Why Do We Have Prisons?

with Rafael Mangual

The prison is an extreme proposition within a liberal democracy. It is a place where the liberties normally accorded to an individual are constrained by the state. Behind the prison’s walls, the list of positive liberties accorded to citizens dwindles, and the prisoner becomes both totally reliant on the state and excluded from some of the state’s protections. Even setting aside the grim conditions within many of our prison facilities, how can we justify even the temporary suspension of the constitutional rights of a not-inconsiderable portion of our population?

I set out the problem of prisons in these terms because I think that if we’re going to take such extreme measures, we better have good reasons for doing so. Activists who advocate for the abolition of prisons entirely believe there are no circumstances under which locking up a human being is acceptable. Yet often their arguments against prisons give short shrift to one of the primary functions of prisons: to keep those who obey the law and just want to live their lives safe from those who would prey on them.

In the following excerpt from the most recent episode of The Glenn Show, Raphael Mangual, author of the new book Criminal (In)Justice: What the Push for Decarceration and Depolicing Gets Wrong and Who It Hurts Most, argues that we do have good reasons to keep America’s carceral policies in place. The vast majority of people in prisons end up there after committing multiple felonies, and those crimes have devastating affects on individuals and communities. What of their rights? What about the protections that must be extended to them? As Rafael argues, prisons are currently the best tool we have for securing the rights of the law abiding.

I have a hard time disagreeing with Rafael’s insistence that we must balance the rights of criminals against those of the law abiding. It may be that the future will offer some other, more equitable solution. I’d be curious to know what my readers think.

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GLENN LOURY: Let me see if I understand. We are only apparently an outlier. In fact we, if you look carefully at the comparisons between countries, have a lot more violent crime and, conditional on the level of crime, we are not, at least not in every respect, more punitive than some of our countries that we compare ourselves to.

But I want to ask in the spirit of friendly devil's advocacy here: Is prison the answer? You're putting a lot on incapacitation. They teach us about deterrence, they teach us about rehabilitation, and they teach us about retribution. Back in the day, when I was inveighing against mass incarceration, I was very concerned with the politics of retribution, with the idea that criminals would be painted as these demonic figures and that people would be riled up and given a false sense of security through the expression of punitiveness through our politics and our policy.

But then when we actually looked at the effect of prisons, you know, “crime is criminogenic.” This is one of Bruce Western, the sociologist at Columbia University who works on criminal justice issues from a left-of-center point of view, is one of his principle points. You actually make people worse, less fit. They don't stay. You make that point yourself. The average length is two years or so of a prison sentence, so people are back on the streets. They're connected to other people. They go into communities. The character of life in those communities is affected by what is going on inside the prisons. People are hardened in their attitudes and whatnot. A certain culture is fueled that is you know, not healthy for the youngsters who are growing up around it.

So even if you're right to stress that there is more violent crime, which requires a response, why is it so obvious that locking more people up is the appropriate response?

RAFAEL MANGUAL: Yeah, I think the best answer to that question is to lean into the incapacitation point. Because prison is the best and really the only way to reliably prevent the sort of crimes that we're worried about being committed in the absence of this response.

There's a lot of talk about rehabilitation in the United States and that is certainly something that we should continue to pursue and invest in. But I think the most serious scholars will tell you that if you read the literature honestly, what you will be forced to conclude is that we don't really know how to reliably rehabilitate the typical prisoner in the United States. And certainly we don't know how to do that at scale. Again, we have 1.9 million people under lock and key on a given day in this country. That's a lot. The idea that we have ready, deployable rehabilitation programs that will reliably reduce the risk to a level of comfort that everyone is okay with if we're gonna pursue the sort of mass-scale scale decarceration that people want to pursue, I just don't think that exists.

And so rehabilitation is one of those things that, yes, it's one of the four penological justifications for incarceration, but it's not one that we’ve figured out. And so until we do that, I think we owe it to communities to provide the protection that is associated with the removal of criminal actors, particularly high rate offenders and offenders who pose a high risk of committing serious violence from the street for as long as possible.

The deterrence point I think is certainly important, general deterrence. There's a lot of research that shows, for example, that simply giving someone a sentence that's six months longer or a year longer isn't going to reduce their likelihood to reoffend compared to the person who gets the shorter sentence. That's true. But again, that leaves aside the point of incapacitation, right? That person's committing ten index felonies a year. That extra six months means that the community that they would go to is spared five of those serious crimes.

