By Elle Trident (read PDF version)
I. Introduction
The United States, a country that prizes its principles of life, liberty, and the pursuit of happiness, is supposed to be a land of opportunity. However, despite being home to just five percent of the world’s population, one in four of its souls are incarcerated. Although alarming and seemingly contradictory to their purported ideals, the majority of Americans do not appear outraged by these numbers. On the other hand, many scholars are proposing questions about the efficacy and fairness of the United States’ current criminal justice practices. This evaluation delves into extensive research on both views—the American public’s and such scholars’ —to locate the disconnect between them. This will be done cooperatively through the exploration of sociological, historical, and statistical perspectives to identify the culprit behind American mass incarceration. Through this analysis, one primary question will be repeated: Are these punitive measures truly serving the broader goals of society, or is there injustice embedded in this system?
II. Sociological Perspective
Sociologists assert that despite political attitudes, any discussion about punishment serves to explore a social institution’s social functions, entitling them to a voice in this conversation. Consequently, it is a common claim amongst this community[1] that penal policy has effectively no correlation to crime trends.[2] As Michel Foucault, a historical influence on political philosophy and sociology, asserts, “[p]risons do not diminish the crime rate: they can be extended, multiplied or transformed, the quantity of crime and criminals remains stable or, worse, increases….”[3] In a more modern observation, sociologist and penal historian Ashley Rubin concurs, “[t]he biggest lesson of prison history is how prisons keep failing us and yet we keep using them anyway.”[4] Though their analyses were made decades apart, both Foucault and Rubin are certain that prisons are not an effective method of reducing crime. This may seem contradictory; after all, if incarceration is not related to crime, what could it possibly be an indicator of? This familiar objection is championed by politicians in favor of strengthening law and order, a crowd that sociologists have boldly accused as the culprit behind imprisonment rates. They have held that rates of incarceration are far more reflective of political processes and social disorder than true criminality, questioning the justifiability of the entire punitive system. Upon review, mass incarceration has nearly no sociological scholarship granting it legitimacy,[5] let alone recognizing any crime reduction effects it may have.[6]
Political popularity for a strong punitive system has lasted decades due to its social roots. Unlike most policies and laws, David Green, an English philosopher and political reformer, defines incarceration as a “process conditioned by all the insecurities, pressures, and disembedding social effects.”[7] In other words, due to the social instability that was brought on merely by the idea of crime, politicians used equally radical social strategies, such as the “terror management theory,”[8] to respond. However, reassuring and comforting irrational feelings—such as those experienced in the terror management theory—nearly always require an irrational response. The great danger, sociologists warn, is when this tactic becomes politicized, as it has with incarceration.[9] Although these strategies are now considered normative politics, these social manipulations were weaponized only about fifty years ago during a movement called the War on Drugs[10].
III. Historical Perspective
In the name of combating drug abuse, an initiative was launched that, over the decades, mutated and manipulated the American public’s attitude toward its penal system. In the 1960s, the United States experienced a surge in both poverty rates and crime statistics.[11] Several presidencies were dedicated to quashing this spike, utilizing extreme measures such as dumping millions of dollars into law enforcement and creating punitive agencies within the executive branch to regain social stability. However, no president approached the issue with as much gusto as President Ronald Reagan. President Ronald Reagan and First Lady Nancy Reagan made history when they enflamed bipartisan terror throughout the country, blaming America’s issues largely on drugs.[12] Nancy Reagan famously warned that “[d]rugs take away the dream from every child’s heart and replace it with a nightmare,”[13] a chilling conviction felt by the entire middle class. Some politicians would argue this fear was brought on by incredibly high crime rates, not the White House. For instance, businessman and politician Nelson Rockefeller insisted, “[t]he people want this nightmare ended. The preservation of our society and individual security demand it.”[14] Both Reagan and Rockefeller promoted the new legislation as a bipartisan protection for Americans. After all, how could Congress so willingly support such legislation if it were based entirely on ungrounded or even questionable facts? Regardless, the American people were far more concerned about their “child’s heart” than stabilizing the facts.[15] This nationwide attitude of fear proposed an interesting challenge to legislators in the upcoming midterm elections: to craft the most draconian regulations to appease public apprehension. Therefore, many politicians relied on favoring power displays over a constructive drug policy in order to secure their re-election.[16] Between the dominant pressure from the executive branch and a public overcome with angst, Congress had little chance of producing a humane and effective solution to the drug epidemic.
