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Who is Responsible for America's Swollen Prison Population?--Stuntz

By David Skeel and Bill Stuntz

Pretty much everyone?Republican or Democrat, right or left?familiar with America?s criminal justice system agrees that our prison population is far too large. The data are familiar: Adjusted for population, imprisonment has quintupled in the last thirty-five years. As of 2001 (America?s prison population has grown since then), the average incarceration rate in EU countries was 87 per 100,000 population. In the U.S., the comparable figure was nearly 700. (Link here) The black incarceration rate is several times higher than that.

Those numbers represent a social catastrophe. Who made it so? Who is responsible for the now-famous ?punitive turn? in American criminal justice?

The best answer is probably: everyone in a position of political or legal authority over the last thirty years. But I?m pretty sure one common answer?we have a huge, disproportionately black prison population primarily because of the policy choices made by conservative Republicans like Ronald Reagan and George W. Bush?is wrong. The political right plainly contributed, and contributed a lot, to the generation-long run-up in our prison population. But the political left probably contributed even more.

One way to measure the difference is to look at change in state imprisonment rates during Democratic and Republican governorships. This summer, I?m going to try to record those data (the relevant numbers are easy to find), and see what correlations emerge when all the data are assembled. For now, all I have are scattered examples. Still, I?m finding a lot of examples like these?enough, I think, to suggest a pattern:

? Arizona: From 1975 to 1991, Arizona was governed by Democrats, save for Evan Mecham?s single year in office. Subtracting that year, Arizona?s imprisonment rate rose 218% during the relevant period. Nationwide, imprisonment rose 160% during the same period. From 1991 to 2003, the state was governed by Republicans. During those twelve years, the state?s imprisonment rate rose 33%, compared to a national average of 55%.

? Connecticut: From 1975 to 1991, Connecticut was governed by Democrats, and the state?s imprisonment rate rose a staggering 346%, compared to a national average of 174%. From 1991-95, Independent (and former Republican) Lowell Weicker held the governor?s chair; Republicans have held it since then. Since 1991, Connecticut?s imprisonment rate has risen 49%, compared to an average increase of 62% nationwide.

? Missouri: During Republican John Ashcroft?s governorship (1985-93), the state?s imprisonment rate rose 59%; nationwide, imprisonment rose 75% during those eight years. From 1993 to 2005, Democrats held Missouri?s governorship. During those twelve years, imprisonment rose 72%, compared to a national average increase of 40%.

? Ohio: Under Democratic Governor Dick Celeste (1983-91), Ohio?s imprisonment rate rose 109%, compared to a nationwide average of 73%. Under Republicans George Voinovich and Bob Taft, who governed the state for the next sixteen years, Ohio?s imprisonment rate rose 32%; the national average for those years was a 62% increase.

? Texas: Under Republican Governors Bill Clements (1987-91) and George W. Bush (1995-2000), the state?s imprisonment rate rose 29% and 8%, respectively, compared to national average increases of 36% and 16%. Under current Republican Governor Rick Perry (2000-present), Texas? imprisonment rate has fallen 6%; nationwide, imprisonment has risen 5% during Perry?s time in office. During Democrat Ann Richards? administration (1991-95), the state?s imprisonment rate rose 128%, compared to an average increase of 33% nationwide.

? Virginia: A series of Democratic governors served from 1982 to 1994. During those twelve years, Virginia?s imprisonment rate rose 129%?the same as the national average. The following eight years saw two Republican administrations, during which imprisonment rose 13%, compared to a national average increase of 22%. The difference seems starker if you look at Doug Wilder?s (1990-94) and George Allen?s (1994-98) governorships. Wilder, America?s first elected black governor, presided over an imprisonment increase of 46%; the national average during those four years was a 33% increase. Virginia?s imprisonment rate fell 2% during Allen?s governorship; nationwide, imprisonment rose 19% during the same period.

All the figures cited above are calculated based on data in the Sourcebook of Criminal Justice Statistics?Online, available here, and in previous hard-copy volumes of the Sourcebook.

There are more examples like these?along with some counterexamples, though I haven?t found as many of those. The numbers cited above might turn out to be an aberration; I won?t know until I go through the relevant data for all fifty states. For now, suppose they aren?t aberrational; suppose the above examples illustrate a pattern. Why might imprisonment rise more under Democrats than under Republicans? The answer, I think, lies in two famous episodes in presidential campaigns in the recent past.

The elder George Bush beat Michael Dukakis, at least in part, on the strength of Willie Horton?s crime spree; Horton was a black inmate who was furloughed from a Massachusetts prison on Dukakis? watch, and who committed armed robbery and rape while released. Four years later, Bill Clinton was determined not to let the same thing happen to him. So, shortly before the New Hampshire primary, Clinton returned to Arkansas to supervise the execution of a mentally retarded black inmate named Ricky Ray Rector. The Rector execution inoculated Clinton on crime, showed his willingness to stand tough against criminals in general and black criminals in particular. It worked: Clinton finished a close second in New Hampshire, and went on to win the White House.

Notice the nature of that political exchange. For Republicans to win votes on crime, all they need do is talk about it: the Willie Horton ad that helped turn the 1988 election is a prime example. No Clinton-style inoculation is needed. For Democrats to win those same votes, they need to take the kind of action that shows their toughness: hence Rector?s execution. Rising imprisonment has been the price Democrats have had to pay in order to win power and enact the policy changes they really want. At least, that story seems to fit the scattered examples listed above.

If the story is true, two political facts are key. First, black voters are solidly Democratic; politicians running for state and national office need not and do not compete for their votes. In the 1950s and 1960s, when black voters outside the South were swing voters?Richard Nixon won a third of the black vote in 1960, and Eisenhower won more than that in 1956?imprisonment rates fell, and fell sharply. (Not so in the South, where blacks were denied the right to vote until the late 1960s.) Imprisonment began rising only a few years after black voting patterns changed. Second, the votes of blue-collar whites are up for grabs; the two parties must compete for them, as this year?s presidential campaign reminds us. Rising imprisonment, and especially rising black imprisonment, might fairly be seen as the product of that competition.

No doubt one might draw many lessons from this sad story. Here?s mine: Criminal justice works badly when the voters whose preferences govern the system are not the voters who feel the effects of crime and punishment most directly. Over the last thirty-five years, our justice system has been governed primarily by the votes of suburban and small-town whites. But crime and punishment alike are heavily concentrated in poor city neighborhoods, and especially in black neighborhoods. Democracy works best when those making the relevant choices bear the cost of those choices. The politics of crime in the United States doesn?t meet that standard: choices are made by some, and costs are borne by others. No wonder those costs are so staggeringly high.

Full post as published by Less than the Least on April 26, 2008 (boomark / email).