Unfair (70 page)

But that is not the case either:
Liptak, “Inmate Count in U.S. Dwarfs Other Nations'.” With respect to the United States, it is worth noting that all the states that cut their imprisonment rates in recent years also experienced a decline in their levels of crime just like states that increased their imprisonment rates. PEW Center on the States,
State of Recidivism
, 5.

And although the top thirty-five:
PEW Charitable Trusts,
Collateral Costs: Incarceration's Effect on Economic Mobility
(Washington, DC: PEW Charitable Trusts, 2010),
http://www.pewtrusts.org/​~/media/legacy​/uploadedfiles/pcs_assets​/2010/CollateralCosts1pdf​.pdf
, 7.

Second, these statistics often omit:
Glazek, “Raise the Crime Rate.”

Indeed, some scholars and journalists:
Glazek, “Raise the Crime Rate.”

Prisons are rife with drug dealing:
Glazek, “Raise the Crime Rate.”

This problem has long plagued:
National Research Council,
Deterrence and the Death Penalty
, ed. Daniel S. Nagin and John V. Pepper (Washington, DC: The National Academies Press, 2012), 1.

When the Supreme Court reinstated:
Gregg v. Georgia, 428 U.S. 153 (1976); National Research Council,
Deterrence and the Death Penalty
, 1; “The Myth of Deterrence,”
New York Times
, April 27, 2012,
http://www.nytimes.com/​2012/04/28/opinion/the​-myth-of-deterrence.html
.

A number of empirical studies since then:
National Research Council,
Deterrence and the Death Penalty
, 1.

But when the National Research Council:
National Research Council,
Deterrence and the Death Penalty
, 3.

For proof of deterrence, you really need:
As the Council explained, “there is no way to determine what would have occurred if a given state had a different sanction regime”: “the outcomes of counterfactual sanction policies are unobservable.” National Research Council,
Deterrence and the Death Penalty
, 7.

Instead of trying to find the answer by:
Chemerinsky, “Cruel and Unusual,” 1–2.

The idea was that a repeat offender:
The legislation was also justified on incapacitation grounds. Ewing v. California, 538 U.S. 11, 24–28 (2003).

Understanding the law is the starting point:
Robinson and Darley, “The Role of Deterrence,” 989.

Here, Leandro needed to know:
Chemerinsky, “Cruel and Unusual,” 2.

And although two counts of such:
Chemerinsky, “Cruel and Unusual,” 2–3.

In essence, Leandro needed to know:
Chemerinsky, “Cruel and Unusual,” 2–3.

To conduct a true cost-benefit analysis:
Robinson and Darley, “The Role of Deterrence,” 977.

Even those of us who don't:
Robinson and Darley, “The Role of Deterrence,” 955–56.

Add in optimism bias:
Robinson and Darley, “The Role of Deterrence,” 992–93.

In a stunning finding:
Kimberlee Weaver, Stephen M. Garcia, and Norbert Schwarz, “The Presenter's Paradox,”
Journal of Consumer Research
39 (2012): 450–51.

So, a legislature may aim to:
Weaver, Garcia, and Schwarz, “The Presenter's Paradox,” 456. Interestingly, when individuals take on the role of a legislator selecting penalties in order to deter crime, they adopt the logical position that adding consequences is likely to decrease the likelihood of people to break the law. Weaver, Garcia, and Schwarz, “The Presenter's Paradox,” 450–51. To best decrease littering, for instance, they select a $750 fine and two hours of
community service over simply a $750 fine. Weaver, Garcia, and Schwarz, “The Presenter's Paradox,” 450–51.

It doesn't help that none of us:
Robinson and Darley, “The Role of Deterrence,” 978.

And even if we could foresee:
Robinson and Darley, “The Role of Deterrence,” 954–55.

Indeed, the experience of imprisonment:
Robinson and Darley, “The Role of Deterrence,” 954–55.

This means that ten years:
Robinson and Darley, “The Role of Deterrence,” 954–55.

Many life changes:
Robinson and Darley, “The Role of Deterrence,” 954–55.

