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«This PDF is available from The National Academies Press at The Growth of Incarceration in the United ...»

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We acknowledge that the relationship between scientific knowledge and policy making is complex, as a specialized literature on “research utilization” has long made clear (e.g., Cohen and Lindblom, 1979). A 1978 National Research Council report, Knowledge and Policy: The Uncertain Connection, notes that numerous social science studies of policy interventions had by then accumulated and that numerous efforts had been made to increase their relevance to and use for policy making. But the report observes that “we lack systematic evidence as to whether these steps are having the results their sponsors hope for...” (National Research Council, 1978b, p. 5). The committee responsible for a subsequent National Research Council report, Using Science as Evidence in Public Policy, concluded that the connection between social science knowledge and policy remained “uncertain” and that “despite their considerable value in other respects, studies of knowledge utilization have not advanced understanding of the use of evidence in the policy process much beyond the decades-old National Research Council (1978b) report” (National Research Council, 2012b, p. 51).

Scholars of policy making have long been skeptical of rational models of the relationship between research and policy, of the idea that policy Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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decisions do or even should flow more or less directly from scientific evidence concerning the likely effects of alternative policy choices. The 2012 National Research Council report observes that “some mixture of politics, values, and science will be present in any but the most trivial of policy choices. It follows that use of science as evidence can never be a purely ‘scientific’ matter... a dependable and defensible reason will not necessarily be used just because it is available. Re-election concerns, interest group pressure, and political or moral values may be given more weight and may draw on reasons outside the sphere of what science has to say about likely consequences” (National Research Council, 2012b, pp. 15, 17).

We do not disagree with the preceding observations, but note nonetheless that consideration of social science evidence has had little influence on legislative policy-making processes concerning sentencing and punishment in recent decades. The consequences of this disconnect have contributed substantially to contemporary patterns of imprisonment.15 Evidence on the deterrent effects of mandatory minimum sentence laws is just one such example. Two centuries of experience with laws mandating minimum sentences for particular crimes have shown that those laws have few if any effects as deterrents to crime and, as discussed above, foster patterns of circumvention and manipulation by prosecutors, judges, and juries (Hay, 1975). Three National Research Council studies have examined the literature on deterrence and concluded that insufficient evidence exists to justify predicating policy choices on the general assumption that harsher punishments yield measurable deterrent effects (National Research Council, 1978a, 1993, 2012a). Nearly every leading survey of the deterrence literature in the past three decades has reached the same conclusion (e.g., Cook, 1980; Nagin, 1998, 2013b; Doob and Webster, 2003). Despite those nearly unanimous findings, during the 1970s, 1980s, and 1990s the U.S. Congress and every state enacted laws calling for mandatory minimum sentences (Shane-Dubow et al., 1985; Austin et al., 1994; Stemen et al., 2006).

15 We do not mean to imply that scholars at particular times unanimously subscribed to certain views of what the evidence showed. Wilson (1975) and others (e.g., Bennett et al.,

1996) argue that scientific evidence broadly supported many of the sentencing policy changes of the 1980s and early 1990s. However, they represented a minority viewpoint. A claim by Bennett and colleagues (1996), for example, that proposed policies were justified by the existence of youthful “superpredators” was widely repudiated—including recently by a National Research Council panel (National Research Council, 2013). The weight of the evidence supporting the conclusions we offer in this section was clear during the 1980s and 1990s, as is shown by the findings of a series of National Research Council studies (e.g., on deterrence and incapacitation [National Research Council, 1978a]; on criminal careers [National Research Council, 1986]; and on sentencing reform initiatives, including mandatory penalties [National Research Council, 1983]) and elsewhere (e.g., Cohen’s [1983] influential survey of the state of knowledge about incapacitation).

Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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In Chapter 5, we also discuss at considerable length the evidence on the important question of the relationship between high rates of incarceration and crime. That assessment leads to the conclusion that although the growth in incarceration rates may have caused a decrease in crime, the magnitude of the reduction is highly uncertain and the results from most studies suggest that it was unlikely to have been large. The social science evidence available in the 1980s and 1990s would have predicted such a result.





RACIAL DISPARITIES

Many features of U.S. criminal justice systems—including unwarranted disparities in imprisonment, invidious bias and stereotyping, police drug arrest practices, and racial profiling16—disproportionately affect blacks and Hispanics (Tonry, 2011a). Table 3-2 shows the most recent available national data on racial disparities in imprisonment, capital punishment, life sentences, and sentences of life without possibility of parole for adults and minors. The disparities are enormous. Racial disparities in imprisonment and the absolute numbers of black people, especially men, now or formerly behind bars are major impediments to the creation of an America in which race does not matter (Alexander, 2010).

Higher rates of black and Hispanic than white imprisonment were demonstrated in Chapter 2. They are partly caused and substantially exacerbated by the mandatory minimum sentence, three strikes, truth-insentencing, life without possibility of parole, and similar laws enacted in the 1980s and 1990s. All of these laws mandate especially severe—in recent decades unprecedentedly severe—punishments for offenses for which black and Hispanic people often are disproportionately arrested and convicted.17 16 We do not discuss racial profiling by the police in this chapter because the extent to which it significantly contributes to high levels of incarceration is unclear. Police profiling results in many more arrests of black people than would otherwise occur. Research on profiling generally concludes that police stop blacks disproportionately often on sidewalks and streets, but find contraband at lower rates for blacks than for whites (e.g., Engel and Calnon, 2004; Center for Constitutional Rights, 2009; Engel and Swartz, 2013).

