As sites of governmental authority, prisons destabilize Weber’s definition of the state as the monopolist of violence. In prisons, the monopoly is suspended: anybody is free to commit rape and be reasonably assured that no state official will notice or care (barring those instances when the management knowingly encourages rape, unleashing favored inmates on troublemakers as a strategy for administrative control). The prison staff is above the law; the prison inmates, below it. Far from embodying the model of Bentham/Foucault’s panopticon— that is, one of total surveillance—America’s prisons are its blind spots, places where complaints cannot be heard and abuses cannot be seen. Though important symbols of bureaucratic authority, they are spaces that lie beyond our system of bureaucratic oversight. As far as the outside world is concerned, every American prison functions as a black site.
The media mostly honors the government’s preference for leaving prisoners in the shadows. The nation’s prisons now contain more inhabitants than any American city save New York, Los Angeles, and Chicago. And yet there is no “prison correspondent” at any of the nation’s major newspapers. This isn’t entirely the papers’ fault. Even if reporters were sent to the prisons, they could be denied entry: the Supreme Court has ruled that the First Amendment does not prevent prison authorities from barring the press.
It’s impossible to tell the story of American incarceration without also telling the story of American racism. Unlike most leftwing stories about racism, though, this one isn’t about the South, and it isn’t even really about American conservatism. After slavery and Jim Crow came the Great Migration, urban riots, and the war on drugs. The history of the prison crisis is largely a story about progressive politicians—liberal Republicans and centrist Democrats—supporting “tough on crime” policies to protect their right flank, both for self-preservation and to propel other progressive priorities. The prison crisis was something that we ourselves created, law by law, decision by decision, state by state.
One of the original flash points was Detroit. In 1967, riots broke out after city police arrested eighty-four revelers at a party given for a pair of African American veterans who had just returned from Vietnam. Lyndon Johnson sent in an army division to pacify the city, resulting in forty-three deaths and the destruction of 2,000 buildings. In the following months, tens of thousands of residents from the city’s Caucasian enclaves hurtled across 8 Mile Road to the suburbs; they never came back. The following year, as the war in Vietnam escalated, Johnson declared he would not seek reelection, throwing the Democratic nomination to the cheerful but ineffectual Hubert Humphrey. That November, after a bitter campaign fueled by racial antagonism, the country elected Richard Nixon. For the first time in history, the Democratic candidate had failed to secure a majority of votes from the old Confederacy.
There followed a thirty-five-year period of “tough” crime laws. They began in New York State, with Nelson Rockefeller, the liberalish governor who, having failed three times to secure the Republican presidential nomination, decided he would make drug policy his peace offering to the party’s right wing. Previously an advocate of treatment programs and community supervision, Rockefeller abruptly changed course in 1973, innovating harsh mandatory minimum sentences for both the sale and possession of illegal drugs. In the next thirty years, New York’s prison population sextupled, climbing from 13,400 prisoners in 1973 to 71,500 prisoners in 2000.
The pattern soon repeated itself across the country. As whites abandoned the cities, their governors and legislatures enacted increasingly tough sentencing laws for the minorities left behind. In 1978, in what he would later call the biggest mistake of his life, Michigan’s governor, William Milliken, an embattled moderate Republican from the state’s desolate north, signed the 650-lifer law, a Rockefeller-inspired provision mandating life sentences for anyone caught in possession of 650 or more grams of cocaine or heroin. Only 200 people have served the life term, apparently because most big cases get transferred to federal court. (It’s still terrible, though: 85 percent of those sentenced under the provision had no prior criminal record.)
