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Incarceration as Incapacitation: An Intellectual History

Explaining the dramatic rise of incarceration in the United States has been surprisingly difficult. Theories abound, but they are continually defeated by the vastness and complexity of the American criminal justice system. For a time, the prime suspect was the War on Drugs, which President Obama described as “the real reason our prison population is so high.” Numerically, this never made sense, given that drug offenders are a small fraction of state prisoners.1 Mandatory minimums and three-strikes laws were tangible reforms that attracted a great deal of attention. But as causal explanations they, too, wither under scrutiny. “There’s not a lot of evidence that the amount of time spent in prison has changed that much,” as law professor John Pfaff recently observed.2 Even landmark pieces of federal legislation—think of the 1994 Violent Crime Control and Law Enforcement Act, which dogged Hillary Clinton during her 2016 campaign—probably had minor statistical impact.

For now, the vanguard theory is that criminal prosecutors, at some point in the late twentieth century, changed their behavior. “The primary driver of incarceration is increased prosecutorial toughness when it comes to charging people, not longer sentences,” Pfaff wrote.3 This idea, most fully developed by Pfaff and by the late Harvard professor William Stuntz, rests on data from the National Center on State Courts, which appear to show that even as crime (and arrests) declined between 1994 and 2008, the number of felony cases filed by prosecutors sharply increased. The incarceration rise was a three-decade phenomenon (roughly 1975–2005), and it is not clear how well the prosecutor behavior thesis explains the early years, where relevant data are weaker or nonexistent. But it remains the best explanation we have.

This theory has significant practical implications. It suggests that prison reformers have a daunting task ahead of them, because their efforts must be applied at the level of thousands of different coun­ties. This realization drew Stuntz’s attention to what economists call the agency problem, but in the context of county governance. In The Modern Corporation and Private Property (1932), Adolf Berle and Gardiner Means noted that the management of business corporations had become detached from the ownership of those corporations. Stuntz observed that American criminal justice “faces the same governance problem, but in worse form.”4 Since prosecutors are elected at the county level, suburbanization has given residents outside of cities—for whom crime is no longer a main concern—a great deal of power over urban criminal justice. These suburban voters are often indifferent to calls for reform, and the racial composition of this arrangement may explain some of the inertia.

The prosecutor behavior theory also invites a rethinking of much of the intellectual history behind shifts in U.S. crime policy. Typi­cally underemphasized in standard accounts is the fact that crime rates began soaring in the same decade (1960–1970) that saw the prison population decline by more than twenty-five thousand people. The United States, at the time, had a relatively lenient justice system. (It wasn’t Nixon or Reagan but Hannah Arendt who issued the complaint, fairly representative of the late 1960s, that “the odds in favor of the criminal are so high that the constant rise in criminal offenses seems only natural.”5) The conse­quence was a surge of populist anger: street crime became a nationwide political issue that simmered for over a generation. The incarceration boom, however, wasn’t entirely a reaction to popular sentiment. Muddying that explanation is a curious fact, puzzled over by Pfaff and others: the public became more punitive, but prosecutors and policymakers even more so. Both started thinking about prisons differently. To some unquantifiable degree, the intellectual history of the era contributed to penal expansion.

This is true despite the fact that criminologists tend to be pessimistic about their influence on public policy, even in comparison to other sociologists. A spelunker in the jstor archives will frequently come across titles like “Why Criminology Is Irrelevant” and hear complaints about “the limited influence of scientific knowledge on criminal justice policy.”6 This pessimism is easy to understand. In recent decades the most politically influential “crimi­nologists” tended to be interlopers and malcontents, and the two that loom the largest, perhaps, are Robert Martinson and James Q. Wilson. The first was a charismatic Freedom Rider who nearly destroyed the “rehabilitative ideal” or “treatment” ethos, eventually recanting his views before taking his own life. The second was the most eminent conservative political scientist of his generation, a man who helped construct what is now called “mass incarceration” out of the rubble of Martinson’s career.

Robert Martinson and the Rehabilitative Ideal

In the 1960s and early 1970s, a number of infamous social science “reports” not only polarized Left and Right but often widened divides between centrist liberals and the Far Left as well. Examples would include the 1965 Moynihan Report, a leaked Johnson admin­istration paper that warned about changes in African American family structure; the 1966 Coleman Report, a study commissioned by the U.S. Department of Education to scrutinize educational disparities between whites and blacks; and the 1967 Kerner Commission, an investigation into the causes of the Watts, Chicago, and Newark riots. Although the label is now mostly associated with foreign policy, it was in the heated controversies over these reports that the term neoconservative began to take on real meaning—referring to a small but influential group of Democrats who began to break ranks with their former political allies over the validity and interpretation of these studies.

What came to be known as the Martinson Report never attained the notoriety of the Moynihan Report. But its significance to crimi­nology was immense. The Martinson Report was earth-shaking insofar as it destabilized long-held assumptions at the core of the discipline. As the sociologist Nathan Glazer wrote in the early 1980s, looking over the previous decade, Martinson’s “scientifically” underwritten skepticism had become “the ground” upon which discussion of penal policy began. It cleared the way for hard-line alternatives.7

Martinson’s early years were distinguished by political activism more than academic achievement. Born in 1927, he spent his collegiate career at Berkeley, where he participated in a more outdoorsy, West Coast version of the famous “alcove” battles at the City College of New York between the anti-Stalinist and pro-Stalinist Left. He was a leading member of the Socialist Youth League, a Trotskyite group with Bohemian airs that pushed for the creation of a true labor party in the United States. In practice, though, Martinson focused his energy on exposing Communist front organizations, and detailing the horrors of Stalinism in countless letters and op-eds.8 Irving Krauss, who was president of the sociology graduate students association at the time, recalled that Martinson, “more than any other person, was responsible for destroying what Communist influence there was among the [Berkeley] students.”9

The Korean War interrupted his studies; then McCarthyism interrupted his Army service. The attorney general had placed the Socialist Youth League on a list of subversive organizations, and Martinson was brought before a military tribunal after disclosing his membership. He was a lowly private, but the trial was remarkably thorough. As he wrote to a friend, “They backed up this charge with a huge, five-pound secret file, containing . . . all the assiduous diggings of the FBI about my lurid past.”10 The outcome was a triumph of bureaucratic inscrutability. At first dismissed from the Army as an “undesirable,” he received a letter eighteen months later granting him an honorable discharge.

