The War On Drugs The Politics of Crime

The War on Drugs, the PoHtics of Crime,
and Mass Incarceration in the United States

Heather Schoenfeld*
I. INTRODUCTION
In November 2010, Califomia voters narrowly defeated a ballot

initiative to legalize the possession and sale of up to an ounce of marijuana.'
Support for the initiative refiected both a shift in public attitudes about dmg
use^ and the reality of the largest recession since the Great Depression.-'
After signing a previous bill into law that decriminalized the possession of
small quantities of marijuana. Republican Califomia Govemor Amold
Schwarzenegger stated, "[I]n this time of drastic budget cuts, prosecutors,
defense attomeys, law enforcement and the courts cannot afford to expend
limited resources prosecuting a crime that carries the same punishment as a
traffic ticket."" Another Republican, Newt Gingrich, recently called on
conservatives to "address the astronomical growth in the prison population,
with its huge costs in dollars and lost human potential."^ Citing a price tag of
$68 billion ("300 percent more than 25 years ago") and recidivism rates
above 50%, Gingrich and the Right on Crime initiative* advocate "punishing
Assistant Professor of Sociology, The Ohio State University. The author would like to thank 77ie
Journal of Gender, Race & Justice for the invitation to participate in its symposium and the editors
for their helpful comments. The National Science Foundation provided support for this research.
1.
See MARK BALDASSARE ET AL., PUB. POLICY INST. OF CAL., CALIFORNIANS & THEIR
GOVERNMENT 4 (2010), available at http://www.ppic.org/content/pubs/survey/S_1210MBS.pdf

2. See Elizabeth Mendes, New High of 46% of Americans Support Legalizing Marijuana,
GALLUP (Oct. 28, 2010), http://www.gallup.com/poll/144086/New-High-Americans-Support
Legalizing-Marijuana.aspx (showing that between the early 1980s and 1995, only 25% of Gallup
poll respondents thought marijuana should be legal, compared to 46% in 2010).
3. See BALDASSARE ET AL., supra note 1 (finding that among those who voted for the
initiative, 29% cited the potential revenue produced by taxing the sale of marijuana).
4. Patrick McGreevy, law Makes Pot Minor Offense, L.A. TIMES, Oct. 2, 2010, available at
2010 WLNR 19567758.
5. Newt Gingrich & Pat Nolan, Op-Ed., Prison Reform: A Smart Way for States To Save
Money and Lives, WASH. POST, Jan. 7, 2011, http://www.washingtonpost.com/wp-dyn/contenty
article/2011/01/06/AR2011010604386.html.
6. See About, RIGHT ON CRIME, http://www.rightoncrime.com/about (last visited Mar. 20,
2012) (explaining that Right on Crime "is the one-stop source for conservative ideas on criminal
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low-risk offenders
through lower-cost community supervision."'
Schwarzenegger's action and Gingrich's initiative are just two examples of
lawmakers' recent efforts to reconsider some of the harsh crime-control
strategies of the last three decades, including the war on dmgs.
Liberal advocates and social commentators, such as George Soros, have
long maintained that the war on dmgs has been a costly failure.* The litany
of critiques is familiar: it does not stem the use of dmgs, it
disproportionately targets racial minorities, and it destroys the livelihoods of
farmers around the world.' Yet only recently, in a climate of steep state
budget deficits, have lawmakers called dmg law enforcement into question
in the name of saving scarce state resources.'" Admittedly, these efforts, are
selective, but combined with a powerful liberal critique of the war on dmgs
and pressure from some foreign leaders to change U.S. policy," they
arguably represent the first cracks in an increasingly, unsustainable "prison
nation."'^
A dozen states have already decriminalized marijuana to some extent,'^
and state legislators from across the country cite the potential savings in law
enforcement, court, and jail costs.''* Potential tax receipts and cost savings
justice" and "a project of the Texas Public Policy Foundation, a research institute in Austin, TX
committed to limited govemment,' free markets, private property rights, individual liberty and
personal responsibility").
7. Id.; see also Priority Issues: Substance Abuse, RIGHT ON CRIME, httpV/www.righton
crime.com/priority-issues/substance-abuse (last visited Mar. 20, 2012) (advocating for the use of
drug courts).
8. George Soros, Op-Ed., Why I Support Legal Marijuana, WALL ST. J., Oct. 26, 2010,
http://online.wsj.com/article/SB10001424052702303467004575574450703567656.html.
9. See Reed Lindsay, Bolivian Coca Growers Fight Eradication, WASH. TIMES, Mar. 25,
2003, at A15, available al 2003 WLNR 756238 (discussing the impact of the war on drugs on South
American fanners); Mass Criminalization, DRUG POL'Y ALLIANCE, http://www.dmgpolicy.org/
issues/mass-criminalization (last visited Mar. 20, 2012) (discussing discrimination in the war on
dmgs); Martha Mendoza, US War on Drugs Has Met None of Its Goals, HUFFINGTON POST (May
13, 2010, 5:24 PM), http://www.huffingtonpost.com/2010/05/13/us-war-on-dmgs-has-met-n_n_
575351.html (discussing the failure of the war on drugs).
10.
See infra notes 12-15.
11. See Femando Henrique Cardoso et al., Op-Ed., The War on Drugs Is a Failure: We Should
Focus Instead on Reducing Harm to Users and Tackling Organized Crime, WALL ST. J., Feb. 23,
2009, http://online.wsj.com/article/SB123535114271444981.html (providing the views of the former
presidents of Brazil, Columbia, and Mexico and critiquing the war on dmgs).
12. See Editorial, Prison Nation, N.Y. TIMES, Mar. 10, 2008, http://www.nytimes.com/
2008/03/10/opinion/lOmonl.html (discussing the United States's unsustainable prison nation). See
generally PRISON NATION: THE WAREHOUSING OF AMERICA'S POOR (Tara Herivel & Paul Wright
eds., 2002) (addressing the concems of prisoners in the United States).
13. Marijuana Decriminalization & Its Impact on Use, NORML, http://norml.org/index.cfm?
Group_ID=3383 (last visited Mar. 20, 2012).
14.
E.g., Katherine Gregg, Costs of Marijuana Decriminalization Debated, PROVIDENCE J.
The War on Drugs, the Politics of Crime, & Mass Incarceration
317
similarly motivate a popular initiative in Oregon to legalize the possession,

sale, and personal private cultivation of marijuana:
Tax dollars should be used to pay for schools, health care and
transportation not the 4' x 6' cell of a non-violent offender. Reform
will free up tax dollars and precious public safety resources. . . .
Farmers cannot even grow hemp because the govemment
categorizes hemp and cannabis imder the same umbrella . . . ."
Nationally, the "Just Say Now" organization cites the growth of the prison
population as a primary reason to support marijuana legalization.'^
Other states have recently dismantled mandatory minimums, reduced
sentences, or restricted the use of prison for dmg offenses." In New York, a
decade-long campaign to repeal the infamously harsh Rockefeller Dmg
Laws finally led to a major reform bill in April 2009.'^ The Rockefeller
Dmg Laws mandated long prison terms for both the possession and sale of
even small amounts of dmgs." At the height of the dmg war in 1990, 46%
of inmates committed to New York state prisons were sentenced for a dmg
offense.^" By 2009, the State was spending $525 million a year to keep
BULL., Jan, 20, 2010, available at 2010 WLNR 1229532 (reporting the potential savings of $2,2
million per year for Rhode Island after drug reform); Jonathan P, Caulkins, Cost of Marijuana
Prohibition on the California Criminal Justice System 1 (Rand: Drug Policy Research Ctr,, Working
Paper No, WR-763-RC, 2010), available at http://www,rand,org/pubs/working_papers/2010/RAND
_WR763,pdf (estimating a savings of $300 million in Califomia aer drug reforms); New Push To
Decriminalize Pot in Vermont, WCAXCOM (Dec, 9, 2010), http://www,wcax.com/Global/story.
asp?S=l 3645247 (reporting a proposed savings of $700,000 for Vermont aer proposed drug-law
reform).
15, Regulation and Reform, CANNABISTAXACT.QRG (July 4, 2010), http://www,cannabis
taxact,org/regulation-and-reform,
16,
Why Legalize Marijuana?, JuST SAY NOW, http://justsaynow,firedoglake,com/facts/ (last
visited Mar, 20, 2011) (listing prison population growth first among six other reasons to support the
legalization of marijuana).
17, See, e.g.. Marc Mauer, Beyond the Fair Sentencing Act, NATION, Dec, 9, 2010,
http://www,thenation,com/article/157009/beyond-fair-senteiicing-act
[hereinafter Mauer, Fair
Sentencing Act] (explaining how in the late 1990s, Michigan scaled back its "650 Lifer Law," which
required that first-time offenders convicted of selling 650 grams of heroin or cocaine receive a
sentence of life without parole); Prosecutors Group Assails Plan To Cut Prison Sentences,
INDIANAPOLIS STAR, Jan. 19, 2011, at Al (discussing an attempt by Indiana Govemor Mitch Daniels
to shorten drug sentences); Fiscal Note for House Bill 2668 frorh John Keel, Dir., Legislative Budget
Bd,, to the Honorable John Whitmire, Chair, Senate Comm, on Criminal Justice (May 19, 2003),
available at http://www.legis.state,tx,us/tlodocs/78R/fiscalnotes/html/HB02668E,htm (discussing a
bill that would require drug-possession offenders with less than a gram of drugs to be sentenced to
probation instead of state jail time).
18, DTR Fact Sheet 2009, DROP THE ROCK (2009), http://droptherock,ipower,com/wpcontent/
uploads/2009/04/dtr-fact-sheet-2009,pdf,
19,
Id
20,
Trends in New York State Prison Commitments, DROP THE ROCK (2009), http://drop
therock,ipower.com/wp-content/uploads/2009/04/dtr-trends-february-2009.pdf.
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12,000 dmg offenders in prison.-^' The reforms restore discretion to judges to

sentence first-time and addicted dmg offenders to treatment and altematives
to incarceration, and they allow "resentencing of some currently incarcerated
people who are serving sentences under the old laws."^^ According to the
New York State Division of Criminal Justice Services, in the first year after
the reforms, couris diveried 1000 dmg offenders who would have served
state prison sentences under the old laws.^^
On the federal level, in August 2010, President Obama signed the Fair
Sentencing Act, reducing the infamous sentencing disparity between crack
and powder cocaine from a ratio of 100:1 to 18:1.^" Although the law does
not eliminate the disparity as many had advocated, it is a major political
achievement for supporiers who managed to overcome fifteen years of
resistance to change.^^ The mandatory minimum sentences for crack and
powder cocaine were originally passed as pari of the federal war on dmgs in
the Anti-Dmg Abuse Act of 1986 and 1988, which additionally provided
grants to state and local authorities for dmg law enforcement.^* The law and
21.
DTR Fact Sheet 2009, supra note 18.
22. See Background on New York's Draconian Rockefeller Drug Laws, DRUG POL'Y
ALLIANCE (2010), http://www.dmgpolicy.org/docUploads/ndny_rdlbackground.pdf; iee also State
Assembly Reexamines Drug Policy, NYl NEWS (May 8, 2008), http://www.nyl.com/content/top_
stories/81357/state-assembly-reexamines-dmg-policy (reporting that the rationale for reform was
based on notions of justice, effectiveness, and cost). The article quotes Brooklyn Democratic
Assemblyman Joseph Lentol saying, "For major crimes like murders, judges have the final say.
When it comes to dmg cases, he has to defer to the district attomey. What kind of justice is that?" Id.
It also quotes State Senator Eric Schneiderman as having said, "[W]e have evidence about what
works and what doesn't work and it's clear that throwing people in jail for long periods of time
doesn't reduce dmg use and doesn't reduce crime." Id.
23.
N.Y. STATE DIV. OF CRIMINAL JUSTICE SERVS., PRELIMINARY IMPACT OF 2009 DRUG
LAW REFORM OCTOBER 2009-SEPTEMBER 2010, at 1 (2010), available at http://www.criminal
Iawlibraryblog.com/NY CrimJust_interim-dmg-law-refonn-update-10-07-2010.pdf
24. Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372; Alex Wagner, Obama
Signs Fair Sentencing Act, Reducing Disparity in Cocaine Penalties, POL. DAILY (Aug. 3, 2010),
http://www.politicsdaily.com/2010/08/03/obama-signs-fair-sentencing-act-reducing-disparity-in
cocaine-s; see, e.g., DORIS MARIE PROVINE, UNEQUAL UNDER LAW: RACE AND THE WAR ON DRUGS
91-119 (2007) (discussing the history and racial overtones of the crack-cocaine sentencing
disparity).
25.
FEDERAL
See U.S. SENTENCING COMM'N, SPECIAL REPORT TO THE CONGRESS, COCAINE AND
SENTENCING
POLICY
3-5
(1995), available
at
http://www.ussc.gov/Legislative_
and_Public_Affairs/Congressional_Testimonyand_Reports/Dmg Topics/199502_RtCCocaine_
Sentencing_Policy/chapl-4.pdf (recommending the elimination ofthe disparity because of its impact
on black Americans); Mauer, Fair Sentencing Act, supra note 17 (stating that the Fair Sentencing
Act was "a watershed event in the long campaign for a more rational approach to dmg policy").
26. Anti-Dmg Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207; Anti-Dmg Abuse Act
of 1988, Pub. L. No. 100-690, 102 Stat. 4181; PROVINE, supra note 24, at 111-17; .see MICHELLE
ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS 72
(2009) (discussing the Edward Byme Memorial State and Local Law Enforcement Assistance
Program).
319
its attending political rhetoric shaped law-enforcement practice around the

