This article originally appeared in Prison Legal News and was republished with the permission of the author.
Fifteen years ago, mass imprisonment was largely an invisible issue in the United States. Since then, criticism of the country’s extraordinary incarceration rate has become widespread across the political spectrum. The huge prison buildup of the past four decades has few ardent defenders today. But reforms to reduce the number of people in jail and prison have been remarkably modest so far.
Meanwhile, a tenacious carceral state has sprouted in the shadows of mass imprisonment and has been extending its reach far beyond the prison gate. It includes not only the country’s vast archipelago of jails and prisons but also the far-reaching and growing range of penal punishments and controls that lie in the never-never land between the gate of the prison and full citizenship. As it sunders families and communities and radically reworks conceptions of democracy, rights and citizenship, the carceral state poses a formidable political and social challenge.
The reach of the carceral state is truly breathtaking. It extends well beyond the estimated 2.2 million people sitting in jail or prison today in the United States. It encompasses the more than 8 million people – or 1 in 23 adults – who are under some form of state control, including jail, prison, probation, parole, community sanctions, drug courts and immigrant detention. It also includes the millions of people who are booked into jail annually, and the estimated one in four adults in the United States who has a criminal record.
The carceral state directly shapes, and in some cases deforms, the lives of tens of millions of people who have never been arrested or served a day in jail or prison. Millions of children – including one in four black children – will grow up having had an imprisoned mother or father. Numerous neighborhoods and communities have been depopulated and upended as so many of their young men and women have been sent away to prison during what should be the prime of their lives. Hundreds of rural communities have chased after the illusion that constructing a prison or jail will jumpstart their ailing economies.
The problem of the carceral state is no longer confined to the prison cell and prison yard or to poor urban communities and minority groups – if it ever was. The U.S. penal system has grown so extensive that it has begun to metastasize. It has altered how key governing institutions and public services and benefits operate, including elections, schools, public housing and the U.S. census, to name but a few. The carceral state also has begun to distort essential demographic, political and socioeconomic databases, leading to misleading findings about trends in vital areas like economic growth, voter turnout, unemployment, poverty and public health.
As it creates a large and permanent group of political, economic and social outcasts, the carceral state has been bluntly and subtly remaking conceptions of citizenship. Millions have been condemned to civil death, denied core civil liberties and social benefits because of a criminal conviction. An estimated six million people have been disenfranchised either temporarily or permanently because of a criminal conviction. Many more are ineligible to receive public benefits such as student loans, food stamps and public housing due to their criminal records.
Over the past decade or so, the growing opposition to mass incarceration has tended to gravitate toward two different poles, both of them inadequate in the face of these challenges. One pole identifies racial disparities, racial discrimination and institutional racism as the front lines in the challenge to the carceral state. The other pole seeks to find a winning bipartisan path out of mass incarceration by downplaying its stark racial causes and racial consequences. The emphasis instead is on how the fiscal burden of the vast penal system is increasingly untenable. This approach is compatible with the growing push to alter the public conversation about all sorts of social problems by avoiding discussions of controversial issues like the historical legacy of racism.
Race and the Carceral State
Race matters and it matters profoundly in any discussion of how to dismantle the carceral state. In The New Jim Crow, Michelle Alexander persuasively, eloquently and mournfully demonstrates how the emergence of colorblind racism in the post-civil rights era poses a major obstacle to dismantling the carceral state. But there are others.
Alexander identifies ostensibly colorblind drug laws and law enforcement policies as the main culprit in mass incarceration today. But drug offenders comprised only about 16 percent of offenders in state prisons as of 2013. People whose primary offense was a violent one comprised about 54 percent. We could release all drug offenders today, but without other major changes in U.S. laws and penal policies and practices, the United States would continue to be the world’s leading warden, and a stint in prison or jail would continue to be a rite of passage for many African Americans.
The historical evidence is overwhelming that racial animus and the quest to preserve white supremacy have been central factors in the development of the U.S. penal system. But as the racial order continues to invent new ways to target blacks, it has generated punitive policies and practices that diffuse to other groups in the United States, including immigrants, impoverished whites and people convicted of sex offenses. Excavating the ways in which the cruel, dehumanizing and unjust policies and institutions of the carceral state have diffused to other groups does not negate the stark fact that African Americans have been and remain key targets of the criminal justice system.
At the dawn of the Jim Crow era more than a century ago, the massive disenfranchisement of blacks through the poll tax, literacy tests and violent intimidation overshadowed the vast and simultaneous disenfranchisement of poor whites that undermined the growth of the Populist movement in the South. Likewise, the hyper-incarceration of black men today has overshadowed the growing incarceration rates of Latinos, immigrants, women and whites.
Although the U.S. incarceration rate for whites of 400 per 100,000 residents is relatively low compared to the rates for African Americans (2,300 per 100,000) and Latinos (1,000 per 100,000), it is still about two-and-a-half to seven times the national incarceration rates of other Western countries and Japan. Bluntly stated, the United States would still have an incarceration crisis even if it were locking up African Americans at “only” the rate at which whites in the United States are currently incarcerated – or if it were not locking up any African Americans at all.
The U.S. incarceration rate for females is staggering. With just 5 percent of the world’s population, this country incarcerates almost one-third of all the women and girls confined to jails and prisons worldwide. According to a recent report by the Prison Policy Initiative, “with the exception of Thailand and the U.S. itself, the top 44 jurisdictions throughout the world with the highest rate of incarcerating women are individual American states.” The world leader is West Virginia, one of the whitest and poorest states. Its incarceration rate for women is 273 per 100,000 residents, or 55 times the rate for incarcerated women in Ireland, which is at the bottom of the worldwide list.
The carceral state also has dramatically expanded its capacity to apprehend, detain, punish and deport immigrants. The hardline politics, policies and rhetoric that fueled the prison boom of the 1980s and 1990s have been retrofitted for a new population. Now they support institutions that dissolve the distinction between law enforcement and immigration enforcement. In a notable shift, today Hispanics constitute about one-third of all federal prisoners, surpassing blacks and non-Hispanic whites as the largest ethnic or racial group in the federal prison system.
