Rethinking Incarceration

Rethinking Incarceration

What needs to be done to be done to end our half-century long incarceration nightmare?

January 3, 2019

At year-end, President Trump signed the “First Step” bill for reform of the federal prison system. The bipartisan bill, which passed both the House of Representatives and the Senate by overwhelming votes, pairs changes in sentencing laws with investments in in-prison education and training programs and expansion of early release credits.  

The bill is well named. Though welcome, it is a very, very modest “first step.” The New York Times estimated that it will immediately reduce the number of people in Federal prisons by only about 7000 inmates, and it will have no impact on hundreds of thousands of inmates of state and local prisons and jails. 

The overwhelming bipartisan approval of the bill reflects the emergence over the last few years of an unlikely coalition for reform, uniting conservatives and liberals, from Charles Koch to George Soros and from the Fraternal Order of Police to the American Civil Liberties Union. Driven by widespread public support for reducing the prison population and by the financial burden of maintaining such a large prison system, reforms have been implemented in many states over the last few years. 

The immediate causes of our incarceration epidemic are generally understood. The First Step proposal and other similar state level reforms generally reflect this understanding. They focus on the operations of the criminal justice system itself, on the impact of the war on drugs, and on racial inequities throughout the criminal justice system. 

State-level reforms have included reduced mandatory sentences, more sentencing flexibility for judges, increasing drug and mental illness treatment alternatives to prison, reducing the post-release impact of imprisonment by banning employers from asking about prison histories, providing body cams for police, supporting community policing, and improving police training.

The First Step Act makes retroactive earlier reductions in the disparity between federal sentences for crack cocaine and powder cocaine, eases the “three strikes” rule so that people with three or more convictions automatically get 25 years instead of life, makes it easier for judges to avoid handing down mandatory minimum sentences, increases opportunities for inmates to earn “good time credits” to reduce their prison time, and improves conditions in prisons, including banning the shackling of women during childbirth and requiring that inmates be placed in prisons closer to their families. 

AP Photo/Sean Rayford, File

As joblessness began to creep up in the 1970s, prisons provided another solution to unemployment and underemployment. Here, a guard tower stands above the Lee Correctional Institution, a maximum security prison in Bishopville, South Carolina. 

These are all worthy changes, but their impact will be limited. Although The New York Times called the First Steps measure “the most substantial rewrite of the nation’s sentencing and prison laws in a generation,” even a far more rigorous and sustained effort along these lines would only reduce the prison population by about 25 percent over the next decade. That would leave us with an incarceration rate at mid-‘90s levels,still more than double that of any of the countries that are remotely like the U.S. in level of economic development.

To make the U.S. more like a “normal” country with respect to incarceration requires that we understand the sources of mass incarceration at a deeper level. For starters, the increase in prison population was not due to high rates of crime. The U.S. crime rate is not unusually high compared to that in Western Europe, but our incarceration rate is three or four times higher. Today, though the crime rate is lower than at any time since the mid-‘60s, we lock up seven times as many people as then.

The best-known effort to understand the prison crisis at a deeper level is Michelle Alexander’s argument that incarceration is the “new Jim Crow.” Alexander argued that mass incarceration is a racially motivated system for locking the black population into an inferior economic and political status. Alexander’s thesis has become close to gospelamong black activists and the left, but on closer examination, it is incomplete. 

Alexander was certainly right to start with the role of racism, overt and institutional, in the incarceration crisis: Discriminatory practices at every level of the criminal justice system have contributed to black Americans being incarcerated in state prisons at a rate more than five times that of whites. As Alexander also observed, the impact of mass incarceration on the black community goes far beyond the sum of its impact on individuals. High rates of incarceration of black have disrupted families, increased poverty in black communities, and redrawn the pathway through young adulthood.  

But Alexander’s racialized take on the history of incarceration illuminates only part of the larger story: The soaring prison population was driven by forces far beyond the need to control blacks per se, and even the racial disproportion in incarceration rates was driven by class as much as by race. 

In insisting on the role of class, I am not taking sides in the “class politics vs. identity politics” debate roiling the Democratic Party. Race is not reducible to class, and no politics that calls itself progressive can subordinate the needs of blacks to those of poor and working class whites. But it is impossible to separate race and class in America. An enormously disproportionate part of the poorer sectors of the working class is black, and an enormously disproportionate portion of the black population is poor and working class. 

