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Tuesday, May 21, 2013

The American prison system

by Massimo Pigliucci
One of the things that has always struck me as different — and not in a good way — in the United States compared to other Western countries is the way Americans think (and act) about crime, particularly their prison system. Recently, my colleagues Ken Taylor (Stanford) and John Perry (University of California-Riverside) have tackled the issue on their wonderful podcast, Philosophy Talk (which comes with an associated blog, the tagline of which is cogito, ergo blog), causing me to ponder some more disturbing thoughts about it.
There are two issues that Taylor and Perry address, and which I wish to briefly discuss in turn: the basic statistics about the American prison system when compared to other countries (and what that implies), and the more fundamental question of what, exactly, we wish to accomplish by imprisoning people — a question you would think would be at the forefront of public discussions, but that instead appears to be nowhere in sight, probably because everyone (wrongly) assumes that the answer is obvious, one of those things that only philosophers and similarly misguided intellectual eggheads bother with.
So, the stats: at last count cited by Taylor and Perry (2008), 2.5 million Americans were in prison, a number to be compared with 1.5 million in China, particularly once we account for the fact that the Chinese population is four times as large as that of the US! In the Europe Union, a more proper comparison with the United States because of its Western style democracies, the total number of inmates is only 600,000, and yet the 27 nations of the European Union count 200 million more inhabitants than the US. Taylor and Perry continue: between 1987 and 2007 the cost of incarceration for American States has increased by 127% (adjusted for inflation), to a whopping $50 billion (in 2007). And then, of course, there are the ethnicity-specific statistics, according to which African Americans account for 47% of the inmate population, against only 12% of the total population, with Latinos trailing a bit behind (20% of inmates, 13% of the population). The implication, of course, being that whites are less represented than one would expect from their frequency in the general population.
If these numbers don’t disturb you, you might want to pay a visit to your family doctor. To begin with, why exactly are so many more people incarcerated in the US than in all the European Union countries combined? Well, one of the answers could be that those pinko Europeans are soft on crime, which not only is silly on the face of it, but also raises the question of why there are so many violent criminals in the US. Except of course for the additional fact that a large number of US inmates are there for non-violent crimes (500,000 just for drug use, about the same as the total European population of inmates). Either American society is far more violent than its European counterpart, or American politicians are far too happy to lock people away to look tough with their constituencies (which implies that Americans are far too inclined to imprison their fellow citizens). Or both, obviously.
The ethnic stats are more complex, and far more controversial. The straightforward liberal reading, of course, is that here are numbers that directly quantify the amount of racism in our society. The equivalently simplistic ultra-conservative reading is that, see, the stats confirm that all those differently colored people really are dangerous. The reality is likely to be somewhere in the complex middle. It seems obvious that Latinos and African Americans are indeed more likely to commit crimes than their simple proportional representation in the general population would predict. The question is why. Since I don’t subscribe to the (truly racist and scientifically unfounded) idea that different ethnicities carry different genes for violent behavior (or even for factors predisposing them to crime in general), then the conclusion would have to be that minorities in the United States still suffer from a number of disadvantages that the rest of us insist in not addressing, such as poverty, lower quality of education, lower quality of healthcare, less availability of jobs, and inferior housing. All of which are very good predictors of crime rates.
Then there is the second — more philosophical — issue raised by Taylor and Perry: what are prisons for? They quickly run through five reasons why we may want to incarcerate people: retribution, crime deterrence, rehabilitation, restitution to the victims, or social denunciation. In the first case, we should set up the system so that criminal are justly punished for what they did, though of course that raises the exceedingly thorny question of what, exactly, constitutes just punishment. In the second case, however, we are concerned with affecting the criminal’s cost-benefit analysis, so to decrease the chances that he (most criminals, particularly of the violent type, are men) will not in fact engage in the crime to begin with. In the case of rehabilitation, as Taylor and Perry point out, one cannot even properly talk of punishment, but rather of an attempt to change the ways of the individual and turn him into a productive member of society. Restitution to the victims is yet another concept possibly informing how and why we imprison people, where the goal is to set up conditions that make it possible for the criminal to compensate (according to whatever parameters) the victim or the victim's family. And finally, the social denunciation approach says that we imprison people because we wish to send the message that certain kinds of behavior are unacceptable in our society.
Naturally, we may wish to achieve more than one of these goals, but the point is that we ought to be clear on which ones, on how to prioritize them (is retribution more important than deterrence?), and especially on how to go about maximizing the likelihood of the intended outcome(s). But we don’t. The public and politicians don’t seem to make these (not so subtle) distinctions most of the time, let alone engage in serious reflection about what they mean and how they can be pursued. This is bizarre, considering that the prison system is dramatically affecting the lives of literally millions of people, many of whom arguably shouldn’t be there in the first place, as well as costing the rest of us an increasingly large bundle of money, at a time when cries of cutting the budget are all the rage. And they say philosophy is useless.