country, with drastic consequences for black Americans. As Doris Marie
Provine highlights in her recent book. Unequal Under Law: Race and the
War on Drugs, by 1992, in over half of the federal courts that tried dmg
cases, every single defendant was a racial minority.^^ At the state level,
prisoii systems saw a spike in prison admissions for black American dmg
offenders.^^
Lawmakers' reform efforts have coincided with legal scholars' new
focus, and call for reform, on the war on dmgs and mass incarceration.
Sociologists first coined the term "mass imprisonment" to signal a unique
and worrisome phenomenon worthy of study.^^ Since then, social scientists
have investigated the causes and consequences of the growth of
imprisonment in the United States.'' Only recently have legal scholars (and
particularly black legal scholars) published important complements to this
literature.-" Some of the most thought-provoking of these new critiques
single out the war on dmgs as the cause ofthe racial makeup ofthe nation's
prisons and jails and the no-holds-barred attitude that informs our criminal
justice policy.^^
Lawmakers, activists, and legal scholars' focus on dmg offenses as a
27.
PROVINE, supra note 24, at 120 (citing RONALD WEICH & CARLOS NGULO, JUSTICE ON
TRIAL: RACIAL DISPARITIES IN THE AMERICAN CRIMINAL JUSTICE SYSTEM 193 (2000)).
28.
See MARC MAUER, SENTENCING PROJECT, INTENDED AND UNINTENDED CONSEQUENCES:
STATE RACIAL DISPARITIES IN IMPRISONMENT 10(1997) (showing data that from 1986 to 1991, the
number of white dmg offenders incarcerated in state prisons increased by 110%, while black dmg
offenders increased by 465%).
29. David Garland, Introduction to MASS IMPRISONMENT: SOCIAL CAUSES AND
CONSEQUENCES l, 1-3 (David Garland ed., 2001).
30.
See generally DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER
IN CONTEMPORARY SOCIETY (2001) (examinihg the social, cultural, and political factors affecting
society's response to crime); MARIE GOTTSCHALK, THE PRISON AND THE GALLOWS: THE POLITICS
OF MASS INCARCERATION IN AMERICA (2006) (examining the political and institutional causes of
mass incarceration); JONATHAN SiMON, GOVERNING THROUGH CRIME: How THE W.AR ON CRIME
TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR (2007) (examining the
political use of crime by the govemment and the implications for democracy); BRUCE WESTERN,
PUNISHMENT AND INEQUALITY IN AMERICA (2006) (chronicling the rise of mass incarceration and
its effect on social inequality).
31. See generally PAUL BUTLER, LET'S GET FREE: A HlP HOP THEORY OF JUSTICE (2009)
(examining criminal punishment from the vantage point of a prosecutor); GLENN LOURY, RACE,
INCARCERATION AND AMERICAN VALUES (2008) (discussing the legacy of race as a factor in mass
incarceration); Dorothy Roberts, Social and Moral Cost of Mass Incarceration in African American
Communities, 56 STAN. L. REV. 1271 (2004) (exploring the role of race in mass incarceration).
32.
See, e.g., PROVINE, supra note 24, at 114 (arguing that the war on dmgs is an exemplar of
colorblind or laissez-faire racism, where negative stereotypes and images of black Americans shape
public policy). See generally ALEXANDER, supra note 26 (arguing that the war on drugs is a key
component of a new racial caste system that works through the criminal justice system).
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means of chipping away at mass incarceration in part assumes that the war
on dmgs drove the expansion of the prison population during the last thirty
years and that dmg offenders continue to make up a significant proportion of
prison inmates. While it is tme that dmg offenders constitute the majority of
inmates in federal prison, federal inmates make up less than 10% ofthe total
incarcerated population in the United States,^^ and less than 20% of state
inmates are currently incarcerated for dmg offenses.^" In fact, it is not well
known how dmg offenses contributed to the growth of incarceration at the
state level. This Article addresses this lack of knowledge in two regards.
First, it summarizes findings on the causes of aggregate state incarceration
growth (i.e., all states considered together). These analyses narrow the scope
of inquiry to specific stages of criminal justice processing and specific
offenses that contributed to the growth in distinct time periods. Second, this
Ariicle uses a case study of one state, Florida, to investigate the possible
policies and practices that actually caused incarceration rates to increase,
even as crime rates significantly declined. In this way, this Article uses the
case study of Florida to better understand the role of dmg offenses in the
national trend to mass incarceration.
This Article argues that the best way to understand incarceration growth
is to consider the growth in three distinct time periods. Using this
framework, both the aggregate state-level analysis and the case study of
Florida demonstrate that while the war on dmgs was the main cause of
incarceration growth in the initial period, a change in prosecutors' abilities
to secure convictions for a variety of offenses, an increase in the time served
for all inmates, and (to a lesser extent) an increase in use of incarceration for
parole violations and DUI, weapons, and "other" offenses better explains the
continued growth in incarceration rates. Importantly, however, the case
study demonstrates that mass incarceration was predicated upon the war on
dmgs. This suggests that racialized public policyin the form ofthe war on
dmgshas had a prolonged and lasting negative impact on substantive
justice.
II. AGGREGATE TRENDS IN STATE-LEVEL IMPRISONMENT GROWTH
As sociologists of punishment have long maintained and those familiar

with criminal justice practice attest, there is not a direct relationship between
33.
LAUREN
E.
GLAZE,
BUREAU
OF JUSTICE
STATISTICS,
U.S.
DEP'T
OF JUSTICE,
CORRECTIONAL POPULATIONS IN THE UNITED STATES 1, 7 (2010), available at http:/^js.ojp.usdoj.
gov/content/pub/pdfi'cpus09.pdf.
34.
HEATHER C. WEST ET AL.. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE,
PRISONERS IN 2009, at 7 tbl.7 (2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/p09.pdf
321
crime and punishment." The criminal justice system is comprised of a

complex series of choices by multiple decision-makers, including the
offender's commission of a crime, the police officer's arrest of the offender,
the prosecutor's decision to prosecute, and the court's adjudication of the
case and sentencing of the defendant. Nor is there a direct relationship
between criminal law and punishment.^* In practice, discretion within the
system causes variation in the implementation of law and policy depending
on political, institutional, and cultural contexts (and some individual
idiosyncrasies). As a consequence, changes to policy often cause
unanticipated outcomes. Furthermore, in a federalist system, local, state, and
federal officials display discretion and do not always coordinate practices
between (or often within) states.
Yet in its simplest form, the number of people in prison per capita in
any given locale is necessarily determined by the crime rate, the arrest rate,
the conviction rate, the imprisonment rate (the proportion of prison
sentences per conviction), and the time served in prison.^^ Therefore, the
first step in parsing out the reasons behind increasing incarceration rates (as
measured per 100,000 population) is to understand how changes in these
rates contributed to changes in incarceration. The second step is to link the
changes in these rates to changes in policy or practice. For example, an
increase in the number of arrests per reported crime could be caused by a
decision to put more police officers on the street. An increase in the number
of convictions per arrest could reveal prosecutors' decisions to file charges
for a crime that previously received a slap on the wrist. An increase in the
number of prison admissions per conviction could be caused by a new law
that mandates prison sentences for crimes that previously brought probation
or by changes to judges' behavior in reaction to high-profile crimes.
The policies associated with the war on dmgs conceivably impact any
and all of these decision points. Of course, dmg offenses are discretionary in
a way that is completely different from other criminal offenses. Unlike
violent crimes or theft, where a victim reports an incident to the police or
reports their victimization in a survey, dmg offenses have no traditional
victim.^* Commimity members victimized by dmg sales may report "dmg
35. Garland, supra note 29, at 6-10; see also William J.Stuntz, The Pathological Politics of
Criminal Law, 100 MICH. L. REV. 505 (2001); John R. Sutton, Imprisonment and Social
Classification in Five Anglo-American Democracies, 1955-1985, 106 AM. J. SOC. 350 (2000).
36.
Stuntz, supra note 35, at 506.
37. Alfi-ed Blumstein & Allen J. Beck, Population Growth in US Prisons, 1980-1996, 26
CRIME & JUST. 17, 26 (1999); .see also Todd R. Clear & James Austin, Reducing Mass
Incarceration: Implications of the Iron Law of Prison Populations, 3 HARV. L. & POL'Y REV. 307,
308 (2009) (stating that the total number of prisoners behind bars is purely and simply a result of two
factors: the number of people pul there and how long they stay).
38.
See generally EDWIN M. SCHUR, CRIMES WITHOUT VICTIMS: DEVIANT BEHAVIOR AND
322
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activity" to local authorities, but an otherwise independent measure of dmg

crimes does not exist. When criminal justice officials and researchers cite
"dmg offenses," what they mean is arrests for drug offenses.^' Between
1974, when incarceration rates began rising nationally, and 1982, when
President Ronald Reagan officially declared a war on dmgs, dmg arrest rates
(the number of dmg arrests per 100,000 population) remained stable."" Thus,
any increase in incarceration at the state level during this period was most
likely a result of the increase in non-dmg offenses, law-enforcement
resources to make arrests, and/or sentencing policy changes that abolished
parole for new admissions to prison:""
To interrogate the relative contribution of dmg-offense processing to
the increase in incarceration rates since 1980, it is helpftil to identify three
time periods that correspond to important penal policy trends. The three
periods are: 1980 to 1993 (from the declaration of the war on dmgs through
its zenith); 1994 to 2000 (from the beginning of the downward trend in
crime rates to the stabilization of high incarceration rates); and 2001 to the
present.
A. Incarceration Growth from 1980 to 1993
In the past three decades, the largest increase in incarceration rates
occurred between 1980 and 1993."^ In the aggregate, between 1980 and
1993, state incarceration rates increased 148%, from approximately 130 to
PUBLIC POLICY: ABORTION, HOMOSEXUALITY, DRUG ADDICTION (1965) (discussing the idea that
unlike other crimes, drug offenses do not have traditional victims),

39,
See, e.g., William Sabol, Implications of Criminal Justice System Adaptation for Prison
Population Growth and Corrections Policy 29 (2011) (unpublished manuscript), available at
http://www,albany,edu/scj/documents/Sabol_ManagingPopulations_000,pdf
40,
See Bureau of Justice Statistics, Key Facts at a Glance, OFF, JuST. PROGRAMS (Sept. 6,
2011), http:/^js.ojp,usdoj,gov/content/glance/tables/drt4gtab,cfh^, Between 1972 and 1982, drug
arrests averaged approximately 600,000 per year even as the population increased. Id. Before 1982,
the number of arrests (for both adults and juveniles) varied by less than 100,000 and fiuctuated,
increasing some years and decreasing others. Id. After 1982, arrests consistently increased each year.
Id
41,
See KATHERINE BECKETT, MAKING CRIME PAY: LAW AND ORDER IN CONTEMPORARY
AMERICAN POLITICS 92 (1997) (discussing how only after the 1980s djd the states follow the federal
govemment's lead in waging a war on dmgs); Theodore Caplow 8i Jonathan Simon, Understanding
Prison Policy and Population Trends, in CRIME AND JUSTICE, A REVIEW OF RESEARCH: PRISONS 63,
102 (Michael Tonry & Joan Petersilia eds,, 1999) (discussing parole as a device for managing prison
populations before the 1980s), See generally MALCOLM FEELEY & AUSTIN SARAT, THE POLICY
DILEMMA: FEDERAL CRIME POLICY AND THE LAW ENFORCEMENT ASSISTANCE ADMDMISTRATION
1968-1978 (1980) (discussing the increase of federal resources for local crime-control efforts in the
1970s),
42,
See supra note 41 and accompanying text; infra notes 43-52, 58 and accompanying text
(showing the aggregate state incarceration rate increased by an average of 11% per year between
1980 and 1993, 4% per year between 1994 and 2000, and 1,3% per year between 2000 and 2009),
323
322 per 100,000 people."^ According to an analysis by Al Blumstein and

Allen Beck, "[d]mg offending is the major component of the overall
growth" during this period."" They found that 33% of the growth in
incarceration during this period is attributable to dmg offenses, 43% to
violent offenses, and the rest to property and other offenses."^ The number of
inmates in state prison for dmg offenses rose from 19,000 in 1980 to
186,000 in 1993, or from 6% to 22% of total state prison populations."^ To
understand this growth in incarceration, Blumstein and Beck pariitioned the
growth into major offense categories and four stages of criminal justice
processing: offense (rate per 100,000 population), arrest (rate per offense),
prison commitment (rate per arrest), and time served (expected years in
prison)."^ They found that for dmg offenses, the offense rate (as measured
by arrests) increased approximately 4.8% per year, with the bulk of the
increase between 1984 and 1989 and a sUght decline between 1989 and
1993."^ This overall increase in arrests, along with an increase in prison
commitments per dmg-offense arrest of 8.8% per year (again, primarily after
1984), caused the incarceration rate for dmg offenses to increase fivefold."'
For offenses other than dmgs, the growth in incarceration resulted from
increases in decisions to incarcerate (prison commitments per arrest) and
increases in time served, rather than increases in offenses or arrests per
offense (although both did increase slightly for assaults).^" They estimate
that prison commitments per arrest for murder and sexual assault went up
most dramatically, by about 2.5% and 5.5% per. year, respectively.''
Although the amount of time inmates served increased slightly across all
43. Page Harrison, Incarceration Rates for Prisoners Under State or Federal Jurisdiction, Per
00,000 Residents, BUREAU JUST. STAT. (2011), http:/^js.ojp.usdoj.gov/content/data/corpop25.csv
(showing the rate of prisoners incarcerated in state facilities sentenced to over one year).
44.
Blumstein & Beck, supra note 37, at 21. The time period they examine is slightly
different1980 to 1996. d. This Article categorizes the time periods based on Sabol's later analysis
and the observation that the huge growth in dmg-offense incarceration had slowed by 1993. See
Sabol, supra note 39.'
45.
Blumstein & Beck, .supra note 37, at 22, 24.
46.
DARRELL K. GILLIARD & ALLEN J. BECK, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF
JUSTICE, PRISONERS IN 1994, at 11 (1995), available at http://bjs.ojp.usdoj.gov/content/pub/

pdfiTi94.pdf
47.
Blumstein & Beck, .swpra note 37, at 26.
48. Id. at 30 (noting the dmg arrest rate "peaked in 1989"); id. at 40 (providing a table
showing the dmg offense rate growth at 4.8% per year).
49.
Id. at 21 (showing a five-fold increase in incarceration rate for dmg offenders); id. at 40
(showing an 8.8% yearly increase in prison commitments per dmg offense).
50.
Id at 40, 42.
51.
W. at40.
324
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violent offenses (and burglary), once again the estimated time served for
murder and sexual assault drove the increase.^^.
:
. . . .
B. Incarceration Growth from 1994 to 2000
Beginning in 1993, and through 2000, violent crime rates began to
decrease by approximately 7.4% to 8% per year.^^ Yet, over the same
period, state incarceration rates continued to increase, rising from 351 to 429
per 100,000 people, resulting in an increase of 22%.^" According to an
analysis by William Sabol. of the Bureau of Justice Statistics, dmg-offense
processing represents only 14.9% of this increase, while more than 58.1% is
due to incarceration for violent crimes (murder, rape, robbery, and
aggravated assault).^^
In his analysis, Sabol added a category not used by Blumstein and
Beck: convictions per arrest, which allowed him to make a distinction
between increases in incarceration because of decisions at the prosecution
stage (prosecutor's ability to secure a conviction)^* and at the sentencing
stage (judge's imposition of a prison sentence)." He found that as crime
rates for violent and property crimes decreased, incarceration for these
crimes grew because of an increase in the number of convictions per arrest
and an increase in expected time served. ^^ On the other hand, incarceration
rates for dmg offenses continued to rise (although by less than previous
years) mainly because of an increase in dmg-offense arrests.^^ While the
52. Id. at 40, 42. Time served for murder went from five to nine years, and time served for
sexual assault increased from 3.1 to 4.1 years between 1980 and 1993. Id. at 36.
53. 5ee Alfred Blumstein & Joel Wallman, The Crime Drop and Beyond, 2 ANN. REV. L. &
Soc. SCI. 125, 126 (2006) (stating between 1993 and 2000 the murder rate declined by 7.4% per
year, the robbery rate declined by 8% per year, and property (burglary) rates had been dropping
4.3% per year since 1986).
54.
, 55.
See Sabol, supra note 39, at 24.