The new sentencing policies did little to discourage criminals. The same summer that Milliken signed his life-sentence law, an ambitious group of teenagers met on the playground of Birney Elementary, on Detroit’s west side, and founded Young Boys Inc., the first professionalized multicity drug-dealing ring in the United States. Within two years, YBI was pulling in $300,000 a day selling heroin in Detroit and other cities. Many of their clients were Vietnam veterans, tens of thousands of whom had become addicted to opium overseas. YBI’s crucial innovation was to distribute their product through a network of hard-to-prosecute juveniles, “corner boys” as young as 12 years old. They were also among the first to use limitless violence to terrorize and execute rivals. As the auto industry collapsed, the market for heroin grew more and more robust. By the mid-’80s, police activity had loosened the grip of YBI’s founders; by that time, though, the corner-boy and murder-the-competition model had spread to every major city in the United States.
And then came crack. Crack democratized the consumption of cocaine by providing a cheap and easy delivery system—smoking—for a highly addictive, high-demand product. Economists have labeled crack a “technological shock,” comparing the dislocations it triggered to the impact of computer chips, or mechanized agriculture. Unlike computer chips and mechanized agriculture, however, crack’s impact was entirely negative. This was not so much because crack was physically harmful—though it was—but more because it was illegal, and highly profitable. Within years of its introduction, the homicide rate for young black males had doubled. The inner city experienced a spike in weapons arrests, fetal deaths, low-birth-weight babies, and children in foster care. Between 1984 and 1994, the death rate for young black males reached 1 percent—double the rate of soldiers fighting in Iraq. A small part of this was caused by crack overdoses. A very large part was caused by a homicidal dialectic of black-market violence and state-sponsored reprisal, a dynamic sustained by popular hysteria and irresponsible media.
The media had never met a story they liked as much as crack, which involved gangs, guns, scary minorities, urban poverty, addiction, and, crucially, babies. Fetuses incubated in crack-exposed wombs were supposed to furnish a generation of “superpredators”—brain-damaged reprobates who wouldn’t be able to tell right from wrong. Although we now know the “crack baby” is a mythical creature—children of crack addicts do not exhibit developmental problems above and beyond those normally experienced by children whose fathers are dead or in prison—the image set off a moral panic in the 1980s, leading the country to begin the unusual practice of incarcerating large numbers of women. In 1986, two months after college basketball star and number two NBA draft pick Len Bias died of an ordinary cocaine overdose erroneously pinned on crack, Newsweek declared crack the biggest story since Watergate and Vietnam. Nancy Reagan was interested in crack, too, and the White House spent $2 billion on equipment and personnel to fight the epidemic, including staff hired to amp up anxiety about the drug among the press.
In the 1990s, the action shifted to the states, twenty-four of which enacted some version of a “habitual offender law,” more colloquially known as a “three strikes” provision. Even more than mandatory minimum sentences for drug offenses, three strikes laws have been responsible for geometric growth in the prison population. Though details vary depending on where you look, the vengeful theory underpinning the laws is universal: repeat offenders need to be removed from society. As a result, defendants have been given life sentences, which cost taxpayers as much as $1 million, for crimes as minor as stealing golf clubs from a sporting goods store or videotapes from Walmart. By 2003, 127,677 Americans were serving life sentences, an 83 percent jump in eleven years.
As of 2005, the last time a census was taken, there were 1,821 prisons in the country. Maine had just seven, while Texas had 132. Of these 1,821 prisons, 347 were maximum security. Most countries don’t have “supermax” prison facilities like we have in the US, where Alcatraz model of remote, nightmare fortress has become increasingly popular with the passage of time. Inmates in maximum security facilities are more vulnerable to rape, which may seem counterintuitive. The risk of rape, though, increases as prisoners lose control over freedom of movement. In minimum security prisons, it’s easier to find protection in a crowd. On the other hand, maximum security prisons are also distinguished by their willingness to put inmates into solitary confinement for extended periods of time, sometimes decades. Many psychologists now believe that such a long period in solitary inevitably leads to insanity. On the plus side, those prisoners will not get raped, or at least not by inmates.
Meanwhile, back on the battlefield of the war on drugs, crack continues to be consumed in nearly the same quantities as in 1990. But a huge price drop destroyed the handsome margins of the crack trade and virtually eliminated the violence associated with it. The crack-crime epidemic is gone, but the incarceration complex it fomented lives on. As a result, one in three black baby boys can expect to spend part of his life in prison.
