Review Essay—Race to Incarcerate

Review Essay-Race to Incarcerate

John Riley

"Review Essay-Race to Incarcerate" by John Riley. Alaska Justice Forum 16(2): 2-3 (Summer 1999). In 1980, according to the Bureau of Justice Statistics, American jails and prisons held approximately 578,000 inmates; by mid-1998, that number had risen to over 1.8 million persons. This essay focuses on Race to Incarcerate, Marc Mauer's recent contribution to the growing literature on the unprecedented increase in prison populations in the United States in recent years and the national emphasis on punishment.

Editor's Note

The Alaska Justice Forum plans to begin occasionally including reviews of newly-released work on justice issues. The accompanying review essay discusses Race to Incarcerate by Marc Mauer, which is being published by the New Press (ISBN 1-56584-429-7).

- Antonia Moras

In recent years, the number of adult Americans in jail or prison has grown at an unprecedented rate. According to the Bureau of Justice Statistics, America's jails and prisons held approximately 578,800 people in 1980. By 1990, that number had grown to 1,148,702 inmates. In 1998, by mid-year, our prison and jail population had risen to over 1.8 million persons. These numbers delineate an increase in our use of incarceration that would have been hard for most observers to imagine twenty years ago.

This essay focuses on Race to Incarcerate, Marc Mauer's recent contribution to the growing literature on America's obsession with prison and punishment. Mauer is well known for his work with the Sentencing Project, an effort that has resulted in the publication of a number of influential studies that are particularly well known for calling attention to problems of racial disparity in the justice system. The Sentencing Project grew out of pilot projects organized by the National Legal Aid and Defender Association and the National Council on Crime and Delinquency in the early 1980s. Incorporated in 1986, it provides information and technical assistance to individuals and organizations interested in promoting alternatives to incarceration. Since its start in the 1980s, the Sentencing Project has played a role in sentencing reform initiatives in twenty states. Race to Incarcerate represents an extension of that effort and offers a fairly comprehensive introduction to the philosophy that animates Mauer's work with the project.

In its general outlines, Mauer's understanding of sentencing policy is now shared by many. For Mauer growth in our prison population has been fueled by periods of steeply rising crime rates, by the media's assembly line approach to the production of news stories that distort the reality of crime, and by cynical political efforts to capitalize on citizens' fear. It has been fashionable to focus attention on gang members, drive-by shootings, "drug kingpins," and serial killers. Rather than address the underlying causes of crime, legislators have responded to the media's vision of our crime problem with a "war on drugs," and with "get tough" sentencing policies that include "three-strikes" laws, mandatory minimum sentences, and juvenile waiver laws that allow young offenders to be processed as adults. Supporters describe these initiatives as efforts to reduce crime by getting dangerous people off the streets and by setting a stern example for those who might otherwise choose to pursue criminal activities.

We know that crime rates have fallen in recent years. The FBI's Uniform Crime Reports for 1997 show that murder rates have fallen from a peak of 10.2 per 100,000 in 1980 to 6.8 in 1997. Overall rates of violent crime, as reflected in the FBI's index crime statistics, fell from a high of 758 per 100,000 in 1991 to 610 per 100,000 in 1997, the lowest number recorded since 1987. Property crime rates have also fallen. The Uniform Crime Reports for 1997 show a 14 per cent decline in property crimes since 1988.

Some will argue that this is a result of "get tough" policies, but in reality it is not clear how much of the recent reduction in crime rates can be attributed to our increased willingness to incarcerate offenders. While rates of violent crime have certainly declined in recent years, Mauer points out that an examination of long-term trends shows that crime rates have both risen and fallen as the prison population has increased. And violent crime rates today are still much higher than they were in the years preceding the expansion of the correctional system. For these and other reasons, many criminologists believe that factors other than the increased use of incarceration have contributed to a reduction in crime rates. Moreover, those persons who are usually incarcerated as a result of "get-tough" policies do not seem to be the drive-by shooters, "drug kingpins," serial killers, or other violent and dangerous predators featured on the evening news. The majority of those incarcerated in recent years have been nonviolent offenders, imprisoned for property crimes, public order offenses, and the possession, distribution, and use of controlled substances. Increasingly, prisons are being used to house petty thieves, the deinstitutionalized mentally ill, and addicts who support their habits by working at the lowest levels of illegal drug distribution networks.

According to Mauer, a substantial portion of the increase in our prison population is accounted for by the confinement of drug offenders, having important implications for criminal justice policy. Because to a great extent our war on crime has been a war on drugs, it has been a de facto war on America's minority community. In recent years, many of the drug crimes that have resulted in prison sentences have involved the use of crack cocaine, a substance that is believed by many in law enforcement to be the drug of choice in African-American neighborhoods.