Id at 37 tbl.4.
56. See SiMON, supra note 30, at 39 (noting that the power of the prosecutor creates an
additional level of sentencing policy) "[N]early every county in the United States has its own
criminal justice policy based on which charges the prosecutor chooses to bring or not to bring." Id.
57.
Sabol, supra note 39, at 7.
58. Id. at 15; see also Alfred Blumstein & Allen J. Beck, Reentry as a Transient State Between
Liberty and Recommitment, in PRISONER REENTRY AND CRIME IN AMERICA 56 n.l6 (Jeremy Travis
& Christy Visher eds., 2005) (finding that between 1992 and 2000, 60% of the increase in
incarceration rate was due to increases in length of stay).
59. Sabol, supra note 39, at 16. It is important to note that for violent and property crimes,
arrest to crime ratios remained fairly stable over this periodmeaning that as crime rates decreased,
the police did not increase their enforcement of violent or property crime. Id. at 35 tbl.2. Dmg arrest
rates did increase from 519 to 561 per 100,000, representing the possibility that police were
325
increasing police enforcement of dmg offenses did contribute to the growth

of the overall incarceration rate, Sabol finds no evidence that prosecutors or
judges treated dmg offenses more harshly during this period.*"
C Incarceration Growth from 2001 to 2009
In contrast with the earlier period, the aggregate state incarceration rate
between 2000 and 2009 only increased from 432 to 442 per 100,000 people
(approximately 2.3%).*' In fact, growth of the state prison population
between 2000 and 2005 averaged 1.5% per year compared to annual growth
rates of between 3.4% and 8.7% during the 1990s;*^ in 2006, the annual
growth rate ofthe prison population began to decrease.*^ In 2008, the U.S.
prison population grew by less than 1%, and in 2009, for the first time in
thirty-eight years, state prison populations in the aggregate actually
decreased by 0.2%.*"
Between 2000 and 2006, the years Sabol included in his analysis of
aggregate state incarceration rates, crime rates for all offense categories,
except dmgs, continued to decrease (although by less than the previous
period); dmg arrests continued to increase (by 12.5% versus 8%).*^ Unlike
the previous period, a decrease in time served (for property and dmg-offense
categories) put a downward pressure on incarceration rates, while time
served for violent crimes and prison admissions per conviction remained
stable.** Sabol concluded that an increase in convictions per arrest for both
violent and property crimes caused the continued increase in the
substituting drug arrests for other offenses as crime declines. Id. at 35 tbl.2. As flirther evidence of
this, the increase in drug-offense arrests is entirely due to an increase in drug possession arrests. In
fact, arrests for drug trafficking declined. Id. at 10. In addition, prison admissions per conviction
were also relatively stable throughout this period (except for weapons offenses, which doubled).
This signals that court responses to convictions did not change considerably between 1994 and 2000.
Id at 18-19, 35 tbl.2.
60.
W. at 16, 18.
61.
WESTETAL., .sw/'ranote34, at3.
62.
WILLIAM J. SABOL ET AL,. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE,
PRISONERS IN 2006, at l (2007), available at http://bjs.ojp. usdoj.gov/content/pub/pdfp06.pdf

63.
WEST ET AL., supra note 34, at 1.
64.
Id. at 1, 2; iee also PEW CTR. ON THE STATES, PRISON COUNT 2010: STATE POPULATION
DECLINES FOR THE FIRST TIME IN 38 YEARS 1 (Apr. 2010), available at http://www.pewcenteronthe
states.org/uploadedFiles/Prison_Count 2010.pdf?n=88O.
65.
Sabol, supra note 39, at 35 tbl.2.
66. Id. at 17, 36 tbl.3. Table 3 shows that for 1994, 2000, and 2006, respectively, the expected
length of stay for violent offenses was 4.6, 5.7, and 5.8 years; for property offenses it was 2.2, 2.6,
and 2.1 years; and for drug offenses it was 2.1, 2.3, and 1.9 years. Id.
326
[15:2012]
incarceration rte.*^ It may be instmctive to note here that the conviction rate
for aggravated assault, property, and other offenses are driving this change
in prosecutors' propensities or abilities to secure convictions.^* Therefore,
although there was a slight decrease in propensity to convict defendants in
dmg-offense cases, prosecutions for other less serious index offenses
significantly increased, allowing the incarceration rate to escalate even as
crime continued its fifteen-year decline.*'
D. Narrowing the Inquiry on Incarceration Growth
The above analyses narrow the ihquiry from broad questions about how
incarceration rates increased over thirty years to specific questions about
particular stages in the criminal justice process. Thus, for the years 1980 to
1993, the relevant questions should focus on the war on dmgs. What caused
the number of arrests for dmg offenses to shoot through the roof? Of equal
importance, why did prosecutors and judges increasingly send dmg
offenders to prison? For the period between 1994 and 2000, the relevant
questions should instead focus on the increases in time served. Did offenders
receive longer sentences after 1994? Or were they somehow required to
serve more of their original sentences? For the contemporary period, 2001 to
2009, the relevant questions should focus on the continued increase in
convictions per arrest for lower-level violent and property offenses such as
aggravated assault, burglary, and weapons possession. Thus, in these years it
is vital to ask, what increased prosecutors' ability or proclivity to convict
offenders?
.;,
Finally, it is important to consider what connects these periods and
trends. In other words, how did the increase in dmg offender commitments
to prison in the 1980s influence th length of time served and prosecutors'
ability to secure convictions in the 990s and more recently? Because states
and local govemments impose different policies and implementation varies
by locale, these questions cannot be answered at the aggregate or national
level.^" Instead, answers must build from the ground up by focusing on one
state or locality at a time.
67.
Id at 17.
68. Id. at 35 (showing that overall, convictions per arrest between 2000 and 2006 went up by
only 18%, and the conviction rates that increased more than average included: rape (55%),
aggravated assault (36%), burglary (20%), fraud (34%), and other offenses (28%)).
69. Id. at 35 (showing the increase in convictions per arrest for property crimes (30%) is in
contrast to the decrease for dmgs (-1%)).
70. Mona Lynch, Mass Incarceration, Legal Change, and Locale: Understanding and
Remediating American Penal Overindulgence, 10 CRIMINOLOGY & PuB. POL'Y 673, 674 (2011).
Since every state and county has different policies and practices, aggregating them together for the
purpose of analysis can obscure reality.
327
III. CASE STUDY: EXPLAINING TRENDS IN STATE-LEVEL IMPRISONMENT
Incarceration rates^' in Florida closely track those for the nation as a

whole, except Florida is one of the few states whose incarceration rate
continues to increase.'^ Between 1980 and 2010, the incarceration rate in
Florida more than doubled.^^ Florida's prisons currently hold over 100,000
inmates, 93% of whom are male, 50% of whom are black, and 54% of whom
have not previously served time in a Florida prison.''' As is the case
nationally, just under 20% of the inmate population's primary offense is
dmg related, and 4000 of those inmates are incarcerated for dmg
possession." Florida inmates receive long sentencesdmg-offense
sentences average three years, robbery sentences average eight years, and
murder sentences average twenty-three and a half years.'* In addition.
71, Incarceration rates are defined as the number of people incarcerated in state prison per
100,000 population,
72, Inmate Population, FLA, DEP'T CORRECTIONS, http://www,dc,state.fl.us/pub/annual/
0809/stats/im_pop.html (last visited Mar. 20, 2012) (stating that in 2009, 536 of every 100,000
Floridians were incarcerated compared to 471 per 100,000 in 2005); Z'n.so Count 2010, supra note
64, at 2.
73, The author calculated yearly incarceration rates by dividing the inmate population on June
30 by the Florida population in that year and multiplying by 100,000. Inmate population data are
from the Florida Department of Corrections Annual Reports, Index to Statistics & Publications, FLA,
DEP'T CORRECTIONS, http://www,dc.state,fl,us/pub/index,html (last visited Mar. 20, 2012), The
website provides data for the 1995/1996 fiscal year through the 2009/2010 fiscal year. See id. For
years prior to 1995/1996, data is on file with the author. The US, Census data of the Florida
population is available at various locations online, Richard L, Forstall, Florida: Population of
Counties by Decennial Census 1900 to 1990, U.S. CENSUS BUREAU, http://www,census,gov/
populatin/cencounts/fll90090.txt (last visited Mar, 20, 2012) (providing data from 1980 and 1990);
State Population Estimates, U,S, CENSUS BUREAU, http://www,census,gov/popest/archives/
1990s/ST-99-03,txt (last visited Mar,. 20, 2012) (providing data from 1993); Profile of General
Demographic Characteristics: 2000, U.S. CENSUS BUREAU, http://factfinder.census.gov/servlet/
QTTable?_bm=n&_lang=en&qr_name=DEC_2000_SF 1 _U_DP 1 &ds_name=DEC_2000_SF 1 _U&g
eo id=04000US12 (last visited Mar, 20, 2012) (providing data from 2000); Group Quarters
Population by Group Quarters Type, U.S, CENSUS BUREAU, http://factfinder2.census.gov/faces/
tableservices/jsf/pages/productview,xhtml?src=bkmk) (last visited Mar, 20, 2012) (providing data
from 2010); ,see a/,so//ô Table E,
74, Inmate Population: General Characteristics of Population, FLA, DEP'T CORRECTIONS,
http://www,dc,state,fl,us/pub/annual/0809/stats/ip_general.html (last visited Mar, 20, 2012); see
Community Supervision Population, FLA. DEP'T CORRECTIONS, http://www.dc.state,fi.us/pub/
annual/0809/stats/csp.html (last visited Mar. 20, 2012) (stating that as of June 30, 2009, another
157,222 offenders were in community-supervision programs),
75, Inmate Population: Population by Primary Offense, FLA, DEP'T CORRECTIONS,
http://www,dc,state,fi,us/pub/annual/0809/stats/ip_primary,html (last visited Mar, 20, 2012),
76, See Inmate Admissions: General Characteristics of FY 20082009 Admissions, FLA,
DEP'T CORRECTIONS, http://www.dc,state,fi.us/pub/annual/0809/stats/ia_genadm.html (last visited
Mar, 20, 2012),
328
[15:2012]
Florida inmates typically serve over 85% of their sentences.'^ To better

understand the growth of the prison population in Florida, this Pari parcels
out the crime trends,'^ arrest trends,'' admission trends,^" and expected time
served by the time periods discussed above.^' In addition, it begins to
uncover the state-level policies and practices driving these
77. Inmate Releases and Time Served: Facts About Time Served. . ., FLA. DEP'T
CORRECTIONS, http://www.de.state.fl.us/pub/annual/0809/stats/ir_type.html (last visited Mar. 20,
2012).
78. The author compiled crime rate data from the Uniform Crime Reports (UCR). Uniform
Crime Reports, FED.' BUREAU INVESTIGATION, http://www.ucrdatatool.gov/Search/Crime/
Crime.cfni (last updated Mar. 29, 2010) (providing offense data and offense rate data from 1970 to
2008). See infra Table A. The data includes four categories of crime (as available): violent crime
(murder and non-negligent manslaughter, forcible rape, robbery, aggravated assault, and arson),
property crime (burglary, larceny-theft, and motor vehicle then), total Index crimes, and dmg crime.
For a definition of index crimes, see Uniform Crime Reports: General FAQs, FED. BUREAU
INVESTIGATION, http://www.fbi.gov/about-us/cjis/ucr/frquently-asked-questions/ucr_faqs
(last
visited Mar. 20, 2012) [hereinafter Uniform Crime Reports] (defining index crimes as the eight
crimes the FBI combines to produce its annual crime index; these offenses include willful homicide,
forcible rape, robbery, burglary, aggravated assault, larceny over fifty dollars, motor vehicle theft,
and arson).
79.
The author calculated yearly arrest rates per one hundred offenses by dividing the number
of arrests in a specific crime category in each year, multiplied by 100, by the number of Uniform
Crime Reports offenses in that crime category in that year. UCR Arrest Data, FLA. DEP'T L.
ENFORCEMENT, http://www.fdle.state.fi.us/Content/FSAC/DataStatistics-%281 %29/UCR-ArrestData/UCR-Arrest-Data.aspx (last visited Mar. 20, 2012) (providing arrest data from 1971 to 2008);
Uniform Crime Reports, supra note 78 (providing offense data from 1970 to 2008); .see infra Table
B.
80.
The author calculated yearly admissions rates per one hundred arrests by dividing the
number of admissions in a specific crime category in each year, multiplied by 100, by the number of
arrests in that crime category in that year. Index to Statistics & Publications: Prison Admissions,
FLA. DEP'T CORRECTIONS, http://www.dc.state.fl.us/pub/index.html (last visited Mar. 20, 2012)
(providing admissions data from 1995 to 2009). Florida Department of Corrections Annual Reports
prior to the year 1995/1996 are on file with the author. They provided admissions data from 1980 to
1995. See also UCR Arrest Data, supra note 79 (providing arrest data); infra Table C.
81. The author compiled average time served data from Time Served by Criminals Sentenced
to Florida's Prisons: The Impact of Punishment Policies from 1979 to 2004, FLA. DEP'T
CORRECTIONS, http://www.dc.state.fi.us/pub/timeserv/annual/index.html (last visited Mar. 20,
2012). eej/T-a Table D.
82.
Federal and local policies and practices also drive these trends. The author mentions
federal policy when relevant, but research on local policy is curiously lacking. The author draws on a
variety of primary data from her larger case study of state-level punishment and politics in Florida
including records from the Florida State Archives of state officials' correspondence and information
exchange around key issues; court documents such as legal briefs, hearing transcripts, and court
orders; and fifty-three formal interviews with key actors (including state legislators, corrections
administrators, legislative staffers, and lawyers), which reveal behind-the-scenes interactions and
intentions that are not available via written record. Numerous informal conversations and field visits
to a number of Florida's correctional facilities also inform the analysis. Interviews mainly took place
in person, but phone interviews are noted when applicable. All archival documents are on file with
the author unless otherwise noted.
329
A. Florida Incarceration Pre-1980

