Is prison increasing crime?

Wisconsin Law Review

Volumn 2008, Issue 6, 2008, Pages 1049-1108

  Pritikin, Martin H ^a  

^a Whittier Law School   (United States)

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EID: 62549120082     PISSN: 0043650X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (396)

1. Cf. William Spelman, What Recent Studies Do (and Don 't) Tell Us About Imprisonment and Crime, 27 CRIME & JUST. 419, 439 (2000) ("The association of two variables is one of the most basic forms of analysis, and it has been used for years in efforts to explain changes and differences in crime rates.").
2. Vincent Schiraldi, Digging Out: As U.S. States Begin to Reduce Prison Use, Can America Turn the Corner on Its Imprisonment Binge?, 24 PACE L. REV. 563, 563 (2004).
3. Albany.edu, Sourcebook of Criminal Justice Statistics Online: Table 6.1.2006, http://www.albany.edu/sourcebook/pdf/t612006.pdf (last visited Nov. 18, 2008);
4. see also RYAN S. KING ET AL., THE SENTENCING PROJECT, INCARCERATION AND CRIME: A COMPLEX RELATIONSHIP 1 (2005), available at http://www.sentencingproject.org/Admin/Documents/publications/inc-iandc-complex. pdf (noting that there was a prison and jail population of 2.1 million when the report was published).
5. THOMAS P. BONCZAR, U.S. DEP'T. OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PREVALENCE OF IMPRISONMENT IN THE U.S. POPULATION, 1974-2001, at 1 (2003), available at http://www.ojp.usdoj.gov/bjs/pub/ pdf/piusp01.pdf.
6. See KING ET AL. , supra note 3, at 1.
7. Loren A.N. Buddress, Federal Probation and Pretrial Services - A Cost-Effective and Successful Community Corrections System, 61 FED. PROBATION 5, 8 (1997);
8. see also MICHAEL JACOBSON, DOWNSIZING PRISONS: HOW TO REDUCE CRIME AND END MASS INCARCERATION 109 (2005) (asserting that American incarceration rates are the highest in the world).
9. JAMES J. STEPHAN, U.S. DEP'T. OF JUSTICE, BUREAU OF JUSTICE STATISTICS, STATE PRISON EXPENDITURES, 2001, at 2 (2004), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/spe01.pdf.
10. JACOBSON, supra note 6, at 53;
11. Rucker Johnson & Steven Raphael, How Much Crime Reduction Does the Marginal Prisoner Buy? 1 n.l (Univ. of Cal., Working Paper, 2006), available at http://www.nber.org/∼confer/2007/crimef07/ raphael.pdf;
12. Albany.edu, Sourcebook of Criminal Justice Statistics Online: Table 1.4.2003, http://www.albany.edu/sourcebook/pdf/tl42003.pdf (last visited Nov. 18, 2008).
13. Facts for Features, CENSUS.GOV, Jan. 24, 2005, http://www.census.gov/Press-Release/www/releases/archives/facts-for-features- special-editions/003721.html.
14. PAIGE M. HARRISON & ALLEN J. BECK, U.S. DEP'T. OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PRISONERS IN 2004, at 8 (2005), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/p04.pdf.
15. BONCZAR, supra note 4, at 1;
16. JACOBSON, supra note 6, at 43.
17. See JOHN BRAITHWAITE, INEQUALITY, CRIME AND PUBLIC POLICY 24-32 (1979);
18. JACOBSON, supra note 6, at 43;
19. Douglas S. Massey, American Apartheid: Segregation and the Making of the Underclass, 96 AM. J. Soc. 329, 342 (1990) ("Poverty is not a neutral variable, of course, and with high rates of poverty come a variety of other social and economic conditions ... [including] elevated crime rates ....");
20. Spelman, supra note 1, at 443-44.
21. See, e.g., VERA INST. OF JZUSTICE, THE UNINTENDED CONSEQUENCES OF INCARCERATION (1996), available at http://www.vera.org/publication-pdf/uci.pdf.
22. Cf. Todd R. Clear et al., Coercive Mobility and Crime: A Preliminary Examination of Concentrated Incarceration and Social Disorganization, 20 JUSTICE Q. 33, 55 (2003) (concluding that incarceration patterns increased crime in particular communities, without addressing its impact on aggregate national rates).
23. See, e.g., John J. Donohue III & Peter Siegelman, Allocating Resources Among Prisons and Social Programs in the Battle against Crime, 27 J. LEGAL STUD. 1 , 2 (1998) (assuming prison-crime elasticities of 10-20 percent, prior increases in incarceration were cost effective, but future increases would not be);
24. Joan Petersilia et al., Prison Versus Probation in California - Implications for Crime and Offender Recidivism, PLI LITIGATION AND ADMINISTRATIVE PRACTICE COURSE HANDBOOK SERIES, No. C4-4185, 110-11 (1989) (finding that, although incarcerating California felons prevents more crimes than probation, the additional costs of incarceration outweigh the costs of crime avoided).
25. See, e.g., Steven D. Levitt, Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not, 18 J. ECON. PERSP. 163, 179 (2004) (noting that when one considers the "indirect costs ... associated with the current scale of imprisonment [including the impact on families, neighborhoods, and racial minorities] further increases in imprisonment may be less attractive than the naïve cost benefit analysis would suggest");
26. Johnson & Raphael, supra note 8, at 28 ("[O]nce one accounts for the additional external costs of incarceration ... and the potential effects on the long-term employment prospects of former inmates, the benefit cost ratio on the margin is likely to be substantially below one.").
27. Cf. M. Keith Chen & Jesse M. Shapiro, Do Harsher Prison Conditions Reduce Recidivism? A Discontinuity-Based Approach, 9 AM. L. & ECON. REV. 1, 22-23 (2007) (finding that harsher prison conditions increase recidivism, and that the effect was large enough to cancel out the deterrent effect of harsher conditions observed in an earlier study: "indeed the [effects] appear large enough to outweigh deterrence and drive a net increase in crime should prison conditions worsen").
28. A few caveats are in order. First, these categories are admittedly arbitrary; there are surely other logical ways of arranging the mechanisms - e.g., psychological, sociological, and economic. Second, the categories are fluid; a given mechanism may fall within more than one category. Third, my list is not necessarily exhaustive. I have tried simply to capture the primary mechanisms identified in the literature, to organize them in a helpful manner, and to describe them succinctly but fairly. Finally, many of the negative effects of incarceration that will be described in this Part are ills that we will want to avoid, regardless whether they ultimately lead to more crimes being committed. Although this Article focuses specifically on the potentially criminogenic effects of incarceration, it should not be forgotten that noncriminogenic externalities must be taken into account in properly evaluating the institution's efficacy.
29. I will be referring to the generic offender in the masculine form throughout. Although this is done primarily for ease of reference and consistency, it is worth noting that in virtually all societies that incarcerate offenders, over 90 percent of adult prison populations are male, and in general, the more serious the offense, the greater proportion of male offenders. JOHN BRAITHWAITE, CRIME, SHAME, AND REINTEGRATION 44 (1989).
30. LIN SONG & ROXANNE LIEB, WASH. STATE INST, FOR PUB. POLICY, RECIDIVISM: THE EFFECT OF INCARCERATION AND LENGTH OF TIME SERVED 2 (1993), available at http://www.wsipp.wa.gov/rptfiles/IncarcRecid.pdf;
31. see also ANTHONY M. SCACCO, JR., RAPE IN PRISON 100 (1975) (noting that many petty offenders or as-of-yet unconvicted inmates in jails may be "educated in the ways of more serious crimes by those with whom they must share their quarters");
32. D.A. Andrews et al., Does Correctional Treatment Work? A Clinically Relevant and Psychologically InformedMeta-Analysis, 28 CRIMINOLOGY 369, 376 (1990) ("Generally, programming for groups is to be approached very cautiously because the opening up of communication within offender groups may well be criminogenic").
33. SONG & LIEB, supra note 20, at 3;
34. Carl S. Taylor, Growing Up Behind Bars: Confinement, Youth Development, and Crime, in VERA INST. OF JUSTICE, supra note 13, at 43, 55.
35. See infra text accompanying notes 160-161.
36. Edward J. Latessa & Christopher Lowenkamp, What Works in Reducing Recidivism?, 3 U. ST. THOMAS L.J. 521, 522 & n.2 (2006);
37. see id. at 522 ("[P]lacing low-risk offenders in with high-risk offenders may lead to an 'education' in anti-social behavior for the low-risk offender.").
38. However, not all of the criminogenic effects necessarily derive from this "education." See id. at 523 ("[P]lacing low-risk offenders in these programs also tends to disrupt their pro-social networks; in other words, the very attributes that make them low-risk become interrupted, such as school, employment, family, and so forth.");
39. see also infra text accompanying notes 24-29.
