Race to Incarcerate

New Press

Chapter One

1?Introduction? The Race to Incarcerate

We're on a new higher plateau of crime, which means a new, higher and, I think, permanent prison population. It is very hard for a free society to figure out how effectively to deal with crime rates other than by imprisonment.

?James Q. Wilson

What an interesting populace we have. Nobody seems at all worried by the fact that we have the largest prison population and that it consists preponderantly of young blacks, a whole generation in jail.

?Murray Kempton

In January 1998, the Justice Department issued its semiannualreport on prison populations in the United States, notingthat there had been a five percent rise in the previoustwelve months. Newspapers dutifully reported the story, just asthey had similar rises the year before and the year before that. Infact, by now the story was a quarter century old, with the nationalprison population having risen nearly 500 percent since1972, far greater than the 28 percent rise in the national populationduring that time. In the ten-year period beginning in 1985,federal and state governments had opened a new prison a weekto cope with the flood of prisoners. The nearly 1.2 million inmatesin the nation's prisons was almost six times greater thanprior to the inception of the prison-building boom and representeda societal use of incarceration that was virtually uniqueby world standards. The scale of imprisonment had come a longway since the birth of the institution.

    Two hundred years ago, Quakers and other reformers inPennsylvania had developed the institution of the penitentiary,an experiment in molding human behavior that was befitting ofother innovations in the new democracy of the United States.Derived from the concept of "penitence," the new institutionemphasized having sinners engage in hard labor and reflectupon the errors of their ways.

    Prior to this, the preferred methods of responding to criminalbehavior in both the European nations of the old world and inthe American colonies did not include institutions. The jailsthat existed in Europe and the U.S. served primarily to detaindefendants who were awaiting trial and debtors who had notfulfilled their obligations, and they were not places of punishmentfor felons.

    After a defendant was convicted of an offense, various measureswere employed with the goal of deterring the individualfrom engaging in antisocial behavior in the future. Deviant behaviorwas viewed not as reflecting a flaw in society but, rather,as sinful and pervasive in society. Those who had offended weregenerally subjected to relatively swift and severe sanctions,which often varied depending on one's status in the community.For persons of some means who had committed relatively minoroffenses, fines were frequently imposed as punishment. Lower-statuspersons convicted of offenses?servants, apprentices,slaves, and laborers?were usually subjected to the stocks orpublic whippings. The death penalty was an option in cases asserious as murder, but also for lesser offenses, such as third-timethievery. The use of capital punishment, though, was far lessfrequent in the colonies than in England. Offenders in the colonieswho were not from the immediate community, and sometimesrepeat offenders, were generally subject to banishment.

    Much of the rationale for these various punishments can befound in the nature of the colonial society. In an environmentwhere communities were relatively small and their inhabitantswell known to each other, public approbation and embarrassmentwas seen as capable of shaming the offender into desistingfrom continued illegal activities. Wandering rogues who wentfrom town to town committing crimes were usually banished.Moreover, in a society where labor was in short supply, benefitsto the community were derived from punishments that, beingswift and certain, did not unduly affect the laboring capacity ofthe community.

    After the Revolution, though, new ways of thinking aboutcrime and punishment began to emerge. In 1787, influentialQuakers and other leaders in Pennsylvania, led by Dr. BenjaminRush, organized the Philadelphia Society for Alleviating theMiseries of Public Prisons. A growing sentiment that the deathpenalty and other corporal punishments were barbaric eventuallyled to restrictions or elimination of capital punishment inthe new states.

    But if the death penalty was to be eliminated, or its use greatlyreduced, how would serious offenders be punished? These andother issues were considered by the nation's leaders. Out ofthese deliberations came the notion of the prison as a new formof punishment and deterrence for both capital and noncapitaloffenders.

    The initial experiment in confining convicted offenders tookplace in 1790: it involved converting sixteen cells at Philadelphia'sWalnut Street Jail into housing for felons. This was laterreplaced and expanded upon at the Eastern State Penitentiaryin 1829, which remained in use until 1970. The Pennsylvaniapenitentiary model was based on imprisoning offenders in solitaryconfinement and occupying them with labor and Biblestudy in their cells; those who were unable to read were aided byoutside volunteers.

