By Tasseli McKay and William A. “Sandy” Darity Jr.

Social scientists continue to declare that mass incarceration, a defining social force of the last half century, is on its way out. Lifetime risks of imprisonment are indeed in decline, as are absolute and relative imprisonment risks for Black Americans. But whether we consider mass incarceration to be over, or even on its way out, depends a great deal on what we believe mass incarceration is and what it does.

Scholarship on the “collateral consequences” of mass incarceration, leaving concerns with political etiology to political scientists, is curiously absent a broader concept of how such consequences function. Even as the field rigorously documents the vast social, political, economic, and health fallout of mass incarceration, it remains largely agnostic on a central theoretical concern: Do we conceive of mass incarceration as a policy mistake with negative consequences for us all, or as a well-running engine of racial stratification that has enriched some Americans at others' expense? How we answer this question, or do not, has tremendous implications for how we study the harms of mass incarceration and what policy moves we deem capable of confronting it.

Scholarship on mass incarceration's consequences is often introduced with reference to racial inequality. Such scholarship has identified an array of mechanisms by which mass incarceration appears to contribute to racial stratification, particularly through a longstanding line of inquiry on the disproportionate impact of incarceration-related constraints on Black men's workforce participation, income, and wealth. Yet most such research frames these phenomena as an unfortunate artifact of racially disproportionate criminal legal system contact, rather than situatingthe impetus and functioning of the criminal legal system within a broader theory of structural racial inequality.

Critiquing the failure to engage questions of structural racism in empirical research on mass incarceration's consequences, two of the field's preeminent scholars argue,

While most studies that explore the consequences of mass incarceration for American families are motivated by racial inequality within the carceral system--rightfully so, given the massive racial disparities in incarceration rates and criminal justice involvement--the work often fails to engage this important issue in meaningful ways .... We neither interrogate why we see racial disparities in mass incarceration nor do we investigate why we might see racial disparities in outcomes due to mass incarceration.

Indeed, with important exceptions, collateral consequences research inventories the implications of mass punishment for individuals, neighborhoods, and nations rather than examining how a racially targeted punishment system functions within a broader set of national and subnational institutions that systematically privilege whiteness. Further, the possibility that mass incarceration produces systematic benefits, in addition to or even as an impetus for its systematic harms, receives very limited scholarly attention. Such research, if it aims to confront racial injustice, must “move beyond description of racial inequality [and] think critically about how our society's raced institutions interact with one another to stratify the experiences of American families”.

Toward that end, the current review applies the theory of stratification economics to consider whether and how the broad criminalization and intensive punishment of Black Americans have advanced or advantaged their White contemporaries. First, the review briefly revisits key theoretical perspectives on the consequences of mass incarceration and proposes stratification economics as a meta-theoretical framework for understanding the production and functioning of those consequences. Next, it applies stratification economics to available social scientific evidence on the consequences of mass incarceration, analyzing the implications of that evidence for the relative standing of White Americans. Finally, the review advances an agenda for future research and policy capable of confronting and redressing the ill-gotten gains of mass incarceration.

20 Annual Review of Law and Social Science 309 (2024), 22p.

By Daniel Loehr

They are widely understood to have emerged from the “tough-on-crime” movement in the 1980s and 1990s. During this time period, a number of states passed these laws, often in the form of “Three Strikes and You’re Out” laws, which require judges to impose life sentences for third convictions for certain offenses. Washington state passed such a law in 1993, California amended a prior version of its law in 1994 adding a number of violent and non-violent crimes that would qualify for life sentences, and the federal government included a three strikes law in the 1994 Crime Bill. Despite these prominent examples of “habitual offender” laws enacted during this time period, the origination of these laws extends back much further. “Habitual offender” laws first spread across the country in the early 1900s as part of the eugenics movement, which grew in the 1880s and reached its peak in the 1920s. The aim of the eugenics movement was to create a superior race in order to address social problems such as crime and disease, which the movement assumed had a biological basis. Applying pseudoscience, laws and policies were created to prevent those who were deemed inferior, such as the mentally ill, those convicted of criminal offenses, or the physically frail, from reproducing. Eugenics and racism are deeply entwined, and the “projects” of eugenics supported “racial nationalism and racial purity.” One example of the relationship between race and eugenics is found in Nazi Germany, where "Nazi planners appropriated and incorporated eugenics as they implemented racial policy and genocide.  

