Fifty Different Countries?
The Complications of Penal Federalism
Franklin E. Zimring
July 2, 2013
1 The political structure of government power in the United States presents an important
challenge to those who wish to make generalizations about penal policy, including students of
what they call “American Exceptionalism.” While the penal policies of the national government
control when in conflict with state legislation, for the most part, the national government leaves
issues regarding crimes and punishments to the separate determination of 50 different states.
The extent of penal federalism in the United States is much greater than in other formally federal
governments. In the People’s Republic of China (PRC) and India, the forms of federalism are
important, but every execution in each nation is an act of national government (Johnson and
Zimring 2009). In the United States, there were 1,320 executions between 1976 and the end of
2012 and 1,317 of these were conducted by state governments carrying out the enforcement of
state criminal laws—99.8% of the most severe punishments are determined at the state level of
government (Death Penalty Information Center 2013). State and local governments also
dominate the administration of penal confinement. About 85% of all persons in prisons and
more than 90% of all persons locked up in prisons and jails are the responsibility of state
government and its political subdivisions. In this important sense, the United States is not one
country but 50 different countries. Under these circumstances, does it make any sense to discuss
“American Exceptionalism” in penal practice?
It may, but only if close attention is paid to the diversity as well as the uniformity that can
be observed in subnational penal practices in the United States. There indeed may be occasions
when observing state-to-state uniformity and also noting state-to-state variation can help to
determine the causes of penal practices that are distinctively American. This essay will discuss
two punishments most often mentioned as examples of American exceptionalism—capital
punishment and imprisonment. In each setting, there are huge variations among American states.
2 In both cases, the study of interstate variation is a useful method of investigating the causes of
penal difference. In the case of imprisonment trends over time, there may also be a nearly
uniform pattern that teaches us about the influences of culture and public opinion on penal
policy.
I.
Capital Punishment as a Case Study in American Execeptionalism
No penal practice currently sets the United States apart from other developed nations as
much as the death penalty. The United States is the only Western developed nation that has
experienced any executions in the past generation and one of two developed democracies that
regularly conducts executions (the other is Japan). But the critical level of government for
capital punishment policy is state, and there is tremendous variation in the United States. In the
first place, a substantial number of American states have long-standing and consistent credentials
as abolitionists. Table 1 compares five of the earliest U.S. states to abolish the death penalty with
the vintage of six Western European abolitions. Michigan permanently abolished the death
penalty before any Western European nation, as did Wisconsin. Minnesota and North Dakota
both abolished the death penalty four decades before Germany and Italy.
3 Table 1. Western European and U.S. Pioneers in Permanent Abolition of the Death Penalty.
United States
Before 1900
Western Europe
Michigan (1846)
Portugal (1867)
Wisconsin (1853)
The Netherlands (1870)
Maine (1887)
1901-1950
Minnesota (1911)
(Italy) 1944)
North Dakota (1915)
Germany (1949)
1951-2000
United Kingdom (1965)
France (1981)
Sources: Zimring and Hawkins (1987) at Table 2.1 (p. 29); for France, see Zimring (2003), Table
2.1 (p. 23).
4 Even among those states that have conducted executions, the rate of state execution over the
years 1976-2012 has varied tremendously as shown in Figure 1.
5 Figure 1. Aggregate Executions per Million Population, 1976-2012.
Executions per 1,000,000 population
30
25
20
15
Executions per 1,000,000 population
10
5
Oklahoma
Texas
Delaware
Virginia
Alabama
Missouri
South Carolina
Arkansas
Mississippi
Louisiana
Georgia
Arizona
North Carolina
Nevada
Ohio
Florida
South Dakota
Indiana
Montana
Utah
Idaho
Wyoming
Nebraska
Maryland
Tennessee
Illinois
Washington
Kentucky
Oregon
New Mexico
California
Connecticut
Pennsylvania
Colorado
0
Sources: Death Penalty Information Center, Number of Executions by State and Region since 1976 (updated Dec. 12, 2012),
<http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976>; U.S. Census Bureau, 2010 Census Interactive
Population Search, available at <http://www.census.gov/2010census/>.
6 Even restricting the states reported to those which actually conducted executions (states
like New York, New Jersey and Massachusetts had a death penalty on their books for part of that
era but didn’t execute), the rates of execution are very different. The four highest rate to
population states had a cumulative average execution rate of 19.54 per million citizens while the
four lowest execution states had an average of .266 per million—the rate difference is 74 to 1.