This disproportionality, of course, represents the ultimate in structural racism, but as an explanation of the unequal burden of mass incarceration on blacks, it is at a distant remove from Alexander’s insistence that mass incarceration is an intentional effort to control black Americans and drive a wedge between blacks and whites. Alexander is right in stressing that incarceration is a form of social control of blacks, but it is equally a reflection of class-based repression.  

First, it is not black Americans in general but poor, uneducated and undereducated black Americans who have been targeted by the criminal justice system. Almostall of the increase in the risk of imprisonment falls on those with just a high school education.Incredibly, a black male dropout born between 1965 and 1969, had nearly a 60 percent chance of serving time in prison by the end of the 1990s, up from 17 percent only twenty years earlier. But despite media attention to arrests of high profile black men such as Harvard Professor Henry Louis Gates (who was held for allegedly breaking into his own home) the likelihood of a black man aged 30 to 34 with at least some college serving time in prison actually decreased between the late seventies and the late nineties.

Second, Alexander argues that the rise in incarceration was driven by the heavily racially motivated drug war. However, drug offenders make up only a bit over one-sixth of the prison population.

Third, the War on Drugs and later demands to “get tough on crime” reflected class divisions within the black community as well as white anxieties. As James Forman, Jr. and other have pointed out, a wide range of middle class black leaders joined in the demand for getting tough on drug crimes and gun possession in the early 1970s, pushed for stricter sentencing in the early 1980s, and many supported Clinton’s further toughening up in the 1990s.

Fourth, from the early ‘70s on, blacks were indeed increasingly disproportionately represented in prisons, but they were also flooding in to the military and graduating high school and attending college at an increasing rate. If the increasing proportion of the prison population that was black counts as evidence of racism, what are we to make of the increasing proportion of the military and school population that was black?

Finally, although the figures vary enormously from state to state, nationwide blacks make up only 38 percent of those with prison records. While this is far greater than the percentage of blacks in the overall American population, nothing in Alexander’s model explains why we have more than 900,000 white men locked up, almost exactly the same as the number of black men, or why more than two and one half times as many white women as black are currently in prison, or why the rate of incarceration among black men has actually declined more than 20 percent since 2000 while the rate for white men has grown slightly. Somewhat bizarrely, Alexander is reduced to explain the incarceration of whites as “collateral damage.”

Poor, uneducated, and undereducated whites as well as blacks have been the victims of America’s rush to incarceration. A white man whose income places him in the lowest fifth of the income distribution has a 43 percent probability of having been arrested. That is certainly less than for black men, but in absolute terms is still shockingly high.

Most of the disproportion in incarceration rates between blacks and whites reflects the differences in the proportion of blacks and whites in upper, middle, and lower classes. Using income as a measure of social class, if we imagine that the class composition of the black population were the same as that of the white population, almost two-thirds of the difference in the percent jailed for more than one month and 85 percent of the difference in the percent jailed after arrest would disappear. Using educational level as a surrogate for class gives similar results

For many white communities, the cumulative impact of the rise in incarceration in absolute terms, if not as devastating as it is for black communities, is still great. Poor white communities in the United States are in trouble, racked by rising rates of suicide, opioid addiction, alcoholism, firearm deaths, divorce, and teen pregnancy, and by declines in health, mental health, and overall mortality rates, especially among those with lower education. The rapidly rising rate of incarceration of young white men is but one more part of the calamity facing these communities. (The rise of Trump support in precisely the same communities at precisely the same time is hardly a coincidence).

Although the incarceration crisis is a racial issue, it is also a class issue—within black America as well as within America as a whole. Mass incarceration is primarily about the systematic management of the lower classes, regardless of race. 

 

SO WHY DID incarceration grow at such an astounding rate? The drive to “get tough on crime” from the early '70s on has had three main sources: the need to restore social control in the face of the disruptive social movements (black and white) of the ‘60s and early ‘70s; the need to “warehouse” the growing numbers of poor people, black and white, who were no longer economically useful; and political opportunism. 

Step back a moment: Why do people, for the most part at least, follow the explicit and implicit “rules” of society? What makes social arrangements more or less stable? Sociologists describe this as the problem of “social control.” 

