Is the United States the incarceration nation? If we examine only imprisonment rates—the number of prisoners per capita at a given point in time—then an affirmative answer has at least superficial appeal. The imprisonment rate of the United States (as of 2017) was 440 sentenced prisoners for every 100,000 inhabitants.[1] This is about four times the rate in Europe.

But imprisonment rates are only part of the picture. They say nothing about the reasons for our high levels of incarceration. We can’t tell if we over-incarcerate without looking at crime and punishment in more detail.

If our rates are excessive it must be due to one of two causes, or some mix of both. Either we are locking up too many people or we are keeping them behind bars too long. As I will demonstrate, neither of these claims holds up to close scrutiny.

We Don’t Lock Up Too Many

If we consider the reasons for imprisonment it quickly becomes clear that we aren’t incarcerating too many people. First off, a majority of inmates in state prisons—55 percent—are serving time for serious violent crimes, including murder, rape and assault.[2] Even if their punishments did not deter other offenders, perpetrators of such acts of violence would deserve lengthy incarceration on retributive grounds alone.

The remaining crimes of state prison inmates may not be violent, but they are serious and the perpetrators often have long records of other grave offenses.[3] A recent study found that a staggering 83 percent of released prisoners were rearrested within nine years of discharge. Most people would agree that incorrigibility is a sound basis for imposing longer-than-usual sentences, which, as I’ll explain, raises incarceration rates.

Though it doesn’t by itself justify imprisoning the 1.5 million currently behind bars it should be kept in mind that many offenders go unpunished. This includes those who commit an estimated 3.3 million unreported offenses a year as well as thousands of reported crimes that the police never solve, including 86 percent of burglaries, 70 percent of robberies, and 67 percent of rapes. Our incarceration rates would be even higher if more serious offenders were caught and punished.

Of course, there are and always will be isolated miscarriages of justice, or a small percentage of sentences that cannot be justified on grounds of incapacitation, deterrence or retribution. However, ordering our criminal justice system around outliers will make bad policy, especially since the overwhelming majority of inmates are guilty of serious crimes that pose significant risks to the American public. While a case for locking up more such offenders could be made (see above), the argument for a dramatic downscaling of our sentencing policies will have to address the realities of imprisonment.

We Don’t Overpunish

The second contention of the incarceration critics is that we are imposing too much punishment. To stake out this claim they cite the lengthy sentences imposed. But sentences are misleading because few inmates—only 20 percent—serve full terms and many convicted defendants are given no-incarceration sentences. In fact, 30 percent of all convicted felons and 22 percent of violent offenders are released without spending a single day in prison.

For those offenders who are imprisoned we need to examine the time actually served, not sentences, to properly gauge the extent of their punishment. It may surprise you to learn that on average, released prisoners serve only 2.6 years and the median time served is a mere one year and four months.[4]

Time Served in State Prison by Offense (in Years)

Offense Median Mean Homicide 13.4 15 Rape/sexual assault 4.2 6.2 Robbery 3.2 4.7 Burglary 1.4 2.2 Assault 1.4 2.5 Drugs 1.2 1.8

U.S. Bureau of Justice Statistics, Time Served in State Prison, 2016.

As one would expect, murderers serve far and away the most time, followed by rapists. In the last twenty years these two crimes have seen significant increases in prison time. But punishments for the other offenses in the table have not risen over the last seven decades. Take robbery and assault, for example. In 1953 and 1964 robbers served a median three years for their crimes—virtually the same penalty received in 2016. Likewise, those convicted of assault served a median 2 1/4 years in 1964, over ten months more than the 2016 punishment. [5]

In other words, except for rape and murder, actual time behind bars is in line with historical practice in the United States. And one can argue that with the decline in the use of the death penalty, the punishment for murderers has become more lenient, not less.

If the current level of punishments will not seem overly harsh to Americans they well might to Europeans, where prison terms are far shorter. As the next table shows, the time-served averages for countries comparable to the United States, except for homicide, are roughly half of ours.