    Ironically, and in retrospect quite tellingly, the first inmateadmitted to the Eastern State Penitentiary was a "light skinnedNegro in excellent health," described by an observer as "onewho was born of a degraded and depressed race, and had neverexperienced anything but indifference and harshness." Twocenturies later, the confluence of issues of race and class with theprison system have become a fundamental feature of the nationallandscape.

    Variations on the penitentiary model used the basic format ofconfining offenders to solitary cells, but exposing them to a congregatework environment. This approach was pioneered in the1820s by the "Auburn model" in New York State, which requiredinmates to engage in work during the day; prisoners wereprohibited from talking or even exchanging glances. Fierce debatesraged at the time regarding the efficacy of the competingPennsylvania and New York models in controlling crime. However,common to both systems was the belief that the less communicationoffenders had with each other, the less opportunitythere would be to engage in criminal plotting or to reinforceeach other's negative orientation.

    By the mid-1800s, changes in the makeup of Americansociety?no longer a relatively sparsely populated collection ofsmall towns and cities?led to a new consensus regarding howbest to respond to criminal behavior. The demographic andeconomic growth of the nation had spawned increasing concernabout antisocial behavior and ways of maintaining order in anincreasingly fluid society. Out of this came a growing consensusamong leaders of the day regarding the need for an institutionalresponse to potential disorder.

    Looking back on two centuries of the prison in America,what is particularly remarkable is how little the institutionalmodel has changed since the nineteenth century. While thephilosophical orientation and stated goals of the prison havefluctuated, the basic concept of imprisoning people in cages remainsthe central feature of the system.

It is a bit jarring, of course, to speak of "caging" human beings,since we normally prefer to use this term for animals and toconjure up fond feelings for our favorite zoo (although our commonfeelings about the constraints placed on animals in cageshave also changed markedly in recent years). But whether wecall them "cells," or "housing units," or any other new name, itis difficult to deny that the basic reality of the system is that of thecage.

    To place the permanence of the model in perspective, weneed only consider how other institutions and professions haveevolved over these past two hundred years. In transportation,we have moved from the horse and buggy to the steam engine,the automobile, and now, ventures deep into the solar system.In medicine, healing methods based on limited scientific expertisehave been eclipsed by such remarkably sophisticated measuresas open heart surgery and even the possibility of cloninghuman beings. Understandings of human behavior likewisehave been dramatically altered by the advances of psychotherapy,along with a host of twentieth-century theories. Yet theprison cell endures after two centuries.

    This is not to say that prison systems are necessarily operatedin an eighteenth-century fashion, or that change is never instituted.Despite the re-introduction of chain gangs, old-styledconvict uniforms, and other methods of humiliation, there stillremain many corrections administrators who take pride in theirwork and are earnest advocates for humane conditions of confinement.Indeed, in some newer prisons, the cage itself hasbeen replaced by locked rooms in a dormitory-like setting. Nevertheless,the themes of confinement and isolation remain centralto the model of the prison.

    The way a society deals with offending behavior is first conditionedon how that behavior is defined, a value that evolvesover time and across cultures. Within the United States, alcoholproduction was prohibited in the 1930s, but has been permittedfor the most part during all other periods. Even among moreserious offenses, both cultural and situational relevance determinesocietal responses. Killing a person, for example, is clearlyoutlawed in daily life, but permitted by all nations in times ofwar. State-sanctioned killings in the form of the death penaltyare permitted in such nations as the United States, China, andIran, but prohibited in most industrialized nations and manydeveloping nations as well.

    Prisons and the entire apparatus of a criminal justice systemrepresent a response to offending behaviors. The system isviewed as a means of retribution and problem-solving, that ofresponding to persons and behaviors we find unacceptable.But, most critically, the system itself is premised on being a reactivemodel and a punitive system?that is, the criminal justicesystem comes into play only after a crime has been committed.At that point, the victim may call 911, the police will investigate,the prosecutor brings charges, and a judge imposes a sentence ifthere is a conviction. Each of these actions are appropriate inand of themselves, but our familiarity with them tends to maskany consideration of the underlying approach suggested by thismodel.

    By identifying certain persons or groups of people as "criminals,"a punitive model of responding to social problems ismade to appear almost inevitable. However, this model ofproblem-solving is hardly preordained. Families and communitiesregularly employ a host of services and resources to encouragewhat are believed to be appropriate behaviors and todiscourage antisocial behaviors. In the vast majority of cases,these approaches are pro-active ones. Thus, we establishschools to educate our children, we form religious bodies tocommunicate values, and we act as parents to transmit styles ofbehavior that we regard as ethical or beneficial.