As Ellis Boyd “Red” Redding:
Shawshank Redemption
, directed by Frank Darabont (Burbank, CA: Warner Brothers Pictures, 1994); “The Shawshank Redemption (1994): Quotes,” Internet Movie Database, accessed May 24, 2014,
http://www​.imdb.com/​title/​tt0111161/quotes?item=qt0470719
.

The fact that people get “institutionalized”:
“Five Things About Deterrence,” National Institute of Justice, September 12, 2014,
http://nij.gov/​five-things/Pages/deterrence​.aspx?utm_source​=eblast-govdelivery&utm_medium​=eblast&utm_campaign=five+things-deterrence
.

Deterrence works when potential offenders:
“Five Things About Deterrence”; Daniel S. Nagin, “Deterrence in the 21st Century: A Review of the Evidence,” in
Crime and Justice: An Annual Review of Research
, ed. Michael Tonry (Chicago: University of Chicago Press, 2013), 1; Robinson and Darley, “The Role of Deterrence,” 954–55; Angela Hawken and Mark Kleiman,
Managing Drug Involved Probationers with Swift and Certain Sanctions: Evaluating Hawaii's Hope
(Washington, DC: National Criminal Justice Reference Services, 2009), 9.

Our system, by contrast:
Robinson and Darley, “The Role of Deterrence,” 954–55.

In the United States, only 40.3 percent:
Federal Bureau of Investigation, “Offenses Cleared,” in
Uniform Crime Report: Crime in the United States
, 2010 (Washington, DC: U.S. Department of Justice, Federal Bureau of Investigation, 2011), 2,
http://www.fbi.gov/​about-us/cjis​/ucr/crime-in-the-u.s​/2010/crime-in-the-u.s.-2010/clearancetopic.pdf
.

That's a real problem, given that:
“Five Things About Deterrence.”

It doesn't help that conviction rates:
“FAQ Detail: What is the Probability of Conviction for Felony Defendants?,” Bureau of Justice Statistics, accessed May 25, 2014,
http://www.bjs.gov/​index.cfm?ty​=qa&iid=403
.

The death penalty is a prime example:
Lawrence Katz, Steven D. Levitt, and Ellen Shustorovich, “Prison Conditions, Capital Punishment, and Deterrence,”
American Law and Economics Review
5 (2003): 319.

In Brooklyn, the average wait time:
William Glaberson, “For 3 Years After Killing, Evidence Fades as a Suspect Sits in Jail,”
New York Times
, April 15, 2013,
http://www.nytimes.com/​2013/04/16​/nyregion/​justice-denied-after​-a-murder-in-the-bronx-a-sentence-to-wait.html
.

Some cases take three:
Glaberson, “Evidence Fades as a Suspect Sits in Jail.”

Even when punishment is certain:
Robinson and Darley, “The Role of Deterrence,” 994.

If we really wanted to deter crime:
Nagin, “Deterrence in the 21st Century,” 3.

We are almost always better served:
Nagin, “Deterrence in the 21st Century,” 3; “Five Things About Deterrence.”

A punishment needs to be distasteful:
“Five Things About Deterrence.”

That's true both for deterring:
Nagin, “Deterrence in the 21st Century,” 3; “Five Things About Deterrence.”

The added benefit of brevity is:
For a nice review of the scientific literature, see Part I of Ehud Guttel and Doron Teichman, “Criminal Sanctions in the Defense of the Innocent,”
Michigan Law Review
110 (2012): 601–07.

The few judicial systems that have:
Hawken and Kleiman,
Managing Drug Involved Probationers
, 9.

For many years, probation violations were:
Hawken and Kleiman,
Managing Drug Involved Probationers
, 6.

But in 2004 the state launched:
Hawken and Kleiman,
Managing Drug Involved Probationers
, 6.

