March 7, 1999

Less Crime, More Criminals


Later this month, the U.S. government will release new figures showing how many Americans are behind bars, and the numbers will reveal that the bull market for prisons is still charging ahead. Nearly 1 of every 150 people in the United States is in prison or jail, the Justice Department will announce, a figure that no other democracy comes close to matching.

Soon, the total number of people locked up in federal and state prisons and local jails will likely reach the 2 million mark, almost double the number a decade ago, as the ranks of prisoners grow enough each year -- to fill Yankee Stadium and then some. For an American born this year, the chance of living some part of life in a correction facility is 1 in 20; for black Americans, it is 1 in 4.

Most experts failed to predict that the inmate population would triple from 1980, and now nobody seems to know how to stop the buildup. By all logic, prisons should be experiencing a few vacancies, and the cost of arresting, prosecuting and putting away an army of criminals should be at ebb. After all, the economy could hardly be better, and crime has fallen steeply six years in a row. But a prison peace dividend is nowhere in sight.

Instead, the guessing game now is: At what point does the world's largest penal system hit a plateau -- 2.5 million inmates, 3 million? Surely, if crime continues to fall, the number of new prisoners must also fall.

Not quite. No matter how much crime plummets, the United States will still have to add the equivalent of a new 1,000-bed jail or prison every week -- for perhaps another decade, federal officials say. Some even believe the prison boom could be permanent, at least for another generation.

A big reason is that so many of the new inmates are drug offenders. In the federal system, nearly 60 percent of all people behind bars are doing time for drug violations; in state prisons and local jails, the figure is 22 percent. These numbers are triple the rate of 15 years ago.

Americans do not use more drugs, on average, than people in other nations; but the United States, virtually alone among Western democracies, has chosen a path of incarceration for drug offenders. More than 400,000 people are behind bars for drug crimes -- and nearly a third of them are locked up for simply possessing an illicit drug.

"America's internal gulag," is what Gen. Barry McCaffrey, the nation's drug czar, calls the expanding mass of drug inmates. Many of those have committed any number of crimes. But a growing number of them have broken no laws other than the ones on drug use.

In the 1980s, Congress and the states passed drug laws that required judges to put people in prison -- even first-time offenders, or those caught with small amounts of an illicit substance. Mandatory minimum sentences, as they are called, leave no room for a judge to consider special circumstances, or options such as treatment instead of jail.

The idea was that more arrests would lead to more convictions, which would put more people in jail, and the crime rate would fall. That did happen.

Another dividend was supposed to be a drop in drug use, but that has not happened. Arrests of people who use drugs just hit an all-time high, the FBI reported. At the same time, drug use has gone up among the young, and for drugs like heroin or methamphetamines. Over all, drug use has not budged for 10 years. For virtually all other crimes, of course, the figures are stunning -- with huge drops in murder, robbery and assault. Whether this is because the United States will soon have 2 million people locked up is subject to much debate.

But many of the authorities who argue that the prison boom has taken the worst criminals out of circulation -- and has thus been the biggest factor in reducing crime -- are at a loss to explain the drug-use figures.

"I am in favor of the federal government ceasing and desisting the war on drugs," said Dr. Morgan Reynolds, director of the Criminal Justice Center at the Dallas branch of the National Center for Policy Analysis, a free-market think tank.

He described himself as being on the conservative side of the debate over prisons and crime; he says the crime drop can be directly attributed to the prison boom.

But he is less sure that the federal government's war on drugs has an effect on crime rates and drug use.

For liberals and libertarians who have long claimed incarceration has failed to do anything but run up the bill in the drug war, conservative cover is welcome. Last week, Rep. Barney Frank, D-Mass., introduced a bill to restore discretion for judges in sentencing low-level, nonviolent drug offenders.

"We may be getting to the point of diminishing returns -- the more you expand the prison system, the more small fry you put in there," said Marc Mauer, assistant director of the Sentencing Project, a nonprofit group that has been critical of the prison buildup.

Even some of the architects of punitive drug policies now argue that stuffing the prisons with ever more drug offenders is not a wise investment. Edwin Meese, who was attorney general under President Ronald Reagan, when most of the drug laws were rewritten, has started to look favorably on treatment for low-level offenders rather than jail.

"I think mandatory minimum sentences for drug offenders ought to be reviewed," said Meese in an interview. "We have to see who has been incarcerated and what has come from it."

Beyond the laws that send drug offenders to prison with reflexive certainty, there are now institutional incentives to keep locking up more people -- a trend that some people call the prison industrial complex.

The stock price of the Corrections Corporation of America, the nation's largest private jailer, has increased tenfold since 1994. The company's stock is now privately held. But Corrections Corp. has created a popular real-estate investment fund to get a return on all those new prisons being built at the rate of one a week.

Unions representing prison guards are the fastest-growing public employee associations in many states. In California last year, the union was given a raise of 12 percent, which brought the salary for a seasoned prison guard up to $51,000.

It is the rare rural community that rejects a new prison in its backyard, with the prospect of permanent, high-paying, benefit-rich government jobs.

The prisons in California, as in virtually every other state, are near capacity, even though the state has built 21 new institutions in the last 15 years. Soon, it will cost nearly $4 billion a year to run the state's prison system. Should the Legislature propose some change in the law that might bring down the growth in prisons, they are likely to hear howls of outrage from the union that has most benefited from the growth in prisons.

"Once you have a society committed to building new prisons and keeping them, it's very difficult to close them down," said Mauer. "Particularly in rural areas that come to depend on them. It's like trying to close a military base."

The states also have an incentive to keep people in jail a long time. A federal law passed in 1994 provides matching funds to states to keep violent criminals in prison longer by denying parole. This act and other so-called truth-in-sentencing laws are reasons why the ranks of prisoners will not soon drop, even as crime levels off.

"We've got crime going in one direction, and social policy going in the other," said Dr. Allen Beck, the Justice Department's lead statistician on criminal justice trends.

The one thing that may finally slow prison growth, said Beck, are budget concerns. It costs taxpayers $20,000 a year to house and feed every new inmate -- and that does not include the cost of building new prisons and jails. The states are spending nearly $30 billion to keep people in jail -- about double the rate of 10 years ago.

Some states are starting to balk. California legislative leaders say they will build no new prisons in coming years, but they have not said what they will do with excess prisoners. In Washington state, a bill that would abolish mandatory minimum prison terms for drug offenders has gained support from judges, prosecutors and tough-on-crime Republicans.

Washington was a pioneer state in enacting laws requiring long lockups, with no chance of early release or leeway for judges to consider other options. But prisons now are the state's fastest-growing part of the budget -- even as crime has nearly bottomed out.

But it will be difficult to change the pattern, with new prisons rising in depressed rural areas. Cleaning up after a crusade, some lawmakers said, has proven much harder than they anticipated.

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