Incarceration & Social Inequality

Dædalus coming up in Dædalus:

the economy Robert M. Solow, Benjamin M. Friedman, Lucian A. Bebchuk, Luigi Dædalus Zingales, Edward L. Glaeser, C.A.E. Goodhart, Barry Eichengreen, Nolan McCarty, Keith T. Poole, Thomas Romer, Howard Rosenthal, Peter Temin, Jeremy C. Stein, Robert E. Hall, and others Journal of the American Academy of Arts & Sciences Summer 2010 the meaning of Gerald Early, Henry Louis Gates, Jr., Glenda R. Carpio, David A.

minority/majority Hollinger, Jeffrey B. Ferguson, Hua Hsu, Daniel Geary, Lawrence Summer 2010: on mass incarceration Jackson, Farah Grif½n, Korina Jocson, Eric Sundquist, Waldo Martin, Werner Sollors, James Alan McPherson, Robert O’Meally, Jeffrey B. on mass Glenn C. Loury Introduction 5 Perry, Clarence Walker, Wilson Jeremiah Moses, Tommie Shelby, and incarcer- & Bruce Western others ation Bruce Western Incarceration & social inequality 8 & Becky Pettit race, inequality Lawrence D. Bobo, William Julius Wilson, Michael Klarman, Rogers Robert J. Sampson Punishment’s place: the local concentration & culture Smith, Douglas Massey, Jennifer Hochschild, Martha Biondi, Roland & Charles Loeffler of mass incarceration 20 Fryer, Cathy Cohen, James Heckman, Taeku Lee, Pap Ndiaye, Alford Candace Kruttschnitt The paradox of women’s imprisonment 32 Young, Marcyliena Morgan, Richard Nisbett, Jennifer Richeson, Jeffrey Fagan The contradictions of juvenile crime Daniel Sabbagh, Roger Waldinger, and others & punishment 43 Marie Gottschalk Cell blocks & red ink: mass incarceration, plus the modern American military, protecting the Internet as a the great recession & penal reform 62 public commons, public opinion &c. Loïc Wacquant Class, race & hyperincarceration in revanchist America 74 Jonathan Simon Clearing the “troubled assets” of America’s punishment bubble 91 Nicola Lacey American imprisonment in comparative perspective 102 what Mark A.R. Kleiman Toward fewer prisoners & less crime 115 Robert Weisberg The dangers of Pyrrhic victories & Joan Petersilia against mass incarceration 124 Glenn C. Loury Crime, inequality & social justice 134

poetry Etheridge Knight A Wasp Woman Visits a Black Junkie in Prison 141 Lucille Clifton cruelty. don’t talk to me about cruelty & what spells raccoon to me 143

U.S. $13; www.amacad.org Cherishing Knowledge · Shaping the Future

Inside front cover: Inmates housed in a gymnasium at California State Prison in Los Angeles, August 8, 2006. Decades of tough sentencing laws and a lack of funding for rehabilitative programs have led to acute overcrowding in U.S. prisons. In California, where third-strike offenders face minimum sentences of twenty-½ve years to life, the state’s prisons are among the most crowded in the nation. Photograph © California Department of Correc- tions & Rehabilitation. Glenn C. Loury and Bruce Western, Guest Editors D Phyllis S. Bendell, Managing Editor and Director of Publications Micah J. Buis, Associate Editor Erica Dorpalen, Editorial Assistant

Board of advisers

Steven Marcus, Editor of the Academy

Rosanna Warren, Poetry Adviser

Committee on Publications Jerome Kagan, Chair, Jesse H. Choper, Denis Donoghue, Gerald Early, Linda Greenhouse, Jerrold Meinwald; ex of½cio: Leslie Berlowitz

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Journal of the American Academy of Arts & Sciences

Nineteenth-century depiction of a Roman mosaic labyrinth, now lost, found in Villa di Diomede, Pompeii

Dædalus was founded in 1955 and established as a quarterly in 1958. The journal’s namesake was renowned in ancient Greece as an inventor, scientist, and unriddler of riddles. Its emblem, a maze seen from above, symbol- izes the aspiration of its founders to “lift each of us above his cell in the labyrinth of learning in order that he may see the entire structure as if from above, where each separate part loses its comfortable separateness.” The American Academy of Arts & Sciences, like its journal, brings together distinguished individuals from every ½eld of human endeavor. It was chartered in 1780 as a forum “to cultivate every art and science which may tend to advance the interest, honour, dignity, and happiness of a free, independent, and virtuous people.” Now in its third century, the Academy, with its nearly ½ve thousand elected members, continues to provide intellectual leadership to meet the critical challenges facing our world. Dædalus Summer 2010 Subscription rates: Electronic only for non- Issued as Volume 139, Number 3 member individuals–$41; institutions–$108. Canadians add 5% gst. Print and electronic © 2010 by the American Academy for nonmember individuals–$46; institu- of Arts & Sciences tions–$120. Canadians add 5% gst. Outside Cell blocks & red ink: mass incarceration, the great the United States and Canada add $23 for recession & penal reform postage and handling. Prices subject to change © 2010 by Marie Gottschalk without notice. Class, race & hyperincarceration in revanchist America Institutional subscriptions are on a volume- © 2010 by Loïc Wacquant year basis. All other subscriptions begin with A Wasp Woman Visits a Black Junkie in Prison the next available issue. © 1986 by Etheridge Knight Single issues: current issue–$13; back issues cruelty. don’t talk to me about cruelty and for individuals–$16; back issues for institu- what spells raccoon to me tions–$32. Outside the United States and © 1987 by Lucille Clifton Canada add $6 per issue for postage and han- Editorial of½ces: Dædalus, Norton’s Woods, dling. Prices subject to change without notice. 136 Irving Street, Cambridge ma 02138. Claims for missing issues will be honored free Phone: 617 491 2600. Fax: 617 576 5088. of charge if made within three months of the Email: [email protected]. publication date of the issue. Claims may be Library of Congress Catalog No. 12-30299 submitted to [email protected]. Mem- bers of the American Academy please direct all isbn 978-0-262-75110-0 questions and claims to [email protected]. Dædalus publishes by invitation only and as- Advertising and mailing-list inquiries may sumes no responsibility for unsolicited manu- be addressed to Marketing Department, mit scripts. The views expressed are those of the Press Journals, 55 Hayward Street, Cambridge author of each article, and not necessarily of ma 02142. Phone: 617 253 2866. Fax: 617 253 the American Academy of Arts & Sciences. 1709. Email: [email protected]. Dædalus (issn 0011-5266; e-issn 1548-6192) Permission to photocopy articles for internal is published quarterly (winter, spring, summer, or personal use is granted by the copyright fall) by The mit Press, Cambridge ma 02142, owner for users registered with the Copyright for the American Academy of Arts & Sciences. Clearance Center (ccc) Transactional Report- An electronic full-text version of Dædalus is ing Service, provided that the per-copy fee of available from The mit Press. Subscription $12 per article is paid directly to the ccc, and address changes should be addressed to 222 Rosewood Drive, Danvers ma 01923. The mit Press Journals, 55 Hayward Street, fee code for users of the Transactional Report- Cambridge ma 02142. Phone: 617 253 2889; ing Service is 0011-5266/10. Address all other u.s./Canada 800 207 8354. Fax: 617 577 1545. inquiries to the Subsidiary Rights Manager, Printed in the United States of America by mit Press Journals, 55 Hayward Street, Cam- Cadmus Professional Communications, bridge ma 02142. Phone: 617 253 2864. Science Press Division, 300 West Chestnut Fax: 617 253 1709. Email: journals-rights@ Street, Ephrata pa 17522. mit.edu. Newsstand distribution by Ingram Periodicals The typeface is Cycles, designed by Sumner Inc., 18 Ingram Blvd., La Vergne tn 37086, and Stone at the Stone Type Foundry of Guinda Source Interlink Distribution, 27500 Riverview ca. Each size of Cycles has been separately Center Blvd., Bonita Springs fl 34134. designed in the tradition of metal types. Postmaster: Send address changes to Dædalus, 55 Hayward Street, Cambridge ma 02142. Peri- odicals postage paid at Boston ma and at additional mailing of½ces. Glenn C. Loury & Bruce Western

The challenge of mass incarceration in America

The proper role for the social scientist criminology, sociology, political science, in discussions of social policy is not self- economics, and law–and reflect differ- evident because the most challenging ing ideological predispositions. However, policy problems are not merely techni- all hold the common conviction that cal. Nor is policy discourse only instru- this newly emergent punishment regime mental; it is also expressive and constitutive. constitutes a formation of fundamental It sets an agenda for action, frames key signi½cance for American society; that moral judgments of a citizenry, marks its roots in the political culture are varied the boundary between civic and com- and intricate; and that there is no easy munal responsibility, conveys a narra- or straightforward path out of the policy tive of justi½cation, and establishes the ½x that we have gotten ourselves into. signi½cance of a nation’s history for The empirical contours of American in- its present-day course of public action. carceration are assessed in the four pieces Whether intended or not, public debate that begin this issue. Bruce Western of over the most basic issues (implicitly) Harvard University and Becky Pettit of answers the question, what manner of the University of Washington examine people are we Americans? This outcome the class and racial dimensions of incar- is surely true for public debate about ceration and its impact on social inequal- what may be the preeminent domestic ity. Robert J. Sampson and Charles Loef- policy issue of our time: that mass incar- fler, both of Harvard University, look at ceration is now, de facto, a central ele- data on the spatial concentration of im- ment of American social policy. prisonment in the large American city of The essays gathered in this issue of Chicago. Two subsequent essays focus on Dædalus explore the empirical contours, particular subsectors of the prison uni- the political underpinnings, and the pros- verse: Candace Kruttschnitt of the Uni- pects for reform of America’s incarcera- versity of Toronto surveys the social con- tion complex. They exemplify the poten- text of women’s imprisonment; Jeffrey tial for the social sciences to contribute Fagan of Columbia University reviews usefully to a crucial public debate. The the current state of juvenile incarcera- authors come from varied disciplines– tion in the United States. Following this assessment of the basic facts, the issue © 2010 by the American Academy of Arts turns to the political underpinnings of & Sciences America’s incarceration policies.

Dædalus Summer 2010 5 Glenn C. Over the past four decades, the Unit- the incarceration problem? These ques- Loury ed States has, by any measure, become a tions are taken up by the authors of the & Bruce Western vastly more punitive society. This expan- next set of essays in this issue. Marie on mass sion, and transformation, of penal insti- Gottschalk of the University of Pennsyl- incarceration tutions in the United States–which has vania is skeptical that the present era of taken place at every level of government economic hardship will fundamentally and in all regions of the country–is with- alter penal policies so as to reduce the out historical precedent or international long-term incarceration rate. Loïc Wac- parallel. With roughly 5 percent of the quant of the University of California, world’s population, the United States Berkeley, emphasizes the interconnect- currently con½nes about 25 percent of edness of penal policy (for poor urban the world’s prison inmates. The Ameri- minority men) and welfare policy (for can prison system has grown into a levia- poor urban minority women), arguing than unmatched in human history. This that both reflect structural changes system is not limited to law enforcement characteristic of late-capitalist society and punishment policy. It also extends to in relations between socially marginal social policy writ large, a uniquely Amer- populations and the state. Jonathan ican form of social policy at that. Simon, of uc Berkeley School of Law, These developments should be deeply develops a set of metaphors to draw troubling to anyone who professes to analogies between the “troubled assets” love liberty. America, with great armies of today’s ½nancial sector and the “trou- deployed abroad under the ½gurative bled persons” who are subjected to the banner of “Freedom,” harbors the larg- prison complex. Nicola Lacey of the est custodial infrastructure for the mass London School of Economics discusses deprivation of liberty on the planet. The American penal policy in international ½nancial costs entailed are staggering, comparative perspective, identifying dis- and the extent of human suffering en- tinguishing features of the political eco- dured boggles the mind. No other ad- nomy of the United States that may ac- vanced nation has been willing to toler- count for its striking penal dissimilarity. ate imprisonment on the scale, and of the character, that has become common- In what sense, one might ask, does this place and that goes virtually unremarked policy development constitute a prob- in the United States. The United States lem? How do we know that there are too consigns nearly as great a fraction of its many Americans in prison? A crude anal- population to a lifetime in prison (more ogy will help make this point: If more than ½fty per one hundred thousand res- people were to fall sick, a logical response idents) as Sweden or Denmark or Norway would be to build hospitals and admit ½nds it necessary to imprison for terms patients. Likewise, if more people com- of any duration. mit crimes, then the construction of pris- How and why did this extraordinary ons, with a greater number of criminals policy development take place? Why is being consigned to them, is a natural pol- punishment American-style such an in- icy response. The purpose of this com- ternational anomaly? And what effects parison is to say that there is no way of should we expect the economic crisis– specifying a “correct” number of pris- with its over-stretched state budgets and oners independent of the extent of the proliferating ½nancial bailouts–to have criminal behaviors to which imprison- on the ways policy-makers think about ment is a proper societal response. The

6 Dædalus Summer 2010 same can be said of racial disparities in itating consequences of limited educa- Intro- punishment. One cannot conclude that tion, drug dependence, and, not least, duction “too many” African Americans are held the stigma of having been incarcerated. in prisons absent some consideration of They cite a less-than-wholly-successful the extent to which there are racial differ- deinstitutionalization campaign for the ences in criminal behavior. How much, mentally ill as a cautionary tale. then, should we credit the powerful mor- In the issue’s concluding piece, Glenn al indictment of American social policy C. Loury of Brown University offers some that lurks just behind a phrase like “mass personal reflections and critical observa- incarceration”? Supposing we can be per- tions on the intersection of crime, in- suaded that reform is, in fact, a moral im- equality, and social justice. perative, what should we do? The next two essays in this issue–by Mark A.R. This issue grows out of an Academy Kleiman of the University of California, project on The Challenge of Mass Incar- Los Angeles, and by Robert Weisberg and ceration in America, for which we serve Joan Petersilia, both of Stanford Univer- as project leaders. We believe that the sity–address themselves to these basic analysis put forth in this issue, and the policy dilemmas. Kleiman argues that it ongoing Academy project, will contrib- is possible to have both many fewer pris- ute to the national conversation about oners behind bars and also much less criminal justice and public safety. In crime, if we are smart about using new doing so, we hope to generate a broader surveillance techniques together with public understanding of the scale and modest, though certain, sanctions for social consequences of mass incarcera- parolees and probationers–a policy he tion in America. calls “outpatient incarceration.” Weisberg and Petersilia are skeptical about use of the term “mass incarceration.” They warn against the melodrama and conspiratorial overtones that often accompany popular laments over recent American penal trends. They stress that “no particular measured incarceration rate is inherently unjusti½ed,” so simply citing numbers cannot possibly establish the moral culpability of the system. But they also acknowledge that American incarceration is “an embarrassment” and that the structural effects of imprisonment at this scale are both deleterious and far-reaching. Their concern is that unexpected and undesired consequences may ensue if reformers open the prison gates without ½rst thinking carefully about what programs will be effective at facilitating successful transition into society. Large numbers of persons now in custody, they remind us, suffer the debil-

Dædalus Summer 2010 7 Bruce Western & Becky Pettit

Incarceration & social inequality

In the last few decades, the institution- since the mid-1970s, serving time in al contours of American social inequal- prison has become a normal life event. ity have been transformed by the rapid The influence of the penal system on growth in the prison and jail population.1 social and economic disadvantage can America’s prisons and jails have probe seen in the economic and family lives duced a new social group, a group of of the formerly incarcerated. The social social outcasts who are joined by the inequality produced by mass incarcer- shared experience of incarceration, ation is sizable and enduring for three crime, poverty, racial minority, and main reasons: it is invisible, it is cumu- low education. As an outcast group, lative, and it is intergenerational. The the men and women in our penal insti- inequality is invisible in the sense that tutions have little access to the social institutionalized populations commonly mobility available to the mainstream. lie outside our of½cial accounts of eco- Social and economic disadvantage, nomic well-being. Prisoners, though crystallizing in penal con½nement, drawn from the lowest rungs in society, is sustained over the life course and appear in no measures of poverty or un- transmitted from one generation to employment. As a result, the full extent the next. This is a profound institu- of the disadvantage of groups with high tionalized inequality that has renewed incarceration rates is underestimated. race and class disadvantage. Yet the The inequality is cumulative because the scale and empirical details tell a story social and economic penalties that flow that is largely unknown. from incarceration are accrued by those Though the rate of incarceration is who already have the weakest economic historically high, perhaps the most im- opportunities. Mass incarceration thus portant social fact is the inequality in deepens disadvantage and forecloses penal con½nement. This inequality pro- mobility for the most marginal in socie- duces extraordinary rates of incarcera- ty. Finally, carceral inequalities are inter- tion among young African American generational, affecting not just those men with no more than a high school who go to prison and jail but their fam- education. For these young men, born ilies and children, too.

8 Dædalus Summer 2010 population in prison or jail on an aver- ry. The extent of racial disparity, how- Incarcer- age day. From 1980 to 2008, the U.S. in- ever, has varied greatly over the past ation & social carceration rate climbed from 221 to century, following a roughly inverse inequality 762 per 100,000. In the previous ½ve de- relationship to the slow incorporation cades, from the 1920s through the mid- of African Americans as full citizens in 1970s, the scale of punishment in Amer- American society. In the late nineteenth ica had been stable at around 100 per century, U.S. Census data show that the 100,000. Though the incarceration rate incarceration rate among African Amer- is now nearly eight times its historic icans was roughly twice that of whites. average, the scale of punishment today The demographic erosion of Jim Crow gains its social force from its unequal through the migration of Southern Afri- distribution. can Americans to the North increased Like criminal activity, prisons and racial disparity in incarceration through jails are overwhelmingly a male affair. the ½rst half of the twentieth century. Men account for 90 percent of the pris- (Racial disparities in incarceration have on population and a similar propor- always been higher in the North than tion of those in local jails. The incar- the South.) By the late 1960s, at the ze- ceration rate has been growing faster nith of civil rights activism, the racial among women in recent decades, but disparity had climbed to its contempo- the social impact of mass incarceration rary level, leaving African Americans lies in the gross asymmetry of commu- seven times more likely to be in prison nity and family attachment. Women re- or jail than whites. main in their communities raising chil- Class inequalities in incarceration are dren, while men confront the possibili- reflected in the very low educational lev- ty of separation through incarceration.2 el of those in prison and jail. The legiti- Age intensi½es these effects: incarcera- mate labor market opportunities for men tion rates are highest for those in their with no more than a high school educa- twenties and early thirties. These are tion have deteriorated as the prison pop- key years in the life course, when most ulation has grown, and prisoners them- men are establishing a pathway through selves are drawn overwhelmingly from adulthood by leaving school, getting a the least educated. State prisoners aver- job, and starting a family. These years of age just a tenth grade education, and early adulthood are important not just about 70 percent have no high school for a man’s life trajectory, but also for diploma.3 the family and children that he helps Disparities of race, class, gender, and support. age have produced extraordinary rates Age and sex are the staples of demo- of incarceration among young African graphic analysis, and the relative youth American men with little schooling. Fig- of the largely male incarcerated popula- ure 1 shows prison and jail incarceration foreshadows much about the effects tion rates for men under age thirty-½ve of mass incarceration. Still, it is the pro- in 1980, at the beginning of the prison found race and class disparities in incar- boom, and in 2008, after three decades ceration that produce the new class of of rising incarceration rates. The ½gure social outsiders. African Americans have reports incarceration separately for always been incarcerated at higher rates whites, Latinos, and African Americans than whites, at least since statistics were and separately for three levels of educa- available from the late nineteenth centu- tion. Looking at men with a college edu-

Dædalus Summer 2010 9 Bruce Figure 1 Western & Percentage of Men Aged Twenty to Thirty-Four in Prison or Jail, by Race/Ethnicity and Educa- Becky Pettit tion, 1980 and 2008 on mass incarceration

cation, we see that incarceration rates Even among young white dropouts, the today have barely increased since 1980. incarceration rate had grown remarkably, Incarceration rates have increased among with around one in eight behind bars by African Americans and whites who have 2008. The signi½cant growth of incarcer- completed high school. Among young ation rates among the least educated re- African American men with high school flects increasing class inequality in in- diplomas, about one in ten is in prison carceration through the period of the or jail. prison boom. Most of the growth in incarceration These incarceration rates provide rates is concentrated at the very bottom, only a snapshot at a point in time. We among young men with very low lev- can also examine the lifetime chance els of education. In 1980, around 10 per- of incarceration–that is, the chance cent of young African American men that someone will go to prison at some who dropped out of high school were in point in his or her life. This cumulative prison or jail. By 2008, this incarceration risk of incarceration is important if serv- rate had climbed to 37 percent, an aston- ing time in prison confers an enduring ishing level of institutionalization given status that affects life chances after re- that the average incarceration rate in the turning to free society. The lifetime risk general population was 0.76 of 1 percent. of imprisonment describes how many

10 Dædalus Summer 2010 Table 1 Incarcer- Cumulative Risk of Imprisonment by Age Thirty to Thirty-Four for Men Born from 1945 to 1949 ation & and 1975 to 1979, by Educational Attainment and Race/Ethnicity social inequality

High School High School/ All Dropouts ged* College

1945–1949 cohort White 1.4 3.8 1.5 0.4 Black 10.4 14.7 11.0 5.3 Latino 2.8 4.1 2.9 1.1

1975–1979 cohort White 5.4 28.0 6.2 1.2 Black 26.8 68.0 21.4 6.6 Latino 12.2 19.6 9.2 3.4

*Denotes completed high school or equivalency. Source: Becky Pettit, Bryan Sykes, and Bruce Western, “Technical Report on Revised Population Estimates and nlsy79 Analysis Tables for the Pew Public Safety and Mobility Project” (Harvard University, 2009). people are at risk of these diminished ties at the end of the 1970s, about one life chances. in ten African American men served We calculated the cumulative chance time in prison. For the younger cohort of imprisonment for two birth cohorts, born from 1975 to 1979, the lifetime risk one born just after World War II, from of imprisonment for African American 1945 to 1949, and another born from 1975 men had increased to one in four. Pris- to 1979 (Table 1). For each cohort, we on time has become a normal life event calculated the chances of imprisonment, for African American men who have not jail incarceration. Prisons are the dropped out of high school. Fully 68 deep end of the criminal justice system, percent of these men born since the now incarcerating people for an average mid-1970s have prison records. The of twenty-eight months for a felony con- high rate of incarceration has redrawn viction. While there are about ten mil- the pathway through young adulthood. lion admissions to local jails each year– The main sources of upward mobility for those awaiting trial or serving short for African American men–namely, sentences–around seven hundred thou- military service and a college degree– sand prisoners are now admitted annu- are signi½cantly less common than a ally to state and federal facilities. prison record. For the ½rst generations These cumulative chances of impris- growing up in the post–civil rights era, onment are calculated up to age thirty- the prison now looms as a signi½cant four. For most of the population, this institutional influence on life chances. represents the lifetime likelihood of serving prison time. For the older post- The ubiquity of penal con½nement in war cohort who reached their mid-thir- the lives of young African American men

Dædalus Summer 2010 11 Bruce with little schooling is historically novel, tant for public policy because in assess- Western & emerging only in the last decade. How- ing the social and economic well-being Becky Pettit on mass ever, this new reality is only half the sto- of the population, the incarcerated frac- incarcer- ry of understanding the signi½cance of tion is frequently overlooked, and in- ation mass incarceration in America. The oth- equality is underestimated as a result. er half of the story concerns the effects The idea of invisible inequality is il- of incarceration on social and economic lustrated by considering employment inequality. The inequalities produced by rates as they are conventionally mea- contemporary patterns of incarceration sured by the Current Population Sur- have three characteristics: the inequal- vey, the large monthly labor force sur- ities associated with incarceration are vey conducted by the Census Bureau. invisible to our usual accounting of the For groups that are weakly attached to economic well-being of the population; the labor market, like young men with the inequality is cumulative, deepening little education, economic status is often the disadvantage of the most marginal measured by the employment-to-popu- men in society; and ½nally, the inequali- lation ratio. This ½gure, more expansive ty is intergenerational, transmitting the than the unemployment rate, counts as penalties of a prison record from one jobless those who have dropped out of generation to the next. Because the char- the labor market altogether. The Current acteristic inequalities produced by the Population Survey is drawn on a sample American prison boom are invisible, cu- of households, so those who are institu- mulative, and intergenerational, they are tionalized are not included in the survey- extremely enduring, sustained over life- based description of the population. times and passed through families. Figure 2 shows the employment-to- Invisible Inequality. The inequality cre- population ratio for African American ated by incarceration is often invisible men under age thirty-½ve who have to the mainstream of society because in- not completed high school. Conven- carceration is concentrated and segrega- tional estimates of the employment tive. We have seen that steep racial and rate show that by 2008, around 40 per- class disparities in incarceration have cent of African American male drop- produced a generation of social outliers outs were employed. These estimates, whose collective experience is wholly based on the household survey, fail to different from the rest of American so- count that part of the population in ciety. The extreme concentration of in- prison or jail. Once prison and jail incarceration rates is compounded by the mates are included in the population obviously segregative function of the pe- count (and among the jobless), we see nal system, which often relocates people that employment among young Afri- to far-flung facilities distant from their can American men with little school- communities and families. As a result, ing fell to around 25 percent by 2008. people in prison and jail are disconnect- Indeed, by 2008 these men were more ed from the basic institutions–house- likely to be locked up than employed. holds and the labor market–that domi- Cumulative Inequality. Serving time nate our common understanding and in prison or jail diminishes social and measurement of the population. The economic opportunities. As we have segregation and social concentration seen, these diminished opportunities of incarceration thus help conceal its are found among those already most effects. This fact is particularly impor- socioeconomically disadvantaged. A

12 Dædalus Summer 2010 Figure 2 Incarcer- Employment to Population Ratio, African American Men Aged Twenty to Thirty-Four with Less ation & than Twelve Years of Schooling, 1980 to 2008 social inequality

Source: Becky Pettit, Bryan Sykes, and Bruce Western, “Technical Report on Revised Population Estimates and nlsy79 Analysis Tables for the Pew Public Safety and Mobility Project” (Harvard University, 2009). burgeoning research literature examin- has been interviewed at some point being the economic effects of incarcera- tween 1979 and 2006 while incarcerated, tion ½nds that incarceration is associat- compared to 5 percent of whites and 12 ed with reduced earnings and employ- percent of Latino respondents. Analysis ment.4 of the nlsy showed that serving time in We analyzed panel data from the Na- prison was associated with a 40 percent tional Longitudinal Survey of Youth reduction in earnings and with reduced (nlsy), one of the few surveys that fol- job tenure, reduced hourly wages, and lows respondents over a long period of higher unemployment. time and that interviews incarcerated The negative effects of incarceration, respondents in prison. The nlsy began even among men with very poor eco- in 1979, when its panel of respondents nomic opportunities to begin with, are was aged fourteen to twenty-one; it com- related to the strong negative percep- pleted its latest round of interviews in tions employers have of job seekers with 2006. Matching our population estimates criminal records. Devah Pager’s experi- of incarceration, one in ½ve African mental research has studied these em- American male respondents in the nlsy ployer perceptions by sending pairs of

Dædalus Summer 2010 13 Bruce fake job seekers to apply for real jobs.5 low-income men with low scores on the Western & In each pair, one of the job applicants test, only 41 percent are upwardly mobile. Becky Pettit on mass was randomly assigned a résumé indi- Upward mobility is even less common incarcer- cating a criminal record (a parole of½cer among low-income high school dropouts. ation is listed as a reference), and the “crimi- Still, we observe the least mobility of all nal” applicant was instructed to check among men who were incarcerated at the box on the job application indicat- some point between 1986 and 2006. For ing he had a criminal record. A criminal these men, only one in four rises out of record was found to reduce callbacks the bottom quintile of the earnings dis- from prospective employers by around tribution. 50 percent, an effect that was larger for Intergenerational Inequality. Finally, the African Americans than for whites. effects of the prison boom extend also Incarceration may reduce economic to the families of those who are incarcer- opportunities in several ways. The con- ated. Through the prism of research ditions of imprisonment may promote on poverty, scholars ½nd that the fami- habits and behaviors that are poorly suit- ly life of the disadvantaged has become ed to the routines of regular work. Time dramatically more complex and unsta- in prison means time out of the labor ble over the last few decades. Divorce force, depleting the work experience of and nonmarital births have contributed the incarcerated compared to their non- signi½cantly to rising rates of single par- incarcerated counterparts. The stigma of enthood, and these changes in American a criminal conviction may also repel em- family structure are concentrated among ployers who prefer job applicants with low-income mothers. As a consequence, clean records. Pager’s audit study offers poor children regularly grow up, at least clear evidence for the negative effects of for a time, with a single mother and, at criminal stigma. Employers, fearing le- different times, with a variety of adult gal liability or even just unreliability, are males in their households. extremely reluctant to hire workers with High rates of parental incarceration criminal convictions. likely add to the instability of family A simple picture of the poor economic life among poor children. Over half of opportunities of the formerly incarcerat- all prisoners have children under the ed is given by the earnings mobility of age of eighteen, and about 45 percent men going to prison compared to other of those parents were living with their disadvantaged groups. The nlsy data children at the time they were sent to can be used to study earnings mobility prison. About two-thirds of prisoners over several decades. We calculated the stay in regular contact with their chil- chances that a poor man in the lowest dren either by phone, mail, or visita- ½fth of the earnings distribution in 1986 tion.6 Ethnographer Megan Comfort would move up and out of the lowest paints a vivid picture of the effects of ½fth by 2006. Among low-income men men’s incarceration on the women who are not incarcerated, nearly two- and families in their lives. She quotes thirds are upwardly mobile by 2006 (Fig- a prisoner at San Quentin State Prison ure 3). Another group in the nlsy has in California: very low levels of cognitive ability, scor- Nine times out of ten it’s the woman ing in the bottom quintile of the Armed [maintaining contact with prisoners]. Forces Qualifying Test, the standardized Why? Because your homeboys, or your test used for military service. Among

14 Dædalus Summer 2010 Figure 3 Incarcer- Twenty-Year Earnings Mobility among Men in the Bottom Quintile of Earnings Distribution ation & in 1986, National Longitudinal Survey of Youth (nlsy) Men social inequality

afqt stands for Armed Forces Qualifying Test. Source: Becky Pettit, Bryan Sykes, and Bruce Western, “Technical Report on Revised Population Estimates and nlsy79 Analysis Tables for the Pew Public Safety and Mobility Project” (Harvard University, 2009).

friends, if you’re in that lifestyle, most ties leave formerly incarcerated parents the time they’re gonna be sittin’ right less equipped to provide ½nancially for next to your ass in prison. . . . The males, their children. New research also shows they don’t really participate like a lot that the children of incarcerated parents, of females in the lives of the incarcerat- particularly the boys, are at greater risk ed. . . . They don’t deal with it, like ½rst of developmental delays and behavioral of all they don’t like to bring to reality problems.8 that you’re in prison; they don’t wanna Against this evidence for the negative think about that . . . Or some of ’em just effects of incarceration, we should weigh don’t care. So the male’s kinda like wiped the gains to public safety obtained by out of there, so that puts all the burden on separating violent or otherwise antiso- the woman.7 cial men from their children and partners. Domestic violence is much more Partly because of the burdens of in- common among the formerly incarcer- carceration on women who are left to ated compared to other disadvantaged raise families in free society, incarcera- men. Survey data indicate that formerly tion is strongly associated with divorce incarcerated men are about four times and separation. In addition to the forced more likely to assault their domestic part- separation of incarceration, the post- ners than men who have never been in- release effects on economic opportuni- carcerated. Though the relative risk is

Dædalus Summer 2010 15 Bruce very high, around 90 percent of the part- institutions unknown to the social main- Western & ners of formerly incarcerated report no stream. Our national data systems, and Becky Pettit on mass domestic violence at all. the social facts they produce, are struc- incarcer- The scale of the effects of parental in- tured around normative domestic and ation carceration on children can be revealed economic life, systematically excluding simply by statistics showing the number prison inmates. of children with a parent in prison or Thus we de½ne carceral inequalities jail. Among white children in 1980, only as invisible, cumulative, and intergener- 0.4 of 1 percent had an incarcerated par- ational. Because they are so deeply con- ent; by 2008 this ½gure had increased to centrated in a small disadvantaged frac- 1.75 percent. Rates of parental incarcer- tion of the population, the social and ation are roughly double among Latino economic effects of incarceration create children, with 3.5 percent of children hav- a discrete social group whose collective ing a parent locked up by 2008. Among experience is so distinctive yet unknown African American children, 1.2 million, that their disadvantage remains largely or about 11 percent, had a parent incar- beyond the apprehension of public pol- cerated by 2008 (Figure 4). icy or public conversation. The redraw- ing of American social inequality by mass The spectacular growth in the Ameri- incarceration amounts to a contraction can penal system over the last three de- of citizenship–a contraction of that pop- cades was concentrated in a small seg- ulation that enjoys, in T. H. Marshall’s ment of the population, among young words, “full membership in society.”9 minority men with very low levels of ed- Inequality of this kind threatens to be ucation. By the early 2000s, prison time self-sustaining. Socioeconomic disad- was a common life event for this group, vantage, crime, and incarceration in the and today more than two-thirds of Afri- current generation undermine the sta- can American male dropouts are expect- bility of family life and material support ed to serve time in state or federal pris- for children. As adults, these children on. These demographic contours of mass will be at greater risk of diminished life imprisonment have created a new class chances and criminal involvement, and of social outsiders whose relationship to at greater risk of incarceration as a result. the state and society is wholly different Skeptics will respond that these are from the rest of the population. false issues of social justice: the pris- Social marginality is deepened by the on boom substantially reduced crime, inequalities produced by incarceration. and criminals should forfeit their socie- Workers with prison records experience tal membership in any case. The crime- signi½cant declines in earnings and em- reducing effects of incarceration are ployment. Parents in prison are likely to hotly debated, however. Empirical esti- divorce or separate, and through the con- mates of the effects of incarceration on tagious effects of the institution, their crime vary widely, and often they turn children are in some degree “prisonized,” on assumptions that are dif½cult to test exposed to the routines of prison life directly. Researchers have focused on through visitation and the parole super- the sharp decline in U.S. crime rates vision of their parents. Yet much of this through the 1990s, studying the influ- reality remains hidden from view. In so- ence of rising prison populations. Con- cial life, for all but those whose incarcer- servative estimates attribute about one- ation rates are highest, prisons are exotic tenth of the 1990s crime decline to the

16 Dædalus Summer 2010 Figure 4 Incarcer- Number of Children under Eighteen with a Parent in Prison or Jail, 1980 to 2008 ation & social inequality

Source: Becky Pettit, Bryan Sykes, and Bruce Western, “Technical Report on Revised Population Estimates and nlsy79 Analysis Tables for the Pew Public Safety and Mobility Project” (Harvard University, 2009). growth in imprisonment rates.10 Though among a small number of serious crim- the precise impact of incarceration on inal offenders, these effects may well crime is uncertain, there is broad agree- be overwhelmed by reduction in crime ment that additional imprisonment at through incapacitation. high rates of incarceration does little Today, however, clear majorities of to reduce crime. The possibility of im- the young men in poor communities are proved public safety through increased going to prison and returning home less incarceration is by now exhausted. employable and more detached from Studies of the effects of incarceration their families. In this situation, the insti- on crime also focus only on the short tutions charged with public safety have term. Indeed, because of the negative become vitally implicated in the unem- effects of incarceration on economic ployment and the fragile family structure opportunities and family life, incarcer- characteristic of high-crime communi- ation contributes to crime in the long ties. For poorly educated young men in run by adding to idleness and family high-incarceration communities, a pris- breakdown among released prisoners. on record now carries little stigma; incen- Scale matters, too. If the negative ef- tives to commit to the labor market and fects of incarceration were scattered family life have been seriously weakened.

Dædalus Summer 2010 17 Bruce To say that prison reduces crime (per- social strati½cation, rather than crime Western & haps only in the short run) is a spectac- control, highlights all these neglected Becky Pettit on mass ularly modest claim for a system that outcomes and leaves us pessimistic that incarcer- now costs $70 billion annually. Claims widespread incarceration can sustain- ation for the crime-reducing effects of pris- ably reduce crime. The current system on, by themselves, provide little guid- is expensive, and it exacerbates the so- ance for policy because other approach- cial problems it is charged with control- es may be cheaper. Measures to reduce ling. Our perspective, focused on the so- school dropout, increase human cap- cial and economic inequalities of Amer- ital, and generally increase employ- ican life, suggests that social policy im- ment among young men seem especial- proving opportunity and employment, ly promising alternatives. Results for for young men in particular, holds spe- programs for very young children are cial promise as an instrument for pub- particularly striking. Evaluations of lic safety. early childhood educational programs Our perspective on inequality points show some of their largest bene½ts de- to a broader view of public safety that cades later in reduced delinquency and is not produced by punishment alone. crime.11 For adult men now coming out Robust public safety grows when peo- of prison, new evaluations show that ple have order and predictability in jobs programs reduce recidivism and in- their daily lives. Crime is just one dan- crease employment and earnings.12 The ger, joining unemployment, poor health, demographic concentration of incarcer- and family instability along a spectrum ation accompanies spatial concentra- of threats to an orderly life. Public safe- tion. If some portion of that $70 billion ty is built as much on the everyday rou- in correctional expenditures were spent tines of work and family as it is on po- on improving skills and reducing unem- lice and prisons. Any retrenchment of ployment in poor neighborhoods, a sus- the penal system therefore must recog- tainable and socially integrative public nize how deeply the prison boom is em- safety may be produced. bedded in the structure of American Much of the political debate about social inequality. Ameliorating these crime policy ignores the contemporary inequalities will be necessary to set us scale of criminal punishment, its un- on a path away from mass incarcera- equal distribution, and its negative so- tion and toward a robust, socially inte- cial and economic effects. Our analysis grative public safety. of the penal system as an institution of

endnotes 1 We gratefully acknowledge Bryan Sykes, Deirdre Bloome, and Chris Muller, who helped conduct the research reported in this paper. This research was supported in part by a gift from The Elfenworks Foundation. 2 In her essay for this issue, Candace Kruttschnitt shows that women’s incarceration has pronounced effects by separating mothers from their children. The continued growth of women’s incarceration rates threatens to have large effects on family life. 3 Bruce Western, Punishment and Inequality in America (New York: Russell Sage Foundation, 2006); Caroline Wolf Harlow, Education and Correctional Populations (Washington, D.C.: Bureau of Justice Statistics, 2003).

18 Dædalus Summer 2010 4 Harry J. Holzer, “Collateral Costs: Effects of Incarceration on Employment and Earnings Incarcer- Among Young Workers,” in Do Prisons Make Us Safer? ed. Steven Raphael and Michael A. ation & Stoll (New York: Russell Sage Foundation, 2009). social inequality 5 Devah Pager, Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration (Chica- go: University of Chicago Press, 2007). 6 Christopher Mumola, “Incarcerated Parents and Their Children” (Washington, D.C.: Bureau of Justice Statistics, 2000). 7 Megan Comfort, “In the Tube at San Quentin: The ‘Secondary Prisonization’ of Women Visiting Inmates,” Journal of Contemporary Ethnography 32 (1) (2003): 82; emphasis original. 8 Christopher Wildeman, “Paternal Incarceration and Children’s Physically Aggressive Be- haviors: Evidence from the Fragile Families and Child Wellbeing Study,” working paper 2008-02-FF (Fragile Families and Child Wellbeing, 2008). 9 T. H. Marshall, Citizenship and Social Class (Concord, Mass.: Pluto Press, 1992). 10 Western, Punishment and Inequality in America, chap. 7. 11 Pedro Carneiro and James J. Heckman, “Human Capital Policy,” in James J. Heckman and Alan B. Krueger, Inequality in America: What Role for Human Capital Policies? (Cambridge, Mass.: mit Press, 2003). 12 Cindy Redcross, Dan Bloom, and Gilda Azurdia, “Transitional Jobs for Ex-prisoners: Im- plementation, Two-Year Impacts, and Costs of the Center for Employment Opportunities (ceo) Prisoner Reentry Program” (mdrc, 2009).

Dædalus Summer 2010 19 Robert J. Sampson & Charles Loeffler

Punishment’s place: the local concentration of mass incarceration

American crime policy took an un- local communities within cities. Like expected turn in the latter part of the the geographically concentrated nature twenty-½rst century, entering a new of criminal offending by individuals, a penal regime. From the 1920s to the small number of communities bear the early 1970s, the incarceration rate in disproportionate brunt of U.S. crime the United States averaged 110 inmates policy’s experiment with mass incarcer- per 100,000 persons. This rate of incar- ation.5 While the concept of “hot spots” ceration varied so little in the United for crime is widely acknowledged, the States and internationally that many sources and consequences of incarcera- scholars believed the nation and the tion’s “hot spots” are not understood as world were experiencing a stable equi- well. Although the inhabitants of such librium of punishment.1 But begin- communities experience incarceration ning in the mid-1970s, the U.S. incar- as a disturbingly common occurrence, ceration rate accelerated dramatically, for most other communities and most reaching the unprecedented rate of other Americans incarceration is quite 197 inmates per 100,000 persons in rare. This spatial inequality in punish- 1990 and the previously unimaginable ment helps explain the widespread in- rate of 504 inmates per 100,000 per- visibility of mass incarceration to the sons in 2008.2 Incarceration in the average American. United States is now so prevalent that Motivated by this reality, our essay ex- it has become a normal life event for amines the spatial concentration of in- many disadvantaged young men, with carceration, focusing on its geographic some segments of the population more manifestations in the quintessentially likely to end up in prison than attend American city of Chicago. Assembling college.3 Scholars have broadly de- census data, crime rates, and court rec- scribed this national phenomenon ords into a common geographic refer- as mass incarceration.4 ent, we explore rates of community- Often obscured by national trends are level incarceration from 1990 to 2006 the profound variations in incarceration to probe three general questions: rates across states, cities, and especially 1. How does incarceration impact neighborhoods differentially? What is the © 2010 by the American Academy of Arts nature of spatial inequality in impris- & Sciences onment rates across communities?

20 Dædalus Summer 2010 2.What is the temporal trend? Have tions in the prevalence of children under Punish- neighborhood patterns changed age eighteen, who are not eligible for ment’s place over time? prison. Similarly, we exclude older residents because, while society is aging, 3. What are the key correlates? For ex- very few prisoners are over the age of ample, how do community-level fea- sixty-½ve. These data were gathered tures such as the crime rate and the from the electronic records of the Cir- concentration of poverty relate to the cuit Court of Cook County. The crime intensity of incarceration, across time rate is measured by the Uniform Crime and neighborhoods? Reports (ucr) “index” offenses (aggra- Overall, we demonstrate that mass vated assault, forcible rape, murder, rob- incarceration is a phenomenon that is bery, arson, burglary, larceny-theft, and experienced locally and that follows a motor vehicle theft) per 100,000 persons stable pattern over time. Hot spots for in Chicago. incarceration are hardly random; in- Mirroring national trends, the Chicago stead, they are systematically predicted crime rate peaked at the beginning of the by key social characteristics. In particu- 1990s (11,320 offenses per 100,000 per- lar, the combination of poverty, unem- sons) and then declined throughout the ployment, family disruption, and racial remainder of the 1990s and into the early isolation is bound up with high levels 2000s.6 As of 2006, the crime rate (5,721 of incarceration even when adjusting offenses per 100,000 persons) in Chicago for the rate of crime that a community was the lowest it had been in at least the experiences. These factors suggest a previous twenty years. Yet the imprison- self-reinforcing cycle that keeps some ment rate that began its rise in the 1970s communities trapped in a negative (data not shown) continued to increase feedback loop. The stability and place- even after the crime rate peaked, climb- based nature of incarceration have ing rapidly after 1990 and peaking in 1994 broad implications for how we think at 716 prisoners per 100,000 adult inhab- about policy responses. itants. In just four years, the rate of imprisonment had increased 60 percent. It Is Chicago a unique case or does it fol- subsequently hovered near that all-time low the general pattern of crime and high, fluctuating between 600 and 700 punishment in late-twentieth-century prisoners per 100,000 adult inhabitants America that has drawn attention from from 1994 to 2006. These Chicago trends, scholars? Figure 1 displays the tempo- as depicted in Figure 1, are broadly con- ral pattern of imprisonment juxtaposed sistent with trends in crime and incar- with the overall crime rate for the pe- ceration throughout the United States. riod from 1990 to 2006. We measure the Although the aggregate relationship imprisonment rate by dividing the num- between incarceration and crime is not ber of unique, Chicago-resident felony the main focus of this paper, Figure 1 defendants sentenced to the Illinois permits an overall assessment of the Department of Corrections from the temporal connection. On the one hand, Circuit Court of Cook County by the year-to-year changes in crime and im- number of Chicago inhabitants aged prisonment rates are not strongly corre- eighteen to sixty-four according to the lated with each other when considering Census. We use “at risk” adults in the short temporal lags over the entire peri- denominator in order to rule out varia- od. If mass incarceration functions as

Dædalus Summer 2010 21 Robert J. Figure 1 Sampson Imprisonment and Crime Trends in Chicago, 1990–2006 & Charles Loeffler on mass incarceration

Source: Authors’ calculations based on information collected from the Circuit Court of Cook County, the U.S. Census Bureau, and the U.S. Department of Justice.

an effective criminal deterrent or tool ly as the imprisonment rate increased of incapacitation, then crime decreas- and then maintained, more or less, a es in years greater than t should follow high rate. Therefore, the dynamic rela- imprisonment increases in year t. Yet tionship between imprisonment and the actual pattern observed in Figure 1 crime from 1990 to 2006 is generally suggests that increases or decreases in negative. However, the pattern is com- the imprisonment rate do not always plex, and it is not possible to draw con- lead to short-term decreases or increas- clusions about cause and effect. es in the crime rate, and vice versa, after about 1994. On the other hand, the To what extent is mass incarceration beginning of the crime drop in the 1990s concentrated? Unlike the temporal corresponds to a rapid rise in incarcera- trends for imprisonment, the answer is tion. Although the number of cases is unambiguous: punishment is distinctly too small to reliably detect signi½cance, concentrated by place. Figure 2 displays the crime rate correlates -0.89 with in- rates of imprisonment per 100,000 per- carceration from 1990 to 1994. Over the sons (aged eighteen to sixty-four) by longer term of 1990 to 2006, the pattern community areas of Chicago for the yields a negative concurrent relationship period 1990 to 1995. Community areas (-0.47, p < 0.10); crime decreased steadi- average populations of approximately

22 Dædalus Summer 2010 Figure 2 Punish- Spatial Concentration of Incarceration in Chicago, 1990–1995 ment’s place

Source: Authors’ calculations based on information collected from the Circuit Court of Cook County and the U.S. Census Bureau.

38,000 persons; they are widely recog- ation rate ranges from nearly zero to less nized by residents and, in most cases, than 500 per 100,000 adult residents. By have well-known geographic borders. contrast, there is a dense and spatially Census tracts are nested within com- contiguous cluster of areas in near-west munity areas and are smaller, averag- and south-central Chicago that have ing approximately 4,000 persons. The rates of incarceration some eight times patterns for tracts (not shown) are higher (or more). Note especially the nearly identical to community areas. line of communities stretching south The basic pattern of concentration is from the Loop and west into the sub- stark. Large swaths of the city, especially urban boundaries of the city (for ex- in the southwest and northwest, remain ample, the community of Austin) that relatively untouched by the imprison- produce a disproportionate share of ment boom. In these areas, the incarcer- prisoners.

Dædalus Summer 2010 23 Robert J. Figure 3 Sampson Spatial Concentration of Incarceration in Chicago, 2000–2005 & Charles Loeffler on mass incarceration

Source: Authors’ calculations based on information collected from the Circuit Court of Cook County and the U.S. Census Bureau.

