Excess Incarceration

ABSTRACT ‘Mass incarceration’, as conventionally understood, refers to an imprisoned population that is both excessive in size and racially skewed in its demographics. However, in contrast to racial skew, the appropriate size of a prison system has largely escaped analysis. This article contributes to analysis of the scale of a prison system in two ways. First, I show why non‐controversial principles linking crime to punishment, such as guilt and proportionality, are insufficient. Because incarceration rates are driven more by social policy than by crime, an adequate analysis of scale presupposes an account of what we hope to get out of punishing people in the first place. Second, drawing on a generic crime‐prevention account of incarceration, I sketch three increasingly resolving, but also increasingly contentious, conceptions of excess: the Pareto, social welfare, and utilitarian conceptions. Along the way, I briefly consider the trade‐off between how committal a theory of incarceration is and its ability to explain what is wrong with mass incarceration, as well as the concern that the social welfare and, especially, utilitarian concepts are excessively paternalistic. The ultimate aim of the article is to contribute to our understanding of mass incarceration as a distinctive normative concept.