have served time know what the prison system is lacking, and those who have served time are also not allowed to vote and impact the prison system through political elections.⁹⁴

Race

One in 13 black citizens over the age of 18 is ineligible to vote in the United States, quadruple the percentage of other races (7.4% of black citizens as compared to only 1.8% of non-black citizens). The cost of disenfranchisement unequally falls on the shoulders of people of color, minority voices being further restricted based on previous convictions.⁹⁵

Economics

Mass incarceration is economically costly for incarcerated people and their families as well as society as a whole. In 2018, 2.3 million people in the US prison system were being supported by American taxpayers instead of contributing to the American economy. Running the corrections system (prisons, jails, parole, and probation) costs taxpayers $80.7 billion each year.⁹⁶ Mass incarceration costs the government and families of justice-involved people at least $182 billion each year, which includes criminal policing and criminal court costs as well as prisoner healthcare.⁹⁷ In the last 3 decades, the cost of running the criminal justice system—including courts and prisons—increased 650% to $265 billion in 2012.⁹⁸ In addition to the costs that burden the rest of American society, convicts themselves also face an economic weight. In Florida, convicted felons may be required to pay $50 per day as part of a “cost of incarceration lien” at a judge’s discretion. One such inmate decided to sue the state because he felt that he was paying for his crime twice by serving his prison sentence and later owing thousands of dollars. His 42-month sentence (just under 3.5 years) resulted in a $63,000 charge, which accrues 4.78% interest each year.⁹⁹ Florida is not the only state with such a policy; Hawaii alone does not charge inmates for their own incarceration.¹⁰⁰ According to the Brennan Center, approximately 10 million people now owe a combined total of over $50 billion in charges from hefty court fees and prison stays. One report found that families spend $13,607 on conviction-related costs on average (restitution and attorney’s fees), but almost half of the families surveyed could not afford to pay for the charges.¹⁰¹ Many inmates enter prison poor, are then handed substantial fees that accumulate interest because they are impoverished and unable to pay for the fees, and are then released without good job prospects due to the difficulty in finding a job with a prison record. This may also result in a higher recidivism rate as former inmates who fail to pay their fees can be reincarcerated, leading to even more fines.

Even following incarceration, those who are released have a difficult time finding work. Surveys of former inmates show that 60-75% remain unemployed up to a year after their release.¹⁰² Incarceration can also increase the odds of being homeless or marginally housed. In one study in San Francisco, nearly one fourth of homeless people interviewed had a history of incarceration.¹⁰³ Incarceration can have long-term consequences for individuals and their families by changing their potential for job employment and housing in the future.

Race

A field experiment that sent matched teams with equal qualifications to apply for hundreds of entry-level jobs in New York City found that having a criminal record cuts an individual’s chances of getting a callback or a job offer nearly in half (28% of the general public received callbacks vs. 15% of those with a criminal record received callbacks). It is also shown to be more detrimental for black ex-convicts than white (white ex-convicts with a criminal record get 9% fewer callbacks than those without a record whereas black ex-convicts with a criminal record receive 15% fewer callbacks than those without a record).¹⁰⁴

Families

Studies have shown that having a family member incarcerated, particularly a parent, can have multiple negative consequences on the family. In 2007, a survey by the Bureau of Justice Statistics found that 52% of state and 63% of federal inmates reported being parents to an estimated 1.7 million children (approximately 2.3% of all American children).¹⁰⁵ Including parents who have been arrested, but are not currently incarcerated, the estimate of children affected by parental incarceration rises to 10 million.¹⁰⁶ The correctional system serves as a socialization institution for families and can negatively impact political beliefs and government views. The incarceration of a parent has been linked to lower voting rates, a general distrust in the government (especially in the criminal justice system and often in conjunction with perceived discrimination), and economic hardship, including an increased risk of homelessness and housing instability.¹⁰⁷ Court proceedings are often costly and can impose debt on the family.¹⁰⁸