    In many communities, applying these approaches results inan environment with well-functioning members that, in crimeterms, is considered "safe." But when we think of a communitythat is "safe," is it one with the most police or the most frequentuse of the death penalty? Of course not. Rather, it is one withclean, well-lit streets, open businesses, and little fear. These oftenhappen to be communities with high income levels, strongfamilies and community resources, and ones that both valuetheir members and have the means by which to assure that mostof them will do well in society.

    In contrast, other communities become defined as "bad" or"unsafe," and are ones that contain inordinate numbers of"criminals." At this point, a rational society would be challengedto develop an approach to ensure more safety for thesecommunities. One approach might be to provide the communitywith more resources, or to facilitate the ability of its membersto assert more control over the offending behaviors.Increasingly, though, the model of choice has been the use ofthe criminal justice system and its punitive orientation. Whetherintended or not, this approach is intimately connected with perceptionsof race and class. So, while public support may beforthcoming for "tough" penalties and the politicians who proposethem, when it is one of our own who gets into trouble, weseem to view the problem very differently.

    In recent years, we have seen this distinction played out mostdirectly in the national approach to drug abuse. Millions ofmiddle-class families have experienced the pain of seeing aloved one succumb to drug abuse or addiction. Their response,by and large, is one that recognizes this as a social problem forwhich social interventions are necessary. Identifying a highqualitytreatment program, with the aid of private insurance, becomesthe preferred response to the problem.

    In contrast, for nearly two decades the nation has been engagedin a very different "war on drugs" to respond to drugabuse and its associated ills among low-income and minorityfamilies. Treatment programs are likely to be in short supply, sothe problem of abuse is much more likely to fester and eventuallyresult in actions that will define it as a criminal justice problem.

    None of this should suggest, of course, that crime is not aproblem of serious concern, or that minority communities arenot particularly affected by dramatically high rates of violence.In fact, for many years minority communities have bemoanedthe lack of police attention to their concerns as well as complainedof police harassment. A complex set of factors, though,fueled in large part by a haze of media images and politicalsoundbites, has almost inured us to any approaches to dealingwith these problems other than punitive criminal justice models.And, while we continue to suffer from crime rates that arehigher than many can remember from the 1950s, a quarter centuryof "tough" policies has failed to provide sufficient safety orto substantially reduce the fear of crime.

    Some observers of these developments have concluded thatthe crime and criminal justice policies of the present erarepresent a conspiratorial assault on minority communities. To believethis, though, negates the actual progress that has beenmade in securing minority representation in leadership positionswithin the justice system. Progress in this regard is stillrelatively modest in many jurisdictions, but the past twentyyears have indeed witnessed a substantial increase in the numberof black and Hispanic police chiefs, judges, corrections officials,and others in positions of authority.

    It is more productive to examine the stated and unstated assumptionsthat have guided criminal justice policy, as well as thechoices not presented or chosen. A black judge confronted withindigent drug addicts and inadequate treatment resources is inas difficult a position at sentencing as a white judge: both aredaily confronted with the consequences of broader policy decisionsthat have disinvested in communities and implicitly chosena reactive and punitive response to broad social problems,rather than a pro-active and constructive one.

    The essentially reactive nature of the criminal justice modelhas been of concern to many, both in terms of its efficacy in respondingto the problem of crime and in terms of establishing atwo-tiered system of community problem-solving. Indeed,throughout the history of the use of imprisonment in the UnitedStates, there have been critiques of the model, organized effortsat reform, and challenges to the prevailing wisdom. As early asthe 1840s, Charles Dickens bemoaned the model he witnessedin Philadelphia: "Those who devised this system ... andthose benevolent gentlemen who carry it into execution do notknow what ... they are doing." On the nature of the institution,he concluded that "I hold this slow and daily tamperingwith the mysteries of the brain, to be immeasurably worse thanany torture of the body."

