Criminal Over-Incarceration

By Lucas AndersonAugust 4, 2016

Criminal Over-Incarceration

Criminal Justice at the Crossroads by William R. Kelly

CRIMINAL JUSTICE is a hot topic of late. For several years, at least since the 2012 vigilante killing of Trayvon Martin, police shootings and other issues relating to the disproportionate use of deadly force against African Americans have dominated front-page news. With the sedulous prodding of activists, including those associated with the Black Lives Matter movement, the intersection of race and policing has also moved to the forefront of the national political conversation, to the point where each of the major Democratic presidential candidates, and some of the early Republican contenders, promoted reforms during this election cycle that would have been unthinkable, or at least politically noxious, in the lock-’em-up era of the late 20th century.

Executions are on the wane, even in the more enthusiastic death-seeking states like Texas and Virginia. Without empirical support to vouch for the purported benefit of capital punishment as a deterrent to violent crime, and in light of significant evidence that it has been imposed arbitrarily, often in a racist fashion, and that it has likely taken the lives of people who could and should have been proven innocent, public support for the death penalty has continued to fall, more or less steadily, since the early 1990s.

State and local governments are leading a moderate drawdown in the decades-long quagmire known as the War on Drugs, and the US Department of Justice has begun to moderate its prosecutorial standards for low-level drug offenders. As of this writing, at least 24 states have, to some extent, authorized the distribution and use of marijuana for medical purposes, and four states and the District of Columbia have legalized the production, distribution, or use of recreational marijuana as a matter of state or local law.

Even in the fractured and deadlocked arena of federal policymaking there are hints of consensus about proposed reforms that would improve some of our flawed crime control policies. The usual legislative challenges notwithstanding, and in spite of the extraordinary absurdities of the current political environment, criminal justice reform may be the one (and perhaps only) major area of domestic concern where congressional action is possible in the near future. Several key members have framed the recent heroin and opioid epidemic as a problem in need of treatment and prevention solutions, and bipartisan legislation has passed the judiciary committees in both houses that would, if enacted, reduce mandatory minimum sentences for many nonviolent drug offenders.

These developments, however riddled with caveats and potential pitfalls, are indicative of a broad and somewhat rapid shift in attitudes about crime and punishment among policymakers and the American public. The question of how a safe and humane society should effectively punish, deter, and rehabilitate criminal offenders is now being revisited in a serious way, and there appears to be a budding consensus that we have, in many respects, been doing it wrong.

In Criminal Justice at the Crossroads (Columbia University Press, 2015), William R. Kelly of the University of Texas at Austin puts some flesh on the bones of that consensus, and he provides a meticulous and compelling recitation of the empirical evidence that supports it. The titular “crossroads” represents a political landscape where falling crime rates, soaring corrections budgets, and public interest in criminal justice issues have presented a unique opportunity for evidence-based reforms to take root. Kelly recounts how the United States became the world’s leading incarcerator, and how political figures like Barry Goldwater and Richard Nixon, with the eager support of Republican and Democratic legislators, initiated a decades-long conversation about “tough” and “soft” approaches to street crime. But now, with roughly 2.5 million Americans in jail or prison — more than one percent of the adult population — and with all of the financial and human costs that come with a carceral state, questions about “smart” and “effective” policies have also been invited into the conversation.

Throughout the decades of the United States’s incarceration boom, libraries’ worth of academic studies have been conducted to examine the efficacy of popular crime control policies and their alternatives, and Kelly has done the academic yeoman’s work of condensing much of the existing research into a clear, compelling, and highly readable series of arguments for specific (and sometimes immodest) changes. These proposals include the development of specialized drug and mental health courts, pre-booking diversion programs to treat mentally ill offenders and forestall the need for an arrest in some cases, and a drastic alteration of the legal standards for criminal sentencing that would preclude considerations of “deterrence” as a purported benefit of lengthy prison sentences. Kelly also addresses some of the more common proposals that criminal justice reform advocates have backed in recent years, including the decriminalization and legalization of marijuana and other illegal drugs, and his chapter on the War on Drugs and its effects should be required reading for any public official who cares about crime reduction, government spending, or both.


