It is one of the great scandals of American life. Mass incarceration is a fundamental fact in America today, on a scale almost unexampled in human history. There are now more people under ‘correctional supervision’ – more than 7.225 million – than were in the Gulag Archipelago under Stalin at its height. Of these, almost 5 million were on probation or parole and 2.266 millon adults were in federal and state prisons and county jails in 2010 or 760 prisoners per 100,000 citizens. That’s not just more than in most other developed countries but 7-10 times as many. Per 100,000 citizens, Japan has 63, Germany has 90, France 96, South Korea 97, and Britain, with a rate among the highest, has 153. Even developing countries that are well known for their crime problems have a third of US numbers. Mexico has 208, and Brazil 242. The next highest after the US are Russia at 557 and Rwanda at 577. America makes up 5% of the world’s population but has 25% of the world’s jailed prisoners.
Some of the more interesting statistics include the following. The breakdown for adults in prison are 1/18 men, 1/89 women, 1/11 African Americans, 1/27 Latinos, and 1/45 Caucasians. 70% are non whites. Blacks account for 39.4% of the prison numbers despite comprising only 13.6% of the population, and Hispanics 20.6% with 16.3 % of the population. This is all despite a 25% decline in violent crime and property crime since 1988. In 2009, the 3 states with the lowest rates of imprisonment per 100,000 were Maine at 150, Minnesota at 189 and New Hampshire at 206, while the highest were Louisiana at 881, Mississippi at 702, and Oklahoma at 657. In 2005, 27% of federal inmates were non citizens when federal prisoners accounted for only 6% of the total inmate population.
In one Midwest study, 21% claimed they had been coerced or pressured into sexual activity, and 7% claimed they had been raped in their current facility. 20-40% are infected with hepatitis C. More and more medical care has been outsourced to private companies which have been shown to provide minimal care in order to maximize profits. Many gang members maintain their gang identity and affiliations when imprisoned. This has the effect of turning prisons into “institutions of higher criminal learning”. California has 170,000 prisoners in facilities designed for 100,000. Gymnasiums and classrooms have been turned into huge bunkhouses for inmates, increasing violence. There is one death per week in the entire prison system. Private firms operate many prisons and do so more cost effectively without sacrificing safety, but offer fewer educational and vocational opportunities, treatment, recreation, and rehabilitative services.
It is tempting to look at this staggering difference and chalk it up to one more aspect of American exceptionalism. America is different, it has always had a Wild West culture and a tough legal system. But the facts don’t support this. The wide gap between the US and the rest of the world is relatively recent. In 1980, there were 150 prisoners per 100,000 adults. It has more than quadrupled since then. So what has happened in the past 30 years to push millions of Americans into prison?
That something, of course, is the war on drugs. Drug convictions went from 15 inmates per 100,000 in 1980 to 148 in 1996, an almost 10 fold increase. More than half of America’s federal inmates today are in prison on drug offenses. In 2009 alone, 1.66 million Americans were arrested on drug charges, more than were arrested on assault or larceny charges. And 4 of 5 of those arrests were simply for possession.
The increase in mandatory minimum sentencing, determinate sentencing, and guideline based sentencing has removed the human element from sentencing, such as the perogative of a judge to consider the mitigating circumstances of a crime to determine the appropriate length of a sentence. As a consequence of the “three strikes law”, the increase in the duration of incarceration in the last decade was most pronounced in the case of life sentences which increased by 83% between 1992 and 2005 even though violent crimes decreased. A 2002 study showed that of 275,000 prisoners released in 1994, 67.5% were rearrested within 3 years and 51.8% were back in prison.
Over the past four decades, the US has spent more than $1 trillion fighting the war on drugs. The results? In 2011, the global commission on drug policy issued a report that begins, “The global war on drugs has failed … Vast expenditures on criminalization and repressive measures directed at producers, traffickers, and consumers of illegal drugs have clearly failed to effectively curtail supply or consumption.” The commissions main recommendation is to “encourage experimentation by governments with models of legal regulation of drugs to undermine the power of organized crime and safeguard the health and secutity of their citizens.
