America’s incarceration crisis is the stuff of grave, vague moral concern for many in the educated elite. We know something is rotten, on an epic scale; we know that something ought to be done; and we’ve internalized a few broad explanations of the phenomenon that are compelling, sensible, and wrong, in whole or in part.
The scale and contours of the problem are, by now, familiar: The American incarceration rate reached one in 99 civilians a few years ago and has now receded to one in 137. If you loaded U.S. prisons with the entire population of Philadelphia, there would still be enough bunk space for the entire population of Detroit. If you opened the prison gates today, enough men and women would stream out, trading one uniform for another, to completely staff every McDonald’s and Starbucks in the country, as well as the entire U.S. Army, Marine Corps, and Postal Service.
As Marie Gottschalk explains in her largely commendable new book, Caught: The Prison State and the Lockdown of American Politics, the rate of incarceration is troubling because prisons abridge—selectively and in the interests of justice—the very freedom that defines America. So when incarceration becomes excessive, depriving people of liberty for no good reason, it is an affront to the liberal conscience, which for some time now has neglected core issues of freedom that are its foundation.
Gottschalk, a political scientist at the University of Pennsylvania, undertakes to describe how we reached this point of mass incarceration and why it persists, given that it seems to do us no good and costs us a great deal. Comparisons to other similarly diverse countries are as depressing as they are revealing: The incarceration rate in England and Wales is a fifth of ours, and the murder rate is also about a fifth. Canada locks away one in 850 citizens, and the frozen north is stained only with seal blood. The sole country that rivals us in its zeal for incarceration is North Korea.
Americans tend to consider themselves a virtuous and generous people, and not a nation of grinning sadists. So why the urge to brutalize criminals?
Our justice and sentencing system mass-produces inmates, with little sensitivity to whether prison is the appropriate retribution, let alone effective rehabilitation. Mandatory minimum sentences remove discretionary power from judges who might otherwise be able to exercise judgment (one would think that is what they are there for) about whether prison is an appropriate response to a crime. Prisoners stay behind bars because they can’t pay fees for their own incarceration, trials, or legal defense—adding extra jail time in addition to the punishment for their initial offense. This arrangement effectively makes poverty a crime. And the range of jailable offenses now includes misdemeanors that once merited no more than fines, probation, or a stern lecture from a black-robed government official. Meanwhile, American criminal justice is exquisitely sensitive to factors that should have no bearing at all. If a white man and a black man are engaged in identical criminal activities, the black man is more likely to be arrested, more likely to be charged, less likely to have the charge bargained down, more likely to be found guilty, and more likely to get a longer sentence.
Gottschalk is particularly convincing about the follow-on effects of incarceration on the vulnerable neighborhoods that contribute most to the prison population. Ex-convicts often find their basic rights curtailed. They often are not able to vote, get educational or food assistance, work in licensed professions (including hairdressing), or own guns, irrespective of the nature of their offense. Many sex offenders face lifelong restrictions on where they can live or work, as if their physical presence were as odious as their crimes. The effect is the creation of an inferior caste—largely poor and non-white—that now includes almost one in 40 people. Perhaps worst of all, locking up so many people for so little cause destigmatizes imprisonment and makes future generations of potential criminals feel that time in the slammer is not particularly shameful, and might even be a rite of manhood.
The widely accepted explanations for how this iniquitous system came to be, Gottschalk argues, are insufficient. “The New Jim Crow” thesis—best known from Michelle Alexander’s 2010 book of that name—suggests that mass incarceration is a functional extension of the legacy of American anti-black racism. But Gottschalk points out that America imprisons pretty much every racial and ethnic group at shocking rates. If every black inmate were emancipated today, the prison system would remain outrageously overstuffed, and the overall rate would still be worse than Russia’s. And in federal prisons at least, Hispanics have overtaken blacks in the dubious distinction of being the most disproportionately imprisoned.
Nor can we blame the war on drugs. The idea that vast numbers of Americans are in prison for smoking pot or snorting blow turns out to be a fantasy. About 20 percent of inmates are in for drug-related crimes, but those crimes are rarely limited to their own casual use. According to a 2004 estimate, only about 12,000 people were incarcerated for simple possession, without intent to traffic or distribute.