17In discussing data on race and ethnicity in this chapter, we sometimes refer to “blacks” and “whites.” At other times, we present data on “Hispanics,” “non-Hispanic whites,” and “non-Hispanic blacks.” The terms used depend on the data sources on which we draw. Prison and jail data published by the Bureau of Justice Statistics (BJS) through 1991 classify people as black and white, with no separate Hispanic category. Since then, national data on jail and prison populations have used a black, white, and Hispanic classification system. National arrest data compiled in the Federal Bureau of Investigation’s Uniform Crime Reports and BJS data on criminal courts and sentencing use only black and white categories, which include Hispanics.

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Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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We focus here primarily on disparities affecting blacks, only occasionally adverting to Hispanics, for several reasons.18 The most important is that disparities affecting blacks have long been much more acute than those for any other group. Second, the unique history of slavery, Jim Crow laws, and legally sanctioned discrimination that ended only 50 years ago gives particular salience to patterns of disparate treatment affecting blacks.

Third, for the first two reasons, the literature on disparities affecting blacks is vastly larger.

Understanding extraordinary racial disparities in imprisonment is a critical challenge facing the nation. As described in Chapter 4, the political and social context in which current policies unfolded has a pronounced racial dimension. In this section, we discuss three different kinds of racial disparity.

The first concerns differences in the probability that blacks and whites are in prison on an average day. In 2011, for example, the combined federal and state incarceration rate for non-Hispanic black men (3,023 per 100,000) was more than six times higher than that for non-Hispanic white men (478). The Hispanic rate (1,238) was slightly more than two-and-onehalf times the white rate (Carson and Sabol, 2012, Table 8).

The second kind of disparity concerns racial differences in rates of imprisonment relative to group differences in offending. People are sent to prison because they are convicted of crimes, so it is natural to ask whether disparities in imprisonment rates correspond to disparities in criminality.

In the 1980s and early 1990s, racial differences in arrests appeared to correspond closely to racial differences in imprisonment for serious violent crimes but not for property or drug crimes (Blumstein, 1982, 1993). In the 2000s, racial differences in arrests do not correspond closely to racial differences in imprisonment for violent, property, or drug crimes (Tonry and Melewski, 2008; Baumer, 2010).

The third kind of disparity concerns racial differences in sentencing and case processing after controlling for legally relevant differences among offenses. A sizable literature has long shown and continues to show that blacks are more likely than whites to be confined awaiting trial (which increases the probability that an incarcerative sentence will be imposed), to receive incarcerative rather than community sentences, and to receive longer 18 Demographic differences explain in part why imprisonment rates are higher for Hispanics than for non-Hispanic whites (Tonry, 2012). The Hispanic population is much younger, and, consistent with research on age-crime curves, proportionately more Hispanics are in their high-crime ages. In 2008, nearly 44 percent of U.S. Hispanics were under 25, compared with 30 percent of non-Hispanic whites (U.S. Department of Commerce, 2010, Table 10). In 2010, among people arrested for violent crimes, 42.8 percent were under 25 (Maguire, n.d., Table 4.7.2010).

Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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sentences. Racial differences found at each stage are typically modest, but their cumulative effect is significant (Tonry, 2011a; Spohn, 2013).

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Disparities in Imprisonment Rates Relative to Offending The critical question about imprisonment disparities is whether they result from group differences in criminality or from group differences in how cases are handled. If racial disparities in imprisonment perfectly mirrored racial patterns of criminality, then an argument could be made that the disparities in imprisonment were appropriate.19 However, if racial disparities in imprisonment resulted entirely from differences in case processing, then they would violate principles of fairness and equal treatment.

Disparities in imprisonment result from a combination of differences in offending patterns and case processing. Disentangling in detail the respective roles of each is difficult. Some insights can be gained from comparing data from victimization surveys on the characteristics of assailants whom victims can identify, but those data are limited and cover only a small category of offenses. The closest scholars have come is to compare racial patterns of arrests for particular offenses with racial patterns in imprisonment for those offenses. As Table 3-3 shows, racial disparities in imprisonment have worsened substantially since the early 1990s relative to racial patterns of involvement in serious crimes.

A classic and influential analysis of racial disparities in imprisonment in 1979 (Blumstein, 1982) concluded that racial patterns of arrests “explained” a large proportion of the disparities, especially for serious violent 19 As Chapter 2 shows, however, group differences in imprisonment are strongly associated with racial and economic differences in education and employment. Important policy issues concerning the sources of those differences and their remediability would remain to be addressed.

Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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crimes, and for all offenses left only 20.5 percent “unexplained.” For three serious violent crimes, small fractions of disparities in imprisonment were unexplained: murder and non-negligent homicide (2.8 percent), aggravated assault (5.2 percent), and robbery (15.6 percent). For larceny and auto theft (combined) and drug offenses, nearly half the racial disparity in imprisonment was unexplained.

Blumstein reasoned that if the percentages of black and white people held in prison for a particular offense, say, homicide, closely paralleled black and white percentages among those arrested, it would be reasonable to infer that racial patterns of involvement in crime were the primary reason for disparities in imprisonment. Blumstein’s analysis cannot prove that racial bias and stereotyping had no or little influence on sentencing patterns.



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