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The WeekOne of the most admired liberal policy books of the season, Mark Kleiman's When Brute Force Fails, argues for reconsidering current law enforcement policy.
— David Frum
Since the crime explosion of the 1960s, the prison population in the United States has multiplied fivefold, to one prisoner for every hundred adults-a rate unprecedented in American history and unmatched anywhere in the world. Poor people and minorities still bear the brunt of both crime and punishment. When Brute Force Fails explains how we got into this trap, and how we can cut both crime and the prison population in half within a decade.
Mark Kleiman describes the recent revolution-largely unnoticed by the press-in controlling crime by means other than brute-force incarceration. As Kleiman shows, "zero tolerance" is nonsense: there are always more offenses than there is punishment capacity. But it is possible-and essential-to create focused zero tolerance for offenders on probation and parole, by clearly specifying the rules and then delivering the promised sanctions every time the rules are broken.
How did we get where we are? If we look back half a century, the United States had much less crime and much less punishment than it has today. What went wrong? What has gone right since 1994? And where do we go from here?
Starting about 1963, crime began to rise quickly after a long plateau at historically low levels. Demography explains part of that change: in 1963, the first wave of the post-war Baby Boom generation reached the age of seventeen, which meant that the oldest Boomers were entering their prime crime-committing years. Even had age-specific crime rates stayed stable, having larger cohorts in their high-crime years would have pushed up crime rates. But in fact age-specific crime rates soared, perhaps because the sheer size of the Boomer generation made it less responsive to its elders. ("With the birth of the third child," it has been said, "parents have to move from man-to-man coverage to zone defense." The same principle seems to apply at the macro level.) Rising crime rates, like the unholy trinity of sex, drugs, and rock 'n' roll, partly reflected the greater rebelliousness enabled by the Boomers' greater numbers.
While the drugs most associated with the cultural upheaval known as "the Sixties"-cannabis and the hallucinogens (such as LSD)-had little if any connection with predatory crime, the mid-1960s also saw the sudden rise of heroin addiction in poor, and especially racial-minority, urban areas, further exacerbated in the later 1960s by the return of soldiers who had acquired the heroin habit in Vietnam to those areas. Heroin use was widespread among American troops while in the theater of war , but those who returned to neighborhoods where heroin was not easily available or widely used mostly gave it up once they got home. (The heroin wave of the 1960s, which had its effect on crime largely through inducing income-producing crime among heroin addicts, was only a warm-up to the crack epidemic of the late 1980s, which generated not only economic crime by users but massive violence among dealers.)
The wave of urban riots that started in Watts in 1965 and climaxed in the summer of 1968 following the King assassination left behind it higher rates of day-to-day crime, worsened legitimate economic opportunities, and police departments concerned-especially after the Kerner Commission report-that aggressive tactics against routine street crime might spark more riots.
Thus demography, sociology, and history combined to set the stage for an explosion in crime rates.
At the same time, a combination of ideological and historical factors acted together to reduce the country's prison capacity. By then, penologists had figured out that the "Big Houses"-the mega-prisons built after World War I, holding thousands of prisoners each-were too big, and that smaller prisons were easier to control. So when those mega-prisons hit the forty-year mark that was understood to be the end of their designed useful life, the impulse was to shut them down rather than renovating them. Back then, not many communities wanted prisons as neighbors, so siting new prisons was difficult, especially in high-population-density states.
Prison administrators, who were losing both self-confidence and support within the political system, had little desire and even less capacity to insist on matching increases in crime with increases in prison capacity. They had built up the idea that prisons were centers for rehabilitation: "penitentiaries" in the original sense of that term. But a growing body of research suggested that sending someone to prison did not, on average, reduce his subsequent criminal behavior, other than by keeping him off the streets for a while. That was interpreted-not very accurately-as meaning that rehabilitative efforts within prison were wasted effort. An equally plausible but less popular interpretation of the same results was that some aspects of the prison experience were likely to be criminogenic, while others tended to be rehabilitative, yielding a net effect near zero but allowing for the possibility that more or better rehabilitation could reduce recidivism. But the conventional wisdom among decision-makers treated the claim that "Nothing works" as an established fact of penology.
