Mass Incarceration on Trial

The United States has the highest incarceration rate of any country in the world. It has come down a sliver over the past six years: the all-time peak rate was in 2008, with 754 prisoners per 100,000 population.

As of 2013, that figure had fallen to 716, but the U.S. has retained its carceral supremacy, even so. While home to roughly 5 percent of the global population, it holds 25 percent of the world’s inmates. And the recent decline in the rate of incarceration – down 3 percent, across 5 years – looks especially underwhelming in the context of the last few decades. The rate of imprisonment held fairly steady in the U.S. between 1925 and 1975, apart from a modest and not too surprising increase for a while in the late 1930s. It then grows an astonishing 500 percent between 1975 and 2000, before starting to slow down (but still to grow!) in the early years of the new millennium.

Growth of that kind doesn't just happen, somehow, through the operation of blind forces. Prisons exist, operate, and expand according to decisions that some people make -- and that most of the rest of us acquiesce in, if only through the luxury of not paying that much attention.

Please note use of the expression “most of us,” not “most of you,” since there is no piece of moral high ground to which I can stake any claim. It is easy (unless you are Simone Weil, perhaps) to learn some troubling statistics from the news and then not think about them again. Human beings invented statistics in an effort to understand and control the world, but they are also pretty good at keeping reality at a distance.

In his new book Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America (New Press), Jonathan Simon fits the numbers into a frame that renders them disturbingly intelligible. In journal articles and a previous monograph, Simon, who is a professor of law at the University of California at Berkeley, has argued that the metaphor of a “war on crime” has become entirely too central to public life in the United States. Besides pervasive surveillance cameras, unrelentingly sensational mass media (“if it bleeds, it leads”), political candidates uniformly vowing to be “tough on crime,” and an essentially militarized police presence in some urban neighborhoods, we have gotten used to a prison-construction boom with economic effects described in a report prepared for Congress four years ago:

“About 770,000 people worked in the corrections sector in 2008. The U.S. Labor Department expects the number of guards, supervisors, and other staff to grow by 9 percent between 2008 and 2018, while the number of probation and parole officers is to increase by 16 percent. In addition to those working directly in institutions, many more jobs are tied to a multi-billion dollar private industry that constructs, finances, equips, and provides health care, education, food, rehabilitation and other services to prisons and jails. By comparison, in 2008 there were 880,000 workers in the entire U.S. auto manufacturing sector.”

Simon does not refer to those numbers, but they tend to confirm his larger point that long-term, mass incarceration has become routinized and integrated into the routine functioning of American society -- in a way that it simply was not, say, forty years ago.

Simon depicts the earlier penal system as combining the carrot of  “rehabilitation’s promise to treat and release most offenders, paroling those with good prospects for going straight” with the stick of “imposing long prison sentences on the incorrigible.” This strategy of “selective incapacitation” (identifying the irreformable worst of convicted criminals and neutralizing their threat by removing them from society) required the practice of a certain amount of discretion and expertise on the part of the authorities.

High crime rates in the 1970s and early 1980s -- combined with a punitive spirit fostered by “get-tough” politicians, not to mention a popular culture well-stocked with both brutal villains and righteous vigilantes – created fertile ground for what Simon calls “total incapacitation.” This targeted not just individuals but masses of those assumed likely to become repeat offenders, unless removed from society and securely warehoused. Any hope of reducing crime “lay in arresting as many people as possible, making their conviction a forgone conclusion, and giving them long, inflexible prison sentences.”

An element of racial bias was involved, with the Anti-Drug Abuse Act of 1986 being the most overt example. In it, Congress mandated a minimum sentence of five years for possessing of five grams of crack cocaine, while someone caught with five hundred grams of powder cocaine received the same penalty. (The only significant difference between the drugs was that crack use tended to be in African-American and Latino neighborhoods.)

But Simon shows that the effects of mass incarceration and total incapacitation have gone beyond exacerbating the more familiar social injustices. About a third of felony convictions in California are for crimes routinely called “non-violent, non-sexual, and non-serious,” such as insurance fraud or the theft of property worth more than $400. Packing such offenders in with murderers and rapists until prisons are operating at 200 to 300 percent the capacity for which they were designed is not a self-evidently reasonable practice. And the extremes of overcrowding and neglect of prisoners with serious health problems – including severe mental disorders – drive prisons into “a perpetual state of emergency.”

Any given crisis, Simon writes, “whatever its nature, results in an intensification of discipline and control to the point of a complete shutdown of all other operations of the prison until the danger has been ended.” It sounds like a disaster waiting to happen, or rather one that’s never going to end.

A glimmer of hope appeared in 2009, in the decision of a three-judge federal appeals panel in the matter of Coleman-Plata v. Schwarzenegger (a case consolidating two earlier challenges to California’s penal norms). The result was a reduction of overcrowding and a demand for adequate healthcare for seriously ill prisoners. The Supreme Court upheld the appeals court's decision in 2011, with the majority making clear its opinion that the status quo had been in violation of the Eighth Amendment protection from cruel and unusual punishment.

In an email discussion, Simon elaborated on his sense of where things stand now. Much of it was no doubt expressed in his account of the legal decisions, but I was grateful for the clarification.

“The public is already shifting its thinking about imprisonment,” he told me, “(or more precisely, the public is being reconstituted generationally by Americans less traumatized by fear of crime than those of use who came of age in the 1970s) which is why there has been little if any political traction in opposing the fairly mammoth prison population drop in California.”

At the same time, a shift in attitude does not necessarily equal an active push for change: “I don't think we should expect to see a mass movement against prisons for two reasons. While human rights have very broad support, it tends to be shallow, few are motivated enough by human rights causes to become political activists (compared with juicier politics around culture war issues like guns or abortion).  Second, most people feel that prisons are a necessary evil.  But when people learn about the inhumane conditions that persisted in California for more than a decade they are genuinely disturbed and recognize that inhumane conditions undermine the moral legitimacy and public safety purpose of prisons.”

It’s unlikely that the U.S. will lose its preeminence as home to the world's largest inmate population -- not any time soon, certainly. But at least the idea of it as normal, let alone acceptable, is starting to dissolve.