Mass Incarceration’s Dangerous New Equilibrium

By Peter Temin, Elisha Gray II Professor Emeritus of Economics, Massachusetts Institute of Technology. Originally published at the Institute for New Economic Thinking website

Mass incarceration in the United States has mushroomed to the point where we look more like the authoritarian regimes of Eastern Europe and the Middle East than the democracies of Western Europe. Yet it vanished from political discussions in campaigns in the 2016 election. In a new INET Working Paper, I describe in detail how the US arrived at this point. Drawing on a new model that synthesizes recent research, I demonstrate how the recent stability in the number of American prisoners indicates that we have settled into a new equilibrium of mass incarceration. I explain why it will hard to dislodge ourselves from this damaging and shameful status quo.

Mass incarceration started from Nixon’s War on Drugs, in a process described vividly by John Ehrlichman, Nixon’s domestic-policy adviser, in 1994:

The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.

This was the origin of mass incarceration in the United States, which has been directed at African Americans from Nixon’s time to today, when one third of black men go to prison (Bonczar, 2003; Baum, 2016; Alexander, 2010).

Federal laws were expanded in state laws that ranged from three-strike laws to harsh penalties for possession of small amounts of marijuana. The laws also shifted the judicial process from judges to prosecutors, from the courtroom to offices where prosecutors pressure accused people to plea-bargain. The threat of harsh minimum sentences gives prosecutors the option of reducing the charge to a lesser one if the accused is reluctant to languish in jail awaiting trial—if he or she is unable to make bail—and then face the possibility of long years in prison. And the shift of power was eased by the pattern of financing. Prosecutors are paid by localities, while the costs of prisons are borne by states. The trip to the penitentiary does not cost prosecutor at all. “Instead of juries and trial judges deciding whether this or that defendant merits punishing, prosecutors decide who deserves a trip to the nearest penitentiary (Stuntz, 2011, 286; Pfaff, 2017, 127).”

In a recent book, Pfaff minimized the role of drug laws in mass incarceration on the grounds that most state prisoners were convicted of violent crimes; only federal prisoners were predominantly convicted of drug violations. But the importance of public prosecutors and plea bargains contaminates this inference because the listed crimes in state prisons were produced in plea bargains. Since drug laws contain so many minimum sentences, plea bargains were driven toward lesser charges that did not fall under the drug laws. The results of the plea bargains do not indicate why prisoners were originally arrested and charged (Pfaff, 2017).

Both political parties were engaged at different times in legislation that gave rise to mass incarceration. It would seem likely that they could get together to try to reduce the rate of incarceration, but the prospects are not good in our current political impasse. The reduction of incarceration always has some risks, and political figures are very risk averse. Some people want to reduce the cost of prisons to help fund other government programs, but they have not produced many proposals to accomplish this goal or how to allocate the gains.

As Todd Clear stated in his 2007 book, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse:

Imprisonment in America is concentrated among young, poor—dominantly minority—men and (to a lesser extent) women who come from impoverished communities. The way these young people cycle through our system of prisons and jails, then back into the community, leaves considerable collateral damage in its wake. Families are disrupted, social networks and other forms of social support are weakened, health is endangered, labor markets are thinned, and—more important than anything else—children are put at risk of the depleted human and social capital that promotes delinquency. After a certain point, the collateral effects of these high rates of incarceration seem to contribute to more crime in these places. Crime fuels a public call for ever-tougher responses to crime. The increasing way in which the face of criminality is the face of person of color contributes to an unarticulated public sense that race and crime are closely linked. The politics of race and justice coexist malignantly, sustaining an ever-growing policy base that guarantees new supplies of penal subjects in a self-sustaining and self-justifying manner (Clear, 2007, 175).

We seem to be in a new equilibrium. It took forty years to get to this point, and it may take at least that long to get back to what we can consider a normal incarceration rate typical of advanced economies. We have not yet started down that road.

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  1. paul

    Anyone who thinks it will take 40 years to undo a stroke of the pen,which the war on drugs was, is pissing (in a humanitarian direction) into the wind.

    Removing the prison population would give janet yelllen an enormous migraine.


    1. washunate

      Right on. And it’s interesting how the author makes it seem like it took 40 years to get here. 20 – 30 years ago we were already such an outlier that the “normal incarceration rate typical of advanced economies” made no sense as a reference point. The common comparisons were to places like Apartheid South Africa, China, and the USSR/Russia.

