The main purpose of this paper is to examine whether harsher sentences reduce crime rates, as the 2004 US incarceration rate was far higher than any other country. First, it is important to briefly explain the history of prisons and the theories of crime and incarceration: These explanations facilitate understanding of how incarceration is thought to reduce crime. Afterwards, the American zeitgeist, in which harsher sentences were instituted, is described to elucidate this phenomenon (harsher sentencing in the US). Next, the literature on whether longer sentences are effective methods of crime control is examined. Finally, alternatives to harsher sentences are explored.
Does Getting Tough on Crime Work?
The US incarceration rate in 2004 was 724 per 100,000 people (Bureau of Justice Statistics, 2005). The US incarceration rate was higher than any other country by far. For example, the average world incarceration rate (averaging 13 countries’ incarceration rates excluding the US) was 160 people per 100,000 with a range of 53 per 100,000 in Japan to 628 in Russia (using information provided by Mauer, 2003). The US incarceration rate reflects a 500% increase since 1970 (Sheldon, 2004). The US is one of the few countries in which graphs that depict crime rates and incarceration rates do not run almost parallel (Boe, 2004). For example, as US incarceration rates rose since 1975, property crime rates declined: The rate of property crimes committed was approximately 550 crimes per 100,000 people in 1975 and 150 crimes per 100,000 people in 2004 (US Bureau of Justice Statistics). Note that between 1990 and 1995, 213 prisons were built in the US, during a time when crime rates were dropping (Welch, 2003). In addition, it is noted that these prisons were built to protect people against violent criminals, yet 60% of the criminals were incarcerated for nonviolent crimes (Welch, 2003). The US crime rate is not higher than other countries. The US crime victimization rate is 21%, whereas in Canada it is 24%, France 21% and Finland is 19% (Sturr, 2006). In addition, note that if US incarceration rates remain the same in the next twenty years, an African-American male born in 2001 in the US has a 33% chance of being incarcerated in his lifetime (Sheldon, 2004) which is a far higher probability than completing a higher education (Marbley & Ferguson, 2005).
Why are American incarceration rates so high when crime rates in this country are dropping? In an attempt to explain this phenomenon, first, it is important to briefly explain the history of prisons and the theories of crime and incarceration: These explanations will facilitate understanding of how incarceration addresses criminals’ needs so that they do not reoffend (thereby reducing the crime rate) and thus society is protected from them. Afterwards, the American zeitgeist in which harsher sentences were instituted is described to elucidate the phenomenon of harsher sentencing in the US. Next, the literature on whether longer sentences are effective methods of crime control will be examined. Finally, alternatives to harsher sentences will be explored.
Crime, Deterrence, Punishment and the Theory of Incarceration
During the 17th and 18th centuries, incarceration was not used for crime deterrence. Instead, people who were thought to be guilty of crimes as minor as property offences were harshly treated by displaying them in a public square thereby exposing them to public abuse and ridicule, while restraining them in a pillory or stock (Griffiths, 1988). Pillories and stocks were wooden frameworks which locked the offender’s head and hands in place (Griffiths). After display and humiliation in the public square, offenders in the early years of the 17th century were seared with hot oil, pulled apart in four directions by horses, burned, and their ashes were thrown into the wind “. . . for the edification of all there assembled” (O’Brien, 1978, p.510). In other words, it was hoped that this public display of barbaric punishments would deter aspiring criminals and that victims and their families would feel that justice was served (Emsley 2002, Vronsky, 2002).
However, crime statistics demonstrated that public display of barbaric punishments did not achieve any of these goals (Emsley, 2002). In fact, property crime statistics generally showed a steady increase throughout the 1800s and 1900s, (except during the world wars, where they leveled out) (Emsley). As these barbaric punishments did not reduce crime, alternate means, such as incarceration were instituted (Emsley).
