As I wrote in my introductory post, I’m posting on RBC because I’m hoping to derive some general insights from 10 years of working in criminal justice reform and government. I am particularly interested in thinking about mass incarceration—not only because I’ve spent most of my policy career working on this issue, but I also think it epitomizes the ways in which government, politics, and reform can go wrong. In this earlier post, I used Tocqueville’s concept of legislative instability to think about criminal justice reform’s tendency to forget and repeat its past. In this post, I want to reflect on what I think is missing from popular accounts of mass incarceration, which can hinder and even undermine criminal justice reform efforts.
I’m pretty sure that at every public event I have ever attended on criminal justice reform someone asserts that mass incarceration is reducible to racism, classism, profiteering, or some combination of the three.
On the one hand, it would be absurd to downplay how, as the National Academy of Science puts it, the country’s “historically unprecedented and internationally unique” high rate of incarceration has focused primarily on “blacks and Hispanics, especially the poorest.” Or how, according to the Prison Policy Initiative, an astonishing $182 billion every year flows through all levels of government in support of this system.
On the other hand, the more accounts of mass incarceration rely on an assumption that powerful groups of people created this system precisely because it enables them to oppress other people or to profit certain interests as a matter of policy, the less persuasive I find them.
My problem is that working in criminal justice inside and outside government, I have never seen the kind of intentionality and power these accounts require. It’s not just that government generally struggles to implement policy initiatives, which makes it difficult to imagine how agencies throughout the country would be able to implement something as large as mass incarceration. It’s that I think there is also a different kind of intentionality and power at work, which popular accounts tend to obscure.
Let me try to explain what I mean through an early experience I had in Illinois government.
At the beginning of 2015, a couple weeks after I was appointed to lead Illinois’ public safety research and grant-making agency, I went to the state capitol. The legislative session had just begun, and I wanted to meet with legislators in preparation for my agency’s upcoming appropriation hearing. As the new governor had just issued an executive order that aimed to reduce the prison population by 25% by 2025, I was also excited just to walk around the capitol. I had left my job as the head of Illinois’ only nonpartisan prison watchdog because I thought I’d be able to help drive substantial criminal justice reform. In this new position, I felt like I was about to accomplish all of the goals I had talked about as an advocate.
My legislative liaison took me around the House and Senate. Everyone seemed eager to say hello, as they were probably trying to figure out what kind of influence I was going to have in the new administration. A handful of legislators I knew joked that I came to government to empty the prisons and let all the criminals go free.
As I was waiting outside an office for a meeting to begin, my colleague noticed a long-serving aide to one of the state’s most powerful legislators. While I had worked with many members from both parties, I had never dealt directly with this legislator or his key staff. My colleague called the aide over and introduced us.
“You must be the prison guy,” the aide said to me, as we shook hands.
“That’s me, I guess,” I said as I smiled, initially assuming he was joking as others had throughout the day.
The aide stared at me silently for a moment, looking mildly annoyed that he was talking to me, but also eager to convey something.
“Let me tell you a story, prison guy,” he began.
“I remember 15, 20 years ago, doing the budget when the Department of Corrections first went over a billion dollars. When the boss saw it, he looked up from his papers and asked, ‘How’d the DOC get to be a billion dollars?’
“I said, ‘Boss, what the fuck did you think was going to happen after all those years of increasing sentences?’”
The aide paused, as if to let me guess how the legislator replied.
“The boss went, ‘huh,’ and we then went back to the budget,” the aide concluded his story, shrugging his shoulders to imitate the legislator’s casual indifference.
The aide then looked at me with a dismissive smile and walked away.
When I reflect on accounts that try to explain mass incarceration as an intentional strategy of oppression or profiteering, I think about this conversation. In its careless disregard not just for the size or cost of Illinois’ prison system, but for the idea of a policy-driven approach to government in general, the aide’s story exemplifies an essential aspect of the intentionality of mass incarceration. Based on my work in criminal justice reform and government, I don’t think people with political power created mass incarceration to oppress certain populations or increase prison spending, although it has had these effects. Rather I think mass incarceration has happened because people with political power have increased the use of prison at a structural level, primarily through concentrating discretion in law enforcement agencies and in prosecutors’ offices over who goes to prison and how long they are sentenced, but have never cared about the impact these laws and policies had on minorities, the poor, or budgets.
This is important not because the intent of policymakers matters in itself, but because this essential carelessness guides how much of mass incarceration works. It generates some of its most punitive inclinations, like the tendency for elected officials to call for increases in longer mandatory prison sentences in response to crime, despite an overwhelming body of research that demonstrates mandatory minimums’ ineffectiveness. But more significantly the influence of this essential carelessness is perhaps most present in determining what’s absent: the infrastructure, coordination, oversight, and accountability—all of the capacities that intentional outcome-oriented systems need to ensure that they can achieve their goals and objectives, but which the loose constellation of agencies that constitute mass incarceration typically lack or possess in compromised forms because policymakers generally never bother to create, support, or use them.
