Don't Blame Determinacy: U.S. Incarceration Growth Has Been Driven by Other Forces

Statistics of the explosion in American incarceration over the past several decades are by now familiar to anyone versed in the literature: The nation held an estimated total of 357,292 inmates in its prisons and jails in 1970;1 this ballooned to a total of 2,267,787 in 2004.2 Corrected for population

I. Historical Statistics on Incarceration: New Vantage Points

The beginning of the Article will not rehearse what is generally and well understood. Instead, it focuses on two sets of historical statistics that are not widely reported in the literature. Although these observations only serve to bolster the consensus that incarceration growth in the United States has been breathtaking, without historical precedent, and beyond normal powers of human comprehension, they provide a somewhat different window into long-term trends than the standard accounts. Indeed, the two charts below supply new vantage points from which to assess the enormity of what the nation has done while providing incontrovertible evidence that the subject of confinement populations is of greater importance in the 2000s than ever before in our history.

A. Figure 1. Person-Years of Incarceration, 1960s through 2000s (Projected Through 2004 Data)

Prison and jail statistics are almost always recited in terms of snapshot, one-day counts that represent the numbers of inmates present on a single day. This conventional way of thinking misses the reality that the essential attribute of confinement as a criminal sanction is its duration-its reliance upon the fourth dimension of time as a means to achieve punitive or consequential effect. In Walden, Thoreau wrote that "the cost of a thing is the amount of . . . life which is required to be exchanged for it."5 It is fair to insist that the statistical reportage of incarceration address the amount of time that is subtracted from offenders' lives-or from the collective life of the free society-as one metric of the human cost of the sanction.

Pursuing this insight, Figure 1 estimates the number of "person-years" of confinement meted out by decade in U.S. prison and jails since the 1960s. The figure ends with a conservative projection of the number of person-years that will be served across 2000-2009, premised on the unlikely assumption that nationwide incarceration growth ended with the calendar year 2004.

The person-year is a powerful tool for grasping the cumulative impacts of incarceration policy and helps us see how traditional snapshot statistics understate the human costs. For example, U.S. prison and jail populations grew from 1,148,702 in 1990 to 1,893,115 in 1999.7 Comparing these two snapshots of prison populations, there appears to have been a marginal increase of 744,413 inmates over the full decade. That is a large number, to be sure, but it grossly understates the cumulative durational effects of incarceration expansion over the period.

Let us take a second look at the 1990s through the lens of the person-year. If incarceration populations had stabilized at 1990 levels, with no growth for the remainder of the decade, then American inmates would have experienced a total of 11.5 million person-years of confinement from 1990 through 1999. Because the prisons and jails grew continuously across the decade, however, the nation's criminal justice systems actually dispensed 15.3 million person-years of incarceration. The human impact of changing confinement policy during the 1990s, thus calculated, measures in several millions of years over and above the incarceration terms that would have been served if there had been zero incarceration growth after 1990. This is a much larger increment of change than suggested in the differential of 744,413 inmates, comparing snapshots from two single days ten years apart.

The second, equally startling message of Figure 1 is its portrait of the current decade. Justice Department reports in recent years have taught us that the rate of nationwide incarceration expansion has slowed markedly in the early 2000s. This may tempt some to breathe a sigh of relief. Perhaps the "bad old days" of the incarceration explosion will soon be behind us. Perhaps the pendulum of national attitudes is swinging back to a time of greater compassion for, and less punitiveness toward, run-of-the-mill criminal offenders.

Figure 1 demonstrates, however, that zero incarceration growth (were it to be achieved) upon the base of 2004 prison and jail populations is hardly the stuff of pendulum swings. Social scientists and armchair statisticians alike are wont to view the absence of change as a nonevent. But the mere persistence of historically high incarceration rates is an aggressive policy to import into the future. As the fifth bar in Figure 1 reveals, 2000-2009 will be the most punitive decade in U.S. history by far, even if standing incarceration populations have already fallen into equilibrium.8 Indeed, the current decade would retain that dubious honor even if confinement populations were to go into moderate decline.9

B. Figure 2. Male Imprisonment Rates by Race, 1880-2000

When American criminal justice history is written in future years, the sheer scale of the nation's incarceration enterprise is one of two phenomena that will define the contemporary era in historical memory. The second factor-of equal or greater salience-is the degree to which late twentieth and early twenty-first century confinement populations were amassed from inmates of minority groups, especially African Americans.

