Still number one at putting people behind bars

Visiting an issue I've written about in the past, a New York Times story starts off with a troubling lede:

The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.

Unfortunately, as with too many Times articles, you have to go digging to find the meat of the story. The end result is still troubling, but rather more mixed than the lede suggests. As it turns out, the U.S. does have an extraordinarily high incarceration rate: 751 people behind bars for every 100,000 in population.

The only other major industrialized nation that even comes close is Russia, with 627 prisoners for every 100,000 people. The others have much lower rates. England’s rate is 151; Germany’s is 88; and Japan’s is 63.

The median among all nations is about 125, roughly a sixth of the American rate.

That puts the U.S. as, by far, the leader in an embarrassing category, and raises the question: why?

A big part of the answer is drug prohibition. The Times reports that, of the 2.3 million incarcerated Americans, 500,000 are in jails and prisons for drug crimes. That's up from 40,000 in 1980. About one-fifth of the prison population is there for engaging in activities that shouldn't be punishable at all.

And that's without even touching on other "crimes" that the government has no right to punish, such as gambling, prostitution and violation of many firearms laws.

But other countries have stupid laws on the books, too. And even if you eliminate victimless offenses, that still leaves the U.S. with a high incarceration rate. What gives?

For starters, more than half (52.1%) of all prisoners in state facilities committed violent offenses, according to the Department of Justice. Another one-fifth (20.8%) of prisoners in state facilities committed property crimes. That means that a lot of crimes that should be punished are being committed.

But how should they be punished? Here's where the difference lies. As the Times puts it: "If lists were compiled based on annual admissions to prison per capita, several European countries would outpace the United States. But American prison stays are much longer, so the total incarceration rate is higher."

As an example, the articles cites the fact that American burglars serve an average of 16 months in prison, compared with five months in Canada and seven months in England. And English-speaking countries tend to have longer sentences than non-English-speaking countries.

That's especially bad when you're talking about prisoners who shouldn't be incarcerated at all. It's also bad when you consider prisoners caught up by various states' three-strikes laws, which can impose draconian penalties on criminals convicted of even minor crimes. According to a 2004 Justice Policy Institute analysis of California's three-strikes provision, "over 42,000 persons—or more than one-in-four prisoners—are serving a doubled or 25-years-to-life sentence."

But is the U.S. wrong to lock up murderers, muggers and rapists for longer than their counterparts in other countries?

“As one might expect, a good case can be made that fewer Americans are now being victimized” thanks to the tougher crime policies, Paul G. Cassell, an authority on sentencing and a former federal judge, wrote in The Stanford Law Review.

From 1981 to 1996, according to Justice Department statistics, the risk of punishment rose in the United States and fell in England. The crime rates predictably moved in the opposite directions, falling in the United States and rising in England.

“These figures,” Mr. Cassell wrote, “should give one pause before too quickly concluding that European sentences are appropriate.”

Other commentators were more definitive. “The simple truth is that imprisonment works,” wrote Kent Scheidegger and Michael Rushford of the Criminal Justice Legal Foundation in The Stanford Law and Policy Review. “Locking up criminals for longer periods reduces the level of crime. The benefits of doing so far offset the costs.”

But, the Times goes on to point out, Canada experiences rises and falls in crime in parallel with the U.S. without imposing U.S.-style punishments.

So, what's the verdict?

I think the case is clear for eliminating laws against victimless "crimes" in which people have the right to engage whether politicians like it or not. It's bad enough to arrest somebody for selling a few pills or trading sex for money; it compounds the wrong to then impose some of the world's toughest sentences when no punishment at all is appropriate.

Also, three-strikes laws should be revisited, if only to ensure that severe sentences are being imposed only for serious crimes.

And some relatively minor crimes that are deserving of punishment are probably best treated through means other than long -- or any -- prison sentence.

But is a high incarceration rate an entirely bad thing when applied to real crimes against people and property?

That's just not clear yet.