By Muhammad Awais Arshad

Introduction

“The Nixon campaign in 1968, and the Nixon White house after that, had two enemies: the antiwar left and black people… We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”.[1]

This blog post shall take a cursory glance at the salient features of the menace of mass incarceration. It is out rightly conceded that the individual aspects discussed in this post are extremely complex, nuanced and have bodies of literature devoted to them. It is outside the scope of this post to comment on each of them in a comprehensive way. Fully acknowledging these limitations, the post attempts to raise some of the glaring issues at one place so as to bring to light the magnitude of the problem plaguing the criminal justice system. It is hoped that it shall, at the very least, lead to a thought in its readers that things are in a dire need of reform.

Statistics & Causes

The growth in incarceration rates in the United States over the past 40 years is historically unprecedented and internationally unique. A report[2] from National Academy of Sciences states that from 1973 to 2009, the state and federal prison populations rose steadily, from about 200,000 to 1.5 million. In addition to the men and women serving prison time for felonies, another 700,000 are held daily in local jails. In recent years, the federal prison system has continued to expand, while the state incarceration rate has declined. Between 2006 and 2011, more than half the states reduced their prison populations, and in 10 states the number of people incarcerated fell by 10 percent or more. The U.S. penal population of 2.2 million adults is the largest in the world. In 2012, close to 25 percent of the world’s prisoners were held in American prisons, although the United States accounts for about 5 percent of the world’s population. The U.S. rate of incarceration, with nearly 1 of every 100 adults in prison or jail, is 5 to 10 times higher than rates in Western Europe and other democracies.

The unprecedented rise in incarceration rates can be attributed to an increasingly punitive political climate surrounding criminal justice policy formed in a period of rising crime and rapid social change. This provided the context for a series of policy choices—across all branches and levels of government—that significantly increased sentence lengths, required prison time for minor offenses, and intensified punishment for drug crimes.[3]

The increase in incarceration may have caused a decrease in crime, but the magnitude of the reduction is highly uncertain and the results of most studies, some of which are discussed below, suggest it was unlikely to have been large. People who live in poor and minority communities have always had substantially higher rates of incarceration than other groups. As a consequence, the effects of harsh penal policies in the past 40 years have fallen most heavily on blacks and Hispanics, especially the poorest.[4]

The exceedingly high incarceration rates in the US have been driven by a strong prevalence of harsh sentencing policies introduced between 1970s-1990s such as “higher new mandatory minimum sentencing laws”, “three strike laws” and “truth in sentencing laws”[5]. All have contributed to not only higher incarceration rates in the US in comparison with other democracies, but also have heightened racial disparities. African Americans are 5.5 percent more likely to face incarceration as compared with white Americans. The incarceration rate for women shows an increase as compared with incarceration rates in the 1980s. High incarceration rates have also been accompanied by longer periods of stay in prisons which increased by 33% between 1993 and 2009 for state inmates.[6] Such trends and developments are a product of the hypothesis that more time served in prions and punishment reduces crime rates and increases public safety. There is no evidence that necessarily supports this assumption.

According to existing research, increased incarceration is likely to have a marginal impact on crime rates.[7] Exposure to prison environment may influence some people to turn to a life of crime upon release because prisons in the US are more punitive in character and less rehabilitative. This is also what contributes to a higher recidivism rate. Various studies show evidence of an association between “unnecessary time spent in prison” and increase in crime.[8] A 2009 analysis by criminologists of 55 empirical studies concluded that prison either increased reoffending or did not affect it, compared to alternatives to prison.[9]

Solitary Confinement

Every day, nearly 4500 prisoners across New York live in extreme isolation, deprived of all meaningful human interaction or mental stimulation, confined to the small, barren cells.[10] No activities, programs or classes break up the day. No phone calls are allowed. Few personal possessions are permitted. These prisoners languish in isolation for days, weeks, months and even years on end. New York employs an unusual brand of “solitary confinement.” Roughly half of the 4500 prisoners in “solitary confinement” spend 23 hours a day locked down alone in an isolation cell. The other half are locked down in an isolation cell with another prisoner–a practice known as “double-celling,” which forces two strangers into intimate, constant proximity. The New York Civil Liberties Union (NYCLU) uses the term “extreme isolation” throughout its report to capture New York’s particular practice of subjecting one or two prisoners in a cell to the conditions most commonly understood as solitary confinement.