Crossroads begins with an account of how extreme poverty and its attendant ills, including frequent exposure to trauma, abuse, and environmental toxins, can impact children’s development and impose neurocognitive and developmental deficiencies that contribute to future criminal behavior. With reference to decades of scholarly studies, Kelly posits that lengthy prison sentences are utterly ineffective as a deterrent for many potential offenders because they do nothing to correct or alleviate those factors. In fact, incarceration is often counterproductive as a crime reduction strategy because it aggravates the conditions of financial and social desperation that can trigger blue-collar “street crime” activities. As Kelly puts it, “once someone enters the justice system, his or her options, opportunities, and alternatives diminish rapidly, simply as a consequence of their justice system involvement. These restrictions and ongoing barriers tend to further perpetuate a life of crime.”

Because prisons and jails can’t and don’t do much to correct the problems that underlie many of their inmates’ criminal behaviors, Kelly argues that a more effective approach to crime control will require “resources and expertise that historically have not had much involvement in the American justice system.”

At the end of the day, this will involve a substantially different way of approaching the business of criminal justice. It will be an approach that is designed to understand and identify the complexity of reasons why criminal offenders are criminal offenders (the diagnosis phase); address the relevant, primary criminogenic deficits and conditions (the treatment phase); and provide the ongoing supports necessary to retain the treatment effects (the continuing care phase). As much as we may not like to put the US criminal justice system in this position, it is the only approach that will cost-effectively enhance public safety, reduce victimization, and reduce recidivism short of eliminating the structural conditions and institutional failures that play a large role in crime in this country.

It sounds like a long haul, but Kelly takes what might at first seem to be a series of aspirational bromides and carries them a long way down the field. His first major point of attack is the way in which the criminal justice system is funded. “The economies of many smaller, local communities in the United States are heavily dependent on prisons as economic drivers,” and private prison companies and their shareholders also benefit from lengthy prison sentences, low per-prisoner expenditures, and high recidivism rates. In addition, while state governments ordinarily pay to house inmates in jails and prisons, rehabilitative and diversion programs (which seek to keep low-level offenders out of jail where possible) are largely funded by local and municipal agencies. As a result, there is a clear financial incentive for city and county authorities, who are responsible for most arrests and prosecutions, to skimp on diversion and treatment costs and let the state pay for the resulting rise in the prison population. But Kelly also explains how some jurisdictions have successfully broken that mold and have implemented performance-based funding schemes through which the state rewards cities and counties with low recidivism rates, simply by passing along the money it saves through lower prison costs. So long as they are somewhat thoughtfully structured, it appears that government spending schemes can promote virtuous cycles that advance public safety while also saving taxpayers upward of $60,000 per year for each person who does not reoffend and return to prison. (As for what would become of the many towns and companies that are financially dependent on prisons and jails, Kelly unfortunately doesn’t present much in the way of a compelling answer, other than to allude to the broader fiscal benefits of a lower incarceration rate.)

In addition to this primer on the economics of mass incarceration, Crossroads describes how a bureaucratic bias toward stasis can undermine or forestall the sort of policy reforms that Kelly supports. This bias affects the work of prosecutors, courts, probation and parole offices, and even some of the less-effective diversion programs. There are quotidian political concerns that can push elected prosecutors and judges toward a reflexively “tough” approach to criminal sentencing, especially in “high profile” cases. But Kelly also describes how a diffusion of responsibility and lack of accountability among many of those who work in criminal justice can hamper progress toward what ought be the overall goal: to prevent criminal behavior, and to punish it when necessary, as necessary.

In oversimplified terms, the police hand off the offenders to the prosecutor, the prosecutors hand offenders off to the judges, the judges hand them off to corrections, corrections often hand them back to the court for revocation, then back to corrections, then when corrections is finished, the cycle typically begins over again. And again. And again.

Fortunately, Crossroads is more than yet another diagnosis of the mass incarceration phenomenon. While Kelly doesn’t pull many punches in his recitation of the individual, societal, and economic harms caused by decades of over-incarceration, his larger goal is to promote remedies, and perhaps the greatest virtue of his book is its tendency to persuade by methodology and to appeal to the reader’s sense of reason. Kelly gives his potential detractors and skeptics the benefit of the doubt, and he concedes that some of his proposals might sound counterintuitive to people who haven’t spent quite as much time with the related research. “The sentiment is understandable,” Kelly writes, “break the law, get help. What makes sense about that?” While foregoing the easy route of a spleen-venting diatribe, of which quite enough have been published in recent years, Kelly takes the arguments against reform head-on. With ample references to empirical evidence, public budgets, and (at some points) public opinion surveys, he shows exactly what makes sense about rehabilitation as a response to criminal behavior: “[i]t makes little sense sitting where we sit today to take the hard line and blame offenders en masse for their crimes and deny them all but punishment. That is counterproductive and it compromises public safety.”