Average Time Served (in Months), by Country and Crime Type, 1980-1999

Country Homicide Rape Robbery Assault England & Wales 88.3 34.1 18 6.7 Sweden 86.9 15.4 15.2 3.1 Australia 120.3 50.9 36.2 23.1 Scotland 94.7 36.4 17.6 7 Canada 72.4 –– 25.9 27.9 Switzerland 46.2 25.1 20.5 10.1 Netherlands 69.2 15.8 12.1 4.9 Non-US Average 82.6 29.6 20.8 11.8 United States 113.6 59.8 41.6 23.4

Alfred Blumstein, Michael Tonry, and Asheley Van Ness, “Cross-national Measures of Punitiveness” Crime and Justice 33 (2005): 370.

The next section of this essay will explain why our punishments are harsher than those of comparable nations.

American Exceptionalism

We in the United States have some very compelling reasons for keeping people in prison—based on circumstances that simply don’t exist in other countries. When we factor in these considerations, the United States doesn’t look nearly as punitive.

Three key influences on American incarceration rates are recidivism, guns, and murder. These factors generate longer sentences, which in turn raise rates. The longer prisoners serve (all other things equal) the higher are incarceration rates over time. This is because rates are an annual snapshot of the number of inmates (after taking account of discharges and new entries during the year), and long-term inmates add to the total prisoner count each year until they are released.

Recidivism

Repeat offending is a fact of life with criminals, and the United States had a massive increase in offenders between the 1970s and the 1990s. From 1960 to 1990, violent crime in this country increased 353 percent—perhaps the biggest sustained increase in the nation’s history. This led to a huge numbers of arrests, convictions and incarcerations, especially once the criminal justice system was toughened up. Over this same time period, arrests rose fourfold and prison commitments increased 350 percent.[6]

During this high-crime period, defendants repeated their crimes many times, both before they were imprisoned and after their release. Once caught and convicted these repeaters naturally received longer sentences than mere first-offenders, thus boosting imprisonment rates. Consider state prisoners released in 1983: Before their stint in prison they had been arrested for 1.3 million crimes. Once let out, 63 percent were arrested for new crimes within three years of release. For prisoners freed in 1994 there had been 4.1 million arrests before imprisonment with 68 percent rearrested within three years of release. In 2005, same story: 83 percent rearrested within nine years of discharge, accounting for nearly two million arrests.[7]

As one would expect, hundreds of thousands of ex-prisoners and probationers were re-incarcerated due to new crimes. In some states in recent years, two-thirds of prison admissions were parole or probation violators. The latest data (for 2017) reveals that over 174,000 probationers and parolees failed to comply with the requirements of release in a single year and were remanded to prison. (The figure would be roughly double if we counted release failures returned to jails as well as prisons.) Some of these violations were technical and led to short sentences which don’t add much to imprisonment rates. But many were new crimes and these repeat offenses generated much longer sentences than comparable crimes by first-offenders. Aside from the seriousness of the crime, nothing affects sentencing severity more than the criminal history of the defendant.[8]

The post-60s crime tsunami led several states to adopt or beef up their repeat offender laws, which increased sentences for recidivating defendants. The objectives were mixed: incapacitating dangerous repeaters, deterring others from committing crimes, and suitably punishing incorrigibles. Regardless of the legislative intent, the result was to raise incarceration rates.

Probably the best known of these laws is California’s Three Strikes statute, adopted in 1994 (and recently scaled back). Under this law a defendant’s second strike—a felony conviction preceded by one previous serious or violent felony conviction—resulted in a doubling of the sentence for the second crime (which, before the latest scaleback in the law, didn’t have to be serious or violent). If a convicted felon had two or more serious or violent felony convictions on his record the sentence for the third felony would be life imprisonment with a minimum term of 25 years.

A report on the Three Strikes law concluded that it had “a major effect on the make-up of the prison population” in California. From the law’s enactment in 1994 to the end of 2004 the state courts sent over 80,000 second strikers and 7,500 third strikers to prison. By December 2004, nearly 43,000 inmates were serving time under Three Strikes, approximately 26 percent of the total prison population.[9]

Brown and Jolivette (Legislative Analyst’s Office), “A Primer: Three Strikes – The Impact After More Than a Decade.”

