Dispatches from the Creation Wars

Balko has his weekly crime column up and it examines the reasons why America incarcerates such a staggering percentage of its population. He starts with the mind-boggling stats:

In 1970 one in 400 American adults was behind bars or on parole. As of 2008, the number was one in 100. Add in probation, and it’s one in 31. The number of people behind bars for drug crimes has soared from 40,000 in 1980 to about half a million today. States today spend one of every 15 general fund dollars on maintaining their prisons. According to the King’s College World Prison Population List (PDF), the U.S. is home to 5 percent of the world’s population but nearly a fourth of its prisoners. Judging by these official numbers, America’s incarceration rate leads the developed world by a large margin, although it’s doubtful that authoritarian regimes such as China’s are providing accurate data, especially about political prisoners. But among liberal democracies, the competition isn’t even close: As of 2008, the U.S. incarceration rate was 756 per 100,000 people, compared to 288 for Latvia, 153 for England and Wales, 96 for France, and 63 for Denmark.


The root cause of all this? Democracy.

How to reverse or ameliorate the damage already done is a debate we’ll be having for decades. But there is one change that could at least stop the bleeding: less democracy. As New York Times reporter Adam Liptak pointed out in a 2008 article, America’s soaring incarceration rate may be largely due to the fact that we have one of the most politicized criminal justice systems in the developed world. In most states, judges and prosecutors are elected, making them more susceptible to slogan-based crime policy and an electorate driven by often irrational fear. While the crime rate has fallen dramatically since the early 1990s, polls consistently show that the public still thinks crime is getting worse.

In response to these fears, legislators have increasingly eroded the discretion of prosecutors and judges (already subject to political pressures) in charging defendants and imposing sentences. Under the theory that more punishment is always better, lawmakers have imposed mandatory minimum sentences, made parole and probation more difficult, and decreed that mere possession of drugs above a certain quantity is automatically treated as distribution. The democratic demand for such policies may be clearest in California, where it is relatively easy to pass legislation through ballot initiatives. Such initiatives have led to some of the toughest crime policies in the country–and nearly twice as many prisoners as the state’s prisons are supposed to hold.

He’s absolutely right. I wish I had a solution that would actually pass a referendum, but any reform would have to be voted on by the same people who vote for endlessly harsher punishments.