So how do these data intersect with questions of American penal execeptionalism?
Minnesota is as different from Texas in its stable policy toward the death penalty as Norway is
from Iraq. Yet Minnesota is just as American as Texas and it displays an immunity to capital
sanctions for a century. What is the character of capital punishment exceptionalism that includes
two such diametrically opposed policies?
The radical penal decentralization of the American federal system turns out to be one
important substantive element of American exceptionalism. If a British or Chinese scholar
wonders why the United States has been the scene of over 1,300 executions, the power of state
level government to make life-and-death decisions is a big part of the story. If only the national
government could authorize and conduct executions, it is quite probable that the total number of
executions for the era after 1976 would only be a fraction, perhaps even a small fraction, of the
1,320 total that the decentralized federal system actually produced. So the same peculiarity of
decentralized political authority that made Michigan and Minnesota pioneers in penal reform
also left plenty of extra dead bodies in Southern states in the 35 years after Gregg v. Georgia.
Delegating authority to provincial governments increases variance and may also increase
aggregate levels of punishment. Penal federalism is an important part of penal exceptionalism.
There is a second respect in which the peculiar distribution of executions in U.S. states
provides a methodology for studying what causes executions in some American states and thus
7 also generates important substantive clues about what produces executions on American soil in
the twenty-first century. The distribution of executions among 50 American states is anything
but random, with Southern states generating more than 4/5ths of national execution totals (see
Zimring 2003). One methodology of searching for causes is thus looking for features of culture,
history and governance in states like Texas and Virginia that are absent in Minnesota and other
non-execution environments. My 2003 study suggested using “the federal laboratory” to
discover the roots of capital punishment exceptionalism:
The patterned differences between states and regions are both a puzzle and an
opportunity. With so much variation between American governmental entities,
why not use the 50 United States as a laboratory to test hypotheses about which
elements in American character or government might explain the persistent
attachment to the death penalty and the different ways in which the penalty is
viewed? There is good reason to suppose that theories capable of explaining
variations within the United States might also explain differences between the
recent career of the executioner in the United States and in other developed
countries.
The two central policy puzzles of the past quarter-century are the persistence of
the death penalty in the United States when other developed nations have rejected
it, and the absence of fear of government as political motive for opposing capital
punishment. Perhaps understanding the differences between Texas and Virginia,
on the one hand, and Ohio and Michigan, on the other hand, can help explain why
8 so many American states retain and use a death penalty. The assumption is that
what makes Virginia so much more likely to execute will also explain why so
many U.S. states differ from other Western governments (Zimring 2003 at p. 86).
My own conclusions about the substantive implications of the peculiar patterns of
execution in U.S. states can be found in the fifth chapter of The Contradictions of American
Capital Punishment (Zimring 2003 at Chapter 5). But the deeper strategic point is that
explaining the known differences between American states is a powerful method of exploring the
reasons why the United States differs from other nations.
II.
Uniformity and Variations in Rates of Imprisonment
If the death penalty is Exhibit A in complaints about American penal exceptionalism, the
major emphasis in recent years has come from the nation’s extraordinary rates of penal
confinement. Here again, the dominant influence on rates of penal confinement is state
government so that the federal system must be a major influence on what sets U.S. policy apart
from that of other developed nations. But while longstanding policy differences dominated the
first section’s discussion of capital punishment, the moving parts in the story of mass
imprisonment in the United States show a much more dynamic pattern over time.
Figure 2 begins my story by showing, at the national level, rates of imprisonment by year
from 1930 to 2007.
9 Figure 2. Imprisonment Rate per 100,000 Population, United States, 1925-2002.
500
450
400
350
300
250
200
150
100
50
0
1925 1930 1935 1940 1945 1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000
Source:
U.S. Department of Justice, Bureau of Justice Statistics (2003).
10 The pattern in Figure 2 over time breaks into two distinct eras. For the first 40 years after
1930, rates of imprisonment are quite stable, hovering around a rate of 100 per 100,000. For the
35 years after 1972, however, the pattern is one of consistent and substantial increase. Rates of
imprisonment go up every year for a generation and at the end of this time series the rate of
imprisonment is five times the rate of the early 1970s.
There are two technical issues relating to the discussion of American exceptionalism that
concern the data in Figure 2. The first point is that the U.S. national rate was on the high side for
developed nations in the first 40 years of Figure 2’s record but was not what statisticians call an
“outlier.” The United States was near the top of peer comparison national rates but did not
occupy its own statistical stratosphere. What came to be called “mass imprisonment” in the
United States was largely the product of policy and rate changes after 1970.
