University of Chicago economist Gary Becker and judge and legal scholar Richard Posner are both considered two of America's leading conservative intellectuals. At their blog, they ask: “Does America imprison too many people?”. They both answer in the affirmative.
“…it is a strong “yes
Imprisonment is the right policy for anyone committing heinous crimes like rape, assaults, robbery at gunpoint, and many other crimes where victims are badly harmed both physically and mentally. Imprisonment is the wrong punishment for crimes without victims, or where other punishments are more effective. The sale of drugs is the prime example of a “victimless” crime for understanding the data on imprisonment. Buyers of drugs for the most part enter into voluntary transactions with sellers. Yet almost one quarter of all persons in US prisons are there on drug-related charges. In addition, studies indicate that many others are there because they committed crimes to finance their expensive drug habits since drug prices are kept artificially high by US drug policy . . .
Imprisonment should be rarely used also for other victimless crimes, for crimes that do not greatly harm victims, and for crimes where victims can be adequately compensated by fines and other monetary punishments. In these cases, punishment should consist of fines, probation, and other ways that do not require imprisonment. Eliminating imprisonment for drugs and other victimless crimes,and for many other crimes would cut greatly the US’ bloated prison population,reduce the spending on prisoners, and cut down the depreciation of the market skills of offenders who did not commit serious crimes.
And here's Posner:
Some statistics: the incarceration rate had been 118 per 100,000 in 1950, and actually fell in 1972 to 93 per 100,00. By 2000 it had reached 469 and only since the advent of the economic crisis has it begun to decline as states try to reduce expenditures. Between 1950 and 2000 the white imprisonment rate increased by 184 percent and the black imprisonment rate by 355 percent; today 40 percent of prison and jail inmates are black, although blacks are only 13 percent of the overall population. Even though the U.S. crime rate fell by a third in the 1990s (and by two-thirds in many large cities)— the murder rate by more than 40 percent—the inmate population continued growing during this period, an increase that cannot be explained by population growth, since the population grew by much less than a third in the 1990s . . .
The fact that instead the U.S. imprison more persons in prison than foreign countries do, yet has no lower a crime rate, calls for explanation. If the demand for crime in the U.S. were no higher than in those countries, and the supply price no lower, we would expect the the United States to have a lower crime rate if it imprisons more persons. So the fact that our crime rate isn't lower requires investigation. The investigation might show for example that we criminalize more activity, which is the equivalent of increasing the demand for crime. If an activity is criminalized, this increases the amount of crime unless the criminalization of the activity drives its level to zero . . .
The comments of these scholars are of some note as Canada, through the passage of bill C-10, is about to “criminalize more activity” and, presumably, increase the rate of incarceration of its citizens.