The Long Shadow of Mass Incarceration: A Generation Imprisoned

— Mark Brenner

THIS JANUARY, THE U.S. Supreme Court started what may prove to be a fundamental overhaul of criminal sentencing in federal jurisdictions.  In two interrelated cases, Booker and Fanfan, the court struck down key elements of the current federal sentencing system, put in place over twenty years ago when Congress passed the Sentencing Reform Act.

First the court banned the practice of increasing defendant sentences based on evidence not proven to a jury beyond reasonable doubt, a move widely anticipated after the Supreme Court prohibited similar practices in the Washington state court system last summer.  Second, while stopping short of abolishing current federal sentencing guidelines, the court instead converted them from mandatory to advisory benchmarks, which judges must consult but are no longer bound to implement.

The impact of these decisions is impossible to predict.Congress could, for example, enact equally draconian sentencing guidelines that pass Supreme Court scrutiny.  However these changes may instead signal the beginning of the end for the country's unprecedented prison buildup.

Such a turning point could not be more welcome.  For more than a generation the United States has presided over one of the darkest, most far reaching social experiments in its history—the practice of mass incarceration.  Today more than two million people in the United States are behind bars, and over seven million under some form of criminal justice supervision.

Roughly two-thirds of these are people of color, a painful reminder that nowhere is the twenty-first century color line clearer than in the U.S. penal system.  How do we make sense of this massive prison build up, and how do we assess its real social costs?  More important, how do we strengthen the growing movement to find alternatives to locking people in cages?

Putting a Generation Behind Bars

Thirty-five years ago, few would have predicted an incarceration explosion.  U.S. prison populations were declining, and the conventional wisdom among many criminal justice professionals was decidedly tilted towards treatment, rehabilitation and alternatives to incarceration.

Indeed, the civil rights legacy of the 1950s and 1960s had led many to question prisons as such, viewing them as an institution of social control disproportionately targeted at poor and work-class people and communities of color.  But like most social advances, the gains of the 1960s contained within them deep contradictions—seeds of a backlash that would eventually grow into a full-scale law-and-order panic.

First and foremost was the unfulfilled promise of dismantling American apartheid.  U.S. elites grudgingly ceded legal equality in the face of unacceptably high social and political costs.  But they were neither willing nor able to address the substantive disparities that defined the racial caste system of Jim Crow.

Working-class whites, even if uneasy with legal segregation, remained decidedly resistant to integration of predominantly white neighborhoods or later to the promotion of school integration through busing.  And while openly racist political rhetoric—such as in 1968 presidential bid mounted by former Alabama governor George Wallace—proved too incendiary for mainstream politics, the Republican Party was ready with a thinly veiled alternative.

Starting with the Goldwater campaign of 1964, the party's conservative wing brought the racially coded rhetoric of "get-tough-on-crime" to the national stage.  Before that time crime policy was primarily a local issue, but conservatives shrewdly anticipated its political potential.

Above all, the law-and-order platform tapped into the fears of white voters, and situated conservative Republicans as a nostalgic cultural counterweight to the communists, hippies, and the rabble-rousers.

In not so subtle ways the "get tough on crime" agenda linked the civil rights movement—and anyone with a dark complexion—to the unraveling of America's social fabric, creating a new political lexicon of race in the process.  As Richard Nixon would later reveal with chilling frankness, they believed "...that you have to face the fact that the whole problem is really the blacks.  The key is to devise a system that recognizes this while not appearing to."*

Crime was cast as an urban problem, and cities were painted as dark and dangerous places.  Unfortunately, for those ready to believe it, this narrative of urban chaos also seemed to fit the facts.  It neatly explained not just the riots that engulfed every major city in the country between 1965 and 1968, but also more discomfiting statistics like the soaring rates of violent crime and drug use over the decade.

In this context, America's "silent majority" was also ready for the Republican solutions on offer.  These included militarizing local police departments; enacting harsher criminal penalties, most notably for drug-related offenses; and expanding the scope and scale of federal involvement in law enforcement.

Indeed, it was during the Nixon presidency that all of the material building blocks of mass imprisonment were first developed.  Local police departments were beefed up, with Congress allocating billions of dollars to arm and equip local law enforcement.  State and federal legislation became more punitive, particularly for drug-related offenses, with the most notable example being New York's stiff mandatory minimum drug sentencing scheme (commonly known as the Rockefeller drug laws).

