Episode 32: Five Myths About Mass Incarceration from the Prison Policy Initiative

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In this week's episode, Dylan, Brent, and Forrest discuss the 2019 report "Mass Incarceration: The Whole Pie 2019" from the Prison Policy Initiative. They focus on the report's explanation of five myths about mass incarceration: the role of non-violent drug offenders, private prisons, prison labor, community supervision, and violent and sexual offenses on mass incarceration.

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Right now on any given day, there are about 2.3 million incarcerated Americans. This includes those both those convicted of crimes and those who are awaiting trial. So, given a population of about 327 million, that amounts to over half of 1% of the entire American population in prison. But there are also 840,000 Americans on parole, and 3.6 million Americans are on probation, totaling nearly 7 million Americans or 2% of the population

Let’s look at the breakdown of where these folks are incarcerated:

    • 1,306,000 are in state prisons

    • 612,000 are in local jails

    • 221,000 are in Federal prisons and jails

    • 61,000 are in immigration detention

    • 46,000 are in juvenile detention facilities

    • 22,000 are “involuntarily committed”

    • 11,000 are in territorial prisons

    • 2,500 are in Indian Country jails

    • 1,300 are in Military facilities

There is an “enormous churn” in the criminal justice system. Every year, 600,000 people enter prison but 10.6 million people enter jails. Most people in jail are awaiting trial, 540,000 people to be exact. That is nearly a quarter of the total incarcerated population. Some make bail within a few hours or days, but many must remain in jail because our system is inhumane and treats people who are poor differently than those who are not. Only less than 150,000 people are convicted a day, often with sentences less than one year.

Looking at smaller slices: Youth, immigration, and involuntary commitments

Confined youth amount to 63,000 incarcerated individuals. 8,100 are held for “technical violations”, which means violating probation but not due to committing new crimes (breaking curfew, not paying fees, etc). 2,200 are held for offenses which are not even crimes. These are called “Status offenses” and include running away, truancy, and something called both “incorrigibility” or “ungovernability”. 5,000, nearly 1 in 10, are held in adult facilities. 12,000 are children in the Immigration System, refugees waiting to be placed with family or friends. This amounts to over ⅕ of those incarcerated for immigration offenses, which totals 61,000.

Of the 22,000 who are involuntarily detained or committed to state psychiatric hospitals: 9,000 have not even been convicted yet, but rather are being evaluated to stand trial. 6,000 have been found not guilty by reason of insanity or guilty but mentally ill. 6,000 have been detained after prison sentences for sexual crimes indefinitely.

Myth One: We can end mass incarceration by releasing nonviolent drug offenders

451,000 people are incarcerated for nonviolent drug offenses. Every year, there are over 1 million drug possession arrests. While just under half a million people is still too many, that only amounts to one-fifth of the total incarcerated population.

Myth 2: Private prisons are responsible for mass incarceration

Only 8% of the incarcerated population are in private prisons. A more problematic encroachment of the private sector into the criminal justice system are privatized services for the incarcerated, including prison food and health services, telecom services, and commissaries. Services which were once provided by the state are now purchased by the incarcerated and their families instead.

Myth 3: Use of prisoners as slave labor stands in the way of ending mass incarceration

Only 5,000 prisoners, less than 1%, work for private companies through the federal Prison Industry Enhancement Certification Program (PIECP). A bigger problem is prison labor inside prisons, where incarcerated people work in food service, laundry, etc. On average, these workers make between 86 cents and $3.45 PER DAY. In five states, they are paid nothing at all. Again, this is another example of shifting prison costs onto prisoners and artificially lowering the cost of running prisons.

Myth 4: Expand community supervision to reduce incarceration

Community supervision includes probation, parole, and pretrial supervision. The problem with community supervision is that the conditions are so onerous that people are likely to fail. In 2016, 168,000 people were incarcerated for “technical violations” i.e. not committing new crimes while on parole or probation, but for violating the terms by breaking curfew or being unable to pay supervision fees. So, until community supervision is reformed, it is not yet the solution to mass incarceration.

Myth 5: What ISN’T a solution to mass incarceration is releasing people who committed violent or sexual crimes

Most attempts to reduce mass incarceration focus on the “non-non-nons”, people who commit non-violent, non-serious, non-sexual offenses. But rates of recidivism among those convicted of sexual assault and homicide are lower than many other crimes. Granted, that doesn’t mean it is absolutely low: After 5 years, over 50% of people released after committing homicide will reoffend. However, from the statistics presented, it is not clear what crimes they are arrested for.

Another thing to add is that post-release homicide is extremely rare. Of people arrested within five years after being released, less than 1% are for homicide. For those convicted of rape and sexual assault, rates of rearrest are 30-50% lower than for those convicted of motor vehicle theft and larceny.

On the basis (which they use) of the 2005 DoJ report “Recidivism of Prisoners released in 30 states in 2005: Patterns from 2005 to 2010”, rearrest rates for those convicted of rape and sexual assault is 60.1% within 5 years while it is 84.1% for those convicted of Larceny or motor vehicle theft.

Despite these lower rates of recidivism, those convicted of violent crime face decades of incarceration. Those convicted of sexual offenses often face indefinite “civil commitment” after release or are placed on sex offender registries. Overall, about 900,000 of those incarcerated are there because of violent crime (including sexual crimes), or just under 40%

What do offense categories mean?

In this report, there is talk about what offenses people are incarcerated for, but what exactly does that mean? The report makes clear two important problems: One, the incarcerated are only placed into one category, and two, the category has to do with their interaction with the legal system.

Regarding the first, only the most serious crime is reported. So if I am convicted of drug possession and assault, I am reported as being a violent offender. This can mask how, for example, drugs are involved in violent crime and property crime. Maybe I kicked down the door because I was high on PCP, but this kind of interaction is hidden when I am labeled simply a violent offender.

In the other direction, almost all convictions are from plea bargains, where someone pleads guilty to a lesser charge. What is reported is that lesser charge. So if I am charged with homicide but plead guilty to assault for a lesser sentence, I am reported as an assault offender.

There is also a problem within categories, especially for violent crimes While murder is a serious charge, there is an important difference between Jeffrey Dahmer and someone who is unlikely to commit murder again either because they are old or because the murder they committed was situational.

There is also the problem of “felony murder”. If someone dies during the commission of the felony, everyone involved can be charged with murder, even someone like a getaway driver. Ryan Holle is a case of felony murder. He lent his friends his car for the explicit purpose of stealing drugs and beating someone up. During the burglary, one of the assailants killed the woman’s daughter, Jessica Snyder. Ryan Holle himself was convicted of murder because he lent the men the car knowing it would be used to commit a felony. His sentence has since been commuted from life to 25 years. In another perverse twist, the homeowner, Christine Snyder, went to jail for three years for marijuana possession.

I can understand this rule in certain scenarios. If I lent you my car knowing you were going to commit assault and knowing you both are ruthless killers, then this might make sense. But surely it shouldn’t apply to all cases, especially when the death is accidental.