As the war on crime has been winding down on some fronts, it has been gearing up elsewhere. One of these has opened up in rural, predominantly white areas that are reportedly facing the scourges of methamphetamine, heroin and prescription drug abuse. And since the 1990s, U.S. politicians and policy-makers have been laying the institutional and political groundwork for today’s large-scale war against people convicted of sex offenses.
The intense focus on the racial dimension of the carceral state occludes these new growth areas. It also obscures how certain shifts in the wider political economy pose major impediments to the emergence of a successful, broad-based political movement to dismantle the carceral state.
The 3 R’s and Penal Reform
The Great Recession raised bipartisan expectations that the United States would begin closing many of its jails and prisons because it could no longer afford to keep so many people locked up. Publications and groups spanning the political spectrum have embraced framing the problem of the carceral state as primarily a dollars-and-cents issue that begs for a bipartisan solution.
The Pew Center on the States, the Council on State Governments and the U.S. Department of Justice sit at the epicenter of these budget-based efforts. They have joined together to promote policies aimed at saving money by reducing the recidivism rates of ex-offenders and by diverting some low-level offenders from prison. Many of these programs focus on people reentering society after prison. Others are examples of justice reinvestment, a “data-driven” approach that aims to reduce incarceration rates and return the savings to communities hit hardest by the carceral state. The 3 R’s – reentry, justice reinvestment and recidivism – now dominate discussions of penal reform in Washington, D.C. and many state capitals.
A group of brand-name conservatives, including Newt Gingrich, Grover Norquist and Edwin Meese III, has endorsed key aspects of the 3-R strategy. They have joined Right on Crime, an initiative led by the Texas Public Policy Foundation, one of the nation’s leading state-based conservative think tanks. When the National Association for the Advancement of Colored People (NAACP) launched its new campaign against mass incarceration in spring 2011, it prominently featured its association with Right on Crime.
Alliances like these have bolstered a wave of optimism that the country is finally ready to enact major reforms to reduce the incarceration rate. But it is unlikely that elite-level alliances stitched together by mounting fiscal pressures will spur communities, states and the federal government to make deep and lasting cuts in their prison and jail populations and to dismantle other pieces of the carceral state, such as felon disenfranchisement and the denial of civil liberties, employment and public benefits to many people with criminal convictions. The construction of the carceral state resulted from a complex set of developments. No single factor explains its rise, and no single factor will bring about its demise.
The penal system has proved tenacious in the past. Four decades ago, states were in dire financial straits, and there was widespread disillusionment across the political spectrum with indeterminate sentences and the emphasis on prison rehabilitation programs. The 1971 Attica prison uprising prompted an outpouring of public interest in making prisons more humane and reducing their populations. At the time, there were widespread expectations that the country’s incarcerated population – which was fewer than 200,000 people, less than 10 percent of what it is today – would shrink. Instead it exploded. The race to incarcerate that began in the 1970s has persisted for decades amid fluctuations in the crime rate, public opinion and economic conditions.
Cuts to corrections budgets are not likely to yield sizable savings. Although corrections has been one of the fastest growing items in state budgets, second only to Medicaid for two decades now, it still comprises a small portion of total state spending. In fiscal year 2010, state expenditures on corrections totaled $48.5 billion, less than 3 percent of the nearly $2 trillion in total state expenditures. States spend more than twice as much on highways.
Several factors help to explain why “carceral clawback” is so tenacious. As the carceral state has grown, so has the political clout and political acumen of groups, institutions and organizations with vested economic interests in maintaining the world’s largest penal system. These vested interests were not necessarily the main catalysts for the emergence of the carceral state, but they pose major impediments to razing it.
Prison guards’ unions, state departments of corrections, law enforcement groups, the private corrections industry and the financial firms that devise bonds and other mechanisms to fund the carceral state all stand in the way of deep cuts to the correctional population. By deep I mean reducing today’s incarceration rate of 716 per 100,000 residents to 175 (or less) per 100,000 – the level on the eve of the prison boom that began in the mid-1970s. In most elite circles, calls to cut today’s incarceration rate in half to 350 per 100,000 – which would still leave the United States as the most punitive Western country by far – are considered radical and off the table.
Neoliberalism and the Carceral State
Opponents of the carceral state have been poorly positioned to challenge these vested interests. The development of the carceral state coincided with new patterns of racial and economic inequality that have important implications for the politics of crime and punishment. A defining feature of that new order is the onslaught of neoliberalism since the 1970s, which has widened the gap between the political and economic haves and the political and economic have-nots.
Neoliberalism has long rested on privatizing failure and denigrating the role of government to solve economic and social problems. Today, the neoliberal agenda rests on a powerful consensus among political elites of the two major political parties that the country’s budget deficits are the leading threat to its economic and political future. This unwarranted budget deficit hysteria has asphyxiated the political imagination not just with respect to mass incarceration but also to many other pressing social and economic problems. Leaders of both political parties have put a premium on pursuing short-term goals couched in budget deficit terms and emphasizing individualized and privatized solutions over government-led ones.
Discussions of justice reinvestment, recidivism and reentry exemplify how the language and techniques of cost-benefit analysis have come to dominate mainstream conceptions of penal reform. Evaluating penal reforms primarily by weighing them on the cost-benefit scales to determine whether they reduce crime while saving public money reinforces a linkage in the public mind between more punishment and less crime. This relationship is misleading. As a landmark National Research Council study concluded in 2014, the “average crime reduction effect of incarceration is small” and “the size of the effect diminishes with the scale of incarceration.”