These conditions implore us to ask ourselves the following questions? Is it ever justifiable to keep people in solitary confinement for long periods of time? What distinction, if any, should we draw between protective and disciplinary segregation? Does solitary confinement have a helpful place in prison administration for segregating at-risk prisoners? How should we balance the interests of safety and the need to not punish people for simply being vulnerable? What challenges arise from being released back into the general population or back into society? What, if anything, can or should be done to mitigate the worst effects of solitary confinement? Should administrative segregation be considered cruel and unusual punishment? Does new research on harm caused by isolation change this? What are some of the parallels between practices in solitary confinement and earlier practices such as including disproportionate responses from authority in schools?

Empirical Data

One of the grounds of which incarceration is justified is the ground of deterrence. Within the framework of deterrence, as pointed out by Chalfin and McCrary[11], the literature can be classified into 3 categories. First, a series of papers consider the effect of sentencing policy generally or, alternatively, sentence enhancements on crime, to test the prediction that crime will decrease in response to a sanction regime that either raises the probability of a prison sentence or raises the length of a prison sentence, if given. In practice, this literature focuses primarily on the intensive margin, that is, the severity of punishment rather than the probability that a custodial punishment is given conditional upon being arrested.

A corresponding literature considers the effect of laws that govern the age of criminal majority and, as such, generate large and pervasive discontinuities in the sanctions that individual offenders face. Since adult sanctions are more intensive along both the intensive and extensive margins, such studies identify a reduced-form deterrence effect that does not explicitly differentiate between the certainty and the severity of punishment.

Finally, a particularly prominent literature considers the effect of a capital-punishment regime or the incidence of executions on murder. Since executions enhance the expected severity of the sanction without directly affecting an offender’s probability of capture, this literature is potentially compelling with respect to understanding deterrence as, subject to satisfying the standards of econometric identification, it allows for the isolation of a pure deterrence effect operationalized along the intensive margin.

Empirical Studies on Prison Populations and Crime

These studies explore elasticity of crime with respect to prison populations. Marvell and Moody (1994)[12] provide the first credible empirical investigation of the elasticity of crime with respect to prison populations, estimating an elasticity of −0.16. Levitt (1996)[13], using similar data, exploits exogenous variation in state incarceration rates induced by court orders to reduce prison populations. Levitt’s estimated elasticities are considerably larger than those in Marvell and Moody: −0.4 for violent crimes and −0.3 for property crimes, while the largest elasticity reported is for robbery (−0.7). Levitt’s analysis is replicated by Spelman (2000)[14] who reports qualitatively similar findings. An alternative identification strategy can be found in Johnson and Raphael (2012)[15], who develop an instrumental variable to predict future changes in incarceration rates. Using state-level panel data covering 1978–2004, Johnson and Raphael (2012)[16] estimate the elasticity of crime with respect to prison populations of approximately −0.1 for violent crimes and −0.2 for property crimes. Notably, the estimated elasticities in Johnson and Raphael for earlier time periods were considerably larger and closer in magnitude to those estimated by Levitt (1996)[17]. Johnson and Raphael conclude that the criminal productivity of the marginal offender has changed considerably over time as incarceration rates have risen, a conclusion that is echoed by Liedka, Piehl, and Useem (2006)[18]. In sum, estimates of the elasticity of crime with respect to prison are generally modest in comparison to police elasticities and fall between −0.1 and −0.7.[19]

