The US criminal justice system: fundamentally flawed or working just fine?

I am posting about the criminal justice system--a non-medical subject--simply because it interests me, which overrides the medical focus of this blog. In fact, the sex offender post suggests this blog should be viewed more as about science & public policy than medicine specifically.

I have recently become engrossed with the subject of the criminal justice system in this country. This includes everything from whether it is racist, to whether mass incarceration is bad or not, and, by extension, whether we need to change it. If we do, presumably we need to do so by letting more prisoners out, especially drug offenders, as the US government did just two months ago. (1) But if not, then the increasing push to release more prisoners to undo the "damage" purportedly caused by mass incarceration is misguided, because, as Heather Mac Donald put it, "mass incarceration isn’t the problem. Rising crime is." (2)

First of all, to address MacDonald's claims, we need to answer the question of whether there is something wrong with our system of mass incarceration, which gave us the highest incarceration rate in the world beginning in 2002, (5) until we were surpassed by the Seychelles. As of this February, our incarceration rate was the second-highest in the world. (3) Our prison population more than quadrupled from 1980 to 2014. (4) 

As I mentioned before, many claim that the war on drugs has made a huge contribution to this phenomenon--even Obama said this July that "Over the last few decades, we’ve also locked up more and more nonviolent drug offenders than ever before, for longer than ever before, and that is the real reason our prison population is so high.” (6) This contention has been criticized, though, for overstating how important the War on Drugs has been in the incarceration rate increase in this country. 

As of this July, there are 207,847 people incarcerated in federal prisons. Roughly half (48.6 percent) are in for drug offenses. (6) However, there were, at the time, way more people in state prisons than in federal prisons--1,358,875, of whom about 16 percent had a drug offense as their most serious offense. (6) If you released all these offenders, the incarceration rate in the US would drop from 725 to 625 per 100,000 people. This is a big drop, but our country's incarceration rate would still be an outlier even then. (6)

So what did cause it? The National Research Council said in 2014 that the answers are "increases both in the likelihood of imprisonment and in lengths of prison sentences". (6) They also said, contrary to Mac Donald's claim that the US' incarceration rate is high because our crime rate is high, "changes in crime trends or in police effectiveness as measured by arrests per crime contributed virtually nothing to the increase in incarceration rates over the 30-year period. Rather, the growth can be attributed about equally to the two policy factors of prison commitments per arrest and increases in time served." (6) page 53 One scholar proposed that from 1975 to 1991, a major factor was the increasing crime rate, saying that "about half of prison growth during that period was due to rising crime." After that, he argues that we are sending a higher proportion of people to prison, and that this caused the incarceration rate to rise after 1991, when the crime wave ended. (7) 

The problems with mass incarceration include spending: "state spending on corrections increased 400 percent between 1980 and 2009." (4) A 2014 NRC report recommended that "Given the small crime prevention effects of long prison sentences and the possibly high financial, social, and human costs of incarceration, federal and state policy makers should revise current criminal justice policies to significantly reduce the rate of incarceration in the United States." (8) According to the New York Times' editorial board, "From 1980 to 2000, the number of children with fathers in prison rose from 350,000 to 2.1 million." (9) Similarly, a 2012 study found that 51% of black fathers had been incarcerated before their child's 5th birthday, (10) and this makes it more likely that their children will become delinquent. (18) Other research has also shown that the effect of incarceration (and booking) on parents being engaged with their kids does disproportionately affect black people. (19)

Is this phenomenon racist? A 2004 study found that at the end of 2002, there were more black men in US jails and prisons with sentences longer than one year than either white men or Hispanic men. The same study found that the main reason for both the rise of the prison population and its racial disparity is the War on Drugs, stating this with surprising clarity despite the evidence noted above. (11) 

The question of whether the War on Drugs is racist is most simply answered by asking two questions: 
1. Who uses/deals illegal drugs more, whites or blacks?
2. Who gets arrested/sent to prison for drug offenses more, whites or blacks?

The answer to the first question, if you look at surveys of use, appears to be either neither (with both races using them at about the same rate) or white people (with respect to both using (12) and dealing (13)(14)). However, these numbers have been called into question because it has been shown that black people are much more likely to underreport their own illegal drug use than white people. (20)

As for the second question, the answer is clearly blacks, with some studies finding them ten times more likely to be arrested for drug crimes than whites. (12)(14) With respect to marijuana, one study found that black people were nearly 4x as likely to be arrested for marijuana possession than white people in 2010, "even though the two groups used the drug at similar rates." (15) However, this study used data from a survey (the National Survey on Drug Use and Health), (21) which, as noted above, calls its validity into question.

