The Fallacy of “Dismantling Mass Incarceration:” Wishful thinking refuted by ordinary mathematics and science.

26 May

By Mike McGee

I’ve noticed that there is now academic as well as popular interest in “Dismantling Mass Incarceration” in the United States. When serious academics get involved, it’s time to address the issue head-on.

Here in the United States we do seem to have the dubious honor of having the highest per capita prison population in the world. There are currently about 2,220,300 individuals incarcerated in all the jails and prisons in the United States. This prison population is a horrific number, a number which any thinking person should react to with sorrow and humiliation. After reacting as I did, though, serious people should ask the next question: How did we get here?

I, too, wish we could reduce the number of prisoners in the United States. I won’t join any “movement” to “End Mass Incarceration,” though. The increasing US prison populations are for the most part accounted for by improvements in forensic science; and the vast funding made available to law enforcement at all levels after 9/11. Other factors are the increasing numbers of sworn officers patrolling our land; and the huge outcry of victims of crime with the rise of the Internet and social media.

The countries with lower per capita prison rates simply don’t have the scientific, financial and organizational resources of the US, and in those countries a great many more crimes do not result in an arrest or conviction.

Advances in Forensic Science

A lot of people blame Bill Clinton’s 1994 Crime Bill for much of the increase in prison population. But here’s a perfect example of where correlation is not the same as causation. It is true that arrests and convictions increased substantially in the period starting about 1994. The increase, though, had little to do with any bill passed by Congress.

The early 1990’s were the period during which the identification of people by means of DNA matching went from speculation to absolute accuracy. By 1996 DNA matching was routinely accepted as evidence in courts around the country, and it has been ever since.

Since about 1996 there have been huge numbers of convictions and guilty pleas where the primary evidence, or at least the evidence that eventually led the police to the perpetrator, was a match of DNA found at the scene of the crime with that of the person who now sits in a prison cell. These convictions and guilty pleas would never have happened without the new science of DNA forensic analysis, which came alive for the first time in the 1990’s.

In addition, the period from 1990 to 2005 ushered in a great many other highly detailed scientific forensic techniques, from insect larvae instar identification to the mass spectrometer. After 9/11, law enforcement forensic labs received sudden grants of large amounts of cash, which meant that large departments had infusions of the most sophisticated and expensive scientific detection equipment on the planet, and even smaller operations could obtain the benefits of scientific forensic identification. Meanwhile, DNA testing has each year become faster and more effective.

I’m not aware of anyone who is in favor of banning DNA testing or sophisticated forensic science in order to reduce prison populations. We’re not ready to go back to our heroes of old like Sherlock Holmes, whose primary forensic tools were the magnifying glass and his powers of observation. Are we?

Increased Law Enforcement Funding After 9/11

In the ten years after the Sept. 11, 2001 attacks, the nation spent a reported $635.9 billion on homeland security. Much of that money went to local, state and national law enforcement agencies normally charged with apprehending criminals. These agencies are still in possession of the hugely expensive and varied scientific detection equipment they were able to buy at will during this time. All along agencies have used the new people and equipment to send great numbers of non-terrorist criminals to prison.

During that same decade after the 9/11 attacks, massive new computerized databases were built and fed. Emphasis was placed on the sharing of criminal data between law enforcement agencies at all levels. Fingerprints used to be a somewhat local means of identification. Now a fingerprint found in Portland can almost instantly be compared with another found in New Orleans. Obviously this sharing leads to more arrests and convictions, and prison sentences.

Federal databases were set up and made available to any authorized investigator in the country on demand. The criminal database of one state or locality is now available to every authorized investigator in the country. In the past a criminal could flee the jurisdiction and stand a good chance of not being found. Now: you can’t run – you can’t hide.

The Greatest Number of Law Officers Ever

My numbers are taken from FBI statistics:   In 2011 the United States had about 700,000 sworn law enforcement officers in all forces and agencies. Sworn officers are considered to be those carrying badges and guns and having the power to arrest and detain.

Each of these officers has a duty to arrest and assist in the prosecution of persons accused of crimes, with the goal being a conviction or guilty plea, resulting usually in prison time for felons.