40. See, e.g., Thomas Orsagh & Jong-Rong Chen, The Effect of Time Served on Recidivism: An Interdisciplinary Theory, 4 J. QUANTITATIVE CRIMINOLOGY 155, 159 (1988) (discussing social bonding scholarship).
41. However, some researchers have noted that the propensity to reoffend is not directly correlated with time spent in prison; rather, the "prisonization" of offenders is highest in the "middle phase" of their sentence, suggesting that this is only a partial explanation of offender recidivism. See, e.g., Stanton Wheeler, Socialization in Correctional Communities, 26 AM. SOC. REV. 697, 708-11 (1961).
42. Solangel Maldonado, Recidivism and Paternal Engagement, 40 FAM. L. Q. 191, 196 (2006);
43. Fox Butterfield, Parents in Prison: A Special Report; As Inmate Population Grows, So Does a Focus on Children, N.Y. TIMES, Apr. 7, 1999, at Al ("There is a growing body of research that shows maintaining family ties while in prison leads to lower rates of re-arrests for the fathers ....").
44. Kim Harrison, Parental Training for Incarcerated Fathers: Effects on Attitudes, Self-Esteem, and Children's Self-Perceptions, 137 J. Soc. PSYCHOL. 588, 588 (1997);
45. see also Ginger L. Wilczak & Carol A. Markstrom, The Effects of Parent Education on Parental Locus of Control and Satisfaction of Incarcerated Fathers, 43 INT'L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 90, 92 (1999) (citing research that notes much lower recidivism rates among inmates who completed parenting skills programs).
46. . See infra text accompany notes 160-161.
47. KING ET AL., supra note 3, at 7 (citing various publications from the Justice Policy Center of the Urban Institute).
48. See generally Dina R. Rose & Todd R. Clear, Incarceration, Social Capital, and Crime: Implications for Social Disorganization Theory, 36 CRIMINOLOGY 441 (1998).
49. Johnson v. California, 543 U.S. 499, 515 (2005);
50. see also Paul H. Robinson & John M. Darley, The Utility of Desert, 91 Nw. U. L. REV. 453, 467 (1997) ("[T]o go to prison in the United States ... can mean exposure to a debased, mind-numbing environment, including significant possibilities of forcible rape ... .").
51. See Kathleen Engel & Stanley Rothman, The Paradox of Prison Reform: Rehabilitation, Prisoners' Rights, and Violence, 7 HARV. J. L. & PUB. POL'Y 413, 418 (1984).
52. Ahmed A. White, The Concept of "Less Eligibility" and the Social Function of Prison Violence in Class Society, 56 BUFF. L. REV. 737, 786-87 (2008).
53. Marc Mauer, Thinking About Prison and Its Impact in the Twenty-First Century, 2 OHIO ST. J. CRIM. L. 607, 609 (2005).
54. Cf. John Braithwaite, Restorative Justice: Assessing Optimistic and Pessimistic Accounts, 25 CRIME & JUST. 1, 46 (1999) ("[C]hildren who have been humiliated, treated unfairly, and had bonds severed by virtue of being victims of sexual abuse or physical violence (with bruising or bleeding) [had] their criminal behavior amplified by traditional criminal justice processing more than offenders who have not been abused.").
55. See Engel & Rothman, supra note 31, at 414 ("[A]n inmate ... quickly learns that most guards will not protect him from the aggressive inmates who run the prison.").
56. See id. ("The inmate social system offers a new prisoner the choice of several roles. He can attempt to avoid violent encounters, be labeled weak and live in constant fear. He can choose to join a gang and receive its protection in return for risking his life in inter-gang disputes. Alternatively, he may 'marry' an inmate leader and receive protection in exchange for submitting to periodic rape. Finally, he can try to fend for himself.");
57. see also Joan Moore, Bearing the Burden: How Incarceration Policies Weaken Inner-City Communities, in VERA INST. OF JUSTICE, supra note 13, at 67, 73.
58. See Engel & Rothman, supra note 31, at 414 ("Inmate leaders, rather than authoritarian administrative regimes, run many of today's prisons through exploitation of other prisoners. Most inmate leaders enforce their authority by means of violence.").
59. See, e.g., JAMES BYRNE, COMMISSION ON SAFETY AND ABUSE IN AMERICA'S PRISONS 5, available at http://www.prisoncommission.org/statements/byrne-james-m.pdf ("[Inmates'] experiences in prison may actually reinforce the notion that 'violence' (or the threat of violence) is an effective strategy to maintain order in both prison and community settings.");
60. Dan Cahill, Victimization, 9 J. PRISONERS ON PRISON 1 (Online Formatted Version 2006), available at http://www.jpp.org/documents/forms/JPP9-2/Cahill.pdf ("[From the criminal's perspective a] petty thief may come out of prison as a cold-hearted killer .... It is the system itself which hardens a criminal in most cases. The hardened offender becomes increasingly indifferent to the suffering and loss inflicted upon the victim, which enables an offender to commit even more serious and harmful offenses.").
61. Craig Haney, The Wages of Prison Overcrowding: Harmful Psychological Consequences and Dysfunctional Correctional Reactions, 22 WASH. U. J.L. & POL'Y 265, 273 (2006).
62. See, e.g., Gerald G. Gaes & William J. McGuire, Prison Violence: The Contribution of Crowding Versus Other Determinants of Prison Assault Rates, 22 J. RES. CRIME & DELINQ. 41, 41 (1985);
63. Edwin I. Megargee, The Association of Population Density, Reduced Space, and Uncomfortable Temperature with Misconduct in a Prison Community, 5 AAM. J. CMTY. PSYCHOL. 289, 295 (1977);
64. Peter L. Nacci et al., Population Density and Inmate Misconduct Rates in the Federal Prison System, 41 FED. PROBATION 26, 29 (1977).
65. Phil Gunby, Sexual Behavior in an Abnormal Situation, 245 JAMA 215, 215 (1981);
66. Michael B. King, Male Rape in Institutional Settings, in MALE VICTIMS OF SEXUAL ASSAULT 67, 70 (Gillian C. Mezey & Michael B. King eds., 1992).
67. Sheldon Ekland-Olson et al., Prison Overcrowding and Disciplinary Problems: An Analysis of the Texas Prison System, 19 J. APPLIED BEHAV. SCI. 163, 174 (1983);
68. Haney, supra note 39, at 282-83.
69. Haney, supra note 39, at 272.
70. JACOBSON, supra note 6, at 24 (describing the decline of education and vocational programs for prisoners, despite evidence that such programs reduce recidivism and boost postincarceration employment). Haney, supra note 39, at 274-75.
71. See, e.g., David P. Farrington & Christopher P. Nuttall, Prison Size, Overcrowding, Prison Violence, and Recidivism, 8 J. CRIM. JUST. 221, 230 (1980).
72. Haney, supra note 39, at 275.
73. Id. at 285;
74. Donald Specter, Making Prisons Safe: Strategies for Reducing Violence, 22 WASH. U. J.L. &POL'Y 125, 132 (2006).
75. Haney, supra note 39, at 285-86.
76. Id.
77. See generally SHARON S. BREHM & JACK W. BREHM, PSYCHOLOGICAL REACTANCE: A THEORY OF FREEDOM AND CONTROL (1981).
78. Braithwaite, supra note 34, at 56.
79. See, e.g., BREHM & BREHM, supra note 50, at 329-43.
80. See, e.g., CHARLES R. TITTLE & RAYMOND PATERNOSTER, SOCIAL DEVIANCE AND CRIME: AN ORGANIZATIONAL AND THEORETICAL APPROACH 460-68, 627-28 (2000).
81. Research has suggested a tentative link between reactance and rape. See, e.g., Roy F. Baumeister et al. , Conquest by Force: A Narcissistic Reactance Theory of Rape and Sexual Coercion, 6 RSEV. GEN. PSYCHOL. 92, 130 (2002), available at http://www.psy.fsu.edu/∼baumeistertice/baumeistercatanesewallace2002.pdf. However, this describes how rapists react to the refusal of women to engage in sex, not how they react to the condemnation or punishment of rape by the state. Thus, although there is some evidence that reactance leads to crime, this is still not evidence of criminogenic reactance being triggered by the proscription or sanctioning of conduct itself.
82. See James Price Dillard & Lijiang Shen, On the Nature of Reactance and Its Role in Persuasive Health Communication, 72 CSOMM. MONOGRAPHS 144, 164 (2005).