Once you go to prison, you never really come back. Beyond incarceration’s immediate physical and mental horrors, after being convicted of a felony, your public life is functionally over. In many states, you won’t be able to vote or sit on a jury. You won’t be eligible for public housing or food stamps. You’ll find it very difficult to attend a college, and may find it nearly impossible to get a job—like everyone else, educators and employers discriminate against ex-cons.
Finding a job is a particular problem, not only because criminals often leave prison with a large amount of debt—from court fees, conviction penalties, probation fines, and especially from child support bills, which continue to accumulate while convicts are in prison—but also because steady employment is itself often a condition of parole: a diabolical catch-22. As scholars have noted, the situation calls to mind the “vagrancy” laws passed in the South in the wake of reconstruction, which made it illegal to be unemployed while black vagrantswere arrested and forced back onto plantations, this time as convicts rather than slaves. An ex-con who fails to land a job may end up back in prison for violating parole. Since service-oriented occupations are usually out of the question, ex-cons are often forced to seek industrial and construction jobs far from urban centers. This puts a large number of people in the position of having to take long, expensive taxi rides to show up for low-wage jobs that don’t even cover transportation costs.
The United States now spends some $200 billion on the correctional system each year, a sum that exceeds the gross domestic product of twenty-five US states and 140 foreign countries. An ever-increasing share of domestic discretionary spending, it would seem, is devoted to building and staffing earthly hells filled with able-bodied young men who have been removed from the labor force. If we added up all the money federal, state, and local governments invest in the poorest zip codes through credits and transfer payments—food stamps, Medicaid, teacher salaries, et cetera—and balanced that against all the value the government extracts from those zip codes through sin taxes, lotteries, and the incarceration complex, we might well conclude that the disinvestment outweighs the investment. Any apparent gains made in the last thirty years in narrowing the employment and education gap between African Americans and whites vanishes once you include the incarcerated population. Before asking the government to spend a fortune improving student-to-teacher ratios, it may be prudent to first ask the government to stop devoting public resources to ripping the heart out of inner-city economies.
Of course, not everyone has made out badly from the country’s prison-construction binge. Telephone companies run up impressive profits from prisoners forced to call collect. Defense contractors have signed lucrative contracts selling paramilitary equipment to local law enforcement agencies. Rural communities have benefited most of all. Not only does the criminal justice sector employ 2 million people, including more than 500,000 correctional officers, most of them in rural areas, it also helps to inflate the local population of prison zones for the purposes of congressional districting and social spending. Schoolchildren learn that in 1787, slave-holding states reached a compromise with free states that allowed nonvoting slaves to count as three-fifths of a human for the purposes of apportioning congressional seats. Counting a slave as a fraction of a man seems like a vivid manifestation of the way the United States dehumanized Africans. Today, thousands of people are removed from urban districts, where public money is urgently needed, and shipped upstate, where each counts for a full person. In this way, prisoners bolster the voting power of rural districts, while being unable to vote themselves. Perhaps this is the reason why, as criminal justice surveys indicate, rural whites form by far the most punitive demographic.
Certain breeds of urban dwellers benefit, too. In gentrifying sections of Brooklyn, for example, steep drops in crime, combined with the virtual depopulation of entire city blocks, has underwritten a real estate boom. In neighborhoods like Fort Greene and Clinton Hill, wealthy people with children have reaped the benefits of climbing land values from apartments they never would have bought had it not been for the removal of tens of thousands of locals from adjacent areas. Neighborhoods like Bedford-Stuyvesant show the population exchange in its purest form. As African American Brooklynites are exported upstate for involvement in petty drug crimes, twenty-somethings reared in prison towns migrate south and reoccupy the same areas vacated by prisoners. Often, of course, the new inhabitants proceed to consume and sell the very same drugs that got the previous tenants into trouble. Since they’re white, they do so with impunity.