Again, many of the basic facts on this subject have been oft repeated in the literature. Roughly 60% of U.S. prisoners are either black or Hispanic.10 Nationwide, Hispanics and American Indians are imprisoned at rates roughly 2.5 times the imprisonment rate for white Americans.11 For African Americans, the disparity ratio of their current imprisonment rate compared with white Americans is nearly 8:1 across the nation as a whole-a number that can only inspire heartbreak and the determination that the nation must find ways to do better.12

Few observers of U.S. incarceration policy have missed these fundamental realities. In many informed minds, American criminal justice policy and racial-ethnic strife are overlapping subject matters.13 And to some, the subject is so large, painful, and incendiary that it cannot be spoken of.14

Figure 2 adds little that is comforting to the story of race and criminal punishment in America, but it does contribute two observations of importance. First, Figure 2 charts the respective imprisonment rates for white and black males over a 120-year period, a much longer time span than usually embraced in the literature. From this we can see that black-white disparity ratios were immediately a feature of the Reconstruction Era prisons.15 Shortly following emancipation, by 1880, the black-white disparity ratio in per capita imprisonment was nearly three to one.

What is most discouraging in Figure 2 is that, over 120 years following 1880, black-white disproportionalities in prison rates have grown steadily worse. The figure reveals a nearly unbroken pattern of worsening disparities, with the single exception of the period 1990-2000. Even for the most recent dates, however, there remains a question. In the mid-1990s the Justice Department changed its methodology for reporting the racial and ethnic breakdowns in the nation's prisons to allow for better annual tracking of Hispanic inmates.17 The new approach resulted immediately in a lower reported prison rate for African Americans.18 The shift was not large, but it calls into question the compatibility of 2000 data with those from earlier decades.

For the various dates shown on the chart, where reasonably reliable prison counts are available, the black-white disparity ratio went from 2.8:1 (1880), to 3.2:1 (1890), to 3.9:1 (1910), to 4.3:1 (1923), to 4.8:1 (1950), to 5.2:1 (1960), to 5.7:1 (1970), to 6.9:1 (1980), to 8.6:1 (1990), and to 7.7:1 (based on inmate counts reported under new methodology in 2000). The first powerful observation that leaps from Figure 2, therefore, is that there has never been a Civil Rights era in U.S. prison policy. Conditions for African Americans as a group may have improved on some dimensions since Reconstruction, but not in the nation's prisons. The trend lines there incline steadily toward despair.

Yet to focus on worsening disparity ratios misses most of the hard truth. The increasing ratios, worrisome as they are, grossly understate the growing use of incarceration from an African American perspective. Not only has the black share of the imprisonment pie been going up, but, as noted in Figure 1, the entire pie has been expanding even faster. For example, even if 100% of all U.S. prisoners in 1970 or 1980 had been black, this would still have yielded black prison rates for those years lower than the actual black prison rate in 2000.

What this suggests is that the growth of the overall use of incarceration in the U.S. has had a more dramatic effect on minority communities than the changing ratios of black and white inmates within confinement populations. Disparity in punishment is an important subject of concern, without question, but the one change in incarceration policy that would most affect minority communities would be a rollback in general incarceration rates.

As I said earlier, there is more reason to be concerned about the scale of U.S. incarceration in 2006 than at any time in the nation's history.

II. Which American Sentencing Systems Have Had the Most Prison Growth?

The remainder of this Article focuses on one discrete, but important, sub-issue within the larger important inquiry of understanding the factors that have contributed to U.S. incarceration growth. In their classic 1991 book, The Scale of Imprisonment,19 Franklin Zimring and Gordon Hawkins demonstrated that no one understands very well, even with the benefit of hindsight, what has caused the carceral explosion in the United States. The wisdom of several disciplines turned out, in the authors' examination, to be wrong, unprovable, or nonfalsifiable.20 Many commonsense hypotheses (e.g., more crime causes more punishment;21 changing public attitudes demanding severity have been at work;22 national economic trends are linked to prison rates23) were lacking in empirical support. Perhaps the major implication of Zimring and Hawkins's study was this: The U.S. has embarked upon one of the greatest experiments in the use of governmental coercion known to history, but it has done so without advance planning and without an articulable rationale that can be reconstructed with confidence after the fact.