Does this pattern change over time? relation between the rates across time is Despite a leveling-off in the overall in- greater than 0.90 for community areas tensity of punishment as foretold by and 0.86 for tracts (p < 0.01), an extreme- Figure 1, there is a great deal of stabil- ly high level of persistence. The Spear- ity in the spatial logic of incarceration. man’s correlation of rank order is 0.97 Figure 3 presents imprisonment rates and 0.92, respectively, for community for the most recent period of available areas and tracts. data, 2000 to 2005. As in 1990 to 1995, The main difference between the two prisoners are primarily from the South time periods is that incarceration inten- and West Sides of Chicago. In fact, at a si½ed its grip on the far West and South glance, Figures 2 and 3 reveal very little Sides of the city. Not surprisingly, some difference in patterns of incarceration, areas that were already at the high end even with the time gap. The simple cor- of the crime and incarceration distribu-

24 Dædalus Summer 2010 tions also saw improvements. Research, ducing crime or an artifact we cannot say. Punish- and the tendency of many social trends We can be certain, however, that against ment’s place to “regress to the mean,” has shown the march of time there is a fundamental that the highest-crime neighborhoods inequality in the reach of incarceration in Chicago have experienced the biggest across communities. Large areas of Chi- crime drops.7 Nonetheless, the commu- cago have escaped the brunt of the in- nities of Austin, East Gar½eld Park, and carceration regime, while a small band West Gar½eld Park (on the far West Side) of communities on the West, far West, experienced the largest relative increases South, and far South Sides of Chicago in imprisonment rates, approximately are highly affected. This general pattern 50 percent, across the two time periods. is stable, with already susceptible com- By contrast, the areas of Oakland, Grand munities such as West Gar½eld Park Boulevard, and Washington Park (on the and Austin on the West Side undergo- near- to mid-South Side) each experienced ing dramatic growth beyond preexist- a decline of between 30 and 50 percent. ing vulnerability. The implication of Perhaps not coincidentally, some of these our ½nding is that the concept of “mass” improving areas (especially Oakland and incarceration is potentially quite mis- Grand Boulevard) saw large-scale chang- leading, for its instantiation is experi- es or planned interventions that may enced at a highly local level. explain the unexpectedly large declines, such as city investments in mixed-income What is it about “imprisoned commu- housing, the demolition of high-rise pub- nities” that explains their unequal expe- lic housing projects, and the steady in- riences? We have demonstrated that immigration of the African American mid- prisonment is not randomly inscribed dle class.8 Further examination of the across the urban landscape. Both logic consequences of these large-scale chang- and criminal justice “common wisdom” es for the social and spatial organization would suggest that the hot spots of pun- of Chicago (the displacement of crime ishment are those that generate the most or the migration of offenders to other crime. This is in part the case. neighborhoods, for example) is beyond To take the most straightforward ex- the scope of this paper but is currently ample, we calculated the rate of crime being pursued in other studies. disaggregated by those forms that tend Overall, the data in Figures 1–3 paint a to generate the most public attention and picture of patterned stability and change that have been implicated in the impris- in incarceration. Like the rest of the Unit- onment run-up: violence (assault, rape, ed States, Chicago has seen a boom in and homicide), robbery, drug-related imprisonment, with rates increasing offenses, and burglary. At the community more than 50 percent from 1990 after level, these crimes cluster together and a period of prior increases. These in- correlate highly with later incarceration creases and subsequent temporal var- rates. For example, violence and drug iations do not appear to track the crime crimes during the period 1995 to 2000 rate closely, although in a broad sense it are both correlated at greater than 0.70 is clear that at the end of the twentieth (p < 0.01) with incarceration rates in century, crime approached record lows 2000 to 2005 across communities. Be- as incarceration hovered around its peak. cause prison sentencing does not occur As noted earlier, whether this occurrence instantaneously following an incidence is a causal effect of imprisonment on re- of crime, we allowed for a lag effect by

Dædalus Summer 2010 25 Robert J. comparing two intervals of time that prior rates of crime. Speci½cally, consis- Sampson include multiple years, simultaneously tent with our expectations, the crime & Charles Loeffler allowing for variability in temporal lag factor correlates 0.72 (p < 0.01) with the on mass patterns and reducing measurement later incarceration rate. incarcer- error in both crime and incarceration This pattern does not mean that the ation rates. We also created a summary mea- social features of communities can be sure that combines information from set aside in thinking about communities’ the four major categories of crime. The risk for incarceration. There is a line of results con½rmed that all four crime theoretical work arguing that concen- rates correlate strongly with each other trated inequality exacerbates existing and form a single factor based on a prin- patterns of criminal justice punishment. cipal components analysis. To capture In particular, the attributions and per- the common variance, we calculated ceptions of dangerousness attached to the ½rst principal component, which is stigmatized and spatially concentrated a simple linear combination of the four minority groups have been hypothesized crime rates weighted by their association to increase the intensity of both unof½- with the common factor. Put simply, the cial beliefs about social disorder10 and scale reflects the overall “crime propen- of½cial decisions to punish through in- sity” of each community. carceration.11 According to this argu- One might argue that arrest rates are a ment, offenders from communities of more direct measure of criminal offender concentrated disadvantage are them- production as opposed to the criminal selves stigmatized and are more likely offense production reflected in the crime to be incarcerated when compared to rate. But high rates of citizen-reported those in less disadvantaged communi- crime are the more public face of victim- ties with similar crime rates. ization and demands for action against We examined the broad contours of crime, and thus may be more relevant in this thesis by estimating the relation- terms of generating demand for punish- ship between dimensions of concen- ment and reinforcing negative reputa- trated poverty and later incarceration, tions about safety in select communities. adjusting for the crime rate. Prior work Previous research has also shown that on the Chicago data, and on national arrest rates and estimates of criminal ½gures as well, has shown that correlat- offending rates are closely related to ed aspects of urban disadvantage tend the crime rate, in large part because to cluster, particularly the percentage offenders tend to commit crimes rela- of the population that is in poverty, tively close to home.9 Consistent with unemployed, on welfare, and in single- this general argument, in the years 1998 parent, female-headed families. All of and 1999, the total arrest rate is correlat- these factors are more prevalent in seg- ed 0.78 (p < 0.01) with the total crime regated African American areas (as in- rate across neighborhoods in Chicago. dicated by the percentage of African We do not have arrest data across all Americans).12 Whether tracts or com- relevant years in question that would munity areas, these social characteris- allow us to pursue this issue further, tics thus cluster together, de½ning a thus we rely on the summary crime factor we label “concentrated disad- rate for the main analysis. We ½nd that vantage.”13 The correlation between incarceration rates are very tightly con- concentrated disadvantage in 2000 nected–at the neighborhood level–with and the incarceration rate in 2000 to

26 Dædalus Summer 2010 2005 is signi½cant: 0.78 (p < 0.01). the disadvantage scale and when the ar- Punish- But disadvantage also co-varies with rest rate of neighborhood residents (an ment’s place the crime rate; in fact, the correlation indicator of offender production) is between disadvantage and the crime controlled. rate is equal to that of disadvantage We also explored the possibility of a and incarceration (0.78). Under these reverse pathway of influence, whereby conditions, it is dif½cult to estimate incarceration was speci½ed as a predic- independent associations other than tor of future concentrated disadvantage with a simple model in which both independent of the crime rate leading up the crime rate and disadvantage are to that point. Our data (not shown) re- allowed to predict later incarceration. vealed that the incarceration rate in 1990 Nevertheless, this ½nding suggests to 1995 strongly predicts concentrated that both factors have explanatory disadvantage in 2000 when we control relevance, especially at the tract level, for the crime rate in 1995 to 2000 (p < where we have more cases and, as a 0.01), a strict test given that the crime consequence, greater statistical power. rate is measured after the imprisonment Figure 4 evaluates our claim, visually rate and thus has presumably reaped any reflecting the magnitude of associations. deflection from deterrent or incapacita- The incarceration rate per 100,000 is tion effects. The magnitude of the pre- graphed on the left axis. The bars refer dictive association between incarcera- to the indicators of the crime rate (com- tion and future disadvantage was simi- bined six-year average of burglary, rob- lar to that of crime and disadvantage, bery, violence, and drugs) and the 2000 and again, the relationship held when concentrated disadvantage scale, each racial composition was considered as a split into equal thirds. At each level of separate control from the disadvantage the crime rate, incarceration rates in- factor. crease monotonically with concentrated What we appear to observe, then, is a disadvantage. Note that at the very high- mutually reinforcing social process: dis- est level of crime, those communities advantage and crime work together to most “at risk” for punishment in the drive up the incarceration rate. This classic criminal-punishment sense are combined influence in turn deepens nonetheless clearly differentiated. In the spatial concentration of disadvan- fact, communities that experienced high tage, even if at the same time it reduces disadvantage experienced incarceration crime through incapacitation. In such a rates more than three times higher than reinforcing system with possible coun- communities with a similar crime rate. tervailing effects at the aggregate tempo- At all levels of concentrated disadvan- ral scale, it is dif½cult, if not impossible, tage, crime rates signi½cantly predict to estimate the overall net effect of in- later incarceration as well. Thus it is not carceration. Moreover, one can argue that incarceration is somehow “irration- that there is measurement error or mis- al,” rather it is increased in certain social speci½cation in the nature of our crime contexts in ways that cannot be explained rate control, a reality we acknowledge by crime. Analysis not shown con½rmed and have discussed above. But we have that this pattern is maintained when ra- measured those offenses that are known cial composition (percent of the popula- to the criminal justice system and that tion that is African American) is entered have been shown to drive public opinion as a separate control and not included in and, we suggest, incarceration decisions.

Dædalus Summer 2010 27 Robert J. Figure 4 Sampson Incarceration by Concentrated Disadvantage and Crime, 1995–2005 & Charles Loeffler on mass incarceration

Source: Authors’ calculations based on information collected from the Circuit Court of Cook County, the U.S. Census Bureau, and the U.S. Department of Justice.

Recent data from Chicago also show that the system in the way of social cues and arrest rates closely track crime rates and systematic community-level or contex- that offenders are highly constrained by tual effects.15 In other words, crime and spatial proximity and racial segregation incarceration are partially decoupled at in choosing crime locations.14 And when the community level. We suggest that the we directly control for the arrest rate of cluster of features reflected in concentrat- residents, we obtain the same results for ed disadvantage is a prime candidate for concentrated disadvantage. the source, but possibly also the conse- Thus, although the entire pathway quence, of incarceration. from crime to offender to prison sentence is indeed unobserved in our data, Mass incarceration has drawn much it is hard to imagine relevant character- interest, but with few exceptions, little istics that could diminish the signi½cance rigorous attention has been paid to the of incarceration rates that differ by three- way that incarceration shapes and is fold or more. It seems more likely that shaped by local communities. Some while crime leads to incarceration up to claim that incarceration depletes social a point, there is much more “input” to capital and thereby harms already disad-

28 Dædalus Summer 2010 vantaged communities.16 Others claim advantage (again adjusting for crime). Punish- that deterrent or incapacitation effects The results are not simply attributable ment’s place of incarceration reduce crime and there- to the racial makeup of areas; although by improve human well-being, especial- African Americans are both poorer and ly in disadvantaged communities that more likely to be incarcerated than whites initially had the highest crime rates and or Hispanics, the association of concen- have since witnessed the largest decreas- trated disadvantage with incarceration es in crime.17 As recently suggested by is robust and therefore appears to be a systematic review of the available evi- contextual rather than compositional dence on criminal recidivism, these ap- in nature. parently dueling arguments are not nec- There are two implications from these essarily mutually exclusive. Imprison- ½ndings. One is the likely reciprocal in- ment may be criminogenic even as the teraction whereby community vulnera- threat of punishment by con½nement is bility and incarceration are involved in a a deterrent.18 negative-feedback loop. Disadvantaged We have investigated the spatial con- communities are more likely to be high- centration of imprisonment in Chicago ly incarcerated communities, which in- as well as the possibility that concentrat- creases their likelihood of becoming even ed disadvantage is implicated in the spa- more disadvantaged in the future. The tial concentration of punishment beyond second implication concerns the flip side its contribution to criminal offending or of prisoner production. If communities arrest production. We do not claim to disproportionately produce prisoners, have set up a strict test of causality, and they will disproportionately draw them our data are limited as data always are. back upon release. After all, even when But the patterns we uncovered are con- imprisonment rates have soared, most sistent with our theoretical framework, prisoners return to a home community.19 are large in magnitude, and make con- These twin feedback loops need further ceptual sense at different levels of analy- testing, but conceptually they may help sis. Speci½cally, while there seems to be explain both the high degree of stability little doubt that crime decreases have and the fundamental dilemma of highly followed increased incarceration rates imprisoned communities. Unless an al- in recent years, the nature of this rela- ternative policy is implemented, the evi- tionship is complex; aggregate trends in dence suggests, a subset of communities crime and imprisonment mask the mag- will continue to produce concentrated nitude of neighborhood concentration disadvantage, concentrated crime, and and the deep penetration of incarceration concentrated imprisonment. in high-rate communities (Figures 2–3). The logic of our essay is consistent High levels of concentrated imprison- with recent calls for a community-level ment, year after year, would seem un- approach to penal reform. Such an ap- likely to contribute to social-capital proach seeks to reintegrate offenders and formation or other social processes that help counteract the hardships–includ- foster healthy communities. ing high crime–that already disadvan- We have also shown evidence consis- taged neighborhoods face when unem- tent with the thesis that concentrated ployed ex-felons return home. The maps disadvantage strongly predicts later in- of Figures 2 and 3 paint a particularly carceration (adjusting for crime) and that stark picture of communities on the edge. incarceration strongly predicts later dis- Concentrated incarceration may have the

Dædalus Summer 2010 29 Robert J. unintended consequence of increasing and efforts to build community capacity Sampson crime rates through its negative impact are important steps for policy.22 Along & Charles Loeffler on the labor market and social-capital with policy reform, efforts to destigma- on mass prospects of former prisoners.20 What tize and achieve justice for communities incarcer- is more, evidence shows that neighbor- are crucial to overcoming the vicious ation hood context plays a major role in the cycle of crime production, victimization, recidivism rates of ex-prisoners.21 The incapacitation, and disadvantage. integration of prisoner release programs

endnotes 1 Alfred Blumstein and Jacqueline Cohen, “Theory of the Stability of Punishment,” Journal of Criminal Law and Criminology 64 (1973): 198–207. 2 Bureau of Justice Statistics, “Prisoners in 2008,” (Washington, D.C.: U.S. Department of Justice, 2009), http://bjs.ojp.usdoj.gov/content/glance/incrt.cfm. 3 Becky Pettit and Bruce Western, “Mass Imprisonment and the Life Course: Race and Class Inequality in U.S. Incarceration,” American Sociological Review 69 (2004): 151–169. 4 Bruce Western, Punishment and Inequality in America (New York: Russell Sage Foundation, 2006). 5 Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neigh- borhoods Worse (New York: Oxford University Press, 2007). 6 Alfred Blumstein and Joel Wallman, The Crime Drop in America (New York: Cambridge University Press, 2000). 7 Wesley Skogan, Police and Community in Chicago: A Tale of Three Cities (New York: Oxford University Press, 2006). 8 Mary E. Pattillo, Black on the Block: The Politics of Race and Class in the City (Chicago: Univer- sity of Chicago Press, 2007); Robert J. Sampson, Neighborhood Effects: Social Structure and Community in the American City (Chicago: University of Chicago Press, forthcoming 2011). 9 Wim Bernasco and Richard Block, “Where Offenders Choose to Attack: A Discrete Choice Model of Robberies in Chicago,” Criminology 47 (2009): 93–130. 10 Robert J. Sampson, “Disparity and Diversity in the Contemporary City: Social (Dis)Order Revisited,” British Journal of Sociology 60 (2009): 1–31. 11 Robert J. Sampson and John H. Laub, “Structural Variations in Juvenile Court Processing: Inequality, the Underclass, and Social Control,” Law and Society Review 27 (1993): 285–311. 12 Douglas S. Massey and Nancy Denton, American Apartheid: Segregation and the Making of the Underclass (Cambridge, Mass.: Harvard University Press, 1993); William J. Wilson, The Truly Disadvantaged: The Inner City, the Underclass, and Public Policy (Chicago: University of Chicago Press, 1987). 13 Robert J. Sampson, Stephen W. Raudenbush, and Felton Earls, “Neighborhoods and Vio- lent Crime: A Multilevel Study of Collective Ef½cacy,” Science 277 (1997): 918–924. 14 Bernasco and Block, “Where Offenders Choose to Attack.” 15 Sampson, “Disparity and Diversity in the Contemporary City.” 16 Western, Punishment and Inequality in America; Clear, Imprisoning Communities. 17 Skogan, Police and Community in Chicago; Thomas Marvell and Carlisle Moody, “Prison Population Growth and Crime Reduction,” Journal of Quantitative Criminology 10 (1994): 109–140.

30 Dædalus Summer 2010 18 Daniel S. Nagin, Francis T. Cullen, and Cheryl Lero Jonson, “Imprisonment and Reoffend- Punish- ing,” in Crime and Justice, vol. 38, ed. Michael Tonry (Chicago: University of Chicago Press, ment’s 2009), 115–200. place 19 Jeremy Travis, But They All Come Back: Facing the Challenges of Prisoner Reentry (Washington, D.C.: Urban Institute Press, 2005). 20 Western, Punishment and Inequality in America; Todd R. Clear, Dina R. Rose, and Judith A. Ryder, “Incarceration and Community: The Problem of Removing and Returning Offend- ers,” Crime and Delinquency 47 (2001): 335–351. 21 John R. Hipp, Joan Petersilia, and Susan Turner, “Parolee Recidivism in California: The Effect of Neighborhood Context and Social Service Agency Characteristics,” Criminology 48 (forthcoming 2010). 22 Clear, Rose, and Ryder, “Incarceration and Community.”

Dædalus Summer 2010 31 Candace Kruttschnitt

The paradox of women’s imprisonment

It’s very hard. . . . It is very hard. There occupy in the overall prison population. are eight women in one room, you know On another level, the increasing rate of . . . especially when everybody gets up in imprisonment of female offenders may the morning and gets ready at the same produce a wide range of unintended, time. . . . There was six to a cell; now they and negative, developments for both put another [bunk] bed in there, which communities and families. To unravel made it eight. It’s terrible. these developments, we ½rst need to look at the numbers in both global and I think sometimes . . . we’re like, we’re get- temporal contexts. We can then consid- ting warehoused, through storage, you er the collateral consequences of impris- know . . . women’s storage or something oning an increasingly large number of . . . just kind of put away, because um, you women offenders. In other words, we don’t see much focus on women’s prison. are “going to be looking hard at the You see a lot on men’s. females in the system.” –From inmates at Valley State Prison for Women1 Women make up between 2 and 9 percent of the total prison population in In 1991, during the height of the impris- about 80 percent of the prison systems onment boom in the United States, a throughout the world.3 In the United distinguished scholar commenting on States, women fall at the higher end of a Blue Ribbon Commission on Inmate this distribution, making up 7 percent Population Management noted that of all individuals under the jurisdiction because females represent only a frac- of state and federal authorities.4 While tion of the prison population they are this is a small percentage of the prison relatively unimportant. As he put it, population, women have been hit espe- “[W]hen you have got as much of a change cially hard by the mass imprisonment as we do in a system, which is 95 percent movement, as revealed by a comparison male . . . you are not going to be looking of proportionate growth rates of male hard at the females in the system.”2 On and female prisoners. Between 1980 and one level, this assertion makes perfect 2008, the U.S. women’s imprisonment sense given the small percentage females rate increased more than sixfold, moving from 11 to 69 per 100,000 residences, as © 2010 by the American Academy of Arts the incarceration rate for men increased & Sciences

32 Dædalus Summer 2010 a little more than threefold, moving from can American women’s imprisonment The 275 to 957 per 100,000.5 Although various rates increased by 50 percent, topping paradox of women’s factors contributed to this disproportion- out at 175 per 100,000. There are signs imprison- ate growth in women’s imprisonment, that this trend may be waning, as arrests ment two factors are particularly important. and convictions of African Americans The ½rst is the shift from indeterminate for drug offenses declined somewhat be- to determinate sentencing. Indetermi- tween 1999 and 2005.10 Nevertheless, the nate sentencing, which guided penal pol- current incarceration rate for African icy for three-quarters of the twentieth cen- American women in this country (150 tury, was an “offender-based,” as opposed per 100,000 in 2007) exceeds the total to an “offense-based,” system.6 In this imprisonment rate (that is, both men context, judges could consider a wom- and women) of all European countries an’s role in the offense and the extent except Spain.11 It is unlikely that this and severity of her prior record along development will change in the near with external factors, such as her family future, as the passage of “truth in sen- responsibilities, when determining the tencing” laws in twenty-nine states costs and bene½ts of a noncustodial or requires that offenders, especially those custodial sanction. With the move to convicted of violent crimes, serve at least determinate sentencing, judicial discre- 85 percent of their sentence before tion was severely curtailed, and persis- becoming eligible for release. tent offending rather than the severity or dangerousness of offending emerged as Costs accrued to the United States, in the most important criterion for impris- both social and human capital, from the onment.7 Second, these gender-neutral incarceration binge of the last several de- sentencing policies were compounded by cades is the subject of serious concern to the war on drugs, which produced man- both scholars and policy-makers. Social datory prison sentences for certain drug capital (networks and collective action) offenses. affects how individuals can achieve their The result of this legislation has been goals within their communities and neigh- dramatic not only in terms of the sheer borhoods; human capital (the resources increase in the female imprisonment rate, and skills individuals use to function ef- but also in terms of the offender and racial fectively in society) builds on and draws compositions of the aggregate state prison from social capital. Though the social population. Whereas in the 1980s most capital of both men and women is impor- of the women behind bars were convict- tant to understanding community life, ed of either violent crimes or property assessments of the toll the mass incar- offenses (and only 12 percent were incarceration movement has taken on society cerated for a drug offense), by the end of have been primarily concerned with the the century violent offenders made up large numbers of men who are cycling just 28 percent of the female prison pop- in and out of already low-functioning ulation and drug offenders 35 percent.8 neighborhoods. This inattention to fe- Their numbers have grown so fast that, male offenders, at least in this context, currently, one-third of all the women in is surprising because women are partic- the world who are being held behind bars ularly invested in community social net- are in the United States,9 and a dispro- works. They have more networks outside portionate number of them are African of their families and are more emotion- American. Between 1990 and 2000, Afri- ally responsive to social ties than are

Dædalus Summer 2010 33 Candace men.12 Early ethnographies of poor urban are, by and large, already socially and Kruttschnitt areas depicted women as the “glue” that economically disadvantaged.17 This is on mass incarcer- kept disorganized neighborhoods func- no less true of women than of men, many ation tioning, as they drew upon their social more of whom are the only caretakers in networks to supplement welfare payments the family. Because the number of female and minimum-wage employment.13 prisoners grew at a faster pace than the Recent empirical studies of support net- number of male prisoners over the last works in disadvantaged neighborhoods, decade of the twentieth century, the however, suggest that it is the leverage number of children with a mother in women have in child care, not in ½nancial prison doubled (up 98 percent), whereas matters, that is crucial.14 They wield the number of children with a father in considerable informal social control in prison increased by just over 50 percent. their interactions with neighbors and Speci½cally, at the end of the last decade, their children, and in some contexts, 65 percent of the women in state prisons these ties can have a signi½cant impact (and 59 percent of those held in federal on controlling crime.15 As sociologist facilities) had children under the age of Dina Rose and criminologist Todd Clear eighteen, and the majority of these women point out, these types of support are par- were single custodial parents prior to ticularly important in poor communi- their arrest. Despite their heavy “bread- ties, which are more dependent on infor- winner” responsibilities, 70 percent of mal currencies of exchange than are in- female state prison inmates (compared dividuals living in more well-off com- to 53 percent of male inmates) report they munities.16 Therefore, the threshold for were living on less than $1,000 a month negatively impacting socially disorgan- prior to their arrest. These prisoners were ized neighborhoods by removing wom- three times more likely than their male en may be lower than it is when men are counterparts (and ½ve times more likely removed; or, stated differently, remov- in the federal prisons) to rely on transfer ing fewer females through incarceration pays such as welfare or unemployment may have a stronger effect on communi- insurance to support their families prior ties than removing larger numbers of to imprisonment.18 males. Loïc Wacquant suggests in his essay The degree to which women can effec- for this issue that “workfare and prison- tively draw from and contribute to their fare” are two sides of the same coin that communities depends on their own serve to “ensnare” marginal females and human capital and the educational and males.19 Welfare ensures poor women economic opportunities which they, in and their children are held personally turn, provide for their children. Research- accountable to the state, while the ac- ers take seriously the missed educational countability of their male counterparts opportunities and attendant job prospects is controlled through various arms of for male offenders and their families when the criminal justice system. In reality, men are sent to prison. But what is the however, women inmates are subjected cost to society and individual families to both forms of regulation, as they are when women are sent to prison? As disproportionately likely to have been Bruce Western and Becky Pettit point under the aegis of the welfare system out in their essay in this issue, serving both prior to imprisonment and after.20 time diminishes subsequent economic Moreover, the restructuring of welfare opportunities among individuals who regulations has added to the obstacles

34 Dædalus Summer 2010 faced by incarcerated women, with the I was there for four days because I had a The move from Aid to Families with Depen- C-section, otherwise most of the girls are paradox of women’s dent Children (afdc) to the Temporary there less than twenty-four hours. They imprison- Assistance to Needy Families (tanf). give birth, they see the baby, and then ment Since all but eight states imposed a life- they’re brought straight back here . . . ei- time ban on tanf for persons convicted ther they have arrangements for family to of drug felonies–an offense for which pick them up or they go to the State. . . . women are much more likely to be [Y]ou’re not allowed to make phone calls imprisoned than men–it is not surprising from the hospital. [The social worker] that 20 percent of the mothers in state was making the phone call back and forth prison reported being homeless or living between the twin’s father and up north on the streets prior to their incarceration.21 [where my friend lived]. . . . [W]hen it got A central concern with sending women down to the fourth day, she told me, “Well, to prison has always been what happens I think it’ll be okay if he takes them.” But to their children; this concern has been he’s on drugs; now he’s in jail; now I heightened, of course, with the increasing don’t know where my kids are. numbers of women behind bars. When Such reports from prisoners about the fathers go to prison, in virtually all cases location of their children are taken, and (90 percent), the children reside with reflect their whereabouts, at only one their mother. But when mothers go to point in time. Yet interviews with chil- prison, only a little more than one-quarter dren of incarcerated mothers reveal they (28 percent) report that their children are often experience considerable instability residing with their father. Instead the in their home life and schooling as a result children are often moved to live with a of, for example, living ½rst with a grand- grandparent (53 percent) or another rela- parent, then with an aunt, and then in a tive. In some cases, they are placed in, foster home or with a friend.24 Further, or remain in, foster care (10 percent).22 the homes of relatives, and even foster The passage of the Adoption and Safe homes, are rarely ideal living situations. Families Act (asfa) by Congress in 1997 Relatives often reside in marginal neigh- furthered women’s insecurities about borhoods, lack steady employment, and the whereabouts of their children when have substance abuse problems of their they are imprisoned. The asfa, unlike own, thereby adding to the risks these its predecessor (the 1980 Adoption Assis- children already face.25 As the following tance and Child Welfare Act, which dis- woman makes clear, prisoners are often couraged states from removing children acutely aware of how this affects their from their homes), places time limits on children: reuni½cation efforts and encourages states to terminate parental rights when reuni- My daughter is having problems because ½cation is not feasible within speci½ed I’m not home with her, you know? And time frames. Because twenty-½ve states sometimes they treat her good where she have adopted statutes that are applicable lives, and sometimes they don’t, you know? to incarcerated parents,23 women prison- She lives with my cousin . . . they start ers’ chances of post-incarceration reuni½- messing with her and that makes her sad. cation with their children have substantially There is no question that incarceration diminished. Reuni½cation is virtually im- restructures families, but when mothers possible for women, such as this prisoner, are incarcerated, it often devastates them. who lose track of their children after birth:

Dædalus Summer 2010 35 Candace Developmental outcomes of children never having received a visit from their Kruttschnitt who have lost a parent to incarceration children.28 For those who haven’t seen on mass incarcer- are not well understood, particularly their children, or who haven’t seen them ation when it is the mother who has been re- for many years, the toll it takes on their moved from the home. While scholars well-being can be quite signi½cant: have been careful to consider the possi- I saw my children a few years ago. . . . I bility that losing an unstable or abusive need to see them. I need to know, besides parent may actually be bene½cial to a letter. . . . I need to see them, person to a child’s development, the available person, and to be able to look in their eyes evidence suggests there are few, if any, and I’ll know whether they’re alright or advantages for children to parental im- not. . . . I need it for peace of mind. I need it prisonment. Speci½cally, the best avail- for structure, for myself. And I have told able research (prospective longitudinal myself for years that it didn’t matter, but studies that are able to account for com- really it does matter. peting risks like parental criminality, low family income, poor parenting, and low Unfortunately, most of the research child iq) ½nds that parental imprison- on the developmental effects of parental ment increases the risk of school failure, incarceration has failed to examine (1) delinquency, unemployment, mental whether children’s behavior problems health problems, and drug abuse among are worse when mothers, rather than children.26 There is also evidence sug- fathers, go away and (2) how age at pa- gesting that maternal or paternal arrest rental separation due to incarceration increases family instability and economic affects children. There are, however, a strain independent of parental traits (for few studies that report worse effects for example, substance abuse, mental health children of imprisoned mothers, relative problems, lack of education, race) that to those with imprisoned fathers. While may contribute to such instability and these ½ndings may be attributed to dif- economic adversity.27 ferences in maternal versus paternal There are several reasons why we might attachment or contact availability during expect that maternal imprisonment is the carceral period, they also may be due particularly dif½cult for children. First, to the high probability that these children because mothers are often the primary will have no parental ½gure, or a deviant caretakers and source of parental attach- one, when their mother is incarcerated. ment, especially for young children, their Women offenders’ prospects for mate loss may be felt more acutely by children selection are clearly limited by both the than when fathers are removed from the disorganized neighborhoods in which home. Second, it may be harder to main- they reside and their de½ciencies in hu- tain close ties with an imprisoned moth- man capital, which are compounded by er than an imprisoned father since there a period of imprisonment.29 It is also are fewer state prisons for women than important to recognize that the stigma men, and they are often located in more derived from having a parent incarcer- remote regions. Certainly, the vast major- ated is likely to be much greater when ity of imprisoned mothers and fathers it involves the mother rather than the report having some contact with their father. Despite increases in female arrest children since admission to prison (either rates, offending remains more normative by mail or by phone), but more than one- for men than women. Not surprisingly, half of the mothers in state prison report and even with limited data sources, the

36 Dædalus Summer 2010 most complete review of this literature ignored in the current punitive climate. The concludes “that children may have worse Yet we know that the effects of over- paradox of women’s reactions if their mother is imprisoned, if crowding and extreme levels of security imprison- parents are imprisoned for longer periods are debilitating and last beyond the ment of time and if parents are held in more period of incarceration.34 punitive penal contexts.”30 These are distressing ½ndings because Reentering and “soon-to-be-released we know that sentence length and con- inmates” paint the saddest picture of ditions of con½nement have changed our current imprisonment crisis. Wom- for women. Largely as a result of truth- en are 8 percent to 10 percent of these in-sentencing legislation and various returnees.35 They have very different “add-ons,” which allow prosecutors to needs and obstacles than their counter- increase sentences based on offenders’ parts did in earlier years because women’s prior records, the average time served in prisons now hold more drug offenders state prison for those serving a ½rst sen- and offenders with mental health prob- tence increased by seven months (from lems. Prison programs that might ad- twenty-two to twenty-nine months) dur- dress these needs are nearly absent since ing the 1990s.31 For federal prisoners, this state budgets have been sharply cut in average increased further still between the recession, and state legislators want 1986 and 1997, doubling from ½fteen to make it clear that the prisons they are months to twenty-nine months; for running are not “country clubs for cons.” drug offenders, it jumped from twenty Even the most basic skills necessary for to forty-three months.32 Several scholars rebuilding their lives are often dif½cult are also documenting how the boom in for prisoners to obtain while incarcerated. prison construction is affecting women’s For example, only about one-third of all conditions of con½nement. California is inmates who were preparing for release particularly noteworthy in this respect. from prison in 1997 had participated in Over the course of the 1990s, three new either an educational program (35 per- correctional facilities for women opened; cent) or a vocational program (27 per- two of these facilities (Central California cent).36 Most states cut back on educa- Women’s Facility and Valley State Prison tional programs for prisoners when the for Women) have a design capacity of two federal government eliminated inmates’ thousand each (holding four women in eligibility for Pell Grants (which sup- each cell). Currently, these two facilities ported their efforts to obtain secondary are both at 200 percent occupancy, education) in the mid-1990s. The re- housing four thousand inmates who are duction in prison education programs double-bunked (eight per cell) in each occurred as part of the Violent Crime facility. Because both of these facilities Control and Law Enforcement Act, de- were designed to accommodate male spite numerous ½ndings that link educa- offenders in the event that the female tion to lower recidivism rates, especial- prison population eventually declines, ly among female ex-offenders.37 the women are subjected not only to Vocational training and work release extreme levels of overcrowding but also programs are also known to be effective to far more security than they need.33 in reducing recidivism.38 Yet in California The conditions of con½nement, subject to (which had the largest prison population much research during the rehabilitative of any state in 2007) nearly one-half of era of the 1960s, have virtually been all the prisoners released in 2006 report-

Dædalus Summer 2010 37 Candace ed they had not participated in any work address this problem,42 even though such Kruttschnitt assignment or rehabilitation programs programs are known to lower levels of on mass 39 43 incarcer- for the entirety of their imprisonment. post-release substance abuse. Prisoners ation Vocational programs and job training are are well aware of the lack of resources especially important for women prisoners they have for changing their lives and the who hope to reunite with their children apparent abdication of rehabilitative ser- and overcome their dismal work histories vices by the “California Department of to support them. In fact, job assistance Corrections and Rehabilitation.” As the has been shown to be quite important prisoners describe it, this shortage of for reducing women’s odds of reoffend- services includes not just basic education ing. A sample of women with felony con- but much-needed drug treatment as well. victions in Minnesota and Oregon were There are many fewer programs now than interviewed as they entered a period when I came. . . . The system has given up of probation/parole supervision and on rehabilitation; it’s warehousing, not reinterviewed six months later. At the rehabilitating, people. We need more edu- time of the follow-up interview they cation programs. The youngsters coming were asked whether they reoffended in need to be tested on reading and writing; (had been rearrested or had violated they should be required to get their geds their conditions of supervision) and ½rst and then be assigned to jobs. They whether they had received one of two have to learn to read and write before they kinds of state resources: subsidized hous- leave here or they’ll be coming right back. ing or assistance in identifying potential employers, ½lling out job applications, I’m third time committed. I never got and developing interview skills. Analy- drug diversion to begin with. . . . I asked sis of the data (which addressed risk the judge when I got busted this time for level, education, age, and race) revealed a rehab, in-patient program out on the that providing these resources reduced street. No chance . . . I don’t understand the odds of recidivism by 83 percent.40 that. I really honestly do not understand The lack of planning for the reentry of that. Why would you want to continually female offenders is particularly striking put somebody in here and to bring them given the sizable growth in the female back? Because it’s not helping; it’s not. inmate population and the considerable All it’s doing is creating a worse attitude rhetoric that has developed around the out there on the street. You go back and notion of “what works” for women create more criminal activity. offenders. The conventional wisdom is Programming that would address par- that women need “gender responsive” enting needs is also absent despite re- programming to address their unique search that shows that children often act backgrounds and circumstances: histo- as a catalyst for positive change in women ries of abuse, drug addiction, and poor offenders.44 The Vera Institute study45 parenting skills. Nevertheless, the devel- of maternal incarceration found that “be- opment of such programs, particularly ing responsible for children often serves in prison and in the period of transition to put a brake on a parent’s destructive from imprisonment into the community, behaviour, including drug use and illegal has been spotty at best.41 In California, activities [and] once that brake is removed, 80 percent of prisoners report having a destructive behaviour accelerates.” But substance abuse problem, but only 18 per- the chances of reuni½cation hinge not cent are placed in programs that would

38 Dædalus Summer 2010 only on the degree to which women are we imprison fewer women. But how The seen as “adequate” parents but also the will this be accomplished? Legislative paradox of women’s degree to which they can provide a stable changes that give greater weight to the imprison- environment for their children. Public severity and dangerousness of an offend- ment housing has long been the most viable er’s actions, rather than to their risk of option for released prisoners since pri- reoffending, would be an important vate property owners have the right to start. Relatively few women offenders deny housing to anyone with a criminal pose a serious risk to society, and many record. But since 1988, when Congress would be much better served by remain- amended the public housing statute with ing under court supervision in their com- a “one strike” option that can exclude ap- munities. Such legislative changes must, plicants with a criminal record, women however, be coupled with scienti½cally offenders have few options for providing credible drug treatment programs. Be- a safe, secure, and affordable place for cause women’s substance abuse prob- their children to live.46 lems play a large role in both their offending histories and in the likelihood The paradox of women’s imprison- that their children will suffer family and ment, then, lies in the sizable repercus- economic instability, we need a greater sions it has on society given the small public health (as opposed to criminal number of individuals it affects. There justice) investment in effective interven- is no question that many of these wom- tions for drug addiction. Women pris- en have exercised poor judgment, but oners’ needs obviously extend beyond most are still an important resource for these suggestions and include, as noted, their communities and their families, adequate housing and secure employ- and all of them will have a signi½cant ment; but, at least in the short term, these impact on the risk of criminality in the investments could have sizable payoffs next generation of youth. It seems rea- by generating more community stabili- sonable to suggest that many commu- ty and putting fewer children at risk. nities and children will be better off if endnotes 1 These quotes, and subsequent quotations from prisoners throughout this article, are taken from the study “Women in Prison in the 1990s: A Temporal and Institutional Compari- son” conducted by the author and Rosemary Gartner and funded by the National Science Foundation (Grant #9617285). 2 Franklin E. Zimring, “Correctional Growth in Context,” in Growth and Its Influence on Cor- rectional Policy: Perspectives on the Report of the Blue Ribbon Commission, Proceedings of a Conference at the University of California, Berkeley, May 10–11, 1990 (Berkeley, Calif.: Guggenheim Criminal Justice Program, 1991), 12–13. 3 Roy Walmsley, World Female Imprisonment List, 8th ed. (London: King’s College London, International Centre for Prison Studies, 2009). 4 Bureau of Justice Statistics, Prison Inmates at Midyear 2008–Statistical Tables, ncj-225619 (Washington, D.C.: U.S. Department of Justice, 2009). 5 See Candace Kruttschnitt, “Women’s Prisons,” in Oxford Handbook of Crime and Criminal Justice, ed. Michael Tonry (New York: Oxford University Press, forthcoming 2010), Table 2.

Dædalus Summer 2010 39 Candace 6 Franklin E. Zimring, Gordon Hawkins, and Sam Kamin, Punishment and Democracy: Three Kruttschnitt Strikes and You’re Out in California (New York: Oxford University Press, 2001), 114. on mass incarcer- 7 California’s passage of the Three Strikes law in 1994 is paradigmatic of this shift. As ation Zimring and his colleagues noted about this piece of legislation, “Any trivial felony by a twice-convicted burglar will call down a larger sentence for a third time loser than a non-aggravated second degree murder will generate for a non-third strike defendant”; Zimring, Hawkins, and Kamin, Punishment and Democracy, 9. 8 Candace Kruttschnitt and Rosemary Gartner, “Women’s Imprisonment,” in Crime and Justice: A Review of Research, vol. 30, ed. Michael Tonry (Chicago: University of Chicago Press, 2003), Table 3. 9 Walmsley, World Female Imprisonment List. 10 Marc Mauer, “The Changing Racial Dynamics of the War on Drugs” (Washington, D.C.: The Sentencing Project, 2009). 11 Kruttschnitt, “Women’s Prisons,” in Oxford Handbook of Crime and Criminal Justice, ed. Tonry. 12 See Ronald Kessler and Jane D. McLeod, “Sex Differences in Vulnerability to Undesirable Life Events,” American Sociological Review 49 (1984): 620–631; Jay R. Turner and Franco Marino, “Social Support and Social Structure: A Descriptive Epidemiology,” Journal of Health and Social Behavior 35 (1994): 193–212; Natalia Sarkisian and Naomi Gerstel, “Kin Support among Blacks and Whites: Race and Family Organization,” American Sociological Review 69 (2004): 812–837. 13 Kathryn Edin and Laura Lein, “Work, Welfare, and Single Mothers’ Economic Survival Strategies,” American Sociological Review 62 (1997): 253–266. 14 Kristin Turney and Kristen Harknett, “Neighborhood Socioeconomic Disadvantage, Resi- dential Stability, and Perceptions of Social Support among New Mothers,” working paper #2007-08-ff (Center for Research on Child Wellbeing, 2007). 15 Pamela Wilcox Rountree and Barbara D. Warner, “Social Ties and Crime: Is the Relation- ship Gendered?” Criminology 37 (1999): 789–814. 16 Dina R. Rose and Todd R. Clear, “Incarceration, Social Capital, and Crime: Implications for Social Disorganization Theory,” Criminology 36 (1998): 456–457. 17 See Bruce Western and Becky Pettit, “Incarceration and Social Inequality” in this issue. 18 Bureau of Justice Statistics, Incarcerated Parents and Their Children, ncj-182335 (Washing- ton, D.C.: U.S. Department of Justice, 2000). 19 See Loïc Wacquant, “Class, Race, and Hyperincarceration in Revanchist America” in this issue. 20 See Kristin F. Butcher and Robert J. LaLonde, “Female Offenders Use of Social Welfare Programs Before and After Jail and Prison: Does Prison Cause Welfare Dependency?” working paper series 07.18 (Chicago: Harris School, University of Chicago, 2006). Butcher and LaLonde examined patterns of welfare receipt for 45,000 women inmates from Cook County, Illinois, sentenced to prison or jail terms. They found that in the four to ½ve months after parole, women’s welfare receipt rates drop, but after one year they approach their base levels of receipt prior to prison. 21 Butcher and LaLonde also found that the Personal Responsibility and Work Opportunity Reconciliation Act (prwora) had no effect on the use of tanf by female drug offenders in Illinois, but the Illinois legislature provided these women with a variety of avenues for waiving the bans; Butcher and LaLonde, “Female Offenders Use of Social Welfare Programs Before and After Jail and Prison,” 35. See also Christopher Wildeman, “Parental Incarcera- tion, Child Homelessness, and the Invisible Consequences of Mass Imprisonment,” unpublished paper (University of Michigan, School of Public Health, 2009).

40 Dædalus Summer 2010 22 Bureau of Justice Statistics, Incarcerated Parents and Their Children. An analysis of maternal The incarceration and foster care by the Vera Institute revealed that many mothers of children paradox of in foster care lost their children prior to incarceration. Minor offenses (usually involving women’s imprison- drugs) resulted in their children’s out-of-home placement, which, in turn, fueled more ment maternal crime and ultimately incarceration; Vera Institute of Justice, Hard Data on Hard Times: An Empirical Analysis of Maternal Incarceration, Foster Care, and Visitation (New York: New York Administration for Children’s Services, 2004). 23 Vernetta D. Young and Rebecca Reviere, Women Behind Bars: Gender and Race in US Prisons (Boulder, Colo.: Lynne Rienner Publishers, 2006), 111. 24 Grandparents are severely limited in the ½nancial assistance they can obtain when they agree to take a grandchild in due to maternal incarceration. Most states only offer of½cial ½nancial assistance for caregivers if they have obtained legal guardianship of children who have been in the foster care system; American Association of Retired Persons, Help for Grandparents Raising Grandchildren: Guide to Public Bene½ts for Grandfamilies (2009), http://www.aarp.org/families/grandparents/raising_grandchild/public_bene½ts_guide .html (accessed November 12, 2009). 25 Peggy C. Giordano, Legacies of Crime: A Follow-Up of the Children of Highly Delinquent Girls and Boys (New York: Cambridge University Press, 2010). 26 Joseph Murray and David P. Farrington, “The Effects of Parental Imprisonment on Chil- dren,” in Crime and Justice: A Review of Research, vol. 37, ed. Michael Tonry (Chicago: Uni- versity of Chicago Press, 2008). 27 Susan D. Phillips, Alaattin Erkanli, Gordon P. Keeler, E. Jane Costello, and Adrian Angold, “Disentangling the Risks: Parent Criminal Justice Involvement and Children’s Exposure to Family Risks,” Criminology and Public Policy 5 (2006): 677–702. 28 Bureau of Justice Statistics, Incarcerated Parents and Their Children. 29 Kristin Carbone-Lopez and Candace Kruttschnitt, “Risky Relationships? Assortative Mat- ing and Women’s Experiences of Intimate Partner Violence,” Crime and Delinquency (2010). 30 Murray and Farrington, “The Effects of Parental Imprisonment on Children,” 186. 31 Bureau of Justice Statistics, Trends in State Parole, 1990–2000, ncj-184735 (Washington, D.C.: U.S. Department of Justice, 2001). 32 Bureau of Justice Statistics, Time Served in Prison by Federal Offenders, 1986–97, ncj-171682 (Washington, D.C.: U.S. Department of Justice, 1999). 33 See Candace Kruttschnitt and Rosemary Gartner, Marking Time in the Golden State: Women’s Imprisonment in California (New York: Cambridge University Press, 2005). Also see Andi Rierden, The Farm: Life inside a Women’s Prison (Amherst: University of Massachusetts Press, 1997). 34 Craig Haney, Reforming Punishment: Psychological Limits to the Pains of Imprisonment (Wash- ington, D.C.: apa Books, 2006). 35 Joan Petersilia, “From Cell to Society: Who is Returning Home?” in Prisoner Reentry and Crime in America, ed. Jeremy Travis and Christy Visher (New York: Cambridge University Press, 2005), 19. 36 J. P. Lynch and W. J. Sabol, Prisoner Reentry in Perspective (Washington, D.C.: Urban Insti- tute, 2001). 37 Christopher Uggen and Candace Kruttschnitt, “Crime in the Breaking: Gender Differences in Desistance,” Law and Society Review 32 (1998): 339–366. See also Nancy G. La Vigne, Lisa E. Brooks, and Tracey L. Schollenberger, “Women on the Outside: Understanding the Ex- periences of Female Prisoners Returning to Houston, Texas” (Washington, D.C.: Urban Institute, Justice Policy Center, 2009).

Dædalus Summer 2010 41 Candace 38 R. Seiter and K. Kadela, “Prisoner Reentry: What Works, What Does Not, and What Is Kruttschnitt Promising,” Crime and Delinquency 49 (2003). on mass incarcer- 39 Joan Petersilia, “California’s Correctional Paradox of Excess and Deprivation,” in Crime ation and Justice, vol. 37, ed. Tonry, 211. 40 Kristy Holtfreter, Michael D. Reisig, and Mary Morash, “Poverty, State Capital, and Recidivism among Women Offenders,” Criminology and Public Policy 3 (2004): 185–208. Research on 142 women released from Texas state prisons and jails in 2005, as part of the Returning Home Study of prisoner reentry in Maryland, Illinois, Ohio, and Texas, found that women who participated in job training in prison were more likely than those who did not participate to be employed eight to ten months after their release; La Vigne, Brooks, and Schollenberger, “Women on the Outside,” 7. 41 See Kruttschnitt, “Women’s Prisons,” in Oxford Handbook of Crime and Criminal Justice, ed. Tonry. 42 Little Hoover Commission, Breaking the Barriers for Women on Parole (Sacramento, Calif.: Little Hoover Commission, 2004), 43. 43 La Vigne, Brooks, and Schollenberger, “Women on the Outside,” 11. 44 Peggy C. Giordano, Stephan A. Cernkovich, and Jennifer L. Rudolph, “Gender, Crime, and Desistance: Toward a Theory of Cognitive Transformation,” American Journal of Sociology 107 (2002): 990–1064. 45 Vera Institute of Justice, Hard Data on Hard Times, 14. 46 See also La Vigne, Brooks, and Schollenberger, “Women on the Outside,” 5.