In the two decades before 1980, Florida, like other states, experienced a
drastic increase in reported violent and property crime.*^ At the same time,
state and local police acquired new resources, allowing them to make more
arrests, especially after 1970.^'' Over the course of the 1970s, the prison
population grew from just under 10,000 to just under 20,000, an increase
that can be linked primarily to population gro'wth, an increase in crime rates,
and the capacity of police departments and courts.*^ The main issue
associated with this increase was that the capacity of the prison system did
not expand at the same pace. Prisons were constantly overcrowded and
suffered from decades of neglect, partially due to the racialization of the
prison system in the post-Civil War Era.^* In 1972, 10,000 inmates were
living in facilities designed to house fewer than 6200,^^ resulting in the
"[c]rowding of as many as 10 men into cells" and contributing to a major
riot at Florida State Prison.^^ In 1972, the Florida inmates' living conditions
sparked a lawsuit against the Department of Corrections for relief from
overcrowding and inadequate medical care that caused "substantial harm to
inmates in violation of the Eighth Amendment prohibition against cmel and
unusual punishment."^'
:
The court case spurred Florida state legislators to increase investments
83. Supra note 78 (citing data from the UCR). In Florida, the violent crime rate grew by
340%, and the property crime rate increased by 199%. Id. Nationally, the violent crime rate grew by
270%, and the property crime rate by 210%. Id.
84. See generally U.S. DEP'T OF JUSTICE, TRENDS IN EXPENDITURE AND EMPLOYMENT DATA
FOR THE CRIMINAL JUSTICE SYSTEM, 1971-1976 (1978) (showing that nationwide police
expenditures were the largest proportion of justice expenditures during this time period); Statewide
Part I Arrests 1971-1995, FLA. DEP'T L. ENFORCEMENT, http:y/www.fdle.state.ft.us/Content/
getdoc/3a4dc707-7447-4499-b471-436228b34ro3/arrests71-95.aspx (last visited Mar. 20, 2012)
(showing that arrests for Part I offenses almost doubled between 1971 and 1980).
85.
FLA. DEP'T OF CORR., 1972 ANNUAL REPORT 79 (1972) (on file with author) [hereinafter
FLA. DEP'T OF CORR., 1972]; FLA. DBP'T OF CORR., 1980 ANNUAL REPORT 70 (1980) (on file with
author). See generally STEVEN W. HAYS, COURT REFORM: IDEAL OR ILLUSION? (1978) (explaining
court reform in Florida in the 1970s).
86.
MATTHEW MANCINI, ONE DIES, GET ANOTHER: CONVICT LEASING IN THE AMERICAN
SOUTH, 1866-1928, at 183-97 (1996).

87.
FLA. DEP'T OF CORR., 1972, supra note 85, at 79 (reporting a prison population of 10,102
on June 30,1972); HOWARD OHMART & HAROLD BRADLEY, AM. JUSTICE INST., OVERCROWDING IN
THE FLORIDA PRISON SYSTEM: A TECHNICAL ASSISTANCE REPORT E-1 (1972) (reporting a "normal
capacity" for the prison systems of 6132).

88.
OHMART&BRADLBY, 5pranote87, at A-10.
89. Costello V. Wainwright, 1489 F. Supp. 1100, 110 (M.D. Fla. 1980) (citing the Order
Approving Settlement Agreement). For an analysis of Costello v. Wainwright and its impacts, see
Heather Schoenfeld, Mass Incarceration and the Paradox of Prison Conditions Litigation, 44 LAW
S O C ' Y R E V . 731 (2010).
330
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to the prison system, as it coincided with a change in political representation

at the state level.^'' By 1980, the U.S. District Court for the Middle District
of Florida found that the legislature had "provided very substantial
increases" in spending per year per inmate (from approximately $3500 in
1972 to $7500 for the 1981/1982 fiscal year) and in the constmction of new
facilities ($141 million).^' Despite additional prison capacity, at the start of
the 1980s Florida's prison system was still overcrowded, and legislators had
begxin scaling back on new facilities.'^
B. Florida Incarceration 1980 to 1993
The 1980s was a period of great change in Florida politics, and crimecontrol policies shifted concurrently as a result. The prison population more
than doubled, rising from just under 20,000 in 1980 to over 50,000 in
1993.'-' Per capita, the incarceration rate increased from 202 to 369 per
100,000 (an increase of 83%).'" Property crime rates (burglary, larceny, and
motor vehicle theft) during this period remained relatively stable, declining
by 20% in the early part ofthe decade and peaking in 1988 (30% higher than
at its low point).'^ Violent crime rates (murder, non-negligent manslaughter,
forcible rape, robbery, and aggravated assault) increased by 25% between
1981 and 1993, entirely because of an increase in reported robbery and
aggravated assault.'* In the 1980s, the arrest rates per one hundred index
offenses remained stable, ranging from 17.2 to 19.5.'' However, yearly
90.
DAVID R. COLBURN, FROM YELLOW DOG DEMOCRATS TO RED STATE REPUBLICANS:
FLORIDA AND ITS POLITICS SINCE 1940, at 73-98 (2007).
91.
See Costello, 489 F. Supp. at 1102 (citing Consent Order and Judgment).
92. Id. (discussing increased capacity); Letter from Louie Wainwright to Govemor Graham,
(Jan. 13, 1981) (on file with author) (discussing "problems of inmate population growth"); FLA.
H.R., COMM. ON CORR., CORRECTIONS ISSUES ORIENTATION PACKAGE 13 (1996) [hereinafter
CORRECTIONS ISSUES ORIENTATION PACKAGE] (stating that for the 1980/1981 and 1981/1982 fiscal
years combined, the legislature appropriated funds for just 405 additional beds; however, to keep up
with state population growth, the Department needed approximately 1400 more beds).
93. See supra note 73 (citing data from Florida Department of Corrections Annual Reports);
.see also infra Table E.
94. See supra note 73 (citing data from Florida Department of Corrections Annual Report and
the U.S. Census Bureau); .yee also infra Table E.
95. See supra note 78 (citing data from the UCR) (showing a decrease in property crime rates
between 1980 and 1984 and an increase between 1984 and 1993); .see also infra Table A.
96. See supra note 78 (citing data from UCR) (showing that murder and rape rates go down
between 1980 and 1993); iee also infra Table A.
97. See supra note 79 (citing data from UCR and the Florida Department of Law
Enforcement). These numbers appear low because they do not disaggregate violent and property
crime. Id.; see also infra Table B (showing that in 1990, the first year that disaggregated arrest data
331
prison admissions for new offenses skyrocketed. at the end of the decade,
going from an average of 12,800 per year between 1981 and 1985 to. a peak
of 44,000 in 1989/1990, an increase of 244%.'* This increase was almost
entirely attributable to admissions for dmg offenses." Between 1981 and
1990 the admission-to-arrest ratio for dmg offenses jumped 460% from 2.8
to 15.7 admissions per hundred arrests."*"
Although President Reagan declared a war on dmgs in the early
1980s,"" arrests for dmg offenses in Florida at the state level grew only
slightly before 1985.'"^ This all changed in the summer of 1986, with the
media discovery of "crack" cocaine and a renewed political attention to
fighting dmg crimes on both the national and state levels.'"^ In fact, freebase
cocaine or the practice of smoking cocaine had been popular among Miami's
upper and upper-middle class since the early 1980s."''' Although the media
portrayed this phenomenon as potentially harmful, it was thought to be a
problem of those with money, and one that could be overcome with dmg
treatment.'"^ By the fall of 1985, however. South Florida newspapers began
reporting the existence of cocaine "rocks," "coked out" burglars going on
crime sprees, and "freebasing," a methpd of "injecting [cocaine] into your
brain without a needle" that was no longer just for the rich.'"* This concem
multiplied in the summer of 1986, when Leonard Bias, a college basketball
is available, arrest rates were thirty-five and fifteen per one hundred for violent and property
offenses, respectively).
98. See supra note 80 (citing data fi-om Florida Department of Corrections Annual Reports)
(calculating average yearly admissions between 1981 and 1985).
99. FLA. DEP'T OF CORR., 1988 ANNUAL REPORT 1, 25 (1988) (on file with author) (noting
that one in three admissions for 1988 to 1989 was for dmg offenses and showing that admissions to
prison for dmg offenses increased over 1600%, compared to admissions 746% for theft and 255%
for violent offenses).
100. See supra note 80 (citing data from Florida Department of Corrections Annual Reports and
Florida Department of Law Enforcement); .see also infra Table C.
101. See generally MICHAEL TONRY, MALIGN NEGLECTRACE, CRIME AND PUNISHMENT IN
AMERICA (1995) (discussing Ronald Reagan's war on dmgs).
102.
See supra note 79 (citing data from Florida Department of Law Enforcement).
103. See ALEXANDER, supra note 26, at 49 (arguing that the Reagan Administration purposely
fanned the media fimes around crack to win support for its war on dmgs).
104.
See, e.g., Miami Herald Staff, Renew Drug War, MIAMI HERALD, Feb. 14, 1984, at 22A.
105. See, e.g., Itabari Njeri, Freebasing: Just Six Seconds from Hit to Trouble, MIAMI HERALD,
Aug. 22, 1982, at 7G.
106. Ray Huard, Cocaine a Cheap High, Hotline Finding, MIAMI HERALD, Nov. 21, 1985, at
lPB; e.g., Herbert Buchsbaum, Arrests Crack Two-County Burglary Ring, Police Say, ML^Ml
HERALD, NOV. 16, 1985, at 2TC; Editorial, Police Arrest Two Alleged Drug Dealers, MIAMI
HERALD, Sept. 12, 1985, at 11; Jeff Leen, Freebase Coke Use Sweeping South Florida, MIAMI
HERALD, Dec. 30,1985, at IB.
332
[15:2012]
star, died from heart complications presumably related to a cocaine

overdose.'"' In June 1986, "Newsweek declared crack to be the biggest story
since VietnamAVatergate and in August of that year. Time Magazine termed
crack the 'issue of the year.'"'"^
Prompted by media attention and facilitated by federal funds, law
enforcement in Florida, as in other states, focused on arresting urban
residents that possessed or sold drugs."" Although the rate of violent crime
had actually started increasing a few years earlier, the media blamed crack
for an increase in violence, thus reinforcing the perceived need for increased
arrests and confinement. " Between 1985 and 1987, arrests in Florida for
the sale and possession of cocaine increased by 168%.'" The tactics of the
police and the focus on crack cocaine had a disproportionate impact on black
offenders: dmg arrests for blacks grew by 117%, but only rose by 2 1 % for
whites."^ Admissions to prison for dmg offenses went from 15% of total
admissions in 1985 and 1986 to 36% in 1989 and 1990."^
Dmg arrests were not the sole cause of the increase in admissions to
107.
BECKETT, iujora note 41, at 55-56.
108.
M at 56,
109,
ALEXANDER, supra note 26 (explaining the Edward Byme Memorial State and Local Law
Enforcement Assistance Program, which significantly increased state and local resources for
enforcement of dmg laws); see, e.g.. Editorial, Strength in Drug-Fight Unity, ORLANDO SENTINEL,
July 24, 1986, at A18 (reporting on one such effort in Central Florida),
110,
E.g., Tammerlin Dmmmond, Police Deaths on Rise in Florida: Officials Blame
Transients, Drugs, Gun Law for Increase, ST, PETERSBURG TIMES, Jan, 11, 1987, at IB; Jacquee
Petchel, Mother's Nightmare Innocent Daughter Killed in Drug Fight, MIAMI HERALD, Aug, 30,
1987, at IBR; Lauren Ritchie & Kristen Gallagher, Drug Buy Becomes Deadly Deal Woman Was
Victim of Rising Cocaine Violence in Orlahdo, ORLANDO SENTINEL, June 26, 1988, http://articles,
orlandosentinel,com/1988-06-26/news/0050110172_l_huff-crack-cocaine-west-orlando,
H I . UNIF, CRIME REPORTS BUREAU, FLA, DEP'T OF LAW ENFORCEMENT, UNIFORM CRIME REPORT
(1981); UNIF, CRIME REPORTS BUREAU, FLA. DEP'T OF LAW ENFORCEMENT, UNIFORM CRIME
REPORT (1982); UNIF. CRIME REPORTS BUREAU, FLA, DEP'T OF LAW ENFORCEMENT, UNIFORM
CRIME REPORT (1983); UNIF, CRIME REPORTS BUREAU, FLA, DEP'T OF LAW ENFORCEMENT,
UNIFORM CRIME REPORT (1984); UNIF. CRIME REPORTS BUREAU, FLA, DEP'T OF LAW
ENFORCEMENT, UNIFORM CRIME REPORT (1985); UNIF, CRIME REPORTS BUREAU, FLA. DEP'T OF
LAW ENFORCEMENT, UNIFORM CRIME REPORT (1986); UNIF, CRIME REPORTS BUREAU, FLA, DEP'T
OF LAW ENFORCEMENT, UNIFORM CRIME REPORT (1987); UNIF, CRIME REPORTS BUREAU, FLA,
DEP'T OF LAW ENFORCEMENT, UNIFORM CRIME REPORT (1988); UNIF, CRIME REPORTS BUREAU,
FLA, DEP'T OF LAW ENFORCEMENT, UNIFORM CRIME REPORT (1989); UNIF, CRIME REPORTS
BUREAU, FLA. DEP'T OF LAW ENFORCEMENT, UNIFORM CRIME REPORT (1990). These annual
reports provided the data on dmg possession and sale arrests by race. The author calculated an
increase in dmg arrests for sale and possession of cocaine between 1985 and 1987 using the data
from these reports.
112,
See sources cited supra note 111, The author calculated an increase in drug arrests by race
between 1985 and 1987,
113,
See supra note 80 (citing data from the Florida Department of Corrections Annual
Reports) (calculating the percentage of admissions where a dmg offense was the primary offense).
333
prison. Prosecutors and the couris also treated drug-offense arrests more
harshly."" By the end of the decade, prison admissions for dmg offenses
increased twofold for white offenders and increased eightfold for black
offenders."^ At the height ofthe dmg war in 1988, couris sentenced 34% of
black dmg offenders to state prison, compared to 13% of white dmg
offenders."^
Coinciding with couri monitoring ofthe prison overcrowding settlement
agreement'" and a change in state leadership (from Democratic to
Republican),"^ the war on dmgs triggered two imporiant penal policy
decisions. When faced with a couri order to keep prison capacity at a ceriain
level, which designated a minimum square footage per inmate,'" and
thousands of new entrants to the prison system every day, legislators opted
to reduce pressure on the prison system by releasing inmates before the
expiration of their sentences and by constmcting new prisons.'^" Thus,
instead of addressing the infiux of low-level dmg offenders into the system,
legislators opted to invest in prisons as a necessary partner to the war on
dmgs. The racial implications of this decision cannot be understated. As one
black legislator explained,
IVIany of us knew that we are locking up a lot of people that needed
help. Dmg related help . . . . [I]n a lot of the poorer communities,
dmgs were prevalent and so, as a result, we were overstocking
prisons and not having room for more violent offenders . . . .
[Black dmg offenders] need[ed] to be in treatment. But that's the
way the system responded.'^'
In tum, a public backlash to "back door" releases from prison reinforced
114. See infra Table C (showing an increase in admissions per 100 arrests for dmg offenses
between 1981/1982 and 1990/1991).
115. See supra note 80 (citing data from Florida Department of Corrections Annual Reports)
(calculating the increase between 1985/1986 and 1989/1990 in the number of admissions for white
and black inmates whose primary offense was dmgs).
116. See sources cited supra note 111; .see also supra note 80 (citing data from the Florida
Department of Corrections Annual Reports) (calculating the number of white and black inmates
admitted to prison for a dmg offense in 1988/1989 by the number of white and black arrests for dmg
offenses that year). Another way to look at this increase in prison admissions per arrest is by
comparing it to other crimes. Between 1980 and 1990, prison admissions for index offenses per 100
arrests went up 43%. See infra Table C. For dmg offenses, it went up by 485%. Id.
117.
Costello V. Wainwright, 484 F. Supp. 1110 (M.D. Fla. 1980).
118.
COLBURN,.yupranote90, at 123-26.
119.
Id
120.
See Schoenfeld, supra note 89, at 751.
121. Interview with Al Lawson, Fla. Representative, in Tallahassee, Fla. (May 14, 2007) (notes
on file with author).
334
[15:2012]
legislators' reticence to address the problem by slowing prison