The second technical point about Figure 2 is that this national data set is precisely the
kind of “aggregation error” that the introduction to this paper put under sustained attack. In a
paper organized around the penal powers of 50 different states, why begin discussion with a
national trend that combines all the states into a single total for each year? My justification for
showing the aggregate trends is that this sharp an aggregate increase is exactly what shouldn’t
happen when 50 different governments control 85% of the process. The sharp trend in the
aggregate total means that most of the independent systems that feed into the aggregate are going
very much in the same direction.
This trend over time, however, does not mean that rates of imprisonment in the 50 states
end up at similar levels. They don’t. Figure 3 shows the distribution of imprisonment rates for
the states for 2007, at the end of the 35 year run up.
11 Figure 3. 2007 Incarceration Rate by State.
2007 Incarceration rate per 100,000
1000
900
800
700
600
500
400
2007 Incarceration rate per 100,000
300
200
0
Louisiana
Delaware
Mississippi
Alaska
Texas
Oklahoma
Alabama
Connecticut
Arizona
Georgia
South Carolina
Florida
Kentucky
Nevada
Missouri
Arkansas
Michigan
Virginia
Idaho
California
Colorado
Hawaii
Ohio
Indiana
Tennessee
Wisconsin
North Carolina
Maryland
South Dakota
Wyoming
Rhode Island
Oregon
Pennsylvania
Montana
Illinois
Vermont
West Virginia
New Mexico
New York
Kansas
New Jersey
Iowa
Washington
Nebraska
Utah
New Hampshire
North Dakota
Minnesota
Massachusetts
Maine
100
Sources: Heather C. West & William J. Sabol, Prisoners in 2007, Bureau of Justice Statistics (Feb. 12, 2009),
<http://bjs.ojp.usdoj.gov/content/pub/pdf/p07.pdf>; U.S. Census Bureau, Population Estimates, Vintage 2007: State Tables, available
at <http://www.census.gov/popest/data/historical/2000s/vintage_2007/state.html>.
12 The range of rates in U.S. states is substantial—with three states (Maine, Massachusetts
and Minnesota) under 200 per 100,000 while Louisiana and Delaware incarcerate at rates in
excess of 800 per 100,000. There are no obvious differences in population density to account for
this more than four to one difference, and these differences between U.S. states are as great as
some of the international comparisons on national level rates that put the U.S. aggregate at the
pinnacle of imprisonment scale. Figure 4 adds six foreign nations into the mix of individual state
totals to illustrate what disaggregation can teach.
13 0
Louisiana
Delaware
Mississippi
Alaska
Texas
Oklahoma
Alabama
Connecticut
Arizona
Georgia
South Carolina
Florida
Kentucky
Nevada
Missouri
Arkansas
Michigan
Virginia
Idaho
California
Colorado
Hawaii
Ohio
Indiana
Tennessee
Wisconsin
North Carolina
Maryland
South Dakota
Wyoming
Rhode Island
Oregon
Pennsylvania
Montana
Illinois
Vermont
West Virginia
New Mexico
New York
Latvia*
Kansas
New Jersey
Thailand*
Iowa
Taiwan*
Washington
Nebraska
Utah
New Hampshire
North Dakota
Czeck Republic*
Minnesota
Massachusetts
Maine
England & Wales*
Italy*
Figure 4. Incarceration Rate, States and Select Nations.
Incarceration rate per 100,000
1000
900
800
700
600
500
400
300
*
14 *
*
200
*
100
*
* = foreign country
Sources: International Centre for Prison Studies, “Europe - Prison Population Rates per 100,000 of the National Population,”
available at <http://www.prisonstudies.org/info/worldbrief/wpb_stats.php?area=europe&category=wb_poprate>.
*
Using 2007 data, it turns out that Latvia reports a rate of imprisonment per 100,000
greater than New Jersey and quite close to that of New York. Thailand uses its prisons more
than Washington and Utah, and the Czech Republic has a higher rate of incarceration than
Minnesota. To be sure, all the American states report higher imprisonment than Italy or England
and Wales, but even at the end of the explosive growth in imprisonment documented in Figure 2,
the 50 states are very broadly different in rates of imprisonment and many states are not that far
off the imprisonment rates found in non-U.S. nations.