42 Dædalus Summer 2010 Jeffrey Fagan

The contradictions of juvenile crime & punishment

Juvenile incarceration in the United off-limits. Whatever developmental im- States is, at ½rst glance, distinctly dif- portance these forms of self-expression ferent from its adult counterpart. While and self-determination may have for ad- some juvenile facilities retain the iconic olescents, it is sacri½ced to the primary aesthetic of adult incarceration1–orange goals of security, control, discipline, and jumpsuits, large cellblocks, uniformed punishment. Most important, at either guards, barbed wire, and similar heavy- end of the continuum of institutional security measures–others have trappings climate, the options of solitary con½ne- and atmospherics more reminiscent of ment, physical restraint, or other forms of boarding schools, therapeutic commu- extreme deprivation exist to control the nities, or small college campuses. These de½ant and unruly or to punish wrong- compact, benign settings avoid the phys- doing. Accordingly, the naming conven- ical stigmata of institutional life and actions for these juvenile facilities are de- cord some autonomy of movement and ceptive: these are not “training schools” intimacy in relations with staff. They also or “centers” or any other kind of school give primacy to developmentally appro- or academy, nor are they “homes.” These priate and therapeutic interventions. are correctional facilities whose primary However, like its adult counterpart, purpose is to punish. juvenile corrections, whether located in One would expect such institutions to a human warehouse or a therapeutic com- be reserved for those who are most de- munity, is designed mainly to control its serving of punishment or those who pose residents and restrict their personal free- a nontrivial risk to public safety. But un- doms. Movement and association are in- der the enduring doctrine of parens patri- tensively regulated; outside contact with ae,2 we incarcerate children for a mixed family, friends, and intimate partners is bag of rationales, ones that do not always attenuated and used as an incentive for comport with the punitive dimensions good behavior; access to media and cul- of juvenile incarceration. Parens patriae ture is restricted; privacy is nonexistent; obligates the court to act beyond the and choice of clothing, language, and need simply to protect children from the other modes of personal expression is harms of noxious social circumstances or to avail them of developmental and © 2010 by the American Academy of Arts material supports that their families have & Sciences failed to provide. The doctrine allows–

Dædalus Summer 2010 43 Jeffrey even mandates–juvenile courts to pro- remain harsh, a sign of both cynicism Fagan tect children from themselves: from their about rehabilitation and institutional on mass 8 incarcer- associations with antisocial peers, from self-interest, as well as neglect. States ation poor decision-making with respect to have quickened the pace of expulsions of crime, and from harms to their physical juvenile offenders to the criminal courts and mental health to which they expose and prisons as a way to “get tough,”9 themselves.3 As a result, we incarcerate even as they refuse to lower the age of children because their homes are too dan- majority and fundamentally alter eligi- gerous or criminogenic; because they are bility for the protections of juvenile in- both delinquent and mentally ill or ad- stitutions. Racial disparities remain du- dicted to intoxicants and there are no rable and defy explicit legislative and other appropriate placements; because policy efforts to reduce them. they need therapies that are unavailable These contradictions and puzzles elsewhere, even though they pose no se- inform this essay on juvenile incarcera- curity risks; because they are homeless; tion. The patterns of growth in juvenile because they are sexually active at young corrections suggest ambivalence about ages; or because we think they may com- the reform and rehabilitation of juvenile mit some crime in the near future.4 offenders, notions that have been bat- The resulting landscape of juvenile tered by three successive waves of high incarceration has been, not surprisingly, crime over the past thirty years. On the complex and shifting since the 1970s, the one hand, courts and legislatures want to decade when adult incarceration trends be tough; on the other hand, there are began their robust increase. Since that strong preservationist instincts at play time, juvenile incarceration, and juvenile that have muted the growth in incarcera- justice itself, has been situated in a space tion of minors. “Getting tough” on juve- bounded by the transcendent nineteenth- nile offenders has thus been assigned to century child-saving movement, the pro- the criminal courts and adult correctional cedural rights movement of the 1960s, institutions. But there are signs of ambiv- and the raw emotional politics of violent alence there, with relatively short sen- crime and punishment in the past three tences and a responsiveness to crime rates decades. Accordingly, we see contradic- in new admissions (flow) and total pop- tions everywhere in this terrain. Growth ulation (stock) that is the opposite of in the incarcerated population since the what we see for adults. States have dem- 1970s has been restrained, even in the onstrated their ambivalence by avoiding face of a youth violence epidemic,5 and change to the age of majority, the last re- even as rhetoric has grown harsher and sort in increasing punitiveness for juve- statutes have been revised to express the niles. Such a step would be a poison pill language of retribution and incapacita- for the doctrine of parens patriae in which tion.6 States, for the most part, have ac- juvenile corrections is steeped. Racial dis- knowledged the advantages of small facil- parity pervades juvenile incarceration, ities to advance the core rehabilitative yet Congress attempted remedial steps and therapeutic projects that informed never contemplated for adults, by engag- the creation of separate institutions for ing states in a collaborative project to re- juveniles nearly two centuries ago, even duce racial inequalities in juvenile deten- if they have not necessarily acted on those tion and corrections. What this all adds ideas and instincts.7 At the same time, the up to is an institutional landscape that conditions in juvenile corrections often at once fears child criminals and wants

44 Dædalus Summer 2010 to punish them harshly, but at the same than 20 percent by 2008, to approximate- The contra- time adheres to the transcendent philos- ly 81,000 children living in either state- dictions of juvenile ophy of child-saving. operated facilities or privately operated crime & group homes, or 263 youths per 100,000 punishment Beginning in the 1970s, the traditional persons ages ten to seventeen.14 This discretion of juvenile court judges to juvenile placement rate today pales in place youths in correctional con½nement comparison to the adult incarceration was contested, as was the discretion of rate of 762.15 corrections of½cials to determine how Figure 1 shows that placements in pub- long youths would remain in placement. lic facilities accounted for most of the On balance, discretion lost. The introduc- rise and fall in juvenile incarceration, and tion of mandatory minimum sentences that these were somewhat responsive to for juveniles in New York and elsewhere the rise and subsequent fall in juvenile in the 1970s was followed in subsequent arrests. Between 1997 and 2008, juvenile decades by new laws mandating waiver arrests declined by 33 percent, while the to adult court and mandatory placement overall correctional placement of youths in a secure facility.10 In this hardening declined by 26 percent.16 Placement in political atmosphere, fueled by rising private facilities rose more slowly and juvenile arrest rates and a punitive drift was fairly stable over time. toward more formal processing and less About 70 percent were committed fol- diversion, one might have predicted rap- lowing an adjudication of delinquency, id and persistent growth in the rate of ju- and 28 percent were detained prior to the venile imprisonment starting in the 1970s. resolution of their case.17 They were in- By the 1990s, when a moral panic over a carcerated on a variety of offenses, with new species of juvenile offenders known the greatest number placed for person as “superpredators”11 and the spread of offenses (34 percent) followed by prop- violent youth gangs further animated leg- erty offenses (25 percent). Drug offenses islatures to pass tougher sentencing laws accounted for 9 percent of the incarcer- for juveniles,12 the conditions seemed ated population, but more were placed ripe for the juvenile court to follow a tra- for “public order” offenses such as alco- jectory of incarceration growth similar hol or disorderly conduct (11 percent) to the rise in adult rates. than were placed for drugs. As with their But it didn’t happen, at least not in ju- adult counterparts, many (16 percent) venile corrections. Growth in juvenile were placed for technical violations of incarceration in both public and private probation or juvenile parole. One in facilities was only a fraction of the growth twenty was placed for any of several in adult incarceration. Juvenile incarcer- “status offenses”: social behaviors that ation–both in short-term detention and do not violate any criminal code but that longer-term correctional placements– capture the court’s attention due to the rose from 73,023 youths in public institu- risk of danger to the child’s well-being.18 tions and private residential facilities in The area that grew most, however, was 1977 to 95,818 in 1992, the year preceding the number of juveniles below age eigh- the modern peak in juvenile arrests for teen in state prisons. The pattern in Fig- felony crimes.13 Juvenile incarceration ure 2 shows a rise in the number of per- peaked in 2000 at 108,802, a rate of 356 sons below age eighteen incarcerated in per 100,000 youths ages ten to seventeen. state prisons from 1985 to 2004, as well The placement rate declined by more as new admissions for that same group.

Dædalus Summer 2010 45 Jeffrey Figure 1 F Fagan Juvenile Placements in Public and Private Facilities and Juvenile Arrests for Violence, 1977–2006 on mass incarceration

Source: Melissa Sickmund et al., Easy Access to the Census of Juveniles in Residential Placement (National Center for Juvenile Justice, 2008), http://ojjdp.ncjrs.gov/ojstatbb/ezacjrp; Steven D. Levitt, “Juvenile Crime and Punishment,” Journal of Political Economy 106 (1998): 1156–1185.

The patterns reflect broader trends in prisons tracks the trend for the one-day juvenile crime and arrest, especially the census. There is no buildup of “stock” spike in juvenile violence from 1987 to for this population, unlike the steady 1996. The census population of minors in growth for adults. prison peaked at 5,400 in 1996 and de- The similar trend lines for the popula- clined by nearly half, to 2,477, in 2004.19 tion census and the new admissions sug- The population remained stable through gest that the sentences for this population 2007, when 2,283 youths were in state were shorter and releases were quicker, prisons or privately operated correctional reflecting a de facto youth discount that facilities programmed for adults.20 many states structure into sentencing Two trends in Figure 2 are notable and statutes under “youthful offender” or suggest conflicting instincts. “juvenile offender” provisions.21 The re- One is the rapid growth in the num- sponsiveness in the decline of juveniles ber of youths sentenced as adults. This in adult prisons beginning in 2000 shows trend is responsive to crime trends and a sensitivity to declining crime rates that also reflects a growing punitiveness to- is not evident for the adult population. ward youth crime that was structured Nevertheless, even short-term expo- into sentencing statutes. (The “get tough” sure for youths to adult prisons has risks trend for juveniles is discussed later in for youths and for public safety. To the this essay.) But the sentences seem to be extent that legislators ignored these risks, attenuated, suggesting that the legisla- the wholesale transfer of minors to the tures were tempered in setting tariffs for criminal courts was a reckless experiment. minors. Figure 2 shows that the number A robust body of research shows that re- of new admissions of minors to adult cidivism rates are in fact higher for youths

46 Dædalus Summer 2010 Figure 2 The contra- Inmates under Eighteen in State Prisons, 1985–2004 dictions of juvenile crime & punishment

Source: Howard Snyder and Melissa Sickmund, Juvenile Offenders and Victims: 2006 National Report (Washing- ton, D.C.: Of½ce of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice, 2006), 236–238, http://ojjdp.ncjrs.gov/ojstatbb/nr2006. sentenced as adults, after controlling for ly to receive education and other essential relevant offender and offense character- services, they are more likely to be vic- istics.22 There appears to be no marginal tims of physical violence, and they mani- deterrent effect from incarcerating mi- fest a variety of psychological symptoms.24 nors as adults, which was a cornerstone The residual consequences of adoles- of youth policy in the 1990s. One explana- cents’ exposure to violence in adult pris- tion for the elevated recidivism rates may ons are uncertain. But as a matter of prin- be the effects of adolescents’ exposure to ciple, it is not easy to reconcile this par- prison life and adult convicts. While like- ticular harm with the diminished blame- ly to be separated physically from older worthiness and culpability of adolescents. inmates, the institutional climate on the Social and behavioral science informed youth side may hardly differ from other recent Supreme Court jurisprudence on blocks in the prison: the separation may youth crime and punishment,25 but crim- be one of degree rather than kind. Indeed, inal court sentencing policies more gen- it may even worsen the chaos and vio- erally are hostile to the new cognitive lence of correctional con½nement by conscience of diminished culpability of ad- centrating youths who are at their peak olescents.26 Potentially dis½guring pun- ages of criminality and diminished self- ishments seem disproportionate, if not control.23 Only a few studies have com- cynical, in the context of this new evi- pared the correctional experiences of dence about the blameworthiness of ad- youths in prisons and juvenile incarcera- olescents, especially if criminal justice tion, but all agree that placing youths in goals are not well served by transfer and prisons comes at a cost: they are less like- subsequent incarceration.27

Dædalus Summer 2010 47 Jeffrey There are puzzles and contradictions the number of youths eligible for transfer Fagan behind these trends. While American to the criminal courts.30 In 1995 alone, on mass incarcer- lawmakers exponentially expanded pris- nineteen states amended their criminal ation on capacities for adults starting in the codes to facilitate the discretionary trans- 1980s, there was–with rare exceptions– fer of delinquents to the criminal court or no expansion of the capacities to incar- the wholesale exclusion of youths from cerate minors. This was one of two non- the juvenile court.31 Each strategy was events in modern juvenile justice that il- designed to increase punishment in num- lustrate the dissonance in thinking about bers and in severity. Several states adopt- responses to serious youth crime. Figure 1 ed mandatory minimum sentences for shows that the rate of increase in juvenile youths committed to state juvenile cor- con½nement was a fraction of the rate of rections authorities. Others adopted sen- increase in juvenile arrests; as crime de- tencing guidelines that ½xed sentences clined, juvenile courts responded quick- in the juvenile system based on a grid of ly by decelerating the rate of placements. offense, offender characteristics, and vic- Yet in the juvenile system, even as tim characteristics. Still other states ex- states made the choice not to build new panded eligibility for sentencing minors juvenile space and not to dramatically to life without parole, or death in prison, increase youth con½nement, every state and made those sentences automatic up- toughened its juvenile delinquency codes on conviction for enumerated crimes.32 rhetorically to deemphasize rehabilita- Prior to the 2010 U.S. Supreme Court rul- tion and focus on punishment, retribu- ing in Graham v. Florida that banned life- tion, and incapacitation.28 Thus, “get- without-parole sentences for juveniles ting tough” in the juvenile system was who did not commit murder,33 approxi- not an institutional project, but a statu- mately 2,484 youths were serving such tory one. Programming was largely un- sentences in 2008, many as young as affected, as the locus of effects of these thirteen, and many others for crimes new measures was on court decisions. other than murder or manslaughter.34 The changes took several forms, but all But these developments point to the had the combined effect of marginally second non-event in the toughening of increasing the likelihood of juvenile cor- juvenile justice and juvenile incarcera- rectional con½nement or lengthening the tion. Certainly, a state that truly wanted time spent in placement. to crack down on juveniles and make in- The harder work of “getting tough” carceration harsher could simply have was outsourced to the criminal justice lowered its age of major ity and sent all system, with states more often than not its older juvenile offenders to adult pris- using “regular” criminal law for juveniles. ons. Only two did so: Wisconsin and Statutes were amended to ease and ex- New Hampshire lowered the age of ma- pand the number of youths transferred jority from seventeen to sixteen in the to the criminal courts for sentencing as 1990s.35 In fact, one state, Connecticut, an adult.29 The results are evident in has begun a process to incrementally Figure 2, as the number of youths con- raise its age of majority from sixteen to ½ned in adult prisons rose (and fell) eighteen.36 New York and North Carolina sharply. The “get tough” measures took maintain the age of majority at sixteen; in several forms. Between 1990 and 1997, most states, it is still eighteen. every state in America modi½ed both Stopping short of the more obvious its juvenile and criminal codes to expand and expedient step of lowering the age

48 Dædalus Summer 2010 of majority, states have instead used an rehabilitative and child-saver clothing. The contra- incremental and piecemeal legislative Why did juvenile corrections expand so dictions of juvenile strategy to criminalize delin quency and little during a time of unprecedented and crime & thereby allow them to sentence adoles- unrestrained growth in adult corrections? punishment cents to adult punishment for crimes And why did it transform from warehous- committed as minors. But despite the ing to embracing smaller, more therapeu- wave of transfer legislation, the current tically grounded facilities?39 The num- statutory landscape is an elaborate game bers reveal the tension between two fea- of chutes and ladders, with some youths tures of American jurisprudence sur- automatically transferred to the criminal rounding juvenile offenders. We believe courts only to be “reverse waived” back deeply in child-saving, yet we are quick to the juvenile courts. As a result, many to expose violent children to the harshest adolescent offenders (though no one punishments in service to the same pu- knows exactly how many) escape the nitive instincts that drive mass incarcer- reach of the criminal law and its harsh- ation of adults. But even there, we pull er punish ments. Nevertheless, a large our punches. We pull back from the brink number are removed from the juvenile of fully embracing punitiveness toward to the criminal courts by statutory exclu- juveniles, reserving it instead for adults. sion, judicial discretion, or the adminis- Not only is the philosophy of child-saving trative practices and preferences of pros- an important normative modi½er of these ecutors.37 instincts, it is also deeply embedded in Viewed in this way, legislators appear the institutions of juvenile justice and ambivalent, refusing to abandon com- juvenile corrections. pletely the principles of juvenile justice, yet seeking to divide delinquents into two One episode illustrates the connections categories: those worthy of the remedial between the visceral push for punitive- and therapeutic interventions of the juve- ness and political culture. In 1996, former nile court and those who should be aban- U.S. Secretary of Education William Ben- doned to the punitive regime of criminal nett and two colleagues published Body justice in the name of retribution and Count.40 The book offered a “moral pov- public safety. The complexity of state erty” theory of youth crime, rejecting laws, the piecemeal character of the stat- social theories of juvenile crime causa- utory landscape, and the fact that most tion that focused on economic poverty, states have overlapping transfer mecha- discrimination, family dysfunction, or nisms suggest a philosophical duality. savage levels of inequality. Instead, for The punitive and child-saver instincts Bennett and his coauthors, it was moral for youth crime coexist uneasily in the poverty that characterized a coming wave current statutory environment, forcing of “superpredators” who would commit a binary choice between criminal and extremely violent crimes and be immune juvenile court jurisdiction–a choice to rehabilitative interventions. They char- that is not well suited to reconcile these acterized this new breed of young offend- tensions.38 ers as impulsive and remorseless, fearing On balance, the business of getting not “the stigma of arrest, the pains of im- tough on juvenile offenders was assigned prisonment, [or] the pangs of conscience.” to the criminal justice system, while the These (predicted) young criminals were juvenile system remained relatively small portrayed nearly as a separate species. and still wrapped, however thinly, in its The authors’ predictions were based on

Dædalus Summer 2010 49 Jeffrey data that were compiled through 1993, center, sometimes in community-based Fagan the peak year of juvenile crime and vio- residential programs but other times in on mass 41 incarcer- lence in the United States. Their predic- “campuses” that included cluster or resi- ation tions turned out to be horribly wrong.42 dential “pods.”44 Jerome Miller, architect But the damage was done. The book of the Massachusetts reforms, showed supplied strong and scary rhetoric to fuel that scandals involving staff abuse of the legislative panic that, in general, pro- youth residents, as well as youth suicides duced a wave of get-tough legislation and uncontrolled violence, often sparked across the country. So strong and persua- these changes. Massachusetts, Pennsyl- sive was this rhetoric that it led one state vania, Utah, and Florida, among others, (Pennsylvania) to build a youth prison moved from large, toxic warehouses to in anticipation of a surge of superpred- these smaller, disaggregated dormitory- ators, not a juvenile center that empha- like units.45 In effect, the capacities of sized rehabilitation and other services. these systems were capped, and any ex- The State Correctional Institute at Pine pansion required the participation of Grove opened in 2000, its plan and de- the private sector.46 sign based on population projections Yet noxious conditions still prevail in from the superpredator era and with many juvenile corrections facilities and that pro½le of the young offender in systems, and litigation is not uncommon. mind. At its opening, the prison housed In Galloway v. Texas,47 for example, plain- 178 young offenders, well below its ca- tiff Galloway was placed in detention at pacity of 1,000.43 By that time, youth fourteen and held until he reached nine- crime had fallen in Pennsylvania, and teen, the maximum age of juvenile juris- the number of youths below eighteen diction, based on unreviewable adminis- in adult prisons had fallen to sixty-six. trative decisions by facility staff. The trial To ½ll this new youth prison, the state record showed that Galloway and many moved young offenders from some tradi- others had been physically and sexually tional correctional settings to Pine Grove, abused, subjected to physical punish- and the state’s juvenile court judges made ment, abused by other inmates (abuse good use of the new placement option. that was often sanctioned by staff ), and Pine Grove today is well occupied, hous- denied access to counsel. Essential ser- ing approximately one thousand inmates vices–medical care, education, psychi- below the age of twenty-one. Built to atric treatment–were found to be sub- house the expected wave of superpreda- standard. More than ½ve hundred chil- tors, today it is ½lled with a heterogeneous dren were released from unlawful juve- group of adolescent offenders whose pro- nile corrections con½nement in Texas ½les are more typical of the variety of as a result of the ruling. youth crimes that characterize contem- Conditions in New York State juvenile porary youth dockets. corrections facilities were investigated recently by the Civil Rights Division of The character of juvenile incarceration the U.S. Department of Justice, which has also changed dramatically over three reported similar problems. As a result, decades. Beginning in the 1970s, as adult there is now federal oversight of four of correctional populations surged, large the state’s largest youth corrections fa- juvenile corrections facilities in several cilities.48 And in California, the state states were replaced by smaller facilities was ordered back to court for failure to housing fewer than thirty children per comply with the terms of a consent de-

50 Dædalus Summer 2010 cree that committed the juvenile correc- models and institutional designs for the The contra- tions authority, the Division of Juvenile rehabilitation of serious juvenile offend- dictions of juvenile Justice of the California Department of ers. This vision includes attention not crime & Corrections and Rehabilitation (formerly just to basics such as education, but to punishment the Youth Authority), to conform to pro- new models for working with children fessional and legal standards for essen- and their families to sustain therapeutic tial services and the safety of its wards.49 successes beyond the time of correction- These cases are not isolated instances; al con½nement.51 The other vision is litigation to remedy violent, abusive, and typi½ed by institutions that are violent, other substandard conditions in juvenile abusive, and indifferent to the essential incarceration and detention has been re- developmental interventions for adoles- peated across the country for decades. cent offenders. Attorney and legal schol- Structurally, federal civil rights litiga- ar Michael Tigar characterizes these as tion in these instances is constrained in places where juvenile punishment has its force and reach by the Prison Litiga- taken on the distorted values of criminal tion Reform Act (plra).50 In Galloway, law and correctional institutions, where for instance, relief was limited by the intervention is secondary to security and plra’s constraints on which conditions punishment, and where indifference tol- can be litigated, its short paths to termi- erates abuse and violence.52 In these nation of existing remedial decrees, and places, services are thin and differ little its restrictions on the authority of feder- from ordinary jails, only that the resi- al judges to order future remedies. The dents are younger, smaller, and more eas- plra applies fully to juvenile corrections ily exploited. Between these poles are the and detention facilities: Congress classi- institutions that struggle to mount effec- ½ed juvenile facilities as “prisons” and tive programs with a population of dif- their occupants “prisoners.” In doing so, ½cult children who pose security as well it erected tall and robust barriers to chil- as therapeutic challenges. dren’s assertion of their rights: in effect, they face the same hurdles that adult Racial disparities in juvenile detention prisoners do. For children, the problem and incarceration closely resemble racial is compounded because they cannot sue disparities in the imprisonment and jail- in their own name, and also by the fact ing of adults. Considering the negative that Federal Rule of Civil Procedure 17 consequences of incarceration on crime relegates the question of capacity and and social well-being, these disparities overcrowding to state law. Under these unfortunately may multiply the effects conditions, children cannot get to court of other forms of disadvantage and may without a guardian, and most lack the become an endogenous form of inequal- social capital and experience to activate ity that is dif½cult to escape. Social scien- those resources. Furthermore, there sim- tists call this a “poverty trap.”53 ply are no local enforcement mechanisms In the 2006 census of juveniles in resi- to ensure compliance with federal litiga- dential placement, 40.2 percent of resi- tion. It is up to local district attorneys to dents were African American and 20.5 enforce the law when abuses are revealed. percent were Hispanic, compared to 35 The political complications are obvious. percent white.54 These disparities were Again, we see very different visions of greater for person crimes and drug of- juvenile justice and incarceration. One is fenses (44 percent were African Ameri- represented by the development of new can in each category) and less for techni-

Dædalus Summer 2010 51 Jeffrey cal violations (37 percent were African whereas external attributions tended to Fagan American) and status offenses (33 per- reduce culpability by externalizing the or- on mass incarcer- cent were African American). In fact, 50 igins of crime (and its severity) for white ation percent of incarcerated status offenders youths to the defendant’s social surround- counted in the 2006 juvenile corrections ings. These internal attributions in turn census were white. led to racially disparate attributions of Racial disparities are far worse for pre- risk of future offending and harsher sen- trial detention, compared to those who tencing recommendations. Bridges and are incarcerated following a ½nding of Steen also noted that a criminal history delinquency. Nearly half (48 percent) of tends to multiply these effects. those detained for person crimes, 45 per- Educational psychologist Sandra cent detained on drug offenses, and 46 Graham and organizational behavior percent detained for public order offenses scholar Brian Lowery produced similar were African Americans, compared to results using an experimental paradigm less than 30 percent whites in each of in which police and probation of½cers these categories.55 (Public order offenses made judgments about culpability and include weapons offenses as well as pub- predictions of future crime following lic drinking and a range of low level–and exposure to race-speci½c or race-neutral high police-discretion–misdemeanor of- subliminal primes. Compared to of½cers fenses.) given a race-neutral prime, police and These disparities are not well explained probation of½cers given race-speci½c by differences in crime rates.56 Studies primes rated a hypothetical offender using several designs and analytic strate- with more negative traits such as hostil- gies conclude that racial disparities in the ity and immaturity, attributed greater decision to detain and incarcerate youths culpability, had higher expectations of are influenced by race and risk factors recidivism, and endorsed harsher pun- such as family structure that are correlated ishment. These results were robust to with race more than criminal behavior.57 controls for consciously expressed be- Other research implicates fundamental liefs about African Americans. cognitive and unconscious processes in Studies based on case-processing data the production of disparities. Two stud- also reach the same conclusions, as does ies based on observations of decisions by a research summary prepared for the De- police or probation of½cers illustrate the partment of Justice. This is true both in role of race in the attribution of blame- criminal court and for juveniles who are worthiness, risk of future crime, and rec- transferred to criminal court.58 ommendations for punishment. Sociolo- The policy studies raise two dif½cult gists George Bridges and Sara Steen, ana- questions. First, are the effects of dispa- lyzing narratives of presentence reports rate outcomes at early stages predictive by probation of½cers in three counties in of outcomes–including the decision to Washington State, showed that probation detain or incarcerate a young offender– of½cers were more likely to attribute the at later stages? Researchers disagree on causes of crime for African American this point. Some suggest that disadvan- youths to internal character and person- tage at early decision points, such as the ality attributes rather than external fac- decision to detain or to treat a case for- tors such as family, neighborhood, or mally instead of using a diversionary al- school. These internal attributions led ternative, at a minimum carries forward to conclusions about “responsibility,” and perhaps multiplies across decision

52 Dædalus Summer 2010 points. Others suggest that disparities at or danger and reacts accordingly.62 Tests The contra- each stage are unique to decisions at that include recognition of African American dictions of juvenile stage, net of ½ltering at each stage. In ei- faces in crime situations (including pos- crime & ther case, there is a unique additive com- session of weapons)63 and whether to punishment ponent for race that seems to produce shoot unarmed suspects when they are disparate outcomes overall, including shown holding ambiguous objects other correctional placements.59 than guns.64 Con½rming what Bridges Second, and more fundamentally, does and Steen and Graham and Lowery re- the combined evidence from experimen- ported, the Plant and Peruche tests giv- tal and observational studies suggest that en to police of½cers produced the same racial bias is present in the juvenile justice results. system with suf½cient salience to produce The impacts of racially disparate deci- disparities? It is always dif½cult to iden- sions in juvenile detention and incarcer- tify and control for all the counterfactuals ation go beyond the loss of liberty and that would have to be defeated in order exposure to socially and emotionally dis- to make such a claim. At the least, these ½guring punishments. Juvenile incarcer- would include a set of institutional pre- ation attenuates the accumulation of so- ferences and norms that are dif½cult to cial capital to access job networks and measure and that are likely to vary widely other supports; instead–at a develop- across locales. But what is important to mentally sensitive and strategic period note is that the two most likely counter- of transition from adolescence to adult- factuals–differences in criminal behav- hood–it leads to the accrual of criminal ior and differences in social risk indicia capital that sustains delinquency beyond –are not signi½cant producers of racial the time of placement.65 In this way, in- disparities. carceration compounds social and racial Based on the research of Graham and disadvantage to sustain inequalities over Lowery, conscious bias is not a signi½cant the life course,66 with crime itself only a producer of racial disparity either, but partial explanation of the sources of that subconscious bias may be, as well as ra- disadvantage. For minors, developmen- cial differences in punitiveness and racial tal trajectories following incarceration stereotypes. Sociologist Lawrence Bobo suggest that crime is less a factor than and Victor Thompson, for example, sum- cascading social disadvantage. Studies marize public opinion research to show of criminality over the life course show that negative racial stereotypes, antiblack the unique and lasting disadvantage that affect, and collective racial resentments accrues from an early incarceration ex- translate into increased punitiveness.60 perience, no matter the behavior that led We have no reason to believe that this to the period of incarceration.67 Incarcer- might not apply to probation workers ation at a young age not only increases and police of½cers who produce a supply the risk of future incarceration, it mort- of cases for the juvenile court. Research gages the long-term prospects of young on “colorism” shows that both African males for marriage, employment, and Americans and white Americans associ- social stability over a lifetime. Even a ate skin tone with criminality and de- short spell in detention adversely influ- served punishment.61 In a series of tests ences the outcomes of cases once they get on implicit bias, every population group to court, tipping the odds toward harsh- except African Americans unconsciously er punishment instead of diversion or associates “African American” with crime probation.68 Young offenders who are

Dædalus Summer 2010 53 Jeffrey detained in jails or group homes while Legal scholar Olatunde Johnson71 de- Fagan their cases work their way through court scribes the dmc provision as unique in on mass incarcer- are more likely to be placed in a correc- several ways. First, it calls on public ac- ation tional institution at the conclusion of the tors to reduce disparities no matter what case than those who return home or to the cause, no matter whether intentional school as their cases are resolved. Early or reflective of the types of passive dis- correctional placement has a multiplier crimination that characterize everyday effect on the prospects of future impris- institutional business, even if these prac- onment. To the extent that incarcera- tices advance the criminal justice inter- tion effects carry forward, we might ask ests of the public agency. Action requires whether the social harms of incarcera- only that there be a showing that the agen- tion on young people are simply those cy was complicit in producing disparity. of their parents revisited on them–and Second, the statute requires states to whether the harms to them will be revis- gather analytic data to diagnose the insti- ited on their children.69 tutional practices or public policies that produce racial disparities, and to identify In the political economy of incarcera- appropriate steps to change those prac- tion, it is remarkable that either a legisla- tices. In effect, the statute requires states tive or executive branch would acknowl- to look beyond “invidious bias” to discov- edge racial disparity much less seek rem- er and remedy the sources of disparity. edies to it. Thus, the efforts of the Depart- States were tasked with submitting inter- ment of Justice and Congress to reduce vention plans that reflected their analysis racial disparities in juvenile con½nement of the sources of disparity, developing in- through public interventions are coura- terventions, and assessing the success of geous and noteworthy. Because this step their efforts. In 2002, Congress broadened was reserved for minors, it again signals the mandate of dmc to look not just at the special place child-saving holds as a con½nement, but also at any type of con- normative imperative and policy prefer- tact. This expansion recognized the role ence in the culture of crime and punish- that police and early-stage juvenile justice ment. decisions play in producing disparities. To regulate public sector practices that There are stories of both success and might lead to racial disparities, Congress failure under dmc. Johnson notes that took a rare step in 1992, passing legisla- when dmc succeeds, it is because it lever- tion requiring states that receive feder- aged the power of internal and external al juvenile-justice funds to implement local advocates to design measures to re- strategies to reduce disparities (where duce disparity. The data analytic com- those disparities exist) in the con½ne- ponent has also produced informational ment rates of minority juveniles. This transparency that levels the playing ½eld provision, known as the disproportion- between advocates and government of½- ate minority contact statute (dmc),70 cials. It is a process of what legal scholar seems modest in comparison to Title Heather Gerken calls “federalism all the VII of the Civil Rights Act: it applies way down,” in part localizing solutions only to state-run juvenile justice pro- and also developing local expertise that grams receiving federal funds. Failure competes with interior institutional log- to comply can cost an agency at least 25 ic and norms.72 percent of its federal juvenile-justice Johnson suggests that failures under support. dmc reflect the weakness of local en-

54 Dædalus Summer 2010 forcement and ambivalence, if not resist- and punishment is itself a symbolic or The contra- ance, that are, in turn, reflections of the substantive concern. dictions of juvenile local political structure. It requires inter- Symbolic threats are sociologically crime & nal change agents within agencies as well connected to structural conditions, in- punishment as external agents, especially advocacy cluding minority threat, inequality, and groups. Localities could be exposed to public manifestations of crime such as lawsuits based on the information devel- gangs. When professor of law Jonathan oped through the data analytic process, Simon speaks about “governing through creating an untenable political tension. A crime,” he portrays a discourse and subset of political scripts that invokes public sequent political mobilization built on safety concerns in the face of systemic re- crime fears that translate into legislative form efforts is a blunt instrument to neu- action. These threats create emotions tralize reform.73 Thus, the recurring re- beyond the facts of crime itself by im- newal of political support–based on re- parting social meaning to crime: gang search–is essential to sustain the reform. violence signals the rise of an enemy, for And this, as Johnson points out, is hardly example, and the trifecta of gangs, guns, a sure bet, since radically disparate treat- and drugs signals a very particular and ur- ment is not a strong motivation to expend gent threat to social order. Even property political capital. The counterargument is crime can translate into a threat through that revelations of the connection be- its spurious connection to violent crime. tween public policy and racially disparate If crime itself is racially skewed, whether treatment leading to incarceration make among juveniles or adults, then discon- a strong normative argument that politi- necting symbolic threats from the real cal actors ignore at their own risk. Per- fears of crime becomes more dif½cult. haps the current low-crime era affords a Sorting out these threats is a dif½cult moment to push ahead with this project. empirical task. An analysis by criminologist Daniel Mears of state variation in The opposing, if not contradictory, juvenile incarceration suggests that it is trends in the philosophy and practice of not just the threat of violent crime that juvenile incarceration can be observed explains differences between states, but empirically in states’ variations in the a combination of adult crime rates, adult practice and reach of juvenile incarcera- incarceration rates, and juvenile property tion. At the peak of juvenile incarceration, crime rates. What happened to the super- states varied in their incarceration popu- predator discourse about juvenile violations from a low of 70 per 100,000 ju- lence? Why was it not a more powerful veniles in Vermont to a high of 583 in predictor of juvenile incarceration? Louisiana.74 Explanations for variation Quite likely, the discourse was already are themselves varied: from racial threat incorporated into other “get tough” and symbolic threats to public order, to measures, including adult incarceration violent crime rates, to loose couplings rates and policies, as well as adult crime. between juvenile and adult correctional State variation may also conceal inter- systems, to variation in the political trac- nal systemic and political factors that tion of “get tough” policies.75 These di- bear on institutional capacities. Consid- verse explanations matter because they er the stories told earlier about Texas, speak to different strains in the political California, and Pennsylvania (and add culture of crime and punishment–in New York to the analysis). Texas made particular about whether juvenile crime no changes in capacity in the face of liti-

Dædalus Summer 2010 55 Jeffrey gation and a consent decree. California’s Three facts suggest that the punitive Fagan Youth Authority reduced its capacity from turn in juvenile corrections is neither a on mass incarcer- ten thousand a decade ago to less than socially productive nor a principled path. ation two thousand today in response to litiga- First, new behavioral and biological re- tion. Pennsylvania built a juvenile prison search about maturity and criminal cul- that now houses nearly one thousand pability, largely focused on emotional young offenders, but New York State is regulation, impulsivity, decision-making, attempting to close several of its juvenile and other behavioral functioning close- incarceration facilities, and may yet do so ly linked to brain development and the if the Civil Rights Division of the Justice social psychological skills that it con- Department proceeds from its investiga- trols, suggests that children remain im- tion to pursue litigation. However, New mature and therefore less culpable well York’s efforts to downsize its system have into late adolescence.78 Second, adoles- been neutralized by the structure of union cents who are tried and punished as contracts and political constraints from adults are rearrested and incarcerated local legislators fearing adverse economic more often, more quickly, and for more impacts from the closing of institutions. serious crimes.79 They are more likely There are 241 empty beds out of about to suffer mental health problems, in- 300 in the six nonsecure residential facili- cluding traumatic stress reactions, and ties targeted for closing, and 254 state em- are less likely to receive effective ser- ployees will lose their jobs if the closings vices to overcome their developmental proceed.76 The math suggests part of the or other behavioral de½cits. And third, reason why closing is so hard to achieve. lengthened sentences for juvenile offenders, whether in juvenile or adult The number of minors locked up across corrections placements, are of no ap- the nation is a small fraction of the adoles- parent consequence to public safety.80 cents under the supervision of the juvenile These facts argue for a return to the ½rst and criminal justice systems, but it casts a principles of juvenile justice: avoiding long shadow over the principles and prac- harm and stigma and building the social tice of juvenile and criminal justice. Sep- capital and human capacity of the child. arate institutions for juveniles, and later Declining crime rates, the pervasiveness a separate court, served the twin goals of of racial disparities in detention and in- protecting adolescent offenders from the carceration, the intellectual and political stigma and brutality of criminal justice exhaustion of the “toughness” paradigm and intervening in their lives to remedy in juvenile justice, and new gains in the the conditions that animated their antiso- science of adolescent development have cial behavior. Yet the punitive turn in ju- converged to create an opportunity for venile justice increased the use of incarcer- principled reform. More careful regula- ation by juvenile courts and the expulsion tion and deliberation of the use of incar- of juvenile offenders to adult jails and pris- ceration can lay the foundation for more ons.77 Not only are both forms of juvenile effective and fair policies. While the law incarceration plagued by unconstitution- has moved toward increasing the incar- ally cruel conditions and institutional ne- ceration of younger teens, social and bio- glect, but the emphasis on punitiveness, logical evidence suggests moving in the including the exile of juveniles to the crim- other direction. Perhaps it is time for the inal justice system, before adolescent de- law to change course and follow the sci- velopment may do more harm than good. ence and the principles it evokes.

56 Dædalus Summer 2010 endnotes The contra- 1 dictions of Sharon Dolovich, “Incarceration: American Style,” Harvard Law & Policy Review 3 (2009): 237. juvenile 2 Parens patriae is a doctrine commonly associated in both policy and law with the rights and crime & obligations of the state and courts toward children and incapacitated adults. The diminished punishment competence and autonomy of children is the court’s justi½cation for invoking parens patriae to supplant parental authority and assert control over children. See Julian Mack, “The Juve- nile Court,” Annual Report of the 32nd Conference of the American Bar Association (1909), 451. 3 In Schall v. Martin (467 U.S. 253, 1984), Justice Rehnquist argued that preventive detention is designed to protect the child and society from the potential consequences of the child’s own “folly.” 4 Ibid. The court said that the combined interest in protecting both the community and the juvenile himself from the consequences of future criminal conduct is suf½cient to justify such detention. The court rejected claims about accuracy of such predictions, stating that “from a legal point of view, there is nothing inherently unattainable about a prediction of future criminal conduct” and that a prediction of future criminal conduct is “‘an experienced prediction based on a host of variables’ which cannot be readily codi½ed” (citing Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 16 [1979]). 5 Philip J. Cook and John H. Laub, “The Unprecedented Epidemic in Youth Violence,” in Crime and Justice: A Review of Research, vol. 24, Youth Violence, ed. Michael Tonry and Mark H. Moore (Chicago: University of Chicago Press, 1998), 27. 6 Barry C. Feld, Bad Kids: Race and the Transformation of the Juvenile Court (New York: Oxford University Press, 1999); Franklin E. Zimring, American Youth Violence (New York: Oxford University Press, 1998). 7 Paul Lerman, “Twentieth-Century Developments in America’s Institutional Systems for Youth in Trouble,” in A Century of Juvenile Justice, ed. Margaret K. Rosenheim et al. (Chicago: University of Chicago Press, 2002). 8 See, for example, Inside Out: Youth Experiences Inside New York’s Juvenile Placement System (Citizens’ Committee for Children of New York, 2009), http://www.cccnewyork.org/ publications/CCCjuvenilejusticereport2009.pdf. 9 Jeffrey Fagan, “Juvenile Crime and Criminal Justice: Resolving Border Disputes,” Future of Children 8 (2008): 81. 10 Ibid. 11 William J. Bennett, John J. Dilulio, Jr., and John P. Walters, Body Count: Moral Poverty–and How to Win America’s War Against Crime and Drugs (New York: Simon & Schuster, 1996). 12 Malcolm W. Klein, The American Street Gang (New York: Oxford University Press, 1995); Feld, Bad Kids. 13 Placement data for the years between 1993 and 1997 are not available. Prior to 1993, data were collected every three years as part of the Children in Custody (cic) census, conducted by the Of½ce of Juvenile Justice and Delinquency Prevention. It was based on a mail survey with response rates that varied by year. Starting in 1997, cic was replaced by the Census of Juveniles in Residential Placement (cjrp), a one-day count conducted by the U.S. Bureau of the Census of all children placed in public and private facilities. The differences in the two data sets reflect both the types of facilities included and whether residents are counted based on the state from which they were committed or, in the newer census, the state where they were placed. When aggregated to examine national trends, any biases resulting from these differences are minimized. 14 Melissa Sickmund, Juveniles in Residential Placement, 1997–2008 (Of½ce of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice, 2010), http://www.ncjrs.gov/pdf½les1/ ojjdp/229379.pdf.

Dædalus Summer 2010 57 Jeffrey 15 The rate for adults is 509 per 100,000 persons in prisons and 762 per 100,000 in prisons or Fagan local jails. Heather C. West and William J. Sabol, Prison Inmates at Mid-Year 2008–Statistical on mass Tables (Bureau of Justice Statistics, U.S. Department of Justice, 2009), Table 1, http://bjs.ojp incarceration .usdoj.gov/content/pub/pdf/pim08st.pdf. 16 Sickmund, Juveniles in Residential Placement. 17 Melissa Sickmund et al., Census of Juveniles in Residential Placement Databook (National Cen- ter for Juvenile Justice, 2008), http://www.ojjdp.ncjrs.gov/ojstatbb/cjrp/. 18 These offenses include running away from home, incorrigibility, truancy, curfew violation, and underage drinking. 19 Howard N. Snyder and Melissa Sickmund, Juvenile Offenders and Victims: 2006 National Report (Of½ce of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice, 2006), http://www.ojjdp.ncjrs.gov/ojstatbb/nr2006/. 20 See West and Sabol, Prison Inmates at Mid-Year 2008, Table 21. 21 See, for example, Ruth D. Peterson, “Youthful Offenders Designations and Sentencing in the New York Criminal Courts,” Social Problems 35 (1988): 111–130. 22 Andrea McGowan et al., “Effects on Violence of Laws and Policies Facilitating the Transfer of Juveniles from the Juvenile Justice System to the Adult Justice System: A Report on Rec- ommendations of the Task Force on Community Preventive Services,” Morbidity and Mor- tality Weekly Report 56 (RR-9) (November 30, 2007): 1–11; Donna Bishop, “Juvenile Offend- ers in the Adult Criminal System,” Crime and Justice 27 (2000): 81–167; Fagan, “Juvenile Crime and Criminal Justice.” But see Steven D. Levitt, “Juvenile Crime and Punishment,” Journal of Political Economy 106 (1998): 1156. 23 This separation, however meaningful or substantively vague, was at the heart of the earliest forms of juvenile justice in the nineteenth century, when separate institutions for youths were created to shield them from the stigma and exploitation of older convicts. The moti- vations, though, were not entirely benevolent. The new youth-only institutions were also accommodations to the growing tendency among judges to avoid harsh punishments by dismissing criminal cases against older children, setting child offenders free without any form of social regulation or control. See John Sutton, Stubborn Children: Controlling Delin- quency in the United States, 1640–1981 (Berkeley: University of California Press, 1988); and David J. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (Boston: Little, Brown, 1971). In 1851, in New York, the Children’s Aid Society opened the House of Refuge for Delinquent Children under twelve, ostensibly to separate the “older” cohort of juvenile offenders from the very young ones. This division effectively created a disputed developmental territory between early and later adolescence; reformers used the territory to contest age-based linkages between vulnerability and culpability and the appropriate institutional responses. 24 Martin Forst, Jeffrey Fagan, and T. Scott Vivona, “Youth in Prisons and Training Schools: Perceptions and Consequences of the Treatment-Custody Dichotomy,” Juvenile & Family Court Journal 40 (1989): 1; “The Changing Borders of Juvenile Justice: Transfer of Adolescents to the Adult Criminal Court,” research brief no. 5 (MacArthur Research Network on Adolescent Development and Juvenile Justice), http://www.adjj.org/downloads/3582issue_brief_ 5.pdf. 25 Two recent Supreme Court opinions cited a body of robust social and behavioral science that demonstrates the diminished culpability of adolescents with respect to regulation of emotions and impulses, capacity to foresee consequences of their actions, and susceptibili- ty to peer influences. See Roper v. Simmons (543 U.S. 551 [2005]) and Graham v. Florida (No. 08-7412, 982 So. 2d 43, reversed and remanded [2010]). 26 Elizabeth S. Scott and Laurence Steinberg, Rethinking Juvenile Justice (Cambridge, Mass.: Harvard University Press, 2008). 27 Fagan, “Juvenile Crime and Criminal Justice.”

58 Dædalus Summer 2010 28 Feld, Bad Kids; Zimring, American Youth Violence. The contra- 29 dictions of See, for example, Patricia Torbet et al., State Responses to Serious and Violent Juvenile Crime juvenile (Of½ce of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice, 1996). crime & 30 Fagan, “Juvenile Crime and Criminal Justice”; Donna Bishop, “Juvenile Offenders in the punishment Adult Criminal System.” 31 Torbet et al., State Responses to Serious and Violent Juvenile Crime. 32 See State v. Standard, 569 S.E.2d 325, 329 (2002). In general, see The Rest of Their Lives and The Rest of Their Lives, 2008 Update (Amnesty International and Human Rights Watch, 2005 and 2008), http://www.hrw.org/en/node/11578/section/1 and http://www.hrw.org/sites/ default/½les/reports/us1005execsum.pdf. The fact that mandatory life-without-parole sentences require a predicate of transfer, the cumulative disadvantage of poor counsel and early-stage detention compound the risks for a life-without-parole sentence through disadvantages at the early stages of charging and plea bargaining. 33 See Graham v. Florida. 34 See The Rest of Their Lives, 2008 Update; also Cruel and Unusual: Sentencing 13- and 14-Year- Old Children to Die in Prison (Equal Justice Initiative, 2008), http://eji.org/eji/½les/Cruel %20and%20Unusual%202008_0.pdf. 35 Torbet et al., State Responses to Serious and Violent Juvenile Crime. 36 See The Connecticut Juvenile Justice Strategic Plan: Building Toward a Better Future (State of Con- necticut Judicial Branch, 2006), http://www.jud.ct.gov/external/news/JuvenileJustPlan/ CJJ_ExecutiveSummary.pdf. 37 Fagan, “Juvenile Crime and Criminal Justice.” 38 A few states developed statutes to try juveniles as adults but sentence them to juvenile correctional institutions. The theory was that the determination of guilt or innocence should respond to an adult standard of culpability, and that the trial itself was a form of expressive condemnation for the minor’s offense. However, the reach of these laws was narrow, affecting few youths in a small number of states. Moreover, although the laws did succeed in shielding juveniles from placements with adults, they were no more than half-measures with respect to avoiding the stigma of a criminal conviction. See Patricia Torbet et al., Juveniles Facing Criminal Sanctions: Three States that Changed the Rules (2000), http://www .ncjrs.gov/pdf½les1/ojjdp/181203.pdf. 39 Even California’s controversial Youth Authority has conformed to this trend; for many years it was an exception. However, the total incarcerated juvenile population declined from approximately 10,000 in 1996 to 1,568 today. See 2008 Population Report (Division of Juvenile Justice, California Department of Corrections and Rehabilitation, 2008), http:// www.cdcr.ca.gov/reports_research/research_tips.html. 40 Bennett, Dilulio, and Walters, Body Count. 41 Cook and Laub, “The Unprecedented Epidemic of Youth Violence.” 42 Zimring, American Youth Violence. 43 “Pennsylvania Opens Nation’s First Youth Prison,” Corrections Digest, December 15, 2000. 44 See, for example, Jerome G. Miller, Last One Over the Wall: The Massachusetts Experiment in Closing Reform Schools (Columbus: Ohio State University Press, 1991). 45 See, for example, Lloyd Ohlin et al., “Radical Correctional Reform: A Case Study of the Massachusetts Youth Correctional System,” Harvard Educational Review, special issue on The Rights of Children, 120 (1974). 46 Edmund F. McGarrell, Juvenile Correctional Reform: Two Decades of Policy and Procedural Change (Albany: State University of New York Press, 1988).

