NO NEW PRISONS UNTIL DRUG WAR IS ENDED

America's criminal justice system is going to make history this month as
the number of incarcerated people surpasses 2 million for the first time.
But this is a development for which neither political party will attempt to
claim credit.

Indeed, people across the political spectrum seem to recognize that this is
a sad occasion - an occasion that raises a nagging question: Why do so many
Americans need to be kept behind iron bars?

To appreciate why this is such an extraordinary moment, one needs to put
the 2-million-prisoner factoid into context. It took more than 200 years
for America to hold 1 million prisoners all at once, yet we have managed to
incarcerate the second million in only the past 10 years. Analysts at the
Justice Policy Institute point out that our per capita incarceration rate
is now second only to Russia's - hardly something to be touted as an
achievement.

Throughout the 1990s, billions of dollars were spent on prison
construction. But the supply of space did not stay ahead of demand. As
soon as prisons were built, they were immediately filled with prisoners. In
fact, most prison facilities are operating beyond their design capacity.

The massive expenditure of tax dollars on prison construction has spawned
some bizarre dynamics. A generation ago, few people wished to live near a
prison. Today, small towns and cities undergoing hard times lobby for
prisons to be built in their back yards. Those not chosen return to the
state legislature to push for more prison construction, then vie again for
the coveted selection site.

In California, the Correctional Peace Officers Union, with more than 27,000
dues-paying prison guards, is now so large it's a political force. It gives
contributions to the candidates who promise to build more prisons, hire
more guards and increase guard salaries and benefits. The private firms
that contract with the prison authorities for assorted supplies are
political players, too, since their revenues increases with the prison
population. Some analysts have dubbed this political racket the "prison
industrial complex."

Proponents of incarceration tell us that when our incarceration rate is
low, our crime rate is high - and that the declining crime rates in recent
years are the result of tough, no-nonsense incarceration policies. They
say we have a simple choice: more prisons or more crime.

On closer inspection, the choice is not so stark. The first thing to
clarify is what we mean by "crime" - for, as Stanford Law Prof. Herbert
Packer once noted, "We can have as much or as little crime as we please,
depending on what we choose to count as criminal."

No one can dispute that prison cells incapacitate convicts. A serial
rapist, for example, cannot prey upon his neighborhood from jail. But
there is no corresponding increase in public safety when the government
incarcerates a person for using or even selling drugs. Years of experience
show that drugs are not rendered less available by locking up drug
offenders. The law of supply and demand states that as long as there is a
demand for a product, the market will make that product available at some
price.

A close look at statistics reveals that the drug war is fueling the growth
in our prison population. In 1981, only 22 percent of federal inmates were
drug prisoners. Today, 60 percent are drug prisoners.

One nasty (but unavoidable) effect of waging a drug war with limited jail
space is that violent criminals will sometimes be released from prison in
order to make room for drug offenders. That "displacement effect" can be
addressed in one of two ways. We can end the drug war - or we can build
more prisons. It might make sense to build more prisons if we were about
to capture the last few hundred remaining drug dealers and users. But
since we are nowhere near that point, it is'nt good policy to put more
money into prison construction. Indeed, the government estimates that the
number of American drug users to be about 18 million.

Because policymakers have refused to come to grips with the discordant
effects of a failed drug policy, we should declare a moratorium on new
prison construction until the drug war is ended. Limited prison capacity
is one of the only things restraining the politicians from escalating a
futile crusade to even higher levels.

Timothy Lynch is director of the Cato Institute's Project on Criminal
Justice.