The federal government also expanded the scope and scale of its involvement in law enforcement, for example founding the Drug Enforcement Agency (DEA) and creating the computer infrastructure that is the backbone of today's high-tech approach to policing.

Although Watergate postponed the implementation of a law-and-order agenda, the economic and political turmoil of the 1970s softened the ground.  Conservatives continued their ideological attack: transforming welfare, school integration, and affirmative action into racial wedge issues, while at the same time painting an aggressive and unaccountable government as the source of people's problems.

Meanwhile working-class living standards stagnated, caught in the vice of high inflation and double digit unemployment.  Ronald Reagan's election signaled the death knell of the fragile New Deal alliance, as white working-class voters abandoned the Democratic Party in droves.

It was under Reagan's leadership that the stars aligned for the "get-tough" crowd.  Against a backdrop of steadily increasing violent crimes, a full-scale economic crisis developed in the nation's urban centers and rural areas.

Deindustrialization pummeled the cities, leaving more than half of the young Black men in the country unemployed by the end of the first "Reagan recession" in 1982.  Meanwhile, the weight of America's farming crisis left rural communities desperate for any available job prospects or new investment, including industries of last resort like prisons.

Ideologically, the acceptance—and sometime celebration—of the drug lifestyle by the U.S. media mutated into a full-scale drug panic once crack appeared on the national scene.  And it was on Reagan's watch that all of the policies used to carry out mass incarceration were expanded nationwide: most notably, the adoption of mandatory minimum sentencing laws at both the federal and state levels as well as the launching of the War on Drugs.

The mean season of the Reagan years also saw the tacit rehabilitation of police brutality as an accepted law enforcement tactic, and the large-scale deinstitutionalization of the nation's mentally ill population (often moving quickly from the mental hospital to the prison cell).  In this context, it is not surprising that the number of people behind bars increased 142% between 1980 and 1990, topping a million by the decade's end.

But the end of the Reagan-Bush years did not signal a change of prison policy—quite the opposite.  At the federal level, the Clinton administration pushed the most aggressive anti-crime legislation in the nation's history, ponying up more than $30 billion for new prisons, police hardware, and personnel.  Congress amended various federal statutes to bar individuals with felony drug convictions from receiving welfare, public housing or subsidized student loans.

State legislatures got into the act as well, enacting more punitive sentencing legislation: including "truth in sentencing" requirements, mandating that offenders serve a specified portion (ranging from 50-85%) of their prescribed sentence before being eligible for parole, and "three strikes" laws that dramatically lengthened sentences for second and third time offenders, irrespective of their specific crime.

Slowing the Tide of Incarceration

By the end of the Clinton years, a doubling of the number of people behind bars had brought the total to more than two million men and women.  Fortunately, the past decade has also seen a quiet, but growing movement to reverse our slide towards a prison nation.

Activists have targeted the various aspects of crime policy—such as sentencing mandates, policing practices, prison construction, and state and federal drug policies.  They have also focused attention on the "invisible punishment" that follows individuals emerging from the system, such as the bans on welfare, public housing, and higher education loans applied to many individuals with felony convictions, as well as the systematic denial of voting rights made possible by legal disenfranchisement.  These efforts have contributed to the trickle of reforms witnessed over the last decade, particularly at the state level.

For example, the Supreme Court's Fanfan decision is just the latest in a series of reforms to mandatory minimum sentencing laws.  This trend started in the late 1990s, with the modification of Michigan's "650 lifer" law (which mandated life without parole for any one convicted of delivering or intending to deliver 650 grams or more of heroin or cocaine).  Since that time several states have modified their sentencing statutes, particularly for drug-related offenses.

In December 2004, New York became the latest addition to the list, taking its first halting step towards reforming the notorious Rockefeller drug laws, which previously mandated 15 years to life for many low-level first-time drug offenses.  The year prior, the legislature in neighboring Connecticut gave judges more leeway in drug cases, allowing them to relax mandatory minimum sentencing requirements for "good cause," and Michigan repealed virtually all of its drug-related mandatory minimum sentencing laws.

Similar changes to mandatory minimum statutes have also been adopted in a diverse range of states including Louisiana, Indiana, North Dakota, and Maine in the past several years.

