The United States has not always been the worlds leading jailer, the only affluent democracy to make incapacitation its criminal justice systems goal. Once upon a time, it fashioned itself as the very model of what Michel Foucault called the disciplinary society. That is, it took an enlightened approach to punishment, progressively tethering it to rehabilitative ideals. Today, it is a carceral state, plain and simple. It posts the highest incarceration rate in the world as well as the highest violent crime rate among high-income countries.
Politicians, reporters, and activists from across the political spectrum have analyzed the ongoing crisis of mass incarceration. Their accounts sometimes depict our current plight as an expression of puritanism, as an extension of slavery or Jim Crow, or as an exigency of capitalism. But these approaches fail to address the question that ought to be foremost in front of us: what was the nature of the punitive turn that pushed the US off the path of reform and turned its correctional system into a rogue institution?
While the state-sanctioned brutality that now marks the American criminal justice system has motivated many activists to call for the complete abolition of prisons, we must begin with a clearer understanding of the complex institutional shifts that created and reproduce the phenomenon of mass incarceration. Only then will we be able to see a clear path out of the current impasse.
The core features of Foucaults account of crime, punishment, and social control are well known, although they have not always been well understood. In the disciplinary society he describes, authorities progressively withdraw punishment from public view. And as discipline becomes increasingly private, it shifts its focus from criminals bodies to their minds. Increasingly, punishment is calculated to rehabilitate it is not meant to damage or destroy.
Foucault highlighted how these disciplinary reforms created new and more effective tactics for consolidating power, especially as they spread to non-judicial institutions, like schools, hospitals, factories, and offices. Unlike its predecessor, sovereign power, which subtracts giving kings the right to seize property, to damage or take lives disciplinary power corrects. The Enlightenments gentle punishments would convince the miscreant to mend his crooked ways, not beat the bad behavior out of him.
An American preference for rehabilitative discipline over harsh punishment has deep roots. Resonant with the image of the country as a nation of laws, American justice promised to punish lawbreakers only as much as was necessary to straighten them out. The Bill of Rights prohibited torture, and the Quaker reformers who founded early American penitentiaries treated them as utopian experiments in discipline, purgatories where penitents would suffer and introspect until they found salvation.
No doubt time and circumstance created different opinions about how much suffering genuine personal reformation required, but American practices generally aligned with rising standards of decency. As James Q. Whitman notes, Europeans once viewed the US prison system as a model of enlightened practices. Foreign governments sent delegations on tours of American penitentiaries, and Alexis de Tocqueville extolled the mildness of American punishment.
Of course, we can find exceptions. Southern penal systems, racialized after the Civil War under the convict-lease system, didnt even pretend to have rehabilitative aims. They existed to control the black population and supply cheap labor for agriculture and industry. No doubt, too, the spectacles of punishment associated with popular colonial justice the pillory, the stockade, the scarlet letter cast long shadows across American history.
But, even in the face of these contradictions, the US criminal justice system seemed to support a grand narrative of progressive history: the arc of history bends toward justice, and the slave drivers lash and the lynch mobs noose disappeared as the nation extended more rights and more freedoms to more people. Reasoned law inexorably overcomes communal violence and brute domination.
Arthur Schlesinger Jr thus distinguishes the true essence of the United States from its various manifestations of racism and intolerance, glossing history as the perpetual struggle of Americans to fulfill their deepest values in an enigmatic world.
As recently as fifty-odd years ago, Americans could still believe this story. Here, as in other North Atlantic countries, modern penal models that stress rehabilitation, reform, and welfare had become the prevailing approaches. At the peak of this trend, Great Society programs attempted to address crimes socioeconomic causes: poverty, institutional racism, alienation.
Indeed, as a result of the legal reforms of the 1960s, the American prison population was shrinking, and the state was developing alternatives to incarceration: kinder, gentler institutions that focused on supervision, reeducation, and rehabilitation. To many observers, the prison system actually seemed to be reforming itself out of existence. Leo Bersanis review of Foucaults Discipline and Punish began with the (now astonishing) sentence The era of prisons may be nearly over.