If each of these 700,000 officers leads one felon to prison per year, then you get your present prison population in only three years. If only half of these sworn officers lead one felon to prison per year, then it takes six and a half years to get to our present prison population.

I am here using only simple high school math, and the numbers are astounding. We expect our sworn officers of the law to do their best: and even if they are slacking, the numbers add up to what we have now.

Impact On Victims of Crime

Usually in our intellectual quest to reduce prison populations, we tend to simply ignore the victims and their loved ones, lives ended or shattered beyond repair by the crimes which put our prisoners behind bars.

Ask a black mother in South Chicago whose teenage son has been gunned down if she is in favor of letting her son’s killer get off without a prison term, because of the national statistics on prison population.

Ask a store owner who’s been robbed and terrorized at gunpoint by someone who still lives in the neighborhood if he’s in favor of letting the perpetrator off without prison, because of the national statistics on prison population.

Victims of crime of all kinds (including excess force by police) cry out hourly on social media and the 24-hour news networks for justice. Their pleas are plaintive and real, and they are urgent. They want to see someone punished: sent to prison for what they did. Twenty years ago their voices would not have been heard outside their communities.

Ask the Department of Homeland Security if they or the families of the dead will forego a prison term for a person who made just a “little” bomb that killed only a few people. Ask any of us if we agree with such an outcome.

Speak to rape victims and victims of child molesters and the families of people murdered and ask them if they are in favor of letting the perpetrator go free because of the national statistics.

A weak case could be made for skipping prison or short sentences for street level drug dealers and addicts in possession. Anyone above that level is likely a violent person without conscience and society needs to put them away.

Most crimes have a victim, and we should never get so jaded that we ignore the victims. I got a little depressed and angry just writing this section about the victims. During my career as a lawyer I often personally sat with the sorrow, fear and violence of criminals and their victims.

Rational Analysis of Discriminatory Policing and Sentencing

Some say that too many blacks and other minorities are being sent to prison, while some of the crimes of whites go unnoticed or sentences are reduced. Of course there are a few instances of such practices. The allegations of large-scale abuse in prison sentencing are for the most part anecdotal. We’re not living in the Sixties any more. Anecdotal claims are not a reason to scrap the system. Most of the people in prison, black, white or Latino, know why they are there.

We should engage some reliable organizations to do extensive studies of the subject. If there is unequal sentencing, we should fix that problem. If there’s unequal policing, such as police arresting more black than white perpetrators, then we should correct this problem also.

What we should not do is roundly attack our prisons and the criminal justice system without examining with statistical precision the reasons things are as they are. Putting the prison system on trial without tangible evidence is not justice. Neither is charging the system with unequal sentencing and unequal policing without tangible evidence. We should not tolerate any of these injustices. Further, if we do find, with good evidence, that there is inequality, that inequality must be ended as quickly as is humanly possible.

Update and Lagniappe September 2017

Police each year are arresting more people for smaller offenses. Then they can’t make bail and sit as a member of the incarcerated until a plea bargain is worked out. They plead guilty which gives them a criminal record and makes it harder to get a real job and so they go on to real crimes.

Ninety-seven percent of incarcerations are the result of a plea bargain, even if the facts would make it difficult for prosecutors to win the case if the defendant has a competent defense attorney.

The entire judicial system at all levels would break down almost immediately if most defendants asked for a trial, and demanded a speedy trial as the Constitution provides.

Each years state legislatures and congress pass more and more laws defining new behaviors as criminal, and requiring incarceration for an alleged violation of these new laws. Considering the last twenty years, each of these behaviors was not a criminal activity and the police could not arrest people who were doing them. It’s called the “criminalization of society.”

These are just a sample of the matters discussed in an article in the September 2017 Atlantic Magazine. The whole article can be found at This article should be required reading for all people in the criminal justice system, including police, lawyers, judges and legislators.

From .Copyright © 2016 Michael H. McGee. All rights reserved. Please feel free to share or re-post all or part non-commercially or as news, hopefully with attribution.

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