Several states have taken even more radical measures to addressing drug-related offenses, particularly diverting nonviolent first and second time offenders into treatment rather than sending them to prison.  Arizona started this trend, with 65% of voters ratifying Proposition 200 in 1996, and California voters quickly followed suit, ratifying a similar measure in 2000—Proposition 36—with 61% of the vote.

California's Prop 36 allowed nonviolent offenders convicted of first- and second-time drug possessions a chance to receive substance abuse treatment instead of going to prison, and the effects have been staggering.  Since 2000 nearly 37,000 people have been diverted from prison into treatment under this program, and Prop 36 is expected to save the state a whopping total of $1.5 billion by the end of this year.

In the past five years state legislatures in Connecticut, Hawaii, Indiana, Kansas, Maryland, and Texas have all enacted legislation mandating treatment instead of incarceration, while legislators in both Washington state and Colorado made similar moves, reducing drug-related criminal penalties and using the savings to expand drug treatment programs.

Activists in other states are taking on new prison construction, or fighting to close existing facilities, and the crisis in state and local budgets has made these winnable struggles.  For example, last year saw the formation of CURB, Californians United for a Responsible Budget, which has put forward a proposal to mothball four existing or planned prisons in the Golden State.  After years of out-of-control Corrections Department spending, some lawmakers in Sacramento are taking note.

On the ground in Louisiana, friends and relatives of incarcerated young people won a major victory two years ago, securing passage of a juvenile justice reform bill that will close the Tallulah youth prison, one of the state's most notorious and brutal facilities.  Their fight continues, as they are now pushing to turn Tallulah into a community college serving all of the northeast delta community.

Struggles like these continue to pop up across the country, in places as far-flung as rural North Carolina and South Texas where communities are asking hard questions about the real benefits of having a prison built in their town.

Success and Contradictions

Yet contradictions abound, even amid the newfound success of prison activists.  Victories, by and large, have not been the result of reformers' strength or their ability to disrupt normal everyday life for the powerful, but the result of a confluence of other forces.

First, there has been growing ambivalence among those administering this massive web of social control.  From prosecutors, to corrections chiefs, to even former U.S. Attorney General Janet Reno, there has been growing unease with our swelling prison population and draconian sentencing policies.  Their criticisms of the current system have given credence to reformers and paved the way for lawmakers to reverse sentencing guidelines and change drug laws.

Second, many state officials have shed their "prison at any cost" attitude.  Faced with staggering budget deficits, politicians—conservatives in particular—have been willing to do the unthinkable and soften sentencing requirements and even close prisons in the name of cost cutting.

Republican governors in Michigan, Illinois, Ohio and Florida have all closed prisons during the fiscal crisis, and Kentucky, Alabama and Mississippi, rock-ribbed red states every one, have all implemented provisions for early release and alternatives to imprisonment for people convicted of nonviolent offenses.

A third factor driving this elite "attitude adjustment" is the sheer scale of the re-entry crisis faced by the victims of mass incarceration.  An estimated 650,000 inmates are expected to be released from prison and jail this year—and for many more years to come—and precious few resources await them to help reclaim their lives on the outside.

Unfortunately, while these shifts help explain recent success changing policy, they are a poor guide to public opinion, and whether ordinary people are really open to big changes in our current methods of policing and punishment.

On the one hand crime rates are at forty-year lows, and in most places crime policy has not been a first-tier political hot-button for almost a decade.  Small inroads have been made into the "culture of fear" behind so much of the prison buildup.  On the other hand, despite recent victories, reformers have not met with uniform success.  This past November, for example, voters in California rejected a ballot initiative designed to reform the state's "three strikes" law. This measure, initially predicted to pass by a comfortable margin, was sunk by a blitz of scare-tactic campaigning spearheaded by Governor Schwarzenegger.

In Ohio a 2002 referendum aimed at softening the state's drug sentencing guidelines was also defeated, while similar initiatives to repeal mandatory minimum sentencing requirements were rejected by voters in Arizona in 2002 and Oregon in 2000.  These examples suggest that "law and order" campaigning still resonates with a substantial fraction of white America, and that fear still lingers in their hearts and minds.

They also demonstrate how easily the country could return to "business as usual" if the fight against amass incarceration is not waged explicitly as an anti-racist struggle.  State and local budgets will eventually improve, and as the "war on terror" demonstrates, Americans are willing to shoulder unfathomable public debt in the name of safety.  It's a struggle we can't afford to lose, and one we ignore at our peril.

ATC 115, March-April 2005