Even if the War on Drugs is not racist, it is still clear that black people and other minorities tend to receive longer sentences than white people, a finding common to numerous studies. One study found that black men received sentences that were almost 10% longer than those of comparable white men arrested for the same crimes. (22) In response, it is often claimed that black people commit more or worse crimes than white people do, but in fact, although this is part of the explanation for the racial disparity in prison populations, another point is worth noting: to quote from a 2008 study, since the late 1980s, "black involvement in violent crime has declined substantially, but racial disproportions have not." (23)

Other factors that make it more likely that your sentence will be longer include being male and having a low level of education or income. (29) Other research, however, suggests that although black prisoners receive longer sentences than white prisoners, Hispanic prisoners receive the longest sentences of all. (28) In any case, numerous studies have shown that Hispanics, Native Americans', and black people's sentences are longer than those of white people, and these differences can't entirely be explained by characteristics of the offenses. (30) (31)

If we return to the issue of incarceration, the main reasons it happened, according to the aforementioned NRC report, were the following changes that happened in the 1960s and 70s: "...prison time was increasingly required for lesser offenses; time served was significantly increased for violent crimes and for repeat offenders; and drug crimes, particularly street dealing in urban areas, became more severely policed and punished." (8) (see page 3) 

Ultimately, we must answer the question of what, if any, are the benefits from continuing mass incarceration when it has already come this far. First of all, it is worth pointing out that, at least at first, increasing the prison population does reduce crime rates, according to research by Steven Levitt, he of "abortion reduces crime" fame. (24) However, it's worth noting that this study was published almost 20 years ago, in 1996, so it's quite possible that incarceration is not as effective now as it was then. Why? Well, the University of Chicago explains that "We expect the benefits to society from locking up each additional criminal to decline as the number of people imprisoned increases, assuming that the criminal justice system is at all good at its job and prioritizes the most criminally active or dangerous people for imprisonment first." (24) Thus, it should be no surprise that a report released this February by the Brennan Center for Justice found that mass incarceration played only a small role in the crime decline that has occurred since 1990: from 1990-1999 it contributed to about 5% of the decline, and from 2000-2013 it contributed to essentially none of it. (25) Another study, published in 2012, found that the effects of increasing the prison population on reducing crime were much smaller from 1991 to 2004 than they were from 1971 to 1990. (28) Other recent studies have found that at this point, locking more people up may actually increase crime rates, (26) which may be because, according to another study, longer prison sentences make it more likely that prisoners will reoffend and less likely that they will get jobs after they are released, "Any benefit from taking criminals out of the general population is more than off-set by the increase in crime from turning small offenders into career criminals." (32)

In short, Heather Mac Donald and the other defenders of mass incarceration are vanishingly small and dwindling for a reason: they're flat wrong. The system does need to be reformed, and it's good that our government is taking a step in the right direction.
Sources:
1. http://time.com/4072182/prisoners-release-6000/
2. http://www.wsj.com/articles/obamas-tragic-let-em-out-fantasy-1445639113
3. http://www.politifact.com/punditfact/statements/2015/feb/23/john-legend/fact-checking-john-legends-claim-we-live-most-inca/
4. https://news.vice.com/article/the-mass-incarceration-problem-in-america
5. http://www.prb.org/Publications/Articles/2012/us-incarceration.aspx
6. http://fivethirtyeight.com/datalab/releasing-drug-offenders-wont-end-mass-incarceration/
7. http://www.slate.com/articles/news_and_politics/crime/2015/02/mass_incarceration_a_provocative_new_theory_for_why_so_many_americans_are.html
8. http://www.nap.edu/read/18613/chapter/2#9
9. http://www.nytimes.com/2014/05/25/opinion/sunday/end-mass-incarceration-now.html
10. http://www.ncbi.nlm.nih.gov/pubmed/22239385
11. http://www.jstor.org/stable/40040178
12. http://healthland.time.com/2011/11/07/study-whites-more-likely-to-abuse-drugs-than-blacks/
13. https://www.washingtonpost.com/news/wonk/wp/2014/09/30/white-people-are-more-likely-to-deal-drugs-but-black-people-are-more-likely-to-get-arrested-for-it/
14. http://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2012.300699
15. http://www.nytimes.com/2013/06/04/us/marijuana-arrests-four-times-as-likely-for-blacks.html
16. 
17. http://www.nationalreview.com/corner/417539/no-war-drugs-not-forcing-black-men-out-society-roger-clegg
18. http://onlinelibrary.wiley.com/doi/10.1111/j.1745-9125.2011.00253.x/abstract

19. http://tpj.sagepub.com/content/88/2/179.short
20. http://link.springer.com/article/10.1093%2Fjurban%2Fjti065
21. https://www.washingtonpost.com/news/wonk/wp/2013/06/04/the-blackwhite-marijuana-arrest-gap-in-nine-charts/ Figure 21. Note that the image says its data is from the "National Household Survey on Drug Abuse and Health", which appears to be the wrong name.
22. http://www.jstor.org/stable/10.1086/677255?seq=1#page_scan_tab_contents
23. http://www.jstor.org/stable/10.1086/588492?seq=1#page_scan_tab_contents
24. http://pricetheory.uchicago.edu/levitt/Papers/LevittTheEffectOfPrison1996.pdf
25. http://www.usnews.com/news/articles/2015/02/12/mass-incarceration-didnt-lower-crime-but-can-congress-be-convinced
26. http://scholarworks.umass.edu/open_access_dissertations/636/
27. http://qz.com/458675/in-america-mass-incarceration-has-caused-more-crime-than-its-prevented/
28. http://www.jstor.org/stable/2657543?seq=1#page_scan_tab_contents
29. http://www.jstor.org/stable/10.1086/320276
30. http://onlinelibrary.wiley.com/doi/10.1111/j.0038-4941.2004.00255.x/abstract?userIsAuthenticated=false&deniedAccessCustomisedMessage=
31. http://link.springer.com/article/10.1023/A:1015258732676
32. http://www.jstor.org/stable/10.1086/664073