A great deal of useful work has been done since the publication of The Scale of Imprisonment to fill in the void of ignorance that Zimring and Hawkins identified. Some of this has been empirical, and some has relied heavily on political, historical, and cultural theory.24 While the sophistication of analysis that scholars have brought to bear has been great, it is still fair to say that the fundamental engines of punitive expansionism are not known with certainty. The whole subject remains on contested terrain, and new entrants to the debate have the power to rivet attention with unforeseen yet plausible explanations.25

Against this backdrop of uncertainty, it is wise to view chestnuts of conventional wisdom with skepticism. There are several of these, interlocking with each other, that I wish to call into question in this Article. They are: (1) the belief that indeterminate sentencing systems, in which judges enjoy wide-ranging sentencing discretion and parole boards have meaningful authority to determine the actual length of prison sentences, tend to produce sentences of lower severity and less aggregate prison growth than determinate sentencing systems;26 (2) the claim that the abolition of the prison-release discretion of parole boards in almost one-third of American jurisdictions has been an important force in driving prison populations upward;27 and (3) the claim that the advent of sentencing guidelines in many states, which narrow the sentencing discretion of judges, has been an important force in driving prison populations upward.28

III. Indeterminacy Versus Parole-Release Abolition, 1972-2004

The prison explosion in America has occurred during a time period in which indeterminate sentencing remained the structure of choice across the country. At year-end 2004, the nation had experienced thirty-two years of uninterrupted prison growth.29 The large governmental units that participated in that growth were the fifty states, the federal system, and the District of Columbia-52 jurisdictions in all.30 Multiplying years by jurisdictions, there have been a grand total of 1,664 "jurisdiction-years" in this expansionist period.

It is revealing to ask how many of these jurisdiction-years transpired with determinate systems of one kind or another. "Determinate" sentencing systems, by formal definition, are those that have abolished parole-release discretion. Counting all jurisdiction-years in the seventeen determinate jurisdictions, there were a total of only 288 jurisdiction-years from 1972 to 2004, compared to 1,376 jurisdiction-years in systems retaining parole release.31 If we define "determinate sentencing reform" more broadly to include parole-release abolition, the implementation of sentencing guidelines, or both, there have been a total of 378 jurisdiction-years of determinate reform so far during the expansionist period, or 23% of all jurisdiction-years across the full period.32 At least on the face of things, determinate sentencing innovations have been of too recent origin, and are insufficiently widespread, to have massed into dominant forces behind national trends of prison growth.

Furthermore, the credentials of indeterminate systems, as productive of lenity in punishment are uncertain at best. At year-end 2004, eight of the ten states with the highest imprisonment rates among all states were states that retained parole-release discretion.33 The top five states included carceral powerhouses such as Texas, Louisiana, Oklahoma, and Georgia, all indeterminate jurisdictions.34 The fifth state among the top five, Mississippi, used an indeterminate sentencing system from 1972 through 1995, and the state's per capita prison rate more than quintupled during that twenty-three-year period.35 In the next nine years, following abolition of parole-release discretion in Mississippi, the state's imprisonment rate increased by an additional 48%.36 It is thus implausible to claim that the shift from indeterminacy to determinacy was a singular driving force in placing Mississippi among the elite of big-prison American jurisdictions.37

Since most of the national leaders in confinement rates are Southern states, perhaps regional forces are responsible for driving prison populations upward rather than the sentencing structures in operation. However, a comparison of confinement practices among different geographic regions of the country refutes this hypothesis. Fifteen out of twenty regional leaders in prison rates from the Northwest, Midwest, South, and West are parole-release states.38 Even a region-by-region analysis places indeterminacy at the top of the carceral heap.