One of the trial exhibits was a 1949 article in Labor Action, which examined the “despotism” of the Soviet criminal code. Martinson lamented the passing of an earlier, more enlightened era in Soviet legal history:

[In the Russia of the 1920s] there was a serious attempt to carry out the principle that crime was not a natural result of the evil nature of man, but that it was the product of social conditions and contradictions. Crime could only be wiped out by wiping out the causes of crime. From this idea followed the principle of looking at a “criminal” as someone to be cured, not punished. Under ideal material conditions, criminals should be sent to hospitals, not jails.11

In the 1950s, the most bourgeois social scientist in America could have endorsed this set of principles. The twenty-two-year-old Mar­tinson was describing the conventional wisdom of his own country, what legal scholar Francis Allen dubbed “the rehabilitative ideal”: the notion that the purpose of penal sanctions should be “to effect changes in the characters, attitudes, and behavior of convicted of­fenders,” so as to strengthen the social defense against bad behav­ior and to contribute to the offenders’ own welfare.12 This ideal was exactly what Martinson would become famous for attacking.

The rehabilitative ideal reflected the “social modernist” orientation of mid-century liberalism, its belief that “a meliorist, rationalizing, benevolent, technocratic state” could use the social sciences as a navigational compass and solve most social and economic problems.13 Social modernism had many individual components, such as consensus history, modernization theory, and Keynesian economics. Famously, all of these intellectual formations ran into political resistance and technical limitations, sustaining “massive losses of confidence and corresponding erosions of morale” in the decade or so after 1965.14

Penal rehabilitation was another victim. In some ways its collapse was the most noteworthy, because it had been an epochal paradigm, not a transient intellectual fad. Unlike other aspects of social modernism, the rehabilitative ideal had been dominant for many decades. From the nineteenth century to the early 1970s, it marked the “enlightened” view of criminal justice, and reformers had endeavored, “with considerable success, to have it embodied in public policy.”15 Statements from the American delegation to the International Penitentiary Congress of 1872 through the Hoover administration’s Wickersham Commission (1931) exhibit a remarkable harmony of purpose. In Williams v. New York (1949), Justice Hugo Black authored the majority opinion for the Supreme Court, declaring that “[r]etribution of offenders is no longer the dominant objective of the criminal law.” Now, the rehabilitation of offenders was not just an important goal of criminal justice; it was nothing less than the “modern philosophy of penology.” Black concluded that, in practical terms, this meant punishment “should fit the offender and not merely the crime.”16

Reading through the statements of the rehabilitative ideal, one notes a recurring pattern beyond the assertion of the ideal itself. There is a tendency to acknowledge that—while the rehabilitation of criminals is the nominal goal—correctional institutions often fail to live up to this ideal, and instead have come to embody more callous tasks like simple punishment or the warehousing of criminals. The historian David Rothman’s analysis of “the decline from re­habilitation to custodianship” in nineteenth-century prisons sounds almost exactly like the Lyndon B. Johnson Crime Commission’s analysis of contemporary ones. For well over a century, the social science literature followed the same wearying pattern, in which criminal justice professionals loudly announce the goal of rehabilitation and develop institutions for its realization. The next generation, having seen that these institutions diverged from their founding ideals, deplores the gap between creed and practice in the American prison system and, once again, loudly announces the goal of re­habilitation, then develops new institutions and procedures for its realization. Few bodies of professional literature are as numbingly repetitious as penal science between 1870 and 1970.

Soon after 1970, though, the pattern abruptly stops. Not that prisoner rehabilitation efforts changed much in practice—genuine attempts at prisoner reform had always been sporadic and those efforts tended to lose their robustness quickly. But the ideal of rehabilitation largely faded from view. As Allen writes, the significance of the 1970s is the unprecedented degree to which the reha­bilitative ideal “suffered defections” not only from prison wardens, politicians, the media, and the public, “but also from scholars and professionals in criminology, penology, and the law.”17 The decline of the rehabilitative ideal was just that—the decline of a professional ideal.

One should not be misled by the starry-eyed connotations of the word “ideal.” The decline of an ideal can be an event of enormous practical significance. Even if American prisons only haphazardly offered therapeutic programs for inmates, the rehabilitative ideal nonetheless influenced the everyday reality of criminal justice, at least until the 1980s. It stimulated the creation of many noteworthy innovations: parole and probation, juvenile custody, mental insti­tutions, and systems of “indeterminate” sentencing. All of these innovations were at bottom what Marc Plattner called the “practical concomitant[s]” of the rehabilitative ideal.18 Even if they failed to work as intended, they may have served a limiting function, diverting offenders away from the cell block.

