Waylaid by a Metaphor: A Deeply Problematic Account of Prison Growth

The incarceration rate in the United States has undergone an unprecedented surge since the 1970s. Between 1925 and 1975, the U.S. incarceration rate hovered around 100 per 100,000. Since then, that rate soared to 504 in 2009, dropping only slightly to 500 in 2010. In absolute numbers, the U.S. prison population grew from 241,000 in 1975 to 1.55 million in 2010. Not just exceptional by historical standards, this boom is unparalleled globally: the United States has the highest incarceration rate in the world. Despite having just 5 percent of the world\u27s population, it houses nearly 25 percent of the world\u27s prisoners. It is not surprising that academics, journalists, and policymakers have attempted to explain the causes of this growth. What is surprising, however, is the general weakness of such explanations. The formal empirical papers that tackle the issue, for example, all suffer from severe methodological shortcomings that fundamentally undermine their results. Many of the common explanations - that prison growth is due to the war on drugs, to parole and probation violations, to longer sentences - are often asserted with little rigorous empirical support. And as I have pointed out before, and will continue to do so here, this conventional wisdom is frequently wrong. A recent entry in this discussion is Ernest Drucker\u27s A Plague of Prisons: The Epidemiology of Mass Incarceration in America. An epidemiologist by training, Drucker attempts to use epidemiology\u27s tools to shed new light on the complex causal roots of today\u27s mass incarceration problem. While he largely fails in his efforts, he does so in a very useful way: the mistakes he makes are ones that permeate this literature, so that identifying and correcting them serves the broader goal of setting the record straight(er) about the causes and effects of prison growth

The Future of Appellate Sentencing Review: \u3ci\u3eBooker\u3c/i\u3e in the States

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Why the Policy Failures of Mass Incarceration Are Really Political Failures

In his forthcoming book, The Insidious Momentum of Mass Incarceration, Franklin Zimring argues that the most effective way to end mass incarceration is to target the policy failures that drive it. He focuses in particular on the “prosecutorial free lunch”: prosecutors are county-funded officials who can send as many people as they like to state-funded prisons, which is a classic moral hazard problem. While Zimring is correct to focus on how relatively technocratic issues have posed outsized and underappreciated problems, his analysis suffers from some important shortcomings. In particular, he gives too little attention to the politics that have allowed this policy failure to persist. He thus overstates the ease with which reforms could be passed and understates how quickly they may be subverted. And, flipping the free lunch issue around, he also understates how effective local political change can be in the presence of entrenched state resistance to reform. He thus highlights an important problem but emphasizes fixes that will likely falter while dismissing those with a greater chance of success

Waylaid by a Metaphor: A Deeply Problematic Account of Prison Growth

The incarceration rate in the United States has undergone an unprecedented surge since the 1970s. Between 1925 and 1975, the U.S. incarceration rate hovered around 100 per 100,000. Since then, that rate soared to 504 in 2009, dropping only slightly to 500 in 2010. In absolute numbers, the U.S. prison population grew from 241,000 in 1975 to 1.55 million in 2010. Not just exceptional by historical standards, this boom is unparalleled globally: the United States has the highest incarceration rate in the world. Despite having just 5 percent of the world\u27s population, it houses nearly 25 percent of the world\u27s prisoners. It is not surprising that academics, journalists, and policymakers have attempted to explain the causes of this growth. What is surprising, however, is the general weakness of such explanations. The formal empirical papers that tackle the issue, for example, all suffer from severe methodological shortcomings that fundamentally undermine their results. Many of the common explanations - that prison growth is due to the war on drugs, to parole and probation violations, to longer sentences - are often asserted with little rigorous empirical support. And as I have pointed out before, and will continue to do so here, this conventional wisdom is frequently wrong. A recent entry in this discussion is Ernest Drucker\u27s A Plague of Prisons: The Epidemiology of Mass Incarceration in America. An epidemiologist by training, Drucker attempts to use epidemiology\u27s tools to shed new light on the complex causal roots of today\u27s mass incarceration problem. While he largely fails in his efforts, he does so in a very useful way: the mistakes he makes are ones that permeate this literature, so that identifying and correcting them serves the broader goal of setting the record straight(er) about the causes and effects of prison growth

Continued Vitality of Structured Sentencing following Blakely: The Effectiveness of Voluntary Guidelines, The

In two recent opinions, Blakely v. Washington and United States v. Booker, the U.S. Supreme Court effectively invalidated the binding nature of sentencing guidelines used by many states and the federal government over the past thirty years. Not surprisingly, numerous commentators have asserted that Blakely and Booker profoundly altered the nature of sentencing in the United States. But these claims have been made without any meaningful empirical consideration of whether viable alternatives exist. This Article fills that gap. It explores the extent to which voluntary, nonbinding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it focuses on the ability of such guidelines to encourage judges to sentence consistently and to avoid impermissibly taking into account a defendant\u27s race or sex. It also compares such guidelines to the binding guidelines found constitutionally impermissible in Blakely and Booker. In general, the results indicate that voluntary guidelines are able to accomplish much, though not all, that binding guidelines did, especially with respect to sentence variation. For example, voluntary guidelines appear to reduce a measure of variation in sentence length by as much as 35 percent for violent crimes and 21 percent for property crimes. By comparison, the analogous results for binding guidelines are a 57 percent drop for violent crimes and a 54 percent drop for property crimes. For the use of impermissible factors, the results are more ambiguous; binding guidelines appear in general to be slightly more effective than voluntary, but not consistently, and voluntary guidelines still appear to reduce the role of race and sex at sentencing. Voluntary guidelines are not the only option available to the states in a post- Blakely world: States can rely on sentencing juries or forms of expanded mandatory minimums, for example. And it remains an open empirical question whether, in the end, voluntary guidelines work better than these alternatives. But voluntary guidelines nonetheless appear to be a viable, albeit somewhat less effective, alternative to presumptive guidelines in the wake of Blakely and Booker

The Future of Appellate Sentencing Review: \u3ci\u3eBooker\u3c/i\u3e in the States

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