Academic journal article Texas Law Review

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

Academic journal article Texas Law Review

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

Article excerpt

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 growth, this represented a near quintupling of the incarceration rate from 1970 to 2004.3 By the late twentieth century, the U.S. incarceration rate was higher than known in any other nation worldwide.4

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. …

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