ALL LOCKED UP

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. And 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. This is hardly something
that anyone would tout 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 tenaciously
lobby for prisons to be built in their back yards. Those cities that are
unsuccessful go back to the state legislature to push for more prison
construction - and then vie again for the coveted selection site.

In California, the Correctional Peace Officers Union has grown so large
that it is now a political force. With more than 27,000 dues-paying prison
guards, the union gives political contributions to the candidates who
promise to build more prisons, hire more guards and increase guard salaries
and benefits. And the private firms that contract with the prison
authorities for assorted supplies are political players too--since they are
well aware that as the prison population grows, their revenues rise ever
higher. Some analysts have dubbed this political racket the "prison
industrial complex."

Proponents of incarceration tend to brush off these side effects. They 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 while he is behind
barbed-wire fences. On the other hand, 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 crime 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 not 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.

The writer is director of the Cato Institute's Project on Criminal Justice.