There are also significant associations between parental incarceration and depression, PTSD, anxiety, cholesterol, asthma, migraines, HIV/AIDS, and fair or poor health for children overall. Experts believe the link is caused by a lack of safe, stable, and nurturing relationships as well as an exposure to violence.¹⁰⁹ Ethnographic and quantitative studies show that paternal and maternal incarceration impact children differently. While paternal incarceration was linked to disciplinary problems (drug and alcohol use, school truancy, aggression, delinquency, etc.), maternal incarceration was related to children “withdrawing,” crying frequently, daydreaming, and suffering academically.¹¹⁰ Paternal incarceration was also associated with a higher likelihood of being suspended and/or expelled, lower grades, and poorer educational attainment (more due to social-emotional health than intellectual capacity).¹¹¹

Alternatively, in addition to the mental and physical health risks, there are other societal and financial impacts. On average, children of incarcerated parents are 6 times more likely to become incarcerated themselves.¹¹² One study found that families with an incarcerated parent had incomes that were 22% lower during the family member’s incarceration and 15% lower after the completion of their sentence.¹¹³ The impact of a prison sentence not only affects the incarcerated person, but their families and communities as well.

Race

The same Bureau of Justice Statistics survey showed that black and latino children were 7.5 times and 2.3 times more likely than white children to have an incarcerated parent.¹¹⁴ Forty percent of all incarcerated parents are black fathers.¹¹⁵ This unequal weight on minority communities can be tied to the War on Drugs: only about 15% of black children born in the 1970s had a parent in jail, but by the 90s, the rate had nearly doubled to 28%.¹¹⁶ Today, 1 in 9 black children (11.4%) has an incarcerated parent compared to just 1 in 28 latino children (3.5%) and 1 in 57 white children (1.8%).¹¹⁷

Practices

Complete Drug Decriminalization

The most complete and radical solution to the problem would be to decriminalize drug use and no longer impress legal punishment upon drug users. The US government has historically responded to drug use with legal and criminal solutions instead of healthcare-based solutions. In doing so, already disadvantaged families, particularly those of color, were placed at an even further disadvantage.¹¹⁸ These laws create a ripple effect which include high recidivism rates due to lack of employment opportunities with a criminal record. The solution proposed here is in line with what was found effective in Portugal (see Impact, below). Individuals who do not sell drugs and possess less than a 10-day stash of any drug, would be assigned mandatory healthcare intervention, not a criminal sentence.¹¹⁹ This will not only save the US government money (lowering the court case load and number of individuals held in jails and prisons) but has the potential to reduce drug use (by offering healthcare instead of punishment) and help the communities that need it most by keeping more parents in homes and at work instead of in jail.

The decriminalization of drugs would help to destigmatize drug use, offer support and healthcare to drug offenders, and provide them the opportunity to rehabilitate and a second chance at being a constructive member of society without a criminal record. In the United States, decriminalizing drug use would mean reducing or completely eliminating mandatory minimums and restoring the right to vote, access to public housing, employment opportunities, and other legal rights.¹²⁰ Decriminalizing drug use has the potential to cut the total incarcerated population by roughly 20%, having a direct impact on mass incarceration.¹²¹

Impact

Portugal suffered from a drug epidemic in the 70's and 80's. Similar to the US, their original solution was to heavily criminalize and police drug use. By the late 1990s, approximately half of Portugal’s inmates were in prison for drug-related crimes (similar to the US today). At the peak of their drug war in 1999, an estimated 1% of the Portuguese people were heroin addicts, and Portugal became home to the highest rate of HIV infection due to needles in the European Union.¹²²