In Hawaii's Opportunity Probation:
National Institute of Justice, “Program Profile: Hawaii Opportunity Probation with Enforcement (HOPE),” accessed May 25, 2014,
http://www.​crimesolutions.gov/​ProgramDetails.aspx​?ID=49
; Friends of HOPE, “Hope—Hawaii's Opportunity Probation with Enforcement,” accessed May 25, 2014,
http://hopehawaii.net/​index.html
; Hawaii State Judiciary, “HOPE Probation,” accessed May 25, 2014,
http://www.courts.state.hi.us/​special_projects​/hope/about_hope_probation.html
; Hawken and Kleiman,
Managing Drug Involved Probationers
; “A New Probation Program in Hawaii Beats the Statistics: Transcript,”
PBS
, February 2, 2014, originally broadcast on November 24, 2013,
http://www.pbs.org/​newshour/bb/​law-july-dec13-hawaiihope_11-24/
.

Every morning they have to call:
“Program Profile: Hawaii Opportunity Probation with Enforcement (HOPE).”

If they test positive:
“Program Profile: Hawaii Opportunity Probation with Enforcement (HOPE).” If substance-abusing probationers fail to appear for a drug test, a bench warrant is
immediately written up for their immediate arrest. “Program Profile: Hawaii Opportunity Probation with Enforcement (HOPE).”

The results have been impressive:
Hawken and Kleiman,
Managing Drug Involved Probationers
, 64.

Seventeen states have now adopted:
“A New Probation Program in Hawaii Beats the Statistics: Transcript.”

You'd imagine that taking a bunch:
Gawande, “Hellhole.”

But the truth is that our prison:
There is no data to show that supermax prisons actually decrease violence and rule breaking inside prisons. Chad S. Briggs, Jody L. Sundt, and Thomas C. Castellano, “The Effect of Supermaximum Security Prisons on Aggregate Levels of Institutional Violence,”
Criminology
41 (2003): 1341; Gawande, “Hellhole.”

The influx of inmates:
Gawande, “Hellhole.”

Pack people in and give them:
Gawande, “Hellhole.”

When the U.S. attorney in Manhattan:
United States Attorney, Southern District of New York,
CRIPA Investigation of the New York City Department of Correction Jails on Rikers Island
(New York: U.S. Department of Justice, 2014), 3.

Although the average daily adolescent:
United States Attorney, SDNY,
CRIPA Investigation
, 6, 9.

Harsh abuse by staff:
United States Attorney, SDNY,
CRIPA Investigation
, 8.

And many of the resulting injuries:
United States Attorney, SDNY,
CRIPA Investigation
, 3.

Conditions were so bad that:
United States Attorney, SDNY,
CRIPA Investigation
, 8.

In Georgia between 2010 and 2014:
Southern Center for Human Rights,
The Crisis of Violence in Georgia's Prisons
(Atlanta, GA: Southern Center for Human Rights, 2014), 7.

This year, 13.5 million people:
Gibbons and de B. Katzenbach,
Confronting Confinement
, 11; Subramanian and Shames,
Sentencing and Prison Practices
, 19.

Inmates in long-term isolation:
Gawande, “Hellhole.”

Many inmates acquire drug habits:
Many previously unaffiliated individuals join gangs in order to gain protection from violence within the prison.

And the lone criminal may gain:
There is evidence that inmates may learn how to be more effective criminals in prison. “Five Things About Deterrence.”

Those kept in solitary usually:
Keim, “Solitary Confinement.”

It should come as no surprise:
Gibbons and de B. Katzenbach,
Confronting Confinement
, 54; Gawande, “Hellhole”; “The Abuse of Solitary Confinement.” It is worth noting that one study of several hundred supermax inmates showed that solitary confinement did not appear to increase the likelihood of recidivism beyond the effect of spending time in general lockup. Jesenia M. Pizarro, Kristen M. Zgoba, and Sabrina Haugebrook, “Supermax and Recidivism: An Examination of the Recidivism Covariates Among a Sample of Supermax Ex-Inmates,”
Prison Journal
94 (2014): 193–96. More research is needed, however, to assess whether this dynamic is present across jurisdictions and to understand it. If the findings hold up, one explanation may be that although solitary confinement promotes psychological problems linked to recidivism, it also hinders the ability of offenders to maintain and develop ties to criminal networks while locked up, such that those in the general prison population are socially better positioned to reoffend upon release.

This is one of the reasons that:
Gibbons and de B. Katzenbach,
Confronting Confinement
, 54; Gawande, “Hellhole.”