Recasting the problem of mass incarceration in econometric or cost-benefit language does little to challenge the excessively punitive rhetoric that has left such a detrimental mark on penal policy over the last half-century. It also is no match for the considerable economic interests that are now deeply invested in the perpetuation of the carceral state. The fiscal imperative argument is providing a huge political opening for the expansion of the private prison industry and for a possible return to one of the most ignominious chapters in U.S. penal history – the unbridled exploitation of penal labor for profit, as I elaborate in Caught: The Prison State and the Lockdown of American Politics.
The 3-R approach to limited penal reform has been unfolding alongside a growing push to banish certain individuals, in some cases permanently, including immigrants and people convicted of violent or sexual offenses. Both approaches manifest what some sociologists call the “death of the social” with the rise of neoliberalism, globalization and the devolution of the government. Problems such as crime, poverty, mass unemployment and mass incarceration are no longer seen as having fundamental structural causes that can be ameliorated via policies and resources mobilized by the government. Rather, these problems are regarded as either the product of fate or individual action. Government officials and state agencies are considered part of the problem rather than part of the solution. As such, any quest to develop visionary state-led social and economic policies that seek to address the growing inequalities in the United States is considered politically impolitic.
Thus, instead of state action, reformers focus on devising micro interventions at the local and community levels to alter the behavior of individuals. The delegated engineers for these micro interventions are private-sector, non-profit or state-employed specialists in a very particular area, such as substance abuse, anger management or resume writing. In short, we live in an oxymoronic age of do-it-yourself social policies. Anyone deemed unable or unwilling to change must be banished – either to the prison or to the prison beyond the prison represented by probation, parole, immigrant detention, drug courts, electronic monitoring, house arrest and other community-based sanctions. Many of these people are also condemned to civil death thanks to felon disenfranchisement and others acts of civil death.
Framing the problem of mass imprisonment as largely a fiscal problem (i.e., we just cannot afford it anymore) will not sustain the political momentum needed over the long haul to slash the prison population and dismantle the carceral state. But the problems with the single-minded focus on the fiscal burden of mass imprisonment run deeper than that.
Leaner and Meaner
Most prison costs are fixed and are not easily cut. The only way to seriously reduce spending on corrections is to shut down penal facilities and lay off correctional staff. Faced with powerful interests that profit politically and economically from mass imprisonment, public officials have been making largely symbolic cuts that do not significantly reduce the incarcerated population or save much money. But they do render life in prison and life after prison leaner and meaner.
Many policy-makers and the wider public do not consider creating a safe, healthy, humane and smaller penal system to be a credible and desirable public policy goal in and of itself. This goal has to be linked somehow to enhancing public safety and saving public money.
In the wake of the Great Recession, many states slashed their corrections staffs and cut back spending on prison programs, correctional health care and even food services for prisoners. Homicides, assaults and other acts of violence appear to be on the rise in federal penitentiaries and in some state prisons as staff positions go unfilled due to budget cuts. Charging prisoners fees for meals, housing and visits to the doctor is becoming more common.
Budget cuts are also compromising the activities of the court system and legal services for the poor. Justice delayed is increasingly justice denied as judges and courthouses go on furloughs, judgeships remain vacant to save money, trials are postponed and legal services for the poor are slashed. As judicial budgets contract, judges have become exceptionally aggressive about collecting fines and fees. Poor people who cannot pay these off are being sent to jail, a practice of dubious constitutionality.
Sign from the rally at the Manhattan Institute, where Bill Bratton was to receive an award – day 3 of the week of outrage on 12/10/14. (hollowsidewalks on Flickr)
Race, Neoliberalism and the Carceral State
The enthusiasm for the 3 R’s is blithely detached from a deeper understanding of important shifts in the U.S. political economy since World War II that have disproportionately harmed African Americans and render the 3 R’s wholly inadequate to address the enormous and far-reaching harms of the carceral state. As I elaborate in Caught, these include the incomplete economic incorporation of African Americans, especially black men, after the Great Migration; the deindustrialization and hollowing out of wide swaths of urban America; the push to build up human capital rather than address the disappearance of good jobs; and the evisceration of the public sector, which had been an important avenue of upward mobility for African Americans.
Reform agendas based on the 3 R’s and framed around the purported economic burden of the carceral state generally do not acknowledge, let alone address, these deeper structural issues. Furthermore, they slight the compelling civil and human rights arguments raised against the carceral state. They are not up to the political task of challenging the fundamental legitimacy of the carceral state and the hyper-incarceration of African Americans and other disadvantaged groups in the United States.
This is a self-consciously colorblind strategy to criminal justice reform that keeps at arm’s length the racial and other injustices on which the carceral state rests. It is thus incapable of tapping into the growing political ferment and anger at the local level – especially in many African American urban neighborhoods – to address these injustices. Like many neoliberal “solutions,” the 3 R’s rest on deploying expertise “in such a way as to render the problem under consideration technical as opposed to political,” explains Lester Spence of Johns Hopkins University.
Racial factors are deeply implicated in why the carceral state has not faced more organized opposition until recently – especially from the people most directly harmed by it. But the Republican Party’s Southern strategy, the racialization of public opinion on crime and punishment, and the entrenched history of racial intransigence in the United States cannot on their own explain why the carceral state has been so tenacious.
Additional historical and institutional factors related to race have stood in the way of forging a broad social and political movement with the wherewithal to mount a serious challenge to the carceral state. They include the varied ways that black elites have responded to the growing public and political association between blackness and criminality since the late 19th century, and major shifts within leading identity-based civil rights organizations with the atrophy of more radical civil rights groups and the demise of the Black Power movement. Other factors include the political impact that escalating rates of violence and substance abuse have had on poor urban communities; important shifts in public opinion among African Americans on issues related to race, crime and punishment; and significant electoral and party developments at the local and state levels with the demise of Jim Crow that were influenced by the Republican Party’s Southern strategy, but not wholly determined by it.
Another key development is the emergence of new patterns of racial inequality in the wake of the civil rights movement. The predominant pattern of racial exclusion yielded to selective incorporation as educational and income gaps widened amongst blacks and as affluent blacks had new opportunities for greater residential mobility. This contributed to the fragmentation of black politics and to widening political disparities among African Americans.
