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Building the Big House American Institutions and the Rise of Mass Incarceration, 1970 — 1990

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Building the Big House American Institutions and the Rise of Mass Incarceration, 1970 — 1990 Building the Big House American Institutions and the Rise of Mass Incarceration, 1970 — 1990 by David Dagan A dissertation submitted to Johns Hopkins University in conformity with the requirements for the degree of Doctor of Philosophy. Baltimore, Maryland January 2019 © 2019 David Dagan All rights reserved i Abstract This dissertation argues that mass incarceration in the United States occurred through a process of fragmented state-building. Institutional fragmentation both spurred the political will and critically enabled the bureaucratic capacity to imprison at a mass scale. By fragmentation, I mean both federalism (the division of authority among levels of government) and the separation of powers (the provision of independent political bases for different actors within a single level of government). The argument has three major parts. First, the local arena played a critical role in the rise of law-and-order politics, as fragmentation carved up the American polity in ways that amplified punitive impulses and muffled competing voices. Second, institutional fragmentation created a type of moral hazard by allowing actors with an interest in ramping up punishment to do so with little or no regard to the problem of prison crowding. When the crowding problem did become salient, it was in a crisis context that biased politicians toward underwriting mass imprisonment by building more cells. Third, prosecutors played a critical role in this fragmented state-building by out-organizing and out-lobbying rival actors in the criminal-justice system. Using archival documents and news accounts, the dissertation offers a detailed case study of these dynamics at work in Pennsylvania. It also examines the federal politics of criminal justice during the Reagan administration and the emergence of professional associations of prosecutors. Advisors: Adam Sheingate and Steven Teles Secondary readers: Angus Burgin, Meredith Greif, Robert Lieberman, Katrina McDonald ii Acknowledgements I am grateful to Adam Sheingate and Steven Teles for their support, advice, and mentorship throughout the project. Kimberley Johnson generously agreed to serve as an external mentor through the University of Virginia’s Miller Center, and I am grateful to her for always being willing to help — by phone, e-mail, and in person, even traveling to a conference in Charlottesville to comment on my work. Lisa Miller was also always generous with her time and valuable comments, and kindly helped me track down hearing records from the Pennsylvania General Assembly. I also received helpful input from Charlton Copeland, Alec Ewald, Devin Fernandes, Lauren Foley, Marie Gottschalk, Andrew Kelly, Danny Schlozman, David Alan Sklansky, and Emily Zackin. Critical archival support came from Yunshan Ye at the Johns Hopkins libraries, Jennifer Mandel and other archivists at the Reagan Library in Simi Valley, Christina Jones at the National Archives and Records Administration in College Park, and Kim Nieves and Roe Figazzotto at the Administrative Office of Pennsylvania Courts. The Miller Center provided me with a year of research support and an inspiring intellectual community through its National Fellowship. This project would not have been possible without the support and patience of my family — Benjamin, Yonatan, and especially Rebecca. iii Table of Contents 1. Introduction 1 2. “This is Not a War on Crime” 52 LEAA, the Reagan Administration, and Mass Incarceration 3. Philadelphia and the Local Roots of Law and Order 72 4. Cost and Crisis in Pennsylvania 99 5. “Chief Law Enforcement Officer” 131 Professional Competition and the Rise of the American Prosecutor 6. Conclusion 164 Bibliography 197 Curriculum Vitae 204 iv List of Tables 1-1 “Fragmentation in a typical urban criminal-justice system” 25 1-2 “Control of Pennsylvania government” 39 1-3 “State legislative races, 1968 — 1988” 42 1-4 “White, non-Hispanic share of population” 45 1-5 “Jail and prison population growth, 1983 to 1999” 47 2-1 “Federal share of state and local criminal-justice spending” 55 v List of Figures 1-1 “Combined jail/prison incarceration rate” 37 1-2 “Partisan control in Pennsylvania Legislature” 40 1-3 “Citizen ideology: Pennsylvania v. 50-state mean” 44 2-1 “Incarceration per 100,000 in state and federal prisons” 56 3-1 “Murder rates per 100,000 residents, 1958-1989” 75 3-1 “Philadelphia murder rate and political milestones” 76 3-3 “Felony cases dismissed, Philadelphia” 94 3-4 “Felony guilty pleas and caseload, Philadelphia” 95 4-1 “Institutional capital outlay expenditures…” 104 4-2 “Pennsylvania: Violent-crime rate and homicide