During the 18th century, a significant influence on changing attitudes from harsh punishment to rehabilitation through incarceration was the Christian Zeitgeist (Emsley, 2002). Before the 18th century, people thought of God as malevolent: wanting punishment and revenge on the wrongdoers of society (Emsley). During the 18th century, people started thinking of God as the benevolent creator; one that believed in reform and forgiveness (Emsley). Therefore, incarceration as punishment instead of humiliation and death became more popular (Emsley, Vronsky, 2002). Why people thought criminals committed crimes is important in order to explain why people thought incarceration would reduce the crime rate.
Three of the main theories that attempted to explain why people committed crimes were the “protest,” “lazy criminal,” and “illness” theories (Emsley, 2002; Griffiths, 1988; Watkins, 1992). The protest theory postulated that angry poor people protesting against poverty during economically difficult times were responsible for committing property offenses (Emsley, Watkins). Using a more humane approach than execution, incarceration was a form of punishing the protesters. Some support for this theory can be seen during The Great Depression. Over 25% of people lost their jobs by 1933 (CSC, 2005). Many families lost luxuries and necessities of living (CSC). Crime rates rose during this time and prisons accommodated the higher demand for prison cells (CSC). Wilson (1958) stated, in the US, the 1930s were a time of Al Capone and big gangsters. It seemed to Wilson that the gangsters and mafia men ran free, while the petty criminal was incarcerated for much less serious crimes.
The lazy criminal theory attributed criminals’ motives to wanting a life of ease without work (Emsley, 2002; Griffiths, 1988; Watkins, 1992). Similar to the lazy criminal theory, during the 18th century, people viewed criminals as a different social class who were a threat to the stability and morals of the country (Griffiths). Criminals were conceptualized as people who would not accept or who were not taught morals and rules (Griffiths). It was reasoned that if criminals learned a trade and routine in prison, they would realize the merits of this lifestyle and continue it upon release (Emsley, Griffiths). With the shift to an industrial nation during 18th century, a disciplined workforce became a necessity (Emsley).
The illness theory explained criminals’ behavior was due to genetically inherited mental, physical, and moral defects (Emsley, 2002). The emerging fields of medicine and psychiatry founded the concept that some criminals offended mainly due to mental illness and that if they could cure or manage the illness, the offender would cease criminal behavior (Emsley). People who believe these defects can not be managed or overcome, believe in locking criminals away forever. Different theories were popular at different times depending on the social milieu, which was affected by war, economic status, and political climate.
The American Zeitgeist
During the postwar years of 1950 to 1970, Americans enjoyed an incredible growth period and remarkable rise in their standard of living (Ismaili, 2003). Unemployment was almost nonexistent, wages rose steadily, taxation seemed to be at a fair rate, people felt secure financially, trade unions grew in strength, the middle class grew, and welfare programs were generated to assist the needy (Ismaili). Crime was viewed as a result of poverty and correctional institutions were seen as a means to rehabilitate and reintegrate criminals back into society (Ismaili). As times were good, there was a faith in government that they could continue and promote prosperity (Ismaili).
In the 1970s and 80s, the American economy was not as stable and life not as good (Ismaili, 2003). For example, many people lost their manufacturing jobs as they were replaced by automated machines (Ismaili). The working class who depended on these unskilled and semiskilled jobs were now unemployed (Ismaili). The job market required more generic skills that these workers did not have (Ismaili). Without these skills, they were unemployable (Ismaili). The service and high technology sectors started to boom at this time, and typically the jobs that became available were geared mostly toward college graduates (Ismaili). The unemployed and unskilled, as a result of welfare cutbacks, became marginalized from mainstream employment (Ismaili). Added to these problems, were the baby boomer boys. They were the highest risk group to become unemployed if they did not attain marketable skills and therefore, the highest risk group to become engaged in crime (Ismaili).
Also during the 1970s, the media presented distorted messages of crime which initiated fear of crime (Welch, 2003). Given this milieu, people started to question liberal treatment of criminals and the theory of rehabilitation (Ismaili, 2003). During the 1960s, 70s and 80s, many American politicians and judges rejected the hope of rehabilitation and returned to retribution (Vitiello, 1997).