Had there been no Three Strikes law, these offenders would have served much shorter sentences and presumably California’s incarceration rates would have been lower. Thus, by lengthening the terms of imprisonment, habitual offender laws raise incarceration rates.

Comparable countries—Western Europe, Canada and Australia—had far lower crime rates than the United States before the 1990s, far fewer offenders, and therefore way fewer recidivists. For homicides, the most accurate crime measure, we can see that U.S. crime rates were many multiples of those of the comparable countries.

Decadal average homicide rates per 100,000

UK Holland France Germany Italy Spain Sweden Canada Australia US 1970s 0.9 0.7 0.9 1.2 1.5 0.6 1.1 2.4 1.8 9.4 1980s 1.1 0.9 1.1 1.2 1.8 1 1.3 2.2 2 9.1 1990s 1.2 1.2 1 1.1 2.7 0.9 1.2 1.8 1.8 8.6 Average 1.1 0.9 1 1.2 2 0.8 1.2 2.1 1.9 9

Jan Luiten van Zanden, et al. (eds.), How Was Life?: Global Well-Being Since 1820 (Paris: OECD Publishing, 2014), 150.

The United States average for these three decades is 9 homicides for every 100,000 of the population, which is 660 percent of the average for the comparable countries. As for violent crime in general and property crime, we find that rates were dramatically higher in the United States prior to the 1990s, but that Europe surpassed the U.S. once crime plummeted here.[10]

Data on European recidivism is spotty, but judging by those who are returned to prison—roughly half of those released—the percentages seem comparable to those in the United States. Nevertheless, the radically higher crime rates in the United States before the 1990s would have produced many more prisoners and many more repeat prisoners. The upshot is that recidivism helped make our incarceration rates significantly higher than those of the comparable countries.[11]

Gun Crimes and Murder

The second reason for higher incarceration rates in the United States is the widespread use of guns in crimes. Sentences are lengthened for crimes committed with guns, which adds to incarceration rates. Such increases are justified by the fear that gun crimes create along with the dangers of victim death or serious injury.

Many increased penalties for gun crimes are hidden because they are built in to the definitions of the offenses themselves. Robbery laws are a good example. In New York State, for instance, first degree robbery, a “B” felony carrying a sentence of 5 to 25 years in prison, is defined as forcible stealing while armed with a deadly weapon or when displaying a loaded firearm capable of being fired. Robbery in the third degree by contrast, which does not involve a weapon, is a “D” felony which carries a lesser 2-7 year sentence.

In addition to the laws in which gun use is an element of the crime, forty-four states provided, starting in the 1970s, when crime began to soar, sentencing enhancements for felonies committed with deadly weapons. Most states added a one, two or three year mandatory sentence to the penalty for the underlying felony; a substantial number imposed a mandatory five years or more.[12]

Western Europe, Canada and Australia have far fewer guns and, compared with the United States, far fewer crimes committed with firearms. From 2000 to 2012 there were an estimated 1,500 gun homicides per year in all of Europe, around 20 percent of total homicides. For a comparable period there were nearly 12,000 annual gun homicides in the United States, eight times as many as Europe, and guns were responsible for 67 percent of all killings. In 1990, a peak year for murder here, the Western European firearm homicide rate was a mere 0.53 per 100,000. The United States rate was 5.57 per 100,000—ten and one-half times higher.[13]

Not only do we have enhanced penalties for firearm crimes, but the ready availability of guns in the United States helps keep our murder rates high. It is, quite simply, easier to kill people, and to kill more people, with a firearm than a knife or some other weapon requiring hand-to-hand struggle with the victim. This helps explain why the most recent FBI tally revealed that 73 percent of murders in the United States were carried out with firearms, almost seven times the number slain by knives.[14] Since, as we saw, murderers serve exceptionally long sentences—fifteen years on average—this also drives up incarceration rates.[15]

Conclusion

So, is the United States the incarceration nation? Compared to Europe, Canada and Australia the honest answer is “yes—but with good reason.”

[1] I will discuss prisons in this essay, not jails. The debate over incarceration in jails raises important issues, but addressing them would make this essay too long.