What would it mean to “reform” the prison system? Despite the best efforts of the moneyed elite and its institutional avatar, the Republican Party, the credentialed elite that controls the White House has succeeded in making progress on multiple reformable domains, including credit markets, the health care system, and public education. These are important, high-stakes achievements, and, as we have seen, no good deed goes unpunished. But America’s incarceration crisis is not a reformable problem. It cannot be addressed by a hectoring Rahm Emmanuel, or a priggish Olympia Snowe; it will not be solved by a supercommittee, or a gang of six.
The US prison system doesn’t need reform—it needs to be abolished. Like slavery in the 19th century, and civil rights in the 20th century, prison abolition in the 21st century can only be accomplished by a popular movement as radical and uncompromising as the movement that set up the prison regime in the first place.
We can start by reevaluating our priorities. There’s no use saying that progressive goals aren’t in competition with one another. They very surely are, and criminals have lost that competition again and again, with tragic results. For decades, politicians from Nelson Rockefeller to Bill Clinton to Barack Obama have sold out criminals in order to win concessions on health care, abortion, gay rights, early education, progressive taxation, and any number of other worthy objectives. Prison abolitionists must now perform the reverse procedure—we must be ready to sacrifice the traditional progressive agenda on the altar of criminal justice. Morality, like politics, starts at the edge of Ockham’s razor: the bad can no longer be allowed to obscure the evil.
The movement to abolish the death penalty is venerable and well-funded. Although it wasn’t successful in preventing the execution of Troy Davis, it’s helped a number of inmates get off death row through DNA evidence, and has arguably had decent success in the last fifteen years in shifting public opinion away from state-led killing. Hundreds of highly qualified, well-educated people devote their lives to trying to eradicate an unethical practice and a national embarrassment.
Compared with the horrors of garden variety American incarceration, though, the death penalty can be viewed only as a distraction. An extremely small number of people are executed in the United States—fewer than thirty a year, on average, in the last three decades. But at any given moment, a full 7 million people are under some form of regular surveillance from the correctional system. More African Americans are in prison today than were enslaved in the 1850s. Back in the early ’70s, before things got really bad, the United States had a decently large and energetic prison abolition movement. Why this movement has nearly disappeared—Angela Davis, a University of California professor and former imprisoned Black Panther, is virtually the only abolitionist left—even as the prison crisis has become more severe, is difficult to answer. The timing, though, suggests that the death penalty may have something to do with it—after execution was reinstated in 1976, many activists who might have spent their lives focusing on prisons switched their attention to a narratively vivid but politically minor bugaboo.
And yet the death penalty does offer one interesting benefit, from the point of view of prison abolition, because the first question any prison abolitionist needs to answer is what we’re supposed to do with violent criminals. An important part of that answer has to be that we must simply put up with an increased level of risk in our daily lives. But what about Charles Manson? Surely something must be done to prevent Charles Manson from chopping up celebrities.
If, in the popular imagination, the primary purpose of prisons is to keep us safe from (the vanishingly small number of) people like Charles Manson, then we should simply kill Charles Manson. Prison abolitionists should be ready to advocate a massive expansion of the death penalty if that’s what it takes to move the discussion forward. A prisonless society where murderers were systematically executed and rapists were automatically castrated wouldn’t be the most humane society imaginable, but it would be light-years ahead of the status quo. (Interestingly, unlike rape, homicide has one of the lowest recidivism rates of any crime—you can only murder your wife once—suggesting that death row inmates may pose less of a security risk than other categories of offenders.)
