The Scale of Imprisonment in the United States: Twentieth Century Patterns and Twenty-First Century Prospects

Article excerpt

I. INTRODUCTION

The prison has been far more important to criminal justice practice than to academic theory in the century examined by this Symposium. Imprisonment is the dominant severe criminal sanction worldwide and there is no evidence that its hegemony at the deep end of crime control will change. But the study of imprisonment has not been a major feature of criminal law theory at any time, while some aspects of prisons have commanded attention in the literature of criminology. So imprisonment has played a dominant role in American criminal justice but a minor role in the discourse about criminal law. The Harvard Law Review, for example, listed twenty-seven articles with "prison" or "imprisonment" in the title in one hundred years of publication beginning in 1910.

The interdisciplinary character of the Journal of Criminal Law and Criminology and its crime focus made it into the leading forum in law-related scholarship covering issues of prison operation and function. No fewer than 155 main articles were published with "prisons" or "imprisonment" in their titles in a century of publications, by far the largest concentration one would find in any scholarly journal closely linked to legal education. (1) And prisons played a prominent part in the scholarly portfolio of the Journal from the very beginning, with slightly more articles on prisons in the first half of its volumes than in the second. The range of prison-related topics covered from the beginning--including comparative and empirical work--was impressive.

But little of the first half-century of the Journal touched on the central issue in this analysis--what I shall call the scale of imprisonment. Zimring and Hawkins define the issue of scale as analysis of the appropriate "size of a society's prison enterprise in relation to other criminal sanctions and to the general population. How many prisoners? How many prisons? What criteria should govern decisions about how large a prison enterprise should be constructed and maintained?" (2)

Only one of the more than seventy articles with prison in its title that appeared in the Journal in its first half-century was principally concerned with rates of imprisonment: an article by Edwin Sutherland describing the decline in rates of imprisonment in England. (3) One important reason for the lack of scholarly attention to variation in the rate of imprisonment in the United States is that there was not a great deal of variation over time in the rate of imprisonment.

Indeed, the lack of dramatic variation in rates of imprisonment inspired Alfred Blumstein and Jacqueline Cohen to construct what they called "A Theory of the Stability of Punishment" (4) in the Journal in 1973, probably the most important and certainly the most ironically timed article on imprisonment in the Journal's first century. Blumstein and Cohen posit that levels of severe criminal punishment trend toward stability over time and they offered as evidence of this phenomenon the rather stable rates of imprisonment in the national aggregate over the years 1930-1970. Their Figure 2 is reproduced from Blumstein and Cohen as my Figure 1. The interpretation of this data was straightforward:

   It can be seen from Figure 2 that over that period the imprisonment
   rate was reasonably constant, having an average value of 110.2
   prisoners per 100,000 population and a standard deviation during
   that time ... of 8.9 prisoners per 100,000 population.... The
   stability of the time series is especially noteworthy when it is
   considered that the population of the United States increased by
   over 50 percent in the same period. (6)

[FIGURE 1 OMITTED]

Twice more in the 1970s, Blumstein and his associates would produce data and analysis to augment their stability of punishment theory, (7) but then their entire theoretical structure was overtaken by events. From its low point in 1972, U. …