The Scale of Imprisonment.

• Author: Reitz, Kevin R.

1. Introduction

   Six years ago, Franklin Zimring and Gordon Hawkins wrote an extraordinary book about America's use of imprisonment as a policy tool and as the product of complex macrosociological forces.(1) The subject matter of The Scale of Imprisonment has only gained in public significance since 1991.(2) Sadly, however, perhaps because it is a "difficult read," the book has been under-noticed by the legal, academic and policy communities.(3)

   This essay proceeds from two ambitions. First, it seeks to draw attention to a work that has the power to change people's ways of thinking about our legal institutions for the incarceration of criminals. Second, and on two scores, the essay ventures to add to the claims explicitly asserted in The Scale of Imprisonment. Pulling the book apart for its academic style in addition to its substantive content, I will argue that the book exemplifies a kind of interdisciplinary, empirically-aware legal scholarship that is worthy of notice for its methodology alone. As a study of legal systems, Zimring and Hawkins' work fits into a model of law scholarship recently touted by Richard Posner and Mary Ann Glendon.(4) The law professoriate, so often under fire for its (allegedly) pointless or politicized work products,(5) might draw comfort, and a few good ideas, from inspection of the academic approach of two of its most distinguished practitioners.

   In addition, and on substantive policy grounds, I will suggest that the raw material of The Scale of Imprisonment can be reassembled (somewhat against the authors' wills) to provide a novel and forceful argument in support of the latest, but still-controversial, legal institution in criminal punishment systems. Across the country, a plurality of jurisdictions have chartered sentencing commissions as new governmental agencies to formulate and administer sentencing policy on a systematic level.(6) The American Bar Association, in a recent report, heralded the sentencing commission as the "nerve center" of punishment systems.(7) Still, the advisability of such institutions remains hotly disputed in many states, some jurisdictions have created commissions only to disband them.(8) Zimring and Hawkins' work adds new layers to the argument of whether an agency of systematic competency is a desirable addition to the traditional legal structures of criminal punishment.

2. Thinking Big

   The Scale of Imprisonment is infused with the idea that the laws and policies of imprisonment should be examined in the big picture. That is to say, instead of relying on an accretion if decisions about individual offenders, however thoughtfully these are made, someone should be watching over the larger trends and outcomes. The authors want to spur analysis from the top down; they want a macrosocietal view to balance against the micro problem-at-hand orientation; they want historical and comparative perspectives to enrich the presentist and parochial; they want systematic examination of sentencing structures to rise to parity with case-by-case decisionmaking.(9)

   The Scale of Imprisonment focuses its militantly macro perspective on one question, the problem of prison scale, which can be paraphrased as follows:

   What are the factors within criminal justice systems, and in societies at large, that contribute to the differences in the amount if incarceration used in different places, and to changes in incarceration rates over time?(10)

   Thus, for example, one could ask what is known about the reasons for the United States' expansion of its prison systems over the past twenty-five years, or the reasons for this country's heavy reliance on confinement in comparison with other Western democracies.(11)

   From the outset Zimring and Hawkins endorse the view that any meaningful analysis of such questions must take account of broad social forces in addition to the specialized priorities of the criminal justice system itself.(12) But what are these forces and priorities, and how do they translate into aggregate imprisonment practices? The chief findings of The Scale of Imprisonment are: (1) There has been a near-total failure among criminologists, social historians, correctional planners, and punishment theorists to give attention to this question, and -- as one might expect -- (2) No one has yet posited a satisfactory answer, or even an approximation of such an answer, to the problem of prison scale.

