Incarceration and Inequality

“I missed out on their first day of school. I missed out on being able to encourage them to persevere. I missed out on being a mother. I feel like I was robbed of that opportunity because they were babies. And when I came home, they had babies. …It’s even hard now to know that I can never get those days back.”

Ramona Brant was sentenced to life in prison without parole for a drug conspiracy charge — her first offense — when her two sons were ages 3 and 4. Their father received the same sentence and the children became orphans. Ramona was able to get out of prison after 21 years, but it would take an act of god for her to get out. And by that time, her boys were no longer boys.

Ramona is one of the 2.3M people in prison in America. Her story is unfortunately not unique, and it is told much more commonly among certain populations and in certain states.

Black men are 5x more likely to be incarcerated than White men. Meanwhile, Oklahoma’s incarceration rate is 2.5x higher than Russia’s.

Oklahoma: The highest per capita incarceration rate in the world

Oklahoma has the highest per capita incarceration rate of any place on the planet, higher than any country, continent, or any other state. More than 10 in 1,000 people in Oklahoma are in jail or prison, compared to 6 in 1,000 in El Salvador; 5 in 1,000 in Rwanda; and 4 in 1,000 in Russia. Overall, the US has an incarceration rate of about 7 in 1,000 people. What’s happening in Oklahoma?

To answer this question, we first need to recognize that America has an incarceration problem. The US represents just 4.5% of the world’s population, but confines 20.1% of the prison population.

In 1999, Oklahoma passed a truth-in-sentencing law that required people convicted of violent crimes — regardless of the offense or circumstances — to serve 85% of their sentence before becoming eligible for parole. As one might expect, the law resulted in much longer sentences and a dramatically increased rate of imprisonment overall. But something else happened as well: Crime in Oklahoma did not fall and stayed above national averages while poverty skyrocketed.

Even for those eligible, Oklahoma consistently failed to grant parole, as the discretion of more conservative judges resulted in a 77% decrease in those offered parole. While an unfortunate and extreme case of over-incarceration, the surge of US mass imprisonment has in no way been limited to Oklahoma alone.

Explosion in the prison population

How did it come to be that we have 2.3 million people in prisons? The answer is that we have an under-resourced criminal justice system that makes people plead guilty; we imprison people for longer; and we make it difficult to break out of the vicious cycle of imprisonment.

Americans are forced to plead guilty — Only 2% of criminal cases went to trial 94% of criminal convictions in the United States result from guilty pleas, not jury verdicts. Those suspected of crimes are told they’ll receive shorter sentences if they plead guilty, and when we combine this with the remarkable costs of going through trial and the shortage of public defense resources, many Americans don’t receive the due process that is guaranteed to them in the Constitution.

Americans spend more time in prison — Mandatory minimum sentences meant that the time that someone spent in prison exploded in the 1980s and 1990s. And even as Americans were pleading guilty at higher rates, they weren’t granted parole and released as frequently as before. The result? In 1980, the average time served in prison for murder was 5 years. 30 years later, it had more than tripled to 17 years.

Recidivism rates remain high — Recidivism is when previously convicted individuals reoffend and re-enter the prison system. It’s estimated that, in the US, about 64% of offenders 24 and younger are re-arrested within 5 years. 84% of state prisoners are rearrested. Further, the collateral economic, educational, and labor market consequences of mass incarceration have been shown to be a “major driver of poverty,” and it’s estimated that 5 million fewer Americans would have been poor had they not been incarcerated.

Racism and incarceration: Worse than South Africa at the height of Apartheid

375 counties in the US have at least a 20x differential in the Black versus White incarceration rates. This means that for every 1 White person in prison, there are 20 Black people in prison, given equal overall population sizes.

As Michelle Alexander points out, the United States imprisons a larger percentage of its Black population than South Africa did at the height of apartheid.

Wisconsin is the worst state when it comes to the gap between Black and White people in prison. In a new report, Wisconsin incarcerates 2,742 Black people per every 100K versus 230 White people per every 100K. This means that 1 in 36 Black adults in Wisconsin is in prison. St. Croix County, just outside of Minneapolis, is the worst county in the state too. The Black-to-White incarceration gap in St. Croix is 137-to-1. 40% of the men in Milwaukee prisons have been locked up for low-level drug offenses.