The Pincer Movement against Rehabilitation

Firsthand experience provoked Martinson to take up the study of prisons. Inspired by the example of Ed Blankenheim (one of the original thirteen Freedom Riders who lost several teeth to a howling mob), Martinson and his African American fiancée traveled to Jackson, Mississippi, in 1961 to defy laws on segregated seating. As he reported in a 1962 piece for the Nation, he spent nearly forty days locked up in state custody, including weeks in maximum security and several days in solitary confinement. Fore­shadowing the themes and conclusions of his later work, he wrote of his experience that “[it] is impossible to prepare anyone for the humiliating, brutal atmosphere of even the best prison. There are no rules, no precedents. The cell block—like Sartre’s No Exit—was a constant torment of argument, dogma, prayer and song.”19

Martinson conducted a two-year study of “Treatment Ideology and Correctional Bureaucracy” in California youth prisons for his doctoral thesis. Although he swathed his normally vivid prose in the suffocating blanket of academic argot, a growing cynicism is not hard to discern: “Is the bureaucratization of a complex of ‘total institutions’ within a post-adjudicatory system an ominous development? . . . What are the implications of the permeation of ‘people-changing’ ideologies into complex correctional organizations?”20 His thesis was like most: it promptly sank into obscurity. Google Scholar gives it a single citation. What made his career, and ultimately destroyed it, was Governor Nelson Rockefeller’s need to do something—or look like he was doing something—about skyrocketing levels of crime in New York.

In 1966, Rockefeller set up the Governor’s Special Committee on Criminal Offenders to deal with the problem of recidivism, or the tendency of ex-convicts to return to crime. “There is no more vital area in the war on crime,” Rockefeller told the New York County Lawyers’ Association. “For nearly seven out of every ten persons convicted of a crime in New York State have a prior arrest record. It follows that progress achieved in reducing . . . criminal repeaters will strike a counter-blow at the very heart of the crime problem.” For a liberal Republican of that era there was an obvious response: newer, better rehabilitative programs that would turn the prisoner toward a more useful way of life. Rockefeller, however, was honest about the glaring empirical problems at the heart of the enterprise. This was “a field where the facts and the statistics . . . are wholly inadequate and the techniques for evaluating current programs, approaches and institutions are ineffective.”21

The solution was a massive research project, an attempt to collect and analyze all available reports published in the English language on rehabilitative programs between 1945 and 1967. By necessity it was a team effort. The senior researcher Douglas Lipton compiled data for over two years before hiring Martinson as an analyst. (Lipton later recalled with exasperation how often he would hear about the “Martinson Report” at criminological gatherings. “It was never the Lipton Report,” he said. “It didn’t have the same majesty.”) Lipton recognized Martinson’s brilliance immediately, but over time he noticed something was off. “His behavior was strange. He would argue well beyond logic . . . to make points. We had to calm him down lots of times. . . . [He] jumped up on tables, [and he] threw chairs around.” Only after the end of the project did Lipton begin to suspect that Martinson might be manic-depressive.22

The Rockefeller Committee launched its research effort amid growing doubts about the rehabilitative function of prisons. Leftists and conservative hard-liners formed the left and right flanks of what was, in effect, a pincer movement. They attacked rehabilitation for contradictory reasons. Typically, the Right argued that it was an ineffective waste of resources, while the Left thought it was insidiously effective. The great object of rehabilitation was the “moral regeneration” of the inmate, but the Left at the time proudly rejected the moral values of the liberal center. Thus Jessica Mitford, the author of Kind and Usual Punishment (1973), located the true purpose of treatment in making disaffected “lower-class persons” conform to a “Christian middle-class ethic.” For Mitford, as for much of the Left, rehabilitative treatment was—“and ever shall be”—a mechanism for exerting control over the inmate population while “assuaging the public conscience” with compassionate-sound­ing talk about rejecting punishment in favor of rehabilitation. It was often the case, Mitford argued, that “dangerous” criminals in need of “reform” turned out to be “the political nonconformist, the mal­content, [or] the inmate leader of an ethnic group.” Concern for socialization and moral improvement, therefore, was an insidious cover for the biddings of power.

If this all sounds very Foucauldian, it is testimony to the fact that Discipline and Punish (1975) emerged out of a transatlantic intellectual milieu.23 When Michel Foucault published his now-famous work of quasi-history, radical critics of the American prison system had already aired many of its themes. The intellectual lineage, in fact, ran deep. As Robert Nisbet wrote in a classic 1977 essay on Alexis de Tocqueville:

That absolute power could go with social humanitarianism, could be rooted in the mass rather than an upper class, could be given extension and penetration by the very political agencies that had been created in the name of the people to cope with their problems; that totalitarianism could be understood best, not as a reversion to a dark past, but as a product, however corrupt, of democratic modernity—all of this [via Tocqueville] was new to American thinkers and, as I recall well, not immediately accepted.24

These ideas may not have been immediately accepted, but by the early 1970s they had diffused widely enough that one could find them in Weather Underground communiqués denouncing the treatment apparatus as an instrument of physical and psychological control. Martinson himself was influenced by such anti-institutional currents. “There are those who will push and preach for the prison to become a hospital,” he wrote. “[But] I would be less than frank if I were not were not to underline my personal rejection of the per­spective of the ‘transformation of man.’ The custody-treatment dimension functions to conceal from view the emergence of a new treatment-authoritarianism.”25

Like any effective social scientist, though, Martinson hitched his normative concerns to professional trends. By the mid-1960s, a “technological lid” had been lifted, and sophisticated statistical analyses were coming to dominate a social scientific literature that, “only a few years earlier, had seldom contained anything more complicated than a cross-tabulation.”26 The method increasingly be­came the message. Martinson’s work on the Rockefeller Committee was part of a fierce reaction against “the unabashed and unexamined moralism of early American social science.” Empirically measurable positive outcomes were the new professional currency. In the realm of penal science, this meant focusing on anything other than “what works” to reduce recidivism was becoming “a mark of evasion and incompetence.”27

“Nothing Works”

Initially, state officials suppressed the results of the Rockefeller study. They considered the findings a disturbing threat to rehabilitation programs they were committed to sustaining, with or without empirical sanction. Too much money and too many correctional jobs hung in the balance. As the study began to acquire “something of an underground reputation” among criminal justice professionals, a New York attorney teamed up with Martinson to get a subpoena issued in a Bronx Supreme Court case. Subsequently, the state relented and gave permission to publish. The results were twofold: a gargantuan, seven-hundred-page volume, and a shorter, punchier 1974 article in the Public Interest—“What Works?—Questions and Answers about Prison Reform.”28 Martinson wrote the article inde­pendently. Lipton took a less pessimistic view of the results, so Martinson took it upon himself to provide an unvarnished account of what the team had found.