The Politics of Respectability
Taken together, these factors help to explain why mainstream identity-based civil rights organizations have been slow to challenge the growing tentacles of the carceral state. They also help to explain why some leading “post-racial” black politicians and public figures have supported the punitive turn rhetorically and substantively at key moments in the debate over U.S. penal policies. Black communities have long engaged in a “politics of respectability, attempting to win acceptance into the mainstream white society by demonstrating their worth and adherence to dominant norms,” explains Cathy Cohen of the University of Chicago.
The anti-elitist rhetoric of the Black Power movement helped to mute the “politics of respectability” somewhat. But as neoliberalism restructured the U.S. economy, it “sharpened already existing class cleavages, further undermining the myth of a ‘monolithic’ black community, and by extension making even more difficult the task of building unified black political movements,” according to Michael Dawson of the University of Chicago. These developments have greatly enhanced the public policing power of African American elites and help to explain their relative silence until recently on the question of mass incarceration and the growth of the carceral state. They also help to explain why many of these elites have warmly endorsed technical, evidence-based fixes like the 3 R’s while distancing themselves from political fixes that call for wide-scale political mobilization and convulsive politics from below.
A penal reform agenda delineated primarily by evidence-based research about “what works” will inevitably be highly constrained and politically vulnerable. “What works” has a poor track record when it comes to engineering important shifts not just in penal policy, but all kinds of public policy. In fact, a major preoccupation of scholars of public policy is seeking to explain why good scientific evidence often loses out in the contest against bad public policy. Just look at the tragedy of climate change. The fixation on emphasizing technocratic, expert-driven solutions to the problem of the carceral state denies the fundamental role of politics, emotion and culture in meting out punishment and in defining good and bad penal policy.
All the focus on the 3 R’s and the Right on Crime coalition has overshadowed the growing political ferment at the grass-roots level against the carceral state. Many groups have formed to battle various aspects of the carceral state, including felon disenfranchisement, supermax prisons, abuse of transgender prisoners, exorbitant telephone rates for prisoners, shackling of pregnant women during labor, employment discrimination against former offenders, stop-and-frisk, and police brutality. Prisoners and ex-offenders, who face enormous obstacles to political action, lead some of these organizations, including JustLeadershipUSA, the Chicago-based Voice of the Ex-Offender (VOTE), and, of course, Prison Legal News and its parent organization, the Human Rights Defense Center.
The recent wave of police killings and deaths of people in custody – Michael Brown in Ferguson, Eric Garner on Staten Island, Walter Scott in North Charleston, Freddie Gray in Baltimore, Sandra Bland in Texas, Laquan McDonald in Chicago and the list goes on – has stoked that ferment. It remains an open question whether the political uprisings over these deaths will coalesce into a broader movement to challenge not only the carceral state but also other growing inequalities in the United States.
The Carceral State and American Politics
The U.S. carceral state may be exceptional in its size and tenacity. But many of the political, economic and social forces that sustain it and stand in the way of genuine penal reform are not. The tale of the carceral state is really a chapter in a longer story about the huge disconnect between the breathtaking problems that grip the United States and the unwillingness or inability of the political system to remedy them.
Many of the pathologies that run through the carceral state also run through American politics today. They include the unwarranted reverence for bipartisanship or nonpartisanship, the uncritical acceptance of neoliberalism in so many aspects of public policy, the stranglehold of powerful economic and financial interests over politics and policy-making, the growing political and economic disenfranchisement of wide swaths of the population, and the gross limitations of oppositional strategies based primarily on identity-based politics.
Framing the problem of mass incarceration in highly economistic language has political ramifications that extend far beyond penal policy. Hitching the movement against mass incarceration to the purported fiscal burden of the carceral state helps to reinforce the premise that eliminating government deficits and government debt should be the top national priority. Politicians and policy-makers across the board have treated shrinking government budgets as a political given rather than as political terrain to be contested.
We have been down this road before. In the early 1980s, David Stockman, President Ronald Reagan’s first budget director, admitted that the White House strategically wielded the budget deficit hysteria to slash and burn social programs, shrink the government’s role in social welfare and other services, and further the cause of privatization. Grover Norquist, a leading figure in Right on Crime, is the nation’s foremost anti-tax crusader today and is widely known for bluntly stating that he aims to shrink government “down to the size where we can drown it in the bathtub.”
Slashing spending on welfare, Medicaid, Social Security, public-sector jobs, public education, and health and social services incubates the crime that the carceral state was purportedly constructed to contain. States and countries that spend more on social welfare tend to have lower incarceration rates and lower crime rates. But for decades conservatives in the United States have brazenly dismissed the claim that social welfare spending reduces crime. In Europe, crime prevention policies have been closely linked to concerns about social exclusion and urban renewal in poor communities. The countries of the European Union have many more police per capita than the United States does, but they also have more expansive welfare states that seek to reduce crime by providing high-quality day care, good schools, universal health care, and other critical social and economic programs.
In the current political environment, it is difficult to imagine that calls for justice reinvestment that are couched in economistic and “nonpartisan” language will result in the reallocation of the tens of billions now spent annually on corrections to social and economic programs that reduce crime and improve the lives of people residing in high-crime communities. Thus, there is little reason to believe that today’s budget-driven reform movement will do much to eliminate the sources of crime or the politics that have encouraged mass incarceration and the aggressive expansion of the carceral state
Rhetoric and Reality in Criminal Justice Reform
Calls for criminal justice reform in the United States have intensified over the last decade. But it took the August 2014 death of Michael Brown, an unarmed eighteen-year-old African American killed by a police officer in Ferguson, Missouri, to galvanize public attention on the routine injustices of the carceral state. These injustices have been hiding in plain sight for many years, as I chronicle in Caught.