The fear of crime fanned by the media to wildfire proportions and the election of Regan in 1980 marked a return to more conservative views. American politicians in the 1980s and 90s quickly learned that election platforms such as zero tolerance, mandatory sentences specified for certain crimes, “three strikes and you are out,” and boot camps won elections (Vitiello, 1997). In addition, it is also interesting to note that some judges seeking election or promotion hesitated to find criminals not guilty due to political climate. For example, Judge Sarokin (2002) of the New Jersey district court stated he was “. . . roundly condemned by conservative politicians and thoroughly examined during my Senate confirmation hearings. . .” for acquitting an offender (p.1). Judge Sarokin’s decision was used against a senator running for reelection 3000 miles away. Judge Sarokin stated that when some judges faced re-election or promotion, rather than speaking about qualifications and experience, they judges boasted about number of convictions or death penalties they awarded.
This heightened fear of crime now generated through the media seemed to legitimize the irrational fear of becoming a victim of crime (Welch). This irrational fear was then addressed with the irrational solution that punitive measures deter criminals (Ismaili, 2003). Fear becomes irrational when there is an absence of evidence or facts to justify it. An example of irrational fear is that between 1980 and 1994, the incarceration rate in the US almost tripled. Considering more criminals were locked up, people should feel safer. However, more Americans feared becoming a victim of crime in 1994 than ten years previously despite dropping crime rates and rising incarceration rates (Vitiello, 1997).
It was this public panic that paved the way for harsh punishments such as California’s “three strikes and you are out” legislation (Vitiello, 1997). Californian’s panic and outrage was fuelled in 1992 when a recidivist murdered an innocent victim during a failed robbery attempt (Vitiello). The father of the victim then used this murder, perhaps with a desire to achieve vengeance, to start a massive campaign for the “three strikes and you are out” legislation (Vitiello). Half a year later, a girl was kidnapped and murdered by a recidivist, and her father joined the “fight against crime” (Vitiello). With repeated images of these victims from the media, fuelled by the anger and anguish of two bitter fathers, the public became convinced that what happened to these fathers could happen to anyone. However this thought (that anyone could be victimized in this way) is irrational: People have a much higher probability of dying in a car accident than being a parent of a murder victim killed by a recidivist. However, most people do not dwell on the chance that they could be accident victims as the media and politicians do not sensationalize it as they do crime. With emotion stoked so high, most people did not stop and realize how irrational this thought was. Despite several challenges to this bill, it was pushed through the legislature. The second murder victim’s father later recognized the problems with the “three strikes and you are out” law and retracted his support (Vitiello).
The “three strikes and you are out” law can be used to incarcerate someone for three relatively minor offences for twenty years. For example, an offender who was convicted of two house burglaries and is then convicted of possessing drugs will be incarcerated for a minimum of twenty years (Vitiello, 1997). However, if an offender holds up a bank with a machine gun, for the first time, he faces a maximum sentence of nine years (Vitiello). It seems these examples show a waste of resources as property and drug offenders are much less likely to seriously harm someone than the man with the machine gun. At the end of 2000, less than half of American inmates were serving sentences for violent crimes (Lyons, 2003), which means that the jails are fuller of people who are less dangerous. Many of these inmates would not need incarceration in order to not reoffend (Welch, 2003). Other inmates would benefit from a combination of shorter sentences and alternative measures (such as halfway houses).
This mass panic over crime and unsubstantiated theories of culpability with a resultant political irrational reaction was also seen in the 19th century. In the absence of any evidence, many people assumed that the strangulations of victims in England in the 1850s and 1860s were committed by criminals on tickets of leave (Emsley, 2002). As a result, the Garrotter’s Act (a “Garrote” is a device used for strangulation) was introduced in 1863 (Emsley). This act, which remained in England’s criminal code until 1948, introduced flogging during incarceration as punishment for robbery (Emsley). In addition, this act imposed nine months of solitary confinement to the beginning of a long term inmate’s sentence in England and Canada (Emsley). All of these “get tough on crime” type measures were put in place to reduce recidivism. However, in the late 1800s in England, the number of recidivists increased, but there were less first time offenders, therefore, the crime rate leveled off (Emsley). In other words, harsh punishment did not reduce crime rates in the 17th, 18th, and 19th centuries.