“Criminal justice” is a broad topic, encompassing a host of sub-issues and side issues, and readers of Crossroads would benefit from a brief introductory note defining what the book is not about, because many of Kelly’s arguments make sense only in the limited context in which they are presented. In an epigram, Kelly reproduces the following quotation, attributed (apocryphally) to Dostoyevsky: “The real measure of civilization in any society can be found in the way it treats its most unfortunate citizens — its prisoners.” But Crossroads is not about prison conditions, inmate abuse, solitary confinement, or any of the other issues relating to the treatment of prisoners as prisoners. Neither does Crossroads address questions about street policing, or the fairness of the investigations, prosecutions, and criminal trials that precede the sentencing process. And the lessons that Kelly has drawn from the research are somewhat limited by the fact that they are, for the most part, applicable only to one type of offender. While Crossroads is an ambitious work, its scope is largely limited to the issues surrounding the sentencing and rehabilitation of poor, mentally ill, and/or drug-addicted offenders who commit low-level, nonviolent, blue-collar crimes. There is little reason to think that Kelly’s analysis would apply to the kinds of punishments that are appropriate for violent offenders, organized crime leaders, drug trafficking kingpins, or white-collar criminals who commit predatory crimes from positions of relative economic privilege. It is particularly difficult to imagine Kelly’s arguments having any relevance at all to, for example, a scofflaw bond trader or a corrupt politician, whose offenses are rarely tied to underlying conditions of poverty or desperation, and for whom the specter of a prison sentence might have a real deterrent effect.


I used the word “readable” above in describing the arguments laid out in Crossroads, and while this would ordinarily be small praise, I have used it here because in his acknowledgments Kelly notes that he is currently in the process of writing a new book “about criminal justice reform for a broader audience.” This is good news, but I would quarrel with the implied premise that Crossroads is itself unfit for readers outside of sociology or criminology departments. One doesn’t need a specialized background or education to have an interest in or opinions about the issues of crime and punishment, and while Crossroads delves relatively deep into the weeds of some of those issues, it remains accessible to a lay audience.

To be sure, Crossroads is a lengthy and fact-heavy volume, with enough endnotes, citations, and statistical summaries to keep it off most beach reading lists. My only stylistic complaint is that Kelly often previews or recaps an argument or analysis with the sort of unnecessary roadmaps that often litter academic writings: “[A]s I will show in chapter 2…,” “In this chapter I explore…,” and “I now turn to…” It’s a distracting habit that interrupts the flow of argument, pads an already high word count, and gives the reader little credit. Otherwise, there is little else about Crossroads that should be off-putting to the broader public.


In recounting the last several decades of policy choices that have spawned history’s largest system of mass incarceration, Kelly makes his many disappointments clear. But Crossroads is no polemic, and I can happily report that it does not condescend to or make villains of those who hold opposing views about crime control and sentencing. It is a rare book about a contentious set of issues that has the potential to change minds, and if not, to at least inform them. For those who question the efficacy of prison alternatives for low-level criminal offenders, Kelly’s work deserves a close review and, if available, a pointed rebuttal. And for those who are already among Kelly’s converted, his summary of the supporting evidence provides much more than the simple comfort of self-affirmation.

Criminal sentencing is much too important of an issue to still be influenced by vague notions of what counts as “tough on crime,” and it does not benefit public safety to ignore evidence-based strategies that can help criminal offenders overcome their individual criminological influences. “Criminal justice reform” has gained significant traction in recent years, and with enough empirical ammunition and political willpower, smart and compassionate strategies like those presented in Crossroads may finally stand a fighting chance.


Lucas Anderson is an attorney specializing in criminal defense and civil rights litigation.

LARB Contributor

Lucas Anderson is an attorney specializing in criminal defense and civil rights litigation. A graduate of New York University and the George Washington University Law School, Lucas has published articles on criminal justice issues including solitary confinement, and the private prison industry.


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