As criminal justice reform tries to reduce our overreliance on prisons and jails, I think it’s difficult for it to comprehend this essential carelessness. Perhaps the magnitude of mass incarceration makes us want to find an intentionality behind it that in a way dignifies what it represents. It doesn’t seem right that a careless disregard for harm could be responsible for producing what the late legal scholar William Stuntz rightly calls the “harshest” justice system in “the history of democratic government.” And so we construct a powerful and comprehensive intent from mass incarceration’s most profound effects, like the racism and classism in its severe concentration in minority and mostly poor communities or the profiteering that takes advantage of the billions of dollars that support our use of prisons. In so doing, we tend to assume that the institutions that participate in mass incarceration are more sophisticated than they are in reality. This assumption leads us to advocate for policy changes that rely on capacities that criminal justice agencies don’t necessarily have, like the infrastructure to deliver evidence-informed programming or the ability to re-invest hypothetical savings from prison reduction into rehabilitative services. Such reforms are not only unlikely to succeed. Worse, they can strengthen the grip mass incarceration has on our criminal justice system by requiring new and deeper investments in our use of prisons to support flawed implementation efforts.
More fundamentally, by not recognizing the lack of care at mass incarceration’s core, we fail to wrestle with an important aspect of how political power can shape law, policy, and governmental institutions in ways that harm people and communities. It’s not just America’s disdain for minorities and the poor, or our love of profit that we need to reckon with in mass incarceration, but also what the poet John Berryman calls “the horror of unlove.” This is an inclination that attends the exercise of political power. What’s horrifying about it is that it leads power to carelessly disregard how its actions could harm people—not because it necessarily wants to hurt them, but because it sees them as utterly incidental to what it wants.
I don’t think the horror of unlove’s influence is well understood, though it’s endemic in law, policymaking, and government. We can see it even in current criminal justice reform efforts. For example, as I have regrettably done in my own career, advocates for criminal justice reform will often turn groups of unloved people into a means to get what they want—whether through promoting a change in the law by excluding so-called “violent offenders” from any of its potential benefits, or in garnering popular support for the idea of reform by emphasizing the need to help “non-violent” over “violent” people. Proposals based on such distinctions like the popular non-violent/violent dichotomy are almost certain to fail, as they are rarely based on a deep analysis of the justice-involved population. But this shouldn’t surprise us. The mentality that encourages us to use unloved people is born not from a careful concern for evidence, nor a regard for potential unintended consequences, but from the seductive expediencies of political power. The lessons of mass incarceration—perhaps the greatest example of the horror of unlove in modern American history—should cause us to be wary of such strategies, if not to reject them outright.
“Proposals based on such distinctions like the popular non-violent/violent dichotomy are almost certain to fail, as they are rarely based on a deep analysis of the justice-involved population.”
I would be interested to here more about this ^^. What do you mean?
Thanks for your comment.
From a high-level persecptive on prisons, John Pfaff is really good on this. In his book Locked In, he takes apart what he calls the myth that low-level non-violent (mostly drug) offenders fill our prisons. Most people in prison were either committed for a violence offense or have a violence offense in their history. So—if we’re interested in reducing mass incarceration—focusing on truly non-violent offenders won’t really touch the problem. I think one of the assumptions behind the violent/non-violent dichotomy is that “non-violent offenders” are easier to rehabilitate. In my experience, chronic non-violent offenders are often the most challenging people to work with because their offending behavior is typically driven by substance abuse and underlying mental health issues. Prison is a horrible place for people suffering from these afflictions—but they often need a lot of help and recidivate at high rates. Research also shows that when the criminal justice works on truly low-level first time offenders, it tend to make them worse—primarily through removing them from the practices and association that help a person live a crime-free life (job, marriage, healthy relationships. etc.) Rather than a distinction between violent and nonviolent—the most important factor in terms of reducing crime is age. This is a longstanding finding of research: the vast majority of the offending populaiton age out of crime, usually in their 30s—and yet, our focus on long sentences, particularly for people convicted of violent offenses, have created a large population of older prisoners who pose the least risk to public safety of the prison population.
As I noted, I’ve used the non-violent/violent dichotomy throughout my career. It’s really effective because I think we want to believe that justice-involved people can easily be separated into one group that deserves our mercy and can be easily rehabilitated, and another group that deserves severe punishment and are incorrigible. Elected officials love this idea—I think in part because it makes the issue easy. After a while of doing this work, I don’t think there’s anything easy about this problem—and when we try to make it more palatable, we often make things worse.
Very interesting. I had heard that before - that most of the people in prison have committed violence before - but only in passing.
I guess then, why do we think we have too many people in prison? Maybe what it really is is that we are too violent a people? It’s not like we work that hard at prevention, imo.