admissions.'^^ What the public came to understand as an "early release"
program, politicians held up as yet another example of "the state" siding
with criminals over "hard-working" Floridians.'^^ In this case, courts
became a symbol of the state, both the federal court for ordering prison
population limits and state trial courts for lenient sentencing.'^'' The irony of
this is that state legislators were responsible for decreasing the percentage of
prison time that state inmates served.'^^
As a consequence of these political developments and the ongoing
overcrowding litigation, between 1987 and 1991 Florida embarked on what
would later be called "an aggressive prison constmction program"'^*: the
legislature appropriated 27,087 "prison bedspaces"six times the number
that the legislature had appropriated in the previous five years.'^' Despite
these new measures, because of increasing prison admissions, the
Department of Corrections continued to rely on a modified release
mechanism that eventually reduced the average time served to less than 35%
122.
See, e.g.. Editorial, Florida's 'Willie Horton,' MIAMI HERALD, Nov. 30, 1988, at 24
(claiming that "early releases" caused violent crime). In the winter of 1988, a repeat offender named
Charlie Street, who had only served half of his prison sentence, killed two Miami Police officers. Id.
Calling the incident "Florida's Willie Horton," the Miami Herald wrote in the tone typical of the
day,
NUMBNESS is the first reaction to the murders of Metro Police Officers Richard
Boles and David Strzalkowski. Then, as the story unfolds, the shock gives way to rage.
Screaming rage. Rage that cracks the veneer of civilization from one end of urban
South Florida to the other. How could these two fine, dedicated police officers be dead,
allegedly at the hands of a career criminal, an attempted murderer just 10 days out of
state prison.
Id.\ see also David Dahl, The Prison Crisis, ST. PETERSBURG TIMES, Mar. 5, 1989, at ID (reporting
legislators' vow to "build more prisons" to make room for more criminals).
123.
See, e.g., Maria Douglas, Early Release in Group's Sights, BRADENTON HERALD, May 31,
1991, at I.
124.
5ee, e.g., David Dahl, Prison Time Dips to 20% of Sentence, ST. PETERSBURG TIMES, Nov.
4, 1987, at IB ("'1 don't like letting them out on administrative gain-time at all, but we've got to go
by the federal guidelines until we build enough prisons to hold them.'" (quoting State Senator
Wayne Hollingsworth, Democrat from Lake City)); see also 1988 Fla. Laws 699. To reign in the
trial court judges, legislators passed a new habitual-offender law that created new mandatory
minimum sentences for offenders with two prior violent felonies. Id.
125.
FLA. H.R. COMM. ON CRIMINAL JUSTICE, HABITUAL OFFENDER AND MINIMUM
MANDATORY SENTENCING IN FLORIDA: A Focus ON SENTENCING PRACTICES AND
RECOMMENDATIONS FOR LEGISLATIVE REFORM 7-9 (1991) (explaining that by not addressing the
influx of inmates due to the war on dmgs and concurrently enhancing sentencing for certain
offenders, state legislators had to allow the Department to release inmates before the expiration of
their sentences).
126.
5ee CORRECTIONS ISSUES ORIENTATION PACKAGE, supra note 92.
127.
Id
335
of court-imposed sentences.'^^ In fact, by the end of the decade,

overcrowded prisons in Florida had gained national attention. In the summer
of 1989, the New York Times reported that for every prisoner the Florida
Department of Corrections accepted, it had to release one.'^'
C. Florida Incarceration 1994 to 2000
In the early 1990s, dmg-war admissions to prisons began to slow down.
Between 1989 and 1993, the arrest rate for drug offenses decreased by 28%
and then rose again between 1994 and 2000 by 29%.'^ Property crime
peaked in 1988, and violent crime peaked in 1990, but both began a
permanent decline in 1993.'^' Arrests per hundred violent crimes increased
slightly during this period from 37.8 per hundred in 1994 to 40.9 per
hundred in 2000, while arrest ratios for property crimes remained relatively
stable.'^^
Over the course of the 1980s and 1990s, the number of prison
admissions per offense increased drastically.'^-' By 1990, for every one
hundred violent offense arrests, 12.5 offenders were sent to state prison;'^"
for every one hundred property offenses, 6.7 offenders went to prison;'^^ and
for every hundred dmg offenses, 15.7 offenders went to prison.'^* Between
1994 and 2000, yearly admission rates decreased to an average of 9.1 for
violent offenses, 4.1 for property offenses, and 6.1 for dmg offenses.'^' To a
128.
See FLA. TASK FORCE FOR THE REVIEW OF THE CRIMINAL JUSTICE AND CORR. S Y S . ,
INTERIM REPORT 14 (1994).
129. Andrew H. Malcolm, Florida's Jammed Prisons, More in Means More out, N.Y. TIMES,
July 3, 1989, http://www.nytimes.conV1989/07/03/us/florida-s-jammed-prisons-more-in-meansmore-out.html?pagewanted=all&src=pm.
130. See supra note 79 (citing data from the Florida Department of Law Enforcement and the
UCR) (calculating the change in arrest rates between 1989 and 1993 and 1994 and 2000).
131.
See supra note 79 (citing data from the UCR); .see also infra Table A.
132. See supra note 79 (citing data from the Florida Department of Law Enforcement and the
UCR); .see also infra Table B. The increase in arrest rates potentially indicates an increased
efficiency on the part ofthe police for violent crimes.
133. See supra note 80 (citing data from the Florida Department of Corrections Annual Reports
and the Florida Department of Law Enforcement); see also infra Table C.
and the Florida Department of Law Enforcement); .see also infra Table C.
and the Florida Department of Law Enforcement); .see also infra Table C.
and the Florida Department of Law Enforcement); .jee also infra Table C.
137.
See supra note 80 (citing data from the Florida Department of Corrections Annual Reports
336
[15:2012]
large extent, the high admission rates in the early 1990s are an artifact of the
state's release program between 1988 and 1993. As low-level offenders
actually served less than a year in prison on a particular sentence, many
offenders could have been admitted to prison more than once in the same
year. Thus, the admission rates for 1994 through 2000 represent a stabilizing
of the system as the state phased out its release program and required
inmates to serve longer portions of their sentences. According to the Florida
Department of Corrections, by 1994, average time served had increased
since 1990 by 5 1 % for violent offenders, 92% for property offenders, and
67% for dmg offenders.'-'* By 2000, expected time served had doubled for
dmg offenders, almost doubled for violent offenders, and more than doubled
for property offenders.'-"
The dramatic increase in time served during this period can be traced to
policies enacted as a response to the-prior use of "early releases" to maintain
the prison population under a prescribed capacity. Although the need for the
release program was mainly a result of the over-use of incarceration for dmg
offenders, the news media, victims' groups, law-enforcement agencies, and
politicians seized on "early releases" to advance their ovwi agendas. The
resulting assumptionsthat reducing crime was dependent upon criminals
serving their "ftiU sentences," that the price of crime was higher than the
price of incarceration, and that victims' rights had been sacrificed because of
prison-overcrowding litigationdictated the policy solution: "to build
whatever prison beds are necessary to keep criminals in jail longer."'''"
Ultimately, between 1993 and 1996, state policymakers abolished gain-time
for inmates,'"" built enough new prisons to end the release program, and
passed a new "tmth-in-sentencing" law requiring inmates to serve 85% of
their sentences.'''^
By 1994, the news media, victims' groups, and law-enforcement
agencies had created the perception that the sentencing stmcture urgently
needed reforming. Local newspapers continued to run front-page stories
with lists of released offenders having served between 11% and 40% of their
and the Florida Department of Law Enforcement) (calculating average yearly admission rates,
excluding the years 1996 and 1997 for violent and property crimes because of non-reliable data).
138.
See sources cited supra note 80; see also infra Table D.
139.
See sources cited supra note 138.
140.
Mark Silva & Tim Nickens, Legislature Oks Prison Expansion but Early Releases Will
Continue, MIAMI HERALD, May 28, 1993, at Al (quoting Senator Jim Scott, Republican from Ft.
Lauderdale and Chairman of Senate Budget Committee). 141.
1995 Fla. Laws 2717. Gain-time is the reduction of an original prison sentence for good
behavior, participation in programming, or other positive activity. Id.
142.
See 1993 Fla. Laws 2919 (abolishing basic gain-time); 1995 Fla. Laws 294 (providing
tmth-in-sentencing); FLA. DEP'T OF CORR., 1993 ANNUAL REPORT 15 (1994) (on file with author)
(stating that the legislature had approved funding for the constmction of 17,000 beds).
337
sentences.'''-' The news media then linked "early releases" to incidents of