Dædalus Summer 2010 59 Jeffrey 47 Civ No. 1:07-CA-276 (W.D. Tex.). See also Sylvia Moreno, “In Texas, Scandals Rock Juve- Fagan nile Justice System,” The Washington Post, April 5, 2007. on mass incarcer- 48 Nicholas Confessore, “Federal Oversight for Troubled N.Y. Youth Prisons,” The New York ation Times, July 14, 2010. Letter from Loretta King, Acting Assistant Attorney General, to Gover- nor David A. Paterson, Re: Investigation of the Lansing Residential Center, Louis Gossett, Jr. Residential Center, Tryon Residential Center, and Tryon Girls Center, August 14, 2009, http://www.justice.gov/crt/split/documents/NY_juvenile_facilities_½ndlet_08-14-2009.pdf. 49 Farrell v. Gate, RG03-079344 (Cal. Super. Ct. 2004). 50 See 18 U.S.C. section 3626 (1995). 51 See Michelle Inderbitzin, “Reentry of Emerging Adults: Adolescent Inmates’ Transition Back Into the Community,” Journal of Adolescent Research 24 (2009): 453. Also see Scott Huey et al., “Mechanisms of Change in Multisystemic Therapy: Reducing Delinquent Behavior through Therapist Adherence and Improved Family and Peer Functioning,” Journal of Consulting and Clinical Psychology 68 (2000): 451. 52 Michael E. Tigar, “What are We Doing to the Children?: An Essay on Juvenile (In)Justice,” Ohio State Journal of Criminal Law 7 (2010): 849. 53 Robert J. Sampson and Jeffrey Morenoff, “Durable Inequality: Spatial Dynamics, Social Processes, and the Persistence of Poverty in Chicago Neighborhoods,” in Poverty Traps, ed. Samuel Bowles, Steven Durlauf, and Karla Hoff (New York: Russell Sage Foundation, 2006), 176–203. 54 Sickmund et al., Census of Juveniles in Residential Placement Databook. 55 Juvenile arrest rates for drug offenses are strongly at odds with their involvement in drug use and drug selling. See, for example, Leonard Saxe et al., “The Visibility of Illicit Drugs: Implications for Community-Based Drug Control Strategies,” American Journal of Public Health 91 (2001): 1987. 56 Ibid. See also, Donna M. Bishop, “The Role of Race and Ethnicity in Juvenile Justice Pro- cessing,” in Our Children, Their Children: Confronting Racial and Ethnic Differences in American Juvenile Justice, ed. Darnell F. Hawkins and Kimberly Kempf-Leonard (Chicago: University of Chicago Press, 2005). 57 George S. Bridges and Sara Steen, “Racial Disparities in Of½cial Assessments of Juvenile Offenders: Attributional Stereotypes as Mediating Mechanisms,” American Sociological Review 63 (1998): 554; Sandra Graham and Brian S. Lowery, “Priming Unconscious Racial Stereo- types about Adolescent Offenders,” Law & Human Behavior 28 (2004): 483. 58 Kareem L. Jordan and Tina L. Freiburger, “Examining the Impact of Race and Ethnicity on the Sentencing of Juveniles in the Adult Court,” Criminal Justice Policy Review 21 (2010): 185. 59 Carl E. Pope, Rick Lovell, and Heidi M. Hsia, Disproportionate Minority Con½nement: A Review of the Research Literature from 1989 through 2001 (Of½ce of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice, 2002), http://www.ojjdp.ncjrs.gov/dmc/pdf/dmc89 _01.pdf; David Huizinga et al., Disproportionate Minority Contact in the Juvenile Justice System: A Study of Differential Minority Arrest/Referral to Court in Three Cities (U.S. Department of Justice, 2007), http://www.ncjrs.gov/pdf½les1/ojjdp/grants/219743.pdf. 60 Lawrence Bobo and Victor Thompson, “Unfair by Design: The War on Drugs, Race, and the Legitimacy of the Criminal Justice System,” Social Research 73 (2006): 445. 61 See, for example, Jennifer L. Eberhardt et al., “Seeing Black: Race, Crime, and Visual Pro- cessing,” Journal of Personality and Social Psychology 87 (2004): 876; Jennifer L. Eberhardt et al., “Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes,” Psychological Science 17 (2006): 383. 62 Anthony Greenwald and Linda Hamilton Krieger, “Implicit Bias: Scienti½c Foundations,” California Law Review 94 (2006): 945.

60 Dædalus Summer 2010 63 Eberhardt et al., “Seeing Black.” The contra- 64 dictions of E. Ashby Plant and B. Michelle Peruche, “The Consequences of Race for Police Of½cers’ juvenile Responses to Criminal Suspects,” Psychological Science 16 (2005): 180. crime & 65 Patrick Bayer, Radi Hjalmarsson, and David Pozen, “Building Criminal Capital Behind Bars: punishment Peer Effects in Juvenile Corrections,” Quarterly Journal of Economics 124 (2009): 105. Bayer and colleagues show that adolescents placed in correctional institutions are more likely than those in smaller residential placements to form stronger peer networks with other delinquents that lead to higher rearrest rates within two years of release. 66 Bruce Western, Punishment and Inequality in America (New York: Russell Sage Foundation, 2006); Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse (New York: Oxford University Press, 2007). 67 Robert J. Sampson and John H. Laub, Crime in the Making: Pathways and Turning Points through Life (Cambridge, Mass.: Harvard University Press, 1993); Jeffrey Fagan and Richard B. Free- man, “Crime and Work,” Crime and Justice 25 (1999): 113. 68 Fagan and Freeman, “Crime and Work.” Also see Donna M. Bishop, “The Role of Race and Ethnicity in Juvenile Justice Processing”; Rodney L. Engen, Sara Steen, and George S. Bridges, “Racial Disparities in the Punishment of Youth: A Theoretical and Empirical As- sessment of the Literature,” Social Problems 49 (2002): 194; Donna M. Bishop and Charles E. Frazier, “Race Effects in Juvenile Justice Decision-Making: Findings of a Statewide Analysis,” Journal of Criminal Law and Criminology 86 (1996): 415. 69 See, for example, Christopher Wildeman, “Parental Imprisonment, the Prison Boom, and the Concentration of Childhood Disadvantage,” Demography 46 (2009): 265. Also see Bruce Western and Christopher Wildeman, “The Black Family and Mass Incarceration,” Annals of the American Academy of Political and Social Sciences 621 (2009): 221. 70 See Act of Nov. 4, 1992, Pub. L. No. 102-586, section 2(f)(3)(A)(ii), 106 Stat. 4982, 4993–94 (codi½ed as amended at 42 U.S.C. section 5633 [Supp. iii 2005]). 71 Olatunde C.A. Johnson, “Disparity Rules,” Columbia Law Review 107 (2005): 374. 72 Heather Gerken, “Federalism All the Way Down?” Harvard Law Review (forthcoming). 73 See Jonathan Simon, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (New York: Oxford University Press, 2007). 74 Sickmund, Juveniles in Residential Placement. 75 Daniel Mears, “Exploring State-Level Variation in Juvenile Incarceration Rates: Symbolic Threats and Competing Explanations,” The Prison Journal 86 (2006): 470. 76 Matt Schwarzfeld, “Fewer Lock-Ups, Enough Money?” City Limits Weekly, February 25, 2008. 77 In addition to expanding the crime categories that triggered transfer to the criminal court, many states reduced the minimum age at which offenders could be sentenced by criminal courts to age ten or younger. In a few states, all barriers to criminal court were removed down to the age of infancy; Snyder and Sickmund, Juvenile Offenders and Victims. 78 For a discussion of this evidence, see Roper v. Simmons (543 U.S. 551 [2005]); and Graham v. Florida (560 U.S. 130 S. Ct. [2010]). See also Scott and Steinberg, Rethinking Juvenile Justice. 79 Andrea McGowan et al., “Effects on Violence of Laws and Policies.” 80 Thomas A. Loughran et al., “Estimating a Dose-Response Relationship between Length of Stay and Future Recidivism in Serious Juvenile Offenders,” Criminology 47 (2009): 699; Daniel Nagin, Francis T. Cullen, and Cheryl Lero Johnson, “Imprisonment and Reoffend- ing,” Crime and Justice 38 (2009): 115; Anthony N. Doob and Cheryl Marie Webster, “Sen- tence Severity and Crime: Accepting the Null Hypothesis,” Crime and Justice 30 (2003): 143; Emily G. Owens, “More Time, Less Crime? Estimating the Incapacitative Effect of Sentence Enhancements,” The Journal of Law and Economics 52 (2009): 551.

Dædalus Summer 2010 61 Marie Gottschalk

Cell blocks & red ink: mass incarceration, the great recession & penal reform

The ½nancial crisis, coupled with the enforcement of marijuana laws their low- election of Barack Obama, has raised est priority, and a number of states are expectations that the United States will debating marijuana decriminalization. begin to empty its jails and prisons be- Last fall, Minneapolis became the ½rst cause it can no longer afford to keep so major U.S. city without a narcotics squad many people behind bars. As Attorney when it disbanded its special drug unit General Eric Holder told the American to help close a massive budget de½cit. Bar Association last summer, the coun- The U.S. Sentencing Commission, the try’s extraordinary incarceration rate is panel that sets guidelines for the federal “unsustainable economically.”1 courts, has begun to investigate alterna- Some evidence suggests that economic tives to incarceration, and last October, hardship may force a major shift in penal Congress ordered the Commission to re- policy that will reduce the country’s in- view mandatory minimum sentencing. carceration rate, which for years has been The current economic distress certain- the highest in the world. Dozens of states ly provides an opportunity to rethink the cut their corrections budgets in 2009, and direction of U.S. penal policies. But we many proposed closing penal facilities to should not assume that the crushing eco- cover gaping budget gaps. States have nomic burden will unhinge the carceral enacted a slew of penal reforms aimed at state. While the prison population edged shrinking their prison populations. Last downward in twenty-seven states be- year the total state-prison population tween 2008 and 2009, it continued to dipped for the ½rst time since 1972.2 grow in twenty-three others. Meanwhile, The sentiment that the “war on drugs” the federal prison population increased may have lost its momentum is wide- nearly 7 percent. spread. Congress and the Obama admin- Mounting ½scal pressures on their own istration have been seriously considering will not spur communities, states, and measures to reduce the sentencing dis- the federal government to empty jails parity between crack and powder cocaine and prisons. The race to incarcerate be- and to soften other drug laws. Several gan in the 1970s, at a time when states states and municipalities have designated faced dire ½nancial straits. It persisted over the next thirty years despite wide © 2010 by Marie Gottschalk fluctuations in the crime rate, public opinion, and the economy. The 2001

62 Dædalus Summer 2010 recession raised hopes that the prison Summer 2009 to discuss health care re- Cell blocks population would shrink as severe bud- form–are ominous indicators of grow- & red ink get de½cits forced states to close prisons ing public anxiety that may have impor- and lay off guards. But the surge of sen- tant implications for penal policy and law tencing and drug-law reforms enacted in enforcement. The not-too-subtle message the wake of that recession did not make appears to be that if the state is not pre- a dent in the U.S. incarceration rate. If pared to protect the public, individuals history is any guide, rising public anxiety are locked and loaded to do so. in the face of persistent economic distress Furthermore, there is a well-established and growing economic inequalities may, “relationship between economic insecu- in fact, ignite support for more punitive rity and scapegoating behavior.”4 Claims penal policies. that immigrants are stealing jobs from citizens have more salience in today’s Economic crises may foster public plunging economy and in turn justify punitiveness for several reasons. Grow- harsher attacks on the immigrant popu- ing economic despair, rising uncertainty lation. In a striking new development, about the country’s economic future, and Latinos now represent the largest ethnic massive dislocations in the labor, real es- or racial group in the federal prison sys- tate, and ½nancial markets may effective- tem. High-pro½le raids of workplaces ly fortify the “culture of control” that so- that employ large numbers of immigrants ciologist David Garland identi½ed as the have become more commonplace, and lifeblood of the prison boom launched local police are collaborating more close- nearly four decades ago. In Garland’s ac- ly with the federal authorities to detain count, societal angst stemming from deep and deport immigrants. As a conse- structural changes in the U.S. economy quence, immigration detention has be- and society in the immediate postwar come a growth industry. The number of decades ushered in a new culture of con- people held by Immigration and Customs trol premised on harsh punishment and Enforcement (formerly the Immigration extensive surveillance. Widespread per- and Naturalization Service) on any given ceptions of state impotency in address- day has increased more than elevenfold ing the economic upheavals of the 1970s since the early 1970s as the immigration further bolstered the shift in policies. service has become a miniature Bureau The U.S. government’s inability to tame of Prisons. the economic demons in the current ½- nancial crisis (and its alleged culpability Studies of the United States and other in releasing those demons) casts doubt industrialized countries indicate that the on the ef½cacy, legitimacy, and raison imprisonment rate tends to rise with the d’être of the state. While the government unemployment rate, regardless of wheth- struggles to restore economic health, er the crime rate is rising or falling.5 some public of½cials may be tempted to Experts disagree about the underlying act out in impulsive, unreflective ways, causal relationship between the unem- promoting highly punitive measures for ployment rate and the incarceration rate. their immediate symbolic and expressive We do know that public opinion about value.3 The apparent surge in ½rearm crime and punishment is highly suscep- purchases in early 2009 and the brazen tible to political manipulation. Some display of weapons at public events– suggest that during hard economic times, notably the town meetings called in it is easier–and more tempting–for

Dædalus Summer 2010 63 Marie government of½cials and politicians to forcement and delegitimize challenges Gottschalk exploit the popular stereotype of a ma- to the prevailing political and economic on mass incarcer- rauding underclass. Deteriorating eco- order. The response to the civil rights ation nomic conditions do not necessarily movement is a good case in point. When cause a spike in the crime rate–but the Senator Barry Goldwater (R-Ariz.) de- public often believes they do. As the nounced the “growing menace” to per- sociologist W. I. Thomas once said, if sonal safety in his electrifying speech be- people de½ne situations as real, they fore the 1964 Republican Convention, he are real in their consequences. was appealing not only to fears of crime Certain crimes tend to rise in reces- but also to fears of racial integration and sions and recede in good times, but this the burgeoning civil rights movement. A relationship is not ironclad. For exam- full decade earlier, conservative congres- ple, crime rose during the boom years of sional Democrats were already strategi- the 1960s; it fell during the Reagan reces- cally using the street-crime issue to dele- sion of the early 1980s and rose during gitimize the civil rights movement, even the recession of the late 1980s and early though the crime rate remained stable in 1990s (due in part, most likely, to the the mid-1950s.6 As riots broke out in ma- destabilization of established drug mar- jor cities across the country in the mid- kets with the introduction of the crack to late 1960s, conservatives “worked trade). Some evidence suggests that the vociferously to conflate crime and dis- crime rate for certain offenses drops dur- obedience, with its obvious extensions ing tough economic times, as people go to civil rights.”7 This was a doctrine not out less, shop less, carry less money, and just of words but of deeds. Conservative have less to spend on alcohol. This cor- Southern Democrats shrewdly used civil relation may explain why crime spiked rights bills as a vehicle to stiffen and in the Roaring Twenties but plummeted broaden criminal penalties. Should wide- after the 1929 stock market crash. spread civil unrest break out in the next Although crime does not necessarily couple of years, calls to amplify law en- rise during periods of economic distress, forcement will likely increase, as will protests, strikes, and civil unrest often efforts to portray ensuing protests as do, as the unemployed, unions, the elder- criminal behavior. ly, veterans, the poor, the sliding middle class, and other groups take to the streets. The Great Depression and the New In times of political and social unrest, Deal offer a cautionary tale to those who government of½cials, politicians, and claim that mounting ½scal pressures will prominent commentators often conflate automatically soften U.S. penal policies crime and social protest and by doing so and ultimately reverse the prison boom. provide an opening to strengthen the During the Great Depression, vast num- law-and-order apparatus. The imposing bers of Americans took to the streets, armories that dot American cities, for fueling fears that the social and econom- instance, were built as part of the late- ic fabric of the United States was tearing nineteenth-century response to the apart. This political turbulence sparked wide-scale urban unrest of the Gilded calls for greater police authority to regain Age. control. Labeling demonstrations and other The Depression provided an opportu- acts of protest as crime is an age-old nity to legitimize the expansion of a strategy to justify expansions of law en- number of federal and state powers,

64 Dædalus Summer 2010 ranging from government control of the Joined by police chiefs and law enforce- Cell blocks economy to law enforcement.8 The pro- ment organizations, Leahy played on & red ink found social anxiety associated with public fears of rising crime during eco- massive economic distress made the nomic downturns.10 public susceptible to calls from Presi- The stimulus package also threw a dent Franklin D. Roosevelt and J. Edgar lifeline to the controversial Byrne Jus- Hoover, director of the Federal Bureau tice Assistance Grants program, which of Investigation, to get tough on crimi- was established under the Anti-Drug nals–whatever the cost–even as crime Abuse Act of 1988 and became a corner- rates fell in the 1930s. Furthermore, the stone of the war on drugs. The bulk of construction of prisons and the expan- these grants has been used to fund law sion of law enforcement were touted as enforcement programs, most notably public works programs that promised special drug enforcement units and anti- to boost the flailing economy. gang initiatives. The drug units, which The recent economic downturn may are largely unaccountable to local police spur a comparable expansion of law en- chiefs and sheriffs, have proliferated forcement and the penal apparatus. The across the country (thanks to Byrne economic stimulus package enacted in money) in spite of their contested February 2009 resuscitated two contro- ef½cacy. versial law enforcement programs that Though championed by police unions the Bush administration had begun to and other law enforcement organiza- phase out. The stimulus bill pumped $1 tions, the Byrne program has come un- billion into Community Oriented Polic- der withering attack from the right and ing Systems, or cops, which provides the left over the years. The American federal grants to local police forces and Civil Liberties Union has documented was one of the signature programs of the numerous civil rights and other abuses Clinton administration’s draconian 1994 by Byrne drug task forces. In late 2007, crime bill. cops was created to reduce Congress unexpectedly slashed Byrne crime by promoting community policing grants by two-thirds, to a record-low al- tactics whereby police of½cers would location of $170 million. State and local walk their beat and act more like mem- of½cials pushed hard to restore Byrne bers of the community than aggressive funding in the stimulus package, pro- outside enforcers. But cops also fostered moting it as a key crime-stopping mea- more confrontational styles of policing sure and a way to generate jobs.11 The by funding swat teams and encourag- Economic Recovery Act of 2009 including the wider use of paramilitary tactics ed more than $2 billion in new Byrne and equipment. Over the years, cops funding and an additional $600 million has had a minimal effect on reducing the to increase state and local law enforce- crime rate.9 Democrats have persistently ment across the country.12 defended cops, while many conserva- A stated goal of the Obama adminis- tives and Republicans have called for tration’s economic recovery package phasing it out. In the stimulus package was to favor projects that were “shovel debate, Senator Patrick Leahy (D-Vt.), ready.” As a result of the unprecedented chairman of the Senate Judiciary Commit- prison boom of the last three decades, tee, pushed for resurrecting cops on the many states now have the experience grounds that it would aid the economy and capacity to build prisons fast. Some “as fast, or faster than, other spending.” states planned to use the stimulus money

Dædalus Summer 2010 65 Marie they received from Washington to ex- individual prisons do not necessarily Gottschalk pand or maintain prison infrastructure. bolster the local market. In 2006, the on mass incarcer- In his address to the American Bar As- country spent more than $68 billion on ation sociation last summer, Attorney General corrections, which employs an estimat- Holder lamented that spending on incar- ed 750,000 prison guards and other per- ceration has continued to increase even sonnel. It spent another $100 billion on as crime rates have flattened or dipped. police and $47 billion on the judiciary. “We will not focus exclusively on incar- In an economic downturn, mass incarceration as the most effective means of ceration may “exert a Keynesian, stabiliz- protecting public safety,” he promised.13 ing effect, to be sustained for economic But the administration’s 2010 and 2011 reasons.”16 As legal scholar Michael budgets for the Department of Justice Cavadino and criminologist James Dig- (doj) reduced spending for juvenile jus- nan explain, “In a perverse variation of tice programs and signi½cantly increased Keynes’s hypothetical cure for recession allocations for law enforcement and new –get the state to hire large numbers of prison construction. The doj’s proposed people to dig holes and then ½ll them in $100 million allocation for the Second again–the usa has hired one lot of peo- Chance Act in 2010, to provide services ple to keep another lot locked up.”17 It is to people reentering the community after no wonder that top state of½cials in Illi- prison, is a drop in the department’s $29 nois tried to stem public anger over the billion budget and comprises barely 0.14 Obama administration’s plans to trans- percent of the $70 billion spent nation- fer some Guantánamo detainees to an wide on corrections each year. As many empty supermax prison in northwestern states grapple with how to reduce their Illinois by portraying the plan as an eco- budget de½cits by closing prisons and nomic windfall for the local community. diverting offenders to probation and Public of½cials who have attempted other community-based programs, the to close penal facilities have faced ½erce federal government is dramatically bol- local resistance, even when they have stering its law enforcement and penal promised not to eliminate anyone’s job operations. or release any offenders early. Prison guards’ unions, private prison compa- Evidence increasingly shows that pris- nies, public bond dealers, and the sup- ons provide few economic bene½ts to lo- pliers of everything from telephone cal communities, notably the rural areas services to Taser stun guns compose a that have been the primary sites for new “motley group of perversely motivated prison construction since the 1980s.14 interests” that has coalesced “to sustain Nevertheless, there are compelling eco- and pro½t from mass imprisonment.”18 nomic development arguments in favor Antiprison activists are developing of prisons, even when budgets are tight. fresh economic arguments and strategies First, the huge incarcerated population in to challenge these vested interests. They the United States arti½cially lowers the have seeded growing doubts that prisons of½cial unemployment rate for males by necessarily bring economic development at least 2 percent, making the U.S. econ- to rural communities and have tried to omy appear more successful than it actu- make the ½nancial burden of penal facil- ally is.15 Second, corrections and law en- ities more visible. For example, some forcement have become major sources of groups have begun to educate the public employment on a national level, even if on lease-revenue bonds (lrbs), a back-

66 Dædalus Summer 2010 door way to ½nance new prison construc- number of ordinances against the poor Cell blocks tion that skirts states’ balanced budget for acts of vagrancy, panhandling, and & red ink rules and voter-rati½cation requirements sleeping on the street has been rising for new government-bond projects.19 since 2006. “Zero tolerance” policing is increasingly prevalent, as of½cers issue Most prison costs are ½xed and are not more tickets and make more arrests for easily cut. The only way to substantially minor infractions like jaywalking, litter- reduce spending on corrections is to send ing, and truancy. Justice delayed is often fewer people to jail or prison and shut justice denied as judges and courthouses down penal facilities. Confronted with go on furlough, judgeships remain vacant powerful interests that pro½t politically to save money, and trials are postponed. and economically from mass imprison- The quality of justice is also deteriorat- ment, public of½cials make largely sym- ing because of cuts in legal services for bolic cuts that do little to reduce the in- the indigent. carcerated population–or save money. At the same time that poverty is being Rather, these cuts render life in prison criminalized, states and the federal gov- and life after prison leaner and meaner. ernment are slashing social services for As the federal prison population grows the poor, a scenario that may result in and staff positions go un½lled, homicides, more people ending up in prison. The assaults, and other acts of violence ap- limited research available suggests that pear to be on the rise in federal peniten- certain types of social welfare spending tiaries.20 Reports of inmates being fed reduce crime. What we do know conclu- spoiled or inedible food are rising nation- sively is that states and countries that wide. Budget cuts have targeted so-called spend more on social welfare tend to nonessential prison services like educa- have lower incarceration rates, while tional, substance abuse, and vocational high rates of inequality are associated programs that help reduce recidivism with higher rates of imprisonment. and were already grossly underfunded. Charging prisoners fees for services like The vested interests in maintaining the meals, lodging, and visits to the doctor is United States’ extensive penal system becoming more common. Politicians in are considerable. A sea of red ink may be Des Moines, Iowa, even considered charg- a necessary, but not suf½cient, condition ing inmates for toilet paper to save $2,300 to force the closing of prisons and jails a year. In some cases, former prisoners and to spur a sharp drop in the incarcer- and family members of juvenile offend- ated population. The most telling prece- ers have been sent to prison because they dent for such a shift is the deinstitution- could not pay off fees charged by correc- alization of the mentally ill in the latter tions. As judicial budgets contract, judges half of the twentieth century. Deinstitu- in some states have become exceptionally tionalization was a rare instance when aggressive about collecting ½nes and fees. the government eventually shut down a Sending poor people to jail if they cannot vast archipelago of institutions that states pay corrections fees or court-imposed had invested in heavily for many years. ½nes is a practice of dubious constitu- But the shutdown involved a protracted tionality. political drama that played out for de- These developments are part of what cades. In 1955, the state mental health some call a new war on the poor, as pov- population was 559,000, nearly as large erty is increasingly criminalized.21 The on a per capita basis as the prison popu-

Dædalus Summer 2010 67 Marie lation today. By 2000, it had fallen to be- closing the facilities. Only after many Gottschalk low 100,000, a drop of more than 90 contentious years did unions secure gov- on mass 22 incarcer- percent. The development of new ernment support to retrain workers in ation drugs like Reserprine and chlorproma- psychiatric hospitals to prepare them to zine to combat mental illness helps ex- be transferred into community treatment plain some of this drop. But federal programs. Even though many of the psy- actions, the culmination of decades of chiatrists moved on and many residents political agitation around this issue, of state mental hospitals were eventually were the primary catalyst. transferred to other facilities or released, The deinstitutionalization case dem- these largely empty hulks stayed open onstrates the enormous importance of for decades. It wasn’t until the 1990s– the political context for the development nearly four decades after talk of deinsti- and implementation of successful federal tutionalization began–that whole insti- and state policies to dramatically shrink tutions began to close in large numbers. state institutions. Rising anxiety among It took just as long for political leader- state of½cials about the escalating costs ship and the public to acknowledge that of state mental institutions in the late successful integration requires more 1940s did not on its own empty state asy- than adequate medical treatment; the lums; leadership at the federal level was mentally ill need access to housing and critical to enacting change. Another vital jobs as well. Remarkably, it wasn’t until component was the shift in the training, 1993 that state funding for community worldview, and identity of the psychi- mental health surpassed state funding atric profession, as the American Psychi- for mental institutions.23 atric Association split over the question The expected ½nancial savings from of institutional care versus the commu- deinstitutionalization were oversold to nity mental health model. Furthermore, politicians and the wider public, thus un- the emergence of major new and inter- dermining the case for adequate funding connected social movements (including of services for the mentally ill. Cutbacks the civil rights movement and the senior in mental-health funds, which started citizens movement) as well as journalis- in the Reagan years, and cuts in federal tic and popular attention to the dire con- money for public housing and other ser- ditions in state mental hospitals were vices resulted in streams of apparently pivotal in pushing policy-makers to em- deranged people living on the streets. brace change. Moreover, the issue had to This outcome fueled a backlash against be reconceived. No longer was mental deinstitutionalization and community health concerned only with individuals mental health and overshadowed the and their individual diseases. Rather, fact that many mentally ill people made mental health became a barometer for successful transitions to community life. the health of the whole community. With the closing of state mental hospi- Mental institutions were a huge and tals and the contraction of federal money growing drain on state budgets for years, for treatment, services, and housing, jails yet deinstitutionalization progressed and prisons, unfortunately, became the very slowly. Politicians and policy-mak- mental institutions of last resort for many ers faced enormous resistance to closing people with mental health problems. state mental hospitals. Unions and com- It is also important to keep in mind munities for which mental hospitals were that states were able to reduce their the primary employer bitterly opposed mental health tab by getting someone

68 Dædalus Summer 2010 else to pick up the bill. Under the land- Debates about crime, punishment, Cell blocks mark Medicare and Medicaid legislation and law and order have been deeply & red ink enacted in 1965, the federal government entangled in wider political battles and would not reimburse states for the cost electoral strategies in ways that the men- of care for indigent and senile elderly tal health issue never was. Mental health people residing in state asylums. As a policy has been a controversial subject result, the elderly, who made up a large from time to time, but it has never been proportion of the state mental hospital a lightning rod in American politics in population, were transferred to nursing the way penal policy and law and order homes, where the federal government have been since the 1960s. would pick up the cost. Republicans waged the rebirth of the modern Republican Party on the “South- Although there are important paral- ern strategy.” They used the rhetoric of lels between deinstitutionalization of law and order as code words for race to the mentally ill and efforts to end mass undermine the new Democratic majority incarceration, there are also major dif- resting on the civil rights movement and ferences suggesting that successfully re- to build a new coalition of white voters ducing the country’s incarcerated popu- anchored in the South and West. Bill Clin- lation will be an even greater challenge. ton staked his campaign for the White The mentally ill and their legal advo- House on a kinder, gentler version of the cates had considerable access to the court law-and-order Southern strategy to woo system to press their civil rights claims the so-called Reagan Democrats back to and to expose the dire conditions in state the party. Given the high pro½le of crime mental hospitals. By contrast, the 1996 and punishment at the federal level and Prison Litigation Reform Act, the Anti- how this issue has been a pillar for repo- terrorism and Effective Death Penalty sitioning the major political parties, po- Act, and a string of unfavorable court litical openings to shift penal policy in a decisions have made it increasingly dif½- less punitive direction are fraught with cult for inmates and their legal advocates risk and are hard to sustain. to use the courts to pursue civil rights Public opinion poses an additional claims and to document and expose the hurdle to penal reform. Penal policy is degrading and inhumane conditions particularly vulnerable to moral panics– in U.S. prisons and jails. Likewise, the often fueled by politicians–in the wake media no longer serve as vehicles to prod of certain high-pro½le crimes or events. reform. Due to cutbacks and restructur- Some suggest that moral panics are more ing in the news business, investigative likely to occur during periods of broad pieces documenting abuses in all kinds uncertainty and insecurity in society. of institutions (prisons, nursing homes, Faced with a particularly heinous high- hospitals) are increasingly rare. Further- pro½le violent crime, many public of½- more, prison and state of½cials have been cials believe that they need to respond erecting ever-higher barriers for jour- with bold law-and-order gestures to ad- nalists attempting to cover what happens dress what they perceive to be the pub- behind prison walls, including, in some lic’s anger and moral outrage. states, complete bans on face-to-face Yet policy-makers grossly misperceive interviews with inmates. Moreover, the public opinion on penal matters, mistak- once vibrant in-house penal press is enly seeing the public as more support- nearly extinct. ive of punitive measures than it actually

Dædalus Summer 2010 69 Marie is.24 This judgment error may explain geddon, the state’s voters nonetheless Gottschalk policy-makers’ persistent reticence to narrowly approved Proposition 9 in No- on mass incarcer- make bold moves that would slash the vember 2008; it toughens requirements ation incarceration rate and why politicians for granting parole and calls for amend- across the political spectrum respond to ing the state’s constitution to give crime increases in the crime rate by reflexively victims unprecedented influence on calling for more prisons and tougher criminal cases. Voters soundly rejected sentences. Proposition 5, which would have expand- In reality, public opinion research indi- ed alternative sentences for nonviolent cates that Americans have a much more drug offenders and saved billions of nuanced view of spending on criminal dollars. justice than the popular media or public- California faced a $24 billion budget policy debates suggest. The public over- shortfall in 2009 at the same time that whelmingly favors spending more on po- a federal court was demanding that the licing, crime prevention programs for state spend billions more on prison health young people, and drug treatment for care or else release about forty thousand nonviolent offenders. But it strongly op- offenders to relieve gross overcrowding. poses additional funding for prisons.25 A proposal to release some nonviolent Differences in the structure of state in- offenders created a political ½restorm. A stitutions and the quality of civic life may watered-down compromise was nearly help to explain why redirecting penal pol- scuttled in the eleventh hour in the State icy from the law-and-order path, how- Assembly after the sensational story of ever costly it has become, will be more Phillip Garrido became front-page news dif½cult in some states than in others.26 worldwide in Summer 2009.28 Law en- The case of California is a stark reminder forcement groups successfully pressed that political and institutional logic can Democrats to strip the bill of provisions matter as much as or more than econom- to reduce sentences for some nonviolent ic logic in determining the future course offenders and establish a commission to of penal policy. California has been tee- revise prison sentencing guidelines. The tering on the brink of ½scal and social di- ½nal bill had the capacity to reduce the saster for several years. Commentators prison population by sixteen thousand have even begun to refer to it as a “failed inmates, far fewer than originally pro- state,” a term usually associated with posed.29 countries like the Congo or Afghanistan. The Golden State has been unable or un- The current economic crisis presents willing to soften its Three Strikes law, the an opportunity to redirect U.S. penal pol- toughest in the nation. Third-strike of- icy that opponents of the prison boom fenders in California–some with modest should exploit. But framing this issue as third offenses, such as petty theft–lan- primarily an economic one will not sus- guish in the state’s overcrowded prison tain the political momentum needed system at an average cost of $49,000 a over the long haul to drastically reduce year.27 the prison population. Economic justi- The state’s voter initiative and refer- ½cation also ignores the fact that a suc- endum process continues to warp penal cessful decarceration will cost money. policies, making California highly vulner- The people reentering society after pris- able to penal populism and well-funded on need signi½cant educational, voca- single-issue groups. Facing ½scal Arma- tional, housing, health, and economic

70 Dædalus Summer 2010 support. We need to make considerable short-term bene½ts. However, focusing Cell blocks reinvestments in reentry to ensure that too heavily on the economic burden & red ink the communities prisoners return to may draw attention away from the fact are not further destabilized by waves of that the penal system has begun to fun- former prisoners whose time inside has damentally alter how key social and po- greatly impaired their economic, educa- litical institutions operate and to pervert tional, and social opportunities. what it means to be a citizen in the Unit- In addition, while we need to make ed States.30 It also undercuts the com- reentry a priority, we cannot focus only pelling civil- and human-rights argu- on those who are released. We need to re- ments that the carceral state raises as it duce the number of people who are sent removes wide swaths of African Ameri- to jail or prison and the length of their cans, Latinos, and poor Americans from sentences. Prisons and jails exacerbate their neighborhoods. Mass incarceration many social ills that contribute to crime devastates the families and communities and poverty and are unlikely to signi½- the imprisoned leave behind. It raises cantly rehabilitate anyone. Roughly half troubling questions about the fairness the people in U.S. prisons are serving and legitimacy not only of the criminal time for nonviolent offenses (many of justice system but also of the political them property or petty drug offenses system more broadly. In the absence of that would not warrant a sentence in more compelling arguments against the many other countries), while sentences prison buildup and of a durable move- for violent offenses have lengthened ment to sell these arguments to skepti- considerably. cal policy-makers and the wider public, Criminal justice is fundamentally a it becomes that much easier to revert to political problem, not a crime-and-pun- funding a vast carceral state, no ques- ishment problem. A vast penal system is tions asked, once the economy picks up. well on its way to becoming a key govern- A durable reform movement to weath- ing institution in the United States. Like er the backlash that will inevitably be the vast military-industrial complex that sparked by efforts to substantially reduce quickly insinuated itself into the political the incarceration rate has yet to coalesce. and economic fabric in the postwar de- The economic crisis does not spell the cades, the penal system has become so beginning of the end of mass incarcera- large and so integral to the U.S. polity tion in the United States. To borrow from and the economy that we barely see it Winston Churchill, “It is not even the anymore. beginning of the end. But it is, perhaps, Framing the carceral state primarily the end of the beginning.”31 as an economic issue may yield some endnotes 1 Abdon Pallasch, “Prisons Not the Answer to Crime Problems: Attorney General,” Chicago Sun-Times, August 3, 2009. 2 “Prison Count 2010” (Washington, D.C.: Pew Center on the States, March 2010). 3 David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chi- cago: University of Chicago Press, 2001), 132–133.

Dædalus Summer 2010 71 Marie 4 Amanda Matravers and Shaad Maruna, “Modern Penalty and Psychoanalysis,” in Manag- Gottschalk ing Modernity: Politics and the Culture of Control, ed. Matt Matravers (London: Routledge, on mass 2005), 128. incarceration 5 Alessandro De Girorgi, Re-Thinking the Political Economy of Punishment: Perspectives on Post- Fordism and Penal Politics (Aldershot, U.K.: Ashgate, 2006), 3–33. 6 Naomi Murakawa, “Electing to Punish: Congress, Race, and the American Criminal Jus- tice State,” Ph.D. thesis (Yale University, New Haven, Conn., 2005), 81–82. 7 Vesla Weaver, “Dark Prison: Race, Rights, and the Politics of Punishment,” paper presented at the 102nd Annual Meeting of the American Political Science Association, Philadel- phia, 2006, 29. 8 Marie Gottschalk, The Prison and the Gallows: The Politics of Mass Incarceration in America (Cambridge: Cambridge University Press, 2006), 65–70. 9 Peter Eisler and Kevin Johnson, “10 Years and $10B Later, cops Drawing Scrutiny,” usa Today, April 10, 2005, http://www.usatoday.com/news/washington/2005-04-10 -cops-coverx.htm (accessed March 31, 2009). 10 Neil A. Lewis, “Recovery Bill Has $1 Billion to Hire More Local Police,” The New York Times, February 6, 2009. 11 John Gramlich, “Stimulus Prompts Debate Over Police,” Stateline.org, February 11, 2009, http://www.stateline.org/live/details/story?contentId=375802 (accessed March 6, 2009). 12 “Federal Budget: Economic Stimulus Bill Stimulates Drug War, Too,” Drug War Chronicle 573 (February 20, 2009). 13 Pallasch, “Prisons Not the Answer to Crime Problems.” 14 Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California (Berkeley: University of California Press, 2007); Ryan S. King, Marc Mauer, and Tracy Huling, “Big Prisons, Small Towns: Prison Economics in Rural America” (Washing- ton, D.C.: The Sentencing Project, February 2002). 15 Katherine Beckett and Bruce Western, “How Unregulated Is the U.S. Labor Market? The Dynamics of Jobs and Jails, 1980–1995,” American Journal of Sociology 104 (4) (1999): 1040. 16 David Downes, “The Macho Penal Economy: Mass Incarceration in the United States– A European Perspective,” Punishment and Society 3 (1) (2001): 74. 17 Michael Cavadino and James Dignan, Penal Systems: A Comparative Approach (London: Sage, 2006), 58. 18 Tara Herivel, “Introduction,” in Prison Pro½teers: Who Makes Money from Mass Incarceration, ed. Tara Herivel and Paul Wright (New York: New Press, 2007), ix. 19 Gilmore, Golden Gulag, 98–102; Kevin Pranis, “Doing Borrowed Time: The High Cost of Backdoor Prison Finance,” in Prison Pro½teers, ed. Herivel and Wright, 36–51. 20 Brandon Sample, “Violence on the Rise in bop Facilities,” Prison Legal News 20 (8) (2009): 10–12. 21 Barbara Ehrenreich, “Is It Now a Crime to Be Poor?” The New York Times, August 9, 2009; Katherine Beckett and Steve Herbert, Banished: The New Social Control in Urban America (Oxford: Oxford University Press, 2010). 22 William Spelman, “Cash, Crime, and Limited Options: Explaining the Prison Boom,” Criminology and Public Policy 8 (1) (2009): 71. 23 Chris Koyanagi, “Learning from History: Deinstitutionalization of People with Mental Ill- ness as Precursor to Long-Term Care Reform” (Menlo Park, Calif.: The Henry J. Kaiser Family Foundation, Kaiser Commission on Medicaid and the Uninsured, August 2007).

72 Dædalus Summer 2010 24 Stephen D. Gottfredson and Ralph B. Taylor, “Attitudes of Correctional Policymakers Cell blocks and the Public,” in America’s Correctional Crisis: Prison Population and Public Policy, ed. & red ink Stephen D. Gottfredson and Sean McConville (New York: Greenwood Press, 1987), 57–75. 25 See, for example, Mark A. Cohen, Roland T. Rust, and Sara Steen, “Prevention, Crime Control or Cash? Public Preferences Towards Criminal Justice Spending Priorities,” Justice Quarterly 23 (2005): 317–335; Harris Sokoloff and Chris Satullo, “The City Budget: Tight Times, Tough Choices” (Philadelphia: Penn Project for Civic Engagement, March 2, 2009); Mark DiCamillo and Mervin Field, “Paradoxical Views about the State De½cit,” press release no. 2275, Field Research Corporation, June 10, 2008. 26 Vanessa Barker, The Politics of Imprisonment: How the Democratic Process Shapes the Way America Punishes Offenders (Oxford: Oxford University Press, 2009). 27 Nicholas Kristof, “Priority Test: Health Care or Prisons?” The New York Times, August 19, 2009. 28 Garrido was accused of kidnapping an eleven-year-old girl and con½ning her to an undis- covered backyard encampment for nearly two decades while he was on parole for rape and kidnapping offenses dating back to 1976. 29 Solomon Moore, “California Passes Bill Addressing Prisons,” The New York Times, Septem- ber 13, 2009. 30 For a development of this point, see Marie Gottschalk, “City on a Hill, City Behind Bars: Criminal Justice, Social Justice, and American Exceptionalism,” Nanzan Review of American Studies 31 (2009). 31 Quoted in “Editorial: What’s With All the Good News Lately?” Drug War Chronicle 583 (May 1, 2009).