The report reveals that many of the United States’ “habitual offender” laws, are rooted in eugenics – a widely discredited theory once deployed by Nazis during World War II, that humans can be improved through selective breeding of populations, deeming certain groups as inferior and inhibiting their ability to reproduce. “Habitual offender” laws first spread across the United States in the early 1900s as part of the eugenics movement, and many endure today in 49 states and the federal government.    

American eugenicists promoted “habitual offender” laws – laws that impose longer sentences based on an individual's past convictions – because they believed that certain people who committed crimes were genetically predestined to commit those crimes and could spread their criminality to their children. Although the country shifted away from eugenics after World War II, states like California continue to enforce “habitual offender” sentencing laws that emerged from the eugenics movement.

The report provides a list of current “habitual offender” laws in all 50 states, the District of Columbia, and the federal government and highlights the eugenic principles used to advocate and pass these laws in states like California, Vermont, and Colorado. 

• California’s “Three Strikes and You’re Out” law results in life sentences for offenses that typically would not warrant such extreme punishment. The law’s origins can be traced to 1923. Leading up to its passage, California eugenicists called for a sentencing law that would prevent reproduction.

• Colorado’s “habitual offender” law retains the same operative core as its eugenics-era version from 1929. After vetoing the state’s sterilization bill in 1927, Colorado's Governor noted that long-term sentences would be the better option, noting that “the end sought to be reached by the [sterilization] legislation can be obtained by the exercise of careful supervision of the inmates, without invoking the drastic and perhaps unconstitutional provisions of the act.”

• Vermont passed its first “habitual offender” law in 1927. The then-Governor proposed sterilization or long sentences for “habitual criminals” in order to “restrict the propagation of defective children.” That law remains in force today with only minor textual changes. 

The history of "habitual offender" laws in America is deeply rooted in the racist and pseudoscientific eugenics movement which has left a lasting legacy of irreparable harm to Black and brown communities. These laws were never about justice – they were based on exclusion and false, dangerous belief in hereditary criminality. Dismantling "habitual offender" laws is not just a matter of policy – it is a moral imperative.

Washington, DC: Sentencing Project, 2025. 20p.

By Nicole D. Porter

The United States has one of the highest incarceration rates in the world. Nearly two million people – disproportionately Black – are incarcerated in the nation’s prisons and jails. In the early 1970s, 360,000 persons were incarcerated in correctional facilities.

Criminal legal reform trends in 2024 were divergent at a time when politicians used punitive-sounding talking points to move voters fearful of a recent uptick in crime. However, stakeholders, including formerly incarcerated activists and lawmakers, saw some success in scaling back mass incarceration. Advocacy organizers and officials in at least nine states advanced reforms in 2024 that may contribute to decarceration, expand and guarantee voting rights for justice impacted citizens, and advance youth justice reforms.

Highlights include:

Decarceration Reforms: State lawmakers enacted legal reforms to reduce prison admissions and to adjust penalties to criminal sentences to more fairly hold persons convicted of certain crimes accountable. During 2024, policymakers in Oklahoma and Michigan adopted or expanded second look and compassionate release policies authorizing reconsideration of certain criminal legal sentences after a term of years.

Guaranteeing Voting Rights: While over 4 million people are ineligible to vote because of a felony conviction, voting rights reforms have expanded the vote to over two million people since 1997. This year, officials in Nebraska and Oklahoma approved measures to expand voting rights to persons after incarceration while lawmakers in Colorado passed legislation requiring all county jails to establish polling stations guaranteeing access to the ballot for incarcerated voters.