Capital Punishment Regimes

There have been two primary approaches to identifying deterrence effects of capital punishment. One approach considers the use of granular time-series data or event studies to identify the effect of the timing of executions on murder. Time-series studies typically use vector autoregression to assess whether murder rates appear to decline in the immediate aftermath of an execution. Prominent examples include Stolzenberg and D’Alessio (2004)[20], which finds no evidence of deterrence, and Land, Teske, and Zheng (2009)[21], which finds evidence of short-run deterrence. Event studies such as those of Grogger (1991)[22] and Hjalmarsson (2009a)[23] examine the daily incidence of homicides before and after executions. Both Grogger (1991)[24] and Hjalmarsson (2009a)[25] find little evidence of deterrence effects though, as Charles and Durlauf (2013)[26] and Hjalmarsson (2012)[27] note, with a limited time horizon, it is not possible to distinguish between what we typically think of as deterrence and temporal displacement. A related study, Cochran, Chamlin, and Seth (1994)[28], considers the effect of Oklahoma’s first execution in more than twenty years and finds evidence that the execution appears to have increased murder among strangers, an effect they attribute to a “brutalization” hypothesis, though it is attributed with equal ease to statistical noise.

A study worth noting is that of Zimring, Fagan, and Johnson (2010)[29], who compare homicide rates in two quite similar cities with vastly different execution risks. Singapore had an execution rate close to one per million per year until an explosive 20‐fold increase in 1994–1995 and 1996 to a level that they show was probably the highest in the world. Then, over the next 11 years, Singapore executions dropped by about 95 percent. Hong Kong, by contrast, had no executions at all during the last generation and abolished capital punishment in 1993. Homicide levels and trends were remarkably similar in these two cities over the 35 years after 1973, with neither the surge in Singapore executions nor the more recent steep drop producing any differential impact. By comparing two closely matched places with huge contrasts in actual execution, but no differences in homicide trends, the study generated a unique test of the exuberant claims of deterrence that have been produced over the past decade in the United States. The study found no evidence in favor of deterrence, as both countries experience similar homicide trends over the thirty-five-year time period studied.

Donohue and Wolfers[30] assessed the various approaches that have been used in the literature focusing on the deterrent effect of the death penalty with the aim of testing the robustness of inferences stated in said literature that capital punishment has yielded a precise and substantial deterrent effect. They surveyed data on the time series of executions and homicides in the United States, compared the United States with Canada, compared non-death penalty states with executing states, analyzed the effects of the judicial experiments provided by the Furman[31] and Gregg[32] decisions comparing affected states with unaffected states, surveyed the state panel data since 1934, assessed a range of instrumental variables approaches, and analyzed two recent states-specific execution moratoria. They found in each case that previous inferences of large deterrent effects based upon specific samples, functional forms, control variables, comparison groups, or IV strategies were extremely fragile and even small changes in specifications yielded dramatically different results.[33] They concluded that existing estimates appear to reflect a small and unrepresentative sample of the estimates that arise from alternative approaches. Sampling from the broader universe of plausible approaches suggests not just “reasonable doubt” about whether there is any deterrent effect of the death penalty, but profound uncertainty – even about its sign.

A later study by the same authors[34] concluded that the view that the death penalty deters is still the product of belief, not evidence. The reason for this being that for over the past half century the U.S. has not experimented enough with capital punishment policy to permit strong conclusions. Even complex econometrics cannot sidestep this basic fact. The data are simply too noisy, and the conclusions from any study are too fragile. On balance, the evidence suggests that the death penalty may increase the murder rate although it remains possible that the death penalty may decrease it. If capital punishment does decrease the murder rate, any decrease is likely small.

Using state-level panel-data regressions over a 68-year period from 1934 to 2001 and controlling for economic conditions, youth population rates, criminal justice enforcement, and demographic factors, a study by Harcourt[35] found a large, robust, and statistically significant relationship between aggregated institutionalization (in mental hospitals and prisons) and homicide rates, providing strong evidence of what Harcourt terms an institutionalization effect—rather than, more simply but inaccurately, an imprisonment or incapacitation effect. The study pointed to a very strong possibility that mental hospitalization and imprisonment rates have an effect on homicide rates through the potential victimization of the institutionalized populations.[36] The study raises serious questions about the alternative explanations for homicide that are traditionally offered. The conclusions pose a challenge to criminological theory in general and to specific theories in particular—whether cultural, conflict, rational choice, differential association, biological, or other. The findings suggest a “social physics” explanation of crime: homicide is largely related to the number and rate of individuals involuntarily detained in closed institutions.[37]