But while the cross-sectioned differences between U.S. states are quite substantial both at
the beginning of the imprisonment growth (Zimring and Hawkins 1991, Figure 6.1 at p. 149) and
currently, the pattern of growth in rates of imprisonment is much closer to being uniform. Figure
5, taken from a study I published in 2010 compares the percentage growth in state rates of
imprisonment over the 35 years after 1972 to the distribution of growth rates are would find with
a normal distribution around a single mean growth rate of 400%.
15 Figure 5. The Almost Bell Curve Distribution of State Imprisonment Growth Rates, 1972-2007.
10
8
6
4
2
0
100%
200%
300% 400%
500% 600%
700%
Percent Change
Source:
U.S. Department of Justice, Bureau of Justice Statistics.
16 800% 900%
The solid bars in Figure 5 divide the 50 states into growth categories over the 35 years
and the line through the graph shows what a normal distribution around a 2007 mean of 500% of
1972 rates would produce. There are only a few variations between the normal distribution line
and the actual distribution of growth rates. The left-hand side of the graph is almost uniformly
bell shaped while the right-hand side shows a smaller than expected 700% volume of states and a
larger than expected 800% group.
Using standard statistical techniques, the 2010 study suggested that the rather slight
variations from the normal distribution noted in Figure 5 might be chance variations (Zimring
2010 at pp. 1236-37). My conclusion in 2010 from the data bear repeating:
The smaller the probability that this is a fifty-case sample from a normal
distribution, the more likely the pattern of difference observed is not normal, with
a probability of 0.05 or less a usual benchmark for strong statistical evidence of
non-normal distribution. But using a Shapiro-Wilk test produces a probability of
normal distribution of 0.31151 and the Shapiro-Francia test probabilities 0.46612.
The question these tests address is “how likely” it is that a distribution like that
being tested could be the outcome of sampling fifty readings from a normal
distribution. The answer is “pretty likely.” There are thus no indications in these
analyses of anything other than fifty different outcomes of a uniform process
(Zimring 2010, p. 1237).
If the current circumstantial evidence of Figure 5 is correct, the 35 year increase in
imprisonment might have been 50 different units of government participating in a single process.
17 Whatever the diversity in rates of incarceration at the beginning, the growth process was
essentially similar in the different states. And if this uniquely large growth process is the major
cause of the current outlier status of American imprisonment, then it may make sense to call
mass imprisonment an American national phenomenon.
But any uniformity in prison growth over the generation after 1972 would have had to be
the product of non-governmental circumstances and influences. There was no federal program to
encourage prison growth of any kind prior to the federal crime control legislation of 1994 and
only a weak federal prison incentive after 1994. What kinds of cultural or media influence might
inspire 50 different political systems to march in the same direction at more or less the same
speed?
It is tempting to think that concern over crime or changing attitudes toward punishing
offenders might be the driving influence of a single growth process. But this thesis is awfully
hard to test in a rigorous way. And it’s worth remembering that these same hardening attitudes
being nominated as the cause of an a 50-state growth in imprisonment produced no changes
whatsoever in the substantial number of states that had long rejected the death penalty (see Table
1).
Two other papers in this collection address the question of the pattern of expansion in
state imprisonment—Anthony Doob and Cheryl Webster, and Tapio Lappi-Seppia—and each
paper raises the question of whether the best measure of growth in scale of imprisonment is
percentage change in rate of imprisonment (which I used) or instead the increase in number of
prisoners per 100,000 not tied to any base rate for each state.
The Doob and Webster paper uses a different measure of state growth, contrasting each
state’s average imprisonment for 1971–1975 with its average rate in 2006–2010, with the multi-
18 year averages meant to avoid single year aberrations. Figure 6 uses their data to test again for
the likelihood of a normal distribution.
19 Figure 6.
Likelihood of Normal Distribution of State Level Imprisonment Growth, Two
Measures and Two Tests.
Percentage Change in
State-Level Imprisonment
1971–1975 to 2006–2010
Shapiro-Wilk
p. value .5568
Shapiro-Francia
p. value .6975
Absolute Change in
State-Level Imprisonment
per 100,000
1971–1975 to 2006–2010
Shapiro-Wilk
p. value .0248
Shapiro-Francia
p. value .018
Sources: Data, Doob and Webster, Appendix I; computations, Hannah Laqueur.