If the goal of prison was rehabilitation, and if prisons did not rehabilitate, then there seemed to be no good reason to keep building them, or even to replace the ones that had passed their "use-by" date. So the 1960s and early 1970s saw the nation's total prison capacity shrink by 10 percent even as crime soared. If we set the 1962 ratio of the incarceration rate to the crime rate-what might be called the "punitiveness index"-equal to 100, by 1980 it had fallen to 32, and did not return to its 1962 level until 1996. (See figure 1.)
At the same time, judicial decisions and the civil rights revolution made it less and less possible for police to inflict illegal summary punishment, known among beat cops as "street justice." To add to the mix, the wave of "de-institutionalization" of patients in state mental hospitals, combined with the failure to build the community mental-health system that was supposed to replace them, released to the streets a group of people who, though relatively few of them committed serious crimes, generated enough low-level public-order offenses to increase the strain on police and jails.
At that historical moment, conservatives both in the academy and the political system started to challenge what they saw as the liberal orthodoxy about crime: that the key to fixing crime was to change the conditions of social deprivation that were its "root causes"; that controlling lawless behavior by the police was as important as, or even more important than, controlling street crime; that punishment should be designed primarily to rehabilitate rather than to incapacitate or to deter; and that the public's fear of crime was exaggerated and reflected racial fears stirred up by demagogues.
A key voice on the academic side was that of James Q. Wilson, then in the government (political science) department at Harvard University. Wilson's Thinking about Crime proposed to replace what its author saw as liberal muddle-headedness with what seemed to Wilson, and to many who did not share his other political opinions, like plain common sense.
Crime, in Wilson's view, had both characterological and social roots, but was fundamentally the product of individual choice rather than irresistible socioeconomic forces or psychological compulsions. Individuals' inadequate capacity to defer gratification, their preference for idleness over work and self-indulgence over responsibility, and a climate of opinion that supported the expression of those character traits as "liberating" rather than deploring them as depraved all played a role. The country was experiencing an increase in crime, according to Wilson, largely for two interrelated reasons: because we had gotten into the habit of "understanding" crime and thereby explaining away the moral onus on criminals, and because we were failing to vindicate the maxim "Crime doesn't pay." Due to the laxity of the criminal-justice system, said Wilson, crime did pay, and young men who noticed that, and who lacked the social or characterological resources to resist temptation, became criminals.
The prescription of Thinking about Crime was straightforward: convincingly reassert the middle-class virtues as against the "do-your own-thing" spirit of the Sixties, and ramp up the capacity of the criminal-justice system to deliver punishment in order to make crime no longer pay. Then we would see crime recede, even without delivering on the Great Society promise of redress of long-standing social, and especially racial, grievances.
Though Wilson's tone and analytic apparatus were different, the themes of his work were consistent with the "economic theory of crime" being developed contemporaneously by Gary Becker of the University of Chicago economics department. To Becker, criminal activity, like all human activity, reflected the responses of selfishly rational actors to the incentives created by their desires and opportunities. People would offend, according to Becker, if and only if the rewards of offending, net of the risks of being punished, exceeded the rewards of not offending.
The arithmetic seemed to support the Wilson/Becker view. The punishment for any given crime is largely random, and likely to be zero: that is, most offenses never even lead to an arrest. Still, it is possible to compute the average punishment per crime by dividing the total amount of punishment for any given crime (measured in person-days of incarceration) by various measures of the frequency of that crime. Assuming as an approximation that the number of prisoners is constant across any given year, the year-end count of the number of persons behind bars for any given offense, multiplied by 365, yields the aggregate number of person-days of incarceration being served for that offense. Divide that number by the total number of offenses of that type committed that year (eliding the fact that not all of the prison time served in any year results from offenses committed that year and, conversely, that most of the punishment for offenses that year will take place in future years) and the answer is the average number of days incarcerated per offense committed for that crime type. That number is what statisticians call an "expected value": that is, a probability-weighted average.