In the domain of justice, empirical evidence by itself cannot point the way to policy, yet an explicit and transparent expression of normative principles has been notably missing as U.S. incarceration rates dramatically rose over the past four decades. Normative principles have deep roots in jurisprudence and theories of governance and are needed to supplement empirical evidence to guide future policy and research.[38]

The Racial Disparity

James Baldwin had stated, and stated quite aptly, that “It is not permissible that the authors of devastation should also be innocent. It is the innocence which constitutes the crime.”[39] Naomi Murakawa[40] has illuminated the legal and social scientific tools, which are used to obscure the carceral state, to blunt people’s perception of its intrinsic dehumanization and its routine racism. She noted that criminal law condones racial profiling, caging, and killing, while anti-discrimination law formalizes the presumption of racial innocence by tasking plaintiffs with the burden of proving intentional discrimination. Positivist social scientists practice the same willful ignorance by setting a null hypothesis of no racism, fastidiously separating racial from presumably nonracial factors, and then measuring “the race effect” instead of racism’s effects.

The disproportionate presence of blacks in American prisons, jails, and Death Rows, and the principal reasons for it—higher rates of commission of violent crimes and racially disparate effects of drug policies and sentencing laws governing violent and drug crimes—are well known. Tonry and Melewski[41] note that since the late 1980s, black involvement in violent crime has declined substantially, but racial disproportions have not. Blacks are six to seven times more likely than whites to be in prison. Nearly a third of young black men are under criminal justice system control. A third of black boys born in 2001 are predicted to spend some time in prison. The simplest explanation for these patterns is that drug and sentencing policies that contribute to disparities have not been significantly changed in decades. The question then is, why not? The answer is that the white majority does not empathize with poor black people who wind up in prison. That in turn is because recent punishment policies have replaced the urban ghetto, Jim Crow laws, and slavery as a mechanism for maintaining white dominance over blacks in the United States.

Laura McNeal[42] focused on the issue of overly harsh school disciplinary policies, which causes thousands of students of color, especially African Americans, to be denied access to schools. Despite the overwhelming evidence of the harmful impact of the current school disciplinary system on students of color, very little progress has been made on reforming the system. The disproportionate number of minorities subjected to overly harsh disciplinary sanctions is due to explicit and implicit bias, teachers’ lack of classroom management skills, adult policing practices on children, and overreliance on law enforcement officers for minor student misbehavior.[43] In theory, school resource officers should improve school safety and foster positive relations between law enforcement and the citizens they serve, particularly minorities. This is especially important in light of the increased scrutiny regarding the treatment of minority children following the deaths of Michael Brown in Ferguson, Missouri and Tamir Rice in Cleveland. However, in practice, many school resource officers are helping to further as opposed to hinder the school-to-prison pipeline by using adult policing practices on minority children and issuing racially biased school discipline sanctions. Schools’ personnel’s explicit and implicit racial bias further exacerbate the harm inflicted upon students of color by issuing harsher disciplinary sanctions that unjustly remove students from their learning environments for normal adolescent behavior.

In 1982, James Q. Wilson and George Kelling[44] suggested in an influential article in the Atlantic Monthly that targeting minor disorder could help reduce more serious crime. Decades later, the three most populous cities in the United States–New York, Chicago, and, most recently, Los Angeles–have all adopted at least some aspect of Wilson and Kelling’s theory, primarily through more aggressive enforcement of minor misdemeanor laws. Harcourt and Ludwig[45] independently analyzed the crime data from New York City for the 1989-1998 period. In addition, they presented results from an important social experiment known as Moving to Opportunity (MTO) underway in five cities, including New York, Chicago, and Los Angeles, as well as Baltimore and Boston, that provided a unique opportunity to overcome some of the problems with previous empirical tests of the broken windows hypothesis. Under this program, approximately 4,600 low-income families living in high- crime public housing communities characterized by high rates of social disorder were randomly assigned housing vouchers to move to less disadvantaged and disorderly communities. Taken together, the evidence from New York City and from the five-city social experiment provided no support for a simple first-order disorder-crime relationship as hypothesized by Wilson and Kelling, nor for the proposition that broken windows policing is the optimal use of scarce law enforcement resources.