crime.''*'' Although the violent crime rate in Florida had been decreasing
since 1990, politicians were quick to point out that Florida's violent crime
rate was one of the highest in the nation.''" National and intemational media
also covered a number of high-profile murders of tourists during this
period.'''* Additionally, a new prominent victims' organization, named Stop
Tuming Out Prisoners (STOP), began calling for an end to eariy releases.'"^
STOP members appeared on local and national news broadcasts, including
the Oprah Winfrey show and a 60-Minutes segment called "Ten will get you
five."'''^ And in 1994, STOP unsuccessfully sponsored a ballot initiative for
a constitutional amendment that would require prisoners to serve 85% of
their sentences.''" Finally, law-enforcement agencies mobilized around
"early releases," calling for more prison beds and longer prison sentences.""
As elected officials, Florida prosecutors and sheriffs were key to the
effectiveness of this mobilization. The Florida Prosecuting Attomeys
Association (FPAA), for example, argued that the criminal justice system
only worked with "a real threat of jail and prison time.""'
143.
See, e.g., John Kennedy, Prison System Near Gridlock, SUN-SENTINEL, Mar, 7, 1993, at
A1 ; Beth Muniz, Rapist To Be Freed Early, BRADENTON HERALD, Apr. 28, 1993, at B1.
144.
See, e.g.. Editorial, Tell Officials To Stop Turning Out Criminals, ORLANDO SENTINEL,
Aug. 25, 1993, at 4.
. .
145,
Uniform Crime Reports, supra note 78, Florida's violent crime rate was 1,6 times higher
than the violent crime rate for the United States as a whole. Id.
146,
See Carl Hiaasen, It's a Crime State Doesn 't Wam Tourists, MIAMI HERALD, Feb, 7, 1993;
at IB (suggesting that the Florida govemment should do more to wam tourists from countries where
Florida tourism is heavily promoted, such as Canada, about how dangerous of a place Florida is to
unsuspecting travelers); Canadian Press, Diplomat Latest Slain Tourist, HAMILTON SPECTATOR
(Ont., Can.), Jan, 28, 1993, at A7; John Harlow & Geordie Greig, Tourists Buy Tear Gas To Beat
Florida Gangs, SUNDAY TIMES (London), Sept, 19, 1993, at 1 (describing British tourists as
"shaken" by murders in Florida),
147,
Kate Pursell, STOP Takes Stand Statewide Against Inmates' Early-Release, BRADENTON
HERALD, May 18, 1991, at BI,
148,
B3,
Junny's Mom To Appear on '60 Minutes' Tonight, ORLANDO SENTtHEL, Apr. 11,1993, at
149,
Associated Press, Court Rejects Prison Terms Amendment, ORLANDO SENTINEL, July 8,
1994, at Cl.
150,
See, e.g.. Cities Calling for More Prison Beds, ST, PETERSBURG TIMES, Jan. 6, 1994, at 4B
(explaining that Ed Austin, who was then the Mayor of Jacksonville, organized a summit for the
mayors and police chiefs of Ft. Lauderdale, Tampa, St. Petersburg, Miami, Orlando, and
Jaeksonville, and they unanimously called for 25,000 new prison beds and the abolition of
sentencing guidelines).
151,
See Stephen Koff, Prosecutors Fight Score-Sheet Sentencing, ST, PETERSBURG TIMES,
July 25, 1989, at 3B; êe also Interview with Ed Austin, former Duval Cnty. State Attomey, in
Jacksonville, Fla, (Sept, 21, 2008) (emphasizing the need for sufficient prison space: "If you are
going to maintain order , , , if you are prosecuting and you don't have an empty jail cell, everything
338
[15:2012]
Election year politics, assumptions about the appropriate basis for crime
policy, and the solidification of crime as a political symbol infiuenced state
policymakers' response. In the 1994 campaign for govemor, both
Republican challengers proposed building more prisons.'^^ Not to be
outdone (and taking a page from President Clinton's 1992 campaign
playbook). Democratic incumbent Govemor Lawton Chiles Jr. claimed that
"[t]he most imporiant priority that faces us this session is protecting our
people in their homes, in their neighborhoods, in their schools."'^^
Republicans in the House and Senate also saw the issue of "early release" as
a means to beat Govemor Chiles and other Democratic opponents.'^" They
were often joined by Democrats, who ultimately felt that they had "no
choice but to spend whatever dollars it takes to build prisons."'^^
Additionally, legislators revealed their growing assumption that crime
policy should refiect the beliefs of the public rather than those of experis
about crime and appropriate punishment. As the preface to the "Safe Streets
Initiative of 1994" stated.
The people of this state have repeatedly voiced their concem about
the early release of serious and violent felony offenders . . . . Lack
of bed space to house felons sentenced in the state in
unprecedented numbers has resulted in an undermining of
corrections policy in the state so that punishment and rehabilitation
now seem only incidental to other considerations.'^^
you do is bluffing because none of these people do these diversionary things voluntarily.").
152.
See Tom Fiedler, Bush Wants To Expand Prisons Without a Tax Hike, MIAMI HERALD,
Jan. 11, 1994, at 5B.
153.
H.R. JOURNAL, 96th Reg. Sess., at 4 (Fla. 1994), available at http://www.myflorida
house.gov/ (follow "Documents" tab; then follow "Historic Joumals of Florida House" hyperlink
under "Reference"; then scroll to "1994 House Bound Joumal" Volume I hyperlink); see
ALEXANDER, supra note 26, at 55 (discussing President Clinton's use of crime in the 1992
presidential campaign).
154.
See Bill Cotterell, Polls Don't Speak Volumes to Lawmakers, TALLAHASSEE DEMOCRAT,
Apr. 6, 1994, at B4 (stating that the State Republican Committee ran TV advertisements "rapping
Gov. Lawton Chiles for devoting only 6 percent of total state spending to the prisons").
155.
See, e.g., Dana Peck, Work Is Held Up by Senate's Bid To Teach Morality: Senate
Conference-Committee Members Want Moral Values Included in Juvenile Justice Reform Measure,
TALLAHASSEE DEMOCRAT, Mar. 31, 1994, at 4B ('"If you look at the continuum of experiences that
create juvenile criminals, they start at a very early age. . . . If we fail in the education piece of this
solution, then we have no choice but to spend whatever dollars it takes to build prisons. '" (quoting
Senator George Kirkpatrick, Democrat from Gainesville)).
156.
S. JOURNAL, Spec. Sess. B 11 (Fla. 1993), available at http://archive.flsenate.gov (follow
"Joumals" tab; then follow "Historical Joumals and Rules"; then follow "199O's" hyperlink in the
Historic Senate Joumals area; then scroll to 1993 "Special Session" May 25, 1993 hyperlink); .yee
also Associated Press, 'Early Release Is //w/o/y, ' BRADENTON HERALD, Dec. 9, 1994, at Fl. "We
can keep a campaign promise today. We are ending early release. It's history . . . ." Id. (reporting
Govemor Chiles's announcement to the media after the state had built enough prisons to end the
339
The new law revised the stmcture of the sentencing guidelines and
accounted for new "principles," including "punish[ing] the offender" as the
primary purpose of sentencing.'^^ In addition, the bill abolished basic gaintime, which with the release program had contributed to the short time
served.'^^ Importantly, to maintain inmates within prescribed minimum
constitutional conditions, the legislature approved the constmction of 27,000
new prison beds.'^'
Finally, new Republican legislators capitalized on the outcry against
"early releases" and the failure of the STOP ballot initiative (which the
Florida Supreme Court stmck dovwi) as a means to link the war on crime to
wider anti-court and anti-government sentiment.'* Announcing a proposed
STOP bill that would require inmates to serve 85% of their sentences.
Republican State Senator Charlie Crist wrote.
Hundreds of volunteers spent countless hours gathering signatures
of support to place this on the ballot. . . .
. . . [But] the Florida Supreme Court threw it off the ballot. It has
created tremendous fmstration in the people of Florida. They were
exercising the power of democracy to do something that needs to
be done, that state govemment had failed to do. . . . Partly in
response to the Supreme Court mling, voters this year went to the
polls in search of change. Tired of the old ways of doing things.
release program in response to the public's concems).

157.
1993 Fla. Uws 2919.
158. See id. (limiting gain-time to incentive and meritorious gain-time). The Corrections
Reform Act of 1983 had established a regular gain-time schedule as follows: basic gain-time (10
days per month), incentive gain-time (20 days per month), and meritorious (1-60 days total) was
applied to all offenders sentenced after July 1, 1978, with the exception of those not qualified
because of mandatory minimums (firearm, dmg trafficking). 1983 Fla. Laws, ch. 83-87.
159.
CORRECTIONS ISSUES ORIENTATION PACKAGE, supra note 92 (reporting appropriations
made in 1993 and 1994 legislative sessions); .see also FLA. DEP'T OF CORR., 1993 ANNUAL REPORT
15 (1994) (on file with author).
160. See Margaret Talev, House Plan Calls for Judges To Issue Full Sentences for Repeat
Offenders, TAMPA TRIB., Mar. 19, 1997, at 4. hi 1997, the Florida Supreme Court, responding to the
U.S. Supreme Court's decision in Lynce v. Mathis, 519 U.S. 4331 (1997), issued an opinion in
Calamia v. Singletary, 694 So. 2d 733 (1997), which required the Department of Corrections to
restore previously revoked provision credits to violent inmates who had lost them as a result of a
1992 opinion by Florida Attomey General Butterworth. The decision "outraged" lawmakers and law
enforcement and prompted Representatives Victor Crist, Republican from Tampa, and Adam
Putnam, Republican from Lakeland, to immediately sponsor a "Prisoner Release Re-offender Bill"
mandating that those released from prison who subsequently committed a violent crime within five
years must serve 100% of their new sentences (plus any gain-time previously taken off). 1997 Fla.
Laws 239. The next day, in an eight to one vote, the bill passed the House Crime and Punishment
Committee. Talev, supra. In explaining his vote for the bill. Representative Tom Feeney, Republican
from Oviedo, stated that "unlike the Florida Supreme Court, we are more concemed with the safety
and protection of our citizens . . . than what is convenient and comfortable for the violent criminals."
Id
340
[15:2012]
they voted for those who. would get the job done - and those who
will put public safety above all else.'*'
Although the new 1994 sentencing guidelines and the termination of the
release program promised to increase the average percentage of time served
to 75% over the next year,'*^ the legislature overwhelmingly supported the
STOP bill.'*^ Consequently, in just a few years state lawmakers had passed a
series of crime legislation that dramatically increased the time served by
state inmates.
D. Florida Incarceration 2001 to 2009
In the past decade, incarceration rates in Florida have increased by
22%, from 446 per 100,000 of the population in 2000 to 544 in 2010,
compared to a 2.3% increase in aggregate state incarceration rates between
2000 and 2009.'*" As is the case nationally, crime rates in Florida continue
to decline.'*^ Between 2000 and 2008, both the rates of violent and property
crime declined by 16%.'** However, arrests for dmg offenses continued to
increase (although at a much slower pace6% versus 29% between 1994
and 2000).'*' The arrest rate for property offenses also significantly
increased during this period, suggesting that as violent crime declined.
161.
Charlie Crist, Voters ' Frustration with Crime Will Guide Reform, ST. PETERSBURG TIMES,
Feb. 5, 1995, at 2, available at 1995 WL 2235862.
162.
FLA. DEP'T OF CORR., CHANGING FLORIDA'S SENTENCING GUIDELINES: AN ANALYSIS OF
H0USEBlLL79,at 15(1993).
163.
H.R. JOURNAL, 97th Reg. Sess., at 634 (Fla. 1995), available at http://www.myflorida
house.gov (follow "Documents" tab; then follow the "Historic Joumals of Florida House" hyperlink
under "Reference"; then scroll to "1995 House Bound Joumal" Volume I hyperlink) (showing only
ten votes against the HB687); S. JOURNAL, 27th Reg. Sess., at 67 (Fla. 1995), available at
http://archive.fisenate.gov (follow "Joumals" tab; then follow the "Historical Joumals and Rules"
hyperlink; then follow "199O's" hyperlink in the Historic Senate Joumals area; then scroll to "995
Regular Session" March 8, 1995 hyperiink) (showing a unanimous vote for the original bill S24.).
164.
See supra note 73 (citing data from Florida Department of Corrections Annual Reports and
the U.S. Census) (calculating changes in Florida incarceration rates); WEST ET AL., supra note 34, at
3 (providing the aggregate rates); .see also infra Table E (providing the Florida rates).
165.
See supra note 78 (citing data from the UCR); see also infra Table A (showing a decline in
offense rates in Florida between 2000 and 2008); FBI Releases 2009 Crime Statistics, FED. BUREAU
INVESTIGATION (Sept.. 13, 2010), http://w\yw2.fbi.gov/ucr/cius2009/aboul/crime_summary.html
(reporting national decline in crime in 2009).
166.
See supra note 78 (citing data from the UCR); .see also infra Table A (calculating change
in violent and property offense rates between 2000 and 2008).
167.
See supra note 78 (citing data from the UCR); .see also infra Table A (calculating change
in drug-offense rates between 2000 and 2008 and between 1994 and 2000).
341
police directed more resources toward drug and property offenses.'**

However, the rate of admissions to prison across crime categories
constituted the largest shift in criminal justice processing during this time
period in Florida; admission rates increased by 30% for violent offenses,
22% for property offenses, and 19% for dmg offenses.'*'
While this analysis does not include conviction data for Florida in order
to detemiine whether the increase in the prison admission rate is due to an
increase in convictions per arrest (i.e., prosecutors' ability to obtain
convictions) or more sentences to prison per conviction (i.e., judges'
imposition of a prison sentence), Sabol's findings on aggregate state
incarceration rates strongly suggest "admission growth has been driven
primarily by the cases brought to trial and not by court decisions to increase
the use of prison sentences for convicted offenders."' A few examples
from the Florida data support this conclusion. First, judges in Florida have
historically sent fewer offenders to prison and issued shorter sentences than
recommended by sentencing guidelines.'^' Second, the number of offenders
admitted to prison each year under "special sentencing provisions" that
mandate prison terms has remained consistently low since 2000.'^^
Consequently, to understand the continued increase in incarceration
rates in Florida, we need to look to prosecutors' increased abilities or
proclivities to convict offenders across a variety of offenses. While vve lack
168. See supra note 79 (citing data from Florida Department of Law Enforcement and the
UCR); see also infra Table B (showing an increase in arrest rate for property offenses from 15.7% to
19.7%).
169. See supra note 80 (citing data from Florida Department of Corrections Annual Reports and
Florida Department of Law Enforcement); .see also infra Table C (calculating increases in admission
rates for violent, property, and dmg offenses between 2000 and 2008).
170. Sabol, supra note 39, at 18; see also'2o\m F. Pfaff, The Causes of Growth in Prison
Admissions and Populations 3 (July 15, 2011) (unpublished manuscript), avai/a/e at http://ssm.
com/abstract= 1884674 ("[T]hat the growth in prison population has been driven almost entirely by
change in precisely one part of the criminal justice chainthe prosecutor's decision to file a felony
claim.").
171.
SEE, E.G., FLA. H.R., COMM. ON CRIMINAL JUSTICE, FLORIDA'S CRIMINAL JUSTICE
SYSTEM: WHAT SHAPES POLICY? WHAT WOULD ENHANCE ACCOUNTABILI-TY? 14 (1995)
(explaining that Level 8 sentences mandated prison time, but in 1994 less than 60% of offenders
convicted of Level 8 crimes actually received a prison sentence).
172. Special sentencing provisions apply to those offenders sentenced as "Releasee Reoffenders," "-Violent Career Criminals," "Three Time Violent Felony Offenders," and "10-20Lifers." See Trends in Prison Admissions and Population, FLA. DEP't CORRECTIONS, http://www.de.
state.fl.us/pub/pop/index.html (last visited Mar. 20, 2012) (showihg that the above group represents
less than 1% of all prison admits each year); .see also 10-20-Life Criminals Sentenced to Florida's
Prisons, FLA. DEP'T CORRECTIONS, http://www.dc.state.fl.us/pub/10-20-LIFE/index.html (last
visited Mar. 20, 2012) (showing that in fiscal year 2005/2006, approximately 1000 inmates were
admitted under 10-20-Life sentencing mandates, compared to total admissions of approximately
57,000 for that year).
342
[15:2012]
good data on prosecutors' decision-making processes,"^ the case study of