Bipartisan forces have created the trend. Conservatives and liberals love to sound tough on crime, and both sides agreed in the 1990’s to a wide range of new federal infractions, many of them carrying mandatory sentences for time in state or federal prisons. And as always in American politics, there is a money trail. Many state prisons are now run by private companies that have powerful lobbyists in state capitals. These firms create jobs in places where steady work is rare. There is a conveyor belt of cash for prisons from state treasuries to outlying counties. Partly as a result, the money that states spend on prisons has risen at six times the rate of spending on higher education in the past 20 years. In 2011, California spent $9.6 billion on prisons vs. $5.7 billion on the University of California system and state colleges. Since 1980, California has built one college campus and 21 prisons. A college student costs the state $8,667 per year; a prisoner costs it $45,006 a year. In 2007,a total of $74 billion was spent or $30,000 per prisoner overall, and $23,876 per state prisoner, with a high of $45,000 in Rhode Island and California, and a low of $13,000 in Louisiana.
Treatment for drug addiction works better and costs less than imprisonment alone. So why are states abandoning it? Drug addiction specialists wrestle with an ethical conundrum: not the issue of whether the offenders have done something wrong, but whether the American prison system is doing something worse. What they see is not bad people, but predominantly, people with a disease. Of the 2.3 million inmates in the U.S., more than half have a history of substance abuse and addiction. Not all those inmates are imprisoned on drug-related charges. But in many cases, their crimes, such as burglary, have been committed in the service of feeding their addictions. By refusing or neglecting to provide treatment to these addicts, many U.S. prisons are missing the best chance to cure them—and in the process to cut down on future crime. Treatment can reduce recidivism rates from 50 percent to something more like 20 percent, according to the DEA. Yet it is not widely provided. The system has taken the highest-risk and most ill people and put them in a place where they have constitutionally mandated health care. What a great opportunity to make a difference. Are we just trying to punish people? Or are we trying to rehabilitate people? What do we want out of this?
Over the last few years, some in the justice system have warmed to the idea of treating drug addicts in addition to (or instead of) incarcerating them. Just one fifth of inmates get some form of treatment. That number may be lower in the near future: tight budgets are forcing many states to cut back or close down their existing treatment programs. The irony here is that by lowering recidivism, the programs themselves save money in the long run. Heroin addicts who received no treatment in jail were seven times as likely as treated inmates to become re-addicted, and three times as likely to end up in prison again. For every dollar spent, the programs save $2 to $6 by reducing the costs of re-incarceration. Looked at another way, the programs can save the justice system about $47,000 per inmate.
So why would prisons target their own treatment programs in an effort to cut costs? Part of the reason is that pharmacological treatment—such as giving heroin addicts methadone to help them through withdrawal—requires a lot of regulation, and thus it’s expensive in the short run. It can be undermined by the fact that addicts can easily relapse behind bars. Drugs are as available in prison as in the street, often getting to inmates via the mail. There are other challenges, too, particularly in treating addicts with methadone. When methadone is given, it’s usually with strict oversight at a medical center, not as a matter of course in the correctional facility. That takes money. Buprenorphine, which is also used to treat opioid addiction and has several advantages over methadon is not widely used either. Only half of all states and prisons provide any form of methadone or buprenorphine treatment, and those that do make use of the drugs do so in a limited fashion, even though the WHO has both medications on a list of drugs that should be available to all prisoners at any time.
The real problem is an ideological one, not a practical one. In spite of all of the proven clinical and social and economic benefits of pharmacological treatment, people really have a moral opposition to it. They think if you’re providing people with treatment, you’re not addressing their addiction in an appropriate way. They think people who have addictions deserve what they get, and that the only way to treat addiction is abstinence, when nothing could be further from the truth. People who go through drug treatment, even if they still use drugs afterwards, their crimes are less violent and less frequent. Even if it’s not a 100 percent change, it’s a good thing. The public doesn’t necessarily think treatment is bad, either; a recent poll found that more than two thirds of Americans would support state laws requiring treatment—not jail time—for first- and second-time drug offenders. With state budgets under a crunch, treatment can start to look expendable. It’s the legislators who are funding or not funding these types of things. Even when prison systems are very open and supportive of treatment, they face a bunch of administrative and cost constraints. The current economy has made things worse. This isn’t about being soft on crime. It’s about being tough, but also smart. If we do not continue these programs, people will re-offend, recidivism rates will rise, and it will be a danger to the public. You either pay now, or pay later—and you pay a lot more later.
The results are gruesome at every level. A vast prisoner underclass has been created in the US at huge expense, increasingly unable to function in normal society, all in the name of a war that has already been lost. Pat Robertson, the televangelist even stated that the drug war has failed and that the country should legalize marijuana. This is contrary to the deepest political, moral and religious postions he has held for decades. Surely it is time for America’s political leaders to also admit that they have been wrong.