If harsh sentences do not serve the purpose of reducing crime rates, what other purposes does it serve? Sturr (2006) suggests that incarceration serves an economical purpose. He suggests that rates are so high in the US because the correctional industry is highly profitable. For example, American prisoners pay almost one billion per year just in phone calls. Companies such as Victoria’s Secret, Dell, Motorola, and Microsoft have taken advantage of cheap prison labor (Sturr, 2006). In Canada, the highest wage a federal prisoner can make is six dollars per day. The building of prisons is also highly profitable and can revitalize dying rural towns. Some towns with new private jails have even advertised their prisons on billboards suggesting that people “come do time here” (Sturr). Sheldon (2004) reports that in the 1970s, the US spent $11 billion per year on justice expenditures. In 2003 yearly justice expenditures rose to $150 billion (Sheldon).
In summary, with the help of the media and politicians promoting irrational fears about crime victimization the prevailing theory of crime in the 1980s swung from an inclusive theory of “offenders can be rehabilitated and reintegrated back into society” (therefore they are one of “us”) to an exclusive viewpoint: “these criminals are dangerous, will never change, so lock them up and through away the key” (Ismaili, 2003). Therefore criminals became viewed as not “us:” regular people of society. They became viewed as “them:” incorrigible, dangerous criminals who need to be removed from society for a long time.
Do Harsher Sentences Work in Reducing Crime?
As explained above, harsh punishment, as harsh as it gets, did not work in the 17th 18th or 19th centuries. One of the harshest sentencing practices — since public humiliation, death, and flogging in the 17th and 18th centuries — is California’s “three strikes and you are out“ law. As previously seen in history, harsher sentences did not produce a deterrent effect. Even in the 1980s, before the three strikes law was in effect, criminologists explained that longer sentences did not reduce crime (Nagel, 1982, Miller & Anderson, 1986).
Hughes, Pilkington and Leisten (1998) stated that as early as 1980, government research based on an extensive literature review found that young offenders who were diverted away from the court system were less likely to reoffend than those that went to court. Their research also pointed out that the “culture of severity” (p. 2) in the form of harsh sentences and boot camps for youth were ineffective. More recent studies found the same results in that no significant differences between youth who went to boot camps versus youth in intensive parole supervision differed in reoffence rates (Bottcher & Ezell, 2005).
There are several reasons why harsher sentences do not work and sometimes promote criminal behavior. First, many property and drug offences are committed in groups. When one group member is incarcerated the group simply recruits another offender (Vitiello, 1997). When the incarcerated member returns, the group grows and more crimes are committed (Vitiello, 1997). In the case of drug trafficking, when one drug dealer is incarcerated another is recruited. As long as there is demand, there is supply. To decrease drug crimes, money should be spent on prevention and helping addicts to recover, therefore reducing the demand for drugs from dealers (Vitiello, 1997).
In addition, nonviolent offenders have also been incarcerated at a high rate. Many of these offenders are “socially integrated” in that not only did they commit a crime, but they also had legitimate employment and family ties. Incarcerating these individuals for a long time decreases their ability to get employment once released and weakens family ties (FBI Enforcement Bulletin, 1998) therefore strengthening criminal ties and raising the rate of crime. Typically, offenders such as these have relatively short criminal careers (FBI Law Enforcement Bulletin, 1998) and long incarceration simply criminalizes them more. Therefore, the FBI suggests that “zero-tolerance approach to drug crimes could yield zero crime-control benefits…” (p. 18).
Another reason why longer sentences do not work is because recidivism drops with age (Steffensmeier & Harer, 1993). Offenders subject to the “three strikes and you are out” policy may end up with a twenty year sentence (Vieiello, 1997). If an offender is 40 years old when he is sentenced, he will be 60 when he is released. The public may not need 20 years of costly protection from this person. There is a 26.6% recidivism rate among 45 to 49 year old and a 22% rate for offenders between 50 and 64 (Vitiello, 1997). However, there is a 70% recidivism rate for 16 to 18 year old offenders (Vitiello, 1997). If an 18 year old is incarcerated for 20 years using the three strikes policy, it may prevent him from committing a lot of crimes if he was to become a career criminal. However, in many cases these young criminals do not reoffend after two year sentences and therefore 18 years of costly incarceration would be a waste of money and prime years in which this person could be a taxpayer and contributing member to society. Also, long term incarceration can create several other problems. He may become more criminalized as a function of incarceration and may have difficulty attaining work if he does not learn a trade while incarcerated.