In recent times, the social upheavals of the 1960s produced aprison reform movement both within the prisons and amongoutside supporters. Often led or influenced by black Muslimswithin the institutions, the movement raised a broad critique ofthe prison system itself, the definition of crime, and the coercivepower of the state. While elements of this critique have alwaysbeen present, events of the past quarter century have now elevatedits significance in profound ways. During this period,public policy in the United States has resulted in what can onlybe termed a second wave of the great "experiment" in the use ofincarceration as a means of controlling crime. As we shall see, acomplex set of social and political developments have produceda wave of building and filling prisons virtually unprecedented inhuman history. Beginning with a prison population of just under200,000 in 1972, the number of inmates in U.S. prisons hasincreased by nearly one million, rising to almost 1.2 million by1997. Along with the more than one half million inmates in localjails either awaiting trial or serving short sentences, a remarkabletotal of 1.7 million Americans are now behind bars.

    These figures take on more meaning in comparison withother nations in the industrialized word. The U.S. rate of incarcerationper capita now dwarfs that of almost all such nations:our nation locks up offenders at a rate six to ten times that ofmost comparable countries. Ironically, the United States nowcompetes only with Russia for the dubious distinction of maintainingthe world lead in the rate at which its citizens are lockedup. Although the Cold War has ended and the arms race is essentiallyover, these two nations with vastly different economiesand social conditions now are engaged in a race to incarcerate.

    Like the arms race, the race to incarcerate has a set of consequencesfor society that have generally been examined only inthe most shallow of ways. Moreover, as we approach the newmillennium, the nature and meaning of incarceration in theUnited States has changed in a variety of profound ways withfar-reaching implications.

    First among these is the virtual institutionalization of a societalcommitment to the use of a massive prison system. Morethan half of the prisons in use today have been constructed in thelast twenty years. These prisons can be expected to endure andimprison for at least fifty years, virtually guaranteeing a nationalcommitment to a high rate of incarceration. The growth of thesystem itself serves to create a set of institutionalized lobbyingforces that perpetuate a societal commitment to imprisonmentthrough the expansion of vested economic interests. The morethan 600,000 prison and jail guards, administrators, serviceworkers, and other personnel represent a potentially powerfulpolitical opposition to any scaling-down of the system. Oneneed only recall the fierce opposition to the closing of militarybases in recent year to see how these forces will function overtime.

    Prisons as sources of economic growth have also become vitalto the development strategy of many small rural communitiesthat have lost jobs in recent years but hold the lure of cheap landand a ready workforce. Communities that once organizedagainst the siting of new prisons now beg state officials to constructnew institutions in their backyards.

    Add to this the rapidly expanding prison privatization movementfocused on the "bottom line" of profiting from imprisonment.In the words of one industry call to potential investors,"While arrests and convictions are steadily on the rise, profitsare to be made?profits from crime. Get in on the ground floorof this booming industry now."

    Nevertheless, it is not as if there are no models to guide us inmaking the transition toward less use of incarceration. Thedeinstitutionalization of the mental health system, which began inthe 1960s, was hardly an unqualified success, due primarily tothe failure to enhance sufficiently community-based services;yet, it remains a model that demonstrates the possibility of embracingnew approaches that challenge conventional wisdom.

    Prison reformers of the 1960s and 1970s often maintained acautious optimism that a de-institutionalization movement incorrections would follow that of the mental health system. Theirreasoning was that similar critiques could be made of both typesof systems, but that greater public empathy for mental patientsthan criminal offenders inevitably would result in an easiertransition for the mental health model. With the benefit of hindsight,we can now see that this faith was quite misplaced.

    The near-permanent status of the massive state of imprisonmentis evidenced despite the expressed concern over the "crisis"of prison overcrowding which has accompanied publicpolicy discussion and media accounts of these issues. Pleas havebeen made that funding for an expanded prison system will divertresources from other public spending, and that prison capacitycannot be expanded quickly enough to accommodate asteadily growing number of inmates.

    After a quarter century of prison growth, though, it is nowapparent that while some corrections officials may feel the impactof an expanding system and overcrowding, in fact there isreally no longer a "crisis" mentality in many regards. Rather,vastly expanded expenditures on corrections system are nowconsidered the norm, and in fact, represent the largest growtharea of state budgets. Virtually every state has engaged in a significantif not massive prison construction program over thepast two decades, financed through general funds, bonds, andmore recently, public-private venture arrangements. Whileprisons in most states still remain overcrowded, the level ofovercrowding has not changed appreciably since 1990, whichdemonstrates that state and the federal governments have beenquite willing to construct new institutions in response to growingdemand. Finally, while there still remains some discussionregarding the need to refrain from unlimited growth in the system,any consideration of an actual reduction in the absolutesize of the prison population is virtually absent from publicpolicy discussion.