Florida demonstrates that three developments in Florida significantly
increased prosecutors' political power over the course of the 1990s.
Prosecutors then leveraged their newfound political strength to dismantle
sentencing guidelines.'^'' When combined with mandatory minimums for a
host of crimes, the new sentencing scheme likely increased prosecutors'
ability to compel pleas from offenders.
First, lawmakers had begun to work with the Florida Prosecuting
Attomeys Association (FPAA) in their efforts to end "early releases."'^'
Both legislators and the media relied on the testimony of prosecutors to
make the connection between early releases and crime.'^* In addition, the
prosecution of high-profile crimes against tourists put them in the
spotlight.'^' Second, prosecutors benefited from their relationship with
victims' groups, as state attomeys' victims assistance coordinators hosted
meetings and organized victims to lobby state government."^ Finally, the
Republican take-over of the Senate and House, which began in 1995,'"
dramatically increased the ability of the FPAA to inuence sentencing
legislation. This was partially because many newly elected Republicans had
173,
Pfaff, supra note 170, at 37.
174,
See infra notesl75-81.
175,
Interview with Ed Austin, supra note 151.
176,
William Booth, 9th Tourist Slain, Florida's Image Wounded, WASH. POST, Sept, 15, 1993,
at AOl, available at 1993 WLNR 5372988 ("[C]riminals are retumed to Florida streets after serving
a small fraction of their sentences," (quoting Katherine Rundle, State Attomey in Miami)); Interview
with Brian Berkowitz, Exec, Dir, of the Task Force on Criminal Justice, in Tallahassee, Fla, (May
14, 2007), Berkowitz stated that between 1993 and 1995:
[Ed Austin, former Duval County State Attomey] was over constantly, . , , They would
bring over charts about how many offenses a person could- have before they would
even be eligible for prison. Now this was [belied] by the fact that our admissions to
prisons was rising, , , , [But] somehow, we are not sending people to prison. They
could steal twelve cars and still not go to prison. And we would say , , , "could you
bring us one of those cases?" [Their response:] "Well, we really don't have one,"
Id
177,
Interview with Alex Villalobos, Fla, State Representative & Criminal Justice
Appropriations Comm, Chair, 1996-2000, in Miami, Fla. (Sept, 25, 2008) (recalling that the trials of
defendants accused of killing tourists during the debate over changes to the sentencing guidelines in
1997 impacted legislators' focus on criminal prosecution and their willingness to fijnd prison beds
for longer sentences),
:
178,
B6,
Diane Sears, C;7;zen,s loiy/4goi,s/oWj; e/ea,se, ORLANDO SENTINEL, Jan 12 1993 at
179,
See THE COUNCIL OF STATE GOVERNMENTS, STATE ELECTIVE OFFICIALS AND THE
LEGISLATURES tbl,411 (2010) (showing that Republicans were a majority in both houses of the
Florida State Legislature by 1996) (on file with author).
343
campaigned on "tmth-in-sentencing."'^" Importantly, these new legislators

were more likely to confound early release with sentencing guidelinesand
the state attomeys let them.'^'
The FPAA had always been opposed to sentencing guidelines; they felt
that the guidelines hindered their ability to do their jobs.'^^ They argued that
the sentencing guidelines did not give judges enough discretion.'^^ At the
same time, they also complained that judges in South Florida consistently
under-utilized prison sentences, and therefore, had too much discretion.'^"
The state attomeys' fight against the guidelines led to a perception by
members of the House and Senate Committees on Criminal Justice that the
sentencing guidelines set the threshold for prison so high that serious
offenders were not getting prison time.'^^ Consequently, when the
Department of Corrections reporied in 1996 that it had excess prison
capacity because of declining prison admissions,'^* some legislators called
for changes to the sentencing guidelines "to make sure career criminals are
put away for a long time."'^^
The FPAA seized the opportunity created by excess prison capacity to
intensify their fight to abolish the sentencing guidelines.'^^ As Buddy
180. See Interview with Alex Villalobos, supra note 177; .yee also Interview with Victor Crist,
Fla. Republican Senator, in Tampa, Fla. (Sept. 29, 2008) (recalling that Republicans were helped
into office by organizations such as Mothers Against Drunk Driving, which has been very effective
at increasing prison sentences for DUIs); see also Interview with Robert Trammell, Fla. Democratic
Representative, in Tallahassee, Fla. (May 2, 2007) (saying that a big part ofthe Republican platform
was crime control and being tough on crime).
181.
Interview with Brian Berkowitz, supra note 176.
182. David Ballingmd, Prosecutors^ in Florida Welcome Drug Plan, ST. PETERSBURG TIMES,
Sept. 7, 1989, at Al.
183.
Interview with Ed Austin, swpra note 151.
184. Telephone Interview with Arthur "Buddy" Jacobs, Fla. Prosecuting Attomeys Ass'n (Sept.
19,2008).
185.
See FLA. H.R. CoMM. ON CRIME AND PUNISHMENT, BILL ANALYSIS AND ECONOMIC
IMPACT STATEMENT OF H B 241 (1997) (stating that state attomeys also argued that more upward
sentencing discretion was necessary because dmg cases were not treated seriously enough and
downward departures were too frequent and easy to obtain).
186. Louis Lavelle, Prisons To Refund SurplusAdmissions Drop-Off Leads to Give-Back,
TAMPA TRIB., Jan. 17, 1996, at 6. In the 1995/1996 fiscal year, the Department of Corrections had
planned to add an additional 9079 beds, but because of the decrease in admissions they added only
6451retuming the unused constmction funds to the state. See Associated Press, Prison Growth
Rate Dropping, TAMPA TRIB., Mar. 12, 1997, at 4 ("A 28 percent drop in the anticipated growth of
the prison population over the next five years means the state has $2.2 billion to spend on other
expenses in that period.").
187.
Lavelle, jwpra note 186.
188. Letter from President of Fla. Sheriffs Ass'n to Randy Ball, Fla. State Representative (Jan.
15, 1997) (on file with author).
344
[15:2012]
Jacobs, the lobbyist for the FPAA explained, the Florida state attomeys
worked with the House Crime and Punishment Committee to draft the
legislation:
We never liked the sentencing guidelines and we worked very hard
to get rid of them. . . . We actually drafted [the Florida Criminal
Punishment Code]. . . State Attomey Kathy Rundle from Miami
spent a month with us in Tallahassee, and we brought all the state
attomeys up, and we lobbied for that very hard.'^'
The bill proposed by the state attomeys allowed judges to impose the
statutory maximum penalty for any felony regardless of the guidelines. The
statutory maximum penalties were five years for a third-degree felony,
fifteen years for a second-degree felony, and thirty years for a first-degree
felony, while imposing a "fioor" (or minimum prison term) under which a
judge could not impose a sentence without written reasons.'^ In a sign of an
erosion of judicial influence, the proposal further stripped judges' power by
replacing the Sentencing Guidelines Commission (SGC) with a new
Sentencing Reform Commission, composed of representatives from the
Florida Sheriffs Association, the FPAA, the Public Defenders Association,
the Florida Department of Law Enforcement, and the Florida Police Chiefs
Association in place of the circuit and county court judges that had formerly
made up the SGC.'" Even the title. Criminal Punishment Code, was
symbolic and important to the FPAAit both signaled an emphasis on
punishment and allowed them to claim that it got rid of sentencing
guidelines.''^ Although many Democrats fought against the proposal,
arguing that the costs of the changes were too high, especially considering
that the 1994 guidelines and the 85% mandate had not been given adequate
time to work,"^ Republicans ultimately prevailed.
In addition to the 1997 Criminal Punishment Code, prosecutors in
Florida have taken advantage of new mandatory minimums passed at the end
of the decade. For example, in 1997, the legislature passed the Prison
Releasee Reoffender Punishment Act, which established new mandatory
189.
Telephone interview with Arthur "Buddy" Jacobs, 5upra note 184.
190.
See William H. Burgess, III, Overview of Sentencing in Florida. Structured Sentencing,
Guidelines, and the Criminal Punishment Code, 16 FLA. PRAC. SENTENCING 1:57 (2010-2011)
(explaining the effect of House Bill 241).
191.
3672.
192.
FLA. H.R. COMM. ON CRIME AND PUNISHMENT, supra note 185, at 48-49; 1997 Fla. Laws
Telephone Interview with Arthur "Buddy" Jacobs, supra note 184.
193.
FLA. H.R. COMM. ON CRIME AND PUNISHMENT, supra note 185. The "fiscal impact" ofthe
bill was officially recorded as an "indeterminate, but significant, increase in the prison population."
Id
345
minimum sentences for violent offenders who had been released from prison
in the previous three years."" Then, in 1999, the legislature passed the
Three-Strike Violent Felony Offender Act, 'which provided lengthy
mandatory minimums for three-strike offenderssentences of five years,
fifteen years, thirty years, or life depending on the felony degree."^
Although the Act specified that all three strikes had to be violent felonies (as
opposed to Califomia's law), it also reimposed mandatory minimum
sentences for assaults on law-enforcement personnel and elderly persons,
dmg trafficking (regardless of prior offenses), and second-time sexual
battery."* Also in 1999, the legislature passed "10-20-Life," which
mandated prison terms for gun possession or use during the commission of a
crime. "^ Although the FPAA did not lobby directly for these initiatives,
legislators used prosecutor support to justify the assumed impact on
crime. "^
IV. THE W A R ON DRUGS, THE POLITICS OF CRIME,
AND M A S S INCARCERATION
The case study of Florida helps explain how penal policies and
practices infiuenced different stages of criniiinal justice processing over
various time periods to create the dramatic rise ih incarceration rates since
the 1970s. In addition, Florida helps us understand how the war on dmgs
helped solidify harsh penal policy as popular and politically expedient.
Between 1980 and 1993, incarceration rates rose primarily because the war
on dmgs funneled new resources to law enforcement aimed at arresting,
prosecuting, and imprisoning dmg Offenders. Importantly, the increase of
drug offender incarceration at the state level required little new statutory
commitment by legislators."' Rather, prosecutors, as elected officials.
194.
1997 Fla. Laws 4397..
195.
1999Fla. Laws 1036-37.
196.
Id. In addition, the law redefined "prior offenses" for the purposes ofthe habitual felony
offender and the career criminal statutes, allowing all criminal charges sentenced on the same day to
be counted toward prior offense criteria. Id.\ see also GOVERNOR'S OFFICE OF POLICY & BUDGET,
1999 LEGISLATIVE BILL ANALYSIS OF HB 121 (1999) ("[W]ith the exception of its mandatory
sentences for drug crimes and crimes on law officers and elders . . . the bill's sentencing mandates
are so similar to prior legislation that its capacity to be a new and different deterrent is
questionable.").
.
.
197.
1999 Fla. Laws 535.
'
198.
Interview with Victor Crist, supra note 180 (insisting that if you ask any state attomey or
law-enforcement official, he or she will tell you that three strikes is helping to keep the "10% of
criminals that commit 90% ofthe crime" off the streets).
199.
During the years when dmg admissions to prison were rising the fastest, the Florida
legislature did not change the penalties for possession or sale of marijuana, cocaine, or heroin. But
346
-[15:2012]
responded to heightened political rhetoric and public hysteria by using laws

abeady on the books to increase the likelihood that dmg offenders would
serve time in prison.^"" Yet, in spite of concems about prison overcrowding
and a federal court order limiting the prison population, Florida legislators
chose not to address the influx of low-level dmg offenders into the
system.^*" Instead, legislators opted to build new prisons and release inmates
before the completion of their sentences, which then created the conditions
for the emergence of a hegemonic politics of crime in the 1990s.^''^ In this
sense, the war on dmgs was a necessary precursor to the growth of
incarceration in the 1990s.^^
Between 1994 and 2000, politicians and law enforcement seized the
opportunities (or problems) that the war on dmgs facilitatedincreased
prison capacity, "early releases," and media attention to crime and dmgsto
fashion a larger war on crime linked to racialized anti-state, anti-judge, and
anti-welfare sentiments.^"'* Over the course of the 1990s, this distinctly
political war on crime produced hundreds of new crime bills that lengthened
prison sentences, increased time served, and shifted power from judges to
prosecutors.^"^ Most important for this time period were shifts in policy and
practice that required offenders to serve more of their prison sentences.^"*
Finally, between 2000 and 2009, prosecutors were able to hamess their new
power and secure more convictions, even for less serious offenses.^"' So
while high levels of dmg arrests, convictions, and prison admissions
continue, this larger war on crime and the power of prosecutors has fueled
.see 1987 Fla. Laws 1622 (criminalizing other derivative controlled substances); 1989 Fla. Laws
1638 (adding trafficking offenses relating to amphetamine); 1990 Fla. Laws 354-55 (imposing new
mandatory minimums for trafficking).
200.
See 5upra Part ni.B.
201.
See supra Part III.C.
202.
See .si/pra Part m.C.
203. The war on dmgs was a precursor to the politics of crime in another sense. Although a
politics of crime existed in Florida in the 1960s and 1970s, it was not until Ronald Reagan's political
use of crime and the war on dmgs that state politicians began to use crime as a campaign strategy.
See, e.g., Jon Nordheimer, Florida Race Underscores Changes, N.Y. TIMES, Sept. 2, 1986, at D16
(describing the 1986 primary campaign for Florida govemor as devoid of "debate on issues other
than crime" and both candidates' emphasis on crime and capital punishment as reaching "obsessive
heights").
204.
See supra Part m.C.
205.
See supra Part m.C.
206.
See supra Part III.C.
207. See, e.g., Aaron M. Clemens & Hale R. Stancil, Unhandcuffmg Justice: Proposals To
Return Rationality to Criminal Sentencing, 83 FLA. B.J. 2 (2009) (stating that the new mies against
downward departure established in the Criminal Punishment Code render "judges powerless to do
anything but implore the prosecutors for a departure").
and sustained high incarceration rates oyer the past twenty years.
While this Article has focused on legislative policy and prosecutorial
practice as the most direct determinants of incarceration growth, the war on
crime has spun a web of influence that extends well past traditional crime
policy and law-enforcement actors. In a time when crime does not dominate
public discourse, prisons no longer represent the idea that crime can be
solved or that offenders can be reformed. Instead, prisons are assumed to be
a good in and of themselves.^"^ In fact, prison has become the assumed
response to a wide spectmm of deviant behavior, from driving drunk to
failure to pay child support to insider trading. In concert with this response is
the notion that the public (or.specifically, law enforcement) should have
unlimited access to prison capacity. In other words, despite falling crime
rates, budget crises, and new themes of govemance, policymakers tend to
treat prisons as a necessary and infinite resource.
Constituent and interest group demands for tougher penalties and more
prisons ftirther intensify the political incentives surrounding crime control.
In particular, law-enforcement organizations, including prosecuting
attomeys,^"' correctional officers unions,^' and victims' groups^" can argue
that prisons equate to public safety. More important than the content of their
arguments, these organizations have gained the political skills and resources
needed to access key decisionmakers and influence their policy preferences.
As "modem-day factories,"^'^ prisons, are also economic resources that
impact thousands of constituents' livelihoods. In addition to creating
millions of dollars in profits for companies every year, prisons and the wider
criminal justice system create jobs in mral and urban locales for low-skilled
labor, semi-professionals, social workers, lawyers, accountants, and
university professors.^'^ These economic incentives compound the political
208,
SIMON, supra note 30 (arguing that prisons have developed into a symbol of the state's
commitment to proteet citizens and law enforcement from violent criminals).
209,
See generally Michael Campbell, Politics, Prisons, and Law Enforcement: An
Examination of the Emergence of "Law and Order" Politics in Texas, 45 LAW & SOC'Y REV, 631
(2011) (examining the arguments of the Texas Prosecuting Attomeys Association),
210,
See generally JOSH PAGE, THE TOUGHEST BEAT: POLITICS, PUNISHMENT, AND THE PRISON
OFFICERS UNION IN CALIFORNIA (2011) (examining the arguments of the Califomia Correctional
Peace Officers Association),
211,
See generally Vanessa Barker, The Politics of Pain: A Political Institutionallst Analysis of
Crime Victims' Moral Protests, 41 LAW 8 SOC'Y REV, 619 (2007) (examining the arguments of
crime victims' organizations).
212,
Jennifer Steinhauer, To Cut Costs, States Relax Prison Policies, N,Y, TIMES, Mar, 25,
2009, http://www,nytimes,com/2009/03/25/us/25prisons.html,
213,
See generally Eric Schlosser, The Prison-Industrial Complex, ATLANTIC MONTHLY, Dec,
1998, at 51 (arguing that the prison system creates a set of interlocking economic interests). But see
RYAN S. KING ET AL,. SENTENCING PROJECT, BIG PRISONS, SMALL TOWNS: PRISON ECONOMICS IN
348
[15:2012]
incentives to be tough on crime. Thus, legislators protect their constituents

when they increase prison sentences and oppose prison closings.
Finally, the growth in incarceration in the last three decades has also
created a "bricks and moriar"^'" legacy that creates incentives or limits
options (depending on one's perspective). In fact, just as public officials are
beginning to talk about reducing our reliance on incarceration, policymakers
have expanded the reach of the penal state to other populationsnotably
prisoners of war and illegal immigrants.^'' Now, when states and localities
find themselves with empty prison beds, they can contract with the federal
govenmient to house illegal immigrants.^'^
V. CONCLUSION
In the current economic climate, as states scrounge to find the dollars to

fund essential services such as education, highways, and public employee
pensions, the war on dmgs increasingly looks like a relic of the past.^'^
Across the country, policymakers are asking whether it is really costefficient or effective to arrest, prosecute, and imprison people for possessing,
or even selling, ceriain dmgs. Some wonder why incarceration rates have not
plunged with crime rates. Could it be that dmg crimes are responsible for the
United States's exceptionally high incarceration rates? As this Ariicle
demonstrates, the answers to these questions are not always straightforward.
According to this and other analyses, the war on dmgs is not what is
sustaining high incarceration rates in the United States. Rather, we need to
look at decisions to prosecute, ability to convict, ahd length of time served in
RURAL AMERICA (2003), available at http://www.sentencingproject.org/doc/inc_bigprisons.pdf