The three strikes policy as well as other “get tough on crime” schemes was originally put in place to reduce violent crime. These harsh sentencing strategies may have accomplished that to some degree but have also incarcerated numerous drug and property offenders. For example, in Louisiana, African-Americans comprise approximately 32% of their general population, but approximately 75% of their prison population (Lyons, 2003). They have 250 inmates convicted of heroin possession serving life sentences, many of them have served around 45 years. There are 5,400 people in Texas serving a 10 year sentence for possession of one gram or less of cocaine (Lyons, 2003). Severe penalties should be limited to violent recidivating criminals that society actually needs protection from; those in which it is a warranted expense (Steffensmeier & Harer, 1993).
Proponents of the three strikes law claim that crime rates in California have dropped due to the three strikes law (Steffensmeier & Harer, 1993). These proponents state that in the first year the law was instituted, California’s crime rate dropped by almost 5% while the nation’s crime rate dropped by 2% (Vitiello, 1997). However, it is hard to justify less than a 3% decrease in California’s crime rate (the difference between national crime rate minus California’s crime rate) considering the cost of incarceration and the number of wasted lives incarcerating people who would not offend violently anyway and therefore society does not need as much protection from them as they would violent offenders. The 2% drop in the nation’s crime rate was explained by the aging of the American population, as crime rate drops as criminals age (Vitiello, 1997).
The notion of harsher sentences causing a deterrent effect has great intuitive appeal. It only makes sense that if a person thinks that the consequence for robbing a bank is death, for example, that he would not do it. However, most criminals simply do not think like that: they do not rationally execute a cost-benefit analysis before committing a crime (Pogarsky, 2002). Many criminals do not think of consequences and are impulsive (Pogarsky, 2002).
However, it is hypothesized that some criminals weigh out the chances of getting caught using a more irrational process. Pogarsky and Piquero (2003) call it the “resetting effect” or the “gambler’s fallacy.” Gamblers tend to increase their bets after losing several times because they believe they are “due” to win and lower their bets right after winning because they feel less likely to win (Pogarsky & Piquero). In fact, probability shows that each time a person wins it is independent of the other times and therefore it is a gambler’s fallacy (Pogarsky & Piquero).
This gambler’s fallacy can also be seen in offender’s decision-making heuristics (Pogarsky & Piquero, 2003). Decisions are based on past arrests and offenders usually commit several burglaries before they are caught. It is rare for them to commit one burglary and get caught, then commit another one and also get caught right afterwards. If they get caught for one in fifty burglaries, they have a low sanction-certainty rate (Pogarsky & Piquero, 2003). Therefore, when they are caught and are incarcerated for a short time, they unconsciously reset their certainty-sanction rate (Pogarsky & Piquero). They believe that because they were just caught, it is highly unlikely that it will “happen” again shortly thereafter, or that it would be terribly unlucky for them to be caught again (Pogarsky & Piquero).
Pogarsky and Piquero (2003) studied a group of college students. One would think that college students would think more rationally than the average criminal. Part of their study examined students’ estimates of getting caught for drunk driving after having committed other minor offences. They found that people who had committed several minor offences (such as shoplifting, vandalism, and fistfights) and were caught for some of them (therefore similar to incarcerated criminals) used the same gambler’s fallacy. Therefore, the college students used the same fallacy as the criminals did, which indicates the pervasiveness in society of this thinking error. In other words, it is not just criminals who think this way.