Few read the full report, but the Public Interest article was an instant sensation. Many of the caveats and complexities were pruned away, and Martinson supplied a conclusion that was blunt and, at the time, shockingly counterintuitive: “With few and isolated exceptions, the rehabilitative effects that been reported so far have had no appreciable effect on recidivism.” Martinson became the face of tough-minded penal skepticism. He was invited on 60 Minutes and interviewed in People magazine. Referencing the title of the article, CBS correspondent Mike Wallace asked Martinson if it was conceivable that “nothing works” in the rehabilitation of prisoners. “Conceivable, certainly,” Martinson replied. The literature suggests it “may well be a fact.” He added that he knew this would sound “astonishing” to the viewers.29

This became known as the “nothing works” doctrine, and in this crude form it was frequently invoked by policymakers. Almost everyone, Left or Right, who had grievances with the criminal justice system cited it abundantly, and with vindictive satisfaction. “I’m sure you’ll find the Martinson piece especially interesting,” Irving Kristol, an editor of the Public Interest, wrote to liberal journalist Tom Wicker. “Just don’t let it depress you too much!” Mainstream criminology also registered an instant change. As early as 1976, Stuart Adams observed a “visible impact on criminal justice practitioners and opinion leaders alike,” a phenomenon which he dubbed “Martinson-shock.” Science magazine reported that William Saxbe, attorney general under Nixon and Ford, had been “strongly influenced” by the report, and the dean of the University of Chicago Law School used the keynote address at the 1975 Congress of Corrections to urge his colleagues to set aside—at least for the time being—the goal of rehabilitation.30 All told, Martinson provoked a lengthy period of soul-searching in the profession, one which opened it up to new ideas, especially those coming from the Right.

A handful of criminal justice scholars criticized Martinson, although they seldom received media coverage. His ablest critic—one who developed a “systematic rebuttal”—was Ted Palmer, a psy­chologist who worked for the California Youth Authority.31 Palmer reanalyzed Martinson’s data and found that, far from “few and isolated” examples of treatment success, 48 percent of the studies cited in his article “were originally characterized as having yielded positive or partly positive results.” Palmer explained how, despite those mixed results, Martinson had been able to justify his conclusion:

Martinson examined, one by one, approximately twelve dis­tinguishable modes and levels of intervention—e.g., individual counseling, group counseling, milieu therapy, and medical treatment. His systematic review enabled him to establish, beyond any doubt, that not one of these rather general ap­proaches had “produced” positive results on every, or nearly every occasion in which it had been implemented and researched . . . [This], then . . . allowed Martinson to answer his original question (“What works?”) with a straightforward as­sertion [that] not one method had been found which could be recommended as a sure way of reducing recidivism.32

Martinson’s response to Palmer gave the game away. He mustered a half-hearted technical defense of looking at “modes and levels” rather than individual studies, but he quickly moved on to more pressing concerns. In short, Martinson understood the famous question posed by his Public Interest article—“What Works?”—in a much broader sense than his critics realized. Martinson ultimately wasn’t interested in whether a study or treatment method showed “statistically significant” results; his concern was whether we had the knowledge and ability to reduce the crime rate within the rehabilitative paradigm. “The public does not care whether a program will demonstrate that the experimental group shows a lower recidivism rate than a control group,” he wrote. “It wants to know whether the program will reduce the overall crime rate.”33

Martinson was accused of being a neoconservative. “I was rather amused to see that you made the Right-Center Establishment in the Village Voice,” Kristol wrote to him. “Now let’s see you try to figure out a way to resign!”34 In reality, Martinson thought prisons were a criminogenic anachronism that ought to replaced with newer, milder, but more effective forms of social control. He laid out this view in a remarkable series of essays for the New Republic (pub­lished years before his Public Interest article), arguing that prisons are not performing their allotted role, cannot be reformed, and “must gradually be torn down.” His early writing suggests that his technical conclusions on the Rockefeller Committee were most likely predetermined, even if they weren’t devised in bad faith. Martinson believed that attacking the rehabilitative ideal was a necessary, perhaps even sufficient, means of attacking incarceration itself. “The myth of correctional treatment is now the main obstacle to progress,” he wrote. “It has become the last line of defense of the prison system. . . . It is time to awake from the dream.”35

Enter James Q. Wilson

Martinson’s view that the rehabilitative ideal was the linchpin of the prison system was widely held at the time. It struck many criminal justice experts as something close to a logical inexorability that, in its absence, prisons would start to disappear. As it turned out, they read too much into what one academic called “the philosophical problem” of the treatment ethos: “If rehabilitation is the object, and if there is little or no evidence that available correctional systems will produce much rehabilitation, why should any offenders be sent to any institutions?”36 Many criminologists drastically underestimated the possibility of any alternative justifications.

The academic who described this “philosophical problem” was James Q. Wilson, a distinguished political scientist who brought “What Works?” to the editors of the Public Interest.37 Wilson was one of the top experts on bureaucracy and public administration who regularly served as an adviser to Republican presidents. When he died in 2012, the obituaries highlighted his “broken windows” theory, codeveloped with George Kelling, which put forth a hypothesis about crime (“disorder and crime are . . . inextricably linked, in a kind of developmental sequence”) and a policing strategy to go with it. Almost none of the tributes mentioned his earlier foray into criminology, however, though it was probably more significant.

