We Don’t Need Mass Incarceration to Reduce Crime

Daniel J. D’Amico is the associate director of the Political Theory Project and lecturer in economics at Brown University, where he teaches and coordinates student programs dedicated to invigorating the study of institutions and ideas that make societies free, prosperous, and fair. His current research focuses on punishment and incarceration throughout history and around the world.

We recently got a chance to sit down with Dr. D’Amico to talk about crime, punishment, and the opposite of freedom.

Freeman: Do you think we’re locking up too many people?

D’Amico: I used to think that the answer to this question was an obvious yes, but now I think it’s a lot more complicated.

My concerns about overincarceration paired with an appreciation for market economies seems odd to most readers. 

I’m not a philosopher, so it’s sort of above my pay grade to definitively assess the moral aspects of our punishment system. That being said, it does seem obvious that any system can make errors of excess. It also seems reasonable that the larger a system is, the more errors it will likely commit. Thus, on net, our system probably imposes incarceration unjustly on individuals more often than smaller systems do.

Freeman: So is “more” too much?

D’Amico: Understanding if our system is systemically excessive is a bit more complicated. To say yes as a matter of efficiency implies some preferable alternative system is known and viable at lower social costs. This is less obvious.

I do not think that incarceration is an effective response to social problems associated with the drug trade and drug abuse. But as for understanding the US incarceration rate, simply noting that we outpace other countries, even vastly so, does not itself imply that an alternative outcome is feasible or of lesser consequences.

Mass imprisonment isn’t anyone’s fault or design per se, so much as it is an expression of society’s collective ignorance. We jail so many people because we simply don’t know what else to do with them given the complex social problems surrounding crime.

Freeman: Why do we have prisons in the first place? Why do governments punish people by locking them up for prolonged periods?

D’Amico: I think this is a great question, largely because it directly implies that alternative strategies to criminal punishment do exist.

On the one hand, many other countries today rely more on things like house arrest, probation, community service, fines, and licensure penalties, thus lessening their reliance on incarceration.

On the other hand, most social environments in earlier periods of history relied on corporal punishments and death sentences.

There are costs and benefits for all such strategies. What some of my most recent research suggests is that different countries likely face different marginal costs and benefits to leveraging incarceration. In the US, we have fewer governmental bureaucracies relative to most European countries. When ruling authorities look to impose social controls like drug prohibition or stricter enforcements against property crimes, the US doesn’t have as many alternative enforcement techniques. Hence some greater level of imprisonment is to be expected in the US and nations with similarly small welfare bureaucracies.

Freeman: Why does a bigger welfare state mean locking up fewer people?

D’Amico: I think we observe a correlation between high welfare spending and low prison populations because in those countries with pre-established welfare bureaucracies, those services are leveraged as social control mechanisms in lieu of incarceration. If you break the law, don’t have a job, and are addicted to drugs, you can be sentenced to reside in a relatively controlled environment of public housing, instructed to check in with various monitoring officers, and obtain medical attention as part of your sentence. These represent small and marginal, as opposed to large up-front, expenses in those environments. It’s not clear that the US could lower prison populations by growing welfare programs — or if it would be a worthwhile trade off.

Freeman: The per capita rate of incarceration is higher in the United States than anywhere else it the world — or at any other time in history. If that’s not the result of relatively less social spending, what is the cause?

D’Amico: Lots of factors contribute to the US rate. The drug war, “tough on crime” partisan campaigns, and punitive public opinions are probably the most commonly discussed culprits. Those are all obviously important factors, but I think the general theories surrounding incarceration have suffered a bit from overly focusing on the American case. Most countries studied around the world have also experienced surprisingly sharp increases in prison growth in recent decades but without sharing the same political or social histories of the US. My work argues the pattern of incarceration around the globe can be traced to how the legal and political systems of different nations are organized. In short, I would say that the American prison population grew in stride with a growth of federal involvement and authority in the criminal justice system as opposed to retaining authority at the local, city, and state level.

If this is correct, it would imply some very different policy implications than to support public welfare spending.

Freeman: Has your work been welcomed or challenged by other scholars in the field?

D’Amico: I’ve gotten a lot of positive reception to my publications. My piece on the development of imprisonment in Ancient Greece has been cited in a number of other publications and included on a few reading syllabi, which is nice. My piece on legal origins with Claudia Williamson has just been put out, and we’ve gotten a lot of requests from others to use the data and discovered a number of fellow researchers looking into similar issues. This is also great news.

Many academics are deeply wedded to a class based view of society, and they see the role of market economies as a source of inequality and conflict.

The hardest part seems to be cracking into the conversation. I’ve gotten several referee reports that identify a lot of value in the fact that I’m an economist willing to consider the possibility that American penal trends are inefficiently excessive. On the other hand, there’s a pretty strong bias against rational-choice methodologies in these literatures and a strong skepticism of certain empirical techniques that is difficult to overcome.

Freeman: Where does that bias come from?

