When you think about why people are convicted of a crime, it seems absurd to say, “because there are bad people” or “because people do bad things.” Such responses, by themselves, would be an over-simplification that overlooks key contributors. For example, some might commit crimes due to the inability to feed oneself or one’s family. It is also true that some people confess to crimes they didn’t commit, often just to get out of the criminal system. Some people did nothing wrong at all and were wrongfully convicted. Similarly, mass incarceration defies any singular explanation.
In Mass Incarceration Nation, former prosecutor and law professor, Jeffrey Bellin, seeks to describe the primary factors that have brought us to this place in history. In the last few decades, the United States has become a world leader in incarceration, such that prison systems in places like Texas and California rank among the largest systems in the world. While explanations about mass incarceration proliferate, Bellin identifies multiple contributions through a more nuanced approach to understanding the problem. While many might consider race and class as the driving factors, as this work shows, the picture is more complicated.
One of the first useful contributions Bellin makes is to define the term “mass incarceration.” He defines “mass incarceration” in historical terms, noting that we have never experienced the present volume or rate of incarceration. He also defines it in comparative terms. Put simply, when our punishment practices are compared to other countries, we are exceptional, even among the top carceral states. Bellin notes that our excess, both in the number of people incarcerated and the grossly disproportionate impact on minority communities, “raises important questions about the legitimacy of the law enforcement enterprise and…hints that there is more going on than crime and punishment.” (P. 14.)
Equally critical is the need to distinguish the terms “criminal justice system” and “criminal legal system.” While it might seem like semantics, there are important reasons to recognize the difference. For Bellin, there are two types of cases pouring into criminal courts. The first set of cases is epitomized by crimes that society has no choice but to address—homicide, sexual assault, and crimes that create serious public harm. The system that deals with such crimes should be designated the criminal justice system, particularly because there is an element of justice involved, including justice for the victims. In contrast are crimes that evolved from policy-making, which try to discourage certain behavior through criminal law. Despite the fact that these types of cases, epitomized by drug crimes, go through the same adjudicative process as homicides—they are really about enforcing the law, not justice. Hence, the criminal legal system is better suited to describe those types of laws designed to stop people from doing things, as opposed to malum in se type crimes, which are harmful because they result in injustice.
With these ideas in place, Bellin considers the “building blocks” of mass incarceration. One of these crucial blocks was the desire of elected officials to appear “tough on crime.” Republicans initiated this initial shift toward penal harshness coupled with “law and order” rhetoric, which Democrats soon matched and tried to outdo. The Democratic embrace of tough-on-crime politics culminated in the 1994 Omnibus Crime Bill, which was 356 pages long and added crimes, expanded punishment for existing crimes, added police and prison funding, and stripped Pell Grant funding from people in prison, among other provisions. Together Republicans and Democrats created “bipartisan severity,” which ratcheted up punishment and directly contributed to mass incarceration.
Other factors, including legislation, led to severe consequences. Of these was the shift from indeterminate sentencing to determinate sentences, which remade the system such that “people who were convicted of existing crimes served more prison time.” (P. 49.) While there was also legislation that encouraged arrests and prosecutions and created longer sentences, shifting to determinate sentencing stripped parole boards of the ability to release individuals who no longer posed a threat to society, a power that legislators now usurped.
The problem of race is inextricable from the question of mass incarceration. Bellin’s work is particularly important because it tempers the notion that race is the main or only culprit. Instead, he engages Michelle Alexander’s The New Jim Crow and offers a compelling account of how demographic differences in offenders for some offenses complicates the narrative. Black defendants are punished disproportionately for violent offenses, and Whites tend to be punished for non-violent offenses. These fact are important to recognize, since most criminal reform excludes violent crimes. Moreover, Bellin marshals data to show that across the country, particularly in places where Whites predominate, imprisonment of Whites was drastically increased as well, even if it occurred in states with smaller populations in general.
However, this is not to say that Bellin thinks Alexander’s work lacks explanatory force with respect to race. Rather, he sees race as more relevant to those crimes that make up the criminal legal system, where “officials enjoy the greatest discretion” and where “we would expect unwarranted bias to appear.” (P. 81.) Thus, a race-centered account fits best with Alexander’s focus on the War on Drugs that has overwhelming impacted Blacks above all. Bellin also invokes events in Ferguson, Missouri to give a sobering look at how “the more discretionary an aspect of law enforcement, the more we can expect to find the influence of conscious and unconscious prejudice.” (P. 82.) He cites a DOJ report on Ferguson, Missouri, which gives an extreme illustration of the point. As a town that struggled financially, Ferguson used the criminal system to generate revenue, turning the system into a “piggy bank” for the town, dramatically illustrating “how a small town’s application of race-neutral criminal laws could, in fact, re-create Jim Crow.” (P. 82.)
Although there are multiple persuasive pieces to the story Bellin tells, perhaps the most convincing is the final section entitled “The Mechanics of Mass Incarceration.” (P. 93.) In this part, the author explains the role police, prosecutors, and judges play in fueling the process. He uses the metaphor of a “prison road” that leads to prison to describe each actor’s role in the system, including more police making more arrests, prosecutors going after more low-level offenders, and judges seemingly unconcerned with diverting people from prison. These actors exacerbate other factors that contribute to mass incarceration.
Of all the points the author makes, the strongest is to show that “tough on crime” just doesn’t work; that is, deterrence doesn’t work. Using crime-funnel statistics, he demonstrates that only five percent (5%) of offenders of a particular crime will face incarceration. In other words, only five percent of robberies ever result in the offender’s incarceration. The evidence suggests the system is not tough on crime, but rather, just tough on those five percent.
The author proposes sweeping ideas to remedy the mass incarceration problem, the most crucial of which is to “(mostly) abolish the feds.” Bellin sees a great need to reduce federal law enforcement and prosecution. While the federal prison system is dwarfed by the number of people held in all state prisons, it is as important a contributor to mass incarceration as the largest state and is the “easiest place to see that Mass Incarceration is about policies, not crime.” (P. 170.) From the author’s view, the federal government must “abandon its decades-long focus on drugs, weapons, and criminal immigration enforcement.” (P. 173.)
Bellin proposes other measures to reduce prison populations. He believes that shrinking the infrastructure of the criminal legal system is the most obvious candidate, “to change the law so that violations of essentially regulatory rules do not lead to incarceration.” (P. 175.) Other potential for reform is to reduce admissions to incarceration and shorten stays. There are multiple mechanisms to reduce admissions including decreasing police activity, relying more on drug courts, decriminalizing drugs, and increasing prosecutorial dismissals, among others. Finally, the author sees two main levers for shortening prison stays including reducing the actual sentences announced by judges and increasing the frequency of early release. More specifically, since data show that individuals age out of crime, he proposes making twenty-one years the longest possible sentence noting, “long sentences serve a purpose. They assure people that society takes crimes seriously. But relative, not absolute, sentence length is the key to this symbolic exercise.” (P. 193.)
This book is a solid introduction for anyone wanting to see the big picture about mass incarceration and deserves to be widely read. It combines valuable statistics with common sense arguments to lay out a comprehensive account of this complex process. Despite its nuance and academic structure, the work is accessible and written in clear language, which makes it as useful for law students and stakeholders in the criminal system as it is interesting for the lay reader.