rate” 107 4-3 “Pennsylvania Department of Corrections population” 110 vi 1. Introduction In 1833, Gustave de Beaumont and Alexis de Tocqueville submitted their report “On the Penitentiary System in America” to the French government. Though it has been overshadowed by Tocqueville’s Democracy in America, the prison study was the actual purpose for which the duo had been sent to the United States. Beaumont and Tocqueville began the report by preparing their continental readers to expect complexity and contradiction in the American system. “By the side of one state, the penitentiaries of which might serve as a model, we find another, whose jails present the example of every thing which ought to be avoided,” they observed. They added that such differences showed up not just across states, but within single states such as Pennsylvania, where modern penitentiaries existed alongside archaic dungeons. “These shocking contradictions proceed chiefly from the want of unison in the various parts of government (within a state),” they wrote. “Being almost as independent of each other, as the states themselves, it results that they hardly ever act uniformly and simultaneously.”1 The result, Beaumont and Tocqueville found, was that “the best and the most 1 Gustave de Beaumont, Francis Tocqueville, and Francis Lieber, On the Penitentiary System in the United States and Its Application in France (Philadelphia: Carey, Lea and Blanchard, 1833), 14, http://archive.org/details/onpenitentiarysy00beauuoft. In Democracy in America, Toqueville distinguishes between national and local interests and endorses the decentralized American approach to the latter. Alexis de Tocqueville, Phillips Bradley, and Henry Reeve, Democracy in America, vol. 1 (New York: Vintage Books, 1954), 61–101 (Ch. V) . 1 vicious prisons are found in the United States.”2 Nearly 200 years later, their judgment would likely be less mixed, and less positive. Regional differences remain important, but American prisons and jails have largely converged on a punitive mean that includes what is likely the world’s highest incarceration rate; notoriously brutal conditions of confinement; and persistent resort to extreme penalties such as capital punishment and life without parole.3 And while Beaumont and Tocqueville had little to say about the racial disparities they observed in prisons, the problem remains glaring and central to debates today.4 Why did the “land of the free” become the jailer to one-quarter of the world’s 2 In fact, Beaumont and Tocqueville endorsed only with caution even the “progressive” prisons that relied on strict discipline and isolation, such as the penitentiaries of New York and Pennsylvania. In these, they found a model of “despotism” analogous to that which Tocqueville later diagnosed as a threat to American freedom. Beaumont, Tocqueville, and Lieber, Penitentiary, 47. Alexis de Tocqueville and Henry Reeve, Democracy in America, vol. 2 (New York, N.Y.: D. Appleton and Co., 1904), 814 Ch. XXXV. Richard Avramenko and Robert Gingerich, “Democratic Dystopia: Tocqueville and the American Penitentiary System,” Polity 46, no. 1 (January 1, 2014): 56–80. 3 James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe (Oxford University Press, USA, 2005). Marc Morjé Howard, Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism (Oxford, New York: Oxford University Press, 2017). “World Prison Brief” (Institute for Criminal Policy Research), accessed August 7, 2018, http://www.prisonstudies.org. Incomplete data make it difficult to know if authoritarian regimes such as China or North Korea have higher rates of incarceration. In 2014, the high range of a United Nations- reported estimate for the North Korean prison population, including ordinary and political prisoners, was 200,000, yielding a total incarceration rate of 125.6, far below U.S. levels. In any case, comparison to such regimes is of little value because their practices are qualitatively different. The U.N. conservatively estimates an annual death rate of 10 percent in North Korea’s political prisons, and estimates as many as 400,000 dead over a thirty-year period. American jails and prisons are indeed harsh, but they still exist in a different universe. “Report of the Detailed Findings of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea” (United Nations Human Rights Council, February 7, 2014), 226, 245–46. 4 Beaumont and Tocqueville argued that African-Americans were over-represented in prisons because they were more likely to commit crimes, a condition they claimed grew out of the effects of slavery. Beaumont, Tocqueville, and Lieber, Penitentiary, 60–70, 161, 240, 263–64. 2 prisoners? Why did this system, so disproportionately punitive toward African- Americans, develop in the wake of the Civil Rights movement? Certainly the answer is rooted in the perfect storm
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