Congress’s bipartisan surrender to his law-and-order rhetoric gave President Reagan extensive authority to reshape the punitive process without much objection. Though President Reagan was responsible for many alterations to the punitive system—including the Omnibus Reconciliation Act of 1981,[17] the National Drug Policy Board,[18] the Comprehensive Crime Control Act of 1984,[19] the Corrections Corporation of America,[20] Reagan’s Military Cooperation with Civilian Law Enforcement Agency Act,[21] among others[22]—the most significant policy change during his Presidency can be found in the Anti-Drug Abuse Act of 1986 and the Anti-Drug Abuse Act of 1988.[23] The Anti-Drug Abuse Act is still regarded as the most significant piece of legislation addressing punishments for drug use. Even President Nixon, who, prior to Reagan, was deemed the harshest critic of drug possession, did not dare penalize through such ruthless measures.[24] This historic act established sentencing minimums for drug users, instructed military involvement in drug prevention, augmented law enforcement authority, accepted the death penalty as a reasonable punishment, and authorized $4.5 billion—which would be nearly $12 billion today—to carry out these provisions.[25] This was and still is the most aggressive domestic drug policy the United States has ever seen.
Perhaps the most questionable observation of the Anti-Drug Abuse Act of 1986 would be that in almost every section of this 194-page long law, you can find the words “penalty” and “enforcement” listed clearly while never locating the words “prevention” or “health.”[26] In fact, neither Act, a combined 560 pages, ever discusses “recovery” at all, despite its necessity, according to sociological and medical professionals.[27] One may ask, if the government truly wanted to stop drug possession, why were these health perspectives not considered? The answer that the data suggests is that Congress did not prioritize—or even care about—curing the drug epidemic; instead, it cared aboutimplementing the terror management theory.[28] As mentioned, these bills were passed relatively swiftly, with representatives passing additional amendments to compete for the title “Toughest on Drugs.”[29] Only weeks after the Anti-Drug Abuse Act passed, then-Rep. Charles Schumer reflected that, “[m]aybe [they] had the wrong solutions, but not the wrong problem.”[30] Even on the other side of the aisle, Rep. Robert H. Michel agreed, stating that, “[i]f we had more time we could have considered [the harsh provisions], we just had no time.”[31] By passing this legislation, Congress answered the call to action, but quickly realized it had only worsened the situation.