The answers were astonishing. In 1974, at the low point for punishment-to-offense ratios, there were about 6 million burglaries. At the end of 1974, American prisons and jails housed just under 60,000 burglary arrestees and convicts. On average, then, each burglary resulted in about 1 percent of a year-about four days-behind bars. (See chapter 5.) In light of these rather trivial punishment levels, high and rising crime rates did not seem very surprising.
Obviously, there was and is no such thing as a four-day sentence for a burglary, any more than there is a family with 2.7 children living at home or an at-bat that results in .280 of a hit. Most burglaries never lead to an arrest, so the punishment suffered by those burglars is zero. Of those that lead to an arrest, some cases are never filed, some are dismissed, some are "pled out" to lesser charges, and some (a tiny fraction) lead to acquittals. Of burglars who plead guilty or are convicted, some get probation, some get jail time (i.e., less than a year), and some get prison time. In addition, many burglary arrestees spend time in jail awaiting trial.
The four-day figure represents the average of all those results for burglaries in 1974: most burglars not punished at all, a few getting multiyear prison terms.
That result seemed to vindicate the Wilson viewpoint: the (average) punishment was grossly inadequate to the crime. Punishments for the other Part I offenses were equally unimpressive: 8 days per aggravated assault, 28 days per robbery.
The combination of rising crime rates and shrinking prison capacity over the decade 1964-74 meant that the "price" of a crime-in the form of punishment-had been falling in the teeth of a crime wave. Clearly, the falling punishment-per-crime ratio was partly the result of that crime wave, since for any fixed amount of prison capacity more crimes meant fewer cells available per crime. But the converse might be the case as well; falling punishment-to-crime ratios might make crime even more attractive to potential criminals by reducing the risks they faced, thereby accentuating the uptrend. That is the vicious circle of "enforcement swamping," in which rising levels of crime so overtax the capacity to punish as to make the uptrend self-reinforcing.
While critics faulted the U.S. criminal-justice system as overly punitive because of its high ratio of prisoners to population, the picture looked very different if the focus was on the ratio of punishments to crimes. Western European countries indeed had much smaller prison populations than did the United States compared to their total populations, but the U.S. led in crime by a margin even greater than its lead in punishment.
As a result, the punishment per crime was actually higher in most countries in Western Europe than it was here, just as the ratio in the United States itself was higher in the low-incarceration (but low-crime) 1950s than it is today.
In that context, there seemed to be a reasonable case for building more prisons in order to restore deterrence levels while also preventing crime through the purely mechanical "incapacitation" effect: putting offenders behind bars separates them, albeit temporarily, from potential victims. Indeed, in the intervening three decades we have built prisons, and built prisons, and then built still more prisons, until some of us who supported expanding prison capacity from its low 1970s levels have started to feel like the Sorcerer's Apprentice, vainly looking for the "off" switch on a mechanism gone completely out of control.
After half a century in which U.S. incarceration per capita hovered around 150 per 100,000 population-higher than the rest of the developed world, but not grossly so-the past thirty years have seen that number grow to an astonishing-not to say appalling-700 per 100,000, the highest rate in the world. We now have 2.3 million people-just about 1 percent of the entire adult population-behind bars at any one time. That increase accounts for part of the rather spectacular crime decrease the country has experienced since about 1994: how much is a matter of heated dispute.
The combination of higher incarceration and lower crime has greatly multiplied incarceration-to-offense ratios, as shown in figure 1. The punitiveness index, which fell by 68 percent from 1962 to 1974, quintupled from 1974 to 2007. The punishment-price of a burglary, which fell from fourteen days in 1963 to four days in 1974, reached sixteen days in 2007.
