The House Takes Mass Incarceration to Task

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In today's Washington, the formation of a bipartisan committee and/or commission is generally reason to cringe. Today, however, Congress created a bipartisan committee that could deserve optimism. The House Committee on the Judiciary Over-Criminalization Task Force will address an extremely severe problem: mass incarceration in the United States.

There is very good reason for the formation of the committee. The rates of incarceration in this country are staggering. The United States imprisons more people per capita than any country in the world—not only far more than any comparable liberal democracy, but more than the world's authoritarian regimes as well. Even worse, this mass incarceration reflects and exacerbates racial and economic inequalities. As scholars such as Michelle Alexander and Becky Pettit have shown in chilling detail, mass incarceration has taken a massive toll on racial minorities. One in every 36 Hispanic men over the age of 18—and one in 15 African-American males over the age of 18—are in prison. In many states, convicted felons continue to be formally sanctioned by the state, losing the right to vote or to join certain professions. The informal effects of having a felony conviction are even greater; particularly in a buyer's market for labor, the economic prospects of convicted felons attempting to get a job and put their lives in order are generally bleak.

Mass incarceration is also a massive burden on state and federal coffers, consuming taxpayer money that could go to other important public purposes. Better funded anti-poverty, education, and mental-health programs could alleviate crime in addition to their other positive benefits. Spending huge amounts of money to incarcerate nonviolent offenders or people long ago convicted of violent crimes who no longer pose a substantial safety risk is not only an offense against human rights but is an extremely inefficient use of resources.

Perhaps the many horrible consequences of mass incarceration would be defensible if it made Americans unusually secure. It doesn't. Rates of homicide, sexual assault, and robbery in the United States are all higher than in most comparable liberal democracies.

Because mass incarceration entails massive costs in exchange for highly dubious benefits, legal experts from across the political spectrum—not only civil libertarians but conservative Republicans such as former Reagan administration Attorney General Edwin Meese—have joined the call for alternatives. This increasing consensus is reflected in the makeup of the House Committee, led by Wisconsin Republican James Sensenbrenner and consisting of five Democrats and five Republicans. The committee will search for parts of the criminal code that are unnecessary or counterproductive.


Even of it makes worthwhile proposals, there are major limitations to what this bipartisan committee can accomplish. It is interesting to compare the statements of the Republican and Democratic members of the Over-Criminalization Task Force about what they perceive the problem to be. Ranking member John Conyers emphasizes mass incaceration and racial inequality, noting that "Almost one-quarter of the world’s inmates are locked up in the United States, yet Americans constitute only 5 percent of the world population" and that "the incarceration rate for African Americans is six times that of the national incarceration average." Republicans Sensenbrenner and House Judiciary Committee Chairman Bob Goodlatte talk more generally about streamlining and redundancy. Sensenbrenner's past statements don't mention mass incarceration per se, and the concern with the necessity of establishing criminal intent is implicitly more applicable to white collar crimes. This is not necessarily a bad thing in itself; penalties for nonviolent white collar crimes in the United States are—at least on paper—also unusually harsh, and overbroad statutes can make abusive or political prosecutions more likely while (as the case of disgraced Enron President Jeffrey Skilling shows) making it harder to convict actual wrongdoers. But one has to worry about whether the committee will focus enough on the worst aspects of overcriminalization, such as mandatory minumum sentences for nonviolent drug offenses.

In addition, although it is state governments rather than the federal government that are the most important drivers of mass incarceration, a couple members of the committee have cited federalism as one reason for paring back the federal criminal code. Sensenbrenner argues in his statement that "Congress must ensure the federal role in criminal prosecutions is properly limited to offenses within federal jurisdiction and within the scope of constitutionally-delegated federal powers" while Democratic member Bobby Scott declares that "crime is primarily a matter for states and localities to handle." This is not in itself problematic; Congress can only deal with federal law, and if federalism provides a reason (or pretext) for reducing the scope of federal criminal law that's all to the good. But the focus on federal power makes it clear that reaching consensus to address the problem at the state level will be much more difficult.  We shouldn't forget that the problem of mass incaceration is not primarily one of federal overreach even as we applaud reductions of excessive federal sanctions. 

And, finally, what will come of the committee's efforts is unclear. Even if the committe makes good proposals, there is no guarantee that they can get the support necessary to enact the changes into law. One reason the criminal codes of both federal and state governments have expanded is that even if reducing the scope of government is attractive in the abstract, individual laws will often be popular, Also, victims of mass incaceration are not (to put it mildly) a powerful political constituency. Nonetheless, the formation of the committee reflects a growing understanding of the problems created by mass incarceration and is a potentially important step towards addressing it. The ACLU has reacted with cautious optimism, which at this point seems the appropriate reaction. Let's hope that the optimism is justified.

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