It is still more revealing to look at change in incarceration practices in individual states over time, rather than at populations in a single year. Standing prison counts may reflect historical and cultural forces at work long before the advent of recent sentencing reforms. For example, some parole-release-abolition states with low inmate counts today were already low-incarceration jurisdictions before they eliminated parole release.39 We must find some means to take account of such pre-reform realities.

It would not be sensible to compare one state with another (or with a nationwide average) in terms of absolute growth in prison populations of individual jurisdictions. For instance, the state of Maine has seen its prison populations increase by 1,351 inmates since 1976, when Maine became a determinate sentencing state through the abolition of its parole board's prison release discretion.40 In the same time period from 1976 to 2004, the state of Texas, working with an indeterminate sentencing structure that included parole-release discretion, added 136,900 inmates to its prison populations.41 A Maine-Texas comparison based on these numbers alone tells us almost nothing useful for evaluating the relative incarceration histories of the two jurisdictions, or the operations of the two different sentencing systems in use. To make a gross comparison on a common scale, we must of course correct for the different populations of the two states and for differential population change over time.

In an attempt to make such corrections, Figure 3 charts the experience of all states that have abolished the parole board's release authority for a period longer than five years, using the states' pre-abolition prison rate as a common baseline. For each state, the chart displays the increment of growth in the state's imprisonment rate (prison population against general population) from the effective date of parole abolition through 2004. For comparison, the chart also provides the national baseline (total marginal growth in state prison populations against total U.S. population) for the identical time period. Thus, Figure 3 asks, "How many inmates has each state added since removing parole-release discretion from its sentencing system?" and gives an answer on a per capita basis.

For example, assume that State A eliminated the release discretion of its parole board in 1985. If State A had a prison rate of 100 per 100,000 in 1985 and a prison rate of 300 per 100,000 in 2004, the increment of change in the state's prison rate over that full time period would be displayed as 200. This state-specific increment of change is paired on Figure 3 with the incremental change in the national prison rate among all states over the same period, 1985 to 2004. Thus, the Figure makes a series of apples-to-apples comparisons while holding the time frames for comparisons constant.

Figure 3 delivers a surprising message. Of the fifteen parole-abolition states in the figure, only five have experienced growth in prison rates that has outstripped the national increment of growth among all states in the years since abolition took effect. One state, Kansas, has tracked the national average exactly, and nine have fallen below. With the exceptions of California and Mississippi, the five parole-abolition states that have experienced above-average growth have not been far above average. In contrast, five of the nine abolition states (Maine, Minnesota, Washington, North Carolina, and Ohio) with below-average growth have been dramatically below the nationwide benchmark. North Carolina and Ohio have actually experienced negative growth in their prison rates since decommissioning their parole-release agencies.

Figure 3 does not establish that parole-release abolition has an inherent tendency to push inmate counts up or down. It appears that either outcome is possible, and many other factors are surely at work. Figure 3 is, however, wholly unsupportive of the claim that parole-release abolition always, or usually, speeds up incarceration growth when compared with systems of parole-release retention. The general drift of things over three decades has been in the other direction.

IV. The Impact of Sentencing Guidelines

Because the federal sentencing guidelines ushered in a period of remarkable prison growth in the federal system, it is all too easy to assume that guidelines everywhere have done the same thing. The trend among state guidelines systems, however, has been more complex. Most states that have adopted sentencing guidelines have experienced below-average increments of prison growth, compared to a national baseline, in the time period following their implementation of guidelines.

Figure 4 captures this history graphically, using the same methodology as Figure 3. Of 17 states that have used sentencing guidelines for a continuous period of at least 5 years, 10 have seen per capita prison growth below the national average; 1 state, Kansas, has been on a par with the national growth margin among all states; and 6 guidelines states have seen above-average prison growth. Among the high-growth states, Tennessee, Arkansas, Missouri, and Utah have seen margins of growth dramatically above the national benchmark.43 Meanwhile, 8 states under sentencing guidelines have experienced prison growth markedly below the experience of all states combined (Minnesota, Maryland, Washington, Wisconsin from 1985 to 1995, Delaware, Oregon, North Carolina, and Ohio). Of this group, Minnesota, Washington, Delaware, Oregon, North Carolina, and Ohio all have determinate systems that employ sentencing guidelines in conjunction with the abolition of parole-release authority in their states.44

As with Figure 3, the collection of gross imprisonment trends in Figure 4 does not prove that the use of sentencing guidelines in state criminal law will always be a suppressant upon prison growth. The calculations are crude and include no controls for potentially important variables such as crime rates, differential urbanization, relative poverty levels, political characteristics of individual jurisdictions, or demographic breakdowns within state populations. The number of information points is small. And the history of sentencing under guidelines remains a relatively new subject matter that is changing with each year.

