Incarceration Nation

What if America's incarcerated population really was a nation?

You already know that the United States locks up a higher percentage of its population than any other country in the world. If you look at local, state, and federal prison and jail populations, the United States currently incarcerates more than 2.4 million people, a figure that constitutes roughly 25 percent of the total incarcerated population of the entire world.

A population of 2.4 million is a lot of people -- enough, in fact, to fill up a good-sized country. In the past, the British Empire decided to convert a good chunk its prison population into a country, sending some 165,000 convicts off to Australia. This isn't an option for the United States, but it suggests an interesting thought experiment: If the incarcerated population of the United States constituted a nation-state, what kind of country would it be?

Here's a profile of Incarceration Nation:

Population size: As a country -- as opposed to a prison system -- Incarceration Nation is on the small side. Nonetheless, a population of 2.4 million is perfectly respectable: Incarceration Nation has a larger population than about 50 other countries, including Namibia, Qatar, Gambia, Slovenia, Bahrain, and Iceland. And though the population of Incarceration Nation has dipped a bit in the last couple of years, the overall trend is toward growth: over the last 30 years, the incarcerated population of the United States has gone up by a factor of four, making Incarceration Nation's population growth rate more than double that of India.

Geographic area: This is a tough one, since I haven't found any way to accurately measure the physical space occupied by Incarceration Nation. We have to do some educated guessing here. There are more than 4,500 prisons in the United States. Let's assume that each of those prisons takes up about half a square mile of land -- a reasonable (and probably quite low) estimate given that most prisons are, for security reasons, surrounded by some empty space. That gives Incarceration Nation an estimated land area of about 2,250 square miles: small, but still larger than Brunei, Trinidad and Tobago, Luxembourg, Bahrain, and Singapore.

Population Density: No matter how you look at it, Incarceration Nation is a crowded place. If we assume a land area of 2,250 square miles, it has a population density of roughly 1,067 people per square mile, a little higher than that of India. Of course, the residents of Incarceration Nation don't have access to the full land-area constituting their nation: most of them spend their days in small cells, often sharing cells built for one or two prisoners with two or three times that many inmates. In 2011, federal prisons were operating 39 percent above capacity; in many state systems, overcrowding was much worse. (In 2011, the U.S. Supreme Court found that overcrowding in California prisons was so severe it constituted "cruel and unusual punishment".)


A nation of immigrants: Like many of the smaller Gulf States, Incarceration Nation relies almost entirely on immigration to maintain its population. You might even say that Incarceration Nation is a nation of displaced persons: most of its residents were born far away from Incarceration Nation, which has a nasty habit of involuntarily transporting people hundreds and sometimes thousands of miles away from their home communities, making it extraordinarily difficult for residents to maintain ties with their families. In New York, for instance, one study found that "70 percent of incarcerated individuals are in prisons over 100 miles from their homes" -- often in "isolated rural areas that are inaccessible by direct bus or train routes."

Birthright citizenship? Though most residents are immigrants and displaced persons, an estimated 10,000 babies are born each year in Incarceration Nation. Most of those babies are deported within months, generally landing with foster families. But Incarceration Nation does have its own form of birthright citizenship, if you can call it that: as many as 70 percent of children with an incarcerated parent end up incarcerated themselves at some point. 

Gender balance: International attention to gender imbalances has tended to focus on China, India, and other states, but Incarceration Nation has the most skewed gender ratio of any country on Earth: men outnumber women by a ratio of about 12 to 1. 

Racial and ethnic makeup: If Incarceration Nation were located in a geographical region matching its racial and ethnic makeup, it would probably be somewhere in the Southern Hemisphere, perhaps near Brazil. Roughly 40 percent of the incarcerated population is of African descent, another 20 percent is of Hispanic descent, and the remaining 40 percent are Caucasian or mixed. For the average American, this means that one's odds of spending time in Incarceration Nation depend greatly on gender and race: a white woman has only a one in 111 lifetime chance of ending up incarcerated, while a black man has a whopping one in three chance.

