The Liberty Papers

A Pew report found that 1 in every 100 U.S. adults is now behind bars. The breakdown along racial and ethnic lines is even more disturbing. In the 18 and over age demographic for males, Pew found that 1 in 106 white males are behind bars compared to 1 in 36 for Hispanic males, and 1 in 15 for black males. The most incarcerated group of all is black males from the ages of 20 to 34 with 1 in 9 in this group behind bars.

Pew also found a large gender gap in incarcerations; 1 in 54 all males (18 and over) are behind bars compared to 1 in 265 of all women ages 35 to 69 (“all women 18 and over” must have been too small of a group to measure). The least incarcerated group of all is white women ages 35 to 39 with only 1 in 355.

One would think that based on an adult population of 230 million that with 1 in 100 in jail or prison that our country must be full of murderers, rapists, and thieves. How do we manage to leave our homes without being raped, robbed, or murdered?

Maybe the reason we have so many Americans behind bars has to do with something else: too many “crimes” which do not violate the rights of a non-consenting other. Maybe it is our laws that are the problem.

Gene Healy of the Cato Institute made the following observation in an article he wrote in 2005 called “Criminalization out of Control.”

Because Congress criminalizes unreflectively, the federal criminal code has become vast and incomprehensible. A research team led by professor John Baker of Louisiana State Law School recently estimated that there are more than 4,000 separate federal criminal offenses. That number, inexact as it is, vastly understates the breadth of the criminal law, because the federal criminal code, in turn, incorporates by reference tens of thousands of regulatory violations never voted on by Congress. [Emphasis mine]

And this burgeoning culture of criminalization reverberates down the law enforcement ladder as local police increasingly use handcuffs and jail to deal with situations that clearly don’t warrant it. In September, at a Washington, D.C., bus stop, a Metro transit officer forced a pregnant woman to the ground and handcuffed her for talking too loudly on her cell phone. In April, in St. Petersburg, Fla., police were called into an elementary school to handcuff an unruly 5-year-old girl.

One of our most destructive overcriminalization binges occurred during the “Just Say No” era, when Congress embraced mandatory minimum sentencing as a way to deal with the use of illicit drugs. Making prison the solution to drug abuse has had staggering social costs.

This Pew study bears this out as the study states:

In short, experts say, expanding prisons will accomplish less and cost more than it has in the past.

[…]

[W]ith one in 100 adults looking out at this country from behind an expensive wall of bars, the potential of new approaches cannot be ignored.

There is, however, some good news that perhaps some of these new approaches are not being ignored. The report also found that states are learning that incarceration is not always the best answer. Some states are taking another look at their mandatory minimum sentencing statutes and have begun to prioritize the limited space based on violent offenses vs. nonviolent offenses. More states are also giving “drug courts” and treatment programs for nonviolent drug offenders another look as an alternative to incarceration. This could be a big step in the right direction given that drug offenses account for 53.5% of the national prison population.

Still, there is much work to be done in reforming our broken criminal justice system due in large part to the war on (some) drugs and mandatory minimum sentencing.

Hat Tip: Cato Daily Dispatch for February 29, 2008