(finding that the much lauded economic development potential of prisons goes unrealized in
practice).
214.
Solomon Moore, Prison Spending Outpaces All but Medicaid, N.Y. TIMES, Mar. 2, 2009,
http://www.nytimes.com/2009/03/03/us/03prison.html.
. ,
215.
See Laura Sullivan, Prison Economics Help Drive AZ Immigration Law, NPR (Oct. 28,
2010), http://www.npr.org/templates/story/story.php?storyld=130833741 (reporting that the
Corrections Corporation of America helped draft and lobby for the initiative). But see Setting the
Record Straight, CCA360, http://thecca360.com/?p=16#more-16 (last visited Mar. 20, 2012)
(rebutting NPR's accusations).
216.
AMNESTY INT'L, JAILED WITHOUT JUSTICE: IMMIGRANT DETENTION IN THE USA 1
(2009), available at http://www.amnestyusa.org/pdfs/JailedWithoutJustice.pdf (reporting that the

United States detains approximately 30,000 immigrants each day in facilities around the country at a
cost of "S95 per day, per person").
217.
BUDGET
See Elizabeth McNichol et al.. States Continue To Feel Recessions Impact, CTR. ON
& POLICY
PRIORITIES
(Mar.
9,
2011),
http://www.cbpp.org/cms/?fa=view&id=7ll
(discussing states' severe fiscal hardship and its effect on residents). But see Ginger Thompson, U.S.
Widens Role in Battle Against Mexican Drug Cartels, N.Y. TiMBS, Aug. 6, 2011, http://www.ny
times.com/201 l/08/07/world/07dmgs.html (reporting that the United States is expanding funding for
the war on dmgs in Mexico).

prison for all categories of offenses.
On the other hand, the war on dmgs certainly contributes to high
incarceration rates in important ways. Dmg offenses are the only crime
whose incidence (as measured by arrests) has increased consistently over the
past decade and a half As property and violent crime rates declined, police
diverted resources to dmg offensesthe arrest rate for dmg possession
alone increased by over 35% since 1994.^'^ Currently, felony convictions for
dmg offenses comprise approximately 34% of all felony convictions in state
courts.^'^ In some states, such as Florida, prison admissions rates for dmg
offenses outpace those for property offenses.^^ Finally, in urban courthouses
across the country, dmg cases represent half of the criminal caseload.^^'
Even if only a small percentage of those offenders are sentenced to prison,
they put a huge strain on the system and have enormous repercussions for
those charged. Often an arrest for a drug offense marks young black men's
entry into the criminal justice system, and it becomes a key moment in the
criminalization process that increases the likelihood of eventual
incarceration.
Given this reality, the recent focus on reforming the war on dmgs is not
necessarily mistaken, but incomplete. As the above analysis makes clear,
drug-war reforms are limited in their ability to reverse mass incarceration
because they only take aim at one component of a complex and
interconnected system of decision-making. Each stage of the criminal justice
process and offense category represents a piece to the mass-incarceration
puzzle, but just reforming one piece (or taking it out of the equation) causes
other pieces to shift and grownever changing the actual size ofthe puzzle.
Take, for example, the decriminalization of marijuana. If police could no
longer make arrests for marijuana possession or sale, would a whole group
of people be kept out of the system or, more likely, would the police just
arrest them for a different petty offense? If prosecutors no longer had to
process dmg-possession arrests, would they simply put more effort into
convicting those charged with burglary or dmg sales? Likewise, the most
widely accepted altemative to business as usual in the war on dmgs,
specialized courts for dmg-addicted offenders, have done very little to lower
218. Sabol, supra note 39, at 10 (noting that the overall increase in the dmg offending rate
between 1994 and 2006 was due to an increase in the dmg possession arrest rate, which increased
from 381 to 521 per 100,000, while the rate for drug trafficking decreased from 139 to HI per
100,000).
219.
Sabol, supra note 39, at 34 tbl3.
220.
See infra Table C.
221. See Nicole Van Cleve, The Racialization of Criminal Justice: The Attachment of Racial
Meanings to the Administration of Justice 7 (2011) (unpublished manuscript) (on file with author)
(using the example of Chicago).
349
350
[15:2012]
incarceration rates. In fact, dmg couris do not actually take people out ofthe
system. Instead, these couris use the severity of the system to furmel people
into supervised drug treatment.^^^ By diveriing defendants already labeled
"felons" to other spaces within the system, dmg couris and other diversion
programs may have simply increased the number of defendants eligible for
enhanced sentencing.^^^ Of course, marijuana decriminalization and dmg
courts do not exhaust possible dmg-war reforms; yet these examples show
that reforms that fail to address decision-making across the whole system
from arrest to prosecution to sentencing to parole and probationwill fail to
make a significant dent in incarceration rates.
Additionally, and perhaps more notably, dmg-war reforms are limited
in their ability to reverse mass incarceration because they leave the
architecture of mass incarceration in place. This includes not only the
physical resources and incentives mentioned above^prisons themselves,
powerful special interest groups, and political and economic payoffs for
being "tough on crime"but rather the "deeply flawed public consensus"
that sustains the system.^^" This Article contributes to our understanding of
the political origins ofthat consensus so that advocates for justice may begin
to challenge its assumptions and attending policies and practices.
222.
See generally STEVEN BELENKO, NAT'L CTR. ON ADDICTION & SUBSTANCE ABUSE,
RESEARCH ON DRUG COURTS: A CRITICAL REVIEW: 2001 UPDATE (2001 ) (criticizing dmg courts for
not reducing the population processed through the criminal justice system); êe also Eric J. Miller,
Drugs, Courts, and the New Penology, 20 STAN. L. & POL'Y REV. 417 (2009) (providing a critique
that dmg courts replace political discussion about dmg policy in the United States).
223.
See Lauren E. Glaze & Thomas P. Bonczar, BUREAU OF JUSTICE STATISTICS, PROBATION
AND PAROLE IN THE UNITED STATES 2, 24 (2009) (reporting that the number of probationers
increased from 3.8 million in 2000 to almost 4.3 million in 2008 and that 50% of probationers are
felons).
224.
Heather Schoenfeld, Putting Politics in Penal Policy Reform, 10 CRIMINOLOGY & PUB.
POL'Y 715, 721 (2011) (quoting ALEXANDER, supra note 26, at 221).
351
Table A: Offense Rates Per 100,000 Population (Fla.), Calendar

1980
1990
. 1994
2000
2008
Violent Offenses
982.2
1,244.3
1,146.8
812.0
685.3
Property Offenses
7,405.6
7,566.5
7,103.2
4,882.7
4,119.1
596.5
637.2
822.2
867.98
Dmg Offenses^^*"
334.4.
Table B: Arrests Per 100 Offenses (Fla), Calendar
\n
1990
1994
2000
2008
Violent Offenses
35.4
37.8
40.9 .
41.1
Property Offenses
15.2
14.5
15.7
19.7
17.2
18.1
n.l
19.3
22.8
na
na
na
na
1980
All Index Offenses

Dmg Offenses
na
Table C: Prison Admissions Per 100 Arrests (Fla.), Fiscal

1981/
1990/
1994/
2000/
2008/
1982
1991
1995
2001
2009
Violent Offenses
12.5
9.5
9.0
11.7
Property Offenses
6.7
3.9
4.5
5.5
All Index Offenses
5.8
8.3
5.6
5.8
7.1
Dmg Offenses
2.8
15.7
6.3
5.6
6.6
. 225. The author compiled the data shown in Table A from the Federal Bureau of Investigations'
Uniform Crime Reports. Uniform Crime Reports, supra note 78.
226.
Refers to drug arrests per 100,000 population.
227. The author compiled the data shown in Table B from the Florida Department of Law
Enforcement and the Federal Bureau of Investigations' Uniform Crime Reports. UCR Arrest Data,
supra note 79; Uniform Crime Reports, supra note 78.
228.
The author compiled the data shown in Table C from the Florida Department of
Corrections and the Florida Department of Law Enforcement. Index to Statistics & Publications:
Prison Admissions, supra note 80; UCR Arrest Data, supra note 79.
352
[15:2012]
Table D: Average Time Served for New Admissions (Fla.), Fiscal

1989/1990
Violent Offenders
Property Offenders
Dmg Offenders
1994/1995
1999/2000
4,3 years
6,5 years
7,4 years
1,3 years
2,5 years
3,0 years
. 1,2 years
2,0 years
2,4 years
Table E: Incarceration Rates Per 100,000 Population (Fla.),
sofJune30th'^^
,1980
1990
2000
2010
Incarceration Rate
202
330
446
547
Prison Population
19,692
42,733
71,233
102,232
55%
63%
35%
23%
Percentage Change
229.
The author compiled the data shown in Table D from the Florida Department of
Corrections. Time Served by Criminals Sentenced to Florida's Prisons: The Impact of Punishment
Policies from 1979 to 2004, supra note 81.
230,
The author compiled the data shown in Table E from the Florida Department of
Corrections Annual Reports and the U,S, Census Bureau, See sources cited supra note 73,
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The War on Drugs, the PoHtics of Crime,

and Mass Incarceration in the United States

In November 2010, Califomia voters narrowly defeated a ballot

GOVERNMENT 4 (2010), available at http://www.ppic.org/content/pubs/survey/S_1210MBS.pdf

The Journal ofGender, Race & Justice

See infra notes 12-15.

E.g., Katherine Gregg, Costs of Marijuana Decriminalization Debated, PROVIDENCE J.

The War on Drugs, the Politics of Crime, & Mass Incarceration

similarly motivate a popular initiative in Oregon to legalize the possession,

The Journal of Gender, Race & Justice

12,000 dmg offenders in prison.-^' The reforms restore discretion to judges to

DTR Fact Sheet 2009, supra note 18.

LAW REFORM OCTOBER 2009-SEPTEMBER 2010, at 1 (2010), available at http://www.criminal

The War on Drugs, the Politics of Crime, & Mass Incarceration

its attending political rhetoric shaped law-enforcement practice around the

See MARC MAUER, SENTENCING PROJECT, INTENDED AND UNINTENDED CONSEQUENCES:

The Journal of Gender, Race & Justice

As sociologists of punishment have long maintained and those familiar

CORRECTIONAL POPULATIONS IN THE UNITED STATES 1, 7 (2010), available at http:/^js.ojp.usdoj.

HEATHER C. WEST ET AL.. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE,

PRISONERS IN 2009, at 7 tbl.7 (2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/p09.pdf

The War on Drugs, the Politics of Crime, & Mass Incarceration

crime and punishment." The criminal justice system is comprised of a

Stuntz, supra note 35, at 506.

The Journal of Gender, Race & Justice

activity" to local authorities, but an otherwise independent measure of dmg

unlike other crimes, drug offenses do not have traditional victims),

The War on Drugs, the Politics of Crime, & Mass Incarceration

322 per 100,000 people."^ According to an analysis by Al Blumstein and

Blumstein & Beck, .supra note 37, at 22, 24.

JUSTICE, PRISONERS IN 1994, at 11 (1995), available at http://bjs.ojp.usdoj.gov/content/pub/

Blumstein & Beck, .swpra note 37, at 26.

The Joumal of Gender, Race & Justice

See Sabol, supra note 39, at 24.

Sabol, supra note 39, at 7.

The War on Drugs, the Politics of Crime, & Mass Incarceration

increasing police enforcement of dmg offenses did contribute to the growth

WESTETAL., .sw/'ranote34, at3.

WILLIAM J. SABOL ET AL,. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE,

PRISONERS IN 2006, at l (2007), available at http://bjs.ojp. usdoj.gov/content/pub/pdfp06.pdf

WEST ET AL., supra note 34, at 1.

Sabol, supra note 39, at 35 tbl.2.

The Journal ofGender, Race & Justice

The War on Drugs, the Politics of Crime, & Mass Incarceration

III. CASE STUDY: EXPLAINING TRENDS IN STATE-LEVEL IMPRISONMENT

Incarceration rates^' in Florida closely track those for the nation as a

The Journal of Gender, Race & Justice

Florida inmates typically serve over 85% of their sentences.'^ To better

The War on Drugs, the Politics of Crime, & Mass Incarceration

A. Florida Incarceration Pre-1980

SOUTH, 1866-1928, at 183-97 (1996).

capacity" for the prison systems of 6132).

OHMART&BRADLBY, 5pranote87, at A-10.

The Journal of Gender, Race & Justice

to the prison system, as it coincided with a change in political representation

The War on Drugs, the Politics of Crime, & Mass Incarceration

The Journal of Gender, Race & Justice

star, died from heart complications presumably related to a cocaine

BECKETT, iujora note 41, at 55-56.

The War on Drugs, the Politics of Crime, & Mass Incarceration

Costello V. Wainwright, 484 F. Supp. 1110 (M.D. Fla. 1980).

See Schoenfeld, supra note 89, at 751.

The Journal of Gender, Race & Justice