Researchers at the University of Wisconsin explain how this happened:

“The explosion really took place in the year 2000 to 2008 where mandatory sentencing, three strikes was put in place and it more than tripled the population in just a few years, which meant about half of the black men in their 30s or early 40s in Milwaukee County would have spent time in the state’s correctional facilities. And two-thirds of the men come from the 6 poorest zip codes in Milwaukee.”

Mental health and incarceration

37% of people in state and federal prisons have been diagnosed with a mental illness, yet 66% of those with diagnoses have reported not receiving any mental health care while imprisoned.

For many, imprisonment can be a mental health crisis in and of itself. Individuals in isolation have described a lost “ability to focus, to interact with people, or to differentiate the real from the imagined.” But then, locking two people in a cell meant for one person creates severe conditions of overcrowding, which also causes severe psychological stress and even significant emotional discomfort, leading to some cellmates even killing themselves or each other.

Private Prisons are NOT the problem

While policymakers make a lot of noise about private prisons, they are NOT a primary driver in mass incarceration. The private prison system may be an institution with misaligned incentives that benefits from mass incarceration, but private prisons are not driving the increase in imprisonment in America. Public prisons are the real drivers. The rise instead comes from public prisons.

Private prisons only account for 8% of the overall prison population. Although the private prison population increased 32% since 2000, it still only accounts for 115,000 Americans. Those who run public prisons have greatly benefited from the ridicule that has fallen on private prisons in recent years, since it shines the light away from them. Nevertheless, private prisons make $374M in profits each year and tend to cut costs to continue to drive up those profits, often at the expense of prisoners and guards.

Interestingly enough though, 73% of immigrant detainees are kept in private prisons.

The Path Forward

By ending mandatory minimum sentences, sending fewer people to jail for low-level offenses, and by improving bail reform efforts, many states can turn the page on mass incarceration. Connecticut, Michigan, Mississippi, Rhode Island, and South Carolina have reduced their prison populations between 14 and 25% over the past decade. Here are the lessons we can learn from them to decarcerate America.

• End mandatory minimum sentences — Mandatory minimum sentences require those convicted to spend a set number of years in prison based on the crime before they are released or granted parole. As a result, the unique situation of a criminal — whether that person was a low-level accomplice or the kingpin of the crime — are not taken into consideration. Judge discretion is also given much less weight with mandatory minimums. Rhode Island achieved a 59% decrease in new court admissions for drug crimes by eliminating mandatory minimum sentences for all drug crimes and changing possession of small amounts of marijuana to a civil infraction.
• Send fewer people to jail for drug offenses — 1 in 5 people is in jail for a drug offense. We need to first stop sending people to jail, particularly for low-level drug offenses. And second, we need to reduce the amount of time spent in jail if we do incarcerate people for these offenses. Estimates suggest that cutting lengths of stay 50% for drug trafficking offenses would reduce the federal prison population 18% over the next 8 years.
• Improve bail reform efforts — 470,000 people are in jail right now who have not even been convicted of a crime. This means nearly half a million people are in jail who may have done nothing wrong. The pre-trial detention rate has increased 470% over the last 4 decades. The average cost of paying bail for a felony is $10,000-$12,000, and half of all the people who can’t post bail are parents. Defendants are 9x more likely to plead guilty to a misdemeanor if they can’t afford bail. We need to make bail more affordable by calculating bail based on a person’s ability to repay and using the Public Safety Assessment (PSA) to determine when costs are warranted and when bail can be fully removed.

When I was at the Harvard Kennedy School, I helped launch socialpolicylab.org with Professors David Deming, Gordon Hanson, and Sandra Smith, and was its first Editor in Chief. My colleagues there have done tremendous work on pretrial incarceration and ways to improve the incarceration system. If you’re interested in learning more, please go check out their work.

Special thanks to Damarcus Bell and Elizabeth Kostina for their research, insights, and thoughtful guidance on this piece.