Black and white Americans have long experienced diverging patterns of social control. For blacks, coercive, often violent modes of control have dominated, at least until the ‘60s; for whites, a mix of coercive and non-coercive modes have prevailed. 

In the South, where the vast majority of black Americans lived until after World War II, the legal restrictions and extra-legal violence of the Jim Crow system prevailed into the 1960s. In the North, blacks experienced restrictive housing policies, job discrimination, unequal treatment at the hands of the law, and, sometimes, mob violence. As early as the 1940s, blacks were imprisoned at a rate three times as high as whites, nationwide, and in many states more than one in 20 black men were in prison as early as the 1940s.  

White Americans were also sometimes subject to coercive measures, but from the inception of the New Deal through the late '60s, it was a modicum of economic security and the prospect of upward social mobility that ensured their allegiance. Rising productivity ensured that companies could offer job security, higher wages, and pensions while still earning healthy profits. Federal subsidies enabled home ownership and asset building. Unemployment insurance, Social Security, and company-provided health benefits offered protection against the worst economic risks. Unions representing close to one-third of private-sector workers,were incorporated into the Democratic Party power structure. Black Americans were largely, though not entirely, excluded from these social benefits.

In the mid and late 1960s, the old mechanisms of social control stopped working for both black and white. First, a wave of social unrest broke out. The civil rights movement in the South blew apart the old Jim Crow system. Then came the “riots” and a huge wave of black community organizing and black political activity in the north. 

There was a growing level of white unrest, as well, and not only among students. Many poor white as well as poor black communities mobilized around issues such as school quality and school lunches, unemployment, Vietnam veterans’ rights, and emergency room care. The War on Poverty both subsidized and promoted community organizing. Then, in 1970-71, the largest strike wave in the U.S. since 1946 broke out. One in every 20 American workers went on strike in each of those years. 

National Archives & Records Administration

Nixon ridiculed the idea that social disorder had causes in social conditions. Social order would be reinstated, he insisted, not by quadrupling funds for any governmental war on poverty but convicting more criminals.

By the late ‘60s, the “New Left” had emerged, centered among students and young professionals andengaging in increasingly militant and increasingly radical anti-war and “anti-imperialist” activity. The counter-culture and then the women’s liberation movement and the gay movement and the environmentalist movement emerged. Even the military was not immune to discontent. White and black GI’s and vets played a major role in the growing anti-war storm. 

These movements demanded radical changes in American society and culture. The New Left and Civil Rights movement demanded the replacement of authoritarianism and hierarchy by “blessed community” and “participatory democracy.” The Women’s Liberation Movement demanded not only equal pay and abortion rights, but the reconceptualization of the family and a fundamental revolution in human relationships. The Gay Liberation Movement demanded not only toleration but a transformation of conventional sexual behavior and assumptions about gender. The environmental movement challenged both corporate hegemony and the very idea of “man’s” control over nature. Despite their nowadays often being seen as the sources of increasingly parochial “identity politics,” the varied movements of the '60s and early '70s often worked together and shared a vision of a better society that would be brought about through the common efforts of a range of groups and movements.

Many working and middle class whites responded to the disorder in the streets, the rapid changes in sexual behaviors, gender roles, and other cultural expectations, and the upheavals of the old racial ordering of society with anxiety and fear. Elites in business and government also responded with more than a little sense of panic. 

In the early and mid-‘60s, Presidents Kennedy and Johnson saw extending the non-coercive modes of social control that had worked so well for so many years with the white working class, as the way to damp down the unrest. So we got the Civil Rights Act, the Voting Rights Act, a vast expansion of the welfare rolls, the War on Poverty, Medicare and Medicaid, the Housing Rights Acts, the Elementary and Secondary Education Act, and a host of other reforms. 

But no sooner were these reforms enacted than they were threatened. First came the recessions of 1969-1970 and 1973-1975 and the “stagflation” of the later '70s. Wages stagnated and inequality grew. The minimum wage and welfare benefits were eroded by inflation and Great Society social programs were cut back. 

Conservatives had never fully embraced the non-coercive approach to regaining social control. The pivotal figure was Richard Nixon. Nixon ridiculed the idea that social disorder had causes in social conditions. Social order would be reinstated, he insisted, not by quadrupling funds for any governmental war on poverty but convicting more criminals.

