Why Does the United States Have Hyper-Incarceration? Christopher Slobogin Osher Lecture February 12, 2016

Imprisonment Rates U.S. Imprisonment Rates 1973: 96 per 100,000 Today: 650 per 100,000

Year Prisoner-years per murder

2.3 million 1.6 million

“Residual US punishment is not working” (Spamann, 2014) “Incarceration since the 1970s has had, at best, a modest impact on crime” (McCrary & Sanga, 2012) “Severe punishment in the U.S. has little to do with its crime drop, given analogous drops in many European countries” (Tselonia et al., 2010)

U.S. v. European Sentencing Death Penalty (we have it; they don’t) Life Sentences for Juveniles (we have them; most of them don’t) Life Without Parole for Adults (we love it; Europeans don’t) Determinate Sentencing, Mandatory Minimums, and Truth-in-Sentencing (popular in U.S.; Europe has mostly indeterminate sentences) Use of prison (Europe: 20-30% of offenders confined; avg. sentence of 1 year; U.S: 70%, 3 years) Incarceration of non-violent offenders (our rate is 2 ½ times higher than theirs)

Why?

Populism

Individualism

Capitalism

Religiosity

Race and Drugs

Localism

Constitutional Rights

Why, Again? Populism—Democracy Individualism—Freedom Religiosity—Faith War on Drugs—Safety Capitalism—Competition & initiative Localism—Decentralized power & experimentation Bill of Rights—Limits on all government power

Positive Developments Decarceration & Budgets (democracy, faith, free enterprise & local experimentation) – Michigan’s local re-entry programs (some faith-based) – Illinois, Texas and N.J.: community correctional programs (privately-run, with some faith-based) – Multi-systemic therapy for juveniles (private) Decarceration & the Constitution (freedom, individualism, and experimentation) – Spears (2009); Plata (2011); Montgomery (2016) – Specialized courts (e.g., drug courts) that offender chooses to enter