Criminal Law Book Review 125 Harv. L. Rev. 1212

The Free Market and the Prison

Looking at the causes and effects of America's mass incarceration problem



In the end, The Illusion of Free Markets is a disappointing book, but it certainly includes some striking observations. One of the most striking arrives a dozen or so pages before the conclusion. There Bernard Harcourt, professor of both law and political science at the University of Chicago and a man who brings an inventive theoretical mind to all of his work, combines two figures: incarceration rates in a variety of Western countries, and number of beds in psychiatric institutions in the same countries (pp. 221—31). As he shows, it is not just the case that the United States incarcerates at a spectacularly higher rate than any other advanced country; it is also the case that the United States has spectacularly fewer beds for the mentally ill (pp. 227—28). Moreover, he observes, the explosion in American incarceration over the last generation has been directly paralleled by a decline in the institutionalization of the mentally ill (p. 224 fig.10.1). The implication is clear: American prisons house people who would be hospitalized in other economically advanced democratic countries.

There is nothing surprising about this finding (though as will be discussed later, Harcourt interprets it in a surprisingly callous and unconvincing way). Numerous studies have shown the scandalous prevalence of mental illness in our prisons and jails, and among those who care about this scandal, it is commonplace that the American mentally ill end up in prison largely because the United States has lost the will, and the institutional capacity, to provide them with psychiatric care. Nevertheless, Harcourt’s comparative charts shed a stark light on America’s place in the world today.

Future historians of America will note that, early in the twenty-first century, our country was throwing the mentally ill into prison. This depressing datum is only one aspect of an imprisonment boom, dating back to the mid-1970s, that is without parallel in any other industrialized country. Nothing like our mass incarceration has ever taken place in a contemporary liberal society. Harcourt summarizes the contemporary American state of affairs forcefully:

After almost fifty years of relative stability in our prison populations, the inmate population skyrocketed nationwide beginning in the early 1970s, rising from fewer than 200,000 persons to more than 1.3 million in 2002 (or, if inmates held in local jails are included, to more than 2 million persons by 2002). In 2008, the United States reached a new milestone: it incarcerated more than 1 percent of its adult population – the highest rate in the world, five times the rate in England and twelve times the rate in Japan, the highest raw number in the world as well.

These staggering numbers were even higher within discrete segments of the population. One in thirty men between the ages of 20 and 34 was incarcerated in 2008, and for African-American men in that age group, the number was one in nine . . . . America ranks first among all industrialized nations in its rate of imprisonment – by an order of magnitude . . . .

The length of prison sentences in the United States is also astounding. (p. 198)

America has become the home of mass incarceration. There is a historical irony in this development that should depress anyone who cares about our country: Europeans thought of America as a beacon of progress in the early nineteenth century precisely because of its enlightened practices of criminal punishment. Two centuries later, America has become a byword for harshness, and historians of the great American experiment in liberty will have to find some explanation for what happened.