The Smart Way to Keep People Out of Prison

De-incarceration is clearly an idea whose time has come. But doing it means thinking clearly about de-incarceration. And most of us in the media don't.

Something to think about.

Photographer: Saul Loeb/AFP/Getty Images

De-incarceration is clearly an idea whose time has come. But doing it means thinking clearly about de-incarceration. And as I discovered when I went to a recent event on the topic, most of us in the media don't.

We're hampered by the rampant perception that all we need is to wise up and stop incarcerating people for simply possessing drugs, something many of us feel shouldn't be a crime at all and certainly shouldn't merit prison time. At the event I attended, someone who has actually studied the matter closely pointed out what experts know and most journalists apparently don't: Relatively few people are in prison for simple possession or for other minor crimes. The shock in the room was palpable.

I wasn't shocked, but not because I am somehow immune to this delusion. Rather, I had it stripped from me a few years back, when I went to Hawaii to report on its innovative probation program, Hawaii's Opportunity Probation with Enforcement. HOPE has sharply reduced the number of people who "flunk" probation and end up with long prison terms. To study it, I sat in a courtroom for a week and actually watched how the process worked. I've written about it in my book, but here's something I didn't write about: how shocked I was by the composition of the docket. I'd been expecting a lot more simple possession -- and a lot less robbery, assault, domestic violence and burglary.

Even the most dedicated anti-incarceration activist would call these "real" crimes, and they were numerous. Even the most dedicated advocate of drug legalization -- such as, say, me -- would have to admit that a large percentage, perhaps the majority, of the people who committed "real" crimes had some sort of a drug problem -- not as in "smokes more weed than they really should" but as in "admitted to the judge that they had smoked crystal meth recently enough to flunk the drug test they were about to be required to take."

Getting serious about de-incarceration means shedding the convenient fantasy that we just have to stop locking people up for stuff that obviously doesn't merit jail time. "The U.S. is probably too violent of a society to ever shrink its prison population to a Western European level," as Keith Humphreys points out. "The proportion of the U.S. population that is serving time for violent crimes is larger than the proportion of the Western European population that is serving time for all offenses combined."

That doesn't mean we should give up on de-incarceration, and I certainly haven't. Prison is a terrible place, and we should aspire to send as few people there as possible, simply because human lives are precious, and human suffering is terrible.

But if that argument doesn't move you, consider that prison is also very expensive. It may not cost as much as an Ivy League education, the way some would have you believe, but it's certainly competitive with public college. While we're punishing the criminal, we're also heavily punishing the taxpayer.

There's also evidence that prison terms are criminogenic. Intuitively, that makes sense: You're locking someone up, away from family and employment, in a place where their only companions are ... other criminals. It would be small wonder to find that when they emerge from an institution, their best employment opportunities lie in the fields of mayhem and mountebankery. But that intuition now has data to back it up: Juveniles who are given harsher sentences are more likely to end up back in the criminal justice system. So the cost to law-abiding citizens may not just include the cost of imprisonment, but also more crime.

We have the tools to incarcerate less -- maybe not down to western European levels, but much less than we do. Those tools include "swift and certain" programs such as HOPE and 24/7 Sobriety, which use monitoring and small but immediate punishments to reduce the rate of reoffense. They also include GPS ankle monitors, which enable law enforcement to keep offenders off the streets during high-crime hours while still enabling them to be home with their families or commuting to a job.

Does this sort of surveillance raise my libertarian hackles? Well, yes and no. The idea of constantly surveilling ordinary citizens is, of course, something I vehemently oppose. But we're talking about people who have already committed crimes. The alternative is not letting muggers and con artists run as free as gazelles romping through the spring grass; it is putting them in a cage.

Which returns to the point I made at the top: If we want to be serious about de-incarceration, we need to seriously grapple with the fact that most of the people in prison have done something that really is wrong, things that we wish to stop them from doing again. A de-incarceration movement that doesn't keep this in mind risks undercutting support for its goals, as the public discovers that all those criminals we're not incarcerating are now free to commit more crime. And, in fact, the professionals in the de-incarceration movement do know this. But the rest of us need to know it, too, so that we can support smart policies and not demand more from deincarceration than it can realistically deliver.

Smart de-incarceration can give us fewer prison beds and less crime. But stupid de-incarceration, like we tried in the 1970s, can give us the overreaction of the 1980s and 1990s -- which is to say even more broken communities and lives wasted staring at prison walls.

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