83. See BRAITHWAITE, supra note 19, at 16.
84. FRANK TANNENBAUM, CRIME AND THE CSOMMUNITY 20 (1938).
85. BRAITHWAITE, supra note 19, at 18.
86. D.J. WEST & D.P. FARRINGTON, THE DELINQUENT WAY OF LIFE 138-39 (1977).
87. See BRAITHWAITE, supra note 19, at 18-19 (concluding that "[i]t should hardly be surprising that the evidence on the association between labeling and crime is mixed," since persuasive causative explanations run in both directions).
88. Devah Pager, The Mark of a Criminal Record, 108 AM. J. Soc. 937, 961 (2003).
89. JACOBSON, supra note 6, at 47 (citing research concluding that adult incarceration reduces paid employment by five to ten weeks per year);
90. Christopher Stafford, Finding Work: How to Approach the Intersection of Prisoner Reentry, Employment, and Recidivism, 13 GEO. J. ON POVERTY L. & POL'Y 261, 264 (2006).
91. But see Todd R. Clear, Backfire: When Incarceration Increases Crime, in VERA IANST. OF JUSTICE, supra note 13, at 1, 13-14 (presenting a more mixed view of the extent of the impact);
92. Pager, supra note 61, at 939-41 (reporting a growing body of research that shows a strong negative correlation between incarceration and employment, although at least one study shows only a negligible effect).
93. Nora V. Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 STAN. L. & POL'Y REV. 153, 156 (1999).
94. Id. at 156 (1999) ("Such positions range from lawyer to bartender, from nurse to barber, from plumber to beautician.").
95. Stafford, supra note 62, at 267.
96. Demleitner, supra note 63, at 156.
97. See Act of Oct. 28, 1991, Pub. L. No. 102-143, tit. Ill, § 333(a), 105 Stat. 944.
98. Deborah N. Archer & Kele S. Williams, Making America "The Land of Second Chances": Restoring Socioeconomic Rights for Ex-Offenders, 30 N.Y.U. REV. L. & Soc. CHANGE 527, 538 (2006).
99. Demleitner, supra note 63, at 156.
100. Indeed, failure to investigate an employee's criminal record has resulted in the employer's liability for injuries sustained by third parties. See Stafford, supra note 62, at 270 (citing Tallahassee Furniture Co. v. Harrison, 583 So. 2d 744 (Fla. Dist. Ct. App. 1999)).
101. Stafford, supra note 62, at 269.
102. Id. at 270.
103. Mauer, supra note 33, at 609-10.
104. See Sandra Guerra, The Myth of Dual Sovereignty: Multijurisdictional Drug Law Enforcement and Double Jeopardy, 73 N.C. L. REV. 1159, 1167-68 n.34 (1995) (citing a study that found ex-offenders could lose over 462 deniable benefits from fifty-three federal agencies).
105. 21 U.S.C. § 862(d) (2006).
106. See id.; 34 C.F.R. § 668.40 (1999) (noting that the Department of Education denies access to student loans to applicants convicted of drug offenses).
107. See 21 U.S.C. § 862(d).
108. See id. § 862a(a).
109. Id. § 862(a) - (b).
110. Demleitner, supra note 63, at 157.
111. Id.
112. See id. ("The exclusion of ex-offenders from voting rights is particularly dramatic and of symbolic importance since political rights have traditionally 'confer[red] a minimum of social dignity' upon their recipient."
113. (quoting JUDITH N. SHKLAR, AMERICAN CITIZENSHIP: THE QUEST FOR INCLUSION 2 (1991))).
114. Clear, supra note 62, at 12.
115. Id. at 11, 12.
116. See supra text accompanying note 5.
117. See, e.g., JAMES O. FINCKENAUER, SCARED STRAIGHT! AND THE PANACEA PHENOMENON 112, 152, 157, 163 (1982).
118. Clear, supra note 62, at 10.
119. Id.
120. JAMES O. FINCKENAUER & PATRICIA W. GAVIN, SCARED STRAIGHT: THE PANACEA PHENOMENON REVISITED 138-39 (1999);
121. LAWRENCE W. SHERMAN ET AL., U.S. DEP'T. OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, PREVENTING CRIME: WHAT WORKS, WHAT DOESN'T, WHAT'S PROMISING 9-14 to 9-15 (1997);
122. see also Roy V. Lewis, Scared Straight - California Style: Evaluation of the San Quentin Squires Program, 10 CRIM. JUST. & BEHAV. 209, 220-21 (1983) (finding that older and minority juveniles exposed to deterrence program committed more serious offenses than those same subgroups in the control cohort).
123. Maldonado, supra note 25, at 195-96.
124. Usually, this means fathers no longer provide support because men make up the vast majority of inmates. BRAITHWAITE, supra note 19, at 44-45.
125. A majority of incarcerated fathers also lived with or provided some financial support to their minor children prior to their incarceration. Maldonado, supra note 25, at 192.
126. Demleitner, supra note 63, at 158.
127. See 42 U.S.C.A. § 1437d note 10 (1999).
128. See supra text accompanying note 12.
129. Clear, supra note 62, at 12.
130. Id. at 12-13.
131. Clear, supra note 62, at 12;
132. see Tiffany J. Jones, Neglected by the System: A Call for Equal Treatment for Incarcerated Fathers and Their Children, 39 CAL. W. L. REV. 87, 97 (2002).
133. Clear, supra note 62, at 12-13.
134. Maldonado, supra note 25, at 195.
135. Id.;
136. Christina Jose Kampfner, Post-Traumatic Stress Reactions in Children of Imprisoned Mothers, in CHILDREN OF INCARCERATED PARENTS 89, 97 (Katherine Gabel & Denise Johnston eds., 1995) (citing a study by the Task Force on the Female Offender);
137. see also VA. COMM'N ON YOUTH, CHILDREN OF INCARCERATED PARENTS 14 (2002), available at http://coy.state.va.us/docs/Incarcerated%20Parents.pdf (stating that 38 percent of juvenile delinquents committed to a juvenile residential facility reported having a parent who was once incarcerated).
138. See infra text accompanying note 176.
139. See supra text accompanying notes 24-29.
140. Maldonado, supra note 25, at 193.
141. CHARLENE WEAR SIMMONS, CAL. RES. BUREAU, CHILDREN OF INCARCERATED PSARENTS 2 (2000), available at http://www.library.ca.gov/crb/ 00/notes/v7n2.pdf.
142. Clear, supra note 62, at 14 ("Imprisonment displaces ... economic activity: Instead of buying cigarettes and snacks at a local deli, the prisoner makes those purchases in a prison commissary.").
143. See infra text accompanying notes 121-122.
144. JACOBSON, supra note 6, at 50-51.
145. Clear, supra note 62, at 13-14;
146. see supra text accompanying note 12.
147. Stafford, supra note 62, at 271.
148. See Clear, supra note 62, at 13-14.
149. See Jones, supra note 95, at 97-98.
150. The notion that physical disorder within neighborhoods may lead to crime is referred to as the "broken windows" theory. See James Q. Wilson & George L. Kelling, Broken Windows, ATL. MONTHLY, Mar. 1982, at 29.
151. The theory is by no means universally accepted. See Maria Cruz Melendez, Moving to Opportunity & Mending Broken Windows, 32 J. LEGIS. 238, 240-48 (2006) (reviewing broken windows research as well as criticism of the theory).
152. Clear, supra note 62, at 13;
153. see BRAITHWAITE, supra note 19, at 47;
154. Spelman, supra note 1, at 444.
155. See, e.g., MARCUS FELSON, CRIME AND EVERYDAY LIFE: INSIGHTS AND IMPLICATIONS FOR SOCIETY 79-92 (3d ed. 2002).
156. See Mauer, supra note 33, at 614.
157. Social disorganization may not only make residents less likely to prevent or report crime; it may make them more likely to commit it themselves. Cf. Douglas S. Massey, Getting Away with Murder: Segregation and Violent Crime in Urban America, 143 U. PA. L. REV. 1203, 1216 (1995) ("How does a person adapt to a harsh environment where violence is endemic, the odds of criminal victimization are high, and the risk of death or injury substantial? The most logical individual adaptation is for one to become violent oneself.").
158. See JACOBSON, supra note 6, at 46.
159. Perhaps the most well-known instance of a sentencing policy creating racial disparities was the 1986 Anti-Drug Abuse Act, which set the same minimum penalty for the sale of five grams of crack (predominantly used and sold by inner-city minorities) as for fifty grams of powder cocaine. Compare 21 U.S.C. § 841(b)(l)(A)(ii)(II) (2006) with id. § 841(b)(l)(A)(iii).