Dædalus Summer 2010 73 Loïc Wacquant

Class, race & hyperincarceration in revanchist America

The single greatest political transforma- the 1970s, and then witnessed the biggest tion of the post-civil rights era in Ameri- carceral boom in world history.2 ca is the joint rolling back of the stingy In this article, I show that the stupen- social state and rolling out of the gargan- dous expansion and intensi½cation of the tuan penal state that have remade the activities of the American police, criminal country’s strati½cation, cities, and civic courts, and prison over the past thirty culture, and are recasting the very char- years have been ½nely targeted, ½rst by acter of “blackness” itself. Together, these class, second by race, and third by place, two concurrent and convergent thrusts leading not to mass incarceration but to have effectively redrawn the perimeter, the hyperincarceration of (sub)proletari- mission, and modalities of action of pub- an African American men from the im- lic authority when it comes to managing ploding ghetto. This triple selectivity re- the deprived and stigmatized populations veals that the building of the hyperactive stuck at the bottom of the class, ethnic, and hypertrophic penal state that has and urban hierarchy. The concomitant made the United States world champion downsizing of the welfare wing and up- in incarceration is at once a delayed reac- sizing of the criminal justice wing of the tion to the civil rights movement and the American state have not been driven by ghetto riots of the mid-1960s3 and a disci- raw trends in poverty and crime, but plinary instrument unfurled to foster the fueled by a politics of resentment toward neoliberal revolution by helping to im- categories deemed undeserving and un- pose insecure labor as the normal hori- ruly. Chief among those stigmatized pop- zon of work for the unskilled fractions of ulations are the public-aid recipients and the postindustrial laboring class.4 The the street criminals framed as the two de- double coupling of the prison with the monic ½gureheads of the “black under- dilapidated hyperghetto, on the one side, class” that came to dominate the journal- and with supervisory workfare, on the istic, scholarly, and policy debate on the other, is not a moral dilemma–as recent- plight of urban America1 in the revan- ly argued by Glenn Loury in his Tanner chist decades that digested the civil dis- Lecture5–but a political quandary call- orders of the 1960s and the stagflation of ing for an expanded analysis of the nexus of class inequality, ethnic stigma, and the © 2010 by Loïc Wacquant state in the age of social insecurity. Re- versing the racialized penalization of

74 Dædalus Summer 2010 poverty in the crumbling inner city re- growth of the carceral system in Ameri- Class, race quires a different policy response than ca is the steep escalation in the volume & hyperincarcer- mass incarceration would and calls for of persons arrested by the police and the ation in an analysis of the political obstacles to vastly enlarged role assumed by jails as revanchist this response, which must go beyond frontline dams of social disorders in the America “trickle-down” penal reform to encom- city. This police hyperactivism has been pass the multifaceted role of the state in disproportionate to and disjoined from producing and entrenching marginality. trends in crime. One example: in New York City, under the campaign of “zero The tale of the unexpected and expo- tolerance” promoted by then-Mayor nential growth of jails and prisons over Rudolph Giuliani, the number of arrests the past three decades in America after increased by 40 percent between 1993 a half-century of carceral stability has and 1998 to top 376,000 while crime de- often been told. But the raw increase of creased by 54 percent to reach 323,000, the population behind bars–from about meaning that the police arrested more 380,000 in 1975 to 2 million in 2000 and persons than it recorded offenses by the some 2.4 million today (counting juve- end of that period, compared to half as niles and persons held in police lockups, many at the start. Even though a grow- who are not registered by of½cial correc- ing share of these arrests were abusive tional statistics)–is only part of the story and did not lead to charges, admissions of the multisided expansion of the penal to jail rose by one-fourth, causing ram- state.6 Four distinctive yet submerged pant congestion and daily pandemoni- dimensions of America’s punitive turn um in the city’s custodial facilities.8 after the close of the Fordist era form the As a result of intensi½ed policing cou- backdrop to my analysis of the deploy- pled with a rising propensity to con½ne ment of the disciplinary tentacles of the miscreants, American jails have become state toward the poor. gargantuan operations processing a dozen First, this phenomenal increase is re- million bodies each year nationwide, as markable for having been fueled, not by well as huge drains on the budgets of the lengthening of the average sentence counties and pivotal institutions in the as in previous periods of carceral infla- lives of the (sub)proletariat of the big tion, but primarily by the surge in jail and cities.9 Indeed, because they treat vastly prison admissions. Thus the number of more people than do prisons, under con- people committed to state and federal ditions that are more chaotic due to high penitentiaries by the courts ballooned turnover, endemic overcrowding, popu- from 159,000 in 1980 to 665,000 in 1997 lation heterogeneity, and the administra- (accounting for more than 80 percent of tive shift to bare-bones managerialism inmate growth during that period) before (the two top priorities of jail wardens are stabilizing at about a half-million annu- to minimize violent incidents and to hold ally after 2002. This surge sharply differ- down staff overtime), jails create more entiates the United States from Western social disruption and family turmoil at European countries, most of which have the bottom of the urban order than do also witnessed a steady, if comparatively prisons. Yet they have remained largely modest, rise in incarceration over the past under the radar of researchers and policy two decades, but one where growing analysts alike.10 stock is not due to increases in flow.7 Second, the vertical rise of the penal A major contributor to this “vertical” system has been exceeded by its “hori-

Dædalus Summer 2010 75 Loïc zontal” spread: the ranks of those kept in cation statutes (and related laws seek- Wacquant the long shadow of the prison via probation ing to expurgate speci½c categories of on mass incarcer- and parole have swelled even more than convicts, such as sex offenders, from the ation the population under lock, to about 4 mil- social body), and the shift from old-style lion and 1 million, respectively. As a re- ½ngerprints and mug shots to dna prints sult, the total population under criminal coordinated by the fbi.12 These institu- justice supervision bloated from 1.8 mil- tional tentacles, and the routine practices lion in 1980 to 6.4 million by 2000 and of pro½ling, surveillance, and enclosure 7.4 million in 2007. Probation and parole at a distance that they permit, severely should be incorporated into the debate curtail the life chances of former convicts on the penal state, not only because they and their families by stretching the effects concern a much larger population than of judicial stigma on the labor, housing, that of convicts (in 1998, eleven states and marital markets as well as into daily each held in excess of 100,000 probation- life.13 Legislators have further ampli½ed ers under their heel, more than France these sanctions by adding a raft of restric- did, with 87,000), but also because both tions on the access of ex-felons to public are more likely to lead (back) to impris- services, privileges, and bene½ts, from onment than not: two in ½ve probation- public housing and public employment ers and six in ten parolees who exited this to college scholarships, parenting, and status in 1997 were returned to custody voting rights.14 within three years, either because they Third, the advent of penal “big gov- had committed a new offense or because ernment” was made possible by aston- they had violated one or another admin- ishing increases in funding and person- istrative condition of their release (fail- nel. Prison and jail expenditures in Amer- ing an alcohol test or losing a job, miss- ica jumped from $7 billion in 1980 to $57 ing an appointment with their parole of- billion in 2000 and exceeded $70 billion ½cer, or traveling outside of their county in 2007, even as crime ½rst stagnated and of assignment without permission, for then declined steadily after 1993. (Mean- example). The purpose and functioning while, criminal justice expenditures grew of parole have changed drastically over sevenfold, from $33 billion to $216 bil- the past thirty years, from spring toward lion.) This budgetary boom of 660 per- rehabilitation to penal trap, so that parole cent–amounting to a veritable carceral is now properly construed as an extension Marshall Plan during a period when suc- of the custodial system, rather than an cessive administrations proclaimed to alternative to it.11 rein in public spending–½nanced the The reach of penal authorities has infusion of an additional one million also been dramatically enlarged beyond criminal justice staff, which has made probation and parole by the exponential corrections the third largest employer growth in the size, scope, and uses of in the nation, behind only Manpower criminal justice databases that, as of Inc. and Wal-Mart, with a monthly pay- 2000, contained roughly sixty million roll of $2.4 billion. ½les on an estimated thirty-½ve million The upsizing of the carceral function individuals. Novel panoptic measures in- of government has been rigorously pro- clude the diffusion of of½cial “rap sheets” portional to the downsizing of its wel- through the Internet, the routinization fare role. In 1980, the country spent of “background checks” by employers three times as much on its two main and realtors, the spread of public noti½- assistance programs ($11 billion for

76 Dædalus Summer 2010 Aid to Families with Dependent Chil- tween 1985 and 1995, at the peak of the Class, race dren [afdc] and $10 billion for food carceral boom. Everywhere the ideal of & hyperincarcer- stamps) than on corrections ($7 bil- rehabilitation has been abandoned or ation in lion). By 1996, when ‘‘welfare reform’’ drastically downgraded, making retribu- revanchist replaced the right to public assistance tion and neutralization the main practi- America by the obligation to accept insecure cal rationale for con½nement. employment as a condition of support, Increases in the civic salience of crime the carceral budget came to double the and distrust in government have pushed sums allocated to either afdc or food all jurisdictions toward greater punitive- stamps ($54 billion compared to $20 bil- ness.18 Moreover, policy control over lion and $27 billion, respectively). Simi- criminal justice has migrated to the feder- larly, during the 1990s alone, Washing- al level, where it has grown steadily more ton cut funding for public housing by symbolic and less substantive since the $17 billion (a reduction of 61 percent) 1970s.19 Indeed, this national slant is one and boosted corrections by $19 billion of the distinctive causes of the severity of (an increase of 171 percent), effectively the punitive turn, as it strikes at impov- making the construction of prisons the erished minority districts in the city.20 nation’s main housing program for the This national trajectory has been uninter- poor. rupted by changes in political majority Fourth, the building of America’s in statehouses, Congress, and the White gigantic penal state is a nationwide en- House, as both parties have reflexively deavor and a bipartisan achievement. Many supported penal activism and expanded scholars have rightly stressed that the incarceration.21 Republicans will claim United States does not have a criminal that they are “tougher on crime,” but justice system so much as a loose patch- Democratic majorities have run up the work of independent jurisdictions beset carceral tab in California, Illinois, Michi- by administrative fragmentation and pol- gan, and New York. It was a Democratic icy dispersal bordering on incoherence.15 president, Jimmy Carter (former governor In light of wide regional and state varia- of Georgia, one of the country’s most re- tions, others have highlighted the role of pressive states), who jump-started Amer- “local political culture” and modes of ica’s great “carceral leap forward.” And “civic engagement” in determining the another Democratic president (and for- mix and intensity of penal sanctions.16 mer governor of another superpunitive Still others have reported that Republi- state, Arkansas), Bill Clinton, who pushed can governors, a large African American for the most costly crime bill in world urban population, and “a state’s religious history (the Violent Crime Control and and political culture” exert a signi½cant Law Enforcement Act of 1994), oversaw influence on incarceration rates.17 Yet for the single largest expansion of incarcer- all these and other geographic disparities ation in the annals of democratic so- and peculiarities, it remains that, over cieties: Clinton tallied an increase of the past thirty-odd years, penal escala- 465,000 convicts for an added $15 bil- tion has left no corner of the country un- lion, compared to 288,000 convicts for a touched and has brought about de facto boost of $8 billion for Ronald Reagan. uni½cation in the aggressive deployment of punishment. Aside from Maine and The foregoing indicates that the foot- Kansas, all states saw their correctional print of the penal state on the national body counts grow by more than 50 percent be- is much broader and heavier than usually

Dædalus Summer 2010 77 Loïc depicted. At the same time, it is also con- Indeed, a rate of 0.75 percent compares Wacquant siderably more pointed than conveyed by quite favorably with the incidence of on mass incarcer- the current debate. It has become conven- such woes as latent tuberculosis infec- ation tional among justice activists, journalists, tion (estimated at 4.2 percent) and se- and analysts of the U.S. carceral scene to vere alcohol dependency (3.81 percent), designate the unprecedented and unpar- ailments which no one would seriously alleled expansion of the American cor- contend have reached mass proportions rectional system at the close of the twen- in the United States.24 Next, the expan- tieth century as “mass incarceration.”22 sion and intensi½cation of the activities The term was (re)introduced in the na- of the police, courts, and prison over the tional prison debate in the late 1990s past quarter-century have been anything (until then, it had been used to refer to but broad and indiscriminate.25 They the internment of Japanese Americans in have been ½nely targeted, ½rst by class, concentration camps during World War second by that disguised brand of eth- II) and was soon codi½ed by David Gar- nicity called race, and third by place. land at the interdisciplinary conference This cumulative targeting has led to the on “Mass Incarceration: Social Causes hyperincarceration of one particular cate- and Consequences,” held at New York gory, lower-class African American men University in 2000, which boosted re- trapped in the crumbling ghetto, while leav- search on the topic.23 The designation of ing the rest of society–including, most mass incarceration is intuitively appeal- remarkably, middle- and upper-class Afri- ing because it helps spotlight the outlier can Americans–practically untouched. status of the United States on the world Third, and more important still, this scene, dramatize the condition at hand, triple selectivity is a constitutive property of and thus draw scholarly and public atten- the phenomenon: had the penal state been tion to it. But, much as it has been useful rolled out indiscriminately by policies in terms of mobilizing intellectual and resulting in the capture of vast numbers civic resources, the notion obscures sig- of whites and well-to-do citizens, capsiz- nal features of the phenomenon. ing their families and decimating their Mass incarceration is a mischaracteri- neighborhoods as it has for inner-city zation of what is better termed hyperin- African Americans, its growth would carceration. This is not a mere termino- have been speedily derailed and eventu- logical quibble, for the change in word- ally stopped by political counteraction. ing points to a different depiction of the “Mass” incarceration is socially tolerable punitive turn, which leads to a different and therefore workable as public policy causal model and thence to different pol- only so long as it does not reach the masses: icy prescriptions. Mass incarceration sug- it is a ½gure of speech, which hides the gests that con½nement concerns large multiple ½lters that operate to point the swaths of the citizenry (as with the mass penal dagger.26 media, mass culture, and mass unem- Class, not race, is the ½rst ½lter of se- ployment), implying that the penal net lection for incarceration. The welcome has been flung far and wide across social focus on race, crime, and punishment and physical space. This is triply inaccu- that has dominated discussions of the rate. First, the prevalence of penal con- prison boom has obliterated the fact that ½nement in the United States, while ex- inmates are ½rst and foremost poor people. treme by international standards, can Indeed, this monotonic class recruitment hardly be said to concern the masses. is a constant of penal history since the

78 Dædalus Summer 2010 invention of houses of correction in the Martha Stewart and Bernie Madoff are Class, race late sixteenth century27 and a fact con- but spectacular exceptions that spotlight & hyperincarcer- ½rmed by the annals of U.S. incarcera- this stringent class rule. ation in tion.28 Consider the social pro½le of the Race comes second. But the ethnic revanchist clientele of the nation’s jails–the gate- transformation of America’s prison has America way into America’s carceral archipelago. been at once more dramatic and more This clientele is drawn overwhelmingly puzzling than generally recognized. To from the most precarious fractions of the start, the ethnoracial makeup of convicts urban working class29: fewer than half has completely flip-flopped in four decades, of inmates held a full-time job at the time turning over from 70 percent white and of arraignment and two-thirds issue from 30 percent “others” at the close of World households with an annual income com- War II to 70 percent African American ing to less than half the “poverty line”; and Latino versus 30 percent white by only 13 percent have some postsecondary century’s end. This inversion, which ac- education (compared to a national rate celerated after the mid-1970s, is all the above one-half ); 60 percent did not grow more stunning when the criminal popu- up with both parents, including 14 per- lation has both shrunk and become whiter cent raised in foster homes or orphan- during that period: the share of African ages; and every other detainee has had Americans among individuals arrested by a member of his family behind bars. The the police for the four most serious vio- regular clients of America’s jails suffer lent offenses (murder, rape, robbery, and from acute material insecurity, cultural aggravated assault) dropped from 51 per- deprivation, and social denudement– cent in 1973 to 43 percent in 1996,31 and it only 16 percent of them are married, continued to decline steadily for each of compared to 58 percent for men of their those four crimes until at least 2006.32 age bracket nationwide. They also include Next, the rapid “blackening” of the disproportionate numbers of the home- prison population even as serious crime less, the mentally ill, the alcohol- and “whitened” is due exclusively to the astro- drug-addicted, and the severely handi- nomical increase in the incarceration capped: nearly one in four suffers from a rates of lower-class African Americans. physical, psychic, or emotional ailment In his book Punishment and Inequality in serious enough to hamper his or her America, sociologist Bruce Western pro- ability to work. And they come mostly duces a stunning statistic: whereas the from deprived and stigmatized neigh- cumulative risk of imprisonment for borhoods that have been devastated by African American males without a high- the double retrenchment of the formal school diploma tripled between 1979 and labor market and the welfare state from 1999, to reach the astonishing rate of 59 the urban core.30 Conversely, very few percent, the lifetime chance of serving members of the middle and upper classes time for African American men with ever sojourn at the “Graybar hotel,” es- some college education decreased from 6 pecially for committing the minor to percent to 5 percent.33 Here again, the middling crimes that account for the media melodrama around the arrest of bulk of prison convictions. (In 1997, 11 Harvard University star professor Henry percent of new court commitments to Louis Gates in Summer 2009 has hidden state penitentiaries were for public order the fact that middle- and upper-class Afri- offenses, 30 percent for narcotics convic- can Americans are better off under the tions, and 28 percent for property crimes.) present penal regime than they were thir-

Dædalus Summer 2010 79 Loïc ty years ago. It has played to the national Clark, imploded in the 1960s, to be re- Wacquant obsession for the black-white duality, placed by a dual and decentered struc- on mass incarcer- which obfuscates the fact that class dis- ture of seclusion composed of a degradation proportionality inside each ethnic category ed hyperghetto doubly segregated by race is greater than the racial disproportionality and class, on the one hand, and the satel- between them: African American men lite African American middle-class districts are eight times more likely to sojourn that mushroomed in the adjacent areas behind bars than European American vacated by the mass exodus of whites men (7.9 percent versus 1.0 percent in to the suburbs, on the other.36 2000), but the lifetime probability of But to detect the tightening linkage serving time in prison for African between the decaying ghetto and the American males who did not com- booming prison requires that one ef- plete their secondary education is fects two analytic moves. First, one twelve times that for African Amer- must break out of the narrow ambit ican males who went to college (58.9 of the “crime and punishment” para- percent versus 4.9 percent), whereas digm that continues to hamstring the that class gap among white men stands scholarly and policy debate, in spite at sixteen to one (11.2 percent versus of its increasingly glaring inadequacy. 0.7 percent).34 The fact that these ra- A simple ratio suf½ces to demonstrate tios were considerably lower two de- that crime cannot be the cause behind cades ago for both African Americans carceral hyperinflation: the number and European Americans (of the order of clients of state and federal prisons of one to three and one to eight, respec- boomed from 21 convicts per thousand tively) con½rms that enlarged imprison- “index crimes” in 1975 to 125 per thou- ment has struck very selectively by class sand in 2005. In other words, holding inside of race, which again refutes the the crime rate constant shows that the diagnosis of a “mass” phenomenon. American penal state is six times more punitive today than it was three decades How was such double, nested selec- ago.37 Instead of getting sidetracked into tivity achieved? How is it possible that investigations of the crime-punishment criminal laws ostensibly written to (dis)connection, one must recognize that avoid class and color bias would lead the prison is not a mere technical imple- to throwing so many (sub)proletarian ment of government designed to stem African American men under lock, and offending, but a core state capacity de- not other African American men?35 voted to managing dispossessed and dis- The class gradient in racialized impris- honored populations. Returning to the onment was obtained by targeting one early history of the prison in the long particular place: the remnants of the dark sixteenth century readily discloses that ghetto. I insist here on the word remnants, penal bondage developed, not to ½ght because the ghetto of old, which held in crime, but to dramatize the authority its grip a uni½ed, if strati½ed, African of rulers, and to repress idleness and American community, is no more. The enforce morality among vagrants, beg- communal Black Belt of the Fordist era, gars, and assorted categories cast adrift described by a long lineage of distin- by the advent of capitalism.38 The rise guished African American sociologists, of the prison was part and parcel of the from W. E. B. Du Bois and E. Franklin building of the early modern state to Frazier to Drake and Cayton to Kenneth discipline the nascent urban proletariat

80 Dædalus Summer 2010 and to stage sovereignty for the bene½t undercut the role of the ghetto as a reser- Class, race of the emerging citizenry. The same is voir of unskilled labor. The second cause & hyperincarcer- true four centuries later in the dualizing is the political displacement provoked by ation in metropolis of neoliberal capitalism.39 the Great White Migration to the sub- revanchist A second analytic shift is needed to urbs: from the 1950s to the 1970s, millions America ferret out the causal connection between of white families fled the metropolis in hyperghettoization and hyperincarcera- reaction to the influx of African Ameri- tion: to realize that the ghetto is not a cans from the rural South. This demo- segregated quarter, a poor neighborhood, graphic upheaval, subsidized by the fed- or an urban district marred by housing eral government and bolstered by the dilapidation, violence, vice, or disrepute, courts, weakened cities in the national but an instrument of ethnoracial control in electoral system and reduced the political the city. Another return to social history pull of African Americans. The third force demonstrates that a ghetto is a sociospa- behind the breakdown of the ghetto as tial contraption through which a domi- ethnoracial container is African Ameri- nant ethnic category secludes a subordi- can protest, fostered by the accumulation nate group and restricts its life chances in of social and symbolic capital correlative order to both exploit and exclude it from of ghettoization, culminating with the the life-sphere of the dominant. Like the civil rights legislation, the budding of Jewish ghetto in Renaissance Europe, the Black Power activism, and the eruption Black Belt of the American metropolis in of urban riots that rocked the country the Fordist age combined four elements between 1964 and 1968. –stigma, constraint, spatial con½nement, Unlike Jim Crow, then, the ghetto was and institutional encasement–to permit not dismantled by forceful government the economic extraction and social ostra- action. It was left to crumble onto itself, cization of a population deemed congen- trapping lower-class African Americans itally inferior, de½led and de½ling by vir- in a vortex of unemployment, poverty, tue of its lineal connection to bondage. and crime abetted by the joint withdrawal Succeeding chattel slavery and Jim Crow, of the wage-labor market and the welfare the ghetto was the third “peculiar institu- state, while the growing African Ameri- tion” entrusted with de½ning, con½ning, can middle class achieved limited social and controlling African Americans in the and spatial separation by colonizing the urban industrial order.40 districts adjacent to the historic Black Penal expansion after the mid-1970s is Belt.41 As the ghetto lost its economic a political response to the collapse of the function of labor extraction and proved ghetto. But why did the ghetto collapse? unable to ensure ethnoracial closure, the Three causal series converged to under- prison was called on to help contain a cut the “black city within the white” that dishonored population widely viewed as hemmed in African Americans from the deviant, destitute, and dangerous. This 1920s to the 1960s. The ½rst is the post- coupling occurred because, as previously industrial economic transition that shift- suggested, ghetto and prison belong to ed employment from manufacturing to the same organizational genus, namely, services, from central city to suburb, and institutions of forced con½nement: the ghetto from the Rustbelt to the Sunbelt and low- is a sort of “ethnoracial prison” in the wage foreign countries. Together with re- city, while the prison functions in the newed immigration, this shift made Afri- manner of a “judicial ghetto” at large. can American workers redundant and Both are charged with enfolding a stig-

Dædalus Summer 2010 81 Loïc matized category so as to defuse the ma- On the one side, the ghetto was “prisonized” Wacquant terial and/or symbolic threat it poses for as its class composition became monoto- on mass incarcer- the broader society from which it has nously poor, its internal social relations ation been extruded. grew stamped by distrust and fear, and its To be sure, the structural homology indigenous organizations waned to be re- and functional surrogacy of ghetto and placed by the social control institutions prison do not mandate that the former of the state. On the other side, the prison be replaced by or coupled with the lat- was “ghettoized” as rigid racial partition ter. For that to happen, speci½c policy came to pervade custodial facilities; the choices had to be made, implemented, predatory culture of the street supplant- and supported. This support sprang from ed the “convict code” that had tradition- the fearful reaction of whites to the ur- ally organized the “inmate society”44; ban riots and related racial upheavals of rehabilitation was abandoned in favor of the 1960s and from the rising political neutralization; and the stigma of criminal resentment generated by government conviction was deepened and diffused in powerlessness in the face of the stagfla- ways that make it akin to racial dishonor. tion of 1970s and the subsequent spread The resulting symbiosis between hyper- of social insecurity along three tacks. ghetto and prison not only perpetuates First, middle-class whites accelerated the socioeconomic marginality and sym- their exodus out of the capsizing cities, bolic taint of the African American sub- which enabled the federal government proletariat, feeding the runaway growth to dismantle programs essential to the of the carceral system. It also plays a key succor of inner-city residents. Second, role in the revamping of “race” by asso- working-class whites joined their mid- ciating blackness with devious violence dle-class brethren in turning against the and dangerousness,45 the rede½nition of welfare state to demand that public aid the citizenry via the production of a ra- be curtailed–leading to the “end of wel- cialized public culture of vili½cation of fare as we know it” in 1996. Third, whites criminals, and the construction of a post- across the class spectrum allied to offer Keynesian state that replaces the social- ardent political backing for the “law and welfare treatment of poverty with its order” measures that primed the penal punitive containment. pump and harnessed it to the hyperghet- to. The meeting ground and theater of Yet the tightening nexus between the these three political thrusts was the “re- hyperghetto and the prison does not tell vanchist city”42 in which increasing in- the whole story of the frenetic growth of equality, diffusing social precariousness, the penal institution in America after the and festering marginality fed citizens’ civil rights revolution. In Punishing the rancor over the alleged excessive gener- Poor, I show that the unleashing of a vo- osity of welfare and leniency of criminal racious prison apparatus after the mid- justice toward poor African Americans. 1970s partakes of a broader restructur- Two trains of converging changes then ing of the state tending to criminalize bolstered the knitting of the hyperghetto poverty and its consequences so as to and the prison into a carceral mesh en- impress insecure, underpaid jobs as the snaring a population of lower-class Afri- modal employment situation of the un- can Americans rejected by the deregulat- skilled segments of the postindustrial ed labor market and the dereliction of proletariat. The sudden hypertrophy of public institutions in the inner city.43 the penal state was thus matched and

82 Dædalus Summer 2010 complemented by the planned atrophy ribution and neutralization.46 During Class, race of the social state, culminating with the the same years, the spread of blackened & hyperincarcer- 1996 law on Personal Responsibility and images of urban destitution and depen- ation in Work Opportunity, which replaced the dency similarly fostered mounting re- revanchist right to “welfare” with the obligation sentment toward public aid, bolstering America of “workfare.” Each in its fashion, work- (white) support for restrictive welfare fare and prisonfare respond, not just measures centered on deterrence and to the crisis of the ghetto as a device compulsion.47 Race turns out to be the for the sociospatial seclusion of Afri- symbolic linchpin that coordinated can Americans, but to the repudiation the synergistic transformation of these of the Fordist wage-work compact and two sectors of public policy toward the of the Keynesian social compromise of poor.48 the postwar decades. Together, they en- Again, like the joining of hyperghetto snare the marginal populations of the and prison, this second institutional pair- metropolis in a carceral-assistential net ing feeding carceral growth can be better designed to steer them toward dereg- understood by paying attention to the ulated employment through moral re- structural, functional, and cultural simi- training and material suasion and, if larities between workfare and prisonfare they prove too recalcitrant and disrup- as “people-processing organizations”49 tive, to warehouse them in the devas- targeted on problem populations and tated core of the urban Black Belt and neighborhoods. It was tightened by the in the penitentiaries that have become transformation of welfare in a punitive its distant yet direct satellites. direction and by the expansion of the pe- The workfare revolution and the penal nal system to “treat” more and more of explosion are the two sides of the same the traditional clientele of welfare. Both historical coin, two facets of the reengi- programs of state action are narrowly neering and masculinizing of the state on directed at the bottom of the class and the way to the establishment of a novel ethnic hierarchy; both effectively assume political regime that may be character- that their recipients are “guilty until pro- ized as liberal-paternalist: it practices ven innocent” and that their conduct laissez-faire at the top, toward corpo- must be closely supervised as well as rations and the privileged, but it is in- recti½ed by restrictive and coercive mea- trusive and disciplinary at the bottom, sures; and both use deterrence and stig- when it comes to dealing with the con- ma to achieve behavioral modi½cation. squences of social disinvestment and In the era of hypermobile capital and economic deregulation for the lower fragmented wage-work, the monitoring class and its territories. And, just as ra- of the precarious segments of the work- cial stigma was pivotal to the junction ing class is no longer handled solely by of hyperghetto and prison, the taint of the maternal social arm of the welfare “blackness” was epicentral to the re- state, as portrayed by Frances Fox Piven strictive and punitive overhaul of social and Richard Cloward in their classic 1971 welfare at century’s end. In the wake of study Regulating the Poor.50 It entails a the ghetto mutinies of the 1960s, the double regulation through the virile and diffusion of blackened images of crime controlling arms of workfare and prisonfare fueled rising hostility toward criminals acting in unison. This dynamic coupling of and fostered (white) demands for expan- social and penal policy at the bottom of sive prison policies narrowly aimed at ret- the class and ethnic structure operates

Dædalus Summer 2010 83 Loïc through a familiar division of labor be- social bonds, reside overwhelmingly in Wacquant tween the sexes: the public aid bureau- the same impoverished households and on mass incarcer- cracy, reconverted into an administra- barren neighborhoods, and face the ation tive springboard to subpoverty employ- same bleak life horizon at the bottom ment, takes up the task of inculcating of the class and ethnic structure. This the duty of working for work’s sake to intertwinement indicates that we cannot poor women (and indirectly to their chil- hope to untie the knot of class, race, and dren), while the penal quartet formed by imprisonment, and thus explain hyper- the police, the court, the prison, and the incarceration, if we do not relink prison- probation or parole of½cer shoulders the fare and workfare, which in turn implies mission of taming their men–that is, the that we must bring the social wing of the boyfriends or husbands, brothers, and state and its transformations into our sons of these poor women. Welfare pro- analytic and policy purview. vision and criminal justice are animated by the same punitive and paternalist phi- Revanchism as public policy toward losophy that stresses the “individual re- the dispossessed has thrust the country sponsibility” of the “client”; they both into a historical cul-de-sac, as the dou- rely on case supervision and bureaucratic ble coupling of hyperghettoization and surveillance, deterrence and stigma, and hyperincarceration, on the one hand, and graduated sanctions aimed at modifying workfare and prisonfare, on the other, behavior to enforce compliance with damages both society and the state. For work and civility; and they reach pub- society, the spiral of penal escalation has lics of roughly comparable size. In 2001, become self-reinforcing as well as self- 2.1 million households received Tempo- defeating: the carceral Moloch actively rary Assistance to Needy Families, for destabilizes the precarious fractions of a total of some 6 million bene½ciaries, the postindustrial proletariat it strikes while the carceral population topped with special zeal, truncates the life op- 2.1 million and the stock under criminal tions of its members, and further despoils justice supervision surpassed 6.5 million. inner-city neighborhoods, thereby re- In addition, welfare recipients and in- producing the very social disorders, ma- mates have nearly identical social pro½les terial insecurity, and symbolic stain it is and extensive mutual ties of descent and supposed to alleviate. As a result, the pop- alliance con½rming that they are the two ulation behind bars has kept on growing gendered components of the same popu- even as the overall crime rate dropped lation. Both categories live below 50 per- precipitously for some ½fteen years, yield- cent of the federal poverty line (for one- ing a paradoxical pattern of carceral levi- half and two-thirds of them, respective- tation. For the state, the penalization of ly); both are disproportionately African poverty turns out to be ½nancially ruin- American and Hispanic (37 percent and ous, as it competes with, and eventually 18 percent versus 41 percent and 19 per- consumes, the funds and staff needed to cent); the majority did not ½nish high sustain essential public services such as school; and many suffer from serious schooling, health, transportation, and physical and mental disabilities limiting social protection.51 Moreover, the pu- their workforce participation (44 percent nitive and panoptic logic that propels of afdc mothers as against 37 percent of criminal justice seeps into and erodes jail inmates). And they are closely bound the shielding capacities of the welfare to one another by kin and marital and sector, for instance by inflecting the

84 Dædalus Summer 2010 practices of child protective services proceedings, and the promotion of re- Class, race in ways that turn them into adjuncts of storative justice. Whatever the technical & hyper- 52 incarcer- the penal apparatus. It similarly un- means chosen, achieving sustained car- ation in dercuts the educational springboard, ceral deflation will require insulating revanchist as depleted inner-city schools serving a judicial and correctional professionals America clientele roiled by mass unemployment from the converging pressures of the and penal disruption come to prioritize media and politicians, and rehabilitating and manage issues of student discipline rehabilitation through a public campaign through a prism of crime control.53 Last- debunking the neoconservative myth ly, the law-and-order guignol diverts the that “nothing works” when it comes to attention of elected of½cials and saps the reforming offenders.56 energy of bureaucratic managers charged Deep and broad justice reform is ur- with handling the problem populations gently needed to reduce the astronomical and territories of the dualizing city. ½nancial costs, skewed social and admin- If the diagnosis of the rise of the penal istrative burdens, and rippling crimino- state in America sketched here is correct, genic effects of continued hyperincarcer- and hyperincarceration proceeding along ation. But generic measures to diminish steep gradients of class, race, and space the size and reach of the prison across –rather than mass incarceration–is the the board will leave largely untouched offshoot of a novel government of social the sprouting epicenter of carceral insecurity installed to absorb the shock growth–that is, the urban wastelands of the crash of the ghetto and normalize where race, class, and the penal state precarious wage labor, then policies meet and mesh–unless they are com- aimed at shrinking the carceral state bined with a concerted attack on labor must effectively reverse revanchism. They degradation and social desolation in the must go well beyond criminal justice re- decaying hyperghetto. For that to hap- form to encompass the gamut of govern- pen, the downsizing of the penal wing ment programs that collectively set the must be accompanied by the reconstruc- life chances of the poor, and whose con- tion of the economic and social capaci- current turnaround toward restriction ties of the state and by their active de- and discipline after the mid-1970s have ployment in and around the devastated boosted the incidence, intensity, and dur- districts of the segregated metropolis. ation of marginality at the bottom of the The programmed dereliction of public class and ethnic order.54 institutions in the inner city must be A variety of cogent proposals for re- remedied through massive investment ducing America’s overreliance on con- in schools, social services, health care, ½nement to check the reverberations of and unfettered access to drug and alco- urban dispossession and dishonor have hol rehabilitation. A Works Progress been put forward on the penal front over Administration-style public works pro- the past decade.55 These proposals range gram aimed at the vestiges of the historic from the renewal of intermediate sanc- Black Belt would help at once to rebuild tions, the diversion of low-level drug of- its decrepit infrastructure, to improve fenders, the abolition of mandatory sen- housing conditions, and to offer eco- tencing, and the generalized reduction of nomic sustenance and civic incorpora- the length of prison terms, to the reform tion to local residents.57 of parole revocation, the incorporation In sum, the diagnosis of hyperincarcer- of ½scal and social impacts into judicial ation implies that puncturing America’s

Dædalus Summer 2010 85 Loïc bloated and voracious penal state will It will necessitate also a spatially targeted Wacquant take more than a full-bore political com- policy to break the noxious nexus now on mass incarcer- mitment to ½ghting social inequality and binding hyperghettoization, restrictive ation ethnic marginality through progressive workfare, and expansive prisonfare in and inclusive government programs on the racialized urban core. the economic, social, and justice fronts.

endnotes 1 Michael B. Katz, ed., The “Underclass” Debate: Views from History (Princeton, N.J.: Prince- ton University Press, 1995); Alice O’Connor, Poverty Knowledge: Social Science, Social Policy, and the Poor in Twentieth-Century U.S. History (Princeton, N.J.: Princeton University Press, 2002). 2 See Neil Smith for a stimulating discussion of the notion of revanche as an extended and multiform “visceral reaction in the public discourse against the liberalism of the post- 1960s period and an all-out attack on the social policy structure that emanated from the New Deal and the immediate postwar era”; Neil Smith, The New Urban Frontier: Gentri- ½cation and the Revanchist City (New York: Routledge, 1996), 42. See also Michael Flamm for a painstaking account of how the conflation of racial tumult, antiwar protest, civil disorder, and street crime laid the social foundation for the political demand for “law and order” in the wake of the class and racial dislocations of the 1960s; Michael W. Flamm, Law and Order: Street Crime, Civil Unrest, and the Crisis of Liberalism in the 1960s (New York: Columbia University Press, 2005). 3 Loïc Wacquant, Deadly Symbiosis: Race and the Rise of the Penal State (Cambridge: Polity Press, 2010). 4 Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (Durham, N.C.: Duke University Press, 2009). 5 Glenn C. Loury, “Racial Stigma, Mass Incarceration, and American Values,” Tanner Lec- tures on Human Values, Stanford University, April 4–6, 2007. A revised version is included in Glenn C. Loury, with Pamela Karlan, Tommie Shelby, and Loïc Wacquant, Race, In- carceration, and American Values (Cambridge, Mass.: mit Press, 2008). 6 Wacquant, Punishing the Poor, chap. 4–5. 7 Frieder Dünkel and Sonja Snacken, Les Prisons en Europe (Paris: L’Harmattan, 2005). 8 Wacquant, Punishing the Poor, 262–263, 121–125. The spiteful tenor of Giuliani’s campaign of “class cleansing” of the streets and its strident racial overtones are captured by Neil Smith, “Giuliani Time: The Revanchist 1990s,” Social Text 57 (Winter 1998): 1–20. 9 The sheer scale of American jails puts them in a class of their own. In 2000, the three largest custodial complexes in the Western world were the jails of Los Angeles (23,000 inmates), New York (18,000), and Chicago (10,000). By contrast, the largest penitentiary center in Europe, the Fleury-Mérogis prison just south of Paris, held 3,900 and is considered grotesquely oversized by European standards. 10 The last close-up study of the daily functioning of a big-city jail and its impact on the urban poor, John Irwin’s ½ne ethnography of San Francisco’s jail, dates from thirty years ago. See John Irwin, The Jail: Managing the Underclass in American Society (Berkeley: Univer- sity of California Press, 1985). 11 Joan Petersilia, When Prisoners Come Home: Parole and Prisoner Reentry (New York: Oxford University Press, 2003). 12 The national dna database from crime scenes, persons “known to the police,” and (former) convicts compiled by the fbi (under the Combined dna Index System [codis]

86 Dædalus Summer 2010 program) more than doubled over the past ½ve years alone to reach eight million offender Class, race pro½les. Its explosive expansion, fed by technological innovation and organizational im- & hyper- peratives, is springing a new “racialized dragnet” thrown primarily at lower-class African incarcer- American men due to their massive overrepresentation among persons stopped by police; ation in dna revanchist Troy Duster, “The Exponential Growth of National and State Databases: ‘Cold Hits’ America and a Newly Combustible Intersection of Genomics, Forensics and Race,” paper presented to the cssi, University of California, Berkeley, February 24, 2010. 13 Devah Pager, Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration (Chica- go: University of Chicago Press, 2007); David Thacher, “The Rise of Criminal Background Screening in Rental Housing,” Law & Social Inquiry 31 (1) (2008): 5–30; Richard Tewksbury and Matthew B. Lees, “Sex Offenders on Campus: University-Based Sex Offender Regis- tries and the Collateral Consequences of Registration,” Federal Probation 70 (3) (2006): 50–57. For an extended analysis of ramifying penal disabilities outside of prison walls, see Megan L. Comfort, “Punishment Beyond the Legal Offender,” Annual Review of Law and Social Science 3 (2007): 271–296. 14 Kathleen M. Olivares, Velmer S. Burton, Jr., and Francis T. Cullen, “Collateral Conse- quences of a Felony Conviction: A National Study of State Legal Codes Ten Year Later,” Federal Probation 60 (3) (1996): 10–17. 15 Franklin E. Zimring and Gordon Hawkins, The Scale of Imprisonment (Chicago: University of Chicago Press, 1991); Michael Tonry, “Fragmentation of Sentencing and Corrections in America,” Alternatives to Incarceration 6 (2): 9–13. 16 Vanessa Barker, The Politics of Imprisonment: How the Democratic Process Shapes the Way America Punishes Offenders (New York: Oxford University Press, 2009). 17 David F. Greenberg and Valerie West, “State Prison Populations and Their Growth, 1971–1991,” Criminology 39 (1) (2001): 615–654; David Jacobs and Jason T. Carmichael, “Politics of Punishment across Time and Space: A Pooled Time-Series Analysis of Im- prisonment Rates,” Social Forces 80 (1) (2001): 61–89. But see Kevin B. Smith, “The Pol- itics of Punishment: Evaluating Political Explanations of Incarceration Rates,” The Jour- nal of Politics 66 (3) (2004): 925–938. 18 Franklin E. Zimring and David T. Johnson, “Public Opinion and the Governance of Pun- ishment in Democratic Political Systems,” The Annals of the American Academy of Political and Social Science 605 (2006): 265–280. 19 Nancy E. Marion and Willard M. Oliver, “Congress, Crime, and Budgetary Responsive- ness: A Study in Symbolic Politics,” Criminal Justice Policy Review 20 (2) (2009): 115–135. 20 Lisa L. Miller, The Perils of Federalism: Race, Poverty, and the Politics of Crime Control (New York: Oxford University Press, 2008). 21 “The war on crime–with its constituent imagery that melded the burning cities of the 1960s urban riots with the face of [Willie] Horton as (every) black man, murderer, rapist of a white woman–remade party af½liations and then remade the parties themselves, as the war came to be embraced and stridently promoted by Republicans and Democrats alike”; Mary Louise Frampton, Ian Haney-López, and Jonathan Simon, eds., After the War on Crime: Race, Democracy, and a New Reconstruction (New York: New York Univer- sity Press, 2008), 7. 22 See, for example, Joel Dyer, The Perpetual Prisoner Machine: How America Pro½ts From Crime (New York: Basic Books, 1999); Paul Wright and Tara Herivel, eds., Prison Nation: The Warehousing of America’s Poor (New York: Routledge, 2003); Michael Jacobson, Down- sizing Prisons: How to Reduce Crime and End Mass Incarceration (New York: New York Uni- versity Press, 2005); Marie Gottschalk, The Prison and the Gallows: The Politics of Mass Incarceration in America (Cambridge: Cambridge University Press, 2006); and Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighbor- hoods Worse (New York: Oxford University Press, 2007).

Dædalus Summer 2010 87 Loïc 23 David Garland, ed., Mass Imprisonment: Social Causes and Consequences (London: Sage, Wacquant 2001). Ironically, the generalized notion was ½rst broached, not in the U.S. prison debate, on mass but in Western Europe by the French justice of½cial and scholar Jean-Paul Jean in a discus- incarcer- ation sion of the “mass incarceration of drug addicts” in France’s jails; Jean-Paul Jean, “Mettre ½n à l’incarcération de masse des toxicomanes,” Esprit 10 (1995): 130–131. (I used the term myself in several publications between 1997 and 2005, so this conceptual revision is in part a self-critique.) 24 Diane E. Bennett et al., “Prevalence of Tuberculosis Infection in the United States Popu- lation: The National Health and Nutrition Examination Survey, 1999–2000,” American Journal of Respiratory and Critical Care Medicine 177 (2008): 348–355; Bridget F. Grant et al., “The 12-month Prevalence and Trends in dsm-iv Alcohol Abuse and Dependence: Unit- ed States, 1991–1992 and 2001–2002,” Alcohol Research & Health 74 (3) (2004): 223–234. 25 To be sure, David Garland singles out two “esssential features” that de½ne mass incarceration: “sheer numbers” (that is, “a rate of imprisonment and a size of prison population that is markedly above the historical and comparative norm for societies of this type”) and “the social concentration of mass imprisonment’s effects” (“when it becomes the imprisonment of whole groups of the population,” in this case “young black males in large urban centers”); Garland, Mass Imprisonment, 5–6. But it is not clear why the ½rst property would not suf½ce to characterize the phenomenon, nor what “markedly above” entails. Next, there is a logical contradiction between the two features of mass reach and concentrated impact (no other mass phenomenon “bene½ts” a narrow and well-bounded population). Lastly, Bernard Harcourt has pointed out that the United States had rates of forcible custody exceeding 600 per 100,000 residents from 1938 to 1962, if statistics on penal con½nement and mental asylums are merged; Bernard Harcourt, “From the Asylum to the Prison: Rethinking the Incarceration Revolution,” Texas Law Review 84 (2006): 1751–1786. These de½nitional troubles suggest that the mass characterization is an ad hoc designation crafted inductively to suit the peculiarities of U.S. incarceration trends at the twentieth century’s close (as Garland observes, “a new name to describe an altogether new phenomenon”). 26 The martial trope of the “war on crime” has similarly hindered the analysis of the transformation and workings of criminal policy. This belligerent designation–espoused by advocates and critics of enlarged incarceration alike–is triply misleading: it passes civil- ian measures aimed at citizens for a military campaign against foreign foes; it purports to ½ght “crime” generically when it targets a narrow strand of illegalities (street offenses in the segregated lower-class districts of the city); and it abstracts the criminal justice wing from the broader revamping of the state entailing the simultaneous restriction of welfare and expansion of prisonfare. 27 Pieter Spierenburg, The Prison Experience: Disciplinary Institutions and Their Inmates in Early Modern Europe (New Brunswick, N.J.: Rutgers University Press, 1991). 28 David Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (New York: Aldine, 1971); Scott Christianson, With Liberty for Some: Five Hundred Years of Imprisonment in America (Boston: Northeastern University Press, 1998). The only exceptions to this class rule are the periods and countries in which the prison is used extensive- ly as an instrument of political repression; Aryeh Neier, “Con½ning Dissent: The Politi- cal Prison,” in The Oxford History of Prison: The Practice of Punishment in Western Society, ed. Norval Morris and David Rothman (New York: Oxford University Press, 1995), 350–380. 29 Wacquant, Punishing the Poor, chap. 2. 30 William Julius Wilson, When Work Disappears: The World of the New Urban Poor (New York: Knopf, 1996); Loïc Wacquant, Urban Outcasts: A Comparative Sociology of Advanced Margin- ality (Cambridge: Polity Press, 2008). 31 Michael Tonry, Malign Neglect: Race, Class, and Punishment in America (New York: Oxford University Press, 1995), 17.

88 Dædalus Summer 2010 32 Michael Tonry and Matthew Melewski, “The Malign Effects of Drug and Crime Control Class, race Policies on Black Americans,” Crime & Justice 37 (2008): 18. & hyperincarcer- 33 Bruce Western, Punishment and Inequality in America (New York: Russell Sage Foundation, ation in 2006), 27. revanchist America 34 Cf. ibid., 17, 27. 35 Lower-class African American women come next as the category with the fastest increase in incarceration over the past two decades, leading to more African American females being under lock than there are total women con½ned in all of Western Europe. But their capture comes largely as a by-product of the aggressive rolling out of penal policies aimed primarily at their lovers, kin, and neighbors. (Men make up 94 percent of all convicts in the nation.) In any case, the number of female inmates pales before the ranks of the millions of girl- friends and wives of convicts who are subjected to “secondary prisonization” due to the judicial status of their partner; Megan Comfort, Doing Time Together: Love and Family in the Shadow of the Prison (Chicago: University of Chicago Press, 2008). 36 Wacquant, Urban Outcasts, 117–118. 37 The increase of this index of punitiveness is 299 percent for “violent crimes” as compared with 495 percent for “index crimes” (aggregating violent crime and the major categories of property crime), con½rming that the penal state has grown especially more severe toward lesser offenses and thus con½nes many more marginal delinquents than in the past. 38 Georg Rusche and Otto Kirscheimer, Punishment and Social Structure, rev. ed. (New Bruns- wick, N.J.: Transaction Press, 2003); Catharina Lis and Hugo Soly, Poverty and Capitalism in Pre-Industrial Europe (Atlantic Highlands, N.J.: Humanities Press, 1979); Spierenburg, The Prison Experience. 39 Loïc Wacquant, “Crafting the Neoliberal State: Workfare, Prisonfare and Social Insecuri- ty,” Sociological Forum 25 (2) (2010): 197–220. 40 Loïc Wacquant, “Deadly Symbiosis: When Ghetto and Prison Meet and Mesh,” Punish- ment & Society 3 (1) (2001): 95–133. 41 Wilson, When Work Disappears; Mary Patillo-McCoy, Black Picket Fences: Privilege and Peril among the Black Middle Class (Chicago: University of Chicago Press, 1999). 42 Smith, The New Urban Frontier. 43 Wacquant, Deadly Symbiosis, chap. 3. 44 Gresham Sykes, The Society of Captives: A Study in a Maximum Security Prison (Princeton, N.J.: Princeton University Press, 1958). 45 Loïc Wacquant, “Race as Civic Felony,” International Social Science Journal 181 (Spring 2005): 127–142. 46 John Irwin, Prisons in Turmoil (Boston: Beacon Press, 1980). 47 Martin Gilens, Why Americans Hate Welfare (Chicago: University of Chicago Press, 1999); Sanford F. Schram, Joe Soss, and Richard C. Fording, eds., Race and the Politics of Welfare Reform (Ann Arbor: University of Michigan Press, 2003). 48 In the media and policy debates leading up to the 1996 termination of welfare, three racialized ½gures offered lurid incarnations of “dependency”: the flamboyant and wily “welfare queen,” the immature and irresponsible “teenage mother,” and the aimless and jobless “deadbeat dad.” All three were stereotypically portrayed as African American residents of the dilapidated inner city. 49 Yeheskel Hasenfeld, “People Processing Organizations: An Exchange Approach,” American Sociological Review 37 (3) (1972): 256–263. 50 Frances Fox Piven and Richard A. Cloward, Regulating the Poor: The Functions of Public Wel- fare, expanded edition (New York: Vintage, 1993; ½rst published in 1971).

Dædalus Summer 2010 89 Loïc 51 This is well illustrated by the current predicament of California, a state that employs more Wacquant prison guards than it does social workers: it just slashed its higher education budgets and on mass increased college tuition by 30 percent in response to a de½cit of $20 billion in 2009, when incarceration it spends an extravagant $10 billion on corrections (more than its yearly outlay for univer- sities for ½fteen years running). The state now faces a stark choice between sending its children to college or continuing to throw masses of minor offenders behind bars for brutally long terms. 52 Dorothy E. Roberts, “Criminal Justice and Black Families: The Collateral Damage of Over- enforcement,” U.C. Davis Law Review 34 (2000): 1005–1028. 53 Paul J. Hirsch½eld, “Preparing for Prison? The Criminalization of School Discipline in the usa,” Theoretical Criminology 12 (1) (February 2008 ): 79–101. 54 Wacquant, Urban Outcasts, 69–91, 280–287. 55 Michael Tonry, ed., Penal Reform in Overcrowded Times (New York: Oxford University Press, 2001); Dorothy E. Roberts, “The Social and Moral Cost of Mass Incarceration in African American Communities,” Stanford Law Review 56 (5) (2004): 1271–1305; Jacobson, Down- sizing Prisons; Marie Gottschalk, “Dismantling the Carceral State: The Future of Penal Policy Reform,” Texas Law Review 84 (2005): 1693–1750; Marc Mauer and the Sentencing Project, Race to Incarcerate, rev. ed. (New York: Free Press, 2006); James Austin and Todd R. Clear, “Reducing Mass Incarceration: Implications of the Iron Law of Prison Popula- tions,” Harvard Law & Policy Review 3 (2007): 307–324. 56 Contrary to the dominant public vision, research has consistently shown the superior- ity of rehabilitation over retribution. “Supervision and sanctions, at best, show modest mean reductions in recidivism and, in some instances, have the opposite effect and increase reoffense rates. The mean recidivism effects found in studies of rehabilitation treatment, by comparison, are consistently positive and relatively large”; Mark W. Lip- sey and Francis T. Cullen, “The Effectiveness of Correctional Rehabilitation: A Review of Systematic Reviews,” Annual Review of Law and Social Science 3 (2007): 297–320. That hardened criminals do change and turn their lives around is shown by Shadd Maruna, Making Good: How Ex-Convicts Reform and Rebuild Their Lives (Washington, D.C.: Ameri- can Psychological Association, 2001); that even “lifers” imprisoned for homicide ½nd pathways to redemption is demonstrated by John Irwin, Lifers: Seeking Redemption in Prison (New York: Routledge, 2009). 57 See the powerful arguments of Mary Pattillo for immediately “investing in poor black neighborhoods ‘as is,’” instead of pursuing long-term strategies of dispersal or mixing that are both inef½cient and detrimental to the pressing needs and distinct interests of the urban minority poor; Mary Pattillo, “Investing in Poor Black Neighborhoods ‘As Is,’” in Legacy of Racial Discrimination and Segregation in Public Housing, ed. Margery Turner, Susan Popkin, and Lynette Rawlings (Washington, D.C.: Urban Institute, 2008), 31–46.