What can be said of Figure 4, however, is that it casts grave doubt on any retrospective claim that the advent of sentencing guidelines reforms over the past twenty-five years has been a demonstrable driver of explosive prison growth in America. No responsible student of U.S. criminal justice history should be allowed to make such a general assertion, nor should any informed observer accept it as established fact.

Other empirical analyses in the literature support these conclusions. In a 1995 study, Thomas Marvell found that, wherever sentencing commissions had made conscious efforts to restrain prison expansion, sentencing guidelines were strongly associated with slower prison growth than in comparable nonguidelines jurisdictions.46 Researchers Jon Sorenson and Don Stemen at the Vera Institute of Justice concluded in a 2002 article that sentencing guidelines of all varieties were correlated with lower imprisonment rates than found in nonguidelines states at the end of the twentieth century, including states that had been incarceration leaders before the advent of guidelines reform.47 In a 2005 study by the Vera Institute, principal investigator Don Stemen and his co-authors concluded:

We consistently found that states with the combination of determinate sentencing [the abolition of parole-release authority] and presumptive sentencing guidelines have lower incarceration rates than other states. . . . Further, the combination of the two policies was also associated with smaller growth in incarceration rates. The stability of the combined policies was noticeable in all analyses conducted, after controlling for all other policies and social variables.48

V. Prescriptions

This Article makes several narrow claims within a large and complex subject area. Still, the discrete observations offered here are important. Sound policy-making for the future requires an accurate understanding of basic realities. In some instances, the debate of American sentencing policy has gotten its elementary facts exactly backwards.

The first section of the Article does not challenge what many others have said about the magnitude and social importance of the American revolution in imprisonment since the 1970s. Rather, the Article suggests that in some ways, the troubling aspects of mass incarceration have been understated. Particularly in the arena of racial disparities in prison populations, the nation has failed to grapple with a problem that has grown steadily worse since the late nineteenth century. Solutions to the malignancy are not obvious, nor are they easily at hand, but a civilized society cannot responsibly continue to look the other way.

Similarly, a responsible society cannot simply rest on the supposition that U.S. prison growth has slowed in recent years and may even be coming to a halt. It is still eminently necessary to rethink America's incarceration policy.

The final sections of the Article present essential information to anyone concerned about the history of uncontrolled prison growth in America who hopes to bring greater deliberation and restraint to future policy. The menu of legal and institutional choices available to carry out such a plan is finite. Some have suggested that reinvigoration of some form of prison-release discretion would be a promising course.49 The evidence assembled in this Article should raise questions about the wisdom of such proposals.

In the alternative, a growing number of American states have chartered sentencing commissions, have authored sentencing guidelines, and have abolished the release discretion of their parole boards, often in the conscious effort to restrain preexisting trends of prison expansion.50 A majority of states have succeeded in this objective, and a minority have failed.51 Comparative analysis permits us to examine closely the preconditions of success in specific states. For example, there is evidence that presumptive sentencing guidelines are more strongly associated with low rates of prison growth than are advisory guidelines.52 There is also reason to think that the combination of sentencing guidelines and parole-release abolition can be an especially potent recipe for the inhibition of prison growth.53

The limited but forceful claim in this Article is that no informed person should stand opposed to proposals for the creation of a sentencing commission and sentencing guidelines, or to the removal or restriction of the parole board's release discretion, on the ground that such determinate reforms have a proven association with high rates of prison growth. The facts are otherwise. Indeed, it is possible that uninformed opposition to determinate sentencing structures has truncated the full consideration of policy options in an age when open minds and clear-sighted vision are most needed.