Since Brown’s death, claims have escalated that the United States has finally entered a new era of being smart on crime as historic adversaries across the political spectrum join forces to engineer a pullback in the wars on crime and drugs. But the latest figures on trends in incarceration and corrections are a painful reminder that the rhetoric of reform has far outpaced the reality of reform. The total number of people in U.S. jails and prisons has largely stabilized since the onset of the Great Recession, but no major contraction appears in sight. States project a 3 percent increase in their prison populations by 2018, according to a 2014 survey by the Pew Foundation. The U.S. incarceration rate is still the highest in the world and rivals the estimated rate for the Soviet Union at the height of the gulags in the 1950s. The Sentencing Project calculated that if declines in the prison population continue at a rate of about 1.8 percent a year – the biggest year-to-year drop registered since the boom began – it will take until 2101 – or nearly nine decades – for the prison population to return to its 1980 level.
Preliminary data suggest that the total U.S. jail and prison population for 2014 was just a hair below the 2008 total, the peak year in the decades-long surge in incarceration.1 California, which has been under enormous political and legal pressure to reduce its prison population thanks to the Supreme Court’s 2011 Brown v. Plata decision, accounts for much of the slowdown in the country’s incarcerated population. Incarceration rates have been declining or holding steady in about half of the states and increasing in the rest.
The war on drugs is far from over. Some states and counties have responded to the heroin epidemic by declaring a public health emergency. Others have doubled down on the war on drugs, increasing penalties for heroin-related offenses and finding creative ways to pursue homicide charges against drug dealers, users and friends who supplied heroin to people who subsequently died of an overdose.
The Non, Non, Nons
The plight of people serving long and lifelong sentences for violent offenses but who no longer pose major threats to public safety has been garnering more public attention lately. But the thrust of reform efforts in state capitals and Washington, D.C. remains largely unchanged. Dozens of states have enacted legislation to lighten penalties on non-serious, nonviolent, nonsexual offenders – the so-called non, non, nons – while pursuing measures to expand the use of life sentences and other harsh penalties.2
This prevalent quid pro quo helps explain the ongoing surge in people serving life sentences. In the four years following the Great Recession, the number of people sentenced to life in prison without the possibility of parole (LWOP) – dubbed “the other death penalty” – grew by 9,000. This increase was equivalent to almost a tripling of the country’s death row population.
Police, and especially prosecutors, appear to be using their considerable discretion to maintain their felony caseloads in the face of falling crime rates and a lull in the war on drugs. The number of arrests for serious violent and property crimes fell between 2000 and 2012, but the drop was less than what one would expect given the continued steep slide in crime and victimization rates, according to new research by Katherine Beckett of the University of Washington at Seattle and her collaborators.3 Furthermore, “prosecutors’ increased proclivity to file felony charges appears to have further offset the impact of falling crime and arrest rates.”4
Rising prison admissions for violent, property and public order offenses have offset drops in prison admissions for drug crimes.5 For all the talk about parole reform, huge numbers of people continue to be returned to prison for parole violations. If California is removed from the analysis, the rate of parole-related prison admissions actually increased by more than a third between 2000 and 2012.6 Sentence lengths have grown for all major offense categories other than drug possession. As for actual time served, the trend is toward more, not less, time served for most offenses.7
Stateville Correctional Center in Crest Hill, Illinois. (Jim Larrison on Flickr)
Obama and Criminal Justice Reform
The size, injustices and cruelties of the carceral state are certainly more visible today than a year ago. President Barack Obama’s stirring July 2014 speech on criminal justice reform to the NAACP and his visit two days later to a federal prison deserve some of the credit for this. Obama highlighted the enormity of the problem of the carceral state and how African Americans disproportionately shoulder its burdens. But he misleadingly claimed that most of the growth of the prison system has been as a result of the war on drugs. This allowed him to affirm a commitment to reducing the penalties for the non, non, nons while implying little mercy toward people convicted of violent offenses.
Obama shined a harsh spotlight on abhorrent penal conditions and chided the public’s matter-of-fact acceptance of prison rape as a rite of passage for people who serve time. He also lamented the widespread use of solitary confinement. “Do we really think it makes sense to lock so many people alone in tiny cells for 23 hours a day, sometimes for months or even years at a time? That is not going to make us safer,” he declared.
Concerns about solitary confinement have escalated in some other important quarters over the last year. Justices Anthony M. Kennedy and Stephen G. Breyer recently hinted that the U.S. Supreme Court might soon take up the question of the constitutionality of prolonged solitary confinement. In September 2015, the Association of State Correctional Administrators, the leading organization for top prison and jail administrators, conceded that prolonged solitary confinement is a “grave problem.” That same month, the California Department of Corrections and Rehabilitation agreed to a lawsuit settlement that has the potential to overhaul this common practice in California prisons.
But with Obama’s blessing, the federal Bureau of Prisons has continued to push forward with plans to transform a state prison in Illinois into the country’s second federal supermax prison. At the rehabbed facility, people will likely serve years, if not lifetimes, in extreme isolation, a practice that flies in the face of the U.N. rapporteur’s declaration that anything beyond 15 days in solitary constitutes torture. A recently-released audit of the use of prolonged isolation in the federal prison system ended up being an inside job that reached foregone conclusions. An agency of the Bureau of Prisons commissioned the audit, and a defense contractor with economic interests in the corrections industry conducted it. The final report recommended only minimal reforms while affirming the legitimacy and utility of prolonged isolation.
Sentencing Reform in Congress
With much bipartisan fanfare this fall, legislators from the U.S. Senate and House unveiled their long-awaited criminal justice reform bills for the federal sentencing system. Their proposals turned out to be a slight correction, not the promised overhaul. The Senate’s proposed Sentencing Reform and Corrections Act is even less ambitious than the modest Smarter Sentencing Act, which was introduced in 2013. It does not eliminate any mandatory minimums. It trims some mandatory minimums for a narrow range of drug-related offenses, but penalties for drug crimes remain draconian. The measure also calls for enhancing the penalties for certain violent offenses and sex crimes.