90 Dædalus Summer 2010 Jonathan Simon

Clearing the “troubled assets” of America’s punishment bubble

An analogy can be drawn between erary frills that excite and, perhaps, ex- the troubled assets that contributed to pand the imagination. Instead, they are the recent economic crisis and the “trou- cognitive colonizers, spreading from one bled assets” of mass incarceration. The part of our thinking to affect other areas. former now endanger the survival of the They can reorganize how we understand U.S. ½nancial sector (indeed, our entire ideas and concepts and how we act on economy); the latter endanger the ½s- that understanding.1 When powerful cal viability and democratic legitimacy metaphors sweep through government, of the state. The crucial challenge fac- they can reorganize our democracy, too. ing reformers is how to “clear” the com- The “war on crime” has proven to be one plex aggregations of human beings, so- such metaphor, recasting lawbreakers as cial and ½nancial capital, information enemy combatants, victims as idealized networks, political alliances, and man- citizen-subjects, and law enforcement agerial practices that were produced as combat forces directed at enemy posi- during the long period in which we in- tions rather than breaches of the penal flated both the economic and carceral code.2 In this essay, I propose a counter- bubbles. In both cases, we must estab- metaphor to the war on crime (albeit a lish new norms and procedures for as- more limited and temporary one) that sessing risk and promising security. We will help us think in new ways about also must recognize the opportunities how to resolve the social and institu- that the present disasters have created tional legacies of that “war.” for reinvigorating our economy and de- We would bene½t from thinking mocracy. California is the extreme ex- about the enormous escalation of the ample of this public-sector crisis and prison population in America between is useful as a means to identify strate- about 1980 and 2005–what sociologists gies for unwinding mass incarceration. call mass imprisonment3–as analogous in important respects (although not in As George Lakoff, Mark Johnson, and all) to the expansion and remarkable in- other students of cognition have demon- flation of the residential real estate mar- strated, metaphors are far more than lit- ket in America during roughly the same period (especially in the last decade-and- © 2010 by the American Academy of Arts a-half ). The market eventually burst, un- 4 & Sciences leashing social destruction.

Dædalus Summer 2010 91 Jonathan Three distinct aspects of the hous- is taken as a sign of increasing danger, Simon ing situation bear a relation to mass im- thereby diminishing the already chronic on mass incarcer- prisonment. First, the lesson that insti- de½cits of social capital. ation tutions, not just individuals, are respon- Third, the attempt to protect and re- sible can be transposed from housing to vitalize the ½nancial community has prisons. While both housing prices and been described as “clearing” the trou- prison populations are conventionally bled assets. The government response depicted as inflated by trends in individ- has been twofold. The ½nancial bailout ual behavior–more demand for real es- provided billions of dollars in govern- tate and more crime–the bursting of the ment money to stabilize ½nancial insti- housing bubble revealed that expansion tutions struggling with troubled assets of the market for homes was primarily on their balance sheets. In addition, the a product of political and institutional Obama administration, in the spring decisions. These decisions enabled a of 2009, announced plans to help clear far wider range of individuals to “qual- troubled assets by reparceling the mort- ify” for loans and gave lenders increas- gages into lots and encouraging private ing incentives to behave irresponsibly individuals and entities to bid on them. in their assessment of risk. Likewise, Government subsidies in a variety of many contemporary criminologists be- forms, including loan guarantees that lieve the prison population explosion backstop investors against big losses, is due not to more crime and criminals, would provide substantial incentives but to policies begun in the 1980s that to support these “private” investments. enabled prosecutors to send more peo- A federal “bailout” for America’s ple to prison for longer sentences. poorest communities would undoubt- Second, the bursting of the housing edly address many of the consequences bubble, and the resulting collapse in of mass imprisonment. Creating new the value of mortgage-based securities, capacities for community organization created what is known colloquially as through support for schools, employ- the troubled assets problem. These se- ment, drug treatment, mental health curities, which were widely distribut- care, and housing would go a long way ed in the ½nancial economy of the Unit- toward integrating the formerly incar- ed States and many other countries, be- cerated. It would also help communi- came unstable in their valuation. Un- ties absorb and cope with the external- able to price these securities, the ½nan- ities of the prison experience that the cial institutions that had absorbed them formerly incarcerated bring with them found their own ½nancial position de- to the communities where they return. stabilized. The “troubled assets” of the The case for this kind of “justice re- penal state are the huge and expensive investment” has been made elsewhere institutional systems constructed over (and forcefully) and needs little meta- the past several decades and the millions phoric help.7 of formerly incarcerated persons who A more novel approach might be mod- have been distributed by the penal sys- eled on the government’s involvement tem into cities and towns in every state.5 in opening new markets, where the trou- Many of them have been concentrated bled assets held by giant banks are reas- in communities already plagued by low sessed by individual investors with ex- levels of social capital.6 Their presence pertise in how to assess such risks (with in these communities, accurately or not, ½nancial guarantees from the federal

92 Dædalus Summer 2010 government to backstop risk). The key places). Most criminologists accept a Clearing the to this strategy is the recognition that very different story. Reported crime be- “troubled assets” of there is more value in the troubled as- gan to rise in the mid-1960s and peaked America’s sets than the bleakest current assess- in the early 1970s while incarceration punishment ments suggest. Mortgage-backed secu- rates were historically low. By the time bubble rities were sold with the promise that incarceration rates began to climb in the bundling large numbers of mortgages early 1980s, crime was subsiding. While together would ensure that the risk of crime increased again in the mid- to late individual failure would be balanced by 1980s, and decreased after the mid-1990s, ful½llment of the large majority of obli- incarceration rates continued to grow gations in each security. That promise steadily until the early 2000s. turned out to be false; but the reverse Political scientists and criminologists assumption, that the assets are now share the perspective that the dramatic worth nothing, is also likely to be false. growth of the prison population was The equivalent assumption for the generally achieved by intentional poli- troubled assets of the penal state, that cy changes, speci½cally the adoption anyone who has been incarcerated is of laws sending more drug and proper- dangerous and a risk to society, is also ty offenders to prison (rather than jail false. Just as mortgage entrepreneurs or probation), lengthening prison sen- aggressively expanded the scope of tences for serious crimes, and requiring who quali½ed for a home loan (some- prisoners to serve larger portions of times borrowers with nothing to put their sentences before being released.8 down and little evidence of income), Mass imprisonment differs from early the actors we might consider penal en- waves of enthusiasm for the prison as an trepreneurs of the 1980s and 1990s ag- instrument of social control both by the gressively marketed young drug and scale of increase and by the shift to strict property offenders as bad enough to be reliance on imprisonment for wholesale sent to state prison. This stance was a categories of crime.9 Whether through shift from the practice of a decade ear- formal changes to sentencing or changes lier, when these offenders likely would in practice, the decision to send people have been handled with probation or to prison, and for how long, has been in- jail. By tossing lots of good risks in with creasingly decoupled from individual- the bad, expansive prison growth has ized judgments about the level of risk created a potentially large upside risk offenders pose to public safety. to the formerly incarcerated. One can What can be added to this widely imagine reentry strategies that attempt shared picture by building a metaphor- to make the nature of the risks posed ic link to the housing boom? Several in- by the formerly incarcerated more ac- teresting relationships between prison curate and visible. and housing highlight why both took so long to be seen as problems. Institution- According to conventional wisdom, al assessments of risk played a central today’s enlarged prison populations are role in the inflation of both bubbles. the product of the long wave of crime First, there is a long-standing cultural that began in the 1960s and continued, narrative in the United States that casts with temporary remissions, through the both prisoners and homeowners as cap- mid-1990s, when sustained downturns tains of their own fate. Indeed, they rep- began (which have leveled off in most resent polar opposites in the classic

Dædalus Summer 2010 93 Jonathan American narrative, in which personal ments in San Francisco and New York), Simon character and willful action are the ma- expansion can be only toward enabling on mass incarcer- jor elements in a subject’s journey. The buyers with fewer assets and less in- ation narrative culminates with a subject ar- come.13 Both parties proclaimed that riving at a station that practically and expanding homeownership to commu- symbolically de½nes his or her journey: nities of lesser economic means would the big house in the suburbs or the “big help make those communities stronger house” prison even farther out.10 Espe- and more stable. So-called subprime cially in contrast to Europe, the United mortgages were initially celebrated as States has long stood out for both the offering a way to move many less eco- number of its citizens held in prison nomically well-off families onto the and the number who own their own homeownership “elevator” of values. homes. The two booms were, at best, miscal- Thus, it is unsurprising that for many culated. Both mass imprisonment and there is little apparent tension between the expansion of the subprime loan our image as a nation of responsible market destabilized the neighborhoods homeowners and the fact that we also they were intended to aid. Imprisoning lead the world in incarceration.11 How- so many drug and property offenders ever, in the aftermath of the catastroph- has removed valuable contributors to ic deflation of the housing bubble, and families and communities in the most in light of evidence that our prison pop- disadvantaged communities, while fore- ulations remain at historically high lev- closures have left many urban and sub- els despite more than a decade-and-a- urban neighborhoods coping with aban- half of declining crime rates in most of doned properties. In both cases, the re- the country, we would do well to ques- sult has been fragmentation of social tion both versions of this narrative of networks and capital in ways that crim- individual choice. With both housing inologists have long associated with in- and prisons, private action was part creasing risk of crime and disorder in of the story, but it could not have pro- communities.14 duced the historic rises without signi½- The prison and housing booms also cant institutional help. can be compared in the role that distort- For the prison boom, institutional help ed processes of risk assessment played was undeniably governmental and state- in both. One of the biggest factors in based, mostly via legislation and the ex- mass imprisonment has been the un- ercise of prosecutorial discretion.12 As checked role of prosecutors in deter- for the housing boom and bubble, histo- mining who goes to prison and for how rians will be sorting out the roles of ½nan- long.15 Think of the county prosecutor cial institutions and regulators for years as the prison bubble’s equivalent to the to come. But there is no doubt that, since housing bubble’s mortgage broker. Sen- the New Deal, both major parties in the tencing changes in the 1980s and 1990s United States have advanced explicit gave prosecutors unprecedented discre- federal policy to expand the market for tion to “qualify” defendants for prison; homeownership. Because there is no in the past, many of these defendants large pool of renters at the top of the would not have gotten through the “un- income scale waiting for the right tax derwriting” of judges and juries and or other incentive to buy (other than would have been excluded from prison. in a handful of rent-controlled apart- Instead, they would have ended up in

94 Dædalus Summer 2010 the county jail or on probation, the penal from the state’s major cities, have proved Clearing the equivalent of the rental market. impossible to operate ef½ciently. They “troubled have become a catastrophic ½nancial lia- assets” of In both bubbles, faulty reasoning, em- America’s bedded in a culture increasingly lacking bility akin to the “legacy” litigation bur- punishment accountability, was central to casting den of tobacco manufacturers or the un- bubble complex individual risks as generically funded pensions of the former Big Three better or worse. Brokers–sometimes automakers. fraudulently, but presumably mostly as a The recent history of litigation over result of extremely lax regulations–pre- medical-care delivery in California pris- sented home buyers and home deals as ons, Plata v. Schwarzenegger, is revealing. better risks than many of them actually Despite the fact that two-thirds of Cali- were. Prosecutors–again, one assumes fornia’s prisons were built since 1980, not fraudulently, but rather as a result they were designed without adequate of the crime logic of contemporary state hygienic space for examining and treat- government–presented defendants as ing penal subjects and were located in worse risks than many of them actually rural parts of the state, which already were. suffered from chronically low levels of medical professionals.17 As a result of Our major ½nancial institutions are Plata, the state now faces spending bil- afflicted by the large amount of ques- lions to retro½t prisons with hospital tionable and complicated ½nancial in- spaces and to hire adequate medical struments that can no longer be readi- staff. ly traded or priced. Uncertainty about A second important troubled asset the value of these assets undermines is California’s correctional workforce. the ability of the holding ½nancial in- The nearly 35,000 correctional of½cers stitutions to lend money. What are the and parole agents who make up the ma- troubled assets of the penal state, and jority of the workforce in California pris- in what sense do they threaten the ½nan- ons and parole units belong to the Cali- cial viability of the state more broadly? fornia Correctional Peace Of½cers Asso- The prisons themselves are the clear- ciation, long considered the most potent est example of troubled assets in the pe- political lobby in the state and arguably nal state. California is particularly note- the strongest law enforcement organi- worthy in this respect. In a deliberate zation in the country.18 This large and policy to secure communities by send- powerful workforce means that, despite ing many more troubled individuals to emphasizing no-frills custody over re- state prison (as opposed to various coun- habilitation, California has the most ty-level treatment and punishment op- expensive penal system in the world.19 tions), California built twenty-one new Yet because of mismanagement and prisons between 1984 and 2000.16 De- overcrowding, it still cannot accom- spite this growth, the prisons have been plish safe and secure custody. (This, overcrowded and managed on a nearly however, is not the fault of the work- state-of-emergency basis for most of force, which faces a dangerous and de- that period, punctuated with increas- humanizing job that education and ingly huge and expensive federal court training alone cannot ameliorate.) orders. These prisons, disastrously de- The millions of prisoners and former signed to accommodate growth in high- prisoners in the United States constitute security bed capacity and located far the largest and most important of the

Dædalus Summer 2010 95 Jonathan troubled assets associated with the penal penal state and real communities. They Simon state. One may fairly ask, how can pris- are troubled not necessarily because they on mass incarcer- oners be said to threaten a penal state? are inherently dangerous, but because of ation After all, they are its raison d’être and questionable risk assessment by the crim- most important asset. One very impor- inal courts. The opacity and ineptness of tant dimension of the troubled assets the punitive segregation practiced in most metaphor as applied to prisoners is the American prisons today make it very dif- fear that time spent in our nation’s most- ½cult to assess prisoners’ actual risks, as ly nonrehabilitative and sometimes dan- well as the value they might serve in the gerously overcrowded and mismanaged community once released. prisons makes former inmates graver The risk assessment problem mani- threats to their communities than be- fests inside the penal state’s own insti- fore they were imprisoned. tutions. California is an extraordinary Indeed, much of the critical discussion example of the penal state’s general ten- of prisoner reentry over the past decade dency to overload high-security prisons has only intensi½ed this negative per- by overstating the risks posed by offend- spective on the formerly incarcerated.20 ers in custody. There is also a routine ten- The penal state is placed in a very uncom- dency to rely on emergency measures fortable posture by the speci½c metaphor like lockdowns, which prevent violence of reentry, with its implication of local but make medical care and mental health communities affected by what prisons treatment (let alone programming) near- produce. When politicians were selling ly impossible as a result. A further prob- the prison boom, the emphasis was on lem for the penal state is the chronic re- removal, not reentry. While the reentry cycling of persons released from prison metaphor has been productive in chal- back to prison, either through adminis- lenging the penal state, it ultimately un- trative parole revocation procedures or derscores the apparent risk of those in- through arrests and prosecutions facili- side prisons. But consider the assets in- tated by parolees’ diminished Fourth herent in the troubled assets metaphor. Amendment protections. Many crimi- The house at the bottom of those convo- nologists have identi½ed this circuit be- luted securities is ultimately an asset to tween parole and prison as profoundly the community where it sits. It was the destabilizing to both prisons and com- mortgages and their assembly into mort- munities. gage-backed securities without suf½cient This destabilization is happening pre- underwriting that rede½ned those assets cisely at the moment when the emerg- as troubled. Likewise, among prisoners ing green economy is making reinvest- and former prisoners there are many, ment in central cities seem more imagi- perhaps even a majority, who are a net nable than ever. Indeed, many of these asset to their communities. rebound cities that enjoyed some pop- Problematic risk assessment before ulation and investment growth in the the housing-based ½nancial crisis, and 1990s are now struggling with both the lack of calculability and trust after, made aftereffects of the mortgage bubble certain assets toxic to ½nancial institu- bursting and the prospect that a deflat- tions. Now consider the metaphor in ing prison bubble will discharge even terms of the penal state. The incarcerat- more former prisoners on their streets. ed and formerly incarcerated constitute Perhaps the most interesting, under- troubled assets on the books of both the noted, and potentially transformative

96 Dædalus Summer 2010 entailment of the troubled assets meta- compelling metaphor between the hous- Clearing the phor comes from recognition of the ing and prison booms. After all, we are “troubled assets” of compromised physical and behavior- not trying to transplant real policies but, America’s al health prospects of many prisoners. rather, what we might think of as “po- punishment California’s medically dysfunctional litical imaginaries.” Once we have bor- bubble prisons are an extraordinary liability. rowed from one kind of crisis to learn The very poor health of many Califor- how to think about another, those new nia prisoners, made worse by chronic ways of thinking will generate produc- neglect inside, creates its own morass tive policy approaches within their of liability. Very long sentences doom domain-speci½c context. many California prisoners to die in pris- A huge federal investment in the soon: a ½fth of the prison population is cial and institutional infrastructure of serving a life term. Thus, the state is America’s large cities, particularly in very likely to be ½nancially responsible those neighborhoods to which most for the medical management of a pop- prisoners return, would help clear the ulation that is already sick and aging legacies of the penal state and lead to faster than people outside of prison. a long-term reduction in penal costs. The costs of this unfunded legacy are While the adoption of health care re- probably in the tens of billions of dol- form in 2010 may signal a turn toward lars. Removing ill prisoners to commu- increasing investment in poor families nity custody settings, where their treat- and communities by the federal government can be delivered at much lower ment, any substantial reinvestment is costs, represents an opportunity to dra- likely to unfold slowly and incomplete- matically lower future liabilities. ly given the current economic crisis. Like the troubled assets of the mort- Federal intervention ultimately may be gage crisis, prisoners and the formerly required to help states reabsorb their incarcerated are assets who bring both massively distended penal populations, capacities and risks to states and com- but we must consider ways that states munities. Mass incarceration has marked themselves can begin to help “price” them in the aggregate as dangerous in and clear their own assets. ways that are likely to be unreliable; it For the prisons themselves, we need a has assessed their overall danger at far conversion program similar to the plan too high a level. Yet in the absence of ef- developed to handle former military in- fective practices that could render their stallations closed down as a result of Con- unknowable risks more visible, then, gress’s base-closing commission in the like mortgage securities, prisoners and 1990s. Some prisons might be convert- the formerly incarcerated are marked ed into junior colleges, wind farms, or as worse than worthless: they are harm- server locations for giant Internet com- ful liabilities. panies. States will need prisons even after the tide is turned on mass imprison- As of this writing, it remains unclear ment; some of the newer prisons could how far the government will proceed in provide a modern platform for a smaller, coaxing new markets for the troubled more ef½cient and humane system. Iron- mortgage assets on the books of major ically, in California the oldest prisons are ½nancial institutions, or whether those also those with the best locations. They efforts will succeed. But this uncertainty are close to the cities from which prison- should not deter us from exploring the ers come and to which they return, and

Dædalus Summer 2010 97 Jonathan these prisons have large bases of profes- golden opportunity to use prisons to Simon sionals nearby to support even modest reduce health care costs. Smoking is on mass 21 incarcer- rehabilitation goals. already banned in California prisons. ation The correctional workforce should be It is not hard to imagine turning much downsized along with the prison popula- of the prison system into a large health tion and institutions. Of½cers and their maintenance organization. While at it, unions are not the cause of mass impris- we might train prisoners to deliver health onment, but the prison bubble has led care to their aging fellow inmates. These to an expensive model of custody that skills would be highly useful in our aging must be recognized for what it is: unsus- society (although, even equipped with tainable. These resources could be re- these skills, former prisoners will likely allocated to more ef½cient providers of face withering exclusionary barriers on public safety. Governor Schwarzenegger the outside). recently proposed the privatization of Former prisoners who have come out corrections in a bid to sustain high pris- of the shadows to engage in collective ef- on populations at lower costs.22 An al- forts to restore their rights and the well- ternative model, which has many of the being of their communities add an even bene½ts with few of the risks of privati- more positive kind of social capital to zation, calls for massively shifting respon- their communities, which often suffer sibility for both custody and reentry to from substantial de½cits in horizontal county-level governments. County gov- ties among people. Take San Francisco’s ernments maintain greater proximity to Ban the Box movement, for example. the real crime problems in America and The organization, created by formerly have great flexibility in how they seek to incarcerated people, began by focusing reduce those risks.23 on the ubiquitous boxes on employment Prisoners and former prisoners are applications that prospective employees at once the easiest and most intractable are to check if they have ever been con- of the penal state’s troubled assets. The victed of a crime. Ban the Box led a suc- state can stop producing so many new cessful campaign to get San Francisco’s prisoners (although this is more easily public agencies to remove the box. Fol- said than done, as evidenced by the re- lowing that success, they have also be- cent failure of several modest proposals gun to organize around public safety, to reduce the number of Californians seeking alliances with law enforcement, going to prison). However, the state can crime victims, and other community do little directly to reduce the number groups. Political organizing of this sort of former prisoners; in fact, shrinking is one way to clear troubled assets. the prison population by releasing cur- In California and elsewhere, there is rent prisoners will only create more for- now a great deal of interest in evidence- mer prisoners. Also, the legacy of fear based correctional programming. This concentrated on former prisoners con- new wave of “rehabilitation” may be stitutes a volatile political force that most valuable in its ability to provide threatens to overwhelm the modest prisoners with greater opportunity to administrative reforms designed to distinguish themselves through partic- stabilize the constant recycling be- ipation and achievement in such pro- tween prison and parole.24 grams (at least as valuable as any sub- Given the concentration of chronical- stantive work the programming does). ly ill persons in our prisons, we have a Currently half of all California prison-

98 Dædalus Summer 2010 ers leave without having participated in when the time arrived.) Unlike job train- Clearing the a single program. But even the emaciat- ing or even drug treatment, this kind of “troubled training would provide no obvious eco- assets” of ed social capital of the warehouse prison America’s can be turned to some value by helping nomic advantage to felons, as against punishment clear former prisoners of their toxicity. ordinary poor people; at the same time, bubble The one bright star in California’s penal it would raise the social capital of every programming has been its ½re camps, former prisoner and every community which train (and when necessary deploy) to which the prisoners return. thousands of inmates to ½ght wild½res in California. Not only do the camps pull There is no guarantee the present trou- thousands of prisoners out of overcrowd- bles will lead Americans to abandon ed mainline prisons (prisoners who cur- mass incarceration or hyper-inflated rently meet a very demanding and nar- real estate. In both cases, however, inde- row range of classi½cation parameters), pendent pressures–especially the emer- but the ½re½ghting experience has been gence of the climate change problem celebrated by both prisoners and com- and new threats to domestic security munities as a successful way to rehabil- arising from terrorism, disease, and en- itate prisoners and restore community. vironmental disasters–are beginning to Given that the United Sates–California call into question the logic of restoring in particular–faces a future of increas- either the prison or the housing bubble. ingly grave threats from climate change, It may take us a decade or more, com- combined with our bad habit of building plete with some false starts, but sooner large cities in environmentally hazard- or later mass imprisonment will seem ous areas, we ought to build on the ½re like the suv does now: a huge and em- camp model. barrassing mistake propped up by both Imagine that every California prison individuals and institutions. When that inmate who is physically and men- day comes, we will need a way of think- tally ½t and willing were given special ing about the troubled legacies of mass training in civil engineering, ½re½ght- imprisonment. Mass incarceration was ing, and emergency ½rst aid to enable not a penological or criminological idea; him to be a frontline rescuer in the face indeed, virtually every penal expert op- of a major catastrophe like Hurricane posed it. Evidence-based penal policies Katrina or a major earthquake in San will be part of the solution, but only if Francisco or Los Angeles. This scenario we ½nd a new way of imagining our path would turn hundreds of thousands of out of mass incarceration. We will need former prisoners into a shadow force a path that leads through the rhizome- of possible rescuers. (It would be up to like pathways of metaphoric reasoning. them whether to use their skills to help endnotes 1 George Lakoff and Mark Johnson, Metaphors We Live By (Chicago: University of Chicago Press, 1980). 2 David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chi- cago: University of Chicago Press, 2001); Jonathan Simon, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (New York: Oxford University Press, 2007).

Dædalus Summer 2010 99 Jonathan 3 David Garland, “Introduction: The Meaning of Mass Imprisonment,” Punishment & Socie- Simon ty 3 (1) (2001): 5; Bruce Western, Punishment and Inequality in America (New York: Russell on mass Sage Foundation, 2006). incarceration 4 While incarceration rates began to rise in most states in the late 1970s, it was not until the early 1980s that they began to grow at an increasingly faster rate. Most economists would place the real estate bubble in the late 1990s and this decade, but signi½cant inflation of housing prices in many of the future affected areas–Florida, Arizona, Nevada, and Cali- fornia, for example–began in the 1980s as well. In another recent article, I explore what I take to be important correlations and causal connections between the growth of Ameri- can homeownership and the salience of crime to the important role of home values in personal wealth. My claim in this essay is not that there is a causal relationship between the housing and prison booms, but rather that we can learn to think differently about how to respond to the crises in the latter from some of the ways we are learning to understand the former. 5 Some may object to my referring to people as “troubled” or “toxic” assets. My goal, however, is precisely to draw on the dynamic set up by the original ½nancial metaphor to re- cast the penal setting. While some troubled assets may truly be toxic in the sense that they are simply fraudulent deals with no real value, many other loans reflect real value in their underlying properties. But that value is made inaccessible by the current price uncertainty. The real problem of prison is that it casts the value of the formerly incarcerated into enduring doubt even when many are engaged in conduct valuable to their communities. Fur- thermore, the practice of incarceration does little to make the imprisoned less troubled. 6 Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neigh- borhoods Worse (New York: Oxford University Press, 2007). 7 Susan Tucker and Eric Cadora, Ideas for an Open Society: Justice Reinvestment (New York: Open Society Institute, 2003). 8 Marie Gottschalk, The Prison and the Gallows: The Politics of Mass Incarceration in America (New York: Cambridge University Press, 2006). 9 Garland, “Introduction: The Meaning of Mass Imprisonment.” 10 Mike Davis, Ecology of Fear: Los Angeles and the Imagination of Disaster (New York: Metro- politan Books, 1998). 11 Ruth Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California (Berkeley: University of California Press, 2007). 12 William J. Stuntz, “The Pathological Politics of Criminal Law,” Michigan Law Review 100 (2001): 505. 13 Both Presidents Bill Clinton and George W. Bush strongly supported this path toward capital accumulation for working Americans. President Bush spoke of his vision for an “ownership” society. Both presidents presided over a signi½cant expansion of incarceration (moderated in effects only by steep secular declines in crime). Under both administrations, the standard explanation of both more prisons and more homeownership was to produce safer and more stable neighborhoods. 14 See John Hagan, “Social Embeddedness of Crime and Unemployment,” Criminology 31 (1993): 465; Clear, Imprisoning Communities. 15 Simon, Governing through Crime. 16 Joshua Page, The “Toughest Beat”: Politics, Punishment, and the Prison Of½cers’ Union in California (New York: Oxford University Press, forthcoming), 2. 17 The problems actually go much deeper than this since the system’s heavy reliance on state-of-emergency management techniques like lockdowns makes it nearly impossible to deliver medical care even with the necessary hygienic space and medical professionals.

100 Dædalus Summer 2010 18 Page, The “Toughest Beat.” Clearing the “troubled 19 With an average pay of more than $73,000 (which can jump to more than $100,000 with assets” of overtime), California’s correctional workforce is the highest paid in the country. However, America’s the of½cers are expected to provide only custody, and their required educational quali½ca- punishment tion is merely a high school diploma. Joan Petersilia, Understanding California Corrections: bubble A cprc Policy Research Program Report (Berkeley: California Policy Research Center, 2006). 20 Jeremy Travis, Amy L. Solomon, and Michelle Waul, From Prison to Home: The Dimensions and Consequences of Prisoner Reentry (Washington, D.C.: Urban Institute, 2001). 21 San Quentin, for example, is the state’s oldest prison, dating to the 1850s. It remains the best in terms of programming because of the incredible volunteer community in the Bay Area. While most of the structures ought to be closed and much of the land sold, a modest-sized prison should remain because of the extraordinary advantages of urban prisons and the strong resistance to building on new sites. 22 Editorial, “A Poor Prison Plan for California,” Los Angeles Times, January 17, 2010. 23 See Lisa Miller, The Perils of Federalism: Race, Poverty, and the Politics of Crime Control (New York: Oxford University Press, 2008). 24 Page, The “Toughest Beat,” 200.

Dædalus Summer 2010 101 Nicola Lacey

American imprisonment in comparative perspective

Over the last forty years, a number of countries. This is unfortunate; notwith- Western democracies have signi½cantly standing the wide diffusion of a political increased their use of imprisonment. discourse of penal populism, there are What explains this phenomenon? The striking differences in the extent to which most influential line of reasoning looks that discourse has led to greater severity to the global economic changes that be- in penal practice. Not all “late modern” gan in the 1970s: the contraction or col- democracies have plumped for a “neolib- lapse of manufacturing industries; the eral” politics. Countries like Denmark, creation of a large sector of people who Germany, and Sweden have managed to faced long-term unemployment or were sustain relatively moderate, inclusionary employed in insecure forms of work; and criminal justice systems–systems pre- consequent pressure on the welfare state. mised on reintegrating offenders into These changes, it is argued,1 have eroded society–throughout the period in which the consensus that sustained postwar the British and American systems have penal welfarism. A rise in recorded crime moved toward ever-greater penal severity. across Western countries gradually nor- Even then, the differences in the scale and malized criminal victimization and the quality of punishment between British management of the risk and fear of crime. and American penal systems are striking, Crime became, for the economically se- with the United States occupying an un- cure, an increasingly politicized issue, enviable position as the unrivaled leader generating a “penal populism” that among advanced economies in the costly brought in its wake repressive and man- business of mass imprisonment. agerial criminal justice strategies. The baleful distinctiveness of the Unit- This is a powerful argument. How- ed States’ incarceration record is epito- ever, its focus on structural forces and mized, though not exhausted, by imprison general categories such as “late mod- onment rates between four and twelve ern society” or “post-Fordism”2 directs times higher than those in other political attention away from variations in the economies at similar levels of develop- institutional framework through which ment (see Figure 1). The picture becomes those forces are mediated in different even more baffling when we consider variation among U.S. states’ imprisonment © 2010 by the American Academy of Arts rates, which, in the mid-2000s, ranged & Sciences from less than double those of the most

102 Dædalus Summer 2010 Figure 1 American Political Economy, Imprisonment, and Homicide imprisonment in comparative Imprisonment Rate (per 100,000) perspective 2002–2003 2008–2009 Neoliberal Countries (Liberal Market Economies) United States 701 760 Canada 108* 118 New Zealand 155 196 England and Wales 141 153 Australia 115 129 Conservative-Corporatist Countries (Coordinated or Hybrid Market Economies) The Netherlands 100 100 Italy 100 97 Germany 98 90 France 93 96 Social Democracies (Coordinated Market Economies) Sweden 73 74 Denmark 58 63 Finland 70 67 Norway 58 70 Oriental-Corporatist (Coordinated Market Economies) Japan 53 63

*Denotes data from 2003–2004. Sources: Adapted from Peter A. Hall and David Soskice, “An Introduction to the Varieties of Capitalism,” in Varie- ties of Capitalism, ed. Peter A. Hall and David Soskice (Oxford: Oxford University Press, 2001), 1–68; Michael Cava- dino and James Dignan, Penal Systems: A Comparative Approach (London: Sage, 2006); International Centre for Pris- on Studies, http://www.kcl.ac.uk/depsta/law/research/icps/worldbrief (September 2009). punitive of other advanced economies to within different kinds of political econo- rates more than ten times higher. What my: neoliberal, conservative-corporatist, explains the extraordinary scale and se- oriental-corporatist, and social-demo- verity of the “harsh justice”3 meted out cratic.4 Cavadino and Dignan show that in the U.S. penal system today? the social-democratic Nordic countries5 Comparative and historical research have maintained humanity in the quali- are central to any attempt to answer this ty of punishment and moderation in its question. For their analysis of imprison- scale while some of the neoliberal coun- ment rates, youth-justice arrangements, tries–notably the United States–have and privatization policies in twelve coun- been moving in the direction of mass tries, criminologists Michael Cavadino incarceration under ever-harsher condi- and James Dignan developed a fourfold tions. These countries are surpassing the typology of criminal justice systems nested penal severity of not only social-demo-

Dædalus Summer 2010 103 Nicola cratic countries but also both kinds of offenders into society and the economy, Lacey corporatist economy. decision-makers are more likely to opt on mass incarcer- Understanding why resemblances for an inclusionary criminal justice sys- ation across types of political economy persist tem and less likely to favor exclusionary over time; why they produce systemati- stigmatization in punishment. Moreover, cally different patterns of punishment; the interlocking institutions of these co- and whether these differences are likely ordinated market economies conduce to to survive the increasing international- an environment of relatively extensive ization of economic and social relations informal social controls, which in turn is crucial to answering the key policy ques- supports the cultural attitudes that under- tion for the United States today: can the pin and stabilize a moderated approach forces that have produced mass impris- to formal punishment. onment be countered, and if so, how? A liberal market economy (of which We can begin to examine these ques- the extreme case, for any argument about tions by drawing on recent political- criminal justice, is the United States) is economic analysis of comparative insti- typically more individualistic in struc- tutional advantages as well as capacities ture, is less interventionist in regulatory for strategic coordination inherent in stance, and depends far less strongly on differently ordered systems.6 Political- the coordinating institutions needed to economic forces are mediated by cultural sustain long-term economic and social ½lters and by the economic, political, and relations. In these economies, flexibility social institutions that influence the in- and innovation, rather than stability and terests, incentives, and identities of rele- investment, form the backbone of com- vant groups of social actors. This institu- parative institutional advantage. It fol- tional mediation of cultural and strutural lows that, particularly under conditions forces produces a state’s signi½cant and of surplus unskilled labor (conditions persistent “varieties of capitalist system,” that liberal market economies are more which, notwithstanding globalization, likely to produce), the costs of a harsh, we see across states at similar stages of exclusionary criminal justice system are development. Varieties of capitalism less than they would be in a coordinated either favor or inhibit penal tolerance market economy. This variation in pro- and humanity in punishment. duction regimes also implies differences My argument starts with the distinc- in the economic activities in which coun- tion between liberal and coordinated tries excel and, consequently, involves market economies developed by political different constraints on the sway of the scientists Peter Hall and David Soskice.7 market and different degrees of influence A coordinated market economy such as for ½nancial capitalism. Germany or Sweden functions primarily Accordingly, in the environment pro- in terms of long-term relationships and duced by the global economic crisis in stable structures of investment, not least the 1970s and the subsequent collapse in education and training oriented to of Fordism, these long-run institutional company- or sector-speci½c skills, and dynamics took on a special signi½cance incorporates a wide range of social groups for criminal justice policy in liberal mar- and institutions into a highly coordinated ket economies. Confronted with political- governmental structure. In a political- economic imperatives that led to ever- economic system premised on incorpora- increasing disparities of wealth and de tion, and hence on the need to reintegrate facto status distinctions in the liberal

104 Dædalus Summer 2010 economies, economic dynamics fed into con½dence that their interests will be American the political and social forces that favor effectively represented in the bargaining imprisonment in harsh and extensive punishment. By con- process that characterizes coalition poli- comparative trast, in countries whose economic ar- tics, the dynamics of penal populism may perspective rangements have sustained a consensus- be easier to resist. Due to the discipline oriented system, where long-term invest- of coalition politics in pr systems, which ment in high-skill economic activity was require that bargains are struck before affected relatively little by the demise of elections, voters can be more con½dent Fordism, and where social inequality has about the policy slate for which they are remained much less acute, political and voting8–a striking difference from major- penal dynamics are different. itarian systems, in which a party with a These comparative differences are not comfortable majority is more or less un- just a question of economic organization; constrained by its own manifesto once indeed, economic differences are them- elected. The result is that long-standing selves reinforced by independently impor- pr systems9 typically produce a signi½- tant features of political structure and cant buffer between a popular demand organization. Certain political systems, for punishment and the formation of too, conduce to–or militate against– penal policy. support for the economic and social pol- Finally, both the long-term relationships icies that enable governments to pursue typical of a coordinated market economy inclusionary criminal justice policies. In and the negotiated style of politics typi- liberal market economies with majoritar- cal of proportional representation lead to ian electoral systems, particularly under greater redistribution and lower social conditions of low trust in politicians, low inequality. In particular, even as econo- deference to the expertise of criminal mies and cultures are increasingly inte- justice professionals, and a weakening grated through global trade and commu- of the ideological divide between politi- nication, coordinated market economies cal parties focused on the median voter, have been able to maintain their signi½- the unmediated responsiveness of poli- cantly more generous welfare states.10 In tics to popular opinion in the adversarial light of the strong comparative evidence context of a two-party system makes it that associates generosity of welfare pro- harder for governments to resist inten- vision with moderation in punishment,11 sifying penal severity. These dynamics it has been suggested that, particularly in become particularly strong when both the wake of the move to “workfare” poli- parties take up a law-and-order agenda cies in liberal market countries such as and when–as in the United States over the United States, in which performing the last thirty years–economic inequality work is a condition of receiving aid, the and insecurity have fed popular anxiety penal system has come to replace the wel- about crime. This renders penal policy as fare system as the means of governing an especially suitable platform on which social marginality.12 politicians from all points of the political Factors such as unemployment rates, spectrum may appeal to median voters. levels of inequality, and welfare-state By contrast, in the proportionally rep- structures have been studied fairly exten- resentative (pr) systems of coordinated sively by scholars of crime and punish- market economies, where negotiation ment. The form of the constitution, the and consensus are central, and where nature and status of the professional bu- incorporated groups can have greater reaucracy,13 the organization and influ-

Dædalus Summer 2010 105 Nicola ence of the media, and various aspects One approach to understanding Amer- Lacey of legal and political culture and of dem- ican “penal exceptionalism” is to review on mass incarcer- ographics (notably, the demographics of each of the institutional features of a lib- ation race and age)14 have also attracted con- eral market system; determine whether siderable attention. But the effects of the United States presents extreme forms institutional features such as electoral of some or all of these features; and assess systems, the organization of political whether it does so to an extent consistent parties, and the structure of education with its distinctively costly and punitive and training on the dynamics of inclu- criminal justice. Certainly, this approach sion and exclusion, which are known to reveals at least a partial picture. The U.S. affect not only crime but punishment majoritarian system is characterized by rates, have attracted much less attention. remarkably weak party discipline, a high- Yet the comparative evidence tells us that ly politicized bureaucracy, and constitu- many European countries have main- tional controls oriented to due process tained relatively stable imprisonment rather than to the substance of punish- rates, even during times of rising crime ment or criminalization. Moreover, the and/or popular anxiety about crime, pre- U.S. economy is marked by low levels of cisely because of these broader institu- unionization, employment protections, tions: a political system that insulates and industry/union/government coordi- policy-making from direct electoral pres- nation and investment in training; it ex- sure; a strong and independent expert perienced an exceptionally catastrophic bureaucracy; an education system geared collapse of Fordist industrial production; toward long-term investment in skills; and its welfare system is particularly and a generous welfare state. ungenerous when compared with other welfare states. The country has a reputa- On the surface, the U.S. criminal justice tion as a classless society, yet these polit- system is much as we might expect of a ical-economic factors produce especially liberal market economy. Nonetheless, high levels of social inequality and polar- with an imprisonment rate three-and- ization, most vividly along lines of race.17 a-half times higher than that of the next To this reality we should add the very most punitive liberal market economy, substantial institutional capacity in the New Zealand (see Figure 1), the United prison and prosecution systems that has States is an extreme case. The contrast built up over the entire course of Amer- between the United States and its neigh- ican history.18 In view of these features, bor Canada, which has seen a relative- the American economy’s response to the ly stable imprisonment rate since the collapse of Fordist production and the 1960s,15 is especially striking. The checks ½nancial problems attendant on the oil and balances attendant on Canada’s dis- crisis of the early 1970s has been to roll tinctive federal structure; the influence back the welfare state and move in a of Francophone culture, particularly in “neoliberal” direction, leading to the the large province of Quebec; a relatively consolidation of a sizable underclass of robust consensus orientation in politics; those excluded from effective member- and a conscious sense of the desirability ship in the polity and economy. Com- of differentiating Canadian politics and pounded by cultural factors such as low society from those of the United States levels of social trust and high levels of appear to have offered Canada substantial moralism yet weak structures of informal protection from mass imprisonment.16 social control, this distinctive combina-

106 Dædalus Summer 2010 tion is a recipe for especially high levels the United Kingdom, for example, cor- American of punishment.19 responds to that in the United States), imprisonment in To this picture, we must add three fur- the much larger population of African comparative ther features. First and most important Americans in the United States than of perspective is the fraught issue of race. In the wake black Britons in the United Kingdom of high levels of social conflict during entails a much greater impact on overall and immediately after the civil rights prison numbers. In 2006, the incarcera- movement, the criminal process has tion rate for men in the United States been increasingly invoked as a method was 943 per 100,000; disaggregating by of disciplining African Americans; incar- race, this drops to 487 for white males, ceration of young African American men rising to 1,261 for Hispanic and Latino in particular has reached extraordinarily males and a staggering 3,042 for African high levels. Intense and widespread pun- American males.25 ishment has knock-on effects for family Second, and interacting with race, is and social structure, for political participa- the U.S. government’s “war on drugs.” tion, and for community governance.20 It Over the last forty years, the increasing leads to devastating further consquences criminalization of drug use has had a de- at every level of civil society and politi- cisive impact on levels of punishment,26 cal and economic life.21 The widespread with a particularly marked impact on practice of felon disenfranchisement young African American men.27 While inevitably excludes a disproportionate African Americans were twice as likely number of African Americans from po- as whites to be arrested for a drug offense litical participation. Disenfranchisement in 1975, they were four times as likely in laws, which tend to take more votes from 1989. Yet during this period, white high Democratic than from Republican can- school seniors reported using drugs at a didates, played a decisive role in Senate signi½cantly higher rate than African and presidential elections from the Americans, while drug use as a whole 1990s, thus creating a clear incentive for was already on the decline at the incep- Republican politicians to support exten- tion of the war on drugs. The expecta- sive criminalization and incarceration, tion of electoral payoffs lies at the root even in a context of diminishing crime of this costly and disastrous policy and rates.22 What is more, demographic points the explanatory ½nger at features changes–particularly white flight to the of the U.S. political system. suburbs in Northern cities, which were Third, sentencing reform has been a to be so decisively affected by the col- signi½cant factor in the trend toward lapse of Fordist production–have led mass incarceration in the United States. to a decline in the political influence of The collapse of faith in the rehabilitative African American voters.23 ideal ushered in a formalized approach The dangerous cocktail of racial politics to sentencing through a range of deter- and criminal justice politics is undoubt- minate sentencing legislation at both edly one important contributor to mass federal and state levels. This legislative imprisonment. And while the overrep- intervention in the sentencing system resentation of both migrants24 and cer- has had a tendency to consolidate the tain ethnic groups, notably young Afri- politicization of punishment; under- can American men, is a marked phenom- mine the autonomy and status of the enon in the criminal justice systems of judiciary; and increase the power of many countries (the disproportion in prosecutors.28 Note, however, that the

Dædalus Summer 2010 107 Nicola structure of sentencing legislation var- that have emerged over the last three Lacey ies markedly between jurisdictions in the decades invites a more careful analysis. on mass incarcer- United States, which may help to explain Sociologists Katherine Beckett and Bruce ation some regional variation (though identi- Western have argued that increasing fying the direction of causation here is social inequality in the United States is no easy matter). strongly associated with the general rise Taken together, these factors, it can be in punishment and with imprisonment argued, are in themselves suf½cient ex- in particular.30 Yet this explanation begs planation for the acute politicization of the question of why these dynamics criminal justice and penal severity in the should have become so extraordinarily United States. But the huge penal dispar- marked during this period–and in cer- ity between the United States and other tain states in particular. In 2001, the liberal market economies at similar levels imprisonment rate ranged from a high of economic and political development of 1,398 per 100,000 in Louisiana to a has become markedly greater over the low of 288 in Maine, with average rates last thirty years. This is a trend we can in the South (1,052) one-and-a-half times explain only by unraveling longer-term those in the Northeast (646), compared institutional dynamics and their interac- with an overall U.S. rate of 688.31 The tion with the economic and social envi- variation also applies to racial patterns ronments of recent decades. In the earli- of incarceration: the rate of imprison- er part of the twentieth century, Ameri- ment for African Americans in the Unit- can penal practices equated much more ed States in 2006 ranged from highs of closely to those of comparable countries. 4,710 and 4,416 per 100,000 in, respec- Until the mid-1970s, the U.S. imprison- tively, South Dakota and Wisconsin to ment rate was relatively stable, ranging “lows” of 851 in Hawaii, 1,065 in Wash- from a low of 119 in 1925 to 153 in 1974, ington, D.C., and 1,579 in Maryland.32 with moderate fluctuations, and breach- Analogous differences can be seen in ing the 200-mark in only a single year, patterns of capital punishment: since 1939.29 In the early 1970s, the U.S. im- the re-legalization of the death penalty prisonment rate was about one-and-a- in 1976, more than 70 percent of all exe- half times higher than that of England cutions have been carried out by South- and Wales. Today, despite the fact that ern states, with Texas alone accounting the English rate has itself almost dou- for more than a third of the executions bled, the U.S. imprisonment rate is al- that took place in the thirty years be- most ½ve times higher than that of Eng- tween 1976 and 2006.33 How are these land and Wales. While some explana- striking facts to be explained? tory factors (notably, the collapse of Fordism) relate speci½cally to the more Answering that question is a large recent period in which those disparities task, and I can do no more than point have grown, many of the salient features out some promising lines of inquiry of the U.S. system, including its relative- suggested by the broad account that I ly high African American and Hispanic have already sketched. I will focus not population, have a much longer history. on the United States’ minimal welfare Moreover, even granting the relevance system, its racial politics, or its stagger- of the argument that the United States is ing (though regionally variable) record an extreme case of a liberal market econ- of social inequality, but rather on what is omy, the scale of the penal disparities perhaps the least obvious distinguishing

108 Dædalus Summer 2010 feature of the United States: its political in other countries this trend has been American system. more recent and less extreme. Voter af½l- imprisonment in The signi½cance of political institu- iations (hence the strategies candidates comparative tions and structures for criminal justice use in seeking election) tend therefore perspective is beginning to attract some very fruitful to be de½ned by the policies and person- analysis. Marie Gottschalk has traced the alities of of½ce-seekers or of½ce-holders. shifting role of criminal politics in Amer- In this context, policies likely to secure ican history, pointing to a gradual accre- independent votes by appealing to medi- tion of institutional capacity that ulti- an voter interests are a key preoccupation mately bolstered the prison expansion of for political leaders–not least in a system the late twentieth century, as well as to a characterized by weak party discipline political structure that favored a distinc- and in which it pays leaders (particularly tively punitive victims’ movement.34 presidents, who are less constrained than Vanessa Barker’s recent study of Califor- are members of Congress to answer to nia, New York, and Washington, D.C., local constituents) to make a direct ap- shows how the varying structure and peal to voters they hope to win over. culture of state politics have fed into Unfortunately, in part as a result of a large regional disparities in patterns of uniquely punitive victims’ movement,38 punishment.35 Lisa Miller has illumi- criminal justice has often been identi- nated the shaping force of policy-mak- ½ed by political leaders as an issue with ing environments at national, state, and the ability to draw median voters. The local levels, diagnosing a distortion of perceived political import of criminal political representation at the national justice has set up, loosely speaking, a and state levels, one that has been of “prisoners’ dilemma” in which both great signi½cance in the upswing in pun- major political parties risk becoming ishment as a result of the increasing fed- locked into a costly strategy they dare eralization of criminal policy.36 For the not abandon because of the electoral purpose of this argument, I will focus on advantage, particularly vis-à-vis the two lines of inquiry: the nature of the median voter, which they fear would U.S. party system and the highly decen- accrue to the other party. A key example tralized nature of its electoral democracy. at the national level is the war on drugs. In both cases, I shall argue, long-stand- Indeed, the increased federalization of ing features of the U.S. political system criminal justice policy,39 a development have, in the particular social and eco- that facilitated not only the war on drugs nomic environments since the 1970s, but also the development of a uniquely worked to produce historically unprec- rigid sentencing framework that has edented levels of imprisonment. made its own contribution to the up- In the case of the party system, during ward drift in punishment, can be seen most of the period that has seen the pris- as a direct result of the prisoners’ dilem- on buildup, the conventional wisdom ma effect at the national level. has been that voter af½liation with the The electoral prisoners’ dilemma dy- two main parties is organized along lines namic has an equally important impact that link rather weakly to stable ideolog- in the United States at the state and local ical positions.37 While a weakening of levels.40 This brings us to the second di- left-right ideological af½liation and an mension of the American political sys- increased emphasis on political leaders tem that is relevant to “harsh justice”: is not singular to the U.S. party system, the radical diffusion of electoral politics.