Also, I have to ask … when you follow people after release and say that they don’t re-offend, does that include DV? If no one complained to the police, how would you know?
And on the other side … I always wonder *why* people do things, and really … let’s face it, some of those victims may have done some really bad things too. Provoking things? It’s not PC to say, I know. I don’t *believe* this, but I do wonder.
And then, when I read on the paper about person X who’s done ___ this number of times, and is still running around, I wonder who the bleep is in charge!
So, I’m a bit all over the map really. But other than the $, why do you think we have too many people in prison? Just based on comparisons?
Also, I assume you are familiar with Mark’s work, right? HOPE. Wouldn’t we all like to have some? ; )
Thanks for your reply.
These are important, but really difficult questions with no simple answers.
You ask what has driven our high rates of incarceration. First, I think it’s important to emphasize that before the mid 1970s, our incarceration rates mostly tracked other western democracies. Our current use of prison may feel like it’s somehow natural to our country, but it’s not. Historically speaking, it’s still aberrational. Michelle Alexander’s profoundly influential book The New Jim Crow has argued, as the title suggests, that mass incarceration is a form of racial oppression that was invented after civil rights era dismantled the laws and policies of the old Jim Crow regime. As I noted in my blog post, I think it would be absurd to deny that racism has helped enable increases in prison usage. At the same time, I personally think that the big driver here were structural changes that occurred over 40-50 years that have placed more power with local prosecutors, enabled by legislators, to use a system where another government (the state) essentially foots the bill for the people they charge and send to prison. In this structure, the incentives move in one direction—more incarceration. The best scholars on this are the late Will Stuntz and more recently John Pfaff.
I think the question of violence is also complicated. While we have high levels of violent crime—they tend to be severely concentrated in communities that also have a concentration of other disadvantages—which include unemployment, racial segregation, and high rates of incarceration. Together, this concentration of disadvantage, which is a term that the sociologist Robert Sampson coined, seems to erode the natural ways communities control crime. To put it simply, I think a lot of our social, economic, and criminal justice policies contribute and exacerbates the conditions that generate violence.
You’re right—a lot of crime—the vast majority, actually—does not lead to criminal justice response, especially crimes like domestic violence and sexual assault. I should add that one reason this happens—especially in incidents of dv and sa—is that victims don’t want to involve the criminal justice system because of reasons such as they don’t trust it or don’t think it will help address the problem.
Which leads me to your other question—the division between victim and offenders. Again—super complicated. But I think it’s important to reckon with how the ways we think about crime don’t always explain or help us understand it. People tend to hurt people they know. Violence often begets violence. Violence is a horrible thing—that can have profoundly harmful and lasting effects upon people’s lives. I think our policies need to find more effective ways to address this core fact—and not be exclusively concerned with dividing people up into categories like victim and offender. To be clear: This is not say that accountably isn’t important. Nor is it to say that some people don’t need to be incapacitated if they pose a severe risk to public safety. But I think prison is a generally horrible form of accountability that does not serve victims or offenders well; that we incarcerate too many people for far too long; and that even if a person poses a severe risk to public safety, he or she deserves to be treated humanely—which our prison generally fail to do.
I know Mark’s work—and think the kinds of models he has studied and designed are really a important part of how we should address mass incarceration.
Do you think you really don’t “understand” crime? Or are you just unhappy with the way things are?
I can’t say I’m happy with it either, but I don’t feel like a lack of “understanding” is the problem. We have too much violence and too much poverty, and so we have too much crime. I don’t see it as that complicated I guess.
I am all for prison reform and trying to rehabilitate people, but if they can’t keep their hands to themselves, what else is there but the penalty box? The only thing I could add would be intensive one on one psychotherapy. If most men hate talking about their feelings, maybe it’s what they need.
Maybe this is who we are now? Just saying incarceration is “too high” may be just a form of denial.
Well—let me just stay tuned. Selfishly, I’m hoping I can use RBC to flesh out what I think about these questions. All I can say, is that after about a decade of working in and around this space, I think we know a lot about crime, but I also think there’s a lot we don’t understand about the laws, policies, and structures we have built up to address it and what it has done to communities and our body politics.
I do think you’re right to say rhetorically ask, “Maybe this is who we are now? It is clearly who we are—we are what we do. I’m interested in trying to understand what that fully means—but also ask is this who we truly want to be.
Criminal justice reformers might consider the perspective of safety advocates in other fields. They would argue that the “fixes” that reformers characteristically debate are by their nature evanescent, even illusory: under immediate pressure from their environment from the moment they are announced. The safety people would argue that the goal for reformers ought to be promoting a culture of continuous improvement that treats the frontline workers as resources, not enemies, and tries to provide them with a sense of individual responsibility for a just collective outcome. Otherwise, the “fix” is just a starting point for a process of practical drift that by increments……