Wilson’s 1970s campaign to make “incapacitation” the governing purpose of the prison system was extraordinarily influential and helped change the nature of criminal justice in the United States. The alternative to rehabilitation, he argued, was understanding the proper function of the correctional system: not “to turn burglars into Rotarians” but to isolate and punish.38 “It is a measure of our confusion that such a statement will strike many enlightened readers today as cruel, even barbaric,” he wrote. “It is not. It is merely a recognition that society at a minimum must be able to protect itself from dangerous offenders and . . . also a frank admission that society really does not know how to do much else.”39

Those words come from Wilson’s Thinking about Crime (1975), a slim but influential book of essays that roasted criminological shibboleths on the spit of common sense. In Wilson’s oeuvre it was preceded by a minor classic entitled Varieties of Police Behavior (1968), which was at once a typology of patrol styles and a sophisticated essay on the challenges of police work, all based on years of observation. At a 1975 lecture Wilson explained the differences in tone and content between the two books: “I am perplexed about the police because I know so much about them,” he said. “I am more confident about judges and prosecutors because I know much less of them—or to put it more accurately, I can judge them by their outputs.”40 The unassuming candor was typical of Wilson. Picking up any one of his books makes it plain why a contemporary review­er praised him for having a “self-effacing, skeptical voice,” which carries “just the right tone to counteract all the bathetic Ramsey Clarkism [i.e., conventional wisdom] we have grown accustomed to.”41

Wilson’s rhetorical style was well suited to his political niche. His commonsensical manner gave him authority not only with the educated layman but with a new generation of conservatives. Irving Kristol once remarked that the self-imposed task of neoconservatives was “to explain to the American people why they are right, and to the intellectuals why they are wrong.” He was at least half right. The early neoconservatives were influential because they could explain social science, not necessarily “to the American people,” but to important people on the right and in the center. Or at least they could explain why social science was on their side.

Wilson, for example, explained why criminologists continually found themselves in a rut, unable to put forth effective strategies for crime reduction. The problem was their background in sociology, which led them to confuse two distinct modes of analysis: “causal” analysis and “policy” analysis. They assumed the former would translate into the latter; they thought if you identified the “root causes” of crime, then you had taken an essential step on the way to reducing the crime rate. This is a grave error, argued Wilson, who dubbed it the “causal fallacy.” “From a practical point of view,” he explained, “it is a mistake to think about crime in terms of its ‘causes’ and then to search for ways to alleviate those causes.”42 Ultimate causes, by their very nature, remain inaccessible to policy intervention. By contrast,

Policy analysis, as opposed to causal analysis, begins with a very different perspective. It asks not what is the “cause” of a problem, but what is the condition one wants to bring into being, what measure do we have that will tell us when that condition exists, and what policy tools does a government (in our case, a democratic and libertarian government) possess that might, when applied produce at reasonable cost a desired alteration in the present condition or progress toward the desired condition? In this case, the desired condition is a reduction in specified forms of crime.43

Wilson drew the causal-policy distinction after a frustrating stint as an adviser on President Johnson’s crime commission. He saw that the policy recommendations derived, more often than not, from political convictions rather than scholarly research. His colleagues weren’t simply ideologues, but they actually couldn’t respond with practical advice supplied by their academic work. Consider “differ­ential association,” perhaps the most respected theory of crime causation in the 1960s. The theory held, roughly, that criminal behavior is learned through malign social influences that place the individual in “normative conflict” with law and society. A moment’s thought should suggest why this theory does not lend itself to state intervention (and that’s not even considering what sociology itself says about the “strength and persistence” of close personal ties).44 At any rate, Wilson’s argument was a revelation to many powerful people in the Republican Party. Copies of Thinking about Crime circulated among top-ranking members of the Ford administration. “Probably [the] most important passage in the literature,” one of them wrote in the margin next to the quotation above.45

Wilson’s contribution to “policy analysis” was that we could reduce the crime rate by sending more people to prison. At a 1975 White House seminar for the benefit of Attorney General Edward Levi, a notetaker wrote down his overriding suggestion: “increase prison intake > decrease crime rate.”46 It may sound odd to call this an innovative thought, but it was. “I remember being shocked at seeing his article [“Lock ’Em Up and Other Thoughts on Crime,” a selection from Thinking about Crime published in the New York Times], because it was so completely new,” Charles Murray recalls. “Among academic elites, hardly anyone . . . was on his side at that time.”47 Prisons have traditionally served three functions: rehabilitation, deterrence, and “incapacitation” (or physically restraining of­fenders so they cannot offend again). In a conceptual landscape newly flattened by Martinson’s assault on the rehabilitative ideal—at a time when prisons were a practice in search of a policy—Wilson sought to elevate the third and most basic function, something which had seldom received scholarly attention.

To that end, Wilson synthesized and popularized what little work there was on the benefits of pursuing incapacitation as a positive strategy. Reuel and Shlomo Shinnar wrote the study that became his centerpiece. A chemical engineer and a neurologist, respectively, the Shinnars were a father and a son fed up with crime in New York who decided that criminology was too important to be left to the criminologists.48 They estimated, in the proud social science tradi­tion of pairing complex mathematical models with shaky assumptions, that the crime rate would be cut by two-thirds if every person convicted of a major offense were sent to prison for three years. Wilson didn’t endorse this as a policy blueprint; he highlighted it as a theoretical demonstration of the promise of incapacitation. “The reduction . . . would be solely the result of incapacitation,” he wrote. “[E]ven assuming they are overly optimistic by a factor of two, a sizable reduction in crime would still ensue.”49