Health: Incarceration Nation doesn't do so well here. One recent study found that the incarcerated are "more likely to be afflicted with infectious disease and other illnesses associated with stress." Tuberculosis rates, for instance, are 50 to 100 percent higher for inmates than for the general U.S. population. (If Incarceration Nation were a real country, it would have the highest TB rate in the world.) More than half of Incarceration Nation's citizens are mentally ill, with depression rates roughly on a par with those experienced by citizens of Afghanistan. Another recent study found that for every year spent incarcerated, life expectancy dips by two years.

Human Rights: Incarceration Nation is a police state. ‘Nuff said.

Economics: Incarceration Nation doesn't make it easy for outsiders to understand its unique economy, but it's possible to gather a few data points.

Per Capita Spending: Judged by per capita government spending, Incarceration Nation is a rich country: its government spends an average of about $31,000 per year on each incarcerated citizen. (State by state, costs vary. Kentucky and Indiana spend less than $15,000 on each inmate per year, while in New York State, the per capita cost per inmate is more than $60,000 a year. In New York City, per capita costs for jail inmates reach an astronomical $168,000 per year.) Internationally, only little Luxembourg spends as much on its citizens as Incarceration Nation; among the generally wealthy states of the OECD, average per capita spending is under $15,000, and Sweden, France, Germany, Canada, the United States, and the United Kingdom all spend under $20,000 per year on each citizen.

Gross Domestic Product: Incarceration Nation doesn't have a GDP, per se, but that doesn't mean it doesn't turn a profit -- sometimes, and for some people. For American taxpayers, aid to Incarceration Nation is pretty expensive: looking at just 40 U.S. states, the Vera Institute of Justice found that the cost to taxpayers of incarceration in these states was $39 billion. Overall, federal and state governments spend an estimated $74 billion on prisons each year. (This doesn't count spending on state and local jails.) How much is $74 billion? It's higher than the GDP of more than half the countries in the world, including Lebanon, Paraguay, Nepal, and Lithuania.

Some people make a lot of money from Incarceration Nation. Incarceration Nation employs about 800,000 people as prison guards, administrators, and the like -- almost as many people as are employed in the entire U.S. automobile industry -- and in some rural areas, prisons are the main employers. But the real money goes to the operators of private prisons and the companies that make use of prison labor. Overall, private prisons house roughly 10 percent of Incarceration Nation's residents, and large private prison companies (such as CCA, the Geo Group, and Cornell Companies) boast impressive annual revenues. In 2011, for instance, CCA -- which urges potential investors to take advantage of "highly compelling corrections industry dynamics" -- has an annual revenue of over $1.7 billion, and its CEO, Damon Hininger, was the happy recipient of some $3.7 million in executive compensation in 2011.

Labor Standards: If you think low labor costs in countries such as China and Bangladesh are a threat to U.S. workers and businesses, labor conditions in Incarceration Nation will dangerously raise your blood pressure. Take UNICOR, a.k.a. Federal Prison Industries, which employs 8 percent of "work eligible" federal prisoners. Hourly wages offered by UNICOR range from 23 cents an hour -- about on a par with garment workers in Bangladesh -- to a princely $1.35 for "premium" prisoners, comparable to the hourly wage of Chinese garment workers. That's a good deal less than the $2 average hourly wage for a manufacturing worker in the Philippines, or the $6 an hour average wage for Mexican manufacturing workers.

Who benefits from these low wages? The U.S. Department of Defense, for one. The DOD is UNICOR's largest customer; in fiscal year 2011 it accounted for $357 million of UNICOR's annual sales. UNICOR makes everything from Patriot missile components to body armor for the DOD: In September 2013, for instance, the DOD announced that the Army has awarded UNICOR a "$246,699,217 non-multi-year, no option, firm-fixed-price contract...to procure Interceptor Body Armor Outer Tactical Vests for various foreign military sales customers."