Possible Solutions

It is strongly argued that non-carceral public safety programs offer a much better and effective way to pursue the aim of rehabilitation, as illustrated by some examples below.  For example, a study by Sarah B. Heller[46] tested whether summer jobs, which shift focus from remediation to prevention, can reduce crime. In a randomized controlled trial among 1634 disadvantaged high school youth in Chicago, assignment to a summer jobs program decreased violence by 43% over 16 months (3.95 fewer violent-crime arrests per 100 youth). The decline occurred largely after the 8-week intervention ended. The results suggested the promise of using low-cost, well-targeted programs to generate meaningful behavioral change, even with a problem as complex as youth violence. Children and adolescents spend a large fraction of their lives in schools. Many discussions about improving adult behavior focus on improving cognitive skills. Nevertheless, retrospective analysis also highlights the importance of noncognitive skills.

Similarly, Bondurant, Lindo, and Swensen[47] estimated the effects of expanding access to substance-abuse treatment on local crime. They did so using an identification strategy that leveraged variation driven by substance-abuse-treatment facility openings and closings measured at the county level. The results indicated that substance-abuse-treatment facilities reduced both violent and financially motivated crimes in an area, and that the effects were particularly pronounced for relatively serious crimes. The effects on homicides were documented in two sources of homicide data and were concentrated in highly populated areas.

A study by Fagan[48] focused on violent juvenile crime, which had become the focus of policy debates on the philosophy of juvenile justice systems and the efficacy of rehabilitation. The Violent Juvenile Offender (VJO) Program was an experiment to test correctional interventions for chronically violent juvenile offenders. Programs in four sites tested an intervention model with four central elements: reintegration, case management, social learning processes and a phased program of reentry from secure facilities to intensive supervision in the community. Recidivism and social outcomes of participants were compared with those of youths randomly assigned to mainstream juvenile corrections programs. Implementation of the experimental intervention varied by site; results suggest that treatment should be measured as a vector with several dimensions. Failure rates and arrest rates by time at risk for VJO youths were lower than those for control youths in two sites with strong implementation suggesting that reintegration and transition strategies should be the focus of correctional policy, rather than lengthy confinement in state training schools with minimal supervision upon release.

In another research, Papachristos, Meares and Fagan[49] used a quasi‐experimental design to evaluate the impact of Project Safe Neighborhood (PSN) initiatives on neighborhood‐level crime rates in Chicago. Four interventions were analyzed: (1) increased federal prosecutions for convicted felons carrying or using guns, (2) the length of sentences associated with federal prosecutions, (3) supply‐side firearm policing activities, and (4) social marketing of deterrence and social norms messages through justice‐style offender notification meetings. Using individual growth curve models and propensity scores to adjust for nonrandom group assignment of neighborhoods, the findings suggested that several PSN interventions were associated with greater declines of homicide in the treatment neighborhoods compared to the control neighborhoods. The largest effect was associated with the offender notification meetings that stress individual deterrence, normative change in offender behavior, and increasing views on legitimacy and procedural justice.

Conclusion

The incremental deterrent effect of increases in lengthy prison sentences is modest at best. Because recidivism rates decline markedly with age, lengthy prison sentences, unless they specifically target very high-rate or extremely dangerous offenders, are an inefficient approach to preventing crime by incapacitation. Those suffering from mental health illness, drug addiction and other vulnerabilities should be offered an alternative to imprisonment which will allow them to contribute to society more positively. A defendant showing remorse is more likely to benefit from rehabilitation rather than imprisonment. Prison time should not be given to low level offenders except for special circumstances. Prisoners should be allowed to petition judges for retroactive application of these reforms. Savings from lower incarceration rates should be used to invest in policies that have been effective in lowering incarceration and crime. Given the prominent role played by prisons in U.S. society, the far-reaching impact of incarceration, and the need to develop policies that reduce reliance on imprisonment as a response to crime, public and private research institutions and statistical agencies should support a robust research and statistics program commensurate with the importance of these issues.

Notes

[1] John Ehrlichman, White House Advisor to President Nixon, Interview with Harper’s Magazine, 1994.

[2] National Academy of Sciences, The Growth of Incarceration in the United States: Exploring Causes and

Consequences (2014), Summary, p.2.

[3] Ibid at 4.