  2. funemployed

    I’d add that the distinction between violent crime and drug violations misses the mark in another way too. The massive scale of the US black market, the cruelty of life in US prisons, the massive distrust and animosity between law enforcement and many communities, the disruption caused to families and communities by mass incarceration, and our high rate of violent crimes are hardly unrelated phenomena.

    I’d wager decriminalization of drugs would lead to a pretty large decrease in supposedly unrelated violent crimes.

  3. QuarterBack

    True enough, but I’m sure the Prison Industrial Complex loves the idea of long term studies on impact followed by long term debates on methodology and findings. IMO, it is the monopolistic profitability of corporations like UNICOR that split their profits and governance with the very same people who control the mass incarceration and competitive bidding laws and policies, that far outweigh any other factor. Without substantial changes to the monetization and conflict of interest laws at the top, all the findings in the world are just noise to the entrenched system.

    Consider this 2003 Fortune article Business Behind Bars Former Reagan Attorney General Ed Meese has a way to slow the exodus of jobs overseas: Put prisoners to work

    Prominent conservatives have been encouraging prisons to put inmates to work for years. Led by Edwin Meese, the former U.S. Attorney General and head of the Heritage Foundation, and Morgan Reynolds, one of the first President Bush’s economic advisors, they have lobbied for real prison employment by the private sector–not just make-work projects like stamping license plates or building courthouse furniture. The benefits are difficult to ignore: Businesses get cheap, reliable workers; inmates receive valuable job training and earn more than they would in traditional prison jobs; and the government offsets the cost of incarceration and keeps jobs and tax dollars in the U.S.

    Who do you think legislators are going to take their guidance from? Former AGs (who just happened to build and grow the prison workforce), or scholarly studies?

  4. TheCatSaid

    Social engineering described in this post was also a continuation of corporate / elite commercial interes. Free labor–what’s not to like? Legal slavery, more profits from multiple directions of all kinds–legit, corrupt and criminal. Plus serving as a method to keep the downtrodden unable to respond in a way to create change (COINTELPRO and its contemporary descendants). . .

    No way out but through but what will that look like? Comes down to individual understanding and action, no single uniform “solution”. I gradually become more conscious of what I create. It’s not a process that can be urged on others. “Be the change . . .”

  5. cnchal

    . . . The politics of race and justice coexist malignantly, sustaining an ever-growing policy base that guarantees new supplies of penal subjects in a self-sustaining and self-justifying manner (Clear, 2007, 175).

    I am pissed at Ford. What a golden opportunity missed. Instead of moving Ford Fusion production to China, it could move production to a few prisons and use homegrown slaves instead of Chinese ones.

  6. David

    “The increasing way in which the face of criminality is the face of person of color contributes to an unarticulated public sense that race and crime are closely linked.”

    so no drug laws means no black inmates?

    even if drugs were legalized – the same people would be in jail for something else.

    There are no jobs – 40%+ UE Rate for this demographic – so what do you expect them to do?

    Eric Gardner was selling cigarettes “for money” – joke crime – yet five cops descended on him.

    1. cnchal

      > so what do you expect them to do?

      Globalization is a disaster wherever you care to look.

    2. HotFlash

      even if drugs were legalized – the same people would be in jail for something else.

      I have read your comment 4 times, so far, and still cannot see how you can say this. Pls explain.

      1. kurtismayfield

        The reason why the people are getting arrested and jailed for drug crimes is poverty. These people lack the economic opportunity to bring them out of it, so they drift to illegal enterprises. Even if you made all drug use and distribution/sales legal, this does not change the economic realities that make people choose an illicit activity in the first place. So they would be arrested for something else that is illegal.

        1. Michael Fiorillo

          If there’s the political will and power to repeal abusive drug laws, why wouldn’t it be (theoretically) possible to do the same with laws that target the poor?

          When I was growing up in the “bad old days” of ’70’s NYC, police officers would have rightfully laughed in the face of of a superior or elected official who told them to go after people selling “loosies” (a la Eric Garner).

          I’m not saying it will happen, but popular revolts could go a long way toward loosening the vise on poor communities.

