A Blueprint for a Safer, Saner Society

Prisoners of Politics: Breaking the Cycle of Mass Incarceration by Rachel Elise Barkow; Belknap Press, 304 pp., $35

A prison inmate can’t commit a crime on the outside, so the longer the sentence, the safer we are, right? That is a tenet of the law-and-order movement, which arose in reaction to violent protests in American cities in the 1960s and has dictated criminal-justice policy for 50 years.

But as Rachel Elise Barkow, a widely respected legal scholar at New York University School of Law and an expert in the administration of criminal justice, explains in her important new book, “longer sentences can actually threaten public safety.” Rather than preventing future crime, they seem to cause more crime once prisoners are released. In effect, longer sentences make prisoners less concerned about the threat of future imprisonment and raise the chances that they will break the law again based on coaching from other prisoners. Barkow summarizes “a growing body of research showing that increases in incarceration” are “correlated with increases in crime rates.”

Prisoners have an exceedingly hard time managing when they get out. A U.S. Bureau of Justice Statistics study of 405,000 prisoners in 30 states who were released in 2005 found that about two-thirds of them were arrested again within three years and about three-fourths within five years. The longer the sentence, the worse the rate of recidivism. Barkow writes, “One study using data from Texas found that each additional year of a prison sentence caused a 4–7% increase in an individual’s recidivism rate once he or she was released.” Since more than 95 percent of prisoners are eventually released—about 600,000 each year—American prisons are not protectors of law and order, as intended. Instead, they are often criminogenic: with a time lag, they cause the kinds of behavior they are supposed to prevent.

In the past half century, the rate of imprisonment in the United States massively increased, from around 100 prisoners per 100,000 people in state and federal prisons to around 450 prisoners per 100,000 people. So did the number of prisoners, from around 200,000 to more than 1.5 million. This expansion and the establishment of the prison-to-prison pipeline is the result of “penal populism.” Barkow describes it as “a pathological political process that caters to the public’s fears and emotions without any institutional safeguards or checks for rationality to make sure these policies work or are the best approach to combating crime.” One out of every three adults in the country has a criminal record.

Few Americans would choose to be the ones to set limits on air pollutants, Barkow argues, because they would recognize that the scientific nature of the task requires knowledge that only experts have. Yet that is how the country makes decisions “about public safety and crime control,” she writes, “based on emotions and the gut reactions of laypeople.”

Irrationality prevails at every stage, beginning with the definition of crimes and the assignment of punishments. Legislators have embraced “lumpy” laws, which lump together crimes of widely varying seriousness and degrees of blameworthiness. Almost all federal and state criminal laws about selling drugs, for example, base punishment on the type and amount of the drug, not on the individual’s role. These laws treat small-time street sellers the same as major dealers, who reap the profit and are responsible for the level of dangerousness of the drugs. In federal prisons, for example, about one-sixth of prisoners are in for drug-trafficking, mostly people convicted of selling an ounce or less of a drug.

Legislators who pass these laws play on fear. So, in a different way, do prosecutors who coerce defendants into pleading guilty by threatening to charge them with harsher crimes carrying even longer sentences. The United States now has a plea-bargain system of justice: 97 percent of federal cases and 94 percent of state cases end in plea deals. Prosecutors, who have helped write the laws, enforced them, and insisted on the fairness of unfair deals, Barkow writes, “combine legislative, executive, and judicial powers under one roof—the very definition of tyranny that the separation of powers,” supposedly at the heart of American governance, “was designed to guard against.”

The best solution to these problems would include taking politics out of the system as much as possible, by ending the widespread practice of electing prosecutors and judges—something unlikely to happen soon. Prosecutors make up a powerful lobby that would push back hard against this idea. About 90 percent of state judges are elected, and the special interests and campaign financiers to whom they are often beholden would lobby hard against ending judicial elections.

The first step in Barkow’s alternative, already being pursued, is to elect progressive prosecutors “committed to more rational, data-driven decision-making instead of stale rhetoric about long sentences.” The late William J. Stuntz argued persuasively for this strategy in 2011 in The Collapse of American Criminal Justice, and Emily Bazelon reports on its positive effects in her new book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. The second step is to stop picking “judges who are overwhelmingly former prosecutors, making them particularly ill-suited to provide the meaningful second look of prosecutorial decision-making that is necessary to bring rationality to the system.”

The third step—Barkow’s most ambitious idea—is to create Progressive Era-like agencies “designed to withstand the political pressures they will inevitably face to adopt superficially tough, but actually ineffective, measures to address crime.” Their mission would be to use empirical data to shape criminal-justice policy with the goal of maximizing public safety. A model is the U.S. Sentencing Commission, on which Barkow served for five years. She writes, for example, “It makes no sense for a state to spend money on prisons but not subsidize other options that might be more effective and cost less, like drug treatment.” Punishment is not enough—the United States needs to do much more to rehabilitate prisoners and help them find a productive role in society.

This being the Trump era, Barkow closes her book with this caveat: “To the extent members of the public are out for short-term emotional fulfillment even if it comes at a long-term cost to their own safety, nothing here will overcome that.” Making criminal law more reasonable is a stiff challenge in this era of fear-mongering politics. The challenge is even stiffer with the fear-mongering tied to fact-mocking. The spotlight Barkow shines on the facts and their implications will surely stir denial, but if the country does not meet the challenge, all of us will be less safe.