[4] Ibid at 6.

[5] Dr. James Austin, Lauren Brooke Eisen, James Cullen and Jonathan Frank. 2016. “How Many Americans are Unnecessarily Incarcerated?”, Brennan Center for Justice, p.11.

[6] Ibid at 17.

[7] Ibid at 21.

[8] Ibid at 22.

[9] Ibid.

[10] Scarlet Kim, Taylor Pendergrass and Helen Zelon, “Boxed In | The True Cost of Extreme isolation in New York’s Prisons”, A Report by the New York Civil Liberties Union,  p. 1.

[11] Aaron Chalfin and Justin McCrary, “Criminal Deterrence: A Review of the Literature”, Journal of Economic Literature 2017, 55(1), 5–48.

[12] Marvell, Thomas B., and Carlisle E. Moody, Jr. 1994. “Prison Population Growth and Crime Reduction.” Journal of Quantitative Criminology 10 (2): 109–40.

[13] Levitt, Steven D. 1996. “The Effect of Prison Population Size on Crime Rates: Evidence from Prison Overcrowding Litigation.” Quarterly Journal of Economics 111 (2): 319–51.

[14] Spelman, William. 2000. “What Recent Studies Do (and Don’t) Tell Us about Imprisonment and Crime.” Crime and Justice: A Review of Research 27: 419–94.

[15] Johnson, Rucker, and Steven Raphael. 2012. “How Much Crime Reduction Does the Marginal Prisoner Buy?” Journal of Law and Economics 55 (2): 275–310.

[16] Levitt n 5 above.

[17] Liedka, Raymond V., Anne Morrison Piehl, and Bert Useem. 2006. “The Crime-Control Effect of Incarceration: Does Scale Matter?” Criminology and Public Policy 5 (2): 245–76.

[18] Liedka, Raymond V., Anne Morrison Piehl, and Bert Useem. 2006. “The Crime-Control Effect of Incarceration: Does Scale Matter?” Criminology and Public Policy 5 (2): 245–76.

[19] Chalfin and McCrary n 3 above.

[20] Stolzenberg, Lisa, and Stewart J. D’Alessio. 1997. “‘Three Strikes and You’re Out’: The Impact of California’s New Mandatory Sentencing Law on Serious Crime Rates.” Crime and Delinquency 43 (4): 457–69.

[21] Land, Kenneth C., Raymond H. C. Teske, Jr., and Hui Zheng. 2009. “The Short-Term Effects of Executions on Homicides: Deterrence, Displacement, or Both?” Criminology 47 (4): 1009–43.

[22] Grogger, Jeffrey. 1991. “Certainty vs. Severity of Punishment.” Economic Inquiry 29 (2): 297–309.

[23] Hjalmarsson, Randi. 2009a. “Crime and Expected Punishment: Changes in Perceptions at the Age of Criminal Majority.” American Law and Economics Review 11 (1): 209–48.

[24] Grogger n 22 above.

[25] Hjalmarsson n 15 above.

[26] Charles, Kerwin Kofi, and Steven N. Durlauf. 2013. “Pitfalls in the Use of Time Series Methods to Study Deterrence and Capital Punishment.” Journal of Quantitative Criminology 29 (1): 45–66.

[27] Hjalmarsson, Randi. 2012. “Can Executions Have a Short-Term Deterrence Effect on Non-felony Homicides?” Criminology and Public Policy 11 (3): 565–71.

[28] Cochran, John K., Mitchell B. Chamlin, and Mark Seth. 1994. “Deterrence or Brutalization? An Impact Assessment of Oklahoma’s Return to Capital Punishment?” Criminology 32 (1): 107–34.

[29] Zimring, Franklin E., Jeffrey Fagan, and David T. Johnson. 2010. “Executions, Deterrence, and Homicide: A Tale of Two Cities.” Journal of Empirical Legal Studies 7 (1): 1–29.

[30] Donohue, J. J., & Wolfers, J. (2005). Uses and Abuses of Empirical Evidence in the Death Penalty Debate. Stanford Law Review, 58 (3), 791-845

[31] Furman v. Georgia, 408 U.S. 238 (1972). [The Supreme Court ruled in this case that existing death penalty statutes were unconstitutional].