Nothing in Foucaults analysis or anyone elses, as David Garland has remarked could have predicted what followed: a sudden punitive turn designed to incapacitate prisoners rather than rehabilitate them. The practice of locking people up for long periods of time became the criminal justice systems organizing principle, and prisons turned into a reservation system, a quarantine zone where purportedly dangerous individuals are segregated in the name of public safety. The resulting system of mass incarceration, Garland writes, resembles
nothing so much as the Soviet gulag a string of work camps and prisons strung across a vast country, housing [more than] two million people most of whom are drawn from classes and racial groups that have become politically and economically problematic. Like the pre-modern sanctions of transportation or banishment, the prison now functions as a form of exile.
At the peak of this mania, one in every ninety-nine adults was behind bars. Since 2008, these numbers have leveled off and even posted modest declines, but the basic contours remain intact. The United States ranks first in imprisonment among significant nations, whether measured in terms of incarceration rates which remains five to ten times higher than those of other developed democracies or in terms of the absolute number of people in prison.
Hyper-policing helped make hyper-punishment possible. By the mid-2000s, police were arresting a staggering fourteen million Americans each year, excluding traffic violations up from a little more than three million in 1960. That is, the annual arrest rate as a percentage of the population nearly tripled, from 1.6 percent in 1960 to 4.5 percent in 2009. Today, almost one-third of the adult population has an arrest record.
At prevailing rates of incarceration, one in every fifteen Americans will serve time in a prison. For men the rate is more than one in nine. For African American men, the expected lifetime rate runs even higher: roughly one in three.
These figures have no precedent in the United States: not under Puritanism, not even under Jim Crow. While some observers point to significant declines in crime statistics after 1994 as evidence of these policies success, informed estimates show that locking up millions of people for long periods contributed to only as much as 27 percent and as little as 10 percent of the overall reduction in crime.
Eighth Amendment prohibitions notwithstanding, conditions in Americas crowded prisons have sunk to the level of torture. Indeed, the Supreme Courts Brown v. Plata decision affirmed that overpopulation itself constitutes cruel and unusual punishment, creating unsafe and unsanitary conditions, depriving prisoners of basic sustenance, including adequate medical care. The court found that mass incarceration is incompatible with the concept of human dignity.
In this context, structural abuses invariably flourish. Reports from Amnesty International and Human Rights Watch catalog various forms of sanctioned and unsanctioned human rights abuses. These include beatings and chokings, extended solitary confinement in maximum security and so-called supermax prisons, the mistreatment of juvenile and mentally ill detainees, and the inhumane use of restraints, electrical devices, and attack dogs.
Modern prisons have become places of irredeemable harm and trauma. J. C. Oleson surveys these dehumanizing warehouse prisons, where guards have overseen systems of sexual slavery or orchestrated gladiator-style fights between inmates.
Sally Mann Romano describes shocking brutality in the Security Housing Unit (SHU) of Californias Pelican Bay State Prison, once touted as a model supermax prison:
It was in this unit that Vaughn Dortch, a prisoner with a life-long history of mental problems, was confined after a conviction for grand theft. There, the stark conditions of isolation caused his mental condition to dramatically deteriorate, to the point that he smeared himself repeatedly with feces and urine. Prison officials took Vaughn to the infirmary to bathe him and asked a medical technician, Irven McMillan, if he wanted a part of this bath. McMillan responded that he would take some of the brush end, referring to a hard bristle brush which is wrapped in a towel and used to clean an inmate. McMillan asked a supervisor for help, but she refused. Ultimately, six guards wearing rubber gloves held Vaughn, with his hands cuffed behind his back, in a tub of scalding water. His attorney later estimated the temperature to be about 125 degrees. McMillan proceeded with the bath while one officer pushed down on Vaughns shoulder and held his arms in place. After about fifteen minutes, when Vaughn was finally allowed to stand, his skin peeled off in sheets, hanging in large clumps around his legs. Nurse Barbara Kuroda later testified without rebuttal that she heard a guard say about the black inmate that it looks like were going to have a white boy before this is through his skin is so dirty and so rotten, its all fallen off. Vaughn received no anesthetic for more than forty-five minutes, eventually collapsed from weakness, and was taken to the emergency room. There he went into shock and almost died.
