Judge identifies the simplest explanation for why America leads the world in mass incarceration

Judge Jed Rakoff, one of the most well-known federal judges recentlyspoke out against America’s mass incarceration problem.

The US locks up more people per capita than any other country. Rakoff thinks this is happening because America has gotten much safer since it started enacting harsh sentencing laws in the 1970s and 1980s.

Most Americans likely fear that, if these harsh sentencing laws are repealed, the US might become dangerous, Rakoff said at Harvard Law School last week.

“[M]ost Americans, having noticed that the crime-ridden environment of the 1970s and 1980s was only replaced by the much safer environment of today after tough sentencing laws went into force, are reluctant to tamper with the laws they believe made them safer,” Rakoff said.

Congress — and many states — passed laws enforcing mandatory minimums to lower sky-high crime rates of the ’70s and crack down on the drug trade. The laws often force judges to mete out harsh sentences for first-time offenders and give repeat offenders life sentences even if they’re nonviolent.

The result of these laws is that America now locks up one-and-a-half times more people than second-place Rwanda and third-place Russia, as Rakoff points out.

Jed rakoffREUTERSJudge Jed Rakoff

While America got safer after it started locking up more people, it might have gotten safer anyway. In 2013, Julie Stewart — the founder of Families Against Mandatory Minimums — offered an interesting case study to suggest harsh sentences don’t make America any safer. In an article in US News & World Report, Stewart noted that 17 states at the time had either killed or reformed their mandatory minimum sentencing laws.

“In all 17 states, prison populations fell, and so did their crime rates,” she wrote.

In his Harvard speech, Rakoff said we can’t know for sure whether falling crime rates were a direct result of mass incarceration. The judge pointed to conflicting studies of that question — one of which found mass incarceration had no impact on violent crime and another finding it caused 58% of the violent crime decline in the ’90s.

Still, Rakoff wrote, “the supposition on which our mass incarceration is premised — namely, that it materially reduces crime — is, at best, a hunch. Yet the price we pay for acting on this hunch is enormous.”

In addition to the monetary costs, Rakoff noted that mass incarceration is creating a “cadre of unemployable ex-cons” most of whom are young men of colour. At the current rate, a third of African-American males will have been locked up at some point in their lives.

“[B]y locking up, sooner or later, one out of every three African-American males,” he wrote, “we send a message that our society has no better cure for racial disparities than brute force.”

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