Dædalus Summer 2010 109 Nicola The peculiarly decentralized quality of electing of½cials (county commissioners, Lacey American democracy creates a situation school boards, treasurers) reaches deep on mass incarcer- in which the prisoners’ dilemma is repro- into institutions at one or more remove ation duced through frequent elections at state, from the criminal justice system, yet county, and municipal levels, signi½cant- they are institutions in which playing to ly increasing its impact. Furthermore, voter preferences will likely bring the individuals seeking election at the local “governing through crime” agenda into level have an interest in advocating pop- play.42 ular policies, the costs of which do not The impact of such elections on crimi- necessarily fall on the electoral constitu- nal justice policy is demonstrated by em- ency.41 Increased resort to imprisonment pirical research. For example, economist is a key example. Steven Levitt determined that the elec- These points are of particular impor- toral cycle across ½fty-nine large U.S. tance in any attempt to explain American cities has a signi½cant impact on police penal harshness, in large part because hiring, with increases in the size of the “law and order” in national politics has police force “disproportionately concen- been, if anything, less salient in the Unit- trated in mayoral and gubernatorial elec- ed States than it has been in the United tion years,” a relationship that held when Kingdom, Australia, or New Zealand, demographic, socioeconomic, and other with national preoccupations focusing factors were controlled for.43 Nor are on issues like terrorism, drug policy, and judges immune from this syndrome. capital punishment rather than on over- For example, political scientists Gregory all issues of prison capacity and extent (a Huber and Sanford Gordon found that matter which in any case is largely in the sentences for selected serious crimes in- hands of individual states). But the dy- creased the closer the sentencing judge namics of state-level politics are just the was to a reelection date,44 while legal beginning of American political decen- scholar and economist Joanna Shepherd tralization, and though state politics have found a strong association between state undoubtedly been of great consequence supreme court judicial decisions and for the move to mass imprisonment, the “stereotypical preferences” of voters, local level of the county or city–far more according to whether judges faced re- costly to research, and hence much less election in a Republican- or Democrat- fully understood–has almost certainly majority constituency.45 been of equal or even greater signi½cance. Economist Andrew Dyke has demon- The weak party discipline and person- strated an equally striking effect of elec- ality-domination that characterize na- toral cycles on criminal justice in a study tional and state-level politics are proba- of the impact of district attorney elections bly even more prominent in local poli- on criminal case outcomes in North Car- tics. Here, actors with key roles in the olina.46 Defendants faced a higher prob- criminal process (mayors, judges, district ability of conviction and a lower proba- attorneys, sheriffs) are often elected, and bility of having all charges dismissed in thus are subject to direct electoral disci- an election year, suggesting that in the pline; their election campaigns depend run-up to an electoral contest, sitting on extensive radio and television adver- district attorneys are more reluctant to tising focused on individual record or dismiss cases and more concerned to policy commitments rather than on par- assert their “tough on crime” credentials. ty platforms. Moreover, the practice of At each level, then, the opportunities for

110 Dædalus Summer 2010 an exacerbation of the prisoners’ dilem- have argued play a key role in producing American ma dynamic are more extensive in the mass imprisonment are not susceptible imprisonment in American system than in other liberal to direct policy intervention. But if I am comparative market economies with lower levels of right that, over the last thirty years, fea- perspective political decentralization, stronger sys- tures of the political system have had tems of party discipline, and fewer elec- particular importance, this correlation toral of½ces of relevance to criminal suggests two possible ways forward. One justice. approach would be to increase electoral Note, ½nally, one particularly impor- accountability at the local level, by mak- tant feature of these American electoral ing the economic and other knock-on dynamics. Crime ranks among the most costs of electoral platforms in the crimi- important issues identi½ed in national nal justice ½eld more transparent to the opinion surveys and is seen as an espe- electorate and more clearly attributable cially salient electoral issue when the to the decision-making of particular of- economy is performing well.47 Local ½cials, thereby raising the electoral costs of½cials like district attorneys and may- of such policies. The second approach ors, therefore, stand to gain electorally would be to insulate the development of by promising tougher measures on crime. penal policy from the dynamics of com- Yet, crucially, they may not have to fund petition for electoral of½ce–dynamics the costs of such measures themselves that otherwise conduce to a reactive and or, if they do have to fund them, may short-term framework for policy devel- not face the full political costs of their opment. This separation will be hardest economic choices. Mayors, for example, to achieve in states where constitutions are not responsible for most aspects of provide mechanisms not only for direct a city’s economic performance. In fact, citizen involvement in shaping penal pol- even state governors are rarely regarded icy but also for the entrenchment of the by voters as notably responsible for the resulting policies. But in some states, and state of the economy; economic manage- at both local and federal levels, there is ment is primarily attributed to the feder- surely potential for reallocating aspects al level. In this context, tough law-and- of criminal justice decision-making to ex- order policies are electorally attractive pert commissions or bodies that would –and politically costless. This is a pow- combine expert and stakeholder involve- erful recipe for a prisoners’ dilemma in ment and that would, like many existing which political actors–including voters institutions (including courts), be some- –become locked into policy choices what insulated from direct electoral pres- that would be in their best interest (in- sure, while being subject to more indirect dividually and as part of a community) forms of democratic accountability. As to avoid. an outsider to the U.S. system, I make The challenge, then, is to ½nd ways this proposal tentatively. But it is worth within the liberal market economy insti- noting that such an approach has been tutions of the United States to create ana- advocated by three influential American logues of the institutional features that scholars in their acute analysis of the appear to have protected coordinated genesis and impact of the Three Strikes market systems from, as it were, putting policy in California.48 their criminal justice money where their penal populist mouth is. The major structural features of the U.S. system that I

Dædalus Summer 2010 111 Nicola endnotes Lacey 1 on mass David Garland, The Culture of Control: Crime and Social Order in Contemporary Society incarcer- (Oxford: Oxford University Press, 2001). ation 2 Alessandro De Giorgi, Re-Thinking the Political Economy of Punishment: Perspectives on Post- Fordism and Penal Politics (Aldershot, U.K.: Ashgate, 2006). 3 James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe (Oxford: Oxford University Press, 2003). 4 Michael Cavadino and James Dignan, Penal Systems: A Comparative Approach (London: Sage, 2006). 5 John Pratt, “Scandinavian Exceptionalism in an Era of Penal Excess,” Parts I (“The Nature and Roots of Scandinavian Exceptionalism”) and II (“Does Scandinavian Exceptionalism Have a Future?”), British Journal of Criminology 48 (2008): 119–137, 275–292. 6 Nicola Lacey, The Prisoners’ Dilemma: Political Economy and Punishment in Contemporary Democracies (Cambridge: Cambridge University Press, 2008). 7 Peter A. Hall and David Soskice, “An Introduction to the Varieties of Capitalism,” in Vari- eties of Capitalism: The Institutional Foundations of Comparative Advantage, ed. Peter A. Hall and David Soskice (Oxford: Oxford University Press, 2001), 1–68. 8 Torben Iversen and David Soskice, “Electoral Institutions and the Politics of Coalitions: Why Some Democracies Redistribute More than Others,” American Political Science Review 100 (2006): 165–181. 9 The quali½cation is important: pr electoral arrangements grafted onto liberal-market structures may have different effects, as in the case of New Zealand. See Lacey, The Prison- ers’ Dilemma, 64, 68–69, 179. 10 Gosta Esping-Andersen, The Three Worlds of Welfare Capitalism (Cambridge: Polity Press, 1990). 11 David Downes and Kirstine Hansen, “Welfare and Punishment in Comparative Perspec- tive,” in Perspectives on Punishment: The Contours of Control, ed. Sarah Armstrong and Lesley McAra (Oxford: Oxford University Press, 2006). 12 Katherine Beckett and Bruce Western, “Governing Social Marginality,” in Mass Imprison- ment: Social Causes and Consequences, ed. David Garland (London: Sage, 2001), 35–50; Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (Durham, N.C.: Duke University Press, 2009). 13 Joachim J. Savelsberg, “Knowledge, Domination, and Criminal Punishment,” American Journal of Sociology 99 (1994): 911–943; Joachim J. Savelsberg, “Knowledge, Domination, and Criminal Punishment Revisited,” Punishment and Society 1 (1999): 45–70. 14 Bruce Western, Punishment and Inequality in America (New York: Russell Sage Foundation, 2006). 15 Anthony N. Doob and Cheryl Marie Webster, “Countering Punitiveness: Understanding Stability in Canada’s Imprisonment Rate,” Law and Society Review 40 (2006): 325–368. 16 Michael Tonry, “Why Aren’t German Penal Policies Harsher and Imprisonment Rates Higher?” German Law Journal 5 (10) (2004): 1187–1206; Michael Tonry, “Determinants of Penal Policies,” in Crime and Justice: A Review of Research, ed. Michael Tonry 36 (2007): 1–48. 17 Bruce Western and Becky Pettit, “Incarceration and Racial Inequality in Men’s Employ- ment,” Industrial and Labour Relations Review 54 (2000): 3–16; Western, Punishment and Inequality in America; William J. Stuntz, “Unequal Justice,” Harvard Law Review 121 (2008): 1969–2040; John Sutton, “The Political Economy of Imprisonment in Affluent Western Democracies, 1960–1990,” American Sociological Review 69 (2004): 170–189.

112 Dædalus Summer 2010 18 Marie Gottschalk, The Prison and the Gallows: The Politics of Mass Incarceration in America American (Cambridge: Cambridge University Press, 2006). imprisonment in 19 Tom R. Tyler and Robert J. Boekmann, “Three Strikes and You Are Out: But Why? comparative The Psychology of Public Support for Punishing Rule-Breakers,” Law and Society Review perspective 31 (1997): 237–265. 20 Western, Punishment and Inequality in America. 21 Mary Pattillo, David Weiman, and Bruce Western, eds., Imprisoning America: The Social Effects of Mass Incarceration (New York: Russell Sage Foundation, 2004). 22 Christopher Uggen and Jeff Manza, “Democratic Contraction? The Political Consquences of Felon Disenfranchisement in the United States,” American Sociological Review 67 (2002): 777–803; Jeff Manza and Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy (New York: Oxford University Press, 2006). 23 Stuntz, “Unequal Justice.” 24 De Giorgi, Rethinking the Political Economy of Punishment. 25 Bureau of Justice Statistics, Prisoners in 2006 (Washington, D.C.: U.S. Department of Jus- tice, 2006), 8. 26 Scott Boggess and John Bound, “Did Criminal Activity Increase During the 1980s? Com- parisons across Data Sources,” working paper no. 443 (National Bureau of Economic Research, 1993). 27 Loïc Wacquant, “Deadly Symbiosis: Where Ghetto and Prison Meet and Mesh,” Punish- ment and Society 3 (2001): 95; Glenn C. Loury, Race, Incarceration, and American Values (Cambridge, Mass.: mit Press, 2008). 28 William J. Stuntz, “The Pathological Politics of Criminal Law,” Michigan Law Review 100 (2001): 505–600. 29 http://www.angel½re.com/rnb/y/rates.htm. 30 Beckett and Western, “Governing Social Marginality,” in Mass Imprisonment, ed. Garland; Western, Punishment and Inequality in America. 31 http://www.angel½re.com/rnb/y/rates.htm. For further information on the state and federal prison populations in that year, see Allen J. Beck, Paige M. Harrison, and Jennifer C. Karberg, “Prison and Jail Inmates at Midyear 2001,” Bureau of Justice Statistics Bulletin (U.S. Department of Justice, 2002), http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail &iid=866. 32 Marc Mauer and Ryan S. King, Uneven Justice: State Rates of Incarceration by Race and Eth- nicity (Washington, D.C.: The Sentencing Project, 2007), 8. 33 David Garland, “A Peculiar Institution: Capital Punishment and American Society,” paper delivered to the Harvard Criminal Justice Forum, May 2008. 34 Gottschalk, The Prison and the Gallows. 35 Vanessa Barker, The Politics of Punishment: How the Democratic Process Shapes the Way Amer- ica Punishes Offenders (New York: Oxford University Press, 2009). 36 Lisa L. Miller, The Perils of Federalism: Race, Poverty, and the Politics of Crime Control (New York: Oxford University Press, 2008); see also Stuntz, “The Pathological Politics of Crimi- nal Law” and Stuntz, “Unequal Justice.” 37 Notwithstanding the apparent polarization produced by a hardening of opinion in the conservative wing of the Republican Party, both major parties encompass exceptionally broad –and overlapping–policy orientations. 38 Gottschalk, The Prison and the Gallows.

Dædalus Summer 2010 113 Nicola 39 Stuntz, “The Pathological Politics of Criminal Law.” Lacey 40 on mass My argument here is somewhat at odds with Lisa Miller’s ½nding that local politics in incarcer- Philadelphia evinced a more complex, less straightforwardly punitive analysis of crime ation than that which pertained to national or state levels. Miller’s argument is that the distance of state and national politicians from constituents’ concerns, in which both criminal victimization and the deleterious social impact of mass imprisonment register rather strongly, and the influence of prosecutors and other pro-victim lobbies has had a decisive impact on the acceleration of punitiveness at those levels; Miller, The Perils of Federalism. This argument is persuasive, and an excellent example of the ways in which both the size and the fragmentation of the U.S. system have affected its penal policy. But the studies I cite below suggest that in the competition for of½ce, law-and-order bidding wars nonetheless feature strongly at the local level. 41 David Soskice, “American Exceptionalism and Comparative Political Economy,” in Labor in the Era of Globalization, ed. Clair Brown, Barry Eichengreen, and Michael Reich (New York: Cambridge University Press, 2009), 51–93; Stuntz, “The Pathological Politics of Criminal Law” and Stuntz, “Unequal Justice.” 42 Jonathan Simon, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (New York: Oxford University Press, 2007). 43 Steven D. Levitt, “Using Electoral Cycles in Police Hiring to Estimate the Effect of Police on Crime,” The American Economic Review 87 (1997): 271. 44 Gregory A. Huber and Sanford C. Gordon, “Accountability and Coercion: Is Justice Blind When it Runs for Of½ce?” American Journal of Political Science 48 (2004): 247. 45 Joanna M. Shepherd, “The Influence of Retention Politics on Judges’ Voting,” Journal of Legal Studies 38 (2009): 169. For a review of the broad implications of electing judges, see Pamela S. Karlan, “Electing Judges, Judging Elections, and the Lessons of Caperton,” Har- vard Law Review 124 (2010): 80–103. 46 Andrew Dyke, “Electoral Cycles in the Administration of Criminal Justice,” Public Choice (2007): 133, 417–437. 47 Levitt, “Using Electoral Cycles in Police Hiring to Estimate the Effect of Police on Crime,” 274. 48 Franklin E. Zimring, Gordon Hawkins, and Sam Kamin, Punishment and Democracy: Three Strikes and You’re Out in California (Oxford: Oxford University Press, 2001), 179ff., 204–209.

114 Dædalus Summer 2010 Mark A.R. Kleiman

Toward fewer prisoners & less crime

Mass incarceration can be approached other part of the problem is crime. If the from (at least) four perspectives: those crime problem were trivial, or if incar- of social science, cultural criticism, ad- ceration had only a trivial effect on crime, vocacy, and policy analysis. the solution to the problem of mass in- The social scientist wants to know carceration would be trivially obvious: about causes and consequences, to em- release those currently locked up and ploy theories to explain events such as end the practice of sending offenders to the explosion of incarceration in Amer- jail or prison. The policy analyst’s work ica over the past generation, and to use would then be complete, and the task of events to develop new theories. The cul- persuasion could then be turned over to tural critic strives to elucidate meanings, the advocate, guided by the social scien- asking about the intentions behind the tist and the cultural critic. actions of participants in the social, ad- But if crime is a real problem and if in- ministrative, and political processes that carceration can be one means (among produce a given set of results; about how many) to control crime, then the situa- they justify those actions to themselves tion looks more complicated. One would and others; and about the character of need to measure the harms done by crime the social order that produced those pro- as well as the harms done by incarcera- cesses and their results. The advocate tion, ask about the effects of alternative searches for persuasive means to the incarceration policies on the rates of dif- end of ameliorating an already identi- ferent sorts of crime, and consider the ½ed evil. The policy analyst tries to ½g- likely results of making more use of oth- ure out what course of action would er crime-control measures, including best serve the public interest, all things alternative forms of punishment, while considered, trying to take into account reducing incarceration. unintended as well as intended conse- For example, it seems clear that in- quences. creasing police activity can reduce vic- Viewed through a policy-analytic timization rates. Thus it ought to be lens, “mass incarceration” looks like possible in principle, given some tar- only a partial problem de½nition; the get level of victimization, to “trade off” policing against incarceration: adding © 2010 by the American Academy of Arts police while reducing imprisonment. & Sciences Whether that tradeoff would be desir-

Dædalus Summer 2010 115 Mark A.R. able is a different question. The extreme- the problem of mass incarceration. Mere- Kleiman ly aggressive style of the New York Police ly reducing the prison head count with- on mass incarcer- Department, even if we credit it with re- out also making the lives of residents of ation ducing crime (and, consequently, reduc- dangerous neighborhoods safer would ing incarceration as well), seriously com- solve only half the problem. plicates the lives of poor, young African American, Dominican, Puerto Rican, The measurable losses from crime and Haitian New Yorkers. do not seem to be especially large com- Is it better to live in a city with fewer pared to the measurable losses from oth- prisoners but more police surveillance? er sources of risk: surely not large enough The answer is not obvious on its face: re- to account for the level of public concern solving the question would require both over crime. Across households, the aver- the collection of facts and the assignment age property lost to burglary comes out of values to different outcomes. But it is to about $4 per month, a small fraction the sort of question that a policy analysis of a typical utility bill. Homicide is a hor- starting from the problem of mass incar- rible event, but also a rare one; twice ceration must try to answer, if crime mat- as many people die on the highways ters and if incarceration is one means of each year as are deliberately killed by reducing it. That analysis must also ask others. which offenders to release early or not to Victimization risk imposes costs incarcerate at all. on those who are never actually victim- Thinking about mass incarceration ized, because of the costly efforts they and crime control as twin problems can make to avoid victimization and be- create two tactical advantages for those cause of the “external costs” of victim- committed to reducing mass incarcera- ization-avoidance measures taken by tion. First, since many political actors others. Crime, like incarceration, de- are concerned about crime and do think prives people of liberty; it does so by that incarceration helps control it, advo- making them afraid. The deprivation cates of incarceration reduction will ½nd of liberty is, in general, less profound a better hearing if they propose alterna- –though there are certainly people who tive means of crime control instead of feel trapped in their homes because they simply ignoring the crime problem. Sec- are afraid to go outdoors–but it extends ond, there is evidence that support for to a much larger group of people. The highly punitive approaches to crime var- costs of crime avoidance easily swamp ies–albeit with a substantial lag–with the immediate costs of victimization. the crime rate, so that success in reduc- If the bulk of crime-related loss is ing crime will tend to facilitate the proj- not victimization loss, then the rate ect of incarceration reduction. As the of completed victimization–the crime crime explosion of 1962 to 1994 helped rate–is not a good proxy for the serious- produce the problem of mass incarcera- ness of the crime problem. A neighbor- tion, the crime collapse since 1994 might hood abandoned due in part to crime, help ameliorate it, especially if victimi- or where residents stay inside behind zation rates continue to fall. locked doors for fear of muggers, or a Even at current levels, crime–espe- park that many people are afraid to en- cially in poor African American com- ter after dark, may have a lower rate of munities–remains a ½rst-order social completed crime than a safer neighbor- problem, comparable in magnitude to hood or park simply because so many

116 Dædalus Summer 2010 fewer people are at risk. Even before the 250 percent of the crime rates prevalent Toward spectacular post-1994 crime decrease, in the early 1960s is less reassuring than fewer prisoners New York City had a relatively low bur- it would seem. I am not very old, but & less glary rate compared to other big cities. I am old enough to recall when Ameri- crime But the public impression that burglary can storefronts, unlike European store- risk was higher in New York was none- fronts, did not have metal shutters, and theless probably correct: as a visitor when middle-class parents did not re- could easily notice, New Yorkers were gard it as imprudent to allow their teen- habituated to being much more careful age children to ride late-night buses about burglary-proo½ng their homes through tough neighborhoods. If Amer- than was common in cities where bur- icans continued to be as careless about glary was less on residents’ minds. the risks of crime as they were forty-½ve The extent to which the fear of crime years ago, the rate of completed crime reflects mass-media choices about what would no doubt be substantially higher. sort of “news” to emphasize remains The loss of that carelessness–or rather, an open question. Certainly, there is no of a social environment that made that strong tendency for measures of fear to carelessness rational–is not a small loss, shift quickly with, or even in the same and it becomes no smaller if we blame it direction as, measured crime. But this on television news shows rather than on need not indicate that the fear itself is muggers. irrational or insensitive to the actual The fear of crime deprives the resi- crime risks prevalent in various social dents of high-crime neighborhoods of milieux, since victimization might fall economic opportunity by driving jobs precisely as a result of increased precau- away from the places where they live. tion. Whether the “spatial mismatch” be- If the level of precaution tends to rise tween the location of the unemployed with the criminal riskiness of the social and the location of un½lled jobs is an environment, and if precaution tends to important cause of high minority unem- reduce the rate of being victimized, then ployment remains a contested question, the measured changes in the rate of com- but there can be no doubt that having to pleted crime will tend to understate the commute farther to work is, at best, an changes in the underlying risk, especial- inconvenience, especially for teenagers ly when crime is increasing. For example, who would be working only part-time if the number of robberies doubles even and whose attachment to the labor mar- as potential victims are taking greater ket may be weak. Those disadvantages precautions against being robbed, then tend to accumulate, since teenagers with the rate of robbery per exposed person- less work experience become less attrac- hour–imagining that such a quantity tive employees as young adults. Worse could be measured–must have gone still, anything that makes licit employ- up even more. The flow of population ment less attractive will tend to make away from high-crime urban neighbor- its illicit alternatives more attractive; hoods and into lower-crime suburbs a criminal record can be a very substan- and exurbs means that the measured tial barrier to subsequent employment crime rate could fall even as the level in the licit economy. of risk in every area continued to rise. Poverty to crime to job loss to pover- The observation that the Great Crime ty to crime is a positive-feedback loop: Decline has left the country with “only” poor neighborhoods are often high-

Dædalus Summer 2010 117 Mark A.R. crime neighborhoods, high-crime neigh- more crime than do members of other Kleiman borhoods tend to be low-opportunity ethnic categories. Homicide provides on mass incarcer- neighborhoods, low-opportunity neigh- the most dramatic example: representation borhoods encourage criminal activity ing less than 15 percent of the popula- by their residents, and criminal activity, tion, African Americans suffer more in turn, makes the neighborhoods even than 50 percent of the murders. less attractive places in which to live and The problem tends to be self-sustain- do business and makes some of the resi- ing. Given a constrained criminal justice dents less attractive as potential employ- system, punishment per crime tends to ees. Loss of residents, especially the rel- be lower where crime is more common. atively prosperous residents most likely Assuming that the threat of punishment to be able to afford to move out, makes has some deterrent effect, growing up a neighborhood less attractive to retail where that threat is smaller–and licit businesses, and the loss of retail services economic opportunity less available– in turn makes the neighborhood a less should be expected, other things equal, attractive place to live for those who to lead to a higher rate of criminal activi- have other options. ty. Indeed, that is what we ½nd. African The economic geography of every met- Americans are far more heavily victim- ropolitan area provides testimony to the ized than others, but not as a result of importance of crime as a factor shaping cross-ethnic aggression; crime is over- residential and business location deci- whelmingly intraracial. sions. How else could one account for Paradoxically, then, efforts to reduce the coexistence of housing abandonment the racial disproportion in the prison and new housing construction only a few population are likely to intensify the im- miles apart? There are many reasons for plicit racial discrimination among vic- moving to the suburbs, but crime ranks tims that results from lower per-crime high on the list. The same applies to busi- rates of punishment, leaving African ness-location decisions. It would be un- Americans even more exposed to vic- conventional to insert a discussion of timization. The critique of the current crime control in a treatise on reducing system in terms of imposing prison sen- suburban sprawl, but it would not be tences and the consequent social stigma irrelevant. on a much higher proportion of African That poverty is a cause of crime is a Americans than of whites is fully justi- commonplace, though the mechanisms ½ed by the facts, but the mechanisms involved are complex and poorly under- involved are far more subtle than con- stood. That crime is a sustaining cause of scious, or even systemic, racial discrimi- poverty is no less true, though in the past nation by of½cials against African Amer- it has been remarked on much less. The ican perpetrators. poor are victimized directly; the proba- In some ways it would be better if, bility of criminal victimization falls with as is often asserted, systemic racial bias, income. They are victimized again as a in the form of more severe punishment result of crime-avoidance behavior that for African American offenders, lay at limits their opportunities and blights the root of the problem; then eliminat- their neighborhoods. ing racial bias could eliminate dispro- The picture is worst for African Amer- portionate incarceration. But if the actu- icans; even adjusting for overall lower al problem is the positive-feedback loop incomes, African Americans suffer much from high criminal activity to low pun-

118 Dædalus Summer 2010 ishment-per-crime back to high crimi- complicate the aftermath of some fu- Toward nal activity, no such ½x is available. The ture arrest. Those are precisely the sort fewer prisoners standard critique portrays a melodrama; of important but delayed consequences & less the reality is a tragedy. that impose suffering without changing crime behavior to any great extent. If crime and mass incarceration are That failure does not stem from the both great evils, then we should look laxity or laziness of probation of½cers– for ways to have less of both, for exam- though no doubt some probation of½- ple by substituting some other form of cers, like some workers in any job cate- punishment for incarceration to serve gory, are lax and lazy–but from the con- the twin functions of incapacitation and ditions under which they work. Typical- deterrence. If, as sociologist and anthro- ly, a big-city probation of½cer supervises pologist Bert Useem and economist Anne more than one hundred clients and is ex- Piehl argue, the rising scale of incarcera- pected to meet with each of them once a tion has brought its marginal crime-con- month. That schedule alone largely ½lls a trol bene½ts down close to–or in some working week, and the time required to instances below–zero, then to some prepare a violation report to send to the extent we could reduce mass incarcera- supervising judge is measured in hours. tion without increasing crime. But the So the number of referrals is constrained data do not suggest that 50 percent of by the of½cer’s time. The judge and the current incarceration is useless, and judge’s staff are also busy, and will not cutting our incarceration rate in half thank the probation of½cer for subject- would still leave it more than twice its ing them to a flurry of revocation mo- historical norm and more than twice tions. the level in any other advanced polity. Short of the threat of revocation, Probation and parole are the two sys- a probation of½cer’s leverage over a tems that manage convicted offenders client is limited. Only the judge can outside the walls of prisons and jails. order a term of con½nement; the pro- Fines, community service, diversion to bation of½cer (generally with the con- drug treatment or mental health treat- currence of a supervisor) can only use ment, and “restorative justice” programs moral suasion and impose additional all rely on probation and parole supervi- requirements, such as more frequent sion as their enforcement mechanism, meetings. But what if the client de½es without which they are no more than those requirements as well? helpful hints from a judge. Alas, that en- If a revocation motion is made, the forcement is generally very weak, and judge, too, has a limited repertoire of compliance with “alternative sanctions” sanctions. She can send the offender spotty at best. In California’s famous to prison or jail, usually for a period of Proposition 36 drug-diversion program, months but sometimes for years. She only about one entrant in four complet- can impose more onerous conditions ed the prescribed course of treatment, of supervision (which, again, the proba- and virtually none of the rest faced any tioner may well ignore). She can length- consequence for reneging on the bar- en the period of supervision, which is a gain they had made with the court, oth- noticeable inconvenience but one that er than the lost opportunity to have their doesn’t hit until sometime in the future. convictions expunged and the risk that None of these options is attractive. an outstanding bench warrant might Jails and prisons are crowded, and what-

Dædalus Summer 2010 119 Mark A.R. ever the probationer did to earn the ferred, the threat of even a mild sanction Kleiman conviction that underlies his probation can be potent if the consequence follows on mass incarcer- term, the violation of probation condi- the act swiftly and certainly. In Hawaii, ation tions is likely to be relatively trivial: a a judicial warning that the next positive missed meeting or a “dirty” drug test. drug test would draw an immediate jail To a judge who has just put someone term measured in days succeeded in vir- on probation for a burglary, sending tually ending drug use for more than someone else away for a mere “techni- three-quarters of a group of chronically cal” violation seems disproportionate, de½ant felony probationers, most of them unless that violation comes at the end methamphetamine users. The hard part of a very long string. (Sometimes a new was organizing the judge’s staff, the pro- substantive offense is handled as a vio- bation department, the sheriff’s of½ce, lation of probation rather than prose- the police, the jail, prosecutors, and de- cuted afresh; in those cases, a term be- fense counsel to deliver on that warn- hind bars is a more likely outcome.) ing when the rules were broken. (That As a result, the most likely conse- meant, for example, developing a two- quence for a probationer caught break- page, check-the-box or ½ll-in-the-blank ing a probation rule is a warning, either reporting form to replace the elaborate from the probation of½ce or (less often) motion-for-revocation paperwork; from the judge. If the probationer keeps since only a single violation is in ques- it up, at some point it will prove to be tion, very little information is needed.) the case that his previous “last warning” Half of the probationers in the pro- really was the last, and he will be on his gram–dubbed hope (Hawaii’s Oppor- way to, or back to, a cell. But such de- tunity Probation with Enforcement)– ferred and low-probability risks, though never faced an actual sanction; the they may cumulate to a great deal of pun- warning alone did the job. On average, ishment, do little to reduce the violation the group subjected to tight supervision rate. The lack of an immediate and high- spent about as many days in jail for pro- probability aversive consequence for a bation violations as a comparison group, violation helps sustain the high violation with more but shorter spells. But they rate, and the high violation rate in turn spent only about a third as many days guarantees that most violations will not in prison after revocations or new con- be sanctioned. This is simply the social victions, and had only half as many ar- trap of the neighborhood with a high rests for new crimes. crime rate and a low punishment risk The project now covers about 1,500 per offense, writ small; the communi- offenders, about one in ½ve felony ty corrections system reproduces the probationers on the island of Oahu; cruel and futile randomized draconian- the judge plans to expand it to 3,000, ism of the larger criminal-justice system. and intends to manage all of them him- (Parole supervision is tighter, though it, self, by contrast with a drug-court judge too, over-relies on severe sanctions, but who typically manages a caseload of 50 there are about ½ve times as many pro- to 75. Most of the participants, but by bationers as parolees.) no means all, are drug abusers; the process works just as well enforcing differ- Just as the threat of severe sanctions ent sets of rules on domestic violence is largely impotent at controlling behav- offenders and on sex offenders. The un- ior if the sanctions are uncertain and de- derlying process isn’t speci½c to drug

120 Dædalus Summer 2010 abuse; it applies basic principles of be- ers and parolees there would be no ur- Toward havioral change relevant to a wide range gency about responding to a mere sched- fewer prisoners of behaviors, as long as the behaviors ule violation; it would suf½ce for the pro- & less can be easily monitored. South Dakota’s bation or parole of½cer to be noti½ed the crime 24/7 program, which requires repeat next morning. As long as the offender drunken drivers to submit to twice-a- is still wearing the device, ½nding him day breathalyzer tests, has dramatically would pose no challenge, and the next reduced their risk of winding up in pris- day is soon enough for a sanction to be on for a third offense. effective. Commercial vendors now sell, for An emergency would arise only when $15 per month, a service that tracks the an offender removed the device; usually whereabouts of a gps monitor; parents that would mean he was planning either place them in their young children’s to commit a new crime or to abscond backpacks to be able to ½nd them when from supervision. But the police depart- they stray. One version of that service ment, already staffed 24/7, could respond provides “exception reporting”: after to those (presumably rare) events. the parent enters a weekly schedule of The operational challenges would be where the child is supposed to be at giv- legion: developing rules about impos- en hours of given days, the system sends ing and relaxing restrictions; ½guring a text message to the parent’s cell phone out what to do if the gps unit loses or email inbox if the child isn’t where contact with the satellite; dealing with he is supposed to be. false alarms; ensuring that the police Now imagine mounting such a unit on respond quickly and vigorously to aban anklet that can’t be removed without sconding; and managing the sanctions setting off an alarm. That would make hearings. But given the results from the whereabouts of an offender wearing hope, it’s a reasonable guess that 80 that anklet subject to continuous moni- percent, perhaps even 90 percent of toring. Comparing offenders’ position probationers and parolees would com- records with the locations of crimes re- ply with the system in the sense of not ported to the 911 system would make it shedding the gps device, and that they dif½cult for anyone wearing an anklet to would be highly compliant with rules get away with a new predatory offense. and commit very few new crimes. They Street gangs would not welcome the would probably also ½nd it much easi- presence of members whose location is er to secure employment–despite their transparent to the police. Such a system criminal records–once employers found would make it feasible to enforce cur- that they were not only certi½ed drug- fews, stay-away orders, “community free but also showed up for work every service” obligations, and requirements day under pressure from their probation to appear as scheduled for employment or parole of½cers. As a result, many few- or therapy, and to enforce home con½ne- er of them would wind up returning to ment as a sanction for violations of pro- prison. bation or parole conditions. Once probation and parole involved Unlike the expensive process of moni- that sort of monitoring, only a limited toring sex offenders, in which any stray- number of cases would justify using in- ing constitutes a potential emergency carceration: people who commit such and the system must therefore be staffed heinous crimes that justice demands it around the clock, for routine probation- (the Bernie Madoffs of the world), peo-

Dædalus Summer 2010 121 Mark A.R. ple whose demonstrated tendency for that cannot comply without profession- Kleiman assault or sexual predation requires their al help. It pays for itself several times on mass incarcer- incarceration to protect potential victims, over in reduced incarceration costs ation and those who, in effect, choose incarcer- alone, which means that cost need not ation by absconding. Everyone else could be a barrier to expansion if some way be adequately punished and largely inca- can be devised to recycle the savings to pacitated from reoffending with position the state budget from reduced incarcer- restrictions alone, backed by monitoring ation into the county budgets that bear and brief jail stays for violations. That most probation costs. could reduce the inflow to prison (both The implementation of this idea will by reducing the number of revocations vary from jurisdiction to jurisdiction and persuading judges to sentence more and from population to population. In felons to probation instead) and increase various ways, it could be applied to ju- the outflow from prison by encouraging venile offenders, probationers, parolees, parole boards to make more early-release and those released while awaiting trial decisions. Moreover, converting proba- either on bail or on their own recognition into a real punishment, rather than zance. For juvenile probationers in par- the placeholder for an absent punishment ticular, “outpatient” supervision under that it now largely is, would be expected tight monitoring backed with the threat to deter crime, reducing the inflows to of forty-eight hours’ solitary con½ne- both prison and probation. ment for each violation might succeed in squaring the circle of ½nding a pun- How far this process might go is any- ishment aversive enough to deter but one’s guess. But it would not be utterly not so damaging as to risk pushing a ju- fantastic to hope that the United States venile toward persistent criminality by might ½nd itself a decade or two from reducing his commitment to, and op- now with a European incarceration rate portunities within, the world of school and crime rates resembling those of the and licit work. 1950s. The project of what might be called The change could not be made over- “virtual” or “outpatient” incarceration night; each jurisdiction that adopts such cannot expect a universally warm wel- a system will need an operational “shake- come. In a criminal-justice-policy de- down” period. Furthermore, it is essen- bate that sometimes seems to take place tial that the program not outgrow its ca- between the disciples of Michel Fou- pacity to monitor and sanction; once of- cault and those of the Marquis de Sade, fenders come to believe that the threat it will be too intrusive for the foucauld- of quick incarceration is a bluff, their of- ians and not retributive enough for the fending will so swamp the system that it sadists. But for those not overly reluc- will become a bluff. tant to punish lawbreakers with some But other than the need for shaking months or years of a boring, go-to-bed- down and then phasing in, this approach early-and-show-up-for-work middle- has no natural upper limit. hope costs class lifestyle, and unwilling to accept about $1,400 per year on top of routine current levels of incarceration or of probation supervision, which is to say crime, the virtual prison cell offers the that it costs about twice what routine su- prospect of having less of both. pervision alone costs. Most of that excess With respect to the population not goes to drug treatment for the minority currently in prison, including pretrial

122 Dædalus Summer 2010 releasees and those newly placed on pro- supervision, get away with minor viola- Toward bation who would not have gone to pris- tions, ½nish their assigned terms, and fewer prisoners on otherwise, there is no doubt that the then go straight would ½nd the new sys- & less proposed system represents a further tem of tighter supervision intolerable, crime extension of state control over individ- commit repeated technical infractions uals. Whether that is desirable could leading to short con½nement terms, ab- be debated, with the answer depending scond, and wind up in prison. That risk in part on the empirical results in terms would be especially grave if the system of crime, days behind bars, and employ- were applied to misdemeanants in addi- ment, family, and housing status, and in tion to felons, since the misdemeanants part on the value one assigns to the lib- start out with a much lower level of pris- erty and privacy of the recently arrested on risk. (including their liberty to commit fresh But if the application of “outpatient offenses with impunity). In the some- incarceration” can be restricted to those what longer run–over a period of a few who would otherwise face, with high years–the result might be to reduce the probability, repeated spells of actual in- scope of direct state control by discour- carceration, then on balance it promotes aging offenses and thus reducing the not only public safety but the liberty and total size of the prison-jail-probation- life prospects of the offender population. parole-pretrial release population. There are worse fates than being forced Such a happy ending cannot be guar- to live a law-abiding life. anteed. The program has yet to be tried out on parolees; it is possible (though I would rate the probability as small) that massive absconscion and consequent return to prison would make it opera- tionally infeasible. It is more plausible that, in some jurisdictions, a combination of haste, under-resourcing, and administrative noncompliance would lead to program breakdown, with the supervised population discovering that, despite the threat, violation did not in fact lead swiftly and predictably to con- ½nement. If that happened, violation rates would surely soar, thus putting the program into a “death spiral” of increasing violation rates and decreasing swift- ness and certainty of sanctions. Prevent- ing such a breakdown is no easy task; managing the behavior of offenders is straightforward compared to managing the behavior of of½cials, and most of all the behavior of independent of½- cials such as judges. The other risk is that some offenders who, under the current system of loose

Dædalus Summer 2010 123 Robert Weisberg & Joan Petersilia

The dangers of Pyrrhic victories against mass incarceration

The term “mass incarceration” mer- control. To others, the word mass con- its careful scrutiny. It is a dramatic term, veys the sense of an epidemic, with spurring political and academic demands the implication that it is a self-generat- that the United States take account of, ing or self-reinforcing phenomenon that and seek to reverse, its decades-long com- may run beyond our control. But as dis- mitment to increased imprisonment. The cussed below, recent events suggest that term is justi½ably dramatic in two sens- the incarceration rate is far more subject es. First, the American use of incarcera- to control by very undramatic and mun- tion is, comparatively, an international dane changes in policy than the imagery anomaly and embarrassment. Second, may suggest. Finally, mass suggests num- the magnitude of the secondary effects bers that cannot bear any meaningful of incarceration in the United States has relationship to the legitimate goals of been so great as to constitute a structur- the criminal justice system. However, al change in our social, economic, and no particular measured incarceration familial life. rate is inherently unjusti½ed. The ques- But “mass incarceration” is also a melo- tion is whether some proportion of dramatic term, implying some things our incarceration is unnecessary or is about American criminal justice that not cost-bene½cial. It surely is, but the are not entirely true or are flatly untrue. degree of excess of disproportion is a To some, the term may signify conspira- complex matter to unravel, requiring torial governmental control, with fascis- us to consider the current social and tic or Stalinist implications. While incar- economic context of criminal justice as ceration in the United States has indeed it has evolved in recent decades, with inflicted horrendous and disproportion- a healthy respect for the force of path- ate effects on the poor and on minority dependence. Unfortunately, “unneces- groups, these harms stem far more from sary incarceration” or “inef½cient in- an accumulation of misguided policies carceration” is not much of a motivat- –and from negligence or reckless indif- ing phrase for reform movements. ference toward these harms–than from The evocative power of the term “mass any monolithic state strategy of political incarceration” is both a virtue and a vice. In this essay, we deliberatively tilt slight- © 2010 by the American Academy of Arts ly toward the vice side because we fear & Sciences the unintended consequences of the vir-

124 Dædalus Summer 2010 tue side. Our key concern is the implica- reentry and rehabilitation programs. The tion that if sheer mass is the main prob- Yet just as ½scal constraints were help- dangers of Pyrrhic lem, then there is inherent value in re- ing motivate a fresh look at prison popu- victories ducing the size of the mass. In the ab- lations, those constraints morphed into stract, having a smaller percentage of the drastic 2008 economic downturn, Americans in prison seems an undeni- which aborted many of the new reha- ably good thing. But that abstract truth bilitation commitments. does not mean that short- or mid-term California is the most notable exam- reduction is necessarily feasible or de- ple. After thirty years of steady increas- sirable per se. es in its prison population (sometimes The timing of the American Acade- by 20 percent in a single year), Califor- my’s project on The Challenge of Mass nia reached an all-time high of 173,500 Incarceration in America provides an prisoners in 2006. The population start- excellent occasion for considering the ed to decline in 2007 and has continued unintended consequences and hidden to drop, even while the general popula- risks of reducing the mass, because, tion of the state continues a slow and as it turns out, the growth curve of the steady increase. The August 2009 prison mass has altered even in the very short census was the same as it was in 2005: period since the project was conceived. about 166,500. That number is sure to decrease further in response to recent As recently as three years ago, pris- federal court orders mandating cuts in on populations were still increasing on the state’s thirty-three adult prisons to the incredibly steep curve of recent de- 137.5 percent of design capacity within cades. In twenty years, the sum of state two years. The cuts will reduce Califor- and federal prison populations increased nia’s prison population by approximate- from two hundred thousand to close to a ly forty thousand inmates. million-and-a-half, and academics and These facts hardly suggest that victo- other reformers decried the devastation ry over the social costs of mass incarcer- this increase wrought on family and so- ation is anywhere near. But they have cial relations, the labor market, public induced hope and provided some indi- health, and even the democratic voting cation of which political and economic franchise. Efforts were made to raise developments might feasibly emerge to public consciousness, and some states turn the imprisonment curve distinctly began to think about criminal justice in downward. The rise of the broad intel- the terms of rational regulatory cost- lectual movement against mass incar- bene½t analysis–to which criminal jus- ceration coincided about a decade ago tice had previously been immune. The with some interesting developments public still wants to incapacitate violent in a few states. Most notably, Massachu- offenders, especially sex offenders, but setts and New York began reconsidering it has exhibited some softening of atti- their Rockefeller-era drug laws, and very tude toward those perceived as nonvio- fruitful, below-the-radar political truces lent drug offenders. As a result, the pris- in the tough-on-crime demagoguery wars on population curve has flattened, and made partial repeal of these laws possi- in some states prison populations have ble. These subtle and salutary political been decreasing slightly. Some of the re- developments mixed some degree of ½s- cent policy changes have been accompa- cal concern with moral embarrassment nied by a sensible new commitment to over the social costs of mandatory sen-

Dædalus Summer 2010 125 Robert tences. The developments were general- response to a sense of mass exigency. In Weisberg ly not crisis-driven, and because they were this regard, an important recent paper & Joan Petersilia changes in crime de½nition or statutory reminds us that just a few years ago, the on mass sentencing, they became rooted in the state of California, under its most famous incarceration larger criminal justice infrastructure of conservative governor, Ronald Reagan, the state. Simultaneously, some states was motivated and able to change its sen- made remarkable progress in deploying tencing and correctional laws so as to re- sentencing commissions to apply cost- duce its prison population by as much as bene½t rationality in sentencing and cor- a third.3 On the other hand, the recent rections. Some of the most promising flattening of prison populations has so progress was made in the South, such as far been short-term and slight. While in North Carolina, which saw the emer- flattening of the curve reinforces the gence of a once unimaginable bipartisan oft-forgotten idea that America is capa- move toward cost-bene½t rationality. ble of reducing its sentencing require- Moreover, empirical studies of some of ments and imprisonment rates, we also the commission guidelines systems sug- must remember the problem of path- gest that they can signi½cantly reduce dependence. Whatever caused our pris- racial and geographic inequities in sen- on population to reach such remarkable tencing across counties within a state.1 heights, the absolute size of the reduc- Whatever the synergy between intel- tion now needed to mimic the percent- lectual movements and policy change, ages of earlier reductions–reductions we have recently begun to see some less- achieved off a much smaller base–may ening of the earlier political demagogu- be institutionally and politically infea- ery around crime as well as greater re- sible. Even if dramatic reductions can spect for the worthiness of investment occur, they may be illusory if the policy in rehabilitation and reentry. Polling changes that prompt them are super½- suggests that the public is at least slight- cial in ways that might guarantee a new ly less passionately in favor of prison cycle of prison increases in the future. and long sentences as the solution to We believe there is a grave risk of back- the crime problem, especially because ½re if advocates attempt to reduce mass we now have less of a crime problem. incarceration simply for the sake of re- Politicians do not want to credit the reduction rather than coupling advocacy cent econometric studies suggesting with a full consideration of the causes that the post-1985 spike in incarceration of recidivism. Indeed, even if small in- probably accounts for no more than a creases in crime by released prisoners, quarter of the 1990s crime drop2; but parolees, or probationers diverted from it has been bene½cial for the movement prison are not statistically meaningful, against mass incarceration that crime they may reignite the political dema- is currently a less salient public issue. goguery that contributed to mass in- The implications of this slight alter- carceration in the ½rst place. ation in the prison population curve are While the time may be ripe for mod- important, multiple, and subtle. For one, est optimism, the emphasis should be the alteration casts doubt on the view of on modesty. The inertial and self-rein- mass incarceration as a force of nature in forcing effects of the prison boom may American life that either cannot be con- be so strong that even signi½cant changes trolled or can be controlled only by revo- in public and political opinion will not lutionary structural changes wrought in permit dramatic unraveling of the last

126 Dædalus Summer 2010 few decades in the next one or two. But identify those who should be targeted; a The these effects also caution us to consider combination of surveillance and work/ dangers of Pyrrhic both the good and bad ways (measured education; incentives to keep people in victories in the long term) that victory can be the program; and swift, certain punish- achieved in the nearer term. ment for those who violate probation and parole or who continue to commit Reformers attacking mass incarcera- crime. The programs would be operat- tion tend to decry the much-noted turn ed collaboratively by law enforcement in American criminal justice from an and corrections of½cials, backed with older rehabilitation model toward a assistance given to family members who model based on harsh retribution and would be part of the intervention, as incapacitation. They also tend to val- well as the innovation of reentry courts. orize so-called alternative sanctions. The literature tells us convincingly that More recently, they have (justi½ably) this approach is the most ef½cacious one promoted the notion of risk-needs as- to enhance public safety and prisoner sessment as a key tool of rational cost- reentry at the same time. However, we bene½t analysis in criminal justice. But now risk getting only a half-loaf: the re- the key historical lesson is the complex lease but not the necessary reentry pro- and sometimes contradictory relation grams. among these principles and goals–a If prison populations decrease dramat- lesson that is lost when these principles ically in the next few years, it will make and goals are super½cially and sentimen- a big difference in the long run to know tally blurred together. If rehabilitation what causes the decrease in the short run. is a nobler goal for incarceration than The lessons of previous alternative sanc- retribution, it still requires some sort tions movements are highly admonitory. of incarceration and does not by itself Alternative modes of sentencing and in- have any short- or mid-term effect of carceration are very different from pris- reducing prison populations. If rehabil- on-reduction policy directives per se. itation is carried out through interme- Earlier movements sometimes proved diate sanctions, then it is not necessar- futile because investment in the logis- ily at odds with prison reduction if it tics and the research basis for the alter- is done the right way. But the recent native sanctions was often neglected, aborted national experiment in inter- as if the moral attraction to alternative mediate sanctions proves that it is puz- sanctions caused policy-makers and re- zlingly easy to implement alternative formers to ignore the hard and expen- sanctions in the wrong way. sive work the sanctions require.4 An- The original–and continuing–ad- other cautionary example is the much- vocates of alternative sanctions have noted analogy to the mental hospital compiled a body of information in a deinstitutionalization movement in new and re½ned “what works” litera- the 1970s. That the terrible hospitals ture. It was always the intent of these were closed was a triumph of good sci- social scientists and advocates that if ence and smart politics. But the conse- prisoners were released, the release quences in some places were horrible, would be coupled with community- in part because the irresistible mantra based plans to help them in their re- of treating the mentally ill in “the com- integration. Those plans would make munity” ignored the problem that there use of actuarial risk assessments to often was no “community.” In reality,

Dædalus Summer 2010 127 Robert there was inner-city slum public hous- • isps were seldom used for prison diver- Weisberg ing, which soon became a psychiatric sion, but rather to increase the supervi- & Joan 5 Petersilia ghetto. sion of those already on probation. on mass There is a direct parallel between our • The “casework” portion of isps was incarcer- prison-crowding situation today and the ation never implemented because there was predicament the United States found insuf½cient funding and political will. itself in during the mid-1980s, the hey- The surveillance side (drug testing, day of the intermediate sanctions move- electric monitoring) was fully implement. The movement was motivated mented, turning the isp into a net- very speci½cally by horrendous crowd- widening mechanism that simply ing problems in the Southern states to- increased returns to prison. gether with a poor regional economy. In some ways, it was forced on the states by • Because isps did not reduce prison Eighth Amendment cruel-and-unusual populations, prisons costs increased punishments litigation, anticipating the along their natural vector. As a result, current situation in California. When isps were deemed failures as cost- the courts ordered the states either to savers and were generally dismantled build new facilities or ½nd some other between 1995 and 2000. way to punish offenders, the states had Many isps that were begun with great to be creative because they lacked mon- optimism and political fanfare were dis- ey for prison construction. The result continued after just a few years because was a set of innovations in alternative they failed to reduce prison commitment sanctions: Georgia, for example, devel- rates. Retrospective analysis of the na- oped an intensive supervision program tional experiment showed that isps sel- (isp) for probationers. Its self-evalua- dom followed a theoretical model sup- tion yielded some evidence that Geor- porting rehabilitation, and even when gia’s isp participants had very low re- they did, they were insuf½ciently funded cidivism rates, and the apparent lesson to deliver adequate programs. isps (at was that the isp had saved the state the that time) were funded at about $2,000 cost of two new prisons. These ideas to $5,000 per year, per offender. Effec- spread, and by the mid-1990s virtually tive rehabilitation programs, particular- every state had passed some kind of leg- ly for substance abusers, were estimat- islation for intermediate sanctions. ed to cost about $10,000 to $15,000 per Probation and parole departments year, per offender. Clearly, the programs across the country implemented isps. were insuf½ciently funded for the kinds The programs were meant to reduce of help they were designed to provide. caseloads, keep a closer watch on of- One result of the 1990s intermediate fenders, and offer more support ser- sanctions movement was a backlash in vices. The hope was that prison-bound support for rehabilitation programs and offenders would be “diverted” from alternative community sanctions. In- expensive prison cells to more inten- stead of demonstrating that nonprison sive community programs. What were sanctions could decrease commitments the overall results? There is a settled to prison, some of the isps showed just body of research that has evaluated the opposite: implementing intensive isps of the mid-1990s; these are the probation and parole supervision result- key conclusions from that research: ed in increased prison commitments.