  1. I like the questions this post raises. Honestly, I think the answer to how we should run our prison systems is pretty obvious. It's being held back by people who believe that people should just be punished for no particular end. But I think it's clear that prisons exist to make both society as a whole and people individually happier and more successful. It's an empirical question what sort of prison would best accomplish this end. Luckily for us, experiments have already been done and the data is in! All we need to do is look to similar countries that have a drastically lower crime rate AND a higher average happiness and do what they do. These countries are not exotic creatures. There are several we could model our system on. I'm honestly confused why nobody is trying to make this happen.

  2. Ugh one more reason to move to Europe. As a person of color in the States, I see the cops being much harder on poor minorities and poor whites. It's disheartening

  3. The crime rate has dropped dramaticallyin the U.S. as American's began to take James Q. Wilson seriously about the benefits of keeping criminals locked up.

    Your comments are the amateur hour, Massimo, not "profound", just simple minded.

    People HAVE been clear. America has returned to a public safety rational and a justice rational, after the disasters of the 1960s.

    You seem not to know any of this history of literature.

    [The drug issue is a special topic -- complexly interrelated with the crime problem. Yes, decriminalization of drugs would change everything. Have a plausible plan for changing public opinion and the law. No, you don't.]

  4. Fred, actually, incarceration rate accounts only for a fraction of the decrease in crime rate: http://goo.gl/lKsXB

    Talk about amateurish-pseudoprofound ignorance of the literature.

  5. I'd be interested to see how much of an effect "being in the system" has on the tendency to commit violent crimes later. My intuition would be that most people start with nonviolent crimes (such as drug possession), which our penal system treats with jail time instead of rehabilitation. They then become labeled "criminals" and have a hard time finding legitimate employment, etc. and wind up further disconnected from society than they were to begin with, making further and more serious crime seem like a better option to them.

    I don't know of any studies that approach this issue, but if could point to something, I'd appreciate it.

  6. Thanks for bringing more attention to this issue, Massimo. I think it dovetails nicely with your earlier "pick" on inequality (e.g. see here) and the discussion that it provoked.

    On a slight tangent, I'm aware that there are critics (both internal and external) who charge that it's not the role of academia to champion social causes (e.g. Stanley Fish comes to mind) - to which I reply: not exclusively and not by definition. But if an individual (academic or otherwise) has the time and motivation to do so, I'm really glad when they follow through (especially if I agree with them :-)) - provided that their conclusion follows from an earnest study of the relevant facts.

  7. Good question. Here is one interesting reference: http://goo.gl/d2KpQ. Another interesting link: http://goo.gl/Q1wHC. And a third one: http://goo.gl/0dJ57.

  8. The issue has many sides.
    One glaring omission in Massimo's post is the relative crime rates of the US vis a vis other countries. Prison rates should be put in relation to crime rates. Then again, even if two countries have the same crime incidence rates, prison rates would depend also on the effectiveness of the police and justice system: perhaps more crimes are committed in Nigeria or Mexico than in the US, but the authorities are far less effective in finding suspects and convicting them.
    Regarding the retribution motive: it is certainly an element in US culture, perhaps more visible there than in other countries. However, the liberal principles of modern criminal law, in force in Western countries since the French revolution, assert that punishment is not the purpose of imprisonment. I am currently in Argentina, where the constitution (dating back to 1853) states that "Prisons will be healthy and clean, for security and not punishment of inmates" (so much for legal principles: prisons here are certainly healthy or clean, but that's another question). The main purpose of prisons in Western legal philosophy is keeping criminals off the streets, and also crime deterrence (the latter purpose often defeated by the fact that prisons are very effective crime-training schools).
    Deterrence by the threat of imprisonment (or worse) is, in my view, not very effective: the US are the only Western country with a death penalty, and that does not deter crime by much. The threat of prison deters far less.
    The main factor in America's high prison rates are in my view:
    1. Higher crime rates (related in turn to lower social cohesion; callous social policies towards the poor and the marginalized; racial prejudice not only in court by in ordinary life, thus pushing minorities towards crime; and other similar factors).
    2. Excessive prison terms for non very significant crimes (the example of drug use, cited by Massimo, is an instance of this factor, to be distinguished from illegal drugs trade).
    3. The absurd facility to get deadly weapons, legal or illegal. Even illegal arms are more easily accessible in the US than in Canada, Europe or Japan, due to the large and easygoing legal market existing in America. US weapons are also flowing into the hands of foreign criminals such as Mexican drug traffickers, thus "exporting" the right to bear arms (illegally) to neighboring countries.