This is a great deal for everyone except the population of Incarceration Nation, since they're stuck with forced labor at wage levels that would make many third world employers blush. No one likes to talk about this, of course: "We sell products made by prison labor" isn't the kind of slogan likely to generate consumer enthusiasm. But to those in the know -- as an online video promoting UNICOR's call-center services boasts -- prison labor is "the best-kept secret in outsourcing."

Maybe Incarceration Nation really is a foreign country.

John Moore/Getty Images

By Other Means

Never Waver

Now is the time for Obama to beat back the congressional hawks taking aim at the Iran deal.

They say you shouldn't let the perfect be the enemy of the good. When it comes to Iran, it might be more appropriate to say: "Don't let the perfect be the enemy of the slightly less crummy of the realistic alternatives."

President Barack Obama needs to drive this point home with congressional critics of the Geneva deal. We'd all prefer to have an Iran without nuclear weapons capabilities. It would also be great to eradicate cancer tomorrow and fill Tehran with rainbows and unicorns, but none of these things is currently within our power. We don't get to choose between an Iran with nuclear weapons capabilities and an Iran without nuclear weapons capabilities.

The choice we truly face is less appealing:  Do we want a bellicose Iran that has the ability to produce nuclear weapons within a matter of months and is unremittingly hostile to U.S. interests? Or do we want an Iran that has the ability to produce nuclear weapons within a matter of months, but is no longer as unremittingly hostile to U.S. interests?

I'll take the latter, thanks very much.

It's not perfect. It's not even good. But it's a whole lot better than the alternative.

U.S. negotiators in Geneva recognized this, and they got the best deal they could, given our remarkably limited bargaining power. In fact, they got a deal that's substantially better than most Iran watchers expected: Under the terms of the Geneva agreement, Iran will freeze further work on key nuclear facilities, neutralize all uranium enriched to 20 percent, and permit daily international inspection of sensitive sites, all in exchange for limited and temporary sanctions relief. Every permanent member of the U.N. Security Council is on board, even Russia and China, and the deal doesn't lock anyone in permanently: It endures for six months, long enough to give negotiators time to assess each other's good faith and see if a final agreement can be reached.

It's not great, but it's not chopped liver, either. After a decade of impasse and insults on both sides, it's a small but genuine breakthrough. If all goes well in the next six months, we might even get to some bigger breakthroughs.

But that depends on President Obama's willingness to stand firm in the face of congressional bluster.

There's no shortage of that bluster: So far, Congress has shown a distinct bipartisan disinclination to engage in reality-based thinking. Sen. Bob Menendez, chair of the Senate Foreign Relations Committee, complains that the Geneva deal "did not proportionately reduce Iran's nuclear program." Sen. John McCain has called the deal a "dangerous step that degrades our pressure on the Iranian regime." Rep. Eliot Engel, the ranking member on the House Foreign Affairs Committee, objects that the deal does not  "require Iran to completely halt its enrichment efforts or dismantle its centrifuges." Sen. Marco Rubio agrees, insisting that there should be no sanctions relief until "Iran completely abandons its enrichment and reprocessing capabilities."

Rainbows and unicorns, guys.

Short of all-out war, the Obama administration -- and the rest of the international community -- has essentially zero ability to force Iran to abandon its nuclear program completely. We've tried, remember? As I wrote on Nov. 21, for two decades, we've threatened, we've blustered, and we've piled sanctions on top of sanctions. And for two decades, Iran has continued to advance its nuclear program. We can keep up the sanctions for the next two decades, but we're likely to get an even angrier, more desperate Iran that would still continue to build up its nuclear program.

Similarly, limited military strikes won't get Iran to end its nuclear program -- but they sure will piss off the Iranians. The consensus among military and intelligence experts is that such strikes would, at most, set Iran's nuclear program back by a few years, while convincing Iran that it needs nukes as a matter of truly urgent self-defense.