Even 200 years ago, Beccaria theorized that certainty of punishment was much more effective than severity of punishment (Welch, 2003). Numerous studies since then have provided empirical support for this theory (see for example Nagin & Pogarsky, 2003; Pogarsky, 2002; Vitiello, 1997). Incarceration is very costly. For example, In Canada, it costs $110,223 per year to house a maximum security inmate, $71,640 for a medium security inmate, and $19,755 to supervise a parolee (Statistics Canada, 2006). Incarcerating more offenders than ever before is a very costly crime control strategy that does not work, it simply wins politicians elections and provides some relief for victims and their families. In a discussion on corrections and sentencing policy in 2003, the representative for Connecticut admitted they were spending more money on corrections that post-secondary education (Lyons, 2003). The Texas representative stated that prisons there have become “gray boxes with steel bars” (p.2) as the cost of just building and running prisons leaves no room for giving prisoners programs that facilitate rehabilitation (Lyons). The Oklahoma representative stated they could not fund education properly because of the huge amount of money spent on corrections (Lyons). A representative from Nebraska stated that they spent $75 million to construct a prison and $25 million per year to run it (Lyons). The senator stated he tried to build work release centers instead (Lyons). In general, harsher sentences are very costly, are used for far too wide a variety of offences than need be, and are not very effective in reducing crime.
What are Alternatives to Harsher Sentences?
Some American states have changed their harsh sentence policies as they recognize the unwarranted expenditure. For example, in a discussion on corrections and sentencing policy in 2003, the representative for Michigan stated s/he enacted legislation that eliminated lifetime probation for minor drug offenses and replaced it with five years probation. This policy revised the sentence for approximately 1,300 first time nonviolent offenders; most of them were caught with a small amount of cocaine (Lyons, 2003).
In Oregon, after spending some time in prison, inmates were sent to halfway houses that offered programs to find employment, housing, and substance abuse treatment and testing (Lyons, 2003). The halfway house alternative (which is spending less time in prison and some time in the community making a transition) is not only cheaper but more effective than longer incarceration periods as it addresses factors that are related to the prevention of reoffending.
Hughes, Pilkington and Leisten (1998) investigated the diversion of some criminals who were likely to succeed at this plan from the court and the use of reparation and mediation with victims of minor crime in the city of Northamptonshire, England. From 1986 to 1993, 2,650 British victims were consulted about 3,150 offences and 2,600 offenders made amends. They found that 91% of agreements between victim and offender were kept. Actual reoffence rates for offenders who were diverted are not mentioned in their paper.
One of the future directions Canada and other countries are taking is toward “restorative justice.” The Centre for Restorative Justice (2005) defines it as, involving “. . . a holistic process that addresses the repercussions and obligations created by harm, with a view to putting things as right as possible” (p.1). They explain that it requires a change of view from punishment (and therefore in some ways from incarceration) to focusing time and energy on healing and ameliorating, in hopes that the offender takes responsibility for the crime, attempts to repair the harm caused, and does not commit another crime.
Conclusions and Future Directions
The US incarceration rate has increased steadily in the past three decades to phenomenal and costly proportions. People want offenders to stop committing crimes so they can feel safe in their homes and their country. People also want to feel that justice has been served. It is logical to believe that harsh consequences should deter aspiring criminals, however that is not the case. Many criminals do not think of consequences as they can be very impulsive, or they think very illogically about consequences of committing crimes by using the gambler’s fallacy and thinking that if they got caught for their last crime, they will not be caught for their next crime.
The American zeitgeist from 1950 to 1995 made conditions ripe for harsh sentencing and high incarceration rates. However, throughout history, it has been demonstrated that harsh penalties, such as public humiliation, death, or long prison sentences, are not effective solutions that deter crime. Harsh sentences serve purposes such as satisfying victims and their families, winning politicians seats in the government, getting judges re-elected, and employing many people, but in general, they do not serve the purpose of deterring criminals from committing crimes.
Incarceration does serve the purpose of protecting the public from the countries’ most dangerous criminals, and therefore long term incarceration should be reserved for a select number of criminals in which society needs protection from. Other alternatives to long sentences for the less dangerous criminals (for example drug dealers and property criminals) are shorter sentences and supervision in the community through half-way houses. Another alternative is restorative justice in which the offender and victim mediate and the offender pays restitution and makes amends.
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