    The cost of the prison system in America is high, in part, because the unit cost per inmate is higher, and not only because of a larger inmate population. That cost is partly inflated by the enormous cost of prisoners in death row (few but very expensive) and partly, I suspect, by a non competitive market (just like health care costs are much more expensive in the US for equal quality than in other developed countries). On the other hand, prisons are rather hellish in the US, in spite of their great cost, compared with the less expensive but more humane prisons in other countries such as Sweden.

  9. Good post. The America prison system is big business, and the people who suffer are the dispossessed, so nobody cares. The liberal view that racism is involved in the disparities is much, much closer to the truth in my opinion than the conservative one, which is just based on pure prejudice. As you point out, poverty and other social disadvantages such as lack of education weigh heavily on crime statistics, but these disadvantages are very often linked to race to begin with, historically but also in this day and age. Here is a good study: http://tinyurl.com/3wd57k6, from which I copy this excerpt: “Government health surveys find that young whites use marijuana at higher rates than young blacks and Latinos. But the NYPD arrests blacks for marijuana possession at seven times the rate of whites and Latinos at nearly four times the rate of whites” NPR had a good story on this: http://tinyurl.com/3gnjytr a few weeks ago. Many people are locked up for minor drug offenses, and this is insane. Oyster Monkey brings a good point about labeling people “criminal” for minor offenses and starting a vicious circle where they only option for them is to commit more crimes.

  10. On the issue of non-violent drug offenders, people seem to be assuming the deterrence, rehab, and denunciation reasons for imprisonment.

    Assuming, for the sake of argument, that it's ok to imprison someone who hasn't violated anyone else's person or property, drug criminalization has no merit. There is no evidence that it deters use in the first place or rehabs users. AS far as denunciation, ever heard of a billboard or TV commercial?

    Where do you stand on the issue of drug criminalizaion, Massimo?

  11. Massimo,

    You say the literature suggests the increase in incarceration rate accounts for only a fraction of the decrease in crime, but your link goes to a non peer reviewed report produced by a nonprofit engaged in political advocacy.

    A good reference to the literature would refer an academic paper in a peer reviewed journal, the more prestigious the better. Moreover, surveys are better sources, since there are usually multiple papers expressing different points of view, some which have been later discredited by others; its usually not too hard to cherry-pick sources.

    Along these lines, I’d note that Steven Levitt in his famous survey

    Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not, Journal of Economic Perspectives, vol. 18, no. 1, pp. 163-190, 2004

    argues that approximately one third of the decline in crime in the 1990s can be attributed to the increase in the incarceration rate. So the link between increase in incarceration and decrease in crime seems reasonably solid.

  12. The problem is that the very people who most want to cut the budget are the very people that don't want to decriminalize the use of drugs - the Christian right and related loonies, 'tarians and tea partians.
    Philosophy is "not useless," but the power is not in the people we have here to use it.

  13. Alex, the stat you quote is the same (25%, to be precise) cited in the link I gave. Solid yes, but far from accounting for the whole shebang, no? And of course that leaves aside the crucial question of why the US has such a high level of criminality compared to other western nations.

    Neal, I'm absolutely in favor of decriminalizing recreational drugs. The issue with heavier drugs is more complicated, even though we are still talking about a (almost) victimless crime.