160. JAMIE FELLNER, HUMAN RIGHTS WATCH, PUNISHMENT AND PREJUDICE: RACIAL DISPARITIES IN THE WAR ON DRUGS, at ch. 3 (2000).
161. See HUMAN RIGHTS WATCH & SENTENCING PROJECT, LOSING THE VOTE: THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS IN THE UNITED STATES, at ch. 3 (1998).
162. The rate of disenfranchisement for black men in some states is over 31 percent. Id. tbl.2.
163. Pager, supra note 61 , at 957-59.
164. NAT'L CTR. FOR STATE COURTS, THE NCSC SENTENCING ATTITUDES SURVEY: A REPORT ON THE FINDINGS 4-5 (2006), available at http://www.ncsconline.org/D-RESEARCH/Documents/NCSC-SentencingSurvey-Report- Final060720.pdf.
165. Indeed, racial and economic stigma can reinforce each other. See, e.g., Mauer, supra note 33, at 610 ("[G]iven the ubiquitousness of a prison record, many employers now assume that virtually all black men have one.");
166. see also Pager, supra note 61, at 958-59 (finding that white job applicants with a criminal record were called back for interviews at slightly higher rates than comparably qualified African-American applicants with no criminal record, and that the existence of a criminal record was an even greater impediment to employability for African-Americans, proportionately, than for whites). Cf. Massey, supra note 113, at 1216 ("[S]egregation interacts with rising black poverty to concentrate poverty geographically, which in mm concentrates crime, thus creating an ecological niche characterized by a high level of violence and a high risk of victimization.").
167. NAACP LEGAL DEF. & EDUC. FUND, FREE THE VOTE 1 (2003), available at http://naacpldf.org/content/pdf/felon/Free-the-Vote-brochure.pdf.
168. NANCY G. LA VIGNE ET AL., URBAN INST. JUSTICE POLICY CTR., A PORTRAIT OF PRISONER REENTRY IN MARYLAND 51 (2003), available at http://www.urban.org/UploadedPDF/410655-MDPortraitReentry. pdf.
169. Neal Kumar Katyal, Deterrence's Difficulty, 95 MICH. L. REV. 2385, 2415-16 (1997).
170. Prices may also rise when law enforcement succeeds in seizing drugs and taking them off the market, thereby reducing supply. See Keith Donoghue, Casualties of War: Criminal Drug Law Enforcement and Its Special Costs for the Poor, 77 N.Y.U. L. REV. 1776, 1781 (2002).
171. David Elkins, Drug Legalization: Cost Effective and Morally Permissible, 32 B.C. L. REV. 575, 578 (1991).
172. Donoghue, supra note 123, at 1786-88.
173. Ironically, to the extent that drug enforcement policies do succeed in reducing demand among some users by increasing the risk or stigma associated with buying or using drugs - as happened temporarily with crack cocaine in the 1980s, see id. at 1781-the resulting reduction in prices can actually increase drug use among the more price-sensitive poor. Katyal, supra note 123, at 2418-19.
174. Katyal, supra note 123, at 2417.
175. Id.
176. Id.
177. Id. at 2417-18.
178. Id. at 2418;
179. see also Donoghue, supra note 123, at 1782-83 (noting that an interdiction of the supply of drugs may create "instability in the market shares controlled by different distribution networks. This temporary state of flux creates a strong incentive for rival cartels to engage in violent turf wars, thus increasing the number of casualties attributable to the drug trade").
180. Joseph L. Barloon, An Economic Analysis of Group Crime and the Federal Sentencing Guidelines, 84 GEO. L.J. 2261, 2268 (1996).
181. Clear, supra note 62, at 6;
182. Anne Morrison Piehl & John J. DiIulio, Jr., "Does Prison Pay?" Revisited: Returning to the Crime Scene, BROOKINGS REV. (Winter 1995), at 21, 25.
183. Clear, supra note 62, at 6 n.9 ("The recruitment of a replacement offender can be a double loss for crime control. Not only do the crimes continue unabated, but a novice who might never have entered the criminal lifestyle (or who would have been delayed entry) is exposed to patterns of offending, and educated as an offender.").
184. See Doug Bandow, War on Drugs or War on America?, 3 STAN. L. & POL'Y REV. 242, 248 (1991).
185. Indeed, in response to this very problem, Congress passed legislation providing for sentence enhancements for dealers who employ minors to distribute drugs. See 21 U.S.C. § 860(c) (2006).
186. Whether drugs should be legalized is a politically charged topic, and one that need not be delved into for present purposes. My point is merely to emphasize that the criminogenic potential of incarcerating drug offenders should be explicitly acknowledged, measured to the extent possible, and taken into account when making policy decisions about criminal enforcement and punishment.
187. See Joan Petersilia, Probation in the United States: Practices and Challenges, NAT'L INST. JUST. J. , Sept. 1997, at 2, 5;
188. see also Taylor, supra note 21 , at 43.
189. Mauer, supra note 33, at 612.
190. Id.
191. See Developments in the Law - Alternatives to Incarceration, 111 HARV. L. REV. 1863, 1889 (1998) ("[T]he great frequency with which people in certain demographic groups are being incarcerated may be lowering the deterrent value of prison by diluting the criminal stigma.").
192. See TOM R. TYLER, WSHY PEOPLE OBEY THE LAW 31, 64-68 (1990);
193. Lawrence W. Sherman, Defiance, Deterrence, and Irrelevance: A Theory of the Criminal Sanction, 30 J. RES. OF CRIME AND DELINQ. 445, 448 (1993) ("Sanctions provoke future defiance of the law (persistence, more frequent or more serious violations) to the extent that offenders experience sanctioning conduct as illegitimate, that offenders have weak bonds to the sanctioning agent and community, and that offenders deny their shame and become proud of their isolation from the sanctioning community.").
194. Robinson & Darley, supra note 30, at 475;
195. see also JOHANNES ANDENAES, PUNISHMENT AND DETERRENCE 44 (1974) ("[A] certain degree of respect for the formal law is probably essential for the smooth functioning of society. Where it is lacking, law enforcement agencies play a role similar to that of an occupying army in a foreign territory ....").
196. See, e.g., Martha Chamallas, Lucky: The Sequel, 80 IND. L.J. 441, 455 (2005) ("In cases in which the accused was also black, moreover, [rape] victims might be extremely reluctant to report the crime, both because of their mistrust of the criminal justice system and also because they wished to avoid being perceived as a traitor who lacked racial solidarity.");
197. cf. Johanna E. Bond, International Intersectionality: A Theoretical and Pragmatic Exploration of Women's International Human Rights Violations, 52 EMORY L.J. 71, 149 (2003) (noting that black South African women are "reluctant to involve the police in domestic violence situations when contact with the police could expose their families and themselves to violence at the hands of the state");
198. Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 723 (1995) ("[B]lack jurors are already nullifying on the basis of race because they do not want to send another black man to prison ....").
199. Ideally, we would want to construct an experiment in which incarceration or its absence is randomly assigned to comparable offenders (and/or across comparable geographic units), and compare data regarding subsequent crime rates between the control and variable sets. But of course, this cannot be done: society (rightly) would not tolerate deliberately declining to punish known offenders for the sake of research. Thus, rather than generate new data, researchers must, for the most part, try to analyze whatever data is generated by the existing criminal justice system. See Spelman, supra note 1, at 425.
200. Note that these three questions correspond closely, but not exactly, to the three categories of criminogenic mechanisms discussed in Part I. So long as the three questions together capture all the relevant criminogenic effects, we can be confident that the division among them should not affect our results.
201. Of course, violent crime is not the only form of crime committed in prison, but it stands to reason that it is the most prevalent type, given the restrictions on inmate property ownership as well as the practical limitations on secreting stolen goods in prison. Moreover, there is far more data available on violent crime than other in-prison crime. See BYRNE, supra note 38, at 12-14 (cataloging the available sources of data on in-prison crime and listing primarily crimes of violence).
202. Id. at 5-6.
203. See id.;
204. HUMAN RIGHTS WATCH, NO ESCAPE: MALE RAPE IN U.S. PRISONS § VII (2001), available at http://www.hrw.org/reports/2001/prison/report7.html (discussing drastic underreporting of male rape in prison).
205. See BYRNE, supra note 38, at 12-13.
206. JAMES J. STEPHAN & JENNIFER C. KARBERG, U.S. DEP'T. OF JUSTICE, BUREAU OF JUSTICE STATISTICS, CENSUS OF STATE AND FEDERAL CORRECTIONAL FACILITIES, 2000, at 10 tbl.16 (2003), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/csfcf00.pdf.
207. FBI, CRIME IN THE UNITED STATES 2000: UNIFORM CRIME REPORTS 11 (2000) [hereinafter UCR], available at http://www.fbi.gov/ucr/00cius.htm.
