Tackling the question “Does the United States Incarcerate Too Many People?,” the March 10 installment of the NYU Law Forum, moderated by Vice Dean Barry Friedman, featured panelists Professor Rachel Barkow, faculty director of the Center on the Administration of Criminal Law; David B. Muhlhausen, a senior policy analyst at the Heritage Foundation’s Center for Data Analysis; and Professor Bryan Stevenson, executive director of the Equal Justice Initiative.

Stevenson, who had recently attended a 45th-anniversary commemoration of the civil rights marches between Selma and Montgomery, Alabama, deemed it “demoralizing” that, while in 1965 there were 160,000 people in U.S. jails and prisons, today’s figure is 2.3 million, with nearly six million others on probation or parole: “No one in Selma in 1965 who saw themselves marching for a better day for people of color could have imagined that one out of three black men would be in jail, in prison, or under probation or parole 45 years later.”

He described “a culture of despair and hopelessness that actually feeds violence and criminality,” and an America “where our indifference to what it means to incarcerate someone has devolved to the point where we no longer even ask basic human questions about the propriety of having the highest rate of incarceration in the world.... We do extreme things to people for non-violent crimes.” The U.S. needs to change how it thinks about punishment and its detrimental effects, he said, not just on individuals and the economy, but on its culture, values, norms, and commitment to equal justice. Stevenson later discussed the need to develop a stronger rights framework for the offender population in which prison conditions and sentencing issues could be addressed.

Incarceration does reduce crime, Muhlhausen argued, stressing that studies using regression analysis were the most useful. Most of them, he said, found the reduction phenomenon. “That doesn’t mean that we should have double or triple or quadruple our incarceration rate, because there are going to be diminishing returns,” he said. “The fact is, though, the more criminals you put behind bars, the less crime you’re going to have.... We shouldn’t love prisons. We’d rather not have them... but clearly some of us need to be behind bars for the safety of the rest of us.” He added, however, that he believed there were too many criminal laws in the U.S., that he was not enthusiastic about the “war on drugs,” that prison should be for the worst offenders, and that rehabilitation services behind bars were key.

“To assume that we were incarcerating the right amount of offenders, we would have to believe in good government by luck, because we didn’t get to this point by any careful empirical study or analysis,” Barkow said. “We got here through a political process.” The U.S. incarcerates at three times the rate of any other Western democracy, she said, with a disproportionate percentage being people of color, and that scenario “demands close analysis of why you would have a system that looked like that.” Barkow invoked the concept of diminishing marginal returns, especially regarding drug-related offenses: “At a certain point, if you keep expanding the use of prisons, it’s no longer cost-effective.”

Thoughtful cost-benefit analysis, Barkow argued, was key, but the costs are not merely financial. “You have to look at the disproportionate impact on communities of color. What does it mean in urban environments for huge proportions of people to be locked away?” Empirical evidence, she said, should inform policymaking, but often has not. She pointed to a study in which four states lowered incarceration rates through alternative means such as drug offender programs, with no corresponding uptick in crime.

Above all, Barkow said, logic should prevail when formulating criminal justice policies. “At a minimum, it’s a huge social and cultural issue, but mass incarceration is also a regulatory strategy of the highest order. There’s no other regulatory policy in this country that we would undertake without doing this kind of careful analysis of the costs and the benefits of the strategy.”

Posted on March 16, 2010

Watch the full recording of this event (1 hr, 12 min):