By: Amanda Jarrett

 

Abstract

​In this paper there will be a review of incarceration literature that observes the rates of incarceration in the United States, an analysis of data that focuses on the rates between 1982 and 2017, and a review of a policy as well as a policy suggestion. Due to Conyers and Heiner’s articles, there was a decision made to just focus on incarceration in the United States since the country has the highest rates in the world. This led to an investigation into the different reasons for incarceration. Miethe discusses the civilization theory which assumes that civilized states have lower rates of incarceration, which is not the case for the United States. High racial diversity, socioeconomic inequality, development and the War on Drugs may be the main influencers on incarceration rates in the United States. For this research, there will be a focus on the War on Drugs and the evolving policies regarding specific drugs within the past 36 years, more specifically within the past decade.

Research Question: How has the War on Drugs affected incarceration rates in the United States?

Hypothesis: If more states legalize marijuana, then incarceration rates due to drug-related offenses will decrease.

Null Hypothesis: If more states legalize marijuana, then incarceration rates due to drug-related offenses will not decrease.

Background

For a large portion of the United States history there has been little drug regulation. For example, during the 19th century it was common for cocaine to be prescribed by doctors as a type of treatment for pain. During the early 20th century the federal government began to take regulatory measures in order to begin to control drug use. The Harrison Act of 1914 and the Marihuana Act of 1937 were implemented to impose taxation on cocaine, opium and marijuana. In reality, the MTA was an unofficial ban on marijuana; rarely-issued high-cost transfer tax stamps were necessary when selling marijuana. Quickly following the MTA all states declared that the possession of marijuana was illegal. During the mid-20th century, Congress began passing legislation that increased drug users’ punishment. Certain drug offenses resulted in mandatory prison sentences due to the Boggs Act of 1951.

During the 1960s the federal government exhibited an interest in funding the medical research and treatment behind drug use as illustrated in the Narcotic Addiction Rehabilitation Act of 1966. Simultaneously, Congress shifted their method of control of drugs from taxation to focusing more on law enforcement. This was compounded by a much more dramatic shift towards law enforcement and punishment when Nixon took office in 1969. Nixon’s policies addressed national drug use as well as international drugs such as opium production in Turkey. The Comprehensive Drug Abuse Prevention and Control Act of 1970 gave jurisdiction of the control of certain drugs to the federal government. The Controlled Substances Act, Title II of the CDAPCA, established the framework in which the government regulates the production, possession and distribution of controlled substances. The legal framework of the CSA still remains in effect today.

The Drug Enforcement Administration, established in 1973, enforces the CSA. The agency was substantially funded under the Nixon administration and continued to grow under Reagan during the 1980s. The number of federal drug offenses increased rapidly during this time period as people were convicted of possession, trafficking, importation and distribution. The Comprehensive Crime Control Act of 1984 enhanced the penalties for CSA violations as well as granted the Attorney General more powers regarding enforcement. The Anti-Drug Abuse Acts of 1986 and 1988 established mandatory minimum penalties for certain drug trafficking offenses, largely focused on cocaine.

However, within the past decade the United States has experienced a gradual shift in the opposing direction of drug policy. Comparative to the War on Drug era, drug policy during the Obama Administration focused on enforcement as well as prevention and treatment. The Obama Administration implemented a health and public safety approach to reducing drug use, though a large sum of the budget still goes to enforcement.

In regards to incarceration rates, the data shows that the rates within the United States have increased since 1980, up until the past decade. The unit of measurement is number in prison or local jail per 100,000 U.S. residents of all ages and a measurement based on year. This rate per 100,000 is a useful form of measurement so that the growing population in the U.S. does not influence the data.

Literature Review

In Conyers’ piece, entitled “The Incarceration Explosion,” there was a comparison of the United States and other countries for their rates of incarceration, which showed that the United States had the highest in the world. Over the past 40 years, the number of imprisoned peoples has increased from 300,000 to over 2 million. In 2011, the United States had over 700 people in prison per 100,000 people, whereas other developed countries such as Germany (85), France (96), and Canada (117) had comparatively lesser incarcerated peoples. Rwanda is the only country that comes close with 595 at the this article was written. This article then reviews the differences experienced in minority communities as compared to white communities.