[2] State prisons house over 88 percent of all inmates. See U.S. Bureau of Justice Statistics, Prisoners in 2017 (2019).

[3] Eighteen percent are in for property crimes, including burglary and theft. Fifteen percent committed drug crimes, but only 3.5 percent of the drug sentences were for mere possession. The rest of the inmate population, 12 percent, is serving time for public order crimes, including illegal gun possession and drunk driving. Ibid.

[4] U.S. Bureau of Justice Statistics, Time Served in State Prison, 2016. By definition, half of all time-served amounts are higher than the median and half are lower. The median is preferred to the mean or average when the latter is skewed by high or low outliers, such as unusually long or short sentences.

[5] Margaret Werner Cahalan, Historical Corrections Statistics in the United States, 1850–1984 (1986), table 3-25.

[6] Barry Latzer, The Rise and Fall of Violent Crime in America (New York: Encounter Books, 2016), pp. 110-18.

[7] U.S. Bureau of Justice Statistics, “2018 Update on Prisoner Recidivism: A 9-Year Follow-up Period (2005-2014)” (2018); U.S. Bureau of Justice Statistics, “Recidivism of Prisoners Released in 1994” (2002); U.S. Bureau of Justice Statistics, “Recidivism of Prisoners Released in 1983” (1989).

[8] On failures returned to jails, see U.S. Department of Justice, Bureau of Justice Statistics, Prisoners in 2017 (2019), table 7. A Pew study found that 43.3 percent of prisoners released in 41 states in 2004 were returned to their cells within three years. Roughly half of these (21 percent) were for technical violations and half (22.3 percent) for new crimes. Pew Center on the States, State of Recidivism: The Revolving Door of America’s Prisons (Washington, DC: 2011). Finally, a study of convictions in large urban counties found that approximately half of violent offenders with no prior convictions were sentenced to prison, whereas around 70 percent of those with multiple priors received prison sentences. Among non-violent offenders with no priors around one-quarter were imprisoned, but approximately 55 percent of those with multiple prior felonies were sent to prison. U.S. Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2009 – Statistical Tables (2013), 32.

[9] Brian Brown and Greg Jolivette (The Legislative Analyst’s Office), “A Primer: Three Strikes – The Impact After More Than a Decade.”

[10] Paolo Buonanno, et al., “Crime in Europe and the United States: Dissecting the ‘Reversal of Misfortunes’,” Economic Policy 26, no. 67 (2011): 350-52. Europe in this study included Austria, France, Germany, Italy, the Netherlands, Spain and the UK.

[11] Ian O’Donnell, Eric B. Baumer, and Nicola Hughes, “Recidivism in the Republic of Ireland,” Criminology and Criminal Justice 8, no. 2 (2008): 123-46. While the Pew study, cited above, found a 43 percent re-imprisonment rate, other studies found rates as high as 51 percent and 52 percent. Ibid., table 2. Re-arrest rates are of course much higher than re-imprisonment rates. As noted above, 83 percent of released prisoners are re-arrested in the United States.

[12] Thomas B. Marvell and Carlisle E. Moody, “The Impact of Enhanced Prison Terms for Felonies Committed with Guns,” Criminology, no. 33, no. 2 (1995): 259-60. This study found that gun sentence enhancement laws did not increase prison admissions or prison populations, but it did not find that such laws did not increase sentences or time served.

[13] Nils Duquet and Maarten Van Alstein, Firearms and Violent Deaths in Europe: An Exploratory Analysis of the Linkages Between Gun Ownership, Firearms Legislation and Violent Death (Brussels, Belgium: Flemish Peace Institute, 2015), p. 25; Centers for Disease Control and Prevention, National Vital Statistics System, 2001-2012.

[14] FBI, Crime in the United States 2018, table 20.

[15] Fourteen percent of state prisoners were sentenced for murder/manslaughter, but these crimes accounted for only 2.3 percent of violent index crime arrests. U.S. Department of Justice, Bureau of Justice Statistics, Prisoners in 2017 (2019), 15; FBI, Crime in the United States 2018, table 29. This suggests that while murder does not occur frequently the long sentences imposed produce a high proportion of prison inmates.