Before the 1970s, there were fewer than 100 people imprisoned for every 100,000 citizens in the United States. By the mid-90s that number had ballooned to more than 650 per 100k (Smith, 2015). A knee jerk reaction would suggest that had these folks simply not done the crime, they wouldn’t be doing the time. However, the data from every reliable source including the FBI, the Bureau of Justice Statistics, local precincts, independent researchers, and self-reported surveys demonstrates that criminal activity has decreased across the board. So, what accounts for the 600% increase in incarceration for this period? The simple answer is that policy has reclassified many behaviors that were legal as illegal and many formerly minor infractions came to carry harsher penalties (Smith, 2015). The truth is grim: this shift is the result of a failed experiment in social engineering that returned us to an attitude that favors punishment over rehabilitation.
This paper will proceed in five parts: first an overview on the current trends of mass incarceration will be presented. Secondly, this paper will discuss how changes in the welfare state relate to changes to the penal state. The third part will demonstrate the impact of blocked opportunity associated with serving time in prison and the fourth will briefly discuss how long-term inequalities are obscured and perpetuated by mass incarceration. The final section of this paper will offer a variety of proposals to reverse this trend in American injustice, attempting to lay bare the inequalities of the system as a product of legal tweaks rather than deviant behavior. These various discussions will help to illuminate the paths that have brought us to such a staggering level of incarceration and endeavors to move towards restoration of these communities.
In the early 70s, the national dialogue regarding crime shifted from a long held belief that the function of incarceration was rehabilitation to one that focused on punishment and accountability of the individual. According to David Garland (2001), this shift was the result of changing social dynamics that saw crime as the result of insufficient disincentives promoting “self-serving, antisocial, and criminal conduct unless inhibited from doing so by a robust and effective system of controls”. This contrasts against attitudes held prior to the 1960s that emphasized criminal behavior as the result of relative deprivation wherein “the individual becomes delinquent because they were deprived of proper education, socialization, opportunities, and treatment” (Garland, 2001). Ironically, while incarceration rates skyrocketed, self reports of criminal activity dropped between 51-80% across most categories of violent and nonviolent crime (Smith, 2015).
So, what caused such a spike over the last 30 years? According to Loïc Wacquant (2009), the growing American penal state is the result of a concentrated effort to “reorganize social services into an instrument of surveillance and control of those who refuse to submit to the new economic and moral order”. Wacquant articulated these changes in policy in four “penal planks”: 1) determinant sentencing wherein judicial discretion is severely limited; 2) truth-in-sentencing requiring convicted persons to serve a minimum percentage of their sentence; 3) mandatory minimums set for crimes regardless of circumstance; and 4) three strikes laws enhancing sanctions in cases of recidivism and accompanying life sentences when a person has committed “three serious or specifically designated crimes” (Smith, 2015). These changes resulted in a greater likelihood of being imprisoned if caught and increased the length of time spent in prison after a conviction. In California, the three strikes law, passed in 1994, required a defendant convicted of a second felony to be sentenced for twice the term otherwise indicated. If convicted of any felony with two or more prior strikes, the law mandated a minimum of 25 years to life. It wasn’t until 2012 when Proposition 36 was passed was the new felony required to be a serious or violent crime; this was retroactively available for inmates who had been sentenced to 25 years to life in the previous 18 years ("California's Three Strikes Sentencing Law").
In Punished: Policing the Lives of Black and Latino Youth (2011), Victor Rios identifies yet another troubling trend of this punitive mindset: the ways in which young boys, particularly boys of color, are made to feel as though they are suspect by reason of existing. For three years, Rios followed the lives of forty young men in the Oakland area exploring the ways in which they encountered and navigated these “systems of control” (Garland, 2001). Through his work, Rios encountered some the darkest elements of this retributive system: “kids who were considered good, those who had not broken the law and did relatively well in school, experienced part of this stigma [of criminality] and punish[ment] as well…[they were] treated as guilty until they could prove themselves innocent” (2011, p.19-20). His work shed light on how the penal system has extended its’ reach into schools and social programs intended to scare these kids straight but, often having the effect of setting law enforcement and the youth of these communities on opposite sides of a system that seeks to make criminals pay for their crimes.
From the moment these boys wake, they are subjected to specific assumptions about their motivations - from law enforcement, parole officers, teachers, and even parents. As these various groups coordinated their efforts, the boys subjected to the stigma of criminality were caught up by institutions that “passed on their punitive approaches to treating deviant and delinquent behavior” (Rios, 2011, p. 49). The result is clear: as these boys are stigmatized at home and at school, they have no where to turn but to each other, which contributes to the likelihood of engaging in criminal behavior. As these boys then encounter law enforcement, this hypercriminalization (defined as “the process by which an individual’s everyday behaviors and styles become ubiquitously treated as deviant, risky, threatening, or criminal, across social contexts”) serves to reinforce the likelihood that the individual will engage in criminal behavior out of a feeling that if they’re going to be treated like a criminal, they might as well commit the crimes for which they’re already being punished (Rios, 2011, p. xiv; Ibid. 43-73).
Coupled with changing attitudes regarding the availability of welfare, which asserts that the experience of poverty is necessarily the fault of the poor rather than that of circumstance, the result of being incarcerated carries with it significant negative associations that result in lower employability, lower yearly earnings, and erodes the social capital of the individual, further limiting the options of former inmates (Smith, 2015). While Rios’ work focused on the youth of Oakland, his statements regarding the relationship between the welfare state and the penal system are applicable in every population; he asserts “the state has not abandoned the poor; instead it has punitively asserted itself into various institutions in the community” (2011). In this, there is an implicit bias that becomes associated with these men that follows them everywhere before they are even arrested. Once arrested, they are more likely to experience this stigmatizing treatment and often feel forced to “become hard” in order to protect themselves, especially once locked up where they are exposed to even more violence, both from fellow inmates and from guards that seek to demonstrate their authority through dominance (Rios, 2011, p. 35-42). This behavior feeds back into the trouble young boys have in school and into the trouble adult men have in reintegrating into their communities.