Gun control is another area where progressive energies have been wasteful and counterproductive. “Centrists” of any persuasion will try to tell you that most people don’t actually want their fellow citizens running around with guns, but gun control appears to be one area that really has cost the Democratic Party a large number of one-issue voters over the years. In any case, you’ll have a hard time convincing anybody that we should abolish prisons and take away the community’s ability to defend itself. Even on its own terms, gun control is not a straightforwardly progressive matter. The war on guns bears important similarities to the war on drugs—both are used as pretexts for searching, arresting, and imprisoning ethnic minorities. Gun control, like drug control, doesn’t do much to restrict supply—instead, it creates a black market for the product regulated through violence. In many states, obtaining a gun license is expensive and complex: we’ve essentially made it legal to own a gun if you’re wealthy and white, and illegal to own a gun if you’re poor and black. Years are added onto criminal sentences because unregistered guns are spotted on the premises, even if the guns have never been used. The only way to sustainably curb the supply of guns is to reduce demand for guns, and the easiest way to do that would be to legalize narcotics.
On May 23, 2011—the same day the morning papers rejoiced over another year of crime reduction—the Supreme Court ordered the State of California to release 45,000 prisoners. In a 5-to-4 decision written by Anthony Kennedy, the Court declared that overcrowding in the state’s penitentiaries had become so severe that simply existing in the system violated a prisoner’s Eighth Amendment right of freedom from cruel and unusual punishment.
As a news story, the ruling generated surprisingly little attention—a good deal less than the Court’s 2008 decision banning the death penalty for child rapists— but in legal circles it caused a panic. Antonin Scalia, in a fiery dissent, called it “the most radical injunction issued by a court in our nation’s history.” Samuel Alito predicted the ruling would generate a “grim roster of victims,” anxiously noting that the quantity of prisoners mandated for release added up to “two army battalions.” In the early ’90s, Alito pointed out, a similar order issued by a federal judge in Philadelphia liberated some 10,000 prisoners: within 18 months, 2,748 of the prisoners had been rearrested for theft, 2,215 for drugs, 1,113 for assault, 959 for robbery, 751 for burglary, 90 for rape, and 79 for murder. California, Alito suggested, should gear up for an enemy invasion.
As the prison population has expanded, the ex-prisoner population has expanded, too, rising from 1.8 million in 1980 to 4.3 million in the year 2000. Every year, 650,000 prisoners are released from American prisons. Just as new prisoners tend to come from poor, urban neighborhoods—in New York, 75 percent of inmates come from just seven neighborhoods: Harlem, Brownsville, East New York, South Bronx, South Jamaica, Bedford-Stuyvesant, and the Lower East Side—released prisoners cluster in a limited set of urban enclaves. This isn’t to say that everyone goes back to where they came from—many ex-cons, especially those who lack supportive families, specifically avoid their home neighborhoods. According to surveys, many believe they’ll be less likely to engage in renewed criminal activity with a change of scenery.
Within three years, 70 percent of released prisoners are rearrested, and half are back in prison. A large portion of these “recidivists” haven’t committed new felonies—they’ve simply violated the terms of their parole. California, which is especially adept at throwing parole violators back in prison, ends up reincarcerating two thirds of released prisoners within three years.
Of course, many released prisoners do commit new felonies, and the evidence is clear that releasing prisoners raises the crime rate, just as imprisoning criminals lowers it. The impact in both directions is relatively small, though. One study showed that during any given year in the ’90s, the net increase in the number of ex-offenders circulating in the general population accounted for 2 percent of property crimes and 2.5 percent of violent crimes. The effect was higher for murder and robbery, though. Fourteen percent of murders and 7 percent of robberies were attributable to prisoner releases in 1994. And that’s only the new releases—the fraction of murders committed by the entire ex-offender population was much higher. On the other hand, released prisoners are subject to considerably more state surveillance than most people, and while it’s safe to assume that ex-cons commit crimes at a higher rate than those who have never seen the inside of a prison, they are also more likely to be investigated and rearrested than someone who was never on the police’s radar to begin with. Released prisoners also have fewer noncrime options: getting a job without family or social connections is virtually impossible for them.