In 2001, Portugal realized that their no-nonsense approach to drugs was not working and decided to become the first country in the world to decriminalize the possession and consumption of all illegal substances. Under this new law, only drug dealers are sent to prison. Those who were caught using illicit drugs with a less than 10-day supply received mandatory medical treatment.¹²³ In addition to saving funds from unnecessary court cases and overfilled prison cells, Portugal’s opioid crisis stabilized as they saw dramatic decreases in drug use. HIV infection plunged from a record high of 104.0 cases per million in 2000 to just 4.2 cases per million in 2015.¹²⁴ Drug related HIV infections in Portugal have fallen 95%. The Health Ministry estimates that only about 25,000 Portuguese use heroin today, a quarter of what it was when their policy to decriminalize drugs began.¹²⁵ The drug-induced death rate in Portugal has dropped to 5 times less than the average of the European Union and is one-fiftieth of that in the United States. If the United States was able to achieve as much success by decriminalizing drugs as Portugal has, we could potentially save one American life every 10 minutes.¹²⁶

Gaps

Portugal’s incarceration rate for drug users was much lower than it is in the United States, thus the impact of drug decriminalization in Portugal was smaller than it has the potential to be in the United States.¹²⁷ There is evidence that the percentage of people who experimented with drugs (or used drugs at some point in their life) has increased in Portugal, even though the percentage of people who report having used drugs in the last 12 months has not changed significantly.¹²⁸

Although a logical and holistic approach, decriminalizing drugs in the United States seems counterintuitive and is against the grain of popular opinion. Given the political climate of the United States, this approach is not a solution that is likely to occur. While it is difficult to anticipate all of the effects of decriminalizing drugs, critics fear that it would overwhelm the healthcare system until they adjusted to the influx of drug users seeking treatment. Some fear that the decriminalization of drugs would lead to a push to legalize those drugs (under this policy shift it would still be illegal to use the substance, the treatment would simply be mandatory healthcare instead of a prison sentence). Another worry is that people would be more likely to experiment with and use drugs if they were not criminalized.¹²⁹ However, until the practice is implemented, all of these potential downsides (and upsides) are mere speculation since there is no way to know how the US public will respond to the decriminalization of drug use.

Prison Rehabilitation

US prisons often focus on punishment rather than rehabilitation, resulting in a higher rate of recidivism. Despite higher prevalence at the federal, state, and local levels, only 27% of state prisons offer college courses and only 7% of jails offer vocational training.¹³⁰ Ultimately, this reduction in the incarcerated population saves the government money, even though it must spend money on rehabilitation programs. Nevada’s state prison population decreased by 1.6% from 2008 to 2009, saving the state $38 million and saving the state $22,000 for each inmate that does not recidivate.¹³¹

Alternative prison sentences operate differently by rehabilitating prisoners outside of the prison environment. As mentioned before, many prisoners do not have the skills necessary to obtain a job and sustain a decent quality of life, especially those who were incarcerated as adolescents. This problem is exacerbated by the stigma and restrictions that having a prison record place on previously incarcerated individuals. Programs that help incarcerated people transition into life afterwards can provide skills, resources, education, and experience in order to increase the incarcerated person’s ability to find work and break the recidivism cycle. Delancey Street is the leading organization for this practice and was founded in 1971 in San Francisco, California. Delancey Street has since expanded to include locations in Los Angeles, New Mexico, North Carolina, South Carolina, New York, South Carolina, Utah, and Massachusetts. Their program centers around a 2 year alternative prison sentence (prisoners spend 2 years in Delancey Street instead of finishing whatever was left of their sentence in jail).

Residents are required to earn their GED and are trained in at least 3 different marketable skills (such as bookkeeping, auto and truck repair, warehousing, welding, sewing and upholstery, event planning, iron and wood works, etc.) while learning soft skills and essential values to ensure their success in mainstream society. The ex-convicts work in businesses that are owned by Delancey Street (and provide funding for the staff and living expenses of program participants). This experience provides them with job skills and hands-on experience that they can include on their resumes to help them get jobs in the future. Delancey Street owns a variety of businesses including a moving company, a restaurant, a catering business, a landscaping venture, advertising, and more.¹³²