But the general deterrence point, I think, is also very real. I mean, if you really raise the transaction cost of criminal behavior a significant degree, where the difference is not just six months or a year, you can actually reduce crime pretty significantly. I think one of the best studies on this is the study of the three strikes regime in California done by Helland and Tabarrok in 2007. What they find is that there is a 17 to 20% reduction in the likelihood of a re-arrest for somebody who has two strikes compared to similarly situated offenders with zero strikes or or one strike. That's a meaningful difference.

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Now, we can argue about the wisdom of three strikes. Maybe three strikes isn't the right number. Maybe it's five. But as I say in the book, the main concern[s] driving my work are the terrible crimes that are committed by people who have been given many, many, many bites at the apple. Individuals who have proven time and again through their repeated criminal conduct that they have no intention whatsoever of playing by society's rules.

I open the book with the story of of a woman in Chicago who was murdered. She was caught in a drive-by shooting. And it is one of the most tragic things you'll ever see. It was caught on video. She's holding her one-year-old daughter, and you know, here comes this car and the passengers open fire. She takes off, is wounded almost immediately, collapses with her daughter still clinging to her and essentially bleeds out in the street, is dragged to a hospital in front of her one-year-old daughter, and is pronounced dead. Now the shooting was caught on video, so they were able to make an arrest. The woman's name was Brittany Hill, just 24 years old.

Now, one of the defendants charged in that murder was a guy named Michael Washington. He had nine prior felony convictions, Glenn. Nine. One of them was for second-degree murder. Another one was the result of an attempted murder charge that was pled down to aggravated assault. This is someone that I think the average American reads this story and says, “What is he doing out on the street?” They're surprised and they're shocked. And what I want people to understand is that that surprise and that shock is misplaced, because this is a regular outcome of how we do criminal justice in the United States. I know we hear a lot about the punitive outcomes. I know we hear a lot about the Kalief Browders of the world, but that is not the typical experience. And so we have to understand what the risk is that we're trying to mitigate.

Now, yes, it is true that for some subset of offenders, the experience of prison can be criminogenic. It can make them worse off insofar as they will reoffend at a higher rate than they otherwise would've if they were diverted. But to me that doesn't obviously lead to the conclusion that we should decarcerate. And there are a couple reasons for that. One is that, as you know, you're the economist here, but if you're trying to assess what the effect of a given treatment is—in this case, exposure to incarceration—you wanna figure out a way to create a natural experiment, right? Because that decision's never random. There are good reasons that people who get incarcerated are put in prison, and there are good reasons that people who are diverted from the system are diverted. It's very hard to just look at who goes to prison and compare them to who doesn't, because there may be factors that we're not catching up on. And so the literature has developed you know, with these random judge assignment studies.

So essentially what you do is look at a population of offenders who are on the margins of incarceration, people whose conduct is not so serious that it's obvious that they're gonna go to prison, but people whose conduct is not so minor that it's obvious that they're gonna get diverted. And then you look at the leniency and the severity of the judges in that jurisdiction who are randomly drawing these cases. And if you compare the outcomes of similarly situated defendants who are on the margins of incarceration who draw harsh judges and are incarcerated to the outcomes of those who draw lenient judges and are diverted, you do see higher rates of reoffending for those who are exposed to incarceration.

But the conclusions that we can draw from that literature are limited because there's a difference between someone who's on the margins of incarceration and the typical prisoner in the United States today. The typical prisoner of the United States today is much more likely to be a higher risk proposition when you're talking about release than the people that are captured by these studies. And so I think we make a serious error by grafting those findings onto the broader debate as if we can conclude, as if those studies justify the conclusion that mass decarceration for its own sake is an endeavor that comports with the majority of the public's concerns about public safety.

The last thing I'll say is on the retribution point. I'm not a retributivist at heart. It's [at] the bottom of the list of things that I care about. That said, I do think it's important for society's desire to achieve retribution to be satiated, because I don't want to live in a world in which you get this kind of Death Wish culture of vigilante justice, which I think predominates in a lot of America's highest crime neighborhoods. People are essentially taking justice into their own hands. Oh, you stole from me. Well, we're gonna settle this not in court, but I'm gonna pull up on you when you're not expecting it. You're gonna get caught lacking, and I'm gonna open up. I don't want to live in that world. I don't want that to be a more common thing than it is. And I think that if society is satisfied that the criminal justice system is appropriately responding to terrible criminal conduct, one, backlashes are going to be less likely. And backlashes, I agree, are not good. But two, you're going to minimize the chances of violence. And that's something that I think is good.

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