This scene recalls the opening moments of Discipline and Punish, in which Foucault graphically recounts the slow destruction of Robert-Franois Damienss living body in 1757. Of course, todays torture doesnt appear as a spectacle, staged for public edification. Nor does it resemble the touch of pain strategically administered as bitter medicine to cure the lawbreaker of his sickness a concept of corporeal punishment that goes back to Plato. In those cases, pain served a greater social purpose.
In contrast, a set of invisible and unsanctioned but nonetheless systematic practices, hidden away in the most secret parts of the penal system, has allowed brutality to flourish. Away from public scrutiny, it thrives on retributions personalized and sadistic logic, all that remains of the criminal justice systems moral purpose after rehabilitation disappeared.
Oleson summarizes the logic of the present system: [t]he prison no longer attempts to make angels of men. In modern prisons, a transformation of an entirely different kind is taking place: men are becoming animals. We should not be surprised that the modern penal system a pressure cooker of idle men packed into cramped space devolves into overt torture, for this prison was already an institution in which awful things regularly happen. Nor should we be surprised that these zealous punishments dehumanize the punishers no less than the punished.
The transition from a disciplinary to a punitive penal system happened very quickly, although its implications would go unnoticed for a long time. Arguably, we still dont fully understand the nature of this cultural shift, which exceeds the penal system and appears in a number of the institutions of everyday life. But I get ahead of myself.
The punitive turn began in the turmoil of the 1960s, a time of rapidly rising crime rates and urban disorder. In 1968, with US cities in flames and white backlash gaining momentum, congress overwhelmingly passed and Lyndon Johnson reluctantly signed the Omnibus Crime Control and Safe Streets Act. As Jonathan Simon has suggested, the act became something like a blueprint for subsequent crime-control lawmaking.
Shaped by a conservative coalition of Western Republicans and Southern Democrats, the legislation invested heavily in local law enforcement, asserted rules for police interrogations designed to countermand the liberal Warren courts decisions, including Miranda, allowed wiretapping without court approval, and, in a successful bid to secure liberal support, included modest gun control provisions.
Although the legislation did little to increase criminal penalties, it reversed the logic of earlier Great Society programs; instead of providing direct investment, the acts block grants ceded control to local agencies, often controlled by conservative governors. Most importantly, the act established the Law Enforcement Assistance Administration (LEAA), an independent branch of the Justice Department. Blaming low conviction rates on a lack of cooperation from victims and witnesses, the LEAA launched demonstration projects aimed at recruiting citizens into the war on crime.
Tough talk about law and order articulated the strange new angers, anxieties, and resentments racking the nation in the 1960s, as Rick Perlstein has shown, and, by 1972, Richard Nixon had consolidated a new governing coalition that still dominates American politics. Nixons anti-crime narrative appealed to the traditional Republican bases rural and small-town values and incorporated conservative Southern Democrats, who viewed the civil rights movement as lawless and disorderly. It also attracted Northern hardhat conservatives and white ethnic voters alarmed at escalating crime, urban riots, and campus unrest. In short, the nascent war on crime firmed up white backlash and gave durable political form to a conservative counter-counterculture.
But race reactionaries were not the only group spreading tough law-and-order rhetoric. Vanessa Barker has described how African American activists, representing the communities hardest hit by surging crime rates, also agitated for harsher penalties for muggers, drug dealers, and first-degree murderers.
In 1973, incarceration rates began an unprecedented thirty-five-year climb, and political tides began to turn even in liberal states. That year, New York passed the most draconian drug legislation in the country. Under the Rockefeller Drug Laws, the minimum penalty for possession of small amounts of marijuana, cocaine, or heroin was fifteen years to life. (It took until 2009 for New York to retire much of what remained of these laws.)
