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Fear v. Facts

- May 25, 2011

I am delighted to welcome my friend and colleague Marc M. Howard with a guest post on Monday’s Supreme Court ruling. Marc is currently working on a new book on American punitiveness in comparative perspective.


In response to Monday’s momentous Supreme Court ruling—which represents a rare victory for prisoners’ rights advocates—the “law and order” crowd have reached into their tried-and-true playbook and pulled out their main weapon:  fear.

Here are a few notable quotes:

Justice Samuel Alito’s dissenting opinion:  “I fear that today’s decision will lead to a grim roster of victims.”

Justice Antonin Scalia’s dissenting opinion:  “terrible things are sure to happen as a consequence of this outrageous order.”

Los Angeles County District Attorney Steve Cooley:  “Citizens will pay a real price as crime victims, as thousands of convicted felons will be on the streets with minimal supervision.  Many of these ‘early release’ prisoners will commit crimes which would never have occurred had they remained in custody.”

Kent Scheidegger, from the Criminal Justice Legal Foundation:  “What is the message for law-abiding people in California?  Buy a gun.  Get a dog.  Put in an alarm system.  Even seriously consider bars on the windows.”

The underlying theme uniting these responses is simple and clear:  the forced early release of inmates (if indeed it actually takes place—which is still very much unclear and may take two years or more) is a danger to the “law abiding” public, which should be terrified and hysterical about it.  Justice Scalia even added some subtle racial undertones, by predicting that “many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym” (he is apparently unaware of that fact that weight-lifting equipment has been banned in California prisons since 1998).

This panic-stricken reaction conveniently ignores the fact that more prisoners are incarcerated as a result of property, drug, public order, and other crimes than of violent crimes—and presumably the former would stand to benefit from early release, not the latter [see Marc Mauer, Race to Incarcerate, 2nd ed. (New York:  The New Press, 2006), pp. 30-35].  And given the absolutely horrific conditions in California prisons, it sidesteps the question of whether any level of inhumane prison conditions could reach Scalia and Alito’s (and fellow dissenter Thomas and Roberts’) standard of “cruel and unusual punishment” to what would amount to a violation of the Eighth Amendment in their eyes.  It also avoids the obvious question about how former inmates are supposed to (re-)integrate into society when they are usually denied employment, welfare and housing assistance, and often voting rights.

But let’s just stick to their prediction that the Court’s ruling will lead to an increase in crime.  The thrust of the argument is that crime rates decline when criminals are put away behind bars, and thus can’t commit more crimes.  At first glance, the fact that American crime rates have dropped since the 1990s, while the imprisonment rates were sky-rocketing, seems to support the “tough on crime” argument.  But this basic correlation deserves further exploration.  How does this fear-based argument match up against the facts?

One approach is to compare across the 50 U.S. states.  If incarceration is simply a reflection of crime, the states with the highest crime rates should also have the highest imprisonment rates.  Yet the careful research of Natasha Frost finds little systematic relationship between the two factors.  Some states are “over-punitive” and others are “under-punitive,” but her work shows that the levels of incarceration certainly do not account for crime rates.

A comparative perspective provides another useful way of debunking the myth about the crime-prison nexus.  A focus on crime victimization rates shows that Americans are well within the international mainstream in terms of their likelihood of being a victim of crime, even though American prison population rate per 100,000 people is vastly higher than any other country in the world, and over seven times higher than comparable democracies.

Much of Michael Tonry’s research has discredited the crime-prison argument.  In a piece with David Farrington, the authors show that the U.S. and Canada have had similar trends in crime rates over decades (see figure below, from p. 129 of Tonry’s 2004 book), yet there is “no resemblance between American and Canadian imprisonment trends.”  The incarceration rates in the U.S. have soared since the mid-1970s, while the Canadian rates have remained level—at about 110-110 prisoners per 100,000 people—over that same time period.  If the crime-prison argument were accurate, the Canadian crime rates should have gone up, rather than remaining at stable or declining levels.

Tonry and Farrington also provide an interesting comparison between four Scandinavian countries.  From 1960 to 2000, the imprisonment rates (around 50-70 per 100,000) remained stable in Denmark, Norway, and Sweden.  Yet they dropped by two-thirds in Finland (from 180 per 100,000 in 1960 to 60 in 2000).  If incarceration really affects crime—and if a decline in the use of incarceration really poses a danger to the public—the crime rates in Finland should have jumped up.  Yet Finland’s crime rates never did increase, and they have consistently remained the second lowest in Scandinavia.

The retort from the “law and order” crowd will surely exclaim that “Finland is not the United States,” and that the problems of violent crime are much greater here.  This may be true, but the same phenomenon does seem to be occurring in the U.S. so far.  To the extent that there has been a small decline in imprisonment rates since the all-time high in 2008, crime rates have not increased as a result.

Indeed, in Tuesday’s New York Times, a less-noticed companion piece to the story on the Supreme Court ruling focused on the “baffling” recent drop in crime rates.  The article points out that “As the percentage of people behind bars has decreased in the past few years, violent crime rates have fallen as well.  For those who believed that higher incarceration rates inevitably led to less crime, ‘this would also be the last time to expect a crime decline,’ he [Frank E. Zimring, a law professor at the University of California, Berkeley] said.”

These findings should place the fear-mongering quotations above into a new light.  The facts seem to indicate that the Court’s ruling will improve the appalling conditions of California prisons without creating an increased risk of crime.