Youth Justice: Lawmakers in Indiana and Pennsylvania adopted policies that demonstrated a commitment to supporting young defendants including eliminating automatic charging of youth as adults for certain offenses and establishing practices that may reduce length of detention stays.

Highlights include:

Decarceration Reforms: State lawmakers enacted legal reforms to reduce prison admissions and to adjust penalties to criminal sentences to more fairly hold persons convicted of certain crimes accountable. During 2024, policymakers in Oklahoma and Michigan adopted or expanded second look and compassionate release policies authorizing reconsideration of certain criminal legal sentences after a term of years.

Guaranteeing Voting Rights: While over 4 million people are ineligible to vote because of a felony conviction, voting rights reforms have expanded the vote to over two million people since 1997. This year, officials in Nebraska and Oklahoma approved measures to expand voting rights to persons after incarceration while lawmakers in Colorado passed legislation requiring all county jails to establish polling stations guaranteeing access to the ballot for incarcerated voters.

Youth Justice: Lawmakers in Indiana and Pennsylvania adopted policies that demonstrated a commitment to supporting young defendants including eliminating automatic charging of youth as adults for certain offenses and establishing practices that may reduce length of detention stays.

Washington, DC: The Sentencing Project, 2024.

By Jackie O'Brien

As American society has reckoned with the harmful effects of mass incarceration, there has been a push to consider alternative forms of achieving justice. Restorative justice is one such method. A transformative approach to conflict resolution inspired by the traditions and practices of indigenous peoples, restorative justice offers a comprehensive means of addressing harm, emphasizing the community, rather than the single act that caused harm. Many jurisdictions and communities have turned to restorative justice to divert cases from the punitive criminal legal system. While there are variations in programs and approaches, many communities integrate restorative justice practices as a means of addressing harm caused by young people. Applying a restorative approach, these initiatives seek to undermine the harmful, life-long effects that interaction with the criminal legal system imposes upon young people.

These restorative alternatives operate against the backdrop of the punitive system, leading scholars, practitioners, and community members to raise concerns about the lack of procedural protections in place for individuals proceeding through these diversionary programs. Because the proceedings are less adversarial in nature, the legal community has sounded the alarm about the potential for self-incrimination, coercion, and less zealous advocacy by counsel. This unease is further compounded by the fact that failure to complete the requirements of these programs can lead to a referral back to the traditional criminal legal system.

The Restorative Justice Community Court of Chicago (RJCC) is one such alternative. Created in 2017, there are now three RJCCs operating in the North Lawndale, Englewood, and Avondale communities. This Comment seeks to analyze the due process concerns raised by members of the legal and restorative justice communities through the lens of the North Lawndale RJCC. Drawing on knowledge gained through my personal observations and interviews, it is clear that due process violations do not present a substantial threat to the success of the RJCC. Programs like the RJCC operate in a gray zone between the legal rigidity of the criminal legal system and the community-oriented approach adopted by the restorative justice community. This framework urges us to evaluate these programs through an alternative lens so that we can better understand their contributions to furthering justice while remaining aware of their shortcomings to create fully restorative spaces.

113 J. Crim. L. & Criminology 685 (2023).

By Liz Komar and Nicole D. Porter

After 50 years of mass incarceration, the United States faces a reckoning. While crime is far below its peak in the early 1990s,1 the country continues to struggle with an unacceptable amount of gun violence.2 Meanwhile, the drug war harms too many Americans and has failed to prevent fatal overdoses from reaching an all-time high.3 A great imbalance in our national approach to public safety, one that relies too heavily on the criminal legal system, has produced excessive levels of punishment and a diversion of resources from investments that would strengthen the capacity of families and communities to address the circumstances that contribute to crime. This report offers five recommendations for policymakers and community members to potentially improve safety without deepening our reliance on extreme sentencing:

Washington, DC: The Sentencing Project, 2023. 10p.