Ironically, the Left was helping to prepare the way for a decisive turn to the Right. Leftist activists from the civil rights, black power, and antiwar movements were leveling heavy criticism against the criminal justice system, and rightly so. Patterns of police brutality had been readily discernible triggers of urban unrest and race riots in the late 1960s, and minorities were overrepresented in the prison population (although not as much as today). Summing up New Left critiques, the American Friends Service Committees 1971 report, Struggle for Justice, blasted the US prison system not only for repressing youth, the poor, and minorities but also for paternalistically emphasizing individual rehabilitation. Rehabilitate the system, not the individual, the report urged but the point got lost in the rancorous debates that followed. As David Garland carefully shows, the ensuing nothing works consensus among progressive scholars and experts discouraged prison reform and ultimately lent weight to the arguments of conservatives, whose approach to crime has always been a simple one: Punish the bad man. Put lawbreakers behind bars and keep them there.
In 1974, Robert Martinsons influential article What Works? marked a definitive turning point. Examining rehabilitative penal systems efficacy, Martinson articulated the emerging consensus nothing works, and rehabilitation was a hopelessly misconceived goal.
Tapping into the zeitgeist, Hollywood released Death Wish that same year, followed by a host of other vigilante revenge films. Exploitation movies enlisted a familiar Victorian spectacle sexual outrages against girls and women in the service of right-wing populism. Their plotlines invariably connected liberals, civil libertarians, and high-minded elites with the criminals who tormented the ordinary citizen. Notably, however, such films carefully muted the racial backlash that had inaugurated the punitive turn: they depicted the vicious criminal as white, allowing audiences to enjoy the visceral thrill of vengeance without troubling their racial consciences.
Comprehensive crime-control bills came and went during the Reagan-Bush years, each more punitive than the last, and new social movements emerged around the politicization of crime.
The victims rights movement played an important role in this story. The movement had started inside the liberal welfare state, and proponents originally saw aid for victims of violent crime as the other half of their attempts to rehabilitate convicts. But, as conservatives recruited victims advocacy and self-help groups into the war on crime, the movement began to pit victims rights against the rights of the accused, aligning with claims that hordes of criminals were escaping justice on legal technicalities.
By 1982, the Reagan administration was drawing this movement securely within the compass of the right, as Bruce Shapiro explained. That year, the Presidents Task Force on Victims of Crime published a report based largely on anecdotal horror stories of double victimization and official unresponsiveness. Based in part on this report, congress passed the Victims of Crime Act in 1984.
This movement focused national attention on victims at a time when violent crime rates remained stubbornly high, providing the moral underpinnings for a punitive approach to crime. It persuaded voters to identify with victims, to diminish the rights of the accused, and to accept excessive policing. It aggressively lobbied for the harsher laws, enhanced penalties, and court procedures that put the prison system on steroids.
But liberal rationales also helped the punitive turn put down institutional roots. The victims rights movement had adopted feminist rhetoric around rape and domestic violence. For example, it claimed that survivors are victimized a second time by their unsatisfying experiences with the police and court system. During the same period, mainstream white feminists came to view rape, sexual abuse, and domestic violence through a law-and-order lens and many started demanding harsh criminal penalties. This collusion between conservative victims rights advocates and white feminists undermined the historic liberal commitment to enlightened humanitarianism and progressive reform, especially as these related to crime and punishment.
Although no one could have known it at the time, the early 1990s represented a high-water mark in the crime wave that had begun in the early 1960s. In 1991, homicide rates crested at 9.8 per 100,000, matching the rate recorded in 1974 and almost matching the record rate of 10.2 per 100,000 set in 1980. After 1993, the thirty-year crime wave began to recede, but the punitive turn persisted.
In 1994, Democrats aggressively moved to take back the crime issue from Republicans, and a Democratically controlled congress passed the Violent Crime Control and Law Enforcement Act. Like the 1968 act, this 1994 legislation pumped a great deal of federal funding into local law enforcement, funding 100,000 new police officers, new prison construction, and new prevention programs in poor neighborhoods. The new legislation also included an assault weapon ban.