  14. Nobody has yet pointed out the most obvious effect that prohibition inevitably has on crime. Criminal activity is organized to get around it and supply the prohibited material and needy individuals then steal the funds to pay the new suppliers.
    Cut to the chase and it's war among the suppliers to compete for the lucrative business from those consumers who then steal even more of the funds to pay them.
    And then there are people like me who've made a good living off of this everything that's old is new again dynamic of crime and punisihment.

  15. Massimo,

    1. Just to clarify some minor details: the stat I quoted is not 25%; I quoted Levitt's estimates which are that crime has been reduced by around one third in the 90s due to increased incarceration. The estimate of 25% quoted in the report you cite is only for violent crime and comes from a book chapter by W. Spelman (which, as I understand it, means its probably not peer reviewed).

    2. I'd submit to you its not fair to describe one third of the decrease as "only a fraction of the decrease." While technically one third is a fraction like any other rational number, "only a fraction" makes it sounds like the effect is considerably smaller than it really is.

  16. Also unlike most of Europe we in the US have an adversarial system of justice, where all of us in the business know who the players are but the rules of evidence that supposedly protect the innocent are such that we must first arrest their unprotected victims before we can hope to get around the protections afforded to their victimizers. The irony is that most of the criminals that should be jailed are still out there, and those that shouldn't be but are vastly outnumber them.

  17. alex, nobody is disputing that incarceration has an effect on crime rates. But the fact remains that, even according to your own sources, a large amount of the variation in crime rate is not affected by incarceration rates. And, again, this leaves completely unaccounted for why the US is the western democracy with the highest crime rate. Could it be that the kind of societal hills that cause crime to begin with are much worse here?

  18. With some possible exceptions (viz. heroin & cocaine), I'm all for drug legalization (and regulation). But in terms of reducing incarceration rates in the USA, what are we talking? 20% (based on the 500,000 figure cited above)? If so, then we're still talking 500,000 more than China (!)

    I don't claim to know with any certainty what makes the US so different from other nations. But if we look within the USA, we find significant regional differences in incarceration rates, with the Northeast having the lowest rate and the South the highest. This makes a red-state/blue-state comparison very tempting, but, even moreso for me (as a Lakoff fan), a comparison with the different parenting/moral-value frameworks (i.e. Strict Father vs. Nurturing Parent) that underlie those opposing political alliances and the policies that follow from each of them.

  19. On the below, so, your conclusion is that the disproportionately large number of prisoners of color is caused by white supremacy, complexly maybe and not simply , but white supremacy nonetheless. Why isn't white supremacy a philosophical issue ?



  20. cb, white supremacy (or, actually, racism) obviously is a philosophical (as well as a sociological) issue. What's your point?

  21. 1- retribution
    2- crime deterrence
    3- rehabilitation
    4- restitution to the victims
    5- social denunciation

    To me, from the post (I haven't read the original article), it sounds like 1 and 4 are pretty much the same thing (with 4 a special case of 1), as also 2 and 5 are aspects of the same thing (now with 2 a subset of 5). Or are there more things distinguishing these 5 points?

    I believe that, ideally, rehabilitation should be the goal of the system. But I don't know of any system that works for that. It's all about revenge, just a big cage to punish people (retribution, what "they deserve", that's all we hear when there is a crime).

  22. Just came to mind: like the drug users, why is Bernie Madoff in jail, for example?

    Wouldn't it be just as effective to take all his money/wealth (restitution), and forbid him from ever working on financial/banking/the like again (deterrence, stopping him from causing any more harm) -- maybe sentencing him to never make more than 20,000 dollars a year? Would that be cruel and unusual punishment, for a millionaire? :-)

  23. Well, it is fairly evident that a high incarceration rate at least cannot be necessary to achieve a lower crime rate - simply because all other industrialized countries achieve the latter without the former. Duh. So at a minimum, even while ignoring the fact that the US still has much more violent crime than Europe even after locking up this astonishingly high number of people, Fred et al would have to explain why this wasteful way of dealing with crime is preferable to the more efficient European one.

    As for the conclusion: Germany manages to have that public discussion about punishment vs. deterrence vs. re-socialization just fine, without philosophers being involved in any way. It just seems like an obvious question to ask.

  24. Not to derail the conversation, but I just wanted to state how great a show Philosophy Talk is and how it does a lot to have laymen think about philosophical issues. I am disappointed in myself that I live in California and have yet to see a live recording.