An estimated 6,500 people currently incarcerated in federal prisons for crack cocaine offenses (out of a total federal prison population of about 200,000 people today) would be permitted to petition for resentencing should the Sentencing Reform and Corrections Act become law.8 If all of them were successful in gaining release – a highly unlikely outcome – the federal prison population would fall by about 3 percent, or to about the level it was when President Obama took office in 2009. Notably, the Senate bill would largely abolish prolonged solitary confinement for juvenile offenders incarcerated in federal prisons. The number of individuals who would be affected by this change would be tiny. But the symbolic importance of the federal government rejecting prolonged solitary confinement for juveniles is enormous.
The elite-level reform coalition continues to have severe limits, which were on display at the March 2015 Bipartisan Summit on Criminal Justice Reform in Washington, D.C. There was an awkward moment when a journalist suggested parallels between criminal justice reform and the failed bipartisan effort for comprehensive immigration reform. Republican Newt Gingrich, former speaker of the U.S. House and a leader in the Right on Crime group, fired back: “This is fundamentally different than immigration reform. There’s a much, much bigger consensus – more like welfare reform.” His remarks were a “bracing reminder that cooperation across the aisle is only as good as the policies it produces.”9
The limits of the elite bipartisan push for criminal justice reform were on display again in late fall. The catalyst was a measure inserted into the reform package moving through Congress that would make it much harder to successfully prosecute corporate polluters, producers of dangerous products and other white-collar offenders. The conservative Koch brothers, owners of the conglomerate Koch Industries and key supporters of Right on Crime, strongly backed the provision, over the fierce objections of the Justice Department and some environmental and other public-interest groups. The measure drove a wedge between liberal interest groups as some sided with the Koch brothers and distanced themselves from traditional allies.
Law-and-Order Politics
The current presidential campaign is another reminder of the limits of any reform project that does not confront the pernicious rhetoric that has been a central pillar of the carceral state. Donald Trump and many of the other Republican aspirants for the White House do not appear to have received the memo that the time has come to reverse the country’s prison boom. On the campaign trail, it’s been back to the law-and-order 1960s and 1970s. While Trump has been making Nixonian appeals to the “silent majority,” Senator Ted Cruz (R-TX) has been claiming that most violent offenders are Democrats. New Jersey Governor Chris Christie, FBI Director James Comey and others have insinuated that Black Lives Matter and other groups protesting abusive law enforcement practices are responsible for a reputed rise in violent crime and attacks on the police.
Trump’s exhortations for Mexico to stop exporting its drug dealers and rapists to the United States have provided new fuel to propel the country’s “crimmigration” policies. Trump has been the loudest voice but certainly not a singular voice in equating more immigrants with more crime. Leading politicians have sought to transform a disturbed undocumented immigrant accused of the July shooting death of a young woman on a San Francisco pier into the Willie Horton of the 2016 campaign. Senator Rand Paul (R-KY), who once embraced the language of the new Jim Crow to excoriate the war on drugs, has emerged as an enthusiastic general in this new war on immigrants.10
Just as Congress was seriously considering bills this fall to reduce mandatory minimums for some drug offenses, a bill targeting so-called sanctuary cities for immigrants was making its way through the legislative process. The measure included draconian enhancements of the mandatory minimums and other penalties for immigration offenses. The xenophobic fear-mongering of many Republican candidates has lowered the bar for what counts as reasonable in the debate over immigration reform. It has deflected attention from how top Democrats continue to embrace a highly punitive path to comprehensive immigration reform based on “securing the border” and vastly expanding the carceral state.
A Comprehensive Penal Reform Agenda
Persistently missing from much of the current debate over mass incarceration and penal reform is an inspiring, long-term vision against which the necessary short-term goals and strategic compromises can be measured. For those seeking to dismantle the carceral state, the key challenge is not figuring out which specific sentencing and other reforms are necessary to slash the number of people in jail and prison. The real task is to create a political environment that is more receptive to such reforms and to make the far-reaching consequences of the carceral state into a leading political and public policy issue.
The political logjam in Washington and many state capitals is a convenient foil to excuse why so little progress has been made in slashing the country’s incarceration rate and ameliorating the collateral consequences of the carceral state. It justifies the pursuit of small-bore solutions such as the 3 R’s, which are premised on splitting the difference without making any major difference in addressing the country’s enormous and growing political, social and economic inequalities, of which the carceral state is the starkest example.
The specific changes needed in penal policy to slash the country’s incarceration rate and raze the carceral state are no mystery. While reentry is important, we cannot focus only on those who are being released. We need to radically reduce the number of people who are sent to jail or prison in the first place, and decrease sentence lengths and time served. We need comprehensive sentencing and other penal reforms guided by two main principles. First, prison should be reserved primarily for people who continue to pose grave threats to public safety. Second, people caught up in the justice system should not be treated as second-class citizens. Their human dignity should not be trampled on – not during apprehension, processing, punishment or after they have served their sentences.
We need to repeal mandatory minimums, truth-in-sentencing and habitual offender laws, including three-strikes statutes, and to rein in sex offender registration, notification and civil commitment laws. We also need to reinvigorate the parole process and insulate it from politics to ensure that every incarcerated person receives a meaningful parole review, including everyone serving a life sentence.
Successful decarceration would entail much more than just reducing the number of people in jail and prison. Those reentering society after prison need significant educational, vocational, housing, medical and economic support to ensure that the communities they are returning to are not further destabilized by waves of formerly incarcerated people. If we were serious about alternatives to incarceration, then community-based mental health and substance abuse programs would require major infusions of cash so that the penal system is no longer the primary line of defense to address these major public health problems.
The most important first step toward that goal is for governors and legislators to support state expansion of Medicaid under the provisions of the Affordable Care Act. States with some of the highest incarceration rates in the country and that have been at the epicenter of the Right on Crime movement have been some of the most vociferous opponents of Medicaid expansion. As of early December 2015, 30 states and the District of Columbia had adopted the Medicaid expansion. Twenty had not, including eight of the ten states with the nation’s highest incarceration rates. Texas, which sits at the epicenter of the Right on Crime coalition and has been undeservedly hailed as a visionary in penal reform, has not adopted Medicaid expansion. The Lone Star State has the fifth highest incarceration rate in the country.