3. Wealths of Ignorance: What We Don't Know About The

   Problem of Prison Scale

   The first half of The Scale of Imprisonment is a multi-disciplinary survey of fields that ought to have something useful to say about the determinants of prison size. Chapter 1 reviews the contribution of sociologists and criminologists such as Georg Rusche, Otto Kirchheimer, Alfred Blumstein, and David Greenberg. Chapter 2 considers social histories of institutions, including the work of David Rothman, Michel Foucault, and Michael Ignatieff. Chapter 3 evaluates the more prosaic formulas for correctional forecasting developed by professional criminal justice researchers (such as those working for the U.S. Sentencing Commission) whose names are not well known in academic circles but whose work affects hundreds of thousands of offenders. Chapter 4 collates studies from various fields, including punishment theory, economics, and criminology once more, all premised on the "prescriptive" hypothesis that explicit choices about crime control policy are leading factors in determining prison scale.(13) taking the first four chapters as a whole, the scope of Zimring and Hawkins' literature survey is grand indeed, embracing analyses of imprisonment in Europe and America and, in some cases, looking back over centuries.

   Before commenting on the bleak scorecards that must be given the efforts surveyed, it is worth noting the imagination required to bring the above personalities and outlooks together in one place, Zimring and Hawkins have performed a service merely by assembling the crew. Their additional substantive message is that interactive lines of communication should be established between these normally balkanized fields. It is a rare correctional planner, for instance, who will have familiarity with macrosociological theory or the work of social historians of institutions.(14) And few social theorists try hard to make their work useful or even accessible to the policy making community.(15) In exploring these and other missed connections Zimring and Hawkins make an especially compelling case for interdisciplinary study. Beyond this, Zimring and Hawkins believe that critical judgment should be passed on professional and scholarly work in part for its ability to address important concerns of other disciplines and the "real world" of applied theory. The tools of the social historian, they claim, could be turned with powerful effect on the problem of prison scale, but this simply has not been done.(16) Criminologists and punishment theorists, in focusing on individualistic case analysis or abstractions of justificatory philosophy, too often separate themselves from inquiry into systems operations and the larger social, economic, political, and cultural currents that buffet the criminal justice machinery in operation.(17) One subtext of Part I of The Scale of Imprisonment is that academics and nonacademics alike would be spurred to do better work if they made greater effort to take cognizance of the issues, expectations, and standards of related disciplines.(18)

   Turning to Zimring and Hawkins' assessment of the present state-of-knowledge concerning the problem of prison scale, they can find little useful theorizing from any quarter. The criminologists in Chapter 1 fare better than the representatives of other fields, but this is faint praise. In "all of modern criminology" the authors could locate only two serious attempts to describe "the forces that influence levels of imprisonment."(19) Both of these turn out to be methodologically flawed and, with the benefit of 1990s hindsight, historically discredited. Yet, to belabor the state of affairs, these are the best of all studies in all fields. their inadequacies thus define extent of ignorance that permeates the issue of prison scale.

   Georg Rusche and Otto Kirchheimer, sometimes labeled Marxist criminologists, argued in 1939 that prison growth occurred chiefly in response to labor shortages; they believed that involuntary inmate workers were needed to keep the economy moving in certain historical periods.(20) Working with sometimes meager quantitative data going back to the sixteenth century, they thought they discerned an expansion of prison systems during times of increasing market and financial activity but stagnant populations, (210 Rusche and Kirchheimer predicted that the twentieth century, with global population growth and labor surpluses, would see the decline of the penitentiary and greater use of economic sanctions.(22)

   More recently, Alfred Blumstein an a series of collaborators offered an alternative thesis about prison scale that, through the 1970s, was taken seriously as grist for academic debate.(23) Blumstein argued that every society maintains a "roughly constant" rate of imprisonment over long periods of time. He and his co-authors asserted, for instance, that American incarceration rates had been more or less stable from 1930 to 1970, and that the same was true of Norway and Canada over eight-year periods.(24) Prison systems might expand moderately for several years, or shrink for awhile, but long term patterns in each society would reveal oscillation around a constant mean.(25)

   Needless to say, the Rusche & Kirchheimer and Blumstein theses have not withstood the test of time; both are manifestly inadequate as explanations of U.S. incarceration experience over the last twenty-five years.(26) As Zimring and Hawkins evaluate things, however, they still rate as "best efforts" because they (1) at least posed the question of prison scale, (2)...