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3 Harv. L. & Pol'y Rev. 307 (2009)
Reducing Mass Incarceration: Implications of the Iron Law of Prison Populations

handle is hein.journals/harlpolrv3 and id is 311 raw text is: Reducing Mass Incarceration: Implications of the Iron Law of Prison Populations, Todd R. Clear* James Austin** Beginning in the 1970s, the United States embarked on a three-decade- long shift in its penal policies. In these years, state and federal governments tripled the percentage of convicted felons sentenced to confinement and doubled the length of their sentences. As a consequence of these changes, punishment in the United States has become an outlier, not only among pre- vailing practices in the Western world, but also in comparison to the United States' own long-standing practices.2 United States imprisonment rates are now almost five times higher than the historical norm prevailing throughout most of the twentieth century, and they are three to five times higher than in other Western democracies.3 The amount of writing by scholars and analysts during this thirty-year period regarding the exceptional nature of U.S. penal policy could fill a li- brary. Early on, many writers suspected that the U.S. prison population was too small and needed to grow.4 But in recent years, as the growth of the prison population reached levels that were well beyond those anyone had anticipated and that few believed were needed, the literature about the U.S. prison system has shifted to emphasize deep concerns about the wisdom of our burgeoning prison population. Today, a broad consensus has emerged 1 This paper draws upon three recent volumes in which the authors were principal writers: TODD R. CLEAR, IMPRISONING COMMUNITIES: How MASS INCARCERATION MAKES DISADVANTAGED PLACES WORSE (2007); JAMES AUSTIN ET AL., UNLOCKING AMERICA: WHY AND HOW TO REDUCE AMERICA'S PRISON POPULATION (2008), available at http://www.jfa- associates.com/publications/srsUnlockingAmerica.pdf; and James Austin, Reducing America's Correctional Populations (2009) (unpublished working paper for the National Institute of Corrections, on file with author). * Todd R. Clear is Distinguished Professor of Criminal Justice at John Jay College of Crim- inal Justice of the City University of New York. He is president of the American Society of Criminology. ** James Austin is a criminologist and the President of the JFA Institute. Dr. Austin is currently working with a number of states and county jails on reducing their correctional popu- lations and evaluating the impact of various legislative and correctional reform policies. 2 For the data in support of this conclusion, see MARIE GOTrSCHALK, THE GALLOWS: THE POLITICS OF MASS INCARCERATION IN AMERICA 1-6 (2006); INVISIBLE PUNISHMENT: THE COL- LATERAL CONSEQUENCES OF MASS IMPRISONMENT 279-92 (Marc Mauer & Meda Chesney- Lind eds., 2002); BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA 12-15 (2006); JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BE- TWEEN AMERICA AND EUROPE 3-17 (2003). 1 See AUSTIN ET AL., supra note 1, at 3-4; MARC MAUER, SENTENCING PROJECT, COMPAR- ATIVE INTERNATIONAL RATES OF INCARCERATION, 1-2 (2003), available at http://www.sen- tencingproject.org/Admin/Documents/publications/inc-comparative - int.pdf. 4 See, e.g., EDWIN ZEDLEWSKI, U.S. DEP'T OF JUSTICE, MAKING CONFINEMENT DECISIONS (1987).

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