Whatever his hopes or intentions, with the militant movements of both people of color and whites continuing to grow and a Democratic-controlled Congress Nixon had little option but to continue to expand the welfare state and civil rights protections. He supported the earned income tax credit, indexing Social Security benefits, and proposals for national health insurance and for a minimum guaranteed income.

But at the same time, Nixon saw the white backlash against the gains of black Americans and “middle American” anxiety about social, cultural, and racial unrest as a political opportunity. Hisracially-oriented “Southern Strategy” and his efforts to whip up fears of crime and drugs were, first and foremost, strategies to gain electoral power. Explicit concerns about drug abuse and crime, often seen as sources of the “law and order” drive that was to come, initially played a very minor role. In 1971, just before President Nixon announced the “War on Drugs,” fewer than 4 percent of Americans saw drugs as the most important problem facing America, and concerns about crime were almost as low. 

Nixonalso threw direct repression into the mix. The FBI’s COINTELPRO program and similar programs at the state and local level targeted a wide range of groups and individuals that the FBI deemed subversive, including anti-Vietnam War organizations, civil rights and black nationalist movements, black power and militant Latino groups, and the New Left. The private sector, too, embraced a more repressive strategy. Big industry's earlier relative toleration of unions collapsed, and companies and conservatives in government went on an anti-union rampage. 

Nixon’s war on drugs and the crackdown on crime were not simply aimed at black unrest. They were neither separate from nor distinct from the broader program to restore order. As Nixon’s counsel and Assistant to the President for Domestic Affairs John Erlichman put it:

The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. … By getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did. 

The new get-tough-on-crime mood spread to the state level, as well. New York’s Governor Nelson Rockefeller, had previously seen drugs as a social problem, backing expanded drug rehabilitation, job training, and housing. But in late 1972 he did an about-face. "For drug pushing, life sentence, no parole, no probation," he told an aide. New York’s new, harsh “Rockefeller Drug Laws” quickly spread throughout the country. 

The overall impact of the Nixon-era shift to repressive modes of social control was substantial. Though only a small number of social and political activists, black or white, were incarcerated, a lot of people went to jail for smoking marijuana. By the early '70s, meetings of activists to plan militant actions were accompanied by paranoia and suspicion. The various movements of the era died down for a variety of reasons, but among them was the chilling impact of the shift to repressive social control. 

The era of mass incarceration had begun. Nixon’s own ability to implement his plans was soon fatally weakened by Watergate. Gerald Ford, his successor, was an unelected president with a Democrat-controlled Congress, and his successor, the centrist Jimmy Carter, lacked any clear policy vision and goals. Nevertheless, after years of remaining stable, in the Nixon-Ford-Carter years the prison population grew by 55 percent.

By the mid-1980s, it looked as if social control had been re-established. Reagan not only won by a landslide, but the Republicans controlled the Senate. Reagan’s election signaled the end of unions as a powerful force; the full defeat of left-wing and black insurgencies; the taming of radical versions of feminism; the rise of the “culture wars” (aimed especially at women and the gay movement); a determined effort to further roll back the welfare state (government was “the problem, not the solution”); and a stepping up of the War on Drugs, now aimed predominately at the black community. Then came the crack epidemic, which turned even many middle- and working-class blacks into proponents of get-tough policies targeting drugs and violence. 

Pat Sutphin/The Times-News via AP

Inmates walk the yard during recreation time at the Twin Falls County Jail in Twin Falls, Idaho.

By the '80s, a new problem was becoming clearly visible, as well. The unemployment rate had been slowly creeping up, even before the “stagflation” of the 1970s, and the male labor force participation rate (the percentage of men who were either employed or actively seeking work) had been steadily dropping. There seemed to be a growing number of people for whom there was no place in the economy. How could people who could no longer even hope for a job be contained? 

Faced with declining job opportunities, many people, when laid off, simply left the work force entirely. Over the 1970s and 1980s, the average retirement age dropped by three years. Others remained in school longer or returned to school. The number of Americans over the age of 16 who were enrolled in school grew from eight million in 1970 to almost 14 million by 1990. Although the increase in the number of years spent in school partly reflected the need for more education or skills for the job market, the increase in number of school years for the average American far outpaced the growth of jobs requiring more education.  

