[Paleopsych] Why We Send So Many Americans to Prison and Probably Shouldn't

K.E. guavaberry at earthlink.net
Fri Aug 13 18:50:11 UTC 2004

Fred Nold's Legacy

Why We Send So Many Americans to Prison and Probably Shouldn't
By Robert X. Cringely

The interface between science and public policy is awkward at best.
Scientists and academics need money for research, while politicians need
research to build better weapons and sometimes to justify intended policy
changes. But what happens if you look for scientific support for some new
policy and the results of the research show that what you are intending to
do is wrong? You can change your plan or ignore the research. This latter
decision, one example of which is the topic of this column, brings with it
some peril because if it later becomes known that the research was
commissioned, completed, and ignored, then someone's job is on the line. So
if you are going to bury research findings, it is a good idea to bury them

America does a better job of putting people in prison than any other
country. Just over two million Americans are behind bars right now, a number
that has been growing far quicker than the overall population for more than
20 years. The impact of this mass imprisonment is felt especially in the
African-American community, where one in 12 men are in prison or jail. The
reasons given for these high numbers vary, but something that is frequently
mentioned in any discussion is the impact U.S. federal sentencing guidelines
have had on sending more people to jail for longer periods of time. Those
very guidelines are now coming under scrutiny by the courts because their
imposition may have denied some inmates their constitutional right to a
trial by jury. That will be decided soon by the U.S. Supreme Court, but for
the moment, all that I know for sure is that the sentencing guidelines in
use now aren't working as intended, and the people who installed those
guidelines probably knew this even before we started building so many

Even if the U.S. Supreme Court shortly finds that the sentencing guidelines
are constitutional, THEY DON'T DETER CRIME.

  Back in the early 1980s, a couple of economists at California's Hoover
Institution (Michael Block and Fred Nold) did a study on the effect of
monetary fines on antitrust enforcement. Their idea was to look at law
enforcement as a purely economic activity. How could fines be structured to
offer the greatest incentive to do the right thing? They did some research,
gathered some data, published a paper and generally concluded that there
were some economic forces involved and it just might be possible to not only
encourage potential white collar criminals to think again -- these fines
could also be a significant source of revenue for the enforcers. The paper
was well received (you can still find it on the Internet), though no laws
were changed as a result. But it got Block and Nold some attention from the
U.S. Department of Justice.

  Then the two got a call from the U.S. Sentencing Commission. This is the
board that oversees federal criminal sentencing to ensure that sentences are
being correctly applied by judges. "Correctly" in this case means that they
are generally compliant with published guidelines. These guidelines are
updated every 20 to 30 years, and it was time for such an update. The Feds
thought that just maybe Block and Nold could come up with some economic
twist for the new guidelines that would make them more effective at reducing
crime. So they commissioned Block and Nold to do a big study budgeted at, I
believe, $250,000.

They did the study in 1982, and the principle players were Block, Nold, and
Sandy Lerner, who was their statistician. Block and Nold thought they were
headed for the big time, and started a company to do this kind of work.

Then things began to go downhill. The DoJ didn't like what it was hearing as
the study progressed, and they may have refused to accept the final paper.
Certainly, they refused to pay because Block and Nold went out of business,
and Nold went into a deep depression that ended with his suicide in 1983.
But Block was actually named to the Sentencing Commission, where he served a
six-year term. He also became a law professor at the University of Arizona,
and today works at a conservative Arizona think-tank, the Goldwater
Institute, and does not reply to my e-mails.

Why should we care about any of this?

Well, for one thing, I knew Fred Nold and hate to think that his work would
die with him. But much more importantly, we should care because I'm told the
Block and Nold study, which was intended to economically validate the
proposed sentencing guidelines, instead showed that the new guidelines would
actually create more crime than they would deter. More crime, more drug use,
more robbery, more murder would be the result, not less. Not only that, but
these guidelines would lead to entire segments of the population entering a
downward economic spiral, taking away their American dream.

There is no mention anywhere of this study, which was completely buried by
the DoJ under then-secretary Edwin Meese. The proposed sentencing guidelines
were accepted unaltered and the world we have today is the result. We spend
tens of billions per year on prisons to house people who don't contribute in
any way to our economy. We tear apart the black and latino communities. The
cost to society is immense, and as Block and Nold showed, unnecessary. AND

It is one thing to make what turns out to have been a mistake and another
thing altogether to make what you have reason to believe will be a mistake.
Why would the DoJ, having good reason to believe that the new sentencing
guidelines would create the very prison explosion we've seen in the last 20
years, go ahead with the new guidelines? My view is that they went ahead
because they were more interested in punishment than deterrence. They went
ahead because they didn't perceive those in prison as being constituents.
They went ahead because it enabled the building of larger organizations with
more power. They went ahead because the idea of a society with less crime is
itself a threat to the prestige of those in law enforcement.

Where would we be today if the Block and Nold paper had been accepted and
acted upon? Well, we'd probably have a few hundred thousand fewer people in
prison. We'd probably have hundreds fewer prisons. Our black communities,
especially, would probably be more economically productive. We'd probably
have less drug use, fewer unwed mothers, it goes on and on.

And while the disappearance of the Block and Nold paper is an opportunity
lost, whatever conclusions they made then would probably apply just as well

Nold is gone. Block won't talk, at least not to me. There may or may not be
a file somewhere at the DoJ. But there is their statistician Sandy Lerner,
who remembers well her work on the study. After Block and Nold folded,
Sandy's next venture was to start a company with her husband, Len Bosack,
that they called Cisco Systems. Maybe you've heard of it.

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