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The “grand social experiment” that is hyper-incarceration in the United States is coming to an end, and we need to be ready to reinvest correctional resources in more community-oriented programs. That, in a nutshell, is the message of The Punishment Imperative: The Rise and Failure of Mass Incarceration in America, by Todd Clear and Natasha Frost, well-known criminologists who have been writing about punishment practices for decades. Many of the general points made in this book will be familiar to criminal justice lawyers and professors who have paid any attention to the literature on punishment. But the book’s 200 pages of detail and its prescriptions will be intriguing even to those who know the field.

Here is the authors’ summary of research about the effects of this country’s four-decade obsession with putting increasing numbers of people behind bars for increasingly longer periods of time (Pp. 152–53):

  • “Longer prison sentences do not deter the people who receive them from crime; there is almost no relationship between the length of a prison stay and the likelihood of recidivism.”
  • “Going to prison does not deter; people who receive probation are no more likely (and may be slightly less likely) to recidivate.”
  • “Incapacitation effects of prison are small, primarily due to replacement.”
  • “Rehabilitation programs offered in prison are less effective than when they are offered in the community.”
  • Victims are no happier with the (more punitive) criminal justice system today than they were forty years ago.
  • Expanding the prison system has contributed to intergenerational criminality, broken families, problems in school, sexually transmitted diseases, teenage births, anti-conventional attitudes, depleted labor markets, racial inequality and crime.

In short, government policies such as truth-in-sentencing, mandatory minima, three-strikes laws, increased collateral consequences, and imprisonment after technical parole violations have not made communities safer and probably have aggravated the crime problem.

Thus, the authors conclude, our four-decades-long “social experiment” in criminal justice policy has been an abject failure. Clear and Frost also caution that, even if, as they claim, the experiment is wrapping up, its consequences will be with us for decades. The carnage to individuals and neighborhoods that has resulted from imprisoning tens of thousands of non-violent offenders—most of them people of color—will have long-term effects. Likewise, the damage to hundreds of thousands of offenders and their families caused by federal and state legislation barring ex-offenders from jobs, scholarships, housing, and custody of their children is not likely do dissipate soon.

Many of the authors’ suggestions for a new direction—the increased use of parole, the repeal of recidivism statutes and mandatory minima, the elimination of the collateral consequences associated with conviction, and the creation of programs that reduce risk—have been bandied about for years and are currently in play in several states. But the authors also tout what has come to be called “justice reinvestment.” The idea is to use the money previously allocated to imprisoning people to rejuvenate the communities from which the offenders come. This reinvestment, the authors stress, must be aimed at supporting truly local efforts, not at treatment programs staffed by people who live outside these communities or at retooling social services run by the federal and state government (although the authors are not against these types of programs). Justice reinvestment means feeding money and support to the private sector in offenders’ neighborhoods in an effort to increase the neighborhood’s social stability. Thus, for instance, ex-offenders could join with other community members

to rehabilitate housing and schools, redesign and rebuild parks and playgrounds, and redevelop and rebuild the physical infrastructure and social fabric of their own neighborhoods . . . . Other investments might include a locally run community loan pool to make micro-loans to create jobs or family development loans for education, debt consolidation, or home ownership and rehabilitation, transportation micro-enterprises for residents commuting outside the neighborhood, a one-stop shop for job counseling and placement services, or geographically targeted hiring incentives for employers (Pp. 179–80).

As the authors admit, this kind of re-orientation is a “tall order,” and they are realistic about this and other solutions. But the authors point out that—without incentives to engage in such programs—judges, prosecutors, probation officers, and others in the system are encouraged to take the less risky, more expensive, and ultimately less-effective alternative of sending offenders outside the community (usually to prison).

Clear and Frost are also aware that their prediction about the impending demise of what they call the Punishment Imperative “will be received with some disbelief.” (P. 186.) But they point out that with crime rates going down, prison costs going up, and evidence-based research about alternatives to prison now widely acknowledged, optimism on this score is warranted. They advise that we need to take advantage of the situation now, before the next spike in crime, the next upturn in the economy, or the next anti-crime crusade by politicians.

Whether the reinvestment effort can succeed at significantly reducing incarceration is not something that the authors discuss at any length. I have my doubts. Huge cultural changes would probably have to occur just to move the United States within shouting distance of the lower imprisonment rates and sentence lengths found in most European countries. Our tendencies toward populism (which encourages knee-jerk, poll-driven reactions to crime), individualism (which posits that people, not situations, are responsible for criminal acts), religiosity (the fundamentalist version of which holds that evil is real, and found everywhere), capitalism (which has spurred the prison privatization movement, along with contracts that require governments to keep those prisons full), localism (which leads to punishment disparity and a failure to internalize state prison costs), and even our adherence to constitutional rights (which make trials so expensive that prosecutors lobby for tough sentence ranges to get plea bargaining leverage) are in stark contrast to European proclivities.

At the same time, there is hope that the justice reinvestment initiative outlined by Clear and Frost could take advantage of some of these American characteristics, especially our individualist, capitalist, and localist instincts. Their recommendations are definitely worth a try.

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Cite as: Christopher Slobogin, What Comes After Mass Incarceration?, JOTWELL (May 23, 2014) (reviewing Todd R. Clear & Natasha A. Frost, The Punishment Imperative: The Rise and Failure of Mass Incarceration in America (2013)),