May 14, 2015

Private: Who Are We Incarcerating... and Why?

Mass Incarceration, racial injustice, sentencing

by Nicole Fortier, counsel, Brennan Center for Justice

It’s well known today that the United States is the biggest incarcerator in the world. With five percent of the world’s population, we house nearly a quarter of its prisoners. That’s over two million Americans behind bars. The number of people we imprison has increased over 400 percent since 1980. But in that time the federal prison population grew over 700 percent. Today, it has 208,609 inmates housed within its walls – more than any individual state.  The country now spends $80 billion per year on state and federal corrections.

This dramatic growth was no accident. It was the direct result of laws passed in the 1980s and 1990s by policymakers hoping to combat rising crime rates. Their solution: over-criminalize and over-punish behavior – particularly at the national level. They expanded federal criminal laws, increased penalties, removed sentencing discretion from judges, and encouraged states to do the same.

It’s clear that together, these laws cast too wide of a net. But it is important to dig further to understand whom they caught in that net. Exploring the demographics of those in federal prison can help us understand the real consequences of these policy decisions.

Race and Ethnicity

Although a majority of federal inmates are white, federal prisons disproportionately incarcerate African Americans and Hispanics. While only 13 percent of the U.S. population, black men and women make up more than 37 percent of federal prisoners. And a third of the population identifies their ethnicity as Hispanic, while only 17 percent of the general population does.

One large contributor to this disparity was the mandatory sentencing differences between various drug offenses. Before 2010, federal law required that people serve more prison time for offenses involving crack cocaine than powder cocaine – two forms of the same drug. But the majority of people arrested for crack offenses are African American, resulting in black men and women serving nearly as much prison time for drug offenses as whites did for violent offenses. Five years ago, Congress passed the Fair Sentencing Act to reduce these disparities when determining new punishments, but the legacy of the War on Drugs continues in today’s federal prison population. And regardless of disparities in sentence lengths, there would appear to be clear biases in the system. For example, despite roughly equal usage rates, Africans Americans are arrested at more than three times the rate than whites are for marijuana offenses.


Federal prison inmates range widely in age, with those in their 30s making up 37 percent of the population. They are followed by those between the ages of 40 and 49, who account for about a quarter. Twenty percent is made up of people under the age of 30. Thirteen percent are in their 50s, and nearly five percent are 60 years old or more.

With longer sentences mandated by law, federal prisoners increasingly remain behind bars into old age. But research shows us that by age 50 most people are well beyond the years in which they are likely to commit crime. What’s more, prisoners above age 50 cost taxpayers on average twice as much as their younger cohorts. The growing elderly prison population raises important questions about whether our current prison policies are truly designed to maximize public safety.


Federal inmates are overwhelmingly male. More than 93 percent of the federal prison population is male, and less than seven percent is female. State prisons reflect the same ratio.

Despite this vast difference, the experience of women stands out. Since 1980, the national incarceration rate for men increased over 230 percent, while the rate for women increased 518 percent. The federal government provides 28 total facilities spread throughout the country to house female inmates. With so few facilities available, women often find themselves further away from their homes and families than men. And their families more often include minor children, since more than 60 percent of female prisoners are parents compared to about 50 percent of male prisoners.


Nearly half of federal prisoners are there for drug offenses. White collar offenses make up half of one percent. A quarter of federal prisoners are there for public-order crimes, such as weapons and immigration offenses. Violent crimes total around 14 percent. Property crimes, including burglary and fraud, make up ten percent.

Policymakers in decades past sought to bring the War on Drugs to the federal level. And this war continues today. In 2013, half of federal drug offenders had little or no prior criminal record and 84 percent had no weapon involved in their crime. Despite this, 95 percent of them went to prison. Without the necessary in-prison treatment services, drug offenders often leave prison without having been rehabilitated, and recidivism rates are high.

Sentence Lengths

Sentence lengths vary widely, but the clear majority of prisoners are serving up to 15 years. Two percent are serving less than one year, a quarter is serving one to five years, 26 percent are serving five to ten years, one-fifth is serving ten to 15 years, 11 percent are serving 15 to 20 years, 13 percent are serving more than 20 years, and three percent will be in prison for life.

Policymakers in the 1980s and 1990s primarily focused their efforts on increasing incarceration lengths. We are now seeing the consequences of those decisions – which have all outlasted the problem. Its inmate population grew beyond its prison capacity by 38 percent. Crime has dropped dramatically in the interim. But incarceration had a limited effect on crime in the 1990s, and has had a nearly non-existent effect since 2000.

We now need to rethink how we respond to crime, change outdated federal policies, and refrain from our use of prison. Legislative change from Congress will be paramount. Fortunately, both sides of the aisle agree that something must be done.  As former President Bill Clinton wrote earlier this month, “after decades in which fear of crime was wielded as a political weapon, so many now understand the need to think hard and offer real reforms.”

Criminal Justice, Prison Policy/Incarceration, Sentencing Guidelines