Whatever the reasons for incarceration, one thing is certain: once you’ve been incarcerated, you’re far more likely to remain poor. A felony incarceration undermines your eligibility for many welfare programs including section 8 housing vouchers, food stamp programs, the TANF program, as well as financial aid for higher education ("FAQ #1: Can a Convicted Felon Get Section 8?", 2015; "Q & A: Drug Convictions.", 2015; "Section 115 - Denial of Assistance and Benefits for Certain Drug-related Convictions.", 2015; "Students with Criminal Convictions Have Limited Eligibility for Federal Student Aid.", 2015). A felony also compromises your right to vote, sometimes permanently ("State Felon Voting Laws - Felon Voting", 2014). All of these limitations serve not only to stunt the opportunities of former inmates but, also serve to create an experience of lifelong punishment. Even after leaving prison the punishment and stigma is unrelenting. While their time served is for a specific duration, the stigma associated with a conviction contributes to the ongoing hypercriminalization of men and boys as described by Rios (2011, p. 19-20). After only a single stint, a man with a criminal record is significantly less likely to find employment - especially if he is a person of color.
Devah Pager (2013) addresses this very issue, seeking to evaluate the impact a criminal record has on the likelihood of employment. In her study, she says that, “those sent to prison are institutionally branded as a particular class of individuals...with implications for their perceived place in the stratification order” (p. 942). Using an audit method that combines experimental controls within real-life contexts, Pager attempts to parse out how a criminal record affects the employment opportunities for blacks and whites. Her four ‘auditors’ were paired by race and alternated who would have the criminal record as to control for any differences unaccounted for in personality or presentation. Her findings were stark: not only did Pager identify significant variation in the likelihood of being offered employment for all groups (down by ½ for whites and by ⅓ for blacks) but, she also uncovered a more troubling pattern wherein "whites with criminal records received more favorable treatment (17%) than blacks without criminal records (14%)” (Pager, 2013, p. 958). All of this stigma combines to fundamentally shift the opportunity structure of these men and boys.
Yet another element that contributes to this blocked opportunity structure is the implementation of oppressive legal financial obligations (LFOs). These include the “fees, fines, restitution orders, and other financial obligations that may be imposed by the courts and other criminal justice agencies on persons accused of crimes” (Harris et al., 2010, p.1758). In the aptly named study “Drawing Blood from Stones”, Harris et. al. discuss the impact of these financial obligations on the intersection of poverty and crime. While many of these charges are not intended to serve as punishment for the crime committed, their impact in reasserting a limited opportunity structure are tangible for many families - from whom the felons either borrow or receive funding in attempts to make the necessary payments.
These LFOs are also subject to interest accumulation, surcharges, and collections. Unpaid fines can also cause the revocation of probation, resulting in additional jail time while interest continues to accrue (Harris et al., 2010, p. 1759). While legally not a part of the punishment process, the functional result of LFOs has serious detrimental effect on individuals, as well as on families and communities surrounding them (Harris et al., 2010, p. 1759). Unlike other kinds of debt, LFOs are not offset by the “acquisition of goods or property, is not subject to relief through bankruptcy proceedings, and may trigger an arrest warrant, arrest, or incarceration” (Harris et al., 2010, p. 1763). The consequences are devastating, ranging from matters of funding access to higher education to not having enough money to buy food or finding that other services you qualify for are rendered useless due to the burden placed on the already strained budgets of families living in poverty (Harris et al., 2010, p. 1779-1785).
The ways these elements of the penal system are obfuscated from the public eye is through the fracturing of the welfare state into what Wacquant calls a “centaur state” (2009, p. 43). While the head of this centaur serves to benefit the middle and upper classes in various ways, the body of the beast inextricably ties together the penal system with welfare programs for the poor. Each establishes a reduction of rights in exchange for help from the state, moving from carrots to sticks with heavy sanctions associated for failure to thrive. Liberal policies intent on supporting the basic security of the lower classes have been replaced by authoritarian oversight at all levels of dependency.
So, what to do? My recommendations come in the form of picking up a key we’d thrown away and unlocking the opportunities we’ve kept under guard. First is the development of greater support for education, job training, and placement programs. To further reinforce this approach, we must eliminate of restrictions on welfare aid for non-violent crimes. Without such necessary supports to ensure crime has minimal utility, falling back into old habits is a simple matter of finding yourself out on the streets again. If we can prevent that, we can reduce the likelihood of someone violating parole or committing a new crime.
Yet another area of redress is the reversal of mandatory sentencing and three strikes laws; without judicial discretion permitting the consideration of circumstance, we effectively eliminate the human element of the justice system. Another possible recommendation comes in the form of efforts to enhance restorative justice patterns for adolescents. As seen in Rios’ book and in places like the Harlem Children’s Zone, we know that providing a truly safe space for these kids does wonders. A little bit of love, support, and encouragement goes a long way, so long as it’s coupled with real intervention. The final recommendation I would make would be to establish a basic income grant that provides the basic necessities of food, shelter, clothing, healthcare, and education. In doing this, we eliminate both the utility of crime and the exploitative nature of work almost entirely. The only way we will create the kind of change we want to see in the numbers of those incarcerated is by letting people out of prison and helping them to get on their feet. It’s time to find the key we threw away and unlock the potential of our nation.
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Sources
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