20 The contrast between using percentage growth and simply comparing variations over
time in incarceration rates is dramatic. Both tests show a normal curve for the 50-state pattern is
quite likely for percentage growth (56% and 70%). Both tests show that the growth in
imprisonment rate for each of the 50 states is, when not normed to prior imprisonment,
extremely unlikely to be a normal distribution (2.5% and 1.8% likelihood). So the normal
appearance of the percentage growth pattern is strengthened and confirmed, but the distribution
of growth numbers unconnected to prior rate is not a bell curve.
So which approach to the scale of imprisonment is correct? When the growth in each
state’s rate of incarceration is not linked to previous rates of incarceration, an important measure
of the long-term propensity and capacity to imprison is taken off the table. The percentage
change adds more information and is thus presumptively preferable. Would we rather measure
the growth in per capital income as a percentage of its base or just the size of a dollar increase
with no information on base rate?
But what was the mysterious non-governmental process that pushed all the states to
radical increases? It is almost more plausible to assume that the appearance of uniformity or
single process produced in Figure 5 is misleading, that prison growth in the states wasn’t a single
process after all, than it is to imagine the type of changes in the software of citizen opinion that
could create an orderly single process progression of huge magnitude over a generation.
But whatever the eventual interpretation of the puzzling uniformity in imprisonment
growth, a substantial knowledge of the American federal system is a necessary tool for an
informed discussion of what might have influenced prison growth in the years after 1972. Any
real single trend in those years was not the result of a common government. And if this was the
result of shifts in attitude or opinion, they must have been very specific prison-based attitudes
21 rather than a more general shift to a hard line. The evidence here is the fixed propensities of
non-capital punishment states.
Conclusion
So the available data on state penal power and patterns of the two most prominent issues
implicated in discourse about American penal exceptionalism point in different directions. For
the death penalty, state penal power over life and death is itself one important reason why
executions continue in the United States. But it is also true that embrace of state killing is not
nationwide. That Michigan and Wisconsin are in effect different nations than Texas and
Oklahoma in relation to state killing as a criminal sanction.
For mass imprisonment, the evidence of nationwide growth in imprisonment is more
substantial, but the cross-sectional differences in current rates of incarceration are very large. A
state like Minnesota is closer to the Czech Republic and England and Wales in prison levels than
to Alabama and Delaware. And if the growth patterns after 1972 are nearly uniform in the states,
there is no obvious explanation of the cause.
The puzzles we confront when examining the patterns of penal outcome at the state level
are more than substantial. But any responsible empirical research on American punishment must
confront these patterns and may yet discover some essential truths about punishment in the
United States by sorting out the mysteries of federalism.
22 References
Death Penalty Information Center, Number of Executions by State and Region since 1976 (last
visited January 30, 2013), available at <http://www.deathpenaltyinfo.org/number-executionsstate-and-region-1976>.
Doob, Anthony and Cheryl Webster [this volume].
International Centre for Prison Studies, “Europe - Prison Population Rates per 100,000 of the
National Population,” available at
<http://www.prisonstudies.org/info/worldbrief/wpb_stats.php?area=europe&category=wb_popra
te>.
Johnson, David T. and Zimring, Franklin E. 2009. The Next Frontier: National Development,
Political Change, and the Death Penalty in Asia, New York: Oxford University Press.
U.S. Census Bureau, 2010 Census Interactive Population Search, available at
<http://www.census.gov/2010census/>.
U.S. Census Bureau, “Population Estimates, Vintage 2007: State Tables,” available at
<http://www.census.gov/popest/data/historical/2000s/vintage_2007/state.html>.
23 U.S. Department of Justice. Bureau of Justice Statistics. 1972-2007. Washington, D.C.:
Government Printing Office.
West, Heather C. and Sabol, William J. “Prisoners in 2007,” Bureau of Justice Statistics
(accessed Feb. 12, 2009), available at <http://bjs.ojp.usdoj.gov/content/pub/pdf/p07.pdf>.
Zimring, Franklin E. and Hawkins, Gordon. 1987. Capital Punishment and the American
Agenda, New York: Cambridge University Press.
Zimring, Franklin E. and Hawkins, Gordon. 1991. The Scale of Imprisonment, Chicago:
University of Chicago Press.
Zimring, Franklin E. 2003. The Contradictions of American Capital Punishment, New York:
Oxford University Press.
Zimring, Franklin E. 2010. “The Scale of Imprisonment in the United States: 20th Century
Patterns and 21st Century Prospects,” The Journal of Criminal Law & Criminology 100:12251245.
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