        2. Ptolemy Philopater

          Recreational Cannabis is legal in Colorado. It is a state granted monopoly. Already Colorado is cracking down on home grown weed production. There is legalization, and there is state granted monopoly legalization. The outcome for poor people is the same. Cigarettes are legal, yet Eric Gardner was murdered for selling them. Go figure.

          Minority Heroin dealers are given intolerable sentences, but Perdue Pharmaceuticals floods the market with opiates with an ever increasing death toll, yet Raymond and Mortimer Sackler are billionaires. Go figure.

          We live in a mafia culture. It’s called ethnic privilege. Drugs are already legalized for the ethnically privileged. Mass incarceration, Genocide by Other Means, for the ethnically unprivileged. Go figure!

          1. Lord Koos

            The only state I know of that allows people to grow recreational and medical cannabis for their own use is Oregon. Everywhere else, states are more interested in the gravy train of taxation.

      2. washunate

        Bummer, I too would like to have heard David’s reasoning on this. It’s exactly the kind of reasoning that has been used for decades as an excuse to not change the laws, especially by Democrats who pretend to care about things like oppression and equity even while continuing to fund the police state.

        The drug laws are the foundation of the militarization of law enforcement and the taking away of a person’s right to a trial in our contemporary era. Get rid of the laws and the whole structure comes tumbling down.

  7. Kevin Horlock

    Police and prison guards’ unions = sweet spot of the Dem base (particularly in California)

    “Law and order” and disproportional impact on minorities = sweet spot of the Rethuglican base.

    To me, all analyses of this issue pretty well begins right there.

  8. clarky90

    I believe that we, the 80%, are being classed as the present day, Neo-Peasants and Neo-Kulaks. (Hillbillies, working class, uneducated, not woke, Nazis, deplorables, reactionaries, homeless, right-wing, religious bigots, addicts, petty criminals, progressives, Bernie-bros, conspiracy nuts …..) by the Neo-Apparatchiks.

    There is a Revolution going on! It is being waged against us.


    “During 1920–50, the leaders of the Communist Party …considered repression to be a tool that was to be used for securing the normal functioning of the Soviet state system, as well as for preserving and strengthening their positions within their social base, the (The 20%) Working Class. (The Bolshevik Leadership were not really “working class”, but usually, “Intellectuals”!) (…peasants, who were NOT considered “working class”, represented 80%!!!! of the USSR population then). The GULAG system was introduced in order to isolate and eliminate class-alien, socially dangerous, disruptive, suspicious, and other disloyal elements, whose deeds and thoughts were not contributing to the strengthening of the dictatorship of the proletariat. Forced labor (was used) as a “method of reeducation” ….”

    Terrorism and Communism: A Reply to Karl Kautsky

    “But terror can be very efficient against a reactionary class which does not want to leave the scene of operations. Intimidation is a powerful weapon of policy, both internationally and internally. War, like revolution, is founded upon intimidation. A victorious war, generally speaking, destroys only an insignificant part of the conquered army, intimidating the remainder and breaking their will. The revolution works in the same way: it kills individuals, and intimidates thousands.” Leon Trotsky, 1920

  9. Adam Eran

    There’s a pretty concerted effort to sabotage reducing prison populations. California freed some former “felons” (by reducing their crimes to misdemeanors) and promised programs, rehab, etc. with the saved money. What happened? Prison budgets have actually increased in the Governor’s budget. Still no money for programs. At best, the responsiveness of the prisons to reduced populations is “inelastic.”

  10. run75441

    Hi Yves:

    Wrote on this a while back. ~50% of the incarcerations are for nonviolent crimes. A 12 year sentence results in a level 4 prison until less than 10 years and you drop to a level 2 prison. Sentencing is an issue as well as courts. Imprisonment is the result of Courts and releasing people does not fix the issue when 85% of all trials are plea-bargained. If you fight back and go to trial, and lose; you get a harsher sentence.

    Fix the court system and make sure all defendants get proper representation in court so they do not have to plea-bargain. Early releases only fix what should have never happened if you are white or wealthy.

  11. John

    Not belittling the issue of mass incarceration in its principally known form, i.e. prisons, I’d like to point out that America itself is quite the gilded cage.

    1. Anti Schmoo

      “I’d like to point out that America itself is quite the gilded cage.” John

      A spot on observation; second that POV.

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