The crucial thing, for Wilson, was not necessarily the length of the sentence but the fact that offenders actually serve a prison term. The prison population declined in the 1960s, amid a historic crime boom, partly because the criminal justice system adjusted to higher crime rates by sending a smaller proportion of lawbreakers to prison.50 The “key to reducing the crime rate” was to reverse that trend, and increase the number of convicts serving prison sentences. Wilson thought too many were sentenced only to time served awaiting trial, or given probation or suspended sentences.51 His wish came to pass for several reasons, although surely in part because prosecutors, policymakers, and penal experts began to see the social utility of using prisons along Wilsonian lines. As Pfaff emphasizes, the prison population is “a flow, not a stock”: the main driver of prison growth has been “steadily rising admissions for fairly short terms.”52

The “incapacitation” campaign forked into an academic debate (the National Academy of Sciences got involved) and an informal policy persuasion. The latter was much more important. At a time of criminological turmoil and confusion, Wilson’s clarity was a tonic. The GOP leadership in Pennsylvania distributed Thinking about Crime to all Republican members of the legislature for their use in criminal justice planning.53 Governor Jerry Brown of California, a Democrat, ordered the book via air mail shortly before giving a ma­jor crime speech. After seeing the result, Wilson wrote to a colleague, “If he were a scholar, I’d accuse him of plagiarism!”54 In their book Incapacitation (1995), the criminologists Franklin Zimring and Gor­don Hawkins flag a 1975 Gerald Ford speech at a Yale Law School convocation dinner as a symbolic turning point—a “remark­able example of presidential prescience and sophistication.”55 They were apparently unaware that the speech, almost from start to finish, was based on Wilson’s ideas.

Second Thoughts

Mark Kleiman is another example. In 1979, he arrived at the Department of Justice “under the spell of Thinking about Crime.” He did a calculation about “person-days behind bars” for burglary in a given year. The result was absurdly low. He concluded that Wilson was right, and he “dutifully” began to push for more prison capacity. As a committed, soft-hearted liberal, he converted to Wilson’s way of thinking “reluctantly, rather than triumphantly.” Kleiman later came to regret the results:

It is still possible to argue that the first doubling of prison and jail capacity from its post-1960s low point of about 500,000, in the face of the great crime wave, was justified by necessity and by the gains in reduced victimization and fear that came from locking up some very high-rate serious criminals. But there is nothing to be said for the more-than-doubling from that already historically high level.

Kleiman likened the punitive turn to the “Sorcerer’s Apprentice.” As the prison population surged past the point of diminishing returns, many former Wilsonians were left casting about for an off switch. They came to see mass incarceration as a social menace “on par with crime itself.”56

Wilson himself was more equivocal. Fêted for contributing to the great crime decline beginning in the 1990s, he even received the Presidential Medal of Freedom in 2003.57 But his later years were marked by a certain defensiveness. He agreed that America had too many people behind bars, at least for certain categories of crime, but he also complained that his critics neglected the advantages of the prison system as it currently stood.

In 2008, as a guest blogger at The Volokh Conspiracy, Wilson faced criticism from commenters about the size of the U.S. prison population, which by then had swollen to historic proportions. He tried to deflect attention away from himself, arguing that the American justice system had diverged from Europe because the United States was more democratic. “American policies were driven by public opinion while British ones were shaped by elite preferences,” he wrote.58 While there may be something to this argument, there can be no doubt that, at least for a crucial period in the late twentieth century, public opinion and elite preferences in America converged on the benefits of “incapacitation,” thanks in large part to Wilson himself.

Epilogue

Martinson’s final years, in contrast to Wilson’s, were one of the sadder dénouements in the annals of social science. He maintained a belief in the evils of prison, but as the 1970s dragged on—and as the emerging punitive turn became dimly visible—he anxiously tried to find noninstitutional ways to break the crime wave and undercut the hard-liners.

Martinson’s main proposal—one is tempted to call it “modest”—was what he called a “cop-a-con” approach. It was “a new form of punishment,” a type of field supervision in which parole boards would be abolished and parole agents expanded into a surveillance “posse,” each assigned to an individual offender. The offender would not know who is watching him: “All he’d know is that someone in his district has been specially assigned to see to it that he is not going to commit another crime without being caught. This agent’s job is not to change the man’s behavior; it is simply to catch him in the act of committing another crime.”59 Martinson wrote articles in favor of this idea; he gave talks to policymakers; and he tried to rouse the interest of Irving Kristol. “We need an alternative to the cage which isn’t pure bull,” Martinson wrote to Kristol, insisting that his idea was more cost-effective than Wilson’s “lock ’em up” strategy.60

Kristol ridiculed the scheme, suggesting that Martinson call the surveillance agents Big Brothers. He found it “implausible, impractical, and unpersuasive,” which roughly summed up its wider reception at the time.61 (Today, thanks to new electronic monitoring and remote immobilization technologies, the idea may be making a comeback.62)

By the end of the decade, Martinson faced an even greater humiliation. He recanted the view which had made him famous, acknowledging—on the basis of academic critiques and his own new research—that his previous work had been “misleading.”63 Few people noticed. Mainstream outlets did not report on his turnabout, and the “nothing works” meme lived on. They also didn’t print any­thing when, on August 11, 1979, Martinson leapt to his death from the fifteenth floor of his Manhattan apartment.

This article originally appeared in American Affairs Volume II, Number 3 (Fall 2018): 144–66.

Notes

1     Oliver Roeder, “Releasing Drug Offenders Won’t End Mass Incarceration,” FiveThirtyEight, July 17, 2015.

2    John F. Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (New York: Basic Books, 2017), 6.

3    Pfaff.

4    William J. Stuntz, The Collapse of American Criminal Justice (Cambridge: Belknap Press, 2011), 38.

5    Hannah Arendt, On Violence (New York: Harcourt, Brace & World, 1970), 98. Arendt was also worried that lackluster police efficiency would make police brutality more likely.

6    James Austin, “Why Criminology Is Irrelevant,” Criminology and Public Policy 2, no. 3 (July 2003): 557–64; Michael Tonry, “Evidence, Ideology, and Politics in the Making of American Criminal Justice Policy,” Crime and Justice 42, no. 1 (August 2013): 1–18.