While Congress was grappling with the realities of its new legislation, President Reagan was publicly praising the dramatic increase in convictions and average sentences sweeping across the nation. As the years progressed, he would continue to applaud himself for filling over half of the federal district court positions, three associate justice positions, and one chief justice position during his presidency, all of whom could enforce his punitive regime.[32] A growing “moral majority”[33] commended the President’s actions and messages, particularly those declaring commitment to the rights of law-abiding citizens.[34] They cheered as President Reagan continued his push towards overcrowding prisons, exploiting prisoners for labor, and cutting medical and social services in prison.[35] Under Reagan’s lead, America had agreed on the social and legal demonization of drug users and prisoners altogether. In 1987, the New York Times reported that “[President Reagan] has been handed an enormous opportunity, perhaps the greatest … to leave his mark on the political and legal life of the country.”[36]
Many presidencies continued to utilize Reagan’s terror management tactics, encouraging the steep climb of incarceration. Although it took decades for the War on Drugs propaganda to wear off, presidents finally began to agree with the sociologists’ analysis that prisons are expanding disproportionately to the scale of crime, achieving minimal progress. In 2015, President Barack Obama toured a correctional facility in Oklahoma to have personal conversations with some of the inmates, specifically drug offenders. Following this meeting, a monumental shift in criminal justice policy occurred. Soon after, a documentary was produced about this experience, the reduction of minimum sentences was adopted, and employment and voting rights were restored to prior convicts[37]. It marked the first presidency that put our penal system in the limelight and sparked the discussion that sociologists and philosophers had been prompting for years: the paradigm switch to governing through crime. For the first time in history, a sitting U.S. president visited a federal prison to confront the unjust system orchestrated by its own democracy. While he was there, President Obama relayed a symbolic message pertaining to this shift:
We have a tendency sometimes to almost take it for granted or think it’s normal. It’s not normal. It’s not what happens in other countries. What is normal is teenagers doing stupid things. What is normal is young people making mistakes. And we’ve got to be able to distinguish between dangerous individuals who need to be incapacitated and incarcerated versus young people who, in an environment in which they are adapting but if given different opportunities, a different vision of life, could be thriving the way we are.[38]
IV. Statistical Perspective
Over the years, the sociologists’ predictions continued to come to fruition.[39] Crime would ultimately remain steady[40] while incarceration would grow exponentially, doubling during Reagan’s presidency.[41] The leap in drug offenses was unprecedented, tripling under Reagan’s administration.[42] Taxpayers began to feel the financial impact of the historic jump in quantity of prisoners.[43] Correctional expenditures also doubled during Reagan’s time in office at a rate that would remain steady for over twenty years.[44] Today, the U.S. government spends $80 billion on the incarceration system— $182 billion when accounting for policing, legal services, and other services[45]—every year with each prisoner costing up to hundreds of thousands of dollars to house.[46] It is common practice for states to spend money outside of their allotted budget to support these overcrowded institutions.[47] Meanwhile, private prisons are able to make a dollar off of both the taxpayer and the inmate by housing the incarcerated and forcing them into strenuous and grueling labor.[48] Due to the issue of prison overcrowding, the U.S. government has been inclined to look the other way whenever issues of workers’ rights or rotten food have arisen from the $70 billion private prison industry.[49] The circumstances instated by the Reagan administration’s policies, as predicted, were neither effective nor sustainable. Instead of a reduction in crime, the numbers prove America saw a reduction in the economic and psychological health of urban communities.[50]
While those numbers are uncomfortably high, improvements have been made since President Obama’s administration. Since mandatory minimum sentences were lowered drastically in 2010, incarceration rates have decreased by over twenty-five percent. In conjunction with the reduction in minimum sentences, robberies and property crimes are down to a quarter of what they were in 2000.[51] Regardless of these numbers, some politicians are unwilling to give up on their law-and-order rhetoric and terror management policies.[52] Because of this, Americans are unable to fully overcome the contagion of fear that has been passed down since President Reagan. In 2021, over seventy percent of Americans felt that the United States faced serious crime problems, believing they grow worse every year. Nearly half also voiced that the criminal justice system in America needs to intensify its toughness. In response, the defensive measures that Americans have taken to improve their security have only increased.[53] As mentioned, these fears are in no correlation—and rather in contradiction—with the crime statistics. This fear has clearly never been anchored in logic, but nevertheless, Americans are still vulnerable to its weaponization.
Under President Obama’s leadership, a stark transformation occurred as public perception shifted dramatically, unveiling a hidden humanitarian crisis nestled within the confines of the criminal justice system. While Obama’s role was historic, it will require more persistence from the American government and public to make criminal justice policy changes to ensure longer-lasting progress toward a freer America. Policy change, such as the Fair Sentencing Act of 2010, requires overwhelming public support from the American people to be written into law.[54] However, that cannot happen if Americans accept complacency or embrace terror management methods. Even today, nearly half of the federally incarcerated individuals in America are imprisoned on drug offenses and around one million drug arrests occur yearly.[55] Although improvements are visible, these numbers still cast a glaring spotlight on the credibility of our criminal justice system, provoking a systemic change.