The country’s high incarceration rate is just one facet of the problem of the carceral state. Another is that too many people are serving time in U.S. jails, prisons and detention centers that are abusive and degrading. According to Craig Haney, a leading expert on penal conditions, the massive increase in the number of prisoners since the 1970s has overwhelmed the capacity of many correctional authorities “to safely and humanely house and administer them.” U.S. penal facilities need to be opened up to independent oversight to ensure that all prisoners and detainees are housed in safe, healthy environments that are respectful of human dignity.
And the widespread practice of condemning people with criminal records to civil death would have to cease, so that reentry is truly possible. People returning from prison should be permitted to vote, to serve on juries and to access public benefits, such as student loans, food stamps and public housing. Employment and licensing restrictions levied on people with criminal records should be narrowly tailored and reserved for very specific instances of compelling public safety concerns.
Yes You Can
Some of these reforms would require new legislation. But punitive laws alone did not build the carceral state. The carceral state was born when police officers, parole and probation agents, judges, corrections officials, attorneys general, local district attorneys and federal prosecutors began to exercise their discretion in a more punitive direction as they read the new cues coming from law-and-order politicians. That discretion could now be redirected toward more constructive, less punitive policies and practices.
President Obama and state governors have enormous, largely unexercised, freedom to grant executive clemency. Federal judges have considerable leeway to depart from the federal sentencing guidelines, as the Supreme Court confirmed in United States v. Booker (2005) and reconfirmed in Gall v. United States (2007). The Department of Justice could put an end to overcrowding in federal penitentiaries by calling a halt to the federal war on drugs. The federal Bureau of Prisons could “eliminate thousands of years of unnecessary incarceration through full implementation of existing ameliorative statutes,” according to a report by the American Bar Association. For example, the BOP and state departments of corrections could release more infirm and elderly prisoners early through a process known as compassionate release.
Asked to do more to rein in the carceral state, many policy-makers, legislators and government officials throw up their hands and point to the dysfunctional and highly polarized politics that grip Washington and many state capitals. They continue to ignore the enormous discretion at their disposal to rein in the carceral state through non-legislative means.
There are some notable exceptions. In July 2015, Larry Hogan, the Republican governor of Maryland, announced the immediate shutdown of the notorious Baltimore City Jail, condemning it as the worst prison in America. In 2014, the U.S. Sentencing Commission decided to reduce the penalties for certain nonviolent crimes and make them retroactive. This move brought about the early release of some 6,000 people from federal prisons in late 2015. Tens of thousands of additional federal prisoners are expected to be released early in coming years thanks to this decision by the Sentencing Commission.
Michael Ta’Bon recreates the prison cell in Philadelphia, PA (Bread For The World on Flickr)
Prosecutors, the Real Lawmakers
Prosecutors are perhaps the most important linchpins in penal reform. The late William Stuntz of Harvard Law School described them as the “real lawmakers” of the criminal justice system because of their vast leeway in charging and sentencing decisions. Attorneys general and district attorneys also set the tone and culture of their offices and determine how prosecutors working under them exercise their discretion.
To slash the incarceration rate, prosecutors will have to be cajoled or pressured into locking up fewer people and reducing sentence lengths. In some cases, binding legislation may be necessary to force them to relinquish some of their discretionary powers and to make their activities and decisions more accountable and transparent to the public. But all paths to real penal reform do not have to run through the U.S. Congress and state legislatures. Maverick district attorneys can engineer broader shifts in penal policy. For example, the upset victory of David Soales in Albany’s 2004 race for district attorney provided vital momentum to the decade-old “Drop the Rock” campaign to repeal New York State’s draconian Rockefeller drug laws. Expectations are high that James A. Stewart, who was elected the first African American district attorney of Caddo Parish, Louisiana in November 2015, thanks to unprecedented financial support from financier George Soros, will set a new course in one of the most punitive jurisdictions in the country’s most punitive state.
U.S. prosecutors are arguably the most powerful officials in the U.S. criminal justice system and the least understood and least transparent. Most of their decisions are completely discretionary and largely unreviewable. As states and the federal government revamped their sentencing structures in the 1980s and 1990s to curtail judicial discretion, even more discretionary and other powers flowed to prosecutors. With the proliferation of mandatory minimum sentences and other get-tough policies, and the contraction of legal resources for public defenders, the already-enormous charging and plea-bargaining powers of U.S. prosecutors expanded even further. Several landmark court cases further enhanced their powers.
Prosecutors not only got tougher but also created powerful organizations to represent their interests and coordinate their political activities. They also forged close alliances with other law enforcement groups and helped create a conservative victims’ rights movement premised on a zero-sum vision of justice that pitted victims against offenders. Recently, prosecutors have been some of the fiercest opponents of sentencing and other penal reforms.
By changing their behavior, prosecutors could have a profound impact on lowering incarceration rates and reducing racial disparities in sentencing without any statutory changes. For example, district attorneys could end the widespread practice of overcharging. They could shift the standard for charging from probable cause to likelihood of conviction, which would result in fewer prosecutions. They could decide that their offices will no longer prosecute certain low-level offenders, as Brooklyn District Attorney Kenneth P. Thompson did with petty marijuana possession cases and Milwaukee District Attorney John Chisholm did with first-time offenders caught with drug paraphernalia.
Chisholm is one of a handful of prosecutors who have become ardent and outspoken critics – or at least skeptics – of the claim that mass incarceration enhances public safety. At a September 2015 conference on decarceration, he implored, “We have to get away from the concept that all the problems that exist in the community can somehow be funneled into the criminal justice system and that system will solve all the problems.” He went on to say, “We’re not going to solve the problems by sending more cops and charging more cases.”