D’Amico: Many academics are deeply wedded to a class based view of society, and they see the role of market economies as a source of inequality and conflict. There’s a strong opposition to the specter of “neoliberalism” in prison studies.

Freeman: What does neoliberalism mean in this context?

D’Amico: Much like in other discussions of neoliberalism, the term is rarely defined consistently or objectively. In general, it seems to mean an ideological appreciation and support of global market economies. Somewhere along the line, people have come to define this idea as inextricably linked to incarceration.

Freeman: So when scholars see that you respect market economics, they assume you’re a law-and-order conservative and favor mass incarceration?

D’Amico: Sort of. Some think conspiratorially that neoliberals advance globalization as a means of promoting incarceration as a second-best form of slavery — that there is an explicit preference for controlling ethnic minorities and the economically disadvantaged. Hence my expressed concerns about overincarceration paired with an appreciation for market economies seems odd to most readers.

Others think neoliberals are complicit insofar as they fail to recognize that global markets supposedly depend on incarceration as a lever of enforcement. I don’t think the conspiracy theory holds weight worth reacting to. And the claim that markets depend on incarceration is simply not supported by historical or empirical evidence.

It’s also the case that all forms of market-oriented economics are treated similarly with too broad a brush in these discussions. Yes, Jeremy Bentham was an early and relatively laissez-faire economist, and yes, his theories on crime and punishment are significantly responsible for inspiring the design and proliferation of incarceration — but there’s also an entirely distinctive laissez-faire approach traced from Montesquieu, Smith, and Tocqueville to Hayek with very different implications and commentaries surrounding crime and punishment.

Freeman: So the critics don’t know the classical-liberal tradition?

D’Amico: Not in the same depth as its current practitioners.

Freeman: You say that other scholars who study incarceration seem either unaware of or dismissive of the thinking of Mises and Hayek. Why should they take the Austrians more seriously?

D’Amico: One of the claims regarding neoliberalism is that it makes a strong conceptual distinction between the market and the penal spheres of society, and this leads to calls for laissez-faire markets in stride with tough-on-crime policing. This is true of a lot of political theories, but Mises and Hayek, in contrast, called for a consistent and thorough-going application of the logic of action across all realms of human decision making.

And appreciation for markets is not mere ideology. Hayek’s preferences for voluntary market orders wasn’t based on the congruence of private ownership with natural rights but rather on his recognition that the preferable outcomes of prosperity are dependent on the market’s decentralized and competitive structures of discovery and innovation.

I think this appreciation for organizational principles is at the core of the classical-liberal tradition and underappreciated in contemporary crime and punishment discussions.

Freeman: If the government stopped locking everyone up, would the crime rate rise, or is there a way to have greater liberty without sacrificing safety?

D’Amico: In the short run, I’m not sure. Obama has recently signed off on a massive early release program. On the one hand, this sounds like a victory for justice insofar as these inmates were nonviolent criminals and arguably enduring excessive penalties for their behaviors. On the other hand, I worry that if a small proportion of these released inmates reoffend, the public perception will reignite a support for punitivity that will be difficult to unravel down the line.

We need a more consistent application of classical-liberal constitutions across markets and penal spheres. 

Generally speaking, the best way to curtail incarceration is to curtail crime. Many presume crime control is dependent on strict punishments, but it seems one can both admit that strict punishments do have a deterrent effect while also recognizing that such deterrent effects can maybe also be accomplished through nonpunitive means.

Better lit streets, more affordable security technologies, and more vibrant economic opportunities are results that don’t particularly lend themselves to central planning, so they are less recognized as potential crime control strategies.

Freeman: They also lack the emotional appeal of punishing bad guys.

D’Amico: That’s absolutely correct. Some sense of the public’s desire for harsh punishments should be thought of as a behavioral or cognitive bias. In this vein, one can see the democratic process exaggerating and making more potent this unsavory feature of humanity.

Again, most critics will call for relaxing the appreciation for free markets and the skepticism of welfare programs. In other words, spend more on welfare regardless of its negative impact on labor markets or high taxes curtailment of growth.

My framework, in contrast, suggests we need a more consistent application of classical-liberal constitutions across markets and penal spheres. Governmental power is subject to errors and abuses even in the criminal justice arena, hence there needs to be a dedicated attention to checks and balances in that sector.

When people shop with their hearts, the costs and benefits are concentrated on their own private pocketbooks. When people vote with their hearts regarding crime and punishment, they effectively harness the collectively overstated vengeance and perceptively false fears of society onto criminals.

Freeman: Not all crimes are victimless. How would an enlightened society — one that left peaceful people in peace — deal with the truly violent criminals?

D’Amico: I think “I don’t know” is the right answer. Most economists, especially Hayekians, are right to say that we don’t know what the right prices are in the free society. In a similar vein, punishment operates as a price against criminal behaviors. Hence we should have a similar humility and admit that the propriety and efficacy of specific punishment magnitudes and qualities in different social contexts are largely unknowable.

Freeman: Dr. D’Amico, thank you for talking with us.