7    Nathan Glazer, “Introduction,” in The Public Interest on Crime and Punishment, ed. Nathan Glazer (Lanham: University Press of America, 1984), xi.

8    As he wrote in the Daily Californian on January 6, 1949, “No thinking human being can honestly say that he understands the world in which he lives until he has come to grips with the most horrible phenomena of this inhuman age—state slavery in totalitarian Russia.”

9    Irving Krauss to 1st Lt. Erwin Friedman, February 6, 1955. This letter was part of the trial documents that were kindly provided to me by Robert’s son Michael C. Martinson. There were also letters on Martinson’s behalf from Norman Thomas and Robert Nisbet, among others.

10   Robert Martinson to “Friend,” October 20, 1956. This letter was included in the trial documents.

11   Robert Magnus, “Anti-Labor Despotism in the Stalin Legal Code,” Labor Action 13, no. 29 (July 18, 1949): 4.

12   Francis A. Allen, The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose (New Haven: Yale University Press, 1981), 2.

13   Nils Gilman, Mandarins of the Future: Modernization Theory in Cold War America (Baltimore: Johns Hopkins University Press, 2003), 16.

14   Allen, 19. In context, Allen is speaking more about institutions like schools and the family.

15   Marc F. Plattner, “The Rehabilitation of Punishment,” Public Interest 44 (Summer 1976): 104.

16   This passage draws from Jessica Mitford, “Prisons: The Menace of Liberal Reform,” New York Review of Books 18, no. 4 (March 9, 1972).

17   Allen, 8.

18   Plattner, 104.

19   Robert Martinson, “Prison Notes of a Freedom Rider,” Nation (January 6, 1962): 4–6; Adam Humphreys, “Robert Martinson and the Tragedy of the American Prison,” Ribbonfarm (December 15, 2016). Humphreys is a Canadian filmmaker with a forthcoming documentary on Martinson and his legacy.

20   Robert Martinson, “Treatment Ideology and Correctional Bureaucracy: A Study of Organizational Change” (PhD diss., University of California, Berkeley, 1968).

21   Statement by Governor Nelson A. Rockefeller at public hearings of the Governor’s Special Committee on Criminal Offenders, held at the New York County Lawyers’ Association, New York City, October 14, 1966, Folder 1721, Box 47, N. A. Rockefeller Gubernatorial Records, Rockefeller Archive Center.

22   Author interview with Douglas Lipton on June 4, 2017.

23   An irony is that the academic term “carceral state,” which has arisen in scholarly discussions of mass incarceration, derives from the final chapter of Foucault’s Discipline and Punish. The argument of that chapter is that the prison as a specific location has become relatively less important, since the boundaries between prison and society have started to blur. Foucault suggests that disciplinary ideologies are growing insidiously stronger and diffusing through multiple institutions. At least in the American case, the hegemony of treatment collapsed as soon as his book went to print, and the prison as a specific, singular institution was about to become more important than it had ever been.

24   Robert Nisbet, “Many Tocquevilles,” American Scholar 46, no. 1 (Winter 1977): 67.

25   Robert Martinson, “The Age of Treatment: Some Implications of the Custody-Treatment Dimension,” Issues in Criminology 2, no. 2 (Fall 1966): 275–93.

26   Charles Murray, Losing Ground: American Social Policy, 1950–1980 (New York: Basic Books, 1984), 148.

27   Joseph F. Spillane, Coxsackie: The Life and Death of Prison Reform (Baltimore: Johns Hopkins University Press, 2014), 200.

28   Robert Martinson, “What Works? Questions and Answers About Prison Reform,” Public Interest (Spring 1974): 22–54; Douglas Lipton, Robert Martinson, and Judith Wilks, The Effectiveness of Correctional Treatment: A Survey of Treatment Evaluation Studies (New York: Praeger, 1975). I also draw on Humphreys for this paragraph.

29   The segment carried the unambiguous title “It Doesn’t Work,” Mike Wallace/CBS, 60 Minutes, August 24, 1975; see also Sasha Abramsky, American Furies: Crime, Punishment, and Vengeance in the Age of Mass Imprisonment (Boston: Beacon Press, 2007), 43–58.

30   Irving Kristol to Tom Wicker, April 3, 1974, Folder 34, Box 22, Series: The Public Interest, Irving Kristol Papers, Wisconsin Historical Society; Stuart Adams, “Evaluation: A Way Out of Rhetoric,” in Rehabilitation, Recidivism, and Research, ed. Matthew Matlin (Hackensack: National Council on Crime and Delinquency, 1976), 75–91; Constance Holden, “Prisons: Faith in ‘Rehabilitation’ Is Suffering a Collapse,” Science 188, no. 4190 (May 23, 1975): 815–17; Norval Morris, Keynote Address, 105th Congress of Corrections, Louisville, August 18, 1975.

31   Francis T. Cullen, “The Twelve People Who Saved Rehabilitation,” Criminology 43, no. 1 (2005): 1–42.

32   Ted Palmer, “Martinson Revisited,” in Rehabilitation, Recidivism, and Research, ed. Matthew Matlin (Hackensack: National Council on Crime and Delinquency, 1976), 41–62.

33   Robert Martinson, “California Research at the Crossroads,” in Rehabilitation, Recidivism, and Research, ed. Matthew Matlin (Hackensack: National Council on Crime and Delinquency, 1976), 63–74.

34   Irving Kristol to Robert Martinson, December 16, 1975, Folder 34, Box 22, Series: The Public Interest, Irving Kristol Papers, Wisconsin Historical Society.

35   Martinson’s four-part series “The Paradox of Prison Reform” ran from April 1, 1972 to April 29, 1972 in the New Republic.