Heiner, in his article “The Growth of Incarceration in The Netherlands,” dives into the policies of the Netherlands and their limited laws on drugs, prostitution, and other illegal activities. With its geographical location and Western association, one would expect it to be a place of law crime and incarceration rates. The reality reflects the opposite, which can be backed by data collected by the Dutch government. Netherland’s incarceration rates have actually been increasing. While its rate of incarceration remains far below the America’s rate, the late 1990s and early 2000s saw a spike in the growth rate of their incarceration rate, even surpassing the rate in America. In addition, this article provides an interesting critique on the opinion that American drug policy is at fault for mass incarceration.

Both Mahmood and Turney discuss the social consequences of mass incarceration. They both state that incarceration rates for minorities such as blacks and women are much higher than white men. Turney also explains that there is a secondary prisonization that is experienced by the community and family of the people imprisoned. Turney also agrees that a spurious outcome of paternal incarceration may be government distrust by the person imprisoned and their family. Mahmood states that the rates of female incarceration has been growing faster than that of men. In addition, he discusses that there seems to be an “interdependence and symbiotic reinforcement between U.S.-led global capitalism, militarism, and the international growth of the prison-industrial complex” (31). Additionally, Reynolds discusses how the war on drugs, globalization and prison building have all lead to the rise of imprisonment of women in countries like the United States. Reynolds examines the social consequences that the War on Drugs has had on women, especially in the cases of women of color, their children, and communities.

In Blumstein and Beck’s article “Population Growth in U.S prisons, 1980-1996,” they discuss how the incarceration rates in the United States have increase over 200 percent. They state that the main cause for the escalation is due to an impressive increase in drug offenders. In the same timeframe, the number of drug offenders in US prisons grew by a factor of 10. While there was a pretty uniform increase in violent crimes, the rate of incarceration of drug offenders grew from 15 per 100,000 people to 148 per 100,000 people.

Moore’s article “Who’s Using and Who’s Doing Time: Incarceration, the War on Drugs, and Public Health” states the Nixon’s War on Drugs has resulted in more courts, jails, and prisons and has not actually decreased the drug use. The article addresses the concept of “clean streets” which states that high incarceration rates are actually a good thing because it has keep drug users off the streets. It also addresses the negative effects on communities that are labelled as “drug areas,” which inherently is negatively affects minority communities. Moore also considers how public health can be used to create a support network for incarcerated individuals as well as helping to shift the political climate.

​The next article, “Social Conditions and Cross-National Imprisonment Rates: Using Set-Theoretic Methods for Theory Testing and Identifying Deviant Cases” by Miethe, discusses causal factors of imprisonment such as levels of development, criminality, socioeconomic inequality, and political volatility. Miethe references Elias’s civilization theory stating that the more civilized a nation is the rates of punishment and incarceration decreases. Though, high rates may be due to development and the use of imprisonment produces institutionalized means to reestablish the status quo within the state. In addition, economic marginalization leads to higher criminal motives as well as political oppression.

Lastly, ​D’Amico’s article, “An Empirical Explanation of Institutions and Cross-Country Incarceration Rates,” addresses why some countries incarcerate more people than other countries. There is a discussion of the relationships between economic and legal institutions to the levels of incarceration. There seems to be no evidence towards a correlation between the level of democracy a country has and high incarceration rates. Though, there is a discussion that if markets are freer than there are more job opportunities which would lead to a higher living standard and thus reducing the incentives for criminality. In addition, states that practice common law over civil law have a higher incarceration rate.

Analysis

Upon looking at national incarceration rates, we found a decrease in the number of federal prisoners since the late 2000s (Appendix, Graph 1), the era in which marijuana began being legalized for medical use in states around the country. This was followed by recreational use being legalized by several states beginning in 2012 with Colorado and Washington. To see if this reduction had any relation to the new drug policies being enacted, we narrowed down our search to Colorado, which provides a good example to look at due to data being readily available from all periods of marijuana legalization – none, only medicinal marijuana, and full legalization.

Table 1 (Appendix) shows the number of drug-related arrests per 100,000 people in Colorado since 2010. There is a sharp decline following legalization of marijuana in 2012, from over 307 to approximately 235. Despite this initial reaction, every year since has seen an increase in drug-related offenses, up to near pre-legalization levels—about 296 in 2017. While the peak was found in 2005 at 423.67, the fact that drug-related offenses have begun rising again is a troubling development; the idea of legalizing marijuana was to stop over-incarcerating people for using a drug that has relatively fewer negative effects on health as compared to more harmful drugs like heroin and cocaine. If drug offenses are on the rise again, it must be due to other drugs, including misused prescription drugs. The opioid crisis undoubtedly has played into the rise in drug-related offenses due to other drugs and synthetic drugs seen in Table 2 (Appendix).