128 Dædalus Summer 2010 Some supporters of prison buildup e½ts thereof. The civil rights movement The used this evidence to argue that alter- ran the risk of not succeeding according dangers of Pyrrhic natives had been tried and that they to some expectations, but it did not run victories did not work. It was a recycling of the the risk of failing in the way that prison 1960s nothing-works phenomenon, reduction could. If the hard work is not but this time buttressed with more rig- done, we may face another round of orous experimental evaluation data. back½re, disillusionment, and suscepti- Within a short decade, isps went bility to political demagoguery. from being “the future of American From one perspective, alleviating mass corrections” (according to The Washing- imprisonment hinges on rehabilitation ton Post6) to a failed social experiment. and reentry programs that can make re- In the end, the author of the national integration possible and can truly lower isp evaluation lamented that the em- recidivism. From another, it is a matter pirical evidence regarding intermediate of undertaking tough, smart triage in sanctions is decisive: without a rehabili- sorting prisoners for release and in de- tation component, reductions in recidi- ciding which prisoners are amenable vism are elusive.7 This lesson may well to which forms of alternative sanction. repeat itself if advocates focus solely on We know much more today about how the goal of reducing mass incarceration to identify the subset of offenders who without advocating simultaneously for a will truly bene½t from rehabilitative suf½cient infusion of funds to help crim- programming, and we should not waste inal offenders become law-abiding citi- taxpayer monies on those who will not. zens. The rehabilitation programs themselves will have to be run by very well-trained, Campaigns against mass imprison- and therefore very expensive, function- ment have varied motives and sources. aries who know how to rely on the avail- These motives and sources are not nec- able evidence-based protocols for mea- essarily mutually inconsistent, but the suring and predicting the potentially differences counsel caution. It is perfect- dangerous and for adjusting practices ly right to view mass incarceration as a to ½t with different kinds and degrees civil rights disaster and a national mor- of supervision. It will require recogniz- al embarrassment. The implications of ing that drug rehabilitation and other mass incarceration in terms of inequal- cognitive behavioral programs are very ity of social and economic opportuni- hard work and that they normally take ty are as wide and foundational as the months of engaged commitment by of- concerns about social and economic op- fenders to succeed. portunity that motivated the civil rights Thus, a strictly morals-driven ap- movement of the 1960s. But if that un- proach to mass incarceration risks deniably valid characterization of mass ignoring these crucial mine½elds in incarceration fuels a mostly “liberation- criminal justice reform. But the appar- ist” approach to reducing incarceration, ently opposite motivation for reform, it runs the risk of terrible back½re. Its coldly pragmatic concerns about eco- bene½ciaries, at least in the short run, nomics, is risky in its own way. It is will be millions of young men who may good for politicians to view criminal be relieved of the immediate burden of justice more as a regulatory system formal state custody but will hardly be subject to cost-bene½t analysis than prepared to enjoy all the potential ben- as a temple of political theology. In

Dædalus Summer 2010 129 Robert this regard, the emerging ½scal concerns Many reformers promote the princi- Weisberg of a few years back that pushed politi- ple of risk-needs assessment as a tool & Joan Petersilia cians in a more regulatory direction were of criminal justice policy; in doing so on mass salutary. However, if ½scal concern be- they move beyond blind belief in the incarceration comes too self-justifying a motivator for value of prison reduction per se. But criminal justice reform, it will prove just even here, there is a risk that reform as dangerously shortsighted as the liber- will only pay rhetorical fealty. In Sep- ationist approach, especially now that tember 2009, California released the modest ½scal concern has turned into a results of its actuarial prediction instru- huge ½scal exigency in the states. ment, known as the California Static Recent events in California illustrate Risk Assessment (csra).8 The results this truth all too well. For the ½rst time showed that of the 148,706 prisoners in recent memory, the prison population considered in the csra, almost 76 per- is declining in California; recent legis- cent had a moderate-to-high risk to relative budgets, interacting with feder- offend. A detailed analysis by criminol- al court intervention, will force further ogist Susan Turner and her colleagues declines. For those who decry mass in- shows that within the moderate risk carceration, there is a dangerous temp- group, 69 percent can be expected to tation to see this reduction as a possible be rearrested for a felony within three silver lining to the economic crisis. Al- years of their prison release (22 percent though it has arisen partly because of for a violent felony). Within the high the federal court injunction and part- risk group, 82 percent are predicted to ly because of deep-seated constitution- be rearrested for a felony within three al obstacles in the structure of Califor- years (38 percent for a violent felony).9 nia’s government, it may well be the California prisoners have high needs, reality of ½scal disaster that will lead to most of which go untreated during in- further reductions in prison overcrowd- carceration. Two-thirds of all prisoners ing. But a dysfunctional political econo- were identi½ed on the csra as having my brought the state to this ½scal disas- a moderate-to-high substance abuse ter, and that dysfunction will survive the risk, and nearly half (45 percent) exhib- imminent prison reduction. Just as the ited moderate-to-high anger problems. legislature reluctantly accepted a very Yet in 2009, when the prison population compromised prisoner reduction plan– equaled more than 170,000, there were mostly a parole reform plan–to satisfy just 11,000 substance abuse treatment both the courts and the accountants, it slots and just 200 anger management also took the perverse next step of slash- treatment slots in California prisons. ing hundreds of millions of dollars from California has no sex offender treat- adult prison and parole rehabilitation ment in prisons despite the fact that programs. Thus large prisoner release about 9 percent of the California pris- orders may facilitate only an interim on population is serving a current term prisoner reduction, because if nothing for a sex crime conviction.10 Similar changes in the determinate sentencing treatment scarcity exists in California’s and parole laws, no bureaucratic alter- parole system: in July 2009, there were ation in parole supervision practices just 521 substance abuse treatment slots will delay for long a massive return of for the 128,554 parolees coming home.11 released people to prison, if they remain In the September 2009 report, Califor- criminally active. nia’s Inspector General called the re-

130 Dædalus Summer 2010 sults “expected and alarming” and urged prison population may end up being The increased investment in the state’s re- blamed–sometimes wrongly, but some- dangers of Pyrrhic habilitation programs. The report con- times rightly–for the outcomes. The victories cludes, “Without consistent funding and current situation may provide another support for rehabilitative programming, opportunity to set alternative sanctions lasting reform can never be achieved.”12 and reentry support on the right course. Ironically, just two days after that re- But if we fail in this respect yet again, we port was released the state legislature might face awful recidivism in the com- passed a budget slashing prisoner edu- ing years, and we will enter another dis- cation, drug treatment, and job train- mal cycle in which “nothing works” will ing programs. The cuts, totaling more be the old-new mantra. than $250 million, represent more than Rather than speaking of mass incar- a third of the previous year’s entire bud- ceration, we should rede½ne our terms get for adult prison programs. Prison and focus on curtailing unnecessary in- substance abuse programs will be short- carceration. Liberal reforms often pay ened to three months (compared to rhetorical fealty to the trope of “public the current six to thirty-six months) safety.” If incarceration is to become of treatment, and treatment staff will a rational tool of social regulation, re- be reduced by 50 percent. Traditional formers will have to be more than rhe- classroom education will be replaced torical in acknowledging that many, or by “self-directed” programs, and the perhaps most, people convicted of seri- classroom instruction that does remain ous crimes need to spend a portion of will often be taught by volunteers and their lives behind bars. However mis- inmate teaching assistants, resulting guided and excessive were the harsh in teacher layoffs numbering between new criminal laws and determinate sen- six hundred and eight hundred. Parol- tencing systems created thirty years ago, ee programs are being similarly deci- the justifying purposes of retribution, mated, with reductions in day report- incapacitation, and deterrence still have ing centers, reentry partnerships, and moral and utilitarian purchase. To put it residential multiservice centers. Public differently, on the one hand, given the safety is at serious risk if release of mod- history of racial and economic injustice erate- and high-risk offenders is done in America, a deep and plausible moral without regard to reentry. But it is also argument can be made that great num- at risk when reentry is done but done bers of people now in prison do not de- badly, especially at a time when unem- serve to be there, nor, in a similar sense, ployment is increasing. This compound- has American society earned the right ing factor puts parolees in competition to keep them there. On the other hand, with free citizens for jobs and bene½ts when government makes choices at par- that are already scarce. ticular decision points within the crim- California is not alone in this regard. inal justice system, from apprehension While prison and parole populations are to prosecution to trial to sentence, those decreasing across the United States, the choices are only to a limited degree the very programs necessary for success in causes of mass incarceration; they are reentry are disappearing. We can choose also the effects of the deeper causes of our favorite metaphoric cliché: this is mass incarceration. Just as deliberate a perfect storm, a recipe for disaster, a governmental decisions to imprison crash-and-burn scenario. Reductions in are not necessarily the dominant cause

Dædalus Summer 2010 131 Robert of the problem, the simple decision not Some of it has been state-of-the-art Weisberg to imprison cannot itself be the domi- econometric analysis of the highest & Joan Petersilia nant solution. level, but usefully translated into strik- on mass Alternative nonprison sanctions may ing inferences about the searing social incarceration prove very cost-ef½cient for the state and and economic secondary punishments salutary for society because they mitigate that mass incarceration has wrought. the metastatic effects of imprisonment The study of mass incarceration has on the economic and social lives of ex- been a major interdisciplinary phenom- inmates. Therefore, they will morally enon in American academia, and it has mitigate, if not justify, the costs of crim- been rare in that it aligns with and has inal prosecution. The notion of alterna- greatly influenced the public’s view of tive sanctions, however, poses the risk the criminal justice system. It deserves of inducing reformers to view it senti- much of the credit for the fresh look mentally. Nonprison sanctions are still American society is taking of the con- sanctions that often involve serious re- dition of its sentencing laws and cor- strictions on liberty and movement. rectional systems. They also entail intrusions on privacy But a key lesson of the history of because law enforcement of½cers who criminal justice reform is that academ- are monitoring probationers, parolees, ics must pay their dues on the less mag- and the like have enhanced powers of isterial, more mundane side of the is- search and seizure, and these of½cers sues as well. Those interested in trans- have many behavioral criteria beyond lating the “what works” literature into the strict test of probable cause to justi- operational programs must make cer- fy the intrusions.13 Some of the most tain that the programs are implement- promoted forms of alternative super- ed fully and coherently, not dismantled vision, from the halfway house to the or watered down through the political much-touted global positioning sys- process in ways that undermine their tems (gps), involve the “carceral dis- effectiveness. This fact certainly does cipline” often decried by social critics not deny the great value of the work as the modern culture of control (to use already done; indeed, that work will sociologist David Garland’s words) or as complement the new studies. Academ- “governing through crime” (legal schol- ics must now recognize that the gritty, ar Jonathan Simon’s words). In effect, detailed work of ½guring out how to do we may have a triumphantly broad read- reentry right is part of their professional ing of the Eighth Amendment that toss- obligation. This task will entail ground- es us against a very narrow reading of level, state-by-state studies to determine the Fourth Amendment. which programs work in prisons, which ones work outside prisons, which pris- The voluminous recent scholarship on oners can be helped and which cannot: mass incarceration, including the work all the questions on which policy-mak- of all the authors in this issue, has been a ers and front-line of½cials need urgent brilliant intellectual achievement. Some guidance. of it takes the form of broad social theory, with magisterial, historical sweep. Some of it partakes of American-studies cultural analysis, focusing on the strange variety of American “exceptionalism.”

132 Dædalus Summer 2010 endnotes The dangers of 1 John F. Pfaff, “The Continued Vitality of Structured Sentencing Following Blakeley: The ucla Pyrrhic Effectiveness of Voluntary Guidelines,” Law Review 54 (2006–2007): 235. victories 2 Steven Levitt and William Spelman have assessed the size of these elasticities relative to the drop in violent crime over the 1990s, both concluding that about 25 percent of the violent crime drop can be attributed to the increased use of incarceration. See Steven D. Levitt, “Understanding Why Crime Fell in the 1990s: Four Factors that Explain the De- cline and Six that Do Not,” Journal of Economic Perspectives 18 (1) (2004): 163–190; and William Spelman, “The Limited Importance of Prison Expansion,” in The Crime Drop in America, ed. Alfred Blumstein and Joel Wallman (New York: Cambridge University Press, 2000). 3 Rosemary Gartner, Anthony N. Doob, and Franklin E. Zimring, “The Past is Prologue? Decarceration in California Then and Now,” unpublished working paper. 4 For a review of these results, see Joan Petersilia, “A Decade of Experimenting with Inter- mediate Sanctions: What Have We Learned?” in Perspectives on Crime and Justice: 1997– 1998 Lecture Series (Washington, D.C.: National Institute of Justice, 1998); and Joan Peter- silia and Susan Turner, “Intensive Probation and Parole,” in Crime and Justice: An Annual Review of Research, ed. Michael Tonry (Chicago: University of Chicago Press, 1993). 5 Robert Weisberg, “Restorative Justice and the Dangers of ‘Community,’” Utah Law Review (2003): 343, 363–368. 6 Kathy Sawyer, “Tougher Probation May Help Georgia Clear Crowded Prisons,” The Wash- ington Post, August 16, 1985. See also Dudley Clendinen, “Prison Crowding in South Leads to Tests of Other Punishments,” The New York Times, December 18, 1985. 7 Joan Petersilia, “A Decade of Experimenting with Intermediate Sanctions: What Have We Learned?” Federal Probation LXII (2) (1998). 8 California Rehabilitation Oversight Board, Biannual Report (Of½ce of the Inspector Gen- eral, State of California, September 15, 2009), http://www.oig.ca.gov/pages/c-rob/reports .php (accessed January 4, 2010). 9 Susan Turner, James Hess, and Jesse Jannetta, “Development of the California Static Risk Assessment Instrument (csra)” (University of California, Irvine, Center for Evidence- Based Corrections, November 2009), http://ucicorrections.seweb.uci.edu/pubs (accessed January 4, 2010). 10 Prison Census Data, “Characteristics of Inmate Population” (California Department of Corrections, August 2009), http://www.cdcr.ca.gov/Reports_Research/Offender _Information_Services_Branch/Offender_Information_Reports.html. 11 California Rehabilitation Oversight Board, Biannual Report. 12 Ibid., 11. 13 United States v. Knights, 534 U.S. 112 (2001).

Dædalus Summer 2010 133 Glenn C. Loury p

Crime, inequality & social justice

Crime and punishment are certainly critical observations of my own about contentious topics, and the authors gath- crime, inequality, and social justice. ered in this issue do not always agree with One principal point of disagreement p one another. For my own part, I must among contributors to this volume has confess to having a personal stake in this to do with how the fact of mass incar- issue. As an African American male, a ceration relates to the social problem baby boomer born and raised on Chica- of crime. Mark Kleiman claims that mass go’s South Side, I can identify with the incarceration is only a partial problem plight of the urban poor because I have de½nition; the other part of the problem lived among them. I am tied to them by is crime. This stance is in sharp contrast the bonds of social and psychic af½liation. to that of Loïc Wacquant, who insists I myself have passed through the court- that “hyperincarceration” (his preferred room and the jailhouse on my way along term, since only those living in the lower life’s journey. I have twice been robbed social strata face much risk of imprison- at gunpoint. I have known–personally ment) isn’t really about crime at all. Rath- and intimately–men and women who er, he says, it’s about “managing dispos- lived their entire lives with one foot on sessed and dishonored populations.” either side of the law. Whenever I step to There is merit in both viewpoints. There a lectern to speak about incarceration, I can be no doubt that public ideas about envision voiceless and despairing people crime–especially fears of violent victim- –both offenders and victims–who would ization–have fueled the imprisonment have me speak on their behalf. Of course, boom. To speak of a crisis of mass im- personal biography has no authority to prisonment without reference to crime compel agreement about public policy. is, indeed, to address only one part of the Still, I prefer candor in such matters to a problem. After all, declarations of “war” false pretense of clinical detachment and against crime (and, most noticeably, scienti½c objectivity. While I recognize against criminals) are a primary means that these revelations will discredit me by which political aspirants now signal in some quarters, that is a fate which I their bona ½des to their electorates. The can live with. Allow me to share a few long upward trend in crime rates from p the mid-1960s to the early 1980s “primed © 2010 by the American Academy of Arts the penal pump” by hardening attitudes & Sciences and discrediting liberal criminal justice p

134 Dædalus Summer 2010 policies. It is certainly the case, therefore, prisonment for African Americans. Cer- Crime, that the steep rise of imprisonment in the tainly there is little doubt that those who inequality & social United States is closely intertwined with commit violent crimes should be pun- justice the social experience and political sa- ished, regardless of race. If more Afri- lience of crime in American life. We can- can Americans commit such offenses, not understand the one without thinking more will be imprisoned, and no issues carefully about the other. Nor can we per- of impropriety would be raised thereby. suade voters to undo the one without ad- Yet it is signi½cant that the racial dispar- dressing their concerns about the other. ity of imprisonment rates has increased Yet evidence suggests that changes dramatically since the prison boom be- over time in the scale of incarceration gan, largely because of the “war on drugs.” have not been caused in any direct way African Americans were vastly overrep- by changes in the extent of criminal be- resented among persons incarcerated for havior. Indeed, linkages between prisons drug offenses during the 1980s and 1990s, and crime have been anything but sim- even as African Americans were no more ple and direct. Prison populations have likely to be using or selling drugs than been on the rise steadily for more than whites. Moreover, despite a sharp drop three decades. However, crime rates in- in violent crime rates, starting in the ear- creased in the 1970s; fell, then rose again ly 1990s and extending to the present, ra- in the 1980s; and increased before sharp- cial differences in imprisonment rates ly decreasing again in the 1990s. For two have begun a slight decline only in the generations, crime rates have fluctuated last few years. with no apparent relationship to a steady As for the links between imprisonment climb in the extent of imprisonment. and public safety, the widely held notion Today, with prison populations as large that one prevents crime by incapacitating as they have ever been in American his- criminals is simplistic. It fails to take ac- tory, crime rates are about the same as count of the fact that for many crimes– they were in 1970, when a then-falling selling drugs, for instance–incapacitated U.S. prison population reached its lowest criminals are simply replaced by others, level in a generation. Prisons and crime there being no shortage of contenders cannot be rightly understood simply as vying for a chance to enter the illicit trade. opposite sides of the same coin. Incar- (It also ignores the reality of criminal vic- ceration does not exhaust the available timization within prisons–no small mat- means of crime control. Nor does crim- ter.) Furthermore, by adopting a more inal offending directly explain the pro- holistic view of the complex connections found qualitative institutional transforma- between prisons and communities, we tion that we have witnessed in the Unit- can immediately recognize the signi½- ed States over the past two generations.1 cance of the fact that almost everyone Further, the trend of racial disparity in who goes to prison is eventually released, imprisonment rates cannot be accounted most after just two or three years. Evi- for as a consequence of changes in rates dence suggests that for these hundreds of of offending over time. Crime rates, es- thousands of ex-offenders released each pecially for violent offenses, have always year, time behind bars will have dimin- been higher among African Americans ished, not enhanced, their odds of living than whites in the United States. This crime-free lives: by lowering employabil- long-term disparity goes far toward ex- ity, severing ties to communal supports, plaining the historical fact of greater im- and hardening attitudes.

Dædalus Summer 2010 135 Glenn C. Thus, the impact of high incarceration tin need not stay in San Quentin.” Nor Loury rates on the sustainable level of public does the evidence afford us much com- on mass incarcer- safety over the long term is ambiguous. fort in the thought that, at the very least, ation The fact–amply demonstrated for the a threat of imprisonment will deter fu- case of Chicago by Robert Sampson and ture would-be offenders from breaking Charles Loeffler in this volume–that in- the law. Among children exposed to an carceration in large American cities is so incarcerated parent or sibling–young- highly concentrated means that the ill sters who can be assumed to have ½rst- effects of having spent time behind bars hand knowledge of the penalties associ- may diminish the social opportunities ated with lawbreaking–the likelihood of others who reside in the most heavily of their eventual incarceration is actual- impacted communities and who them- ly higher, not lower, than is the case for selves have done nothing wrong. Spatial otherwise comparable children with no concentration of imprisonment may fos- such exposure, which attests to the weak- ter criminality because it undermines the ness of the deterrent effect of the sanc- informal social processes of order main- tion. Furthermore, in a careful review of tenance, which are the primary means of the econometric evidence on this ques- sustaining pro-social behavior in all com- tion, economist Steven Durlauf and pub- munities. In some poor urban neighbor- lic policy expert Daniel Nagin conclude: hoods, as many as one in ½ve adult men The key empirical conclusion of our lit- is behind bars on any given day. As the erature review is that there is relatively criminologist Todd Clear has written, little reliable evidence for variation in “[T]he cycling of these young men the severity of punishment having a sub- through the prison system has become stantial deterrent effect, but there is rela- a central factor determining the social tively strong evidence that variation in ecology of poor neighborhoods, where the certainty of punishment has a large there is hardly a family without a son, deterrent effect. . . . One policy-relevant an uncle or a father who has done time implication of this conclusion is that in prison.”2 This ubiquity of the prison lengthy prison sentences, particularly experience in poor, minority urban neigh- in the form of mandatory minimum borhoods has left families in these places type statutes such as California’s Three less effective at inculcating in their chil- Strikes Law, are dif½cult to justify on a dren the kinds of delinquency-resistant deterrence-based crime prevention basis.3 self controls and pro-social attitudes that typically insulate youths against lawbreaking. As Clear concludes from Disparities by social class in this pun- his review of the evidence, “[D]e½cits ishment binge are enormous, and they in informal social controls that result have far-reaching and often deleterious from high levels of incarceration are, in consequences for the families and com- fact, crime-promoting. The high incar- munities affected. The prisoners come ceration rates in poor communities de- mainly from the most disadvantaged cor- stabilize the social relationships in these ners of our unequal society; the prisons places and help cause crime rather than both reflect and exacerbate this inequal- prevent it.” ity. The factors that lead young people The relationship between prison and to crime–the “root causes”–have long public safety is complicated in view of been known: disorganized childhoods, the fact that “what happens in San Quen- inadequate educations, child abuse,

136 Dædalus Summer 2010 limited employability, delinquent peers. are held in prisons than belong to unions Crime, These are factors that also have long been or are enrolled in any (other) state or fed- inequality & social more prevalent among the poor than the eral social welfare programs. They esti- justice middle classes, though it has for some mate that nearly 70 percent of African time been unfashionable to speak of “root American male dropouts born between causes.” Nevertheless, as Bruce Western 1975 and 1979 will have spent at least one stresses in his comprehensive empirical year in prison before reaching the age of survey of this terrain, “punishment” and thirty-½ve. “inequality” are intimately linked in mod- Given the scale of imprisonment for ern America, and the causality runs in African American men, and the troubled both directions.4 history of race relations in this country, Racial disparities in the incidence of it can be no surprise that some observers incarceration are also huge. The subordi- see the advent of mass incarceration as nate status of African American ghetto- the catalyst for a new front in the long, dwellers–their social deprivation and historic, and still incomplete struggle for spatial isolation in America’s cities–puts racial justice.5 Because history and polit- their residents at great risk of embracing ical culture matter, considering the factor the dysfunctional behaviors that lead to of race is crucial to a full understanding incarceration. Also, it is quite clear that and evaluation of our current policy re- punishment policies serve expressive, not gime. It is true that slavery ended a long merely instrumental, ends. Americans time ago. But it is also true that an ideolo- have wanted to “send a message,” and gy of racial subordination accompanied have done so with a vengeance. In the the institution of African slavery, and this midst of such dramaturgy–necessarily racial ideology has cast a long shadow. so in America–has lurked a potent racial Thus, in his recently published history of subplot. Inequalities by race in the realm the entanglement of race with crime in of punishment exceed those found in just American political culture at the turn of about any other arena of American social the twentieth century,6 historian Khalil life: at roughly seven to one, the black- Muhammad contrasts the treatment of white ratio of male incarceration rates two related, but differently experienced, dwarfs the two to one ratio of unemploy- phenomena: crime by newly arrived Eu- ment rates, the three to one nonmarital ropean immigrants and crime by African child-bearing ratio, the two to one black- Americans. Looking at the emergent sta- white ratio of infant mortality rates, and tistical social-science literatures of that the one to ½ve ratio of net worth. (The period, Muhammad makes clear that the homicide rate is a noteworthy exception prevailing ideological climate in the Unit- to this generalization about racial dis- ed States at that time led analysts and crit- proportions. For twenty- to twenty-nine- ics to construe the many problems of ur- year-old males, the black-white ratio has banizing and industrializing America in been in the neighborhood of ten to one in distinct ways. In essence, poor, white city- recent years.) It is of some political sig- dwelling migrants were understood to be ni½cance that, for young African Ameri- committing crimes, but the poor African can men, coercion is the most salient fea- Americans migrating to those same cities ture of their encounters with the Ameri- were seen as inherently criminal. can state. In this issue, Bruce Western Our unlovely history of race relations and Becky Pettit report that more Afri- is linked to the current situation, both as can American male high school dropouts a matter of social causation–since the

Dædalus Summer 2010 137 Glenn C. structure of our cities, with their massive tures that were created and have persist- Loury racial ghettos, is implicated in the pro- ed because the concentration of their res- on mass incarcer- duction of deviancy among those living idents in such urban enclaves serves the ation there–and as a matter of ethical evalua- interests of others. The desperate and vile tion–since the decency of our institu- behaviors of some of the people caught tions depends on whether they comport in these social structures reflect not mere- with a narrative of national purpose that ly their personal moral deviance, but recognizes and seeks to limit and to re- also the moral shortcomings of our soci- verse the consequences of history’s ety as a whole. Yet many Americans have wrongs. It is certainly arguable (take concluded, in effect, that those languish- Loïc Wacquant’s essay in this volume, ing at the margins of our society are sim- for example) that managing social dys- ply reaping what they have sown. Their function via imprisonment has now be- suffering is seen as having nothing to do come the primary instrument for repro- with us–as not being evidence of broad- ducing racial strati½cation in American er, systemic failures that can be corrected society. through collective action. As a consequence, there is no broadly based demand What does all this tell us about our pur- for reform–no sense of moral outrage, portedly open and democratic society? anguished self-criticism, or public reflec- What manner of people do our punish- tion–in the face of what is a massive, ment policies reveal us Americans to be? collective failure. American political cul- Just look at what we have wrought. ture, it seems, accepts as credible no ac- We have established what, to many an count of personal malfeasance other than outside observer, looks like a system of the conclusion that the offending indi- social caste in the centers of our great cit- vidual is unworthy. ies. I refer here to millions of stigmatized, The legal scholar William Stuntz has feared, and invisible people. The extent recently called attention to the close con- of disparity between the children of the nection in American history between lo- middle class and the children of the dis- cal control, democratic governance, and advantaged to achieve their full human inequalities of punishment.7 He suggests, potential is virtually unrivaled elsewhere persuasively in my view, that increases in in the industrial, advanced, civilized, free the severity and inequality of American world. And it is a disparity that is appar- punishment have mainly been due to a ently taken for granted in America. shift over the course of the twentieth cen- I see the broader society as implicated tury in the ways that crime and punish- in the creation and maintenance of these ment policies are formulated. Because damaged, neglected, feared, and despised caseloads have grown alongside reliance communities. People who live in these on plea bargaining, prosecutors have places know that outsiders view them gained power at the expense of juries; with suspicion and contempt. The plain because a thicket of constitutional pro- historical fact is that North Philadelphia, tections has been elaborated, federal the West Side of Chicago, the East Side appellate judges exert more influence of Detroit, or South Central Los Angeles than trial judges; because of population did not come into being by accident or decentralization trends in large urban because of some natural processes. As areas–with judges now elected mostly Wacquant emphasizes in this issue, these on county-wide ballots and police no social formations are man-made struc- longer drawn preponderantly from the

138 Dædalus Summer 2010 communities where they make arrests– vide an adequate foundation for justify- Crime, suburban and exurban voters now have ing the current situation. In making this inequality & social a good deal more to say than do central- claim, I am not invoking a “root causes” justice city residents about crime control poli- argument (he did the crime, but only be- cies, even though they are less affected cause he had no choice) so much as I am by those policies. arguing that society as a whole is impli- The law, Stuntz argues, has grown more cated in the offender’s choices. We have extensive in its de½nition of criminality acquiesced in structural arrangements and has left less room for situational dis- that work to our bene½t and the offend- cretion. Alienation of urban populations er’s detriment and that shape his con- from democratic control over the appa- sciousness and sense of identity such that ratus of punishment has resulted in more his choices, which we must condemn, inequality and less leniency. There is too are nevertheless compelling to him. much law and too little (local) politics. In his influential treatise, A Theory of Local populations bear the brunt of the Justice, the philosopher John Rawls distin- misbehavior by the lawbreakers in their guishes between principles that should midst. Yet, at the same time, they are govern the distribution of primary goods closely connected to lawbreakers via in society and the very different princi- bonds of social and psychic af½liation. ples that should determine the distribu- Mass incarceration is a political not a tion of the “negative good” of punish- legal crisis, one that arises from a dis- ment. He explicitly states that justice in junction between the “locus of control” the distribution of economic and social and the “locus of interests” in the for- advantages is “entirely different” from mulation of punishment policies. justice in the realm of criminal punish- Following Stuntz, I wish to suggest ment. He even refers to “bad character” that punishment, rightly construed, is a as relevant to punishment.8 As I under- communal affair; and that an ambiguity stand Rawls, his famous “difference prin- of relationship–involving proximity to ciple”–arrived at in “reflective equilib- both sides of the offender-victim divide rium” from his hypothetical “original and a wealth of local knowledge composition”–presupposes the moral irrel- bined with keen local interests–is essen- evance of the mechanisms by which in- tial to doing justice. Viewed in this light, equalities emerge. (For example, Rawls hyperincarceration and the (racial) in- sees “ability” as a morally irrelevant trait, equalities that it has bred are more deeply a manifestation of luck. So, unequal in- disturbing because urban minority com- dividual rewards based on differences in munities, where both the depredations ability cannot be justi½ed on the grounds of crime and the enormous costs of its of desert.) Yet because he does not see unequal punishment are experienced, the mechanisms that lead to disparities have effectively been divorced from of punishment as being morally irrele- any means of influencing the admin- vant, he would not apply the difference istration of criminal justice. principle when assessing the (in)justice To the extent that the socially marginal of such inequalities, since they are linked are not seen as belonging to the same gen- to wrongdoing. eral public body as the rest of us, it be- In my view, justice is complicated by comes possible to do just about anything the reality that the consequences wrought with them. Yet, in my view, a pure ethic by our responses to wrongdoing also raise of personal responsibility could never pro- questions of justice. The phrase “Let jus-

Dædalus Summer 2010 139 Glenn C. tice be done though the heavens may ers and notions of deserved punishment Loury fall” is, for me, an oxymoron; no concept exemplify deontological principles. But on mass incarcer- of justice deserving the name would ac- even if current incarceration policies per- ation cept mass suffering simply because of fectly embodied these principles (and blind adherence to an abstract principle that is an eminently dubious proposi- (such as “do the crime, and you’ll do the tion), it still would not be suf½cient to time”). It is common for ethicists to say justify such rigid adherence to moral ob- things such as “social welfare should be ligation. For the reason that the effects maximized subject to deontological con- of mass incarceration–on families and straints,” meaning that actions like dis- communities that may themselves have tributing body parts taken from a healthy done nothing wrong–can cause suf½- person to render ten other persons healthy cient harm, the principled claims that cannot be morally justi½ed. But this con- punishment is deserved should not be viction should go both ways: abstract allowed to dictate policy at whim. A moral goals should be subjected to con- million criminal cases, each one rightly straints that weigh the consequences in- decided, can still add up to a great and duced by such pursuits. In the realm of historic wrong. punishment, retribution against offend-

endnotes 1 For an illuminating exploration of the deeper roots of this transformation, see David Gar- land, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: Uni- versity of Chicago Press, 2001). 2 Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neigh- borhoods Worse (New York: Oxford University Press, 2009), 10. 3 Steven Durlauf and Daniel Nagin, “The Deterrent Effect of Imprisonment,” unpublished working paper (University of Wisconsin-Madison, March 2010). 4 Bruce Western, Punishment and Inequality in America (New York: Russell Sage Foundation, 2006). 5 See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: New Press, 2010). 6 Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (Cambridge, Mass.: Harvard University Press, 2010). 7 William Stuntz, “Unequal Justice,” Harvard Law Review 121 (8) (June 2008): 1969–2040. 8 The full quote from Rawls is: “It is true that in a reasonably well-ordered society those who are punished for violating just laws have normally done something wrong. This is because the purpose of the criminal law is to uphold basic natural duties, those which forbid us to injure other persons in their life and limb, or to deprive them of their liberty and property, and punishments are to serve this end. They are not simply a scheme of taxes and burdens designed to put a price on certain forms of conduct and in this way to guide men’s conduct for mutual advantage. It would be far better if the acts proscribed by penal statutes were never done. Thus a propensity to commit such acts is a mark of bad character, and in a just society legal punishments will only fall upon those who display these faults”; John Rawls, A Theory of Justice, rev. ed. (1971; Cambridge, Mass.: Belknap Press of Harvard Uni- versity Press, 1999), 314–315.

140 Dædalus Summer 2010 Poem by Etheridge Knight

A Wasp Woman Visits a Black Junkie in Prison

After explanations and regulations, he Walked warily in. Black hair covered his chin, subscribing to Villainous ideal. “This can not be real,” he thought, “this is a Classical mistake; This is a cake baked with embarrassing icing; Somebody’s got Likely as not, a big fat tongue in cheek! What have I to do With a prim and proper-blooded lady?” Christ in deed has risen When a Junkie in prison visits with a Wasp woman.

“Hold your stupid face, man, Learn a little grace, man; drop a notch the sacred shield. She might have good reason, Like: ‘I was in prison and ye visited me not,’ or—some such. So sweep clear Anachronistic fear, ½ght the fog, And use no hot words.”

After the seating And the greeting, they ½shed for a denominator, Common or uncommon; And could only summon up the fact that both were human. “Be at ease, man! Try to please, man!—the lady is as lost as you: ‘You got children, Ma’am?’” he said aloud.

Dædalus Summer 2010 141 The thrust broke the dam, and their lines wiggled in the water. She offered no pills To cure his many ills, no compact sermons, but small And funny talk: “My baby began to walk . . . simply cannot keep his room clean . . .” Her chatter sparked no resurrection and truly No shackles were shaken But after she had taken her leave, he walked softly, And for hours used no hot words.

Etheridge Knight (1931–1991) began writing poetry while an inmate at the Indiana State Prison from 1960 to 1968. His ½rst collection, “Poems from Prison,” was published in 1968 and was followed by “A Poem for Brother/Man (after His Recovery from an O.D.)” (1972); “Belly Song and Other Poems” (1973), for which he was nominated for both the Pulitzer Prize and National Book Award; and “Born of a Woman: New and Selected Poems” (1980). His work was included in “For Malcolm” (1967) and “Black Voices from Prison” (1970) and was collected for “The Essential Etheridge Knight” in 1986. “A Wasp Woman Visits a Black Junkie in Prison,” from “The Essential Etheridge Knight,” by Etheridge Knight, © 1986, is reprinted by permission of the University of Pittsburgh Press.

142 Dædalus Summer 2010 Poems by Lucille Clifton

cruelty. don’t talk to me about cruelty

cruelty. don’t talk to me about cruelty or what i am capable of.

when i wanted the roaches dead i wanted them dead and i killed them. i took a broom to their country

and smashed and sliced without warning without stopping and i smiled all the time i was doing it.

it was a holocaust of roaches, bodies, parts of bodies, red all over the ground.

i didn’t ask their names. they had no names worth knowing.

now i watch myself whenever i enter a room. i never know what i might do.

Dædalus Summer 2010 143 what spells raccoon to me

what spells raccoon to me spells more than just his bandit’s eyes squinting as his furry woman hunkers down among the ½sts of berries. oh coon which gave my grandfather a name and fed his wife on more than one occasion i can no more change my references than they can theirs.

Lucille Clifton (1936–2010) served as Distinguished Professor of Humanities at St. Mary’s College of Maryland, Chancellor of the Academy of American Poets, and Poet Laureate of the State of Maryland from 1974 to 1985. She was elected a Fellow of the American Academy in 1999. Her poetry collections include “Blessing the Boats: New and Selected Poems, 1988–2000” (2000), which won a National Book Award; “Good Woman: Poems and a Memoir, 1969–1980” (1987) and “Next: New Poems” (1987), both of which were nominated for a Pulitzer Prize; and “Two-Headed Woman” (1980), which was also a Pulitzer Prize nominee and the recipient of the University of Massachusetts Press Juniper Prize. “cruelty. don’t talk to me about cruelty” and “what spells raccoon to me,” from “Next: New Poems,” by Lucille Clifton, © 1987, are reprinted with the permission of boa Editions, Ltd.

144 Dædalus Summer 2010 Contributors

Jeffrey Fagan is Professor of Law and Public Health at Columbia University and Director of the Center for Crime, Community, and Law at Columbia Law School. His recent publications include “Street Stops and Broken Windows Revisited: Race and Order Maintenance Policing in a Safe and Changing City” (with Amanda Geller and Garth Davies), in Exploring Race, Ethnicity, and Policing: Essential Readings (edited by Stephen K. Rice and Michael D. White, 2010); “Crime and Neighbor- hood Change,” in Understanding Crime Trends (edited by Arthur S. Goldberger and Richard Rosenfeld, 2008); and “Punishment, Deterrence and Social Control: The Paradox of Punishment in Minority Communities” (with Tracey Meares), Ohio State Journal of Criminal Law (2008).

Marie Gottschalk is Professor of Political Science at the University of Pennsylvania. She is the author of, among other publications, The Prison and the Gallows: The Poli- tics of Mass Incarceration in America (2006), which won the 2007 Ellis W. Hawley Prize from the Organization of American Historians, and The Shadow Welfare State: Labor, Business, and the Politics of Health Care in the United States (2000).

Mark A.R. Kleiman is Professor of Public Policy at the University of California, Los Angeles, School of Public Affairs. He is Editor of the Journal of Drug Policy Analy- sis. His books include When Brute Force Fails: How to Have Less Crime and Less Punish- ment (2009), Against Excess: Drug Policy for Results (1992), and Marijuana: Costs of Abuse, Costs of Control (1989).

Candace Kruttschnitt is Professor of Sociology and Criminology at the University of Toronto. Her recent books include Marking Time in the Golden State: Women’s Im- prisonment in California (with Rosemary Gartner, 2005) and Gender and Crime: Pat- terns in Victimization and Offending (with Karen Heimer, 2006).

Nicola Lacey is Professor of Criminal Law and Legal Theory at the London School of Economics and has been a member of the Global Law School Faculty, New York University. She is the author of, most recently, Women, Crime and Character: From Moll Flanders to Tess of the d’Urbervilles (2008), The Prisoners’ Dilemma: Political Econ- omy and Punishment in Contemporary Democracies (2008), and A Life of H.L.A. Hart: The Nightmare and the Noble Dream (2004), which won a Swiney Prize. Lacey has been an Honorary Fellow of New College, Oxford, since 2007, and a Fellow of the British Academy since 2001.

Charles Loeffler is a Ph.D. candidate in the Department of Sociology at Harvard University and a former research associate at the U.S. Sentencing Commission. His research is currently focused on estimating the causal effects of imprisonment. In addition, he is exploring new techniques for visualizing urban migration patterns.

Dædalus Summer 2010 145 Contrib- Glenn C. Loury, a Fellow of the American Academy since 2000, is the Merton P. utors Stoltz Professor of the Social Sciences and Professor of Economics at Brown Uni- versity. He is coeditor of Ethnicity, Social Mobility, and Public Policy: Comparing the us and uk (with Tariq Modood and Steven Teles, 2005) and author of The Anatomy of Racial Inequality (2002) and One by One, From the Inside Out: Essays and Reviews on Race and Responsibility in America (1995). He was elected Vice President of the American Economics Association in 1997. He is Codirector of the Academy’s project on The Challenge of Mass Incarceration in America.

Joan Petersilia is the Adelbert H. Sweet Professor of Law and Faculty Codirector of the Stanford Criminal Justice Center at Stanford Law School. Her publications include When Prisoners Come Home: Parole and Prisoner Reentry (2003), Reforming Proba- tion and Parole (2002), and Community Corrections: Probation, Parole, and Intermediate Sanctions (1998).

Becky Pettit is an Associate Professor of Sociology at the University of Washington. Her publications include Gendered Tradeoffs: Family, Social Policy, and Economic Inequali- ty in Twenty-One Countries (with Jennifer L. Hook, 2009); “Black-White Wage Inequali- ty, Employment Rates, and Incarceration” (with Bruce Western), American Journal of Sociology (2005); and “Mass Imprisonment and the Life Course: Race and Class In- equality in U.S. Incarceration” (with Bruce Western), American Sociological Review (2004).

Robert J. Sampson, a Fellow of the American Academy since 2005, is the Henry Ford II Professor of the Social Sciences at Harvard University. His recent publications include Neighborhood Effects: Social Structure and Community in the American City (forthcoming, University of Chicago Press); “Disparity and Diversity in the Contemporary City: Social (Dis)Order Revisited,” British Journal of Sociology (2009); and “Moving to Inequality: Neighborhood Effects and Experiments Meet Social Structure,” American Journal of Sociology (2008), which received the Jane Addams Award from the American Sociological Association.

Jonathan Simon is the Adrian A. Kragen Professor of Law at uc Berkeley School of Law. His publications include Governing through Crime: How the War on Crime Trans- formed American Democracy and Created a Culture of Fear (2007) and Poor Discipline: Parole and the Social Control of the Underclass, 1890–1990 (1993). He coedited After the War on Crime: Race, Democracy, and a New Reconstruction (with Mary Louise Framp- ton and Ian Haney Lopez, 2008).

Loïc Wacquant is Professor of Sociology at the University of California, Berkeley, and Researcher at the Centre de sociologie européenne, Paris. He is a MacArthur Foundation Fellow (1997 to 2002) and recipient of the 2008 Lewis Coser Award from the American Sociological Association. His books have been translated in some dozen languages and include Urban Outcasts: A Comparative Sociology of Ad- vanced Marginality (2008), Punishing the Poor: The Neoliberal Government of Social In- security (2009), Prisons of Poverty (2009), and Deadly Symbiosis: Race and the Rise of the Penal State (forthcoming 2010, Polity Press).

146 Dædalus Summer 2010 Robert Weisberg is the Edwin E. Huddleson, Jr. Professor of Law and Faculty Co- Contrib- director of the Stanford Criminal Justice Center at Stanford Law School. His pub- utors lications include Criminal Law: Cases and Materials (with John Kaplan and Guyora Binder; 6th edition, 2008) and Literary Criticisms of Law (with Guyora Binder, 2000).

Bruce Western, a Fellow of the American Academy since 2007, is Professor of Soci- ology at Harvard University; he is also Director of the Multidisciplinary Program in Inequality and Social Policy at the Harvard Kennedy School. His publications include Punishment and Inequality in America (2006) and Between Class and Market: Post- war Unionization in the Capitalist Democracies (1997). He is Codirector of the Academy’s project on The Challenge of Mass Incarceration in America.

Dædalus Summer 2010 147 Interim Chair of the Board Louis W. Cabot Chief Executive Of½cer and William T. Golden Chair Leslie Berlowitz Treasurer John S. Reed Secretary Jerrold Meinwald Editor Steven Marcus Vice Chair, Midwest John Katzenellenbogen Vice Chair, West Jesse H. Choper

Inside back cover: Prisoners in lockstep formation at the state prison in Auburn, New York, in the 1830s. The engraving originally appeared in John W. Barber and Henry Howe, Historical Collections of the State of New York; containing a general collection of the most interesting facts, tra- ditions, biographical sketches, anecdotes, &c. relat- ing to its history and antiquities, with geographical descriptions of every township in the state (New York: S. Tuttle, 1846). Image courtesy of the Seymour Public Library, Auburn, New York.