Prisons provided another solution to unemployment and underemployment. Not only could prisons warehouse the “useless” part of the population, but, since unemployment figures do not include those incarcerated, they disguised the depth of the nation’s economic problems.

The use of prisons to sop up the unemployable part of the population was not a self-conscious policy, deliberately instituted with that goal in mind. Rather, it was an inevitable result of the shift from non-coercive to coercive forms of social control. Unemployed and underemployed people are concentrated in poorer neighborhoods, where crime rates are higher. More intense law enforcement policies, the absence of alternatives to incarceration (e.g., drug treatment), and stricter sentencing guidelines were automatically centered on the economically surplus population. 

Regardless of the specific reasons, the rise in the prison population accelerated, up 76 percent under Reagan and up another 40 percent in George H.W. Bush’s four years. When the Democrats finally returned to power in 1992, they had neither the means nor the inclination to reverse these policies. Bill Clinton was a weak president, elected with only 43 percent of the vote (independent Ross Perot and Republican George H.W. Bush combined for 57 percent). Unlike previous Democratic Presidents, Clinton lacked a powerful union base and operated in a political environment shaped by the post-Civil Rights Acts realignment of American party politics. After 1994, the Republicans controlled both houses of Congress. And ideologically, Clinton was a centrist, more concerned about the concerns and values of white, middle-class Americans than with the needs of the poor. 

Clinton unsuccessfully pushed for a few social welfare programs (most notably, health-care reform), but he had or felt he had little choice but to reinforce the repressive approach to social control. The Personal Responsibility and Work Opportunities Act threw millions off “welfare as we have come to know it.” The Defense of Marriage Act undercut the gay movement. And the Violent Crime Control and Enforcement Act provided for 100,000 new police officers, $9.7 billion in funding for prisons, new categories of crimes, and the “three strikes” provision. The prison population continued to rise, another 52 percent.

Years later, Michelle Alexander would argue that “to a large extent it was the Clinton administration and the so-called New Democrats who are largely responsible for the emergence of this new caste-like system.” But both the rise in the prison population long preceded his presidency, the percentage of the growth attributable to war on drugs declined under Clinton, and the rate of increase in incarceration actually slowed in his second term.

 

SO WHAT NEEDS to be done to end our half-century long incarceration nightmare? The “first step” of the solution (to use the language of the new Federal reform law) is to address the immediate causes of the rise in incarceration at federal, state, and local levels. But to get the numbers below that will require distinguishing the social control functions of policing from the legitimate control of serious crime and substituting non-coercive means of social control for repressive ones. 

At the most simplistic level, -people behave as they are “supposed” to for one of two reasons. Either they want to behave or they are made to behave. The first, non-coercive approach was the dominant mode of the three decades following World War II—initially for whites, but increasingly for blacks as well. But after the early seventies, the non-coercive mechanisms—steadily increasing wages and benefits, gains in economic and social equality, upwards social mobility, a widespread sense of empowerment—came under attack or were allowed to erode. Republicans and Democrats alike shifted to a more coercive approach. Simultaneously, the coercive mechanism—above all, the threat or reality of incarceration—grew. 

The alternative to incarceration is inclusion. This is not the place for laying out the details of a program that would provide the basis for a return to non-coercive patterns of social control. The outlines undoubtedly would include policies aimed at providing job opportunities at a living wage; creating and maintaining a durable social-safety net; providing affordable (and non-discriminatory) housing; providing decent, well-funded public schools and training programs; making post-secondary education (both colleges and training programs) financially accessible to all without creating a massive burden of debt; providing low cost, high quality, easily accessible health and mental health care for all (including drug abuse treatment); providing policing that emphasizes connections between police and the communities they serve; addressingpolitical and economic disempowerment and inequality (e.g., ending barriers to unionization, gerrymandering, unrestricted corporate funding of elections, disenfranchising of ex-felons); and combatting racial inequities in all of these areas as well as in the criminal justice system. 

This is, of course, a general program for progressive change. To gain political assent, as well as for moral and practical reasons, such programs would have to address the needs of white as well as black working class people.The specifics of such a program can be argued on many grounds. But purely from the perspective of the incarceration crisis, anything less is spitting in the wind. 

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