The Role of Incarceration: The Difference Between Being ‘Tough’ and ‘Smart’ on Crime
Editor’s Note: NACDL’s Diversity Task Force sponsored a law student essay contest, asking students to discuss the difference between being “tough on crime” and “smart on crime.” Congratulations to Michael Woodruff (first prize), DeAndrea Jackson (second prize), and Carol Celestine (honorable mention).
The most significant difference between the “tough on crime” and “smart on crime” paradigms of the criminal justice system is the range of policies they represent. There are at least four distinctions between these policies worth considering: first, their view on the role of incarceration; second, the model of criminal punishment they embody; third, their awareness of incarceration’s future consequences; and fourth, the position they take on the level of discretion criminal justice practitioners should have. Fundamental to understanding the impact each paradigm has on minority communities is the fact that minorities are disproportionately represented within the criminal justice system. Therefore, either paradigm will have a significant impact on minorities.
Before discussing their differences, it is important to first acknowledge that these paradigms share the same objectives: increasing public safety and holding offenders accountable. Additionally, these varying approaches to the administration of justice are not mutually exclusive and are by no means diametrically opposed. For instance, each approach endorses the use of incarceration for violent offenders. Where these two paradigms diverge, however, is in their position on the role of incarceration for nonviolent offenses.
One of the main differences between these two approaches is their stance on incarceration. The tough on crime paradigm is characterized by policies that increase the number of people going to prison, while keeping them there for longer periods of time. Under this approach, incarceration is seen as an appropriate remedy for nonviolent offenses such as drug possession. These penalties arguably reduce crime and increase public safety by deterring potential offenders from engaging in criminal conduct, and by incapacitating offenders to prevent them from causing additional social harm. These tough on crime policies include mandatory minimums, habitual offender statutes, and truth in sentencing schemes.
On the other hand, the smart on crime paradigm generally aims to reduce the number of people who are imprisoned — and therefore burdened by its social stigma — by utilizing a range of evidence-based alternatives and practices. Smart on crime policies arguably reduce crime by indentifying and addressing the root cause of an offender’s criminal involvement so that the offender may become a productive member of society. Moreover, such policies generally view incarceration as a valuable tool that should be reserved for violent offenses. Smart on crime policies include expedited charging, release on recognizance, problem-solving courts, and graduated sanctions for parole violations.
The second difference between these two paradigms, which is closely related to the first, is the varied theories of criminal punishment they embody. “Tough on crime” policies stress the importance of deterrence and incapacitation. “Smart on crime” policies, however, encompass principles closer to the rehabilitative model of criminal punishment.
The third area where these paradigms differ expands upon the previous two by focusing on the scope of their respective concerns. The tough on crime paradigm has a narrower scope, being concerned primarily with the immediate reduction of crime through deterrence and incapacitation. The smart on crime paradigm, by contrast, has a broader scope, which looks beyond the principles of deterrence and incapacitation by recognizing the collateral consequences of incarceration in search of methods that will have better future outcomes.
Finally, these paradigms take different stances on the importance discretion plays in the administration of criminal justice. Tough on crime policies generally restrict the discretion a criminal justice practitioner has, whereas smart on crime policies are more flexible in the degree of discretion permitted. For instance, under the tough on crime paradigm, mandatory minimums impose a definite term of incarceration for certain offenses, thus restricting the sentencing options a judge has. By contrast, under the smart on crime paradigm, a judge has the discretion to sentence an offender with a substance abuse problem to a drug treatment program rather than to a mandatory term of imprisonment.
Over the past four decades, the tough on crime paradigm has been the predominate approach to the administration of justice throughout the United States. Between 1972 and 2008 the state prison population grew by a staggering 708 percent.1 During the same period, the incarceration rate dramatically increased to the point where one out of every 100 adults in the United States was locked behind bars, either in local jails or state prisons.2 As of 2010, more than 2.3 million Americans were incarcerated.3
Nearly everyone who is incarcerated will eventually be released. At least 95 percent of all state prisoners will return to their communities.4 This statistic is startling because all formerly incarcerated individuals face the same challenges when they return home. For the formerly incarcerated, most states have enacted laws that create barriers to employment, education, access to affordable housing, and public assistance such as food stamps.5 Most states allow employers to refuse to hire, or even allow them to fire, individuals upon learning they have a criminal record.6 These policies further aggravate the challenges formerly incarcerated individuals face in their transition back into society. This approach only increases the chances they will reoffend and recidivate.
These policies, and their collateral consequences, have had a disproportionate impact on minority groups. When compared to their share of the general population, minorities make up a disproportionate share of all state prisoners. In 2010 minorities constituted approximately 67.8 percent of all state prisoners.7 If these trends continue, one out of every three African American males and one out of every six Latino males can expect to be incarcerated during their lifetime.8 By contrast, only one out of every 17 white males will.9 Furthermore, government surveys have shown that whites, Latinos, and African Americans use illegal drugs in roughly the same proportion.10 Therefore, any racial disparity in the prosecution and conviction for drug offenses is not due to varying levels of drug use within these communities.
The tough on crime paradigm has had a negative impact on minority communities. The likelihood of being swept into the criminal justice system under tough on crime policies is higher for minorities. Those who are incarcerated are separated from their families and other responsibilities. As a result, when members of these communities return home, they encounter a disproportionate share of the hurdles and barriers that formerly incarcerated individuals face in their transition. The smart on crime paradigm, by contrast, is more likely to reduce the number of minorities sentenced to prison, allowing them to maintain the ties they have to their communities. Smart on crime policies, such as drug treatment programs, instead help those with social issues from these communities find the resources and services they need to break the cycle of poverty and crime they struggle with in their daily lives.
- See Public Safety Performance Project, Prison Count 2010: State Population Declines for the First Time in 38 Years (March 2010), available at http://www.pewcenteronthestates.org/uploadedFiles/Prison_Count_ 2010.pdf?n=880.
- Public Safety Performance Project, One in 100: Behind Bars in America 2008 (2008), available at http://www. pewcenteronthestates.org/report_detail.aspx?id=57653.
- Public Safety Performance Project, supra note 1.
- Timothy Hughes et al., Bureau of Justice Statistics, Re-entry Trends in the United States: Inmates Returning to the Community After Serving Time in Prison (last viewed Aug. 28, 2012), available at http://bjs.ojp.usdoj.gov/ content/reentry/reentry.cfm.
- The Legal Action Center, After Prison: Roadblocks to Re-entry: A Report on State Legal Barriers Facing People With Criminal Records (2004), available at http://www.lac.org/roadblocks-to-reentry/upload/lacreport/LAC_PrintReport.pdf.
- See Paul Guerino et al., U.S. Department of Justice: Bureau of Justice Statistics, Prisoners in 2010 (2011).
- Marc Mauer, The Sentencing Project, Addressing Racial Disparities in Incarceration (2011), available at http://sentencingproject.org/doc/publications/Prison%20Journal%20-%20racial%20disparity.pdf.