Raze the Carceral State

Raze the Carceral State

We need to resist the belief that the only way to end mass incarceration is to tackle the root causes of crime.

With a counter-argument by Michael Javen Fortner.

Sussex State Prison, home to Virginia's death row (Bill Dickinson / Flickr)
This article is part of  Dissent’s special issue of “Arguments on the Left.” To read its counterpart, by Michael Javen Fortner, click here.

We need to resist the belief that the only way to raze the carceral state is to tackle the root causes of crime—massive unemployment, massive poverty, and high levels of social, political, and economic inequality. The U.S. penal system is the result of policies that can be dismantled in several years even if these structural determinants of crime persist. As a panel of experts from the National Academy of Sciences recently concluded, changes in public policies, not rising crimes rates, were the main engines of the decades-long spike in the incarceration rate.

An overemphasis on the structural causes of crime overshadows the fact that about half of the people in state prisons are serving time today for nonviolent offenses, many of them property or drug offenses that would not warrant a sentence in many other countries. Many others are serving savagely long sentences for violent offenses even though they no longer pose serious threats to public safety.

Comprehensive changes in penal policy, not an assault on structural problems and the root causes of crime, have been the main drivers of successful decarcerations elsewhere, including Finland in the 1960s and ’70s, Germany in the 1980s, and California under Governor Ronald Reagan. Support for reentry is an important and noble cause. But the focus of reform needs to expand way beyond the people who are being released. Reducing the number of people who are sent to jail or prison in the first place and slashing sentence lengths and time served for future and current prisoners must be top priorities. Criminal justice reform should be guided by the principle that lengthy sentences should be reserved for people who continue to pose major threats to public safety.

To this end, we need to repeal mandatory minimums, habitual offender laws (including three-strikes statutes), and truth-in-sentencing statutes (which require people to serve most of their sentence before being considered for release). We also need to end the war on people convicted of sex offenses, a capacious category that can encompass anything from public urination, to “Romeo-and-Juliet” laws that penalize underage sex, to the rape of a child. The expansive and counterproductive system of registration, notification, and civil commitment laws that has turned people convicted of sex offenses into lifelong outcasts needs to be dramatically scaled back. We also need to overhaul and depoliticize the parole process to insure that every incarcerated person is entitled to a meaningful parole review, including everyone serving a life sentence.

The limited sentencing reforms enacted so far have been directed almost exclusively at the non, non, nons—that is, the non-serious, nonviolent, non-sex-related offenders. Many government officials and policy makers have fiercely resisted applying these modest reforms retroactively to people already serving time. Furthermore, stiffening the penalties for other offenses has been a popular quid pro quo for modest reductions in the penalties for the non, non, nons.

Comprehensive sentencing reform will not singlehandedly rectify the enormous harm caused by the carceral state. The degrading and abusive conditions that prevail in too many U.S. detention centers, jails, and prisons must be alleviated. The criminalization of immigration policy as a consequence of the creeping merger of law enforcement and immigration enforcement systems needs to be reversed. The widespread practice of condemning people with criminal records to civil death must cease so that successful reentry is truly possible. A criminal conviction should no longer be an obstacle to voting, jury service, or accessing public benefits, such as food stamps, public housing, and student loans. The expansive employment and licensing restrictions that deny those with criminal convictions jobs and occupational licenses should be much more narrowly tailored and reserved for specific and compelling public safety concerns.

The polarized political atmosphere in Washington and in many state capitals is a convenient foil to excuse why so little progress has been made in criminal justice reform. It justifies the pursuit of a narrow penal agenda premised on the three Rs—reentry, justice reinvestment, and reducing recidivism—that prevails among elite policy makers today.

Claims of legislative gridlock direct attention away from many non-legislative means available to begin razing the carceral state. For all the talk of how mandatory minimums and mandatory guidelines built the carceral state, individuals serving on the frontlines of the criminal justice system retain considerable discretion to choose a less punitive path. President Obama and state governors have enormous powers to grant executive clemency that they have been largely unwilling to wield. Federal judges have broad discretion to depart from the sentencing guidelines. The federal Bureau of Prisons could “eliminate thousands of years of unnecessary incarceration through full implementation of existing ameliorative statutes,” according to a 2008 report by the American Bar Association. By changing their approach to charging and sentencing, prosecutors could substantially reduce incarceration rates even without any statutory changes.

The specific changes needed in penal policy to slash the incarceration rate are no mystery. The greatest challenge is to create a durable political movement to undo the massive injustices of the carceral state and not just nibble around its edges.

Framing the problem of the carceral state as a largely dollars-and-cents issue—as Newt Gingrich, Grover Norquist, and other leading conservatives identified with the Right on Crime coalition have done in concert with some leading liberals—will not sustain the political momentum needed over the long haul to slash the prison population and overhaul the criminal justice system. It slights the compelling civil and human rights arguments that the carceral state raises as it removes wide swaths of blacks, Latinos, the poor, immigrants, and other historically disadvantaged groups from their neighborhoods.

Binding the movement against mass incarceration to the purported fiscal burden of the carceral state helps reinforce the claim that eliminating government deficits and government debt should be the country’s top priority. It obscures the fact that successful decarceration will cost money. The people reentering society after prison need significant educational, vocational, housing, medical, and economic support to ensure that the communities they are returning to are not further destabilized by waves of former prisoners.

All the focus on the three Rs and the Right on Crime coalition has overshadowed the growing political ferment at the grassroots level for a much more ambitious reform agenda to raze the carceral state. The recent wave of high-profile police killings and deaths in custody of people of color—Michael Brown in Ferguson, Eric Garner on Staten Island, Walter Scott in North Charleston, Freddie Gray in Baltimore, Sandra Bland in Waller County, and the list goes on—has stoked that ferment.

With comprehensive changes in penal policy and the culture of law enforcement, dramatic cuts in the incarceration rate are achievable over the next few years. But high levels of violent and serious crime in poor communities will continue to be a major social problem. Alleviating the poverty and income inequality that are at the root of extraordinarily high levels of violent crime in certain communities will take some time. In the meantime, no compelling public safety concern justifies keeping so many people from these communities locked up or otherwise ensnared in the carceral state.

Marie Gottschalk is a professor of political science at the University of Pennsylvania. Her latest book is Caught: The Prison State and the Lockdown of American Politics (Princeton University Press, 2016).

This article is part of  Dissent’s special issue of “Arguments on the Left.” To read its counterpart, by Michael Javen Fortner, click here.

Join us on December 10 at the Murphy Institute in New York City for a live version of this debate.