208. UCR, supra note 151, at 6.
209. According to the Department of Justice's National Crime Victimization Surveys, nearly two-thirds of aggravated assaults and 41 percent of overall violent crimes are reported. See CAL. LEGISLATIVE ANALYST'S OFFICE, CALIFORNIA'S CRIMINAL JUSTICE SYSTEM: A PRIMER, at ch. 4 (2007), available at http://www.lao.ca.gov/2007/cj-primer/cj-primer-013107.aspx.
210. Comparing these figures to in-prison reporting rates suggests that the nonprison reporting rate of assaults is perhaps anywhere between two to five times higher. See BYRNE, supra note 38, at 6.
211. However, since one-third of the reported in-prison assaults were against staff, which are presumably reported at a much higher rate than assaults in which inmates were victims, then the effect of in-prison underreporting is likely one-third less as well. STEPHAN & KARBERG, supra note 150, at 10 tbl.6. This suggests that the true underreporting of in-prison assaults is only about 1.3-3.5 times higher than the underreporting of violent crime generally. One could fairly estimate that in-prison assaults go unreported about twice as often as other assaults.
212. The UCR total violent crime index includes murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault. See UCR, supra note 151, at 11.
213. The BJS figure includes assaults that resulted in death. See STEPHAN & KARBERG, supra note 150, at 10 tbl.6. This latter figure apparently includes even nonaggravated assault, and may or may not include sexual assault. Thus, the true extent to which the UCR data is broader than the BJS data is uncertain.
214. The greater underreporting of in-prison violence alone may mean that the prison assault rate is underestimated by a factor of at least two. See supra note 153.
215. See, e.g., Steven D. Levitt, The Effect of Prison Population Size on Crime Rates: Evidence from Prison Overcrowding Litigation, 111 Q.J. ECON. 319, 345 tbl.8 (1996) (estimating that the average costs of various violent crimes range from $17,800-$2,717,000, whereas the average costs of various property crimes range from $200-$4,000).
216. See supra text accompanying notes 30-38, 43-45.
217. Ninety-five percent of all prison admissions result in eventual release. JACOBSON, supra note 6, at 131.
218. More than 500,000 prisoners are being released each year. Pager, supra note 61, at 938.
219. See e.g., PATRICK A. LANGAN & DAVID J. LEVIN, U.S. DEP'T. OF JUSTICE, BUREAU OF JUSTICE STATISTICS, RECIDIVISM OF PRISONERS RELEASED IN 1994, at 3 (2002), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/rpr94.pdf. There are various ways to assess the rate of recidivism: the re-arrest rate, the reprosecution rate, or the reimprisonment rate of offenders. Re-arrest figures may be overbroad, in that they include innocent suspects who have been arrested. However, many guilty suspects are not prosecuted, and many who are prosecuted do not receive prison sentences. Thus, the other options may be too narrow. Since much crime goes unreported, even the rearrest figures themselves may underestimate true crime levels. Because of this, and for the sake of consistency, I focus exclusively on evidence of the re-arrest rate of released prisoners.
220. Id. at 1 (presenting a study of released prisoners from fifteen states and reporting a three-year re-arrest rate of 67.5 percent);
221. id. at 11 (noting a study from 1983 involving eleven of those same states and reporting a three-year re-arrest rate of 62.5 percent);
222. MILES D. HARER, FED. BUREAU OF PRISONS, RECIDIVISM AMONG FEDERAL PRISONERS RELEASED IN 1987, at 2 (1994), available at http://www.bop.gov/news/research-projects/published-reports/recidivism/ oreprrecid87.pdf (presenting a study of federal prisoners and reporting a three-year re-arrest rate of 41 percent).
223. Another study of federal prisoners reported a re-arrest rate of 22 percent, but that was over two years, not three. See U.S. SENTENCING COMM'N, MEASURING RECIDIVISM: THE CRIMINAL HISTORY COMPUTATION OF THE FEDERAL SENTENCING GUIDELINES 21 exhibit 2 (2004), available at http://www.ussc.gov/publicat/Recidivism-General.pdf.
224. Given that the vast majority of inmates are in state, not federal, institutions, the state studies arguably should be given more weight than the federal study. See STEPHAN & KARBERG, supra note 150, at 1 tbl. 1.
225. The two state studies reported higher recidivism rates, and were fairly consistent with each other. Andrew D. Leipold, Recidivism, Incapacitation, and Criminal Sentencing Policy, 3 U. ST. THOMAS L.J. 536, 548-49 (2006).
226. Moreover, the lower federal figures may be explained in large part by unique characteristics of the federal inmate pool. Id. Few federal inmates are convicted of nonfraud property crimes, which have very high recidivism rates, and many are convicted of immigration offenses, and are thus removed from the pool of potential recidivists upon deportation. Id.
227. See Andrews et al., supra note 20, at 377.
228. Id. at 383 tbl.2.
229. See, e.g., Petersilia et al., supra note 15, at 109 (reporting that, in California, prison led to a 17 percent increase in recidivism over probation for those convicted for property crimes, an 11 percent increase for drug offenders, and a 3 percent increase for violent offenders).
230. If the true recidivism rate were lower, then the percentage of recidivism attributable to incarceration would be even greater; at the same time, recidivism would count for a lower percentage of overall crime. Thus, the figure from the 1994 recidivism study essentially helps us establish an exchange rate between recidivism and overall crime, and we need not be overly concerned with its accuracy.
231. LANGAN & LEVIN, supra note 159, at 6.
232. Id.
233. A five-year window is probably a more accurate assumption. According to the BJS, among prison inmates who had previously been incarcerated, 91 percent experienced their prior period of incarceration within five years of their current one. See ALLEN BECK ET AL., U.S. DEP'T. OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SURVEY OF SSTATE PRISON INMATES, 1991, at 11 (1993), available at http://www.ojp.usdoj. gov/bjs/pub/pdf/sospi91.pdf.
234. This is based on several assumptions. First, it assumes that prisoners released in 1992 would be in the third year of their recidivist window in 1994 and thus available to commit crimes; those released in 1993 would be in the second and third years of their window during 1994 and 1995; those released in 1995 would be in the first and second years of their window during 1996 and 1997; and those released in 1996 would be in the first year of their window during 1997. Second, it also assumes, in the absence of evidence to the contrary, that those prisoners would recidivate at the same rates as those released in 1994. This assumption is defensible given that a substantially similar study of inmates released in 1983 found a similar three-year recidivism rate of 62.5 percent. See LANGAN & LEVIN, supra note 159, at 11. Third, it assumes that the average number of prisoners released each year remained constant. This assumption is also defensible, because trends in prison releases stayed fairly constant in the several years before and after 1994, meaning that the number of released prisoners in 1994 is a good representation of the mean. See TIMOTHY A. HUGHES ET AL., U.S. DEP'T. OF JUSTICE, BUREAU OF JUSTICE STATISTICS, TRENDS IN STATE PAROLE, 1990-2000, at 4 tbl.3 (2001), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/tsp00.pdf.
235. Fortunately, this estimate of the overall impact of incarceration on recidivism does not require us to distinguish which feature of having been incarcerated - the experience of it, or the collateral consequences experienced after completion of sentence - accounts for what portion of the increase in released offenders' crime. Yet that same lack of specificity makes this figure less helpful in figuring out how to reform our penal practices in order to reduce recidivism.
236. LANGAN & LEVIN, supra note 159, at 6.
237. See supra text accompanying notes 85-88.
238. U.S. DSEP'T OF JUSTICE, THE NATION'S TWO CRIME MEASURES 1 (2004), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ntcm.pdf (failing to note drug offenses on list of crimes measured by UCR or NCVS); Spelman, supra note 1 , at 433.
239. See, e.g., UCR, supra note 151, at 213 tbl.28 (reporting that 19.3 percent of total index crime is committed by those under 18 years of age). This is likely a conservative estimate. See Spelman, supra note 1, at 424 (reporting a juvenile rate of 20-30 percent); OJJDP.NCJRS.org, Juveniles as Offenders: Frequently Asked Questions , http://www.ojjdp.ncjrs.org/ ojstatbb/offenders/qa03202.asp?qaDate=19990930 (last visited Nov. 17, 2008) (indicating that juveniles were responsible for, on average, one quarter of violent victimizations in 1973-97).
