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February 2, 2009 -- ABA Journal (US)

Incarceration Policy Strikes Out

Exploding Prison Population Compromises The U.S. Justice System

By Ben Trachtenberg, Ross Essay Contest

Return to Drug War News: Don't Miss Archive


At midyear 2007, U.S. prisons and jails held 2,299,116 inmates, meaning more than 1 percent of American adults were incarcerated. We top the world in per capita imprisonment, increasing our lead every year.

Since 2000, while the total U.S. population increased by 7 percent, our prison population has grown by 19 percent. Our massive imprisonment costs needless billions and, perversely, hinders effective crime control. We need to reduce our prison population.

Few dispute the value of imprisonment in fighting crime. Especially with repeat violent offenders, prison may be the only way to prevent a dangerous criminal from hurting more innocent victims.

But many instances of incarceration transparently fail to serve any serious preventive purpose, especially given the costs.

Smart Is Better Than Tough

These outrageous expenses might be tolerable as a necessary evil if we had no better options. Yet often, nonincarceration alternatives, such as drug treatment for addicts and community service for small-time thieves, cost less and reduce misery across the board.

Although the federal government holds only 9 percent of American inmates, federal policy contributes to massive over-imprisonment by the states.

For example, Congress passed laws restricting federal crime-control dollars to states implementing so-called truth-in-sentencing programs, which aim to ensure that convicts actually serve the time announced at sentencing.

By adopting smart on crime " programs instead of knee-jerk toughness, states can reduce crime while spending less. Reworked federal incentives would encourage smart state policymaking.

While no one supports freeing rapists and murderers, warehousing every offender wastes money, destroys lives and contributes to our shameful status as the world's leading incarcerator.

We need Washington to reward good policy, not costly grandstanding that bankrupts our state governments and confines more than one of every 100 American adults.

This essay was selected by the ABA Journal Board of Editors as the winner of the 2009 Ross Essay Contest. This year's topic was: "Write an open letter to the new president and Congress describing the most important priority for improving the U.S. justice system." The contest, which carries a $5,000 prize, is supported by a trust established in the 1930s by the late Judge Erskine M. Ross of Los Angeles.

Ben Trachtenberg is a visiting assistant professor of law at Brooklyn Law School.

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