California Prison Population


In last week’s post, I discussed the high prison population in the United States relative to other countries. According to all available statistics, the U.S. leads the world in the incarceration of its population per capita. This statistic paints the picture: Almost 25% of the world’s prisoners are in the United States, yet the United States has only 4.5% of the world’s population.

The high incarceration rates are often blamed on the number of people the U.S. locked up for relatively minor drug possession offenses, the so-called “War on Drugs,” but that doesn’t stack up. As I discussed in last week’s post, the incarceration statistics don’t entirely support that theory. It is quite likely that there is more than one overriding reason the United States locks up so much of its population.

Could more efficient policing be part of the answer? Probably not. The arrest rates have been trending downward for over two decades.

A law professor at Fordham Law School, John Pfaff, analyzed the data and developed a theory for our high incarceration rates that squares with my experience as a criminal defense attorney: The district attorneys have simply become much more aggressive in their prosecutions. Professor Pfaff found that even though the number of people being arrested has decreased, the number of people being sent to prison is increasing. Professor Pfaff found in his analysis that since the mid-1990’s, district attorneys across the nation started filing more felony charges against defendants following an arrest. Whereas in the past, an arrestee might be charged with a misdemeanor, now he or she will often be charged with a felony. There are, for example, many crimes in California that can be charged as a misdemeanor or a felony (called wobblers). I rarely see a prosecutor charge one of these crimes as a misdemeanor. Another trend is to charge multiple felonies for one criminal act. While the underlying motive for this type of aggressive prosecution is often to encourage (or “force” might be a better term) a plea bargain, the end result is aggressive prosecution equals more felony convictions.

The National Research Council of the National Academies researched incarceration rates and concluded that the growth in incarceration rates in the United States, which it termed “internationally unique” can be attributed in part to the political climate and policy choices that have become increasingly punitive. In other words, the enactment of harsher sentencing laws both on the federal and state levels over the past few decades have been the contributing factor to our high incarceration rates. A corollary is the enactment in many states of what is often termed as the “three strikes law.” Since 1993, states have enacted laws that mandate longer prison sentences for repeat offenders.

There are other theories to explain why our incarceration rates are so high. Some point to social factors unique to the United States. Others blame our country’s lack of social services to help the mentally ill, substance abusers, and others likely to “fall” into crime. Still others cite the frail social networks in this country.

Whatever the reasons, our high incarceration rates should be at the top of the political agenda—the costs and burdens to society demand other answers. But the issue is too complex for sound-bites, indeed it is far too complex for this blog; entire books have been written on the subject. When people proclaim that the USA is “#1,” I doubt this is what they mean. It is a dubious distinction indeed.

William Weinberg is an experienced criminal defense attorney. If you have any questions regarding your criminal defense matter, please feel free to contact him to set up a confidential consultation without charge at or 949-474-8008.Prison Population