  25. Alex, it amazes me that even when we agree you just have to put in a diss at philosophy. First off, these are philosophical issues, regardless of the fact that non-philosophers can talk about them too. Indeed, that is a major point of philosophy at it's best. Second, you seem to neglect that a lot of currently commonsensical ideas have permeated through society from a philosophical origin, the American Constitution's debt to the Enlightnment and western democracies' debt to Mill's On Liberty being obvious examples.

  26. I do not put in a diss at philosophy, which I find a very valuable and useful enterprise; I just wonder at all the absolutely trivial things you call philosophy while insisting that a potentially similarly all-encompassing term be carefully fenced in until it only applies to one very formalized type of activity undertaken by a tiny of fraction of the population while wearing lab coats.

    Sure, stopping for a moment and thinking about why you are actually doing something can easily be called philosophy, even in the face of the fact that Jane and Joe Average would probably say that philosophy is a very formalized type of activity undertaken by a tiny fraction of the population while wearing glasses and turtleneck sweaters. Agreed. Just as easily, actually, as figuring out why the car makes these weird noises since last Monday can be called science. No more, no less.

    If you see these remarks as aggressive, I have no idea where you get that. For all it is worth, here is one that is, in contrast to the ones above, really antagonistic to your treatment of this topic as philosophical:

    It is an entirely empirical issue to find out whether re-socialization, deterrence or locking people up for ever actually work to reduce crime, and to what degree.

  27. I'm actually quite pleased with this discussion. I think that this is the sort of question which is too-frequently neglected, at least in the U.S. And I definitely get a sense that a knee-jerk desire for retribution is in play (which I admit can be useful, but which ultimately I would not accept as a legitimate form of moral reasoning).

  28. Alex, for crying out loud. First, surely you are aware that *any* discipline these days has a formal, specialized academic component, as well as areas that appeal to or are approachable by the general public. And no, I'm not going to rehash once again the "what is science" discussion.

    Second, yes, obviously it is an empirical question whether incarceration decreases crime, what is not an empirical question is what is the purpose of incarceration, how we should weigh the difference criteria and values that come into conflict and so on. But I'm sure those are all trivial discussions that can be settled by a seven-year old over breakfast.

  29. Considering that it is in the drug kingpin's financial interest to keep recreational drugs illegal (and expensive) I have to wonder just how much they contribute to the campaigns of 'tough on crime' political candidates.

    Personally I am all for legalization. People can perform whatever personal psycho-chemical experiments they wish on themselves in the comfort of their own homes (and realistically they will anyway), naturally if they drive impaired by those chemicals that involves other people and is quite a different matter. The self driving cars will probably help out with that.

  30. I think this is related to something I noticed recently from the National Highway Traffic Safety Administration: their seatbelt campaign is not based on a "you should do this because it's good for you" mentality, but rather "do this or you're in trouble" (i.e. "click-it or ticket"). This seems to bread the kind of fear of authority that ultimately leads to the rebellion and acting out that fills our prisons.

  31. To the extent that they are harmful, wouldn't the negative impacts of what is now illegal drug use be better dealt with as a public health issue? But I suppose that would require that we deal with health care in a more rational manner.

    Another recent related issue is California's prison overcrowding case just heard before the U.S. Supreme Court. If you have followed this you will know that the problem is exacerbated by that states "three strikes and you're out" law. Nice how they have replaced the deliberations of judges in sentencing for the rules of baseball.

    Massimo, I would like to get your take on the book the Spirit Level which finds that social and economic inequality is positively correlated with all kinds of social ills and malfunctioning. There some definite problems with their book, but they seem to be on to something also.

  32. It would be nice if someone did a survey of the US population, asking them to rate the relative importance of these 5 rationales for prison. That would be very useful data to have in discussions of criminal justice reform.

  33. I'm surprised that nobody's added a 6th possible reason:

    Protection: to remove potentially dangerous individuals from society

  34. How about a survey on the rationale for criminalizing victims? Or on how and when we should be doing God's work here in the name of justice.

  35. Baron - I've always wondered why it is that omnipotent beings can't seem to do their own damned work.

  36. "Those who help themselves help God" seems to be the moral of our story.

    Also find cheap labour behind cell door #6.