Impact

Studies have shown that prison rehabilitation programs decrease the recidivism rate, effectively decreasing the incarcerated population while boosting the economy through extra earnings from previously incarcerated people.¹³³ In Ohio, prisoners who take college classes recidivate at a rate of 18% compared to more than double who do not (40%). This pattern holds in New York where inmates who do not earn their college degree while incarcerated are almost twice as likely to get rearrested as those who do earn their degree.¹³⁴

Delancey Street has graduated more than 18,000 graduates since 1971, and only 2% have returned to prison (as compared to more than 76% who return to jail within 5 years of their sentence without Delancey Street intervention).¹³⁵ The organization is credited with helping over 10,000 formerly illiterate convicts earn their GEDs, while helping an additional 1,000 individuals earn a diploma from a state accredited vocational program. Their program participants built and remodeled over 1500 low-income housing units that successfully moved over 3,000 homeless people into permanent housing.¹³⁶ While Delancey Street has impressive outcomes for program participants, impact data does not currently exist since it is difficult to measure reduction in mass incarceration.

Gaps

Delancey Street has received over 10,000 requests to duplicate their program across the country.¹³⁷ Unfortunately, they are unable to scale their program at such a rapid rate. Still, there is hope given that their program has been successful in 7 different locations and continues to grow.

Delancey Street and its replications currently only serve non-violent offenders (mostly drug criminals), meaning that services are still not offered to rehabilitate and help violent crime offenders re-enter society. Additionally, these programs only address the after effects of criminalization and a prison sentence. While they are extremely effective at rehabilitating prisoners and breaking the recidivism cycle, they fail to address the root causes that lead to incarceration in the first place.

Legal Action/Justice Intervention

Legal intervention on behalf of incarcerated men and women provides necessary representation and support for these individuals. Although the Sixth Amendment of the Constitution promises “the Assistance of Counsel” for any criminal prosecution, public defenders are often too overwhelmed to provide defendants with the defense they deserve. National standards suggest that public defenders manage a maximum of 150 felony cases per year. However, the Census of Public Defense Offices found that only 12% of county public defender offices with more than 5,000 cases per year had enough lawyers to handle their caseloads.¹³⁸ In Florida, the public defender annual felony caseload was 500 felonies. In New Orleans, each case receives an average 7 minutes of attention from counsel. Across the country, public defenders are overworked, underfunded, and less able to provide a solid defense for their clients.¹³⁹

Therefore, pro bono lawyers who serve vulnerable defendants (usually those who do not have the financial means to afford counsel) provide an alternative to public defenders who do not have adequate time to dedicate to each case. This approach involves lawyers and organizations that enact change from within the system by representing individuals and groups harmed by unfair sentencing laws, harsh or excessive punishment, exploitation of vulnerable populations, and wrongly accused.

The most effective, wide-reaching, and well-known organization in this arena is the Equal Justice Initiative (EJI), which operates nationally. The EJI “provides legal representation to those who have been illegally convicted, unfairly sentenced, or abused in state jails and prisons,” hiring top lawyers to challenge the death penalty, excessive punishment and provides aid to ex-convicts who return to civilian life.¹⁴⁰ They focus on cases where they believe the convict has been wrongly accused or whose vulnerability (e.g. poverty or disability) has been exploited to incarcerate them unjustly or harshly. They also support clients with re-entry, everything from helping them obtain drivers’ licenses, finding housing, applying for jobs, even helping with transportation and educating them about technology and financial management. In more intense cases, they also provide counseling and therapy to help with trauma and their transition back to civilian life.¹⁴¹ The EJI also files lawsuits on behalf of clients when prison conditions or sentencing is harming multiple prisons.¹⁴²

Impact

The EJI has successfully won exoneration for over 125 wrongly convicted or illegally sentenced death row prisoners in Alabama. In 2012, the EJI won a major victory in the Supreme Court, banning life-without-parole sentences imposed on children under the age of 17 as unconstitutional (the Supreme Court also ruled that giving children the death penalty as unconstitutional in 2005, 365 children had been executed before this ruling).¹⁴³ The EJI was also able to obtain a settlement in a lawsuit against the Alabama Department of Corrections for inhumane prison conditions as exemplified by their high homicide rate.¹⁴⁴ By fighting for justice in the courtroom, the EJI is challenging long-standing laws and unfair biases that enable mass incarceration.