The prospects for California’s released prisoners, therefore, are not good. Neither are the prospects for the state. The likelihood is high that most of these released prisoners will be back in jail within three years, and California may very well be back in court for overcrowding its prisons. (The state is hoping to preempt the issue by transferring inmates to county jails in lieu of early release, but it isn’t clear that crowded jails are any more likely to survive judicial scrutiny than crowded prisons.) To reduce its prison population, California will have to do more than release prisoners—it will have to stop creating new ones.
When evaluating the impact of the war on drugs on the country’s incarceration crisis, it helps to keep in mind a statistical nuance: a large fraction of prison sentences are for nonviolent drug offenses, but a small fraction of the prison population is in for a nonviolent drug crime. This is because, despite the harshness of mandatory minimum sentences, drug criminals don’t spend nearly as much time in prison as other kinds of criminals.
It’s tempting to believe that we could free most of the prison population simply by liberating nonviolent drug offenders. Nonviolent drug offenders are “innocent”; they haven’t hurt anybody. Advocating on behalf of criminals is much easier when they haven’t committed any violent crime. And yet this misses the point of the prison crisis: you cannot relieve the suffering of the prison population without increasing safety risks for the rest of us.
And increasing those risks, from a moral standpoint, is the right thing to do.
What would happen to California’s criminal community, once freed from the ping-pong of prison and parole? They would continue being criminals, in all likelihood, breaking and entering, stealing cars, selling drugs, and—very occasionally—taking lives. This would be difficult and painful, both on the individual level for the victims and on a social level more broadly; economic and cultural shocks accompany any kind of population exchange, and a massive jailbreak will likely result in a period of strain and disorganization for inner cities. Over time, though, things will settle. There will be more fathers around, and more state money for things like education and health care.
The incarceration complex, like a civil war or foreign occupation, institutionalizes economic dislocation, making chaos and uncertainty a defining feature of the life cycle. Crime, on the other hand, causes disruptions that are smaller and more manageable. Despite the near-infinite capacity of the human spirit to deal with routine desperation, the residents of East Harlem will never “adapt” to a community life structured around prisons, because uprooting communities is the very function and purpose of incarceration. The capacity of New York residents to absorb higher levels of crime in daily life, on the other hand, is nowhere near its limit.
In all likelihood, dismantling or sharply contracting America’s prison system would make the country feel more like the United Kingdom. In the UK, only 3 percent of crimes result in a prison sentence. In the United States, the figure is closer to 18 percent. London is a more dangerous city than New York. Your likelihood of getting robbed or assaulted is higher there. For educated, middle-class whites unlikely to get in trouble with the police, London is, in some ways, a tougher place to raise children.
On the other hand, life spans are longer in the UK; social mobility is more fluid; racial disparities are smaller; the AIDS crisis is better-controlled; and neighborhoods are more cohesive. Despite some slippage in the last decade, the UK never had the prison boom we experienced in the US—Margaret Thatcher didn’t allow it. Confronted with a crime and drug abuse rate that is high by European standards, London attacked the problem on the front end, installing thousands of CCTV security cameras and hiring thousands of bobbies to discourage lawbreaking. Compared to the United States, they do little in the way of punishment.
Abolishing prisons and releasing all the prisoners would amount to a deregulation of criminal punishment. It would mean letting the private sector determine how best to prevent ourselves from getting robbed. In high finance, the laissez-faire approach has proved to be a disaster; for petty crime, it would be a boon.
If ever there were a time to launch a coordinated assault on the prison-industrial complex, the time is now. Budgets are strained, voters are angry, and crime is low. The Tea Party is in the midst of convincing everyone that government is the enemy— and so it is, in the field of criminal justice.
Popular resentment against an authoritarian state shouldn’t be denied or pooh-poohed— it should be seized and marshaled toward progressive ends. The prison crisis was created by centrists. Limited reforms and immoral moderation will not end the crisis. Prisoners and ex-cons, the most abused population in United States, will have to rely on political extremists, on both the left and the right, to turn the page on what will one day be recalled as one of American history’s darkest chapters.
Image: Administrative Maximum Facility (ADX), Florence, Colorado.