V. Conclusion
Judicial discretion. Urban and racial targeting. Three strikes laws. These are just a few of the structural policies upholding today’s mass incarceration.[56] Addressing each of these individually pales in comparison to the profound impact that can be achieved when the American public denounces the fear-mongering tactics, allowing the country to truly grasp the depth and urgency of this situation. This analysis may have failed to address specific policies to complain to your senator about, but this assessment was conducted delicately not only due to the nature of the topic but also because of the attitude necessary to proceed. America must first acknowledge that this issue of mass incarceration is a symptom of a widespread fear epidemic. Through this fear, the War on Drugs constructed a political dungeon that has taken liberty hostage for decades. The progression through time cannot merely result in fearful complacency; it must trigger activism. President Reagan rightfully defended the need for law and order in the United States, yet he openly omitted due recognition of the intrinsic human element in this endeavor. Sociology is the compass that guides the scales of justice, revealing the intricate web of human interactions that underlie law and order. By listening to the experts in this field, future statistics may finally reflect a safer and freer country. Like the beacon of hope she is, America may then restore her allegiance to freedom and equality once again.
I believe this because the source of our strength in the quest for human freedom is not material, but spiritual. And because it knows no limitation, it must terrify and ultimately triumph over those who would enslave their fellow man.[57]
[1] Sociologists, historians of thought, and other scholars of social functions.
[2] David Garland, Theoretical Advances and Problems in the Sociology of Punishment, 20 Punishment & Soc’y, 8, 15-16(2017).
[3] Michael Foucault, Discipline and Punish: The Birth of the Prison, 11 Eighteenth-Century Stud. 509, 247(1978).
[4] Greg Miller, The Invention of Incarceration, JSTOR Daily (Mar. 18, 2022), https://daily.jstor.org/the-invention-of-incarceration/.
[5] There are minimal conservative voices in this field in today’s age. Punishment scholarship holds a progressive or liberal view consistently. Even private prisons are widely held in a negative view, except to their conservative policymakers.
[6] Garland, supra note 2 at 18.
[7] David A. Green, ‘Liberty, Justice, and All: The Folly of Doing Good by Stealth’, in Albert Dzur, Ian Loader, and Richard Sparks (eds), Democratic Theory and Mass Incarceration, Studies in Penal Theory and Philosophy (New York, 2016; online edn, Oxford Academic, 20 Oct. 2016), https://doi-org.yale.idm.oclc.org/10.1093/acprof:oso/9780190243098.003.0009.
[8] Id. (The “terror management theory “[s]uggest[s] that one’s primordial instincts kick in to defend one’s worldview in the face the existential threat posed by a reminder of one’s mortality.”).
[9] Id.
[10] Elizabeth Hinton, From the War on Poverty to the War on crime: The making of mass incarceration in America, 6 (2016).
[11] Id. at 6-7.
[12] Id. at 307.
[13] First Lady Nancy Reagan, Address to the Nation on the Campaign Against Drug Abuse (Sept. 14, 1986) https://www.reaganlibrary.gov/archives/speech/address-nation-campaign-against-drug-abuse (This is just one of the many eyebrow-raising claims made by Nancy Reagan in the “Address to the Nation on the Campaign Against Drug Abuse” on September 14, 1986).
[14] Governor Nelson A. Rockefeller, Remarks of Governor Nelson A. Rockefeller at Virginia State Chamber of Commerce Dinner at Holiday Inn (1973).
[15] President Ronald Reagan, Remarks at the White House Briefing on Proposed Criminal Justice Reform Legislation (Oct. 19, 1987) , https://www.reaganlibrary.gov/archives/speech/remarks-white-house-briefing-proposed-criminal-justice-reform-legislation.