That leaves all-out war with Iran. If we're willing to pull out all the stops -- with sustained airstrikes and a massive ground invasion -- we might be able to completely dismantle Iran's nuclear facilities. Maybe. But the outcome would be uncertain and the price would be horrific, both for Iranian civilians and for the United States and Israel.

Congressional hawks should stop bloviating and help the president make this deal work. It's funny: Just a few months ago, many of the very same hawkish legislators who are now threatening to destroy the Iran deal by imposing new sanctions were insisting on the importance of executive-legislative unity when bargaining with adversarial foreign states. Remember Syria? When President Obama declared his intention to ask Congress to authorize military action against President Bashar al-Assad, Sen. McCain declared, "A vote against that resolution by Congress I think would be catastrophic. It would undermine the credibility of the United States of America and the president of the United States. None of us want that."

If "none of us want that," it's hard to see why it's important for Congress to back the president when it comes to threats to use military force, but fine for Congress to undermine the president when he tries to use diplomacy so we can avoid resorting to military force.

President Obama needs to make it clear that it's his job, not Congress's, to broker deals with foreign powers. That's not just a policy preference: It's the way the U.S. Constitution divvies up authority between the executive and legislative branches. As the Supreme Court declared in U.S. v Curtiss Wright, the president "alone negotiates: Into the field of negotiation, the Senate cannot intrude; and Congress itself is powerless to invade it."

In fact, it's an open constitutional question whether Congress can impose mandatory sanctions on a foreign state over the president's strong objection. Congress has the power to regulate foreign commerce, but the president is vested with executive power and is the sole representative of the United States vis-a-vis foreign states. Just as the congressional power to declare war does not prevent the president from using military force in what he views as emergencies -- whether Congress likes it or not -- the congressional power to regulate foreign commerce can't force the president to implement sanctions that would undermine a time-sensitive executive agreement if doing so, in the president's view, would jeopardize vital national-security interests.

Any congressional efforts to completely eliminate the president's foreign-affairs discretion could lead to a constitutional showdown, which Congress would almost certainly lose. If Congress passed new sanctions legislation that the president believed would undermine the deal with Iran, he could veto it; if Congress mustered up the two-thirds majority needed to overcome a veto, the president could simply refuse to implement the sanctions. The courts would be unlikely to side with Congress because, traditionally, they have viewed such disputes as "political questions" best resolved through the ballot box.

In their heart of hearts, most congressional grandstanders understand this: It's the reason sanctions legislation generally includes presidential waiver clauses, allowing the president to put aside sanctions for a limited (but renewable) period of time when he believes doing so is vital to U.S. national-security interests.

President Obama should keep all this in mind as he engages with Congress and the public over the coming weeks. Lots of things could jeopardize the Geneva deal -- the Iranians could renege, the Israelis could decide to use unilateral force, other Security Council members could have second thoughts. But here in the United States, the only thing that could truly endanger the deal would be presidential wavering in the face of congressional criticism. Congress can huff and Congress can puff, but as long as the president stands firm, Capitol Hill has little more power to kill the Geneva deal than the United States has to force Iran to completely abandon its nuclear program.

To put it a little differently, President Obama holds the cards -- but if he wants to win, he has to be willing call Congress's bluff. He shouldn't be defensive, and he shouldn't mince words: He should tell congressional hawks straight out that if they manage to pass any new sanctions legislation that would prevent him from keeping the promises made in Geneva, he would regard that as an unconstitutional infringement upon his powers to negotiate on behalf of the United States and protect vital national-security interests. He should make it crystal clear that he would veto any such legislation -- and that even if Congress pushed it through over his veto, he would not implement it.

There's political risk in standing firm, but at this point, the president has far more to lose if he wavers. What's more, public opinion is firmly on his side: Unlike congressional hawks, most Americans understand that this deal is the best available option. President Obama should remind Congress that we need to work with what we have, not with what we wish we had -- and what we have, right now, is a deal with a halfway decent chance of working.