Interestingly, while Graph 2 (Appendix) shows that drug-related offenses have been increasing since the initial introduction of legalized marijuana, the data also show that an increase in marijuana offenses does not lead to an increase in heroin and cocaine offenses. Many have made the argument that marijuana acts as a gateway drug that leads into harder forms of drugs, and if this were true, we would see a strong, positive correlation between marijuana offenses and heroin/cocaine offenses; however, we see that there is no strong correlation between the two (Appendix, Regression 1). Instead, Graph 3 (Appendix) shows that the two tend to move in opposite directions of each other—as marijuana offenses go up, heroin and cocaine offenses tend to go down.

Due to lack of drug usage data, we had to use this federal offense dataset in order to assume drug usage. Having established this relationship between marijuana usage and heroin/cocaine usage, we can see that an increase in per capita drug offenses in Colorado would likely not be due to any harmful drugs such as heroin or cocaine. The more likely option, as shown by the data, are other forms of drugs, such as prescription drugs. That being said, marijuana legalization does not appear to be having any unintended side effects as far as increasing the commonality of hard drugs like heroin and cocaine.

Policy Evaluation and Recommendation

Given the analysis above and the existing literature that shows the medicinal purposes of marijuana, full medical marijuana legalization should be implemented on a national level. The data show that, following legalization, there is little risk of other hard drugs entering the picture on a large scale. With no risk of harder drugs entering the scene, the legalization of recreational marijuana would also serve to decrease incarceration rates, as nearly 45% of all federal prisoners have been incarcerated for drug-related offenses, with the large plurality of these being related to marijuana. With the risk of legalization having been addressed, we can fully recommend legalization of marijuana as a remedy for mass incarceration. While there has been a recent decline in incarceration on a national scale, expanding this legalization policy would improve the gains reaped from it. For a drug that does not heavily impair its users over the long-term, marijuana usage has been over-punished for too many years.

Numerous policies were implemented throughout the 1970’s, 1980’s, 1990’s and into the 2000s that largely correspond with the sentencing and punishment of those committing drug-based offenses. Of the many varying policies during the War on Drug era the mandatory minimum sentencing policies at the state and federal level had the most impact on the incarceration rate of the United States (Western and Redburn, 2014). An example of minimum sentencing policy implemented by the federal government was the Anti-Drug Abuse Act, which primarily targeted cocaine but other drugs as well (Walker and Mezuk, 2018).

The consequences of these mandatory minimum sentencing policies resulted in incredibly high rates of prison populations at this time and moving forward. This resulted in higher funds needed for prisons, which ultimately took away funds from education, health (Western and Redburn, 2014). Further, the intended result of the mandatory minimum sentencing laws was to reduce drug based offenses. However, there has been no such results; The Anti-Drug Abuse Act implemented harsher punishments for those using crack there has been no decrease in usage(Walker and Mezuk, 2018). Mandatory minimum sentencing laws also give the power of sentencing to prosecutors instead of a judge and often result in overly severe punishments. Further, there are large disparities of punishment considering those who are able to circumvent the mandatory sentences and those who are not (Western and Redburn, 2014).

Overall, these laws did not carry out their given purpose. Of any crime sentenced under mandatory minimum sentencing laws were not found to decrease (Western and Redburn, 2014). A recommended approach that would be more beneficial would to enact policies that support rehabilitation for non-violent drug offenses. Further, presumptive sentencing policies should be implemented which provides a baseline sentence for a judge to utilize and adjust to. Presumptive sentencing has been proven to be more consistent and the judge must consider the individual characteristics of different cases. These sentences also reduce disparities regarding fair sentencing including racial disparities.  

Appendix

Source: Bureau of Justice Statistics

Table 1 – Drug-Related Offenses per 100,000 people in Colorado

2010

2011

2012

2013

2014

2015

2016

2017

302.85

295.1

307.38

234.72

250.11

264.77

266.97

295.84

Source: FBI Uniform Crime Reporting

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