If the problem isn’t straightforward racism or benighted drug laws, what is it? Gottschalk blames “neoliberalism,” the system of democratic capitalism embodied by Ronald Reagan, Margaret Thatcher, and their market-loving, privatizing kin. Neoliberalism, she says, has made American mass incarceration so vast and entrenched that the “carceral state”—the politically determined penal policies and the institutions that enforce them—would need to be laboriously dismantled before the country could achieve real improvement. Neoliberal policies, she says, have worsened inequality and weakened social insurance and legal protection for the poor. Numerous elements of this system—including the private corrections industry, prison guards’ unions, and the large, self-protective bureaucracies whose continued existence depends on a steady flow of prisoners—stand in the way of change.
Gottschalk’s shadowboxing with neoliberalism—the bogeyman of choice for social scientists for more than a decade now, despite being such an expansive category that it can’t possibly have any analytic value—is the least satisfying aspect of this book. After all, the effects of neoliberalism, when properly accounted for, probably include every aspect of modern social existence in this country. In other countries transformed by market-oriented reforms (the U.K., Australia, Canada), neoliberalism co-exists with much lower incarceration rates, and hasn’t resulted in an uptick in prison populations. Gottschalk’s vague indictment of neoliberalism is especially unsatisfying considering that there are at least a few straightforward, functional reasons for mass incarceration, such as the fact that prison time is now meted out for more crimes, and sentences are now longer, than in the past. Steven Raphael of the University of California-Berkeley and Michael A. Stoll of the University of California-Los Angeles estimate that a third of the growth in the national prison population is attributable to longer sentences for the same crimes, and a good deal of the remaining growth comes from simply sending more people to prison (three times the number of prison admissions today per reported crime, compared with 1979). Even as anodyne and centrist a politician as Bill Clinton recently admitted, “We basically took a shotgun to a problem that needed a .22.”
Caught: The Prison State and the Lockdown of American Politics, Marie Gottschalk (Princeton University Press).
That’s easy for an ex-president to say. Politicians still hoping to be elected have a somewhat harder time proposing solutions. Voters love a tough-on-crime candidate, and they are quick to punish any step toward loosening sentencing requirements or reducing the prison population. Indeed, they want our penal system to keep ratcheting up the incarceration rate. Rather than prefer rational punishment for all, voters aware of unjust incarceration seem to prefer harsher, more callous treatment for all—a “leveling down,” in Gottschalk’s phrase, whereby even whites caught up in the justice system are subject to treatment once reserved for despised outcasts.
Even without leveling down, the practice of mass incarceration looks dispiritingly robust. For it to persist, it need only keep afflicting the weak and poor and feeding the greedy maws of corporations that run private prisons (and those of other amoral bureaucracies). For it to die would take a society-wide shift in values and empathy. Gottschalk doubts that concern over the ballooning costs of mass incarceration will ever be enough to motivate real, lasting change. Since such a movement would come from budgetary concerns and not moral ones, it would reduce prison rates only if it could generate savings. Unprincipled motivations are dangerous: If costs could somehow be driven down by increasing brutality and dehumanization, we might see these rise as our budgets fall. At a minimum, real change would involve making people understand the needless suffering wrought by mass incarceration; moving away from joyfully punitive sentencing in favor of punishments that reflect, to use an old- fashioned expression, the common good; and restoring the civil rights of convicts who have done their time.
In other words, we’d need a reversal of the trends of the past 30-odd years of American life. We like prison experience to be harsh. Anyone who doubts this is welcome to Google don’t drop the soap to see the levity with which prison rape is treated. Indeed, we’ve countenanced, even cheered, surveillance and cross-examination of poor Americans outside prison, in the form of extraordinary barriers to obtaining social assistance, mandatory drug testing, and employers’ “behavioral standards” on and off the job, the violation of which gives cause for termination and disqualifies laid-off workers from unemployment benefits. Gottschalk would like to see change that would return dignity and decency to criminal offenders, but further “leveling down” appears to be the popular preference.
Americans tend to consider themselves a virtuous and generous people, and not a nation of grinning sadists. So why the urge to brutalize criminals? Critics on the left (Gottschalk among them) like to point to America’s embrace of unforgiving capitalism, but neoliberalism dominates the entire West, and no other country has mass incarceration like ours. The example of other developed countries, where economic failure and even prosecution are seen as misfortunes that can befall otherwise decent people, is instructive. There, neither social-welfare beneficiaries nor inmates are seen as parasitic failures, but as folks like us.
One dark interpretation of this discrepancy is that the struggling middle classes regard the spectacle of punishment as a reminder that no matter how bad things get for them, there are those who have it—and deserve it—much worse. This attitude can be sustained only as long as you’re sure the gulag isn’t coming for you next. Gottschalk’s book makes it hard to believe that anyone, except perhaps the very white or the very rich, should be too confident about that.
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