But the political, ideological, legal, and administrative impetus behind the prison-building boom, which developed when crime was frighteningly high and rising, has not noticeably dissipated now that crime has decreased. On the contrary, the growth in the number of people whose livelihood comes from incarceration-building prisons, staffing prisons, serving communities for which a prison is an economic lifeline-and the rise of the prison guards' unions and the private prison industry as political forces supporting the policy of high incarceration have given the prison boom great momentum; it is only now being slowed by fiscal crises in state governments.
The devastation wrought by incarceration itself-on the prisoners most of all, but also on their families and the neighborhoods where their absence is an important demographic fact-is now too great to ignore. The prisons have not gotten better at reforming their inmates as they have grown larger; rather the reverse, as tight budgets and growing populations lead to more crowding and less rehabilitative programming. Gang activity and violent ethnic conflict spill over from the institutions to the streets, and there is reasonable fear-though not, yet, much hard evidence-that the prisons may be a source of a problem Europe has to deal with but the United States has, until now, been spared: home-grown Islamic terrorists.
Incarceration rates in some population subgroups are now so high that having been in prison has lost much of its local stigma. Not only is prison experience regarded as more or less normal in some neighborhoods (though it remains a great barrier to finding legitimate employment); it even confers a sort of prestige. The flood of prison returnees-600,000 per year, two-thirds of whom will be back "inside" within three years-now constitutes a major social problem in its own right.
Arguably, if the choice were between high incarceration and the high crime that results from too little deterrence and too many criminals running around loose, the country would be better off accepting high incarceration. But at some point, surely, the cure is more painful than the disease. With the crime rate 15 percent lower today than it was in 1974 and the incarceration rate four times as high, the average prisoner today must be far less criminally active than his counterpart thirty years ago, suggesting that further expansion will hit the law of diminishing returns. Beyond some level-and we may well have passed that level-the scale of imprisonment can generate so many perverse effects that additional incarceration becomes, on balance, a contributor to the problem rather than the solution. (For a discussion of the problem of "mass incarceration," see chapter 6.)
Yet crime remains a central social problem, especially in poor, black high-crime neighborhoods. The burden of crime, and the burden of crime control, are alike hard to bear. Is there a way out of the trap?
Excerpted from When Brute Force Fails by Mark A. R. Kleiman Copyright © 2009 by Princeton University Press. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Introduction: How to Have Less Crime and Less Punishment 1
1 The Trap 8
2 Thinking about Crime Control 16
3 Hope 34
4 Tipping, Dynamic Concentration, and the Logic of Deterrence 49
5 Crime Despite Punishment 68
6 Designing Enforcement Strategies 86
7 Crime Control without Punishment 117
8 Guns and Gun Control 136
9 Drug Policy for Crime Control 149
10 What Could Go Wrong? 164
11 An Agenda for Crime Control 175
Posted January 30, 2010
This book has really helped communicate to legislators, parents and young peopel with experience in the criminal justice system what needs to happen to fix our broken down criminal justice system. We had a focus group discuss this book chapter by chapter after viewing Mark Kleiman on C-SPAN. My brother is former public defender in Miami and he says no one has stated whats wrong and what or why we need to do that makes sense like Kleiman.Was this review helpful? Yes NoThank you for your feedback. Report this reviewThank you, this review has been flagged.
Posted October 7, 2009
"When Brute Force Fails," by Prof. Mark Kleiman, is one of the most innovative and applicable books written in the social sciences in years. This book analyzes the quagmire no one talks about in America--our failing War on Crime, and then proposes reasonable and profound solutions that span ideology. I highly recommend this book. While this book could easily be used in the classroom, it is an easy read that is perfect for the casual wonk that is in all of us.Was this review helpful? Yes NoThank you for your feedback. Report this reviewThank you, this review has been flagged.
Posted July 15, 2009
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Posted December 11, 2009
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