What incentives do prosecutors have to behave less punitively now? As prisons and jails eat up a larger slice of government budgets, prosecutors face the prospect of shrinking revenues to run their offices. But, more importantly, politics is all about forcing incentives to change. So far prosecutors have faced little political pressure to change. District attorneys and their professional associations remain some of the fiercest foes of even modest measures to trim the carceral state. Their law-and-order intransigence is spurring pockets of local resistance, transforming some recent district attorney elections into hot political races.
Getting deeply involved in electoral contests for local district attorneys and otherwise putting political pressure on them should be a top priority of penal reformers committed to dismantling the carceral state. These local electoral contests are arguably as important – or even more important – than mobilizing for the presidential elections.
But the focus cannot be solely on electoral politics. Reform groups need to exert ongoing pressure on district attorneys to make their actions more transparent and publicly accountable. A reform coalition launched Seth Williams, Philadelphia’s first African American district attorney, into office to succeed longtime district attorney Lynne Abraham, a self-proclaimed “tough cookie.” But since taking office in 2010, Williams has faced remarkably little political pushback as he has tacked in a law-and-order direction.
In short, comprehensive sentencing reform will not be enough on its own to reverse the prison boom and raze the carceral state. Major reductions in the incarceration rate will not occur unless law enforcement officials buy in and coordinate their behavior to achieve that end. Without their support and coordination, attempts to reduce the prisoner population will remain a complex and often futile game of whack-a-mole. Single-minded attention on fixing one piece of the criminal justice apparatus leaves the highly adaptive carceral state otherwise intact.
Penal Reform and the Root Causes of Crime
The carceral state is an abomination that has disproportionately harmed African Americans but has also harmed many other disadvantaged groups in the United States. The immediate goal must be to abolish it. That means, among other things, reducing the U.S. incarceration rate to levels comparable to those of other Western countries and to the U.S. rate before the great confinement took off in the 1970s.
With comprehensive changes in penal policy and the culture of law enforcement, dramatic cuts in the incarceration rate and the carceral state are possible over the next few years. But high levels of violent and serious crime in poor communities – especially those that are predominantly African American – will continue to be a major social problem. In plotting an escape from the carceral state, we need to resist the belief that the only real option is to tackle the “root causes” of these high levels of crime – massive unemployment and underemployment, massive poverty, and unconscionable levels of social, political and economic inequality.
The carceral state is a product of policies that can be undone in several years even if the structural determinants of crime remain. To grasp this, one need only appreciate, as experts on crime and punishment generally do, that changes in public policies, not criminal behavior, propelled the decades-long prison boom in the United States. In short, it was about the time, not the crime.
The emphasis on structural problems overshadows the fact that numerous people are serving time today for nonviolent offenses, such as property or petty drug offenses, that would not warrant a sentence in many countries. Many others are serving savagely long sentences for violent offenses even though they no longer pose serious threats to public safety.
If we designate structural problems the centerpiece of any plan to dismantle the carceral state, we are essentially accepting that the carceral state is here to stay for a very long time to come. After all, structural problems call for comprehensive, often expensive, long-term solutions and commitments. Long-term fixes take a long time to implement and are difficult to sustain when the White House, the governor’s mansion or the legislature changes hands.
Furthermore, focusing on structural problems conflates two problems that are actually quite distinct: the carceral state and crime. Major decarcerations in other places and at other times, including Finland in the 1960s and ‘70s, West Germany in the 1980s and California under Governor Ronald Reagan, were the result of comprehensive changes in penal policy rather than sustained attacks on structural problems and the root causes of crime.
While the record drop in crime rates since the 1990s is a major achievement, crime is increasingly distributed in unequal ways, and unacceptably high rates of violent crime persist in certain urban neighborhoods. Ignoring these disquieting facts is like heralding the record highs of the U.S. stock market or gains in U.S. per capita income without considering trends in income distribution or poverty rates.
Since the early 1990s, the homicide victimization rate for African Americans has fallen by more than half, but it remains extraordinarily high. The homicide rate in Chicago’s affluent Hyde Park, home to President Obama, is 3 per 100,000. But the rate in neighboring Washington Park, which is overwhelmingly poor and 98 percent African American, is 78 per 100,000. The homicide victimization rate for blacks is about six times the rate for whites. And despite the crime drop, over 78,000 black males were homicide victims between 2000 and 2010, exceeding the total number of U.S. military casualties during the Vietnam War by about 25 percent. Violent crime is highly stratified by race and class. But it is extremely hard – perhaps impossible – to disentangle the race effects from the class effects in violence because there are virtually no white neighborhoods as poor as the poorest black neighborhoods.
The findings of decades of research on what explains variations in violent crime, especially homicide rates, are remarkably robust. Certain structural factors consistently predict higher rates of homicide: larger and denser populations, geographic location in the South, a higher proportion of divorced males, and higher rates of poverty and income inequality. Two other key structural factors that are related to income inequality – residential segregation and pervasive economic discrimination against certain groups – are likely consequential as well. Over time, the relative weight of these factors has shifted, with structural economic factors related to poverty and income inequality now accounting for a greater proportion of the variance. Differences in policing resources and policing strategies also likely explain variations in rates of violent crime, though experts do not agree on just how much to credit the police for sustained drops in rates of homicide and violent crime.
The Third Reconstruction
If the United States is serious about engineering deep and sustained reductions in urban violence, then addressing the country’s high levels of inequality and concentrated poverty must become a top priority, not a public policy afterthought. In inflation-adjusted dollars, the United States has spent about the equivalent of the Marshall Plan (the program that helped rebuild Western Europe after World War II) on the failed project to transform Afghanistan after 9/11. The time is long overdue to launch a Marshall Plan for the poorest communities in the United States.
Penal and social policies have long been two sides of the same coin in governing social marginality. But the former has become the policy of first resort to address the massive economic and social dislocations of the last half-century and the related crime problem. Policing enthusiasts contend that policing strategies based on the proven