240. See supra text accompanying note 98.
241. DAVID G. MYERS, THE AMERICAN PARADOX: SPIRITUAL HUNGER IN AN AGE OF PLENTY 117 (2000) (citing a study calculating that "the sons of single parents are at seven times greater risk of incarceration than sons reared by two biological parents");
242. SIMMONS, supra note 102, at 6 ("Children of offenders are five times more likely than their peers to end up in prison themselves." (quoting Susan M. Hunter, Forward, in CHILDREN OF INCARCERATED PARENTS, at ix (Katherine Gabel & Denise Johnston eds., 1995)));
243. cf. J. MARK EDDY & JOHN B. REID, THE ANTISOCIAL BEHAVIOR OF THE ADOLESCENT CHILDREN OF INCARCERATED PARENTS: A DEVELOPMENTAL PERSPECTIVE 21 (2002), available at http://www.urban.org/Uploadedpdf/410631-AntisocialBehavior.pdf (noting that children with parents who exhibit the most antisocial behavior are three to six times more likely to exhibit violent or serious delinquency than the children of the least antisocial parents).
244. SIMMONS, supra note 102, at 4.
245. This estimate does not control for the possibility that some other factor that correlates with both parental incarceration and juvenile delinquency is at play. However, by focusing only on the removal effect of incarceration, I have attempted to compensate for this potential source of error.
246. Donohue & Siegelman, supra note 15, at 7;
247. Spelman, supra note 1, at 423 (referring to this method as the "bottom-up" approach that tries to "get inside the black box").
248. Donohue & Siegelman, supra note 15, at 7;
249. Spelman, supra note 1, at 423 (referring to this method as the "top-down" approach where "researchers work around the black box").
250. In Part II.B.l, I argued that it was fair to count all in-prison crime as being caused by incarceration because whatever crime was avoided during an offender's incarceration would be captured by estimates of prison's incapacitation effect. Although I am comparing my crime-causing estimates against studies measuring the aggregate effect, not merely the incapacitation effect, of prison, this does not undermine the validity of my approach because the aggregate studies include the incapacitation effect of prison along with its other effects.
251. U.S. DEP'T OF JUSTICE, supra note 173, at 1.
252. Donohue & Siegelman, supra note 15, at 10.
253. Spelman, supra note 1, at 424.
254. Id. at 435-36 (noting that prison-crime correlation studies may overestimate crime-reducing effects of other punishments not included in the studies).
255. See Levitt, supra note 156, at 322. Elasticity is defined as "the percentage change in the crime rate associated with a 1 percent change in the prison population." Spelman, supra note 1, at 421.
256. For convenience, elasticities will be expressed herein in terms of the percentage change in crime rates of a 100 percent increase (or doubling) of the prison population. Thus, an elasticity of .08 means that doubling the prison population would reduce crime rates by an additional 8 percent. Elasticity is not the only thing these studies measure. Some also measure "marginal effectiveness," i.e., how many crimes are prevented by putting one more offender in prison. Id. However, because this latter measure is expressed in terms of crime-prevention benefits on an individual level, it is not as good as elasticity at presenting a picture of how much aggregate crime prison is preventing.
257. Spelman, supra note 1, at 424;
258. see id. at 420 ("[Proving prisons are] 'better than nothing' may be a minimal requirement, but it has taken decades to establish whether even this is true.").
259. Christy A. Visher, Incapacitation and Crime Control: Does a "Lock 'em Up" Strategy Reduce Crime?, 4. JUST. Q. 513, 519 (1987) (concluding that the doubling of the prison population in the prior decade had reduced crime 10-30 percent, an elasticity of -0.10 to -0.30).
260. Professors Cappell and Sykes, analyzing data from 1933-85, found an overall crime-prison elasticity of -0.26. See Charles L. Cappell & Gresham Sykes, Prison Commitments, Crime, and Unemployment: A Theoretical and Empirical Specification for the United States, 1933-1985, 1 J. QUANTITATIVE CRIMINOLOGY 155, 186-87, 190 (1991).
261. Professors Marvell and Moody, analyzing data from 1971-89, estimated an overall crime-prison elasticity of -0.16. Thomas B. Marvell & Carlisle E. Moody, Jr., Prison Population Growth and Crime Reduction, 10 J. QUANTITATIVE CRIMINOLOGY 109, 133 (1994).
262. Several other studies from the early 1990s estimated prison-crime elasticities at -0.16 to -0.26. Spelman, supra note 1, at 424;
263. see also James Q. Wilson, Commentary, Prisons in a Free Society, 117 PUB. INTEREST 37, 38 (1994) (concluding that prison-crime elasticity was between -0.10 and -0.20).
264. Levitt, supra note 156, at 338 tbl.6. Specifically, he found crime-prison elasticities of -0.38 to -0.42 for violent crime and -0.26 to -0.32 for property crime. Id. Because property crime is far more prevalent than violent crime, the overall elasticity would be weighted toward the lower end.
265. See Spelman, supra note 1 , at 484.
266. They estimated an implied violent crime-prison elasticity of 6-11 percent, and a property crime-prison elasticity of 15-21 percent. Johnson & Raphael, supra note 8, at 2-3.
267. The stated overall elasticity estimate is based on the fact that property crime typically constitutes about seven-eighths of overall index crime. See supra text accompanying note 152.
268. Donohue & Siegelman, supra note 15, at 1-2.
269. See, e.g., JACOBSON, supra note 6, at 106-30;
270. Robert H. DeFina & Thomas M. Arvanites, The Weak Effect of Imprisonment on Crime: 1971-1988, 83 SOC. SCI. Q. 635, 651 (2002) (concluding that aggregated national data obscures important state-to-state differences, and that, "[w]hen separate regressions are estimated for each state, as is appropriate, the data reveal that imprisonment has no statistically significant effect in the majority of states for any of the seven crimes studied");
271. Anthony N. Doob & Cheryl Marie Webster, Sentence Severity and Crime: Accepting the Null Hypothesis, 30 CRIME AND JUST. 143, 191 (2003) (finding no crime-rate reductions by alterations in sentence severity that are "within the limits that are plausible in Western countries").
272. See JACOBSON, supra note 6, at 110-11.
273. Id. at 127-29;
274. see also KING ET AL., supra note 3, at 3 (citing similar evidence regarding the late 1990s).
275. See, e.g., PETER W. GREENWOOD, U.S. DEP'T. OF JUSTICE, NAT'L INST. OF JUSTICE, SELECTIVE INCAPACITATION 44-46 (1982) available at http://www.rand.org/pubs/reports/2007/R2815.pdf;
276. LANGAN & LEVIN, supra note 159, at 5 tbl.4 (finding that less than 24 percent of released prisoners account for more than . 52 percent of crimes committed by that group);
277. Visher, supra note 188, at 523.
278. Donohue & Siegelman, supra note 15, at 10-11.
279. See id. at 11;
280. Johnson & Raphael, supra note 8, at 1, 25, 28;
281. Mauer, supra note 33, at 613.
282. See Johnson & Raphael, supra note 8, at 28.
283. See JACOBSON, supra note 6, at 45 (noting that the 25 percent increase in prison populations from 1986-2001 was due to nonviolent drug convictions);
284. Mauer, supra note 33, at 613 ("[T]he number of persons awaiting trial or serving a sentence for a drug offense in prison or jail has increased from about 40,000 in 1980 to 450,000 [in 2005].");
285. Pager, supra note 61, at 938 n.2 (noting that the chances of receiving a prison term for a drug offense rose 547 percent from 1980-92).
286. MARC MAUER, THE SENTENCING PROJECT, RACE TO INCARCERATE 114-15 (1999);
287. see supra text accompanying notes 123-136.
288. Levitt, supra note 156, at 345, 347.
289. See supra text accompanying note 191.
290. Johnson & Raphael, supra note 8, at 27.
291. In fact, for their earlier period of 1978-90, they found crime-prison elasticities that were in line with Professor Levitt's larger aggregate elasticities for the period of 1971-93. See Levitt, supra note 156, at 324, 327.
292. Johnson & Raphael, supra note 8, at 27.
293. See supra text accompanying note 191.
294. See Visher, supra note 188, at 519-20 (citing research from the 1980s estimating that further future increases in prison population would only yield a prison-crime elasticity of 0.5-0.10).
295. See supra text accompanying notes 47-48.
296. This is assuming that we do not continue to incarcerate more and more inmates for life, which is likely untenable at least from a financial perspective, if not from a social, political, or constitutional perspective.
297. Clear, supra note 62, at 11, 12.
298. See, e.g., Mauer, supra note 33, at 614 ("[T]he sheer number of African Americans who are incarcerated has served to reduce confidence and trust in the justice system among many black Americans .... Anecdotal evidence in major news media includes such stories as a black woman serving on a jury in a murder case in Washington, D.C. who voted to acquit the defendant because she didn't 'want to send another young black man' to prison.").