36   James Q. Wilson, Thinking about Crime (New York: Basic Books, 1975), 170–71.

37   Nathan Glazer: “I did recall but vaguely that it was brought to us by Jim Wilson” (email message to author, June 23, 2017).

38   “To turn burglars into Rotarians” is Mark Kleinman’s phrase, used in a discussion of Wilson: “Thinking About Punishment: James Q. Wilson and Mass Incarceration,” NYU, Marron Institute of Urban Management, Working Paper #11, June 26, 2014.

39   Wilson, Thinking about Crime, 172–73.

40   James Q. Wilson, “Politics, Crime, and Society,” Discourses: Papers on Politics, Policy, and Political Theory 1 (Chicago: Loyola University of Chicago, 1975). A transcript of a talk given on October 21, 1975.

41   M. J. Sobran Jr., “Clarity About Crime, Class,” National Review (August 29, 1975): 948.

42   Wilson had more respect for economists because they aren’t focused on causality “in any fundamental sense.” He was influenced by Gary Becker’s rational-actor theory of crime, although he embraced a weaker version of it. Wilson combined this with an interest in “constitutional”—i.e., biological—factors, something evident in Thinking about Crime but greatly expanded on in Crime and Human Nature (1985), coauthored with Richard Herrnstein. Critics seized on the combination as logically contradictory, which is silly. Both can be true—or what’s more important to Wilson, both can be useful—to varying degrees and in various circumstances. Both have the effect of starkly individualizing the criminal—divorcing him from social context—which is why academics like to call Wilson “neoliberal” almost as much as neoconservative.

43   For causal vs. policy analysis, see Wilson, Thinking about Crime, 43–63.

44   Wilson, 51.

45   Box 9, Folder “Crime Message (1) – (2),” James E. Connor Files. Gerald R. Ford Presidential Library; the president himself thought Wilson’s ideas were “most interesting & helpful.” Box C17, Folder “Presidential Handwriting 3/29/1975 (1),” Presidential Handwriting File. Gerald R. Ford Presidential Library; Ford wrote about Wilson’s influence in his memoir A Time to Heal (New York: Harper & Row, 1979), 269.

46   Box 3, Folder “James Q. Wilson,” Robert A. Goldwin Files, Gerald R. Ford Presidential Library.

47   Charles Murray, email message to author, February 6, 2013.

48   Author interview with Shlomo Shinnar on July 13, 2018; Shlomo Shinnar and Reuel Shinnar, “The Effects of Criminal Justice on the Control of Crime: A Quantitative Approach,” Law and Society Review 9, no. 4 (Summer 1975):   581–612. The two-thirds cut in the crime rate would be for a set of “serious” crimes. Reuel Shinnar had been working on this topic since the 1960s, but was rebuffed by the criminological establishment until the political environment changed. In fairness to the Shinnars, a study sponsored by the National Academy of Sciences concluded that while their study rests on simplified assumptions, it represents “the best approach to estimating the incapacitative effect to date.” Jacqueline Cohen, “The Incapacitative Effect of Imprisonment: A Critical Review of the Literature,” in Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates, eds. Alfred Blumstein, Jacqueline Cohen, and Daniel Nagin (Washington, D.C.: National Academy of Sciences, 1978), 187–243.

49   Wilson, Thinking about Crime, 200–1.

50   James Q. Wilson, “How Crowded Prisons Throw Sentencing out of Whack,” Washington Star (November 21, 1976): F-1.

51   Box 3, Folder “James Q. Wilson,” Robert A. Goldwin Files. Gerald R. Ford Presidential Library.

52   Pfaff, 74.

53   See Jerome G. Miller, Search and Destroy: African-American Males in the Criminal Justice System (Cambridge: Cambridge University Press, 1996), 272.

54   Box 3, Folder “James Q. Wilson,” Robert A. Goldwin Files, Gerald R. Ford Presidential Library.

55   Franklin E. Zimring and Gordon Hawkins, Incapacitation: Penal Confinement and the Restraint of Crime (New York: Oxford University Press, 1995), 18. Significantly, Zimring and Hawkins wrote in the mid-1990s that incapacitation “now serves as the principal justification for imprisonment in the American criminal justice system,” whereas it hadn’t before. Emphasis mine.

56   Kleiman, “Thinking about Punishment,” accessed online. Kleiman notes that he has come to realize that his calculation was flawed. It didn’t calculate the benefits of what was supposed to be a cost-benefit calculation.

57   Studies on the effect of prison on the decline of the crime rate vary widely in their estimates. “The best scholars,” according to Wilson, attribute 25–30 percent of the decline to imprisonment. Some scholars give it much less credit.

58   James Q. Wilson, “What Do We Get From Prison?,” The Volokh Conspiracy (blog), June 9, 2008.

59   Lee Wohlfert, “Criminologist Bob Martinson Offers a Crime-Stopper: Put a Cop on Each Ex-Con,” People, February 23, 1976; Patricia Masterman, “Abolish Parole Board, Expert Urges at Hearing,” Amarillo Globe‑Times, November 7, 1975, 1–2.

60   Robert Martinson to Irving Kristol, December 21, 1975, Folder 34, Box 22, Series: The Public Interest, Irving Kristol Papers, Wisconsin Historical Society.

61   Irving Kristol to Robert Martinson, January 13, 1976, Folder 34, Box 22, Series: The Public Interest, Irving Kristol Papers, Wisconsin Historical Society.

62   Mirko Bagaric, Dan Hunter, and Gabrielle Wolf, “Technological Incarceration and the End of the Prison Crisis,” Journal of Criminal Law and Criminology 108, no. 1 (Winter 2018): 73–135.

63   Robert Martinson, “New Findings, New Views: A Note of Caution Regarding Sentencing Reform,” Hofstra Law Review 7, no. 2 (Winter 1979): 243–58.

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