Gaps

The Equal Justice Initiative is one of the only organizations committed to affecting change from within the criminal justice system in favor of justice and equality. Because of this, progress is slow and far from complete—not every convict who is facing false charges, excessive punishment, or abuse in prison will be able to receive legal counsel from the EJI or similar organizations. In order for the EJI to have the widespread impact it aspires to, many, if not all of the policies from the War on Drugs era would need to be overturned. Additionally, old biases may persist in the criminal justice system that negatively affect the most vulnerable (racial minorities, impoverished people, and disabled individuals) in society. Due to the bureaucratic and personal nature of these goals, spreading the EJI is not an undertaking that can be easily achieved.

Juvenile Justice Investment

Another potential intervention offers support to juvenile offenders to reduce the likelihood of recidivating. Research shows that the most effective programs are those that focus on family interaction and help parents support their children and impact their behavior. The 2 intervention types with the most research reflecting their effectiveness include Functional Family Therapy (FFT) and Multi-Systemic Therapy (MST). FFT helps juveniles who have engaged in delinquency, substance abuse, or violence – it focuses on strengthening their problem-solving skills, improving emotional connections among family members, and helping parents to provide structure, guidance, and boundaries for their children. MST takes a more holistic approach helping children and parents to understand the potential negative impact of peers and poor school performance.¹⁴⁵ By providing support for families and their children and offering them the tools to avoid and resist delinquency, MST and FFT help to prevent future incarceration as adults and stopping the recidivism cycle before it starts.

Impact

This solution is more proactive and better addresses the root cause compared to some of the other proposed solutions. By intervening when the violators are young and offering them a rehabilitating (instead of punitive) option, FFT and MST can reduce crime rates and recidivism rates by eliminating future incarceration and subsequent job search difficulties with a criminal record. Many trials have demonstrated the effectiveness of FFT and MST over the past 25 years. A meta-analysis of 8 such studies found that FFT produces statistically significant reductions in recidivism, out-of-home placement, or sibling referral. The arrest rate for an adult that underwent FFT was only 9% as compared to 41% under an alternative treatment.¹⁴⁶ Evaluations of MST have shown reductions in recidivism, delinquency, antisocial behavior, alcohol use, drug use, and out-of-home placements, as well as increases in the participants’ positive peer relationships and family functioning.¹⁴⁷ A study of MST programs in South Carolina found that youth participating in MST returned to jail at half the rate as youth who received the normal services offered by South Carolina.¹⁴⁸ MST and FFT have been implemented in a variety of situations and cities across the country and has shown great promise for replicability and scalability.¹⁴⁹

Gaps

Although MST and FFT have shown great potential in reducing recidivism among adolescents, evidence is conflicting as to the consistent effectiveness of MST. Some argue that the issue lies in professionals’ ability to utilize the MST model and not the model itself, but these ideas are largely speculative and inconclusive.¹⁵⁰

Additionally, therapy does not address the systemic root problem that exists within the inherent inequity in the American Criminal Justice System. Reform and rehabilitation for juvenile offenders is important work; however, addressing the root cause of the problem requires support for already-vulnerable juveniles (children with lower socioeconomic status, children of color, children having mental illnesses or cognitive disabilities, etc.) who are more likely to be arrested in the first place because of the structure of the criminal justice system.

Preferred Citation: Resney, Alex. “Mass Incarceration in the United States.” Ballard Brief. January 2019. www.ballardbrief.org.

Viewpoints published by Ballard Brief are not necessarily endorsed by BYU or The Church of Jesus Christ of Latter-day Saints