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50 Am. J. Crim. L. 1 (2024)
"Mass Incarceration" Myths and Facts: Aiming Reform at the Real Problems

handle is hein.journals/ajcl50 and id is 5 raw text is: Article MASS INCARCERATION MYTHS AND FACTS: AIMING REFORM AT THE REAL PROBLEMS Paul H. Robinson' and Jeffrey Seaman2 Few claims have won such widespread acceptance in legal academia as the mass incarceration narrative: the idea that the rise in America's prison population over the last half century was fueled largely by the need- less and unjust imprisonment ofmillions ofcriminal offenders due to punitive changes in sentencing. To many academics and activists, the question is not how accurate the mass incarceration narrative is but how mass incarceration can be ended. This Article argues the mass incarceration narrative is based on a series of myths and, as a result, many proposed reforms are based on a misunderstanding ofAmerica's past and present carceral practices. A more accurate understanding is needed to produce effective reform. The central myth of the mass incarceration narrative is that exceptional and unjustified punitiveness largely explains America's significant increase in prison population since the 1960s. This explanation overlooks the numer- ous non-sentencing factors that increased incarceration: a near doubling in U.S. population, higher crime rates, increased justice system effectiveness, deinstitutionalization of the mentally ill, new and tightened criminalizations, worsening criminal offender histories, and more. While this Article makes no attempt at statistical precision, these non-sentencing factors can easily ex- plain most of America's elevated incarceration compared to the 1960s -a fact in direct conflict with the mass incarceration narrative. Additionally, while some punishments have increased in severity since the 1960s, most of these increases are likely to be seen as moving sentences closer to what the community, and many incarceration reformers, would believe is appropriate 1 Colin S. Diver Professor of Law, University of Pennsylvania. The authors wish to express their deep appreciation to Sarah M. Robinson for substantial assistance and to Paul Heaton for his useful criticisms. 2 Bachelor of Arts in Philosophy, Politics, and Economics, 2022, and Master of Science in Behavioral and Decision Sciences, 2023, University of Pennsylvania. JD candidate, University of Pennsylvania Carey Law School Class of 2027. 1

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