299. See id. ("Emerging research in this area [relating to the effects of imprisonment on community stability] suggests that there may be a 'tipping point' beyond which the negative effects of large-scale imprisonment outweigh any reductions in crime.").
300. See OJP.USDOJ.gov, Key Facts at a Glance, Incarceration Rate, 1980-2006, http://www.ojp.usdoj.gov/bjs/glance/tables/incrttab.htm (last visited Nov. 17, 2008) (showing that the number of incarcerations per 100,000 in America was 389 in 1994, 478 in 2000, and 501 in 2006).
301. Studies correlating prison populations with crime rates ostensibly include the crime-reducing effects of rehabilitation. However, because rehabilitative theory and programming fell into such disfavor for much of the period covered by the correlation studies, Michael Vitiello, Reconsidering Rehabilitation, 65 TULANE L. REV. 1011, 1012-13 (1991), it can safely be assumed that its contribution to the measured crime-reducing effect of prisons during this period has been negligible.
302. See Andrews et al., supra note 20, at 383 tbl.2;
303. see also SHERMAN ET AL., supra note 88, at 9-14 to 9-26 (reviewing research showing little or no demonstrable recidivism-reducing benefit to shock probation or Scared-Straight-deterrent programs; intensive supervisory probation or parole, house arrest, halfway houses; or day reporting centers);
304. id. at 9-27 to 9-30 (reporting no demonstrable benefit of boot camps or other shock incarceration programs in the absence of rehabilitative elements).
305. The very phrase "nothing works" owes its popular origin to the ostensible conclusion of a paper by Professor Robert Martinson. Robert Martinson, What Works? - Questions and Answers About Prison Reform, 35 PUB. INTEREST 22 (1974).
306. See id. at 25 ("With few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism." (italics omitted)). However, as even Martinson himself pointed out, his research did not show that "nothing works". Robert Martinson, New Findings, New Views: A Note of Caution Regarding Sentencing Reform, 7 HOFSTRA L. REV. 243, 253-54 (1979). Rather, it showed that, while the pool of rehabilitative programs as a whole showed no demonstrable tendency to work, particular programs could work under the right circumstances.
307. See Martinson, supra note 216, at 25.
308. See SHERMAN ET AL., supra note 88, at 9-15 to 9-19 ("[R]ecent literature reviews and meta-analyses demonstrate that rehabilitation programs can effectively change offenders.");
309. Edward L. Rubin, The Inevitability of Rehabilitation, 19 LAW & INEQ. J. 343, 367 (2001) ("The conclusion that rehabilitation is a failure is empirically false.").
310. Latessa & Lowenkamp, supra note 23, at 521 ("[T]he key is no longer simply identifying what works, but instead determining what conditions and characteristics of programs are associated with the greatest effectiveness.").
311. Roger K. Warren, Evidence-Based Practices and State Sentencing Policy: Ten Policy Initiatives to Reduce Recidivism, 82 IND. L.J. 1307, 1308 (2007);
312. see BRAD BOGUE, CRIME & JUSTICE INST. & NAT'L INST. OF CORRECTIONS, IMPLEMENTING EVIDENCE-BASED PRACTICE IN COMMUNITY CORRECTIONS: THE PRINCIPLES OF EFFECTIVE INTERVENTION (2004), available at http://www.crjustice.org/cji/evidencebased.pdf.
313. Andrews et al., supra note 20, at 383 tbl.2;
314. Warren, supra note 220, at 1309;
315. see STEVE AOS ET AL., WASH. STATE INST. FOR PUB. POLICY, EVIDENCE-BASED ADULT CORRECTIONS PROGRAMS: WHAT WORKS AND WHAT DOES NOT 3 (2006), available at http://www.wsipp.wa.gov/rptfiles/06- 01-1201.pdf (summarizing review of research and finding that the best-designed programs in certain categories reduced recidivism by 22-31 percent);
316. Latessa & Lowenkamp, supra note 23, at 525-27 (reviewing study of over one hundred correctional programs and concluding that the top ten programs reduced recidivism in high-risk offenders by over 20 percent, and the top four did so by over 30 percent).
317. Andrews et al., supra note 20, at 383 tbl.2 (noting that recidivism rates for both residential and community-based criminal sanctions were higher when combined with inappropriate correctional service than in the absence of any service); Latessa & Lowenkamp, supra note 23, at 522 ("[W]hen we place low-risk offenders in our more intense programs, we often increase their failure rates ....");
318. see also id. at 526 (reviewing research showing that low-risk offenders had overall higher rates of recidivism in rehabilitation programs than in control groups).
319. Latessa & Lowenkamp, supra note 23, at 533 (summarizing research showing that nonresidential programs with low EBP "integrity" scores were "increasing recidivism by 15% compared to the highest scoring programs, which showed reductions in recidivism of 16%").
320. Andrews et al., supra note 20, at 384 (noting a 20 percent drop in recidivism among residential sanctions incorporating appropriate correctional service, compared to a 35 percent drop for community-based sanctions incorporating such service).
321. Reducing punishment levels may conflict with retributive interests, but that conflict is a separate inquiry. See infra text accompanying notes 261-268.
322. See Clemens Bartollas, The Prison: Disorder Personified, in ARE PRISONS ANY BETTER? TWENTY YEARS OF CORRECTIONAL REFORM 11, 17-18 (John W. Murphy & Jack E. Dison eds., 1990).
323. See supra text accompanying notes 39-41.
324. Those who oppose such restrictions generally, however, at least concede the appropriateness of laws restricting felons from obtaining licenses where there is a potential for harm in allowing them to enter the particular field. See, e.g., Stafford, supra note 62, at 276 (advocating the limitation of license-granting authorities' discretion).
325. Indeed, if the sentence itself was the appropriate retributive response, then any deprivations deliberately imposed upon the offender after serving that sentence should be deemed excessive and unjust. Unless these measures have a demonstrable deterrent effect (and this already assumes that the sentence imposed was not designed to attain optimal deterrence), then presumably the burdens they imposed on former offenders and their families outweigh the benefit under any utilitarian calculus.
326. See Donohue & Siegelman, supra note 15, at 39-40.
327. See Engel & Rothman, supra note 31 , at 413.
328. Doris Layton MacKenzie & Claire Souryal, A " Machiavellian" Perspective on the Development of Boot Camp Prisons: A Debate, 2 U. CHI. L. SCH. ROUNDTABLE 435, 436, 442 (1995).
329. Andrews et al., supra note 20, at 383, tbl.2 (noting that residential correctional programs have a 14 percent recidivism rate versus 5 percent for community-based corrections).
330. The same meta-analysis that showed that residential corrections yielded higher recidivism rates found that even appropriate rehabilitative programming was less effective in residential than in community-based corrections. See id. (reporting a 35 percent recidivism rate in appropriate rehabilitative programming versus 20 percent in appropriate community-based corrections).
331. America's prisons are not the only ones suffering from high recidivism rates. See JACOBSON, supra note 6, at 73 (commenting that British prisons' recidivism rate is 11 percent higher than America's). However, it is not clear whether this is an indication that prisons are inherently criminogenic, or whether other nations' prisons suffer from the same design or implementation flaws as ours.
332. MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON
333. See Braithwaite, supra note 34, at 56.
334. Research suggests that reactance can be reduced by heightening the credibility of the source of the prohibition. See, e.g., Paul J. Silvia, Deflecting Reactance: The Role of Similarity in Increasing Compliance and Reducing Resistance, 27 BASIC & APPLIED SSOC. PSYCHOL. 227, 282-83 (2005).
335. However, it is unlikely that criminal reactance could be eliminated entirely, given that those who desire to do what the state forbids are unlikely to completely relate to the state's perspective and thereby find it credible.
336. Indeed, it is the moral wrongfulness of an act that sets it apart as criminal; merely harmful acts may be deterred through the tort system, and wrongful acts such as drunk driving or attempted murder are punished criminally even though no tangible harm results.
337. See BRAITHWAITE, supra note 19, for a theory on what conditions will lead to which result.
338. See supra text accompanying notes 82-83.
339. See Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591, 594-601 (1996) (discussing the expressive theory of punishment).
340. See supra text accompanying notes 24-29, 69-72.
341. Publicity (such as mandatory sex-offender registries, or publishing of the identities of white-collar criminals) may incapacitate by alerting others to the dangers of dealing with the offenders. See Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880, 1900 (1991).
342. But the incapacitation effect is smaller and much more indirect than that of incarceration, making this type of punishment inappropriate for many crimes. See Kahan, supra note 241, at 648. House arrest, electronic monitoring and the like may incapacitate better than mere publicity, but their incapacitation effect is still less than that of prison, and they are likely to be used only where incapacitation is not a serious concern to begin with.