    Contributing to the establishment of this permanent state ofmass incarceration is the impact of falling crime rates of the1990s. For proponents of expanded imprisonment, a falling rateof crime is virtually all the proof needed to justify an expensiveand inherently coercive institution: if imprisonment goes upand crime rates go down, they argue, the correlation betweenthese two must be obvious. As we shall see later, this "relationship"is far from clear and certainly not one that should justifysuch a commitment of resources. Nonetheless, at a time whenpolitical leaders can boast of their "success" in reducing crimerates, any criticism of the prison state has difficulty gaining attention.

    It is hard to imagine that this complacency would exist if themore than a million and a half prisoners were the sons anddaughters of the white middle class. However, as the image ofthe criminal as an urban black male has hardened into publicconsciousness, so too, has support for punitive approaches tosocial problems been enhanced. Little talk is heard of the feasibilityof expanded employment or educational opportunities asa means of crime prevention: welfare "reform" gains a bipartisanpolitical consensus, despite dire predictions of large increasesin child poverty, and policymaker acceptance of a "permanentunderclass" proceeds apace. In a changed economy with lessdemand for the labor of many unskilled workers, imprisonmentbegins to be seen as an appropriate, if unfortunate, outcome.

    While the impact of incarceration on individuals can bequantified to a certain extent, the wide-ranging effects of therace to incarcerate on African American communities in particularis a phenomenon that is only beginning to be investigated.What does it mean to a community, for example, to knowthat three out of ten boys growing up will spend time in prison?What does it do to the fabric of the family and community tohave such a substantial proportion of its young men enmeshedin the criminal justice system? What images and values are communicatedto young people who see the prisoner as the mostprominent or pervasive role model in the community? What isthe effect on a community's political influence when one quarterof the black men in some states cannot vote as a result of a felonyconviction? Surely these are not healthy developments.

    Moreover, we have entered an era of technology and communicationsin which developments in crime policy in the UnitedStates take on an increasingly global influence. While the U.S.hegemony over world economies and culture has long beenobserved and often decried, there are now ominous signs that theincarceration models and mentality so pervasive in this countryare affecting social policy abroad as well.

    This trend is probably most obvious in England, whereMichael Howard, the former Home Secretary of John Major'sConservative government in the mid-1990s, embraced many ofthe "get tough" policies developed in the United States. Breakingwith a historic British tradition of granting broad discretionand independence to the judiciary, Howard proposed the adoptionof mandatory sentences, boot camps, "supermax" highcontrol prisons, and other U.S. innovations. This was accompaniedby U.S. "photo-op" visits by Howard to such institutionsas the Florence, Colorado, federal "supermax" prison,considered the ultimate form of institutional control, a hightechoperation with almost complete isolation of inmates fromeach other and the outside world.

    The government's initiatives might have been dismissed asmerely pandering to a conservative constituency had they notrepresented such a sharp break with the recent past of the Conservativegovernment. Under the previous leadership of MargaretThatcher, the government had instituted the 1991 CriminalJustice Act, which essentially recognized the limited impact ofincarceration on crime and called for a halt in the growth of theprison system. Developed from a cost-efficiency standpoint, thepolicy had been promoted as fiscally conservative and responsible.

    These developments are not confined to England, though.With worldwide access to media ranging from CNN to the internet,policymakers and the public are now virtually instantaneouslyexposed to social changes in the United States. Inrecent years, we have therefore seen such legislative proposalsas a "three strikes and you're out" policy in the Czech Republicbased on televised reports from California. More sinister is thebroad reach of the American prison privatization movement;U.S. private prison companies are winning contracts from Australiato eastern Europe. Policies that imprison ever-larger numbersof young African American males in the United States arealso likely to result, at least indirectly, in greater incarceration ofimmigrants in Norway or minority populations in France.

    Thus, there is now an even greater obligation on the part ofpolicymakers and the public in the United States to considertheir actions and impact not only on the domestic "underclass"but on democratic rights and traditions internationally. It isthese issues and analyses that we shall explore in this volume.

Continues...
Excerpted from Race to Incarcerateby Marc Mauer Copyright © 2006 by Marc Mauer. Excerpted by permission.
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