  37. I prefer the American system to the European. I think it is still cheaper to keep criminal inside a prison than outside as to prevent them from committing crime, you have to feed them up. The demands ever increasing. Furthermore, these elements in considerable numbers kept outside prison allows them to manipulate politics. I wonder if it is not better to rely on “politicians [that] are far too happy to lock people away to look tough with their constituencies” than on those that need the votes of potential criminals to stay in power.

    The full comment including charts can be read on my website (http://fauceir.wordpress.com/2011/05/28/legal-and-penal-systems-the-fauceir-stance/).

  38. I am very interested in the "why" in the high level of violent crime in the U.S. I wonder about the availability of guns, the history of "race," societal attitudes, laws/law enforcement, etc and how all of these contribute. Just having a gun alone in a given circumstance can shift the equation to a more violent situation. Countries with lower violent crime they tend to be more homogenous and have less availability of guns, but there are a variety of other attributes. Some are still relatively strict with law enforcement, and some are not. How about how a given culture values individualism versus "the group?" Does this enter the equation?

    I agree with Brian that one of goals is "Protection: to remove potentially dangerous individuals from society" and rehabilitation should be a subset of this.

  39. The U.S. has but 5% of the worlds population yet houses 25% of its prisoners. Combine the obscenely profitable and increasingly privatized Prison Industrial Complex with the U.S. being the most unequal industrialized nation in the world with the greatest disparity of income...and it is small wonder that the American Gulag system is the embarrassment of all civilized nations.

  40. And yet your huddled masses yearning to breathe free keep on a-comin'

  41. Massimo, Taylor/Perry, and you, leave two questions unasked.

    First, IS THERE such a thing as "justice"? With Walter Kaufmann, in "Without Guilt and Justice," I say no. We may get "reasonably close," but not THAT close to an nonexistent, indefinable, and ... indefensible because of that ... Platonic idea.

    Second, per the five uses of incarceration (other than ones not mentioned, like trying to make use feel good about ourselves) ... what happens when two, or more, conflict? This isn't just an issue of priorities, as to which one to stress more, but that, in some cases, "techniques" or other parts of incarceration may leave different of these uses diametrically opposed in an ultimately unresolvable way.

    Third, where does prohibition of cruel and inhumane punishment come in, on the philosophical side. Take a murder conviction sentence. Maybe life in prison, no chance of parole, with 23 hours of each day spent in solitary in a Federal Supermax prison, is more inhumane — by a prisoner's own definition — than an execution.

    Good issue, but there's a lot more to be explored here.

  42. Gadfly,

    reasonably close is good enough in the real world. When two or more criteria come into conflict we have to reflect on what gets precedence and why. As for the post being incomplete, it's a blog post, man, it's just a bit of conversation, a starting point.

  43. "And yet your huddled masses yearning to breathe free keep on a-comin'" Baron

    I'm in awe of propaganda. This shouldn't be surprising seeing that so many view the military dictatorship which is the U.S. as being "free"....when in truth it is nothing more than the illusion of freedom...of democracy... where there is none. That U.S. political/corporate policies, actions, interventions, and crimes against other nations make it impossible for people of those nations to support their families...forcing them to immigrate to the U.S. is a given.

    When you invade, destabilize, and otherwise destroy a persons country...don't be surprised to find them sleeping under your eaves when it rains.

    The U.S. Prison Industrial Complex is a testament to how "free" the people in the U.S. really are.

  44. Doesn't it count for something that we give them three squares and a cot?

  45. The questions about the US prison system go to the heart of many issues facing the US.

    The basic problem in the US is that the rich think the poor are lazy and dangerous and need to be subdued with harsh sentencing laws.

    The rich also think public education is to be whittled away to nothing or turned into another business that pays for itself.

    Millionaires give themselves handsome pay rises equivalent to 100 or a 1000 times what the people at the lower end scale earn.
    Yet if anyone dare ask for a few dollars more they are derided as anti american or commies.

    So,the american capitalists can take a leaf from their favorite book
    ‘Ye reap what ye sow’

  46. horrible country.... techincally if you do the math, 1 outta every 99 Americans are in prison right now.... almost like a massive prison camp = going on the way of north korea!

    and the sentences people get are ridiculous, you can spend entire DECADES for something stupid like smoking pot!!!

    I am so glad I dont live in the USA!!