343. See Kahan, supra note 241, at 623-24 (arguing that, aside from the public demand that violent offenders be incapacitated, "a politically acceptable exchange rate for fines and imprisonment cannot be constructed for at least some serious offenses" because other punishments fail to carry a sufficient message of condemnation).
344. Some forms of incapacitation would be unacceptable because they are too severe. Capital punishment obviously incapacitates, but it is appropriate only for a very narrow class of crimes, if at all. See Coker v. Georgia, 433 U.S. 584 (1977) (finding that capital punishment is generally disproportionate under the Eighth Amendment for any offense other than murder, but reserving the question for future cases).
345. Moreover, the incapacitation rationale does not justify the use of capital punishment versus life imprisonment, which incapacitates just as effectively (barring escapes). Corporal punishment incapacitates to the extent that it maims, but it is probably too barbaric for today's society and would not pass constitutional muster. See Weems v. United States, 217 U.S. 349 (1910) (finding excessive incarceration and punishment may constitute cruel and unusual punishment);
346. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) (finding whipping to constitute cruel and unusual punishment);
347. Rubin, supra note 218, at 349 (commenting that reinstituting corporal punishment seems "inconceivable" today).
348. Surgical castration may incapacitate many sex offenders, but it also raises serious ethical and constitutional concerns. See Lystra Batchoo, Voluntary Surgical Castration of Sex Offenders: Waiving the Eighth Amendment Protection from Cruel and Unusual Punishment, 72 BROOK. L. REV. 689, 695 (2007) (citing evidence that surgical castration can drastically reduce recidivism rates);
349. id. at 701-10 (discussing public, judicial, and scholarly aversion to forced surgical castration, based both on ethical objections and likely violation of the Eighth Amendment ban on cruel and unusual punishment).
350. Exile could theoretically incapacitate (at least with regard to the offender's capacity to harm the society from which he was exiled), but given the political subdivision of most inhabitable lands, as well as advances in communications and transportation technology, this is no longer a viable option. See Rubin, supra note 218, at 350 ("[E]xile requires the use of someone else's territory as a dumping ground for one's undesired citizens.").
351. Massaro, supra note 243, at 1893-94.
352. BRATTHWAITE, supra note 34, at 68;
353. see also BREHM & BREHM, supra note 50, at 300-01 (citing reactance as an undesirable effect of therapy).
354. BRAITHWAITE, supra note 34, at 68.
355. Id.
356. Consider this classic nineteenth-century articulation of the assaultive version of retribution: The mere general suspicion or knowledge that a man has done something dishonest may never be brought to a point, and the disapprobation excited by it may in time pass away, but the fact that he has been convicted and punished as a thief stamps a mark upon him for life .... The criminal law thus proceeds upon the principle that it is morally right to hate criminals .... I think it highly desirable that criminals should be hated, that the punishments inflicted upon them should be so contrived as to give expression to that hatred .... JAMES FITZJAMES STEPHEN, 2 A HISTORY OF THE CRIMINAL LAW OF ENGLAND 80-83 (1883),
357. reprinted in JOSHUA DRESSLER, CASES AND MATERIALS ON CRIMINAL LAW 41 (4th ed. 2007);
358. see also Jeffrie G. Murphy, Forgiveness, Mercy, and the Retributive Emotions, 7 CRIM. JUST. ETHICS 3, 3 (1998) (noting that punishment satisfies the victim's and/or society's natural emotional retributive hatred).
359. Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV. 1659, 1686-87 (1992) ("[W]e are morally required to respond by trying to remake the world in a way that denies what the wrongdoer's events have attempted to establish, thereby lowering the wrongdoer, elevating the victim, and annulling the act of diminishment.").
360. Id. at 1689.
361. See id. at 1691 ("I take it to be extremely difficult for a society to fashion retributive punishments for serious felons that simultaneously respect the wrongdoer and defeat him in a way that destroys his claim to mastery.").
362. Id.;
363. see also Erik Luna, Punishment Theory, Holism, and the Procedural Conception of Restorative Justice, 2003 UTAH L. REV. 205, 220 ("Whatever expression is intended by retribution, the message received by an inmate is exclusionary: You are evil and have no place in society.").
364. See supra notes 162-164.
365. I should also point out what I have not done. I have not tried to distinguish between the magnitude of the criminogenic effects of incarceration that inhere to the institution, and that of effects that are unique to our current prison system. Thus, I am unable to estimate how much of prison's criminogenic impact is attributable to changeable conditions like overcrowding versus immutable characteristics of forced confinement. That is a subject for further research, as discussed in Part V.
366. See supra text accompanying notes 13-17.
367. See supra text accompanying note 55.
368. See Donohue & Siegelman, supra note 15, at 3 (demonstrating that, given certain assumptions, "diverting resources from continuing large increases in incarceration and directing the social savings to preschool interventions could reduce crime without increasing spending");
369. Spelman, supra note 1, at 487 ("Even if we could be certain that prison construction was cost-effective, it may still be true that some other program or policy was more cost-effective.").
370. See SIMMONS, supra note 102, at 1, 3, 10.
371. Richard S. Frase, Limiting Retributivism, in THE FUTURE OF IMPRISONMENT 83, 84 (Michael Tonry ed., 2004);
372. Warren, supra note 220, at 1309.
373. Norval Morris, The Future of Imprisonment: Toward a Punitive Philosophy, 72 MICH. L. REV. 1161, 1173 (1974) ("[T]he link between established crime and deserved suffering is a central precept of everyone's sense of justice ....").
374. Richard S. Frase, Sentencing Principles in Theory and Practice, 22 CRIME &JUST. 363, 373(1997).
375. See Richard S. Frase, Punishment Purposes, 58 STAN. L. REV. 67, 76-77 (2005).
376. See, e.g., Morris, supra note 262, at 1173. For example, if the not undeserved punishment for robbery were two to ten years in prison, but given imperfect detection or apprehension, a fifty-year sentence would be required to optimally deter burglary, a limiting retributivist would forbid imposing the optimal punishment on fairness grounds.
377. See, e.g., Lawrence Crocker, The Upper Limit of Just Punishment, 41 EMORY L.J. 1059, 1060, 1093-97 (1992) ("[F]or each offense there is an upper limit on the severity of just punishment. This upper limit is the soul of retributive justice.");
378. Frase, supra note 264, at 78 ("Desert-based limits on maximum sanction severity have received particularly broad support.").
379. See, e.g., Hampton, supra note 251, at 1687-89.
380. Morris, supra note 262, at 1162.
381. JACOBSON, supra note 6, at 60-64;
382. MacKenzie & Souryal, supra note 232, at 444-45.
383. Rachel E. Barkow, Federalism and the Politics of Sentencing, 105 COLUM. L. REV. 1276, 2380 (2005);
384. MacKenzie & Souryal, supra note 232, at 444-45;
385. see also Paul Almond, Public Perceptions of Work-Related Fatality Cases: Reaching the Outer Limits of 'Populist Punitiveness'?, 48 BRIT. J. CRIMINOLOGY 448, 449 (2008).
386. See Kahan, supra note 241, at 652 ("The public expects punishment not only to deter crime but to express appropriate moral condemnation. Because of the value of liberty in our culture, imprisonment unequivocally conveys society's denunciation of wrongdoers. The conventional alternatives, however, express condemnation much more ambivalently.").
387. See Warren, supra note 220, at 1310-11.
388. See supra text accompanying notes 39-41.
389. See Chen, supra note 17, at 14, 19-23.
390. It is doubtful that most convicts were even aware of such consequences when they committed their crimes, or that such consequences factored into their decision making. Indeed, research indicates that even the threat of incarceration itself does little to deter. For example, one study showed that 76 percent of apprehended criminals, and 89 percent of the most violent criminals, had given no thought either to the possibility of being caught or of what their likely punishment would be if caught. See David A. Anderson, The Deterrence Hypothesis and Picking Pockets at the Pickpocket's Hanging, 4 AM. L. & ECON. REV. 295, 303 (2002).
391. Moreover, of the remaining offenders "with the information and mindset to respond to harsher punishments, 72% of violent offenders and 66% of all offenders reported that no punishment or detection method would have prevented them from committing their crimes." Id. at 305.
392. The other utilitarian rationales are rehabilitation and incapacitation. It is not clear how collateral consequences could rehabilitate an offender, and I am not aware of any evidence or arguments that they do. Aside from restrictions on jobs involving firearms, collateral consequences very rarely incapacitate, even indirectly.
393. See supra note 229 and accompanying text.
394. Stafford, supra note 62, at 276 (discussing N.Y. EXEC. LAW § 296(15)-(16)).
395. See id. at 277.
396. See supra text accompanying note 259.