[32] Gregg v. Georgia, 428 U.S. 153 (1976). In Gregg, Justice Stewart stated, “Although some of the studies suggest that the death penalty may not function as a significantly greater deterrent than lesser penalties, there is no convincing empirical evidence either supporting or refuting this view.” Id. at 185. Yet, he then asserted: “We may nevertheless assume safely that there are murderers, such as those who act in passion, for whom the threat of death has little or no deterrent effect. But for many others, the death penalty undoubtedly is a significant deterrent.” Id. Justice Stewart did not clarify whether he believed that murders would increase if convicted murderers who might otherwise be executed instead received sentences of life without parole and, if so, on what basis this might be safely assumed.

[33] The fundamental difficulty is that the death penalty–at least as it has been implemented in the United States–is applied so rarely that the number of homicides that it can plausibly have caused or deterred cannot be reliably disentangled from the large year-to-year changes in the homicide rate caused by other factors. As such, short samples and particular specifications may yield large but spurious correlations.

[34] Donohue, John & Wolfers, Justin. (2007). The Death Penalty: No Evidence for Deterrence. The Economists’ Voice. 3. 3-3.

[35] Harcourt, E. Bernard. (2011). An Institutionalization Effect: The Impact of Mental Hospitalization and Imprisonment on Homicide in the United States, 1934–2001. The Journal of Legal Studies, Vol. 40, No. 1, pp. 39-83.

[36] Ibid at 73.

[37] Ibid at 75.

[38] National Academy of Sciences, The Growth of Incarceration in the United States: Exploring Causes and

Consequences (2014), Summary, p.9.

[39] Baldwin J. 1985 (1963). The Fire Next Time. See Baldwin 1985, pp. 333–79.

[40] Murakawa, Naomi. (2019). Racial Innocence: Law, Social Science, and the Unknowing of Racism in the US Carceral State. Annual Review of Law and Social Science. 15. 473-493.

[41] Tonry, Michael & Melewski, Matthew. (2008). The Malign Effects of Drug and Crime Control Policies on Black Americans. Crime and Justice, Vol. 37, No. 1, pp. 1-44.

[42] McNeal, Laura R. (2016). Managing Our Blind Spot: The Role of Bias in the School-to-Prison Pipeline. Arizona State Law Journal, Vol. 48, Issue 2, pp. 285-312.

[43] Samantha Buckingham, A Tale of Two Systems: How Schools and Juvenile Courts Are Failing Students, 13 U.MD.L.J. RACE, RELIGION, GENDER &CLASS 179, 186 (2013).

[44] James Q. Wilson and George L. Kelling, Broken Windows: The Police and Neighborhood Safety, Atlantic Monthly 29, 38 (Mar 1982) (arguing that a correlation exists between law enforcement’s failure to control certain types of “quality of life” crimes, such as loitering, public drunkenness, and vandalism, and the increased likelihood that violent crimes, such as robbery, will occur).

[45] Harcourt, E. Bernard & Ludwig, Jens. (2006). Broken Windows: New Evidence from New York City and a Five-City Social Experiment. The University of Chicago Law Review, Vol. 73, No. 1, Symposium: Homo Economicus, Homo Myopicus, and the Law and Economics of Consumer Choice (Winter, 2006), pp. 271-320.

[46] Sara B. Heller, Summer jobs reduce violence among disadvantaged youth, Science 05 Dec 2014, Vol. 346, Issue 6214, pp. 1219-1223.

[47] Samuel R. Bondurant & Jason M. Lindo & Isaac D. Swensen, “Substance Abuse Treatment Centers and Local Crime”, Journal of Urban Economics, Volume 104, March 2018, pp. 124-133.

[48] Jeffrey A. Fagan, “Treatment and Integration of Violent Juvenile Offenders: Experimental Results”, Justice Quarterly, Vol. 7 No. 2, June 1990.

[49] Papachristos, Andrew V., Tracey L. Meares, and Jeffrey Fagan. 2007. “Attention Felons: Evaluating Project

Safe Neighborhoods in Chicago.” Journal of Empirical Legal Studies 4 (2): 223–72.