[16] Brooke Intlekofer, Anti-Drug Abuse Act of 1986, The Cong. Project (May 4, 2018), https://www.thecongressproject.com/anti-drug-abuse-act-of-1986.
[17] Bolstered law enforcement spending and paid for it by reducing social program funding, eliminating sixty-two programs and consolidating fifty-seven more.
[18] Brought together cabinet members, such as secretaries of Defense and State and the Attorney General, to implement policy and make decisions about local law enforcement.
[19] The first legislation encompassing Reagan’s War on Drugs; was passed 406-16. Essentially rid of the federal parole system and introduced many penal strategies that failed during Nixon’s and Ford’s administrations.
[20] Introduced privatized prisons, opening the first private prison facility in Texas.
[21] Empowered local police forces by granting them access to the defense agency’s research, weaponry, intelligence, and military bases’ manpower to help prohibit drugs.
[22] Not mentioned: National Narcotics Border Interdiction System, Armed Career Criminal Act, Operation Pipeline, and amended Nixon’s Comprehensive Drug Abuse Prevention and Control Act of 1970 to make police departments more profitable from civil forfeitures.
[23] See 25 U.S.C. §§ 1001-15007 and 21 U.S.C. §§1001-9309.
[24] Hinton, supra note 10 at 317-22.
[25] Sophia Scaglioni, We the Prisoners: Considering the Anti-Drug Act of 1986, the War on Drugs and Mass Incarceration in the United States, The Brown Univ. of Phil & Econ. 41, 42 (2021).
[26] 25 U.S.C.§§1357a, 1451a-1451b, 6053c, 12012b-12012e.
[27] Scaglione, supra note 25, at 45.
[28] Peter Kerr, Anatomy of the Drug Issue: How, After Years, It Erupted, N.Y. Times (Nov. 17, 1986) (Rep. Brian Donnelly said the floor had turned into “a mob mentality in there,” and Rep. Patricia Schroeder diagnosed it as a “political ‘piling on’ right before an election.”).
[29] Id. (Roger Ailes, a Republican television consultant, told the New York Times that “there is a growing feeling that you cannot be too tough on drug pushers.” He also confirmed that voters would celebrate this push.); Intlekofer, supra note 16.
[30] Kerr, supra note 28.
[31] Id.
[32] S. Goldman, Reagan’s Judicial Legacy: Completing the Puzzle and Summing Up, Judicature, 72(6) (1989), https://scholarworks.umass.edu/polsci_faculty_pubs/25/.
[33] Scaglioni, supra note 25, at 46 (A political group that was comprised of Republicans and Christians, mainly evangelicals, promoting “traditional values” after claiming to be overlooked by previous administrations).
[34] Hinton, supra note 10 at 270 (Many reviews have shown that this commitment excluded many law-abiding citizens and their communities).
[35] Scaglioni, supra note 25, at 46.
[36] Tony Platt, U.S. Criminal Justice in the Reagan Era: An Assessment, Crime and Social Justice, no. 29, 64 (1987), https://www.jstor.org/stable/29766345 (The New York Times reported this immediately following the resignation of Justice Powell, granting Reagan another Supreme Court nomination).
[37] Ayesha Rascoe, Obama, in Prison Documentary: U.S. Legal System Has Been ‘Unjust.’ Reuters (Sept. 22, 2015), www.reuters.com/article/idUSKCN0RM1H3/.
[38] President Barack Obama, Remarks by the President after Visit at El Reno Federal Correctional Institution (June 16, 2015), https://obamawhitehouse.archives.gov/the-press-office/2015/07/16/remarks-president-after-visit-el-reno-federal-correctional-institution.
[39] It should be recognized that many people view numbers as dry and purely logical. That numbers themselves, simply a range of years or a percentage, hold no emotion or calling, only data. However, these numbers hold unassailable power and authority. They demand attention, commanding us to confront the stark realities they represent. Here, numbers serve as a form of digestible evidence to assist in understanding the magnitude of mass incarceration in America yesterday, today, and in the days to come.