It seems unlikely that anyone in law enforcement ever conspired to fill prison beds with blacks by targeting low-level drug dealers and users in African-American communities. Even so, this has clearly been the result of criminal justice policies in the late twentieth century. This is true in spite of the fact that there is compelling evidence to suggest that, overall, African-Americans use illegal drugs at a rate that is similar to that of white Americans.

As Mauer and his colleagues at the Sentencing Project point out, on an average day, one in three African-American men between 20 and 29 years of age are under some form of correctional supervision. While perhaps not consciously racist in conception, our crime policies have been unequivocally racist in effect. Today, while African-American men make up less than 7 per cent of the overall population, they account for almost one-half of those incarcerated in America.

Because good data on other minority communities are often lacking, Mauer focuses primarily on the African-American experience of the criminal justice system. He does so recognizing that the experience of African-Americans is similar in fundamental ways to that of many other minority groups. In some minority communities, many observers fear that prison experience has become an expected right of passage for young, economically disadvantaged men. We have no formula with which to calculate the harm experienced when families and communities lose so many fathers, sons, and brothers to the criminal justice system. But this loss, coupled with recent growth in incarceration rates for women in these communities, is cause for grave concern.

Mauer draws on abundant research literature to support his analysis of sentencing policy. His argument incorporates some of the most important recent research findings, relevant historical scholarship, and his own considerable experience with the Sentencing Project. In the end he succeeds in calling our attention to fundamentally irrational features of the criminal justice system, a system that may be more of a threat to our sense of community than many of the crimes which it is ostensibly organized to prevent.

In addition to its discussion of race and sentencing policy, Race to Incarcerate also offers a worthwhile account of the origins of the "get tough" movement, insightful discussions of politics and the media's coverage of crime news, and an examination of the relationship between social class and criminality that lends context to the issue of race. The book is filled with examples of the unintended consequences of current justice system policies, with one chapter explicitly devoted to this theme. Many readers will benefit from Mauer's discussion of the costs of imprisonment, and particularly from his analysis of the public health issues associated with rising levels of incarceration. His explanation of the replacement effect, a term which refers to the likelihood that new offenders will emerge to take the place of those we incarcerate, is equally important to a realistic understanding of the justice system's ability to control crime.

Nevertheless, there are moments when it seems as if Mauer's enthusiasm for sentencing reform clouds his interpretation of the available data. In claiming that the decline in juvenile homicide rates cannot be explained by rising rates of adult incarceration, for example, he ignores the growth in juvenile detention, and the possibility that incarceration might have a deterrent effect on those who watch older friends and siblings sentenced to adult facilities. This is surprising, as he acknowledges this kind of "younger sibling effect" a few pages later in his discussion of declining rates of drug use.

Mauer's discussion of falling burglary rates is also troubling. In an effort to show that factors other than incarceration may account for reductions in crime, Mauer points to a recent decline in burglary rates which coincided with a period of falling rates of incarceration for burglary. He suggests that burglary rates may have fallen as a result of a shift to alternative forms of criminal behavior, notably drug sales and robbery. According to Mauer, a review of the 1980-1995 prison population statistics "does not suggest that an increase in the number of imprisoned burglars was necessarily the primary factor at work" in reducing rates of burglary. But Mauer fails to rule out the possibility that increased incarceration rates for other crimes might have reduced the number of potential burglars on the street. The number of people imprisoned for burglary may fall while the number of potential burglars in prison rises. In making this argument, Mauer ought to address the possibility that incarceration for other crimes may have played a significant role in the reduction of burglary. We cannot assume that potential burglars will only be arrested for burglary or that increased incarceration rates for other crimes are irrelevant. In fact, potential burglars will be prevented from committing burglary while serving time for any crime, including drug offenses and armed robberies. In failing to acknowledge that incapacitation may take place across crime categories, Mauer assumes an unwarranted level of criminal specialization.

The central themes on which Mauer focuses are by now quite familiar, particularly to those who have had the opportunity to read Michael Tonry's Malign Neglect, Nils Christie's Crime Control as Industry, or John Irwin and James Austin's It's About Time. Some readers may fault Mauer for a lack of originality or for his uncritical use or occasional neglect of an important scholarly work. In general, Race to Incarcerate makes frequent use of recent research findings, but it is not an exhaustive review of the empirical research on sentencing. It is also fair to say that there is not much that is new here for those who have the luxury of closely following the research literature on crime and justice issues. For those who do not have that luxury, Race to Incarcerate offers a worthwhile effort to make some of those findings conveniently accessible to a larger audience.

Mauer and his colleagues at the Sentencing Project have already made a substantial original contribution to the research literature on sentencing policy. This latest work puts that contribution in a broader context, provides an introduction to some of the more influential empirical research on sentencing, and encourages honest and responsible thinking about justice. In the end, Mauer's effort to encourage a reevaluation of America's obsession with prisons and punishment provides a reasonably lucid and concise account of a complex and important issue.