In testimony to the US Congress, Nicholas Eberstadt of the American Enterprise Institute provided evidence on the numbers of Americans who have been arrested, convicted and incarcerated, and exposed the absence of official statistics on this basic point.

Among the shocking statistics presented by Eberstadt to the Committee were the following:

• “[The] total number of US adults in this “convicted” population shot up from fewer than two million persons in 1948 to nearly 20 million in 2010”
• In 2016, 110 million Americans had “an arrest record with police authorities”, up from 54 million in 1997. This equates to 44 percent of the adult population.
• “Just over 91 million Americans [in 2016] were included in the Interstate Identification Index, the database the FBI uses to determine whether someone has a criminal record. That would be two-fifths of the US adult population in 2016.”¹

Beyond concerns about the injustice of mass incarceration, Eberstadt worred that the population of convicted felons is statistically invisible, at least as far as official statistics are concerned.

[The] situation is even worse for demographic, social,and economic data on the population subject to felony sentencing. It is not just that the US government provides no information whatsoever on the social, economic, or health conditions of the men and women in America who have been convicted of a serious crime punishable by imprisonment for a year or more (the standard definition of a felony)—though this too happens to be the case. Astonishing as this may sound, the US statistical system does not even offer an estimate for the total size of the population of Americans who have a felony conviction in their background! Search as one might for even a rough estimate from official statistical authorities of America’s convicted population, there is no government compendium to provide this information. So far as I can tell, US statistical authorities have never asked the question—and thus they do not have any ready means by which to answer it.²

Overcriminalisation, overpunishment and mass incarceration are one area of public policy where there has been recent bipartisan legislative action in the United States. The First Step Act, which was signed into law by President Trump on 18 December 2018, was largely focused on prison reform, but also introduced elements of sentencing reform. According to the Senate Judiciary Committee:

The enhanced mandatory minimums for prior drug felons are reduced: the three-strike mandatory penalty is reduced from life imprisonment to 25 years, and the 20-year mandatory minimum is reduced to 15 years. The offenses that trigger these enhanced mandatory minimum sentences are also reformed. Currently, those offenses may include any prior drug felony. This bill would both limit qualifying prior convictions to serious drug felonies which occurred within 15 years, and expand qualifying prior convictions to include serious violent felonies. This provision is not retroactive and will not apply to any person sentenced before enactment of the Act.³

1. America’s Invisible Felon Population: A Blind Spot in US National Statistics. US Senate. https://www.aei.org/wp-content/uploads/2019/05/Eberstadt-JEC-testimony.edit-final-PDF.pdf.
2. ibid
3. S.3649 –The First Step Act. https://www.judiciary.senate.gov/imo/media/doc/S.%203649%20-%20First%20Step%20Act%20Section-by-Section.pdf.