[40] The United States wouldn’t experience a notable decline until after 2010.
[41] Joshua Vance, The Growth of Prisons and Economic Circumstances Surrounding Mass Incarceration in the United States, Kalamazoo College: Department of Economics and Business, Economics and Business Symposium (2018), https://cache.kzoo.edu/handle/10920/43512 (The incarceration population stood at just under 500,00 people, growing to over 1.1 million people by 1990. From 1985 to 1995, the U.S. experienced an incarceration population growth of 85% annually. Since 1990, that number has doubled with the U.S. housing 2.2 million incarcerated).
[42] Ashley Nellis, Mass Incarceration Trends, The Sentencing Project (Jan. 25, 2023), https://www.sentencingproject.org/reports/mass-incarceration-trends/#footnote-ref-17 (In 1980, the incarceration rate for drug offenses was under 20 people per 100,000. By 1990, the rate had increased to about 100 per 100,000 people, nearly double the rate of any other individual offense at the time).
[43] Vance, supra note 41.
[44] Vance, supra note 41 (From 1982 to 2012, criminal justice expenditures (adjusted for inflation) have grown by 310%.).
[45] Mass Incarceration: The Whole Pie 2024. Pʀɪsᴏɴ Pᴏʟɪᴄʏ Iɴɪᴛɪᴀᴛɪᴠᴇ (2024), www.prisonpolicy.org/reports/pie2024.html (In 2012, the expenditures totaled to $265 billion. Sawyer, Wendy, and Peter Wagner).
[46] Christian Henrichson, et al. The Price of Jails: Measuring the Taxpayer Cost of Local Incarceration. VERA Inst. of Justice (May 2015) www.vera.org/downloads/publications/price-of-jails.pdf (In 2014, Johnson County, Kansas was recorded for charging every resident $82 per year for their jail. Altogether, it cost a county of 574,272 people over 48 million dollars in just one year).
[47] Economics of Incarceration. Pʀɪsᴏɴ Pᴏʟɪᴄʏ Iɴɪᴛɪᴀᴛɪᴠᴇ (Nov. 2023.) https://www.prisonpolicy.org/research/economics_of_incarceration.
[48] Wendy Sawyer, How Much Do Incarcerated People Earn in Each State? Pʀɪsᴏɴ Pᴏʟɪᴄʏ Iɴɪᴛɪᴀᴛɪᴠᴇ, (Apr 2017), www.prisonpolicy.org/blog/2017/04/10/wages/. About 4,000 private companies make a profit off mass incarceration. Additionally, within these private companies, the average incarcerated worker’s daily wage is $0.86.
[49] Vance, supra note 41.
[50] Hinton, supra note 10 at 310 (The highest level of monitored involvement in drug possession and trafficking. Urban, lower-class areas could not afford the protection and were the targeted group of Reagan’s drug enforcement teams).
[51] Without any proven correlation (or lack thereof) to incarceration decline.
[52] Nellis, supra note 42.
[53] Megan Brenan, Crime Fears Rebound in U.S. After Lull During 2020 Lockdowns, Gallup (Nov. 10, 2021), news.gallup.com/poll/357116/crime-fears-rebound-lull-during-2020-lockdowns.aspx (Methods include carrying a knife or gun, keeping a guard dog, purchasing pepper spray, installing alarms, etc.).
[54] Green, supra note 7.
[55] See BOP Statistics: Inmate Offenses, Fᴇᴅ. Bᴜʀᴇᴀᴜ ᴏғ Pʀɪsᴏɴs, www.bop.gov/about/statistics/statistics_inmate_offenses.jsp.
[56] Hinton, supra note 10 at 259, 326.
[57] Ronald Reagan, Remarks at the Annual Convention of the National Association of Evangelicals in Orlando, FL. (Mar. 1983), https://www.reaganlibrary.gov/archives/ speech/remarks-annual-convention-national-association-evangelicals-orlando-fl.