Unlike the 1968 act, however, the 1994 version increased penalties for hate crimes, sex crimes, violence against women, and gang-related crimes. It required states to create sex-offender registries and prodded them to adopt truth in sentencing laws that would entail longer prison sentences. It also dramatically expanded the federal death penalty and eliminated support for inmate education programs.
The 1994 act completely reversed Great Society penal welfarism, consolidating the punitive approach, which Democrats, liberals, and some progressive advocacy groups now embraced. Indeed, lawmakers drafted many of the acts sweeping provisions with liberal interest groups in mind.
We have now lived through more than fifty years of this punitive turn. Its resilience resists simple explanations. Originally a conservative phenomenon, it condensed fears over rising crime rates with the political reaction to the upheavals of the 1960s. In its middle period, liberal aims and rhetoric helped spread the logic of incapacitation, enshrining the victim as the subject of governance and treating the offender like toxic waste to be disposed of or contained. Sensational journalism contributed to this shift, honing the publics focus on the victim, stoking panic and outrage.
Successive waves of draconian legislation targeted outsized monsters: drug dealers, repeat offenders, gang members, sexual predators, terrorists and their sympathizers. Americas zeal for punishment has been bolstered not by one or two causes but by a variety of changing factors. Today, perhaps, it persists as much out of institutional inertia as anything else.
If my thumbnail history is accurate, then we must recognize many of the prevailing critiques of American punishment today as either erroneous or partial and inadequate.
For example, we sometimes see scholarly work that treats mass incarceration as an instance of Foucaults theorized disciplinary system. It would be difficult to imagine a more confused approach. No doubt, todays system has retained many of the disciplinary regimes features: the existence of an institution called the prison; forms of power that penetrate even the smallest details of everyday life; the production of a carceral archipelago that exports surveillance from the penal institution to the entire social body. But all this tells us is that institutions communicate with each other: such examples of connectivity do not belong to the disciplinary mode of power alone.
In fact, the current regime of power represents a radical break with the disciplinary regimes logic and aims: by the early 1970s, the United States was renouncing the corrective focus of penal welfarism, and it now deploys supplementary surveillance beyond the walls of the prison not to rehabilitate offenders or regulate conduct but to catch lawbreakers and feed more and more people into the prison system.
Scholars who study the penal system have developed a large body of work connecting mass incarceration to neoliberal economic policies of deregulation and privatization. Some posit a neoliberal cause and a punitive effect, while others argue that deregulation and privatization exacerbated social inequalities and therefore fostered a fear of crime, ultimately producing more surveillance, policing, and incarceration.
Bernard Harcourt provides a broader view, meticulously examining how classical liberal and neoliberal theories approach policing and punishment as market functions and regulators. In my view, however, he never quite demonstrates a strong connection between such models and present-day lawmaking, penalties, and practices.
No doubt, these analyses express an elemental truth about capitalism and coercion. The hidden hand of the market will never work without the hidden fist, as an apologist for both once put it. But the language that describes societys humdrum workings cannot explain systemic changes or historic shifts. Nor should we assume that whatever intensifies capitalism will also intensify coercive tactics. After all, neoliberalism is a global phenomenon, but the punitive state remains distinctly American, at least among developed democracies.
In any case, arguments that link neoliberalism and mass incarceration do not match the actual historical trajectory or the varied political currents in play. The punitive turn, as I have sketched it, began in the mid-to-late 1960s, but neoliberal policies did not begin gaining ascendency until the late 1970s.
Certainly, mass incarceration has had large economic effects. Bruce Western and Katherine Beckett estimated that, during the 1990s, Americas zeal for incarceration shaved two percentage points off unemployment figures. Roughly 4 percent of the civilian labor force either works for the penal system or works to put people in prison. If one includes private security positions and workers who monitor or guard other laborers, the results are striking: in an increasingly garrisonized economy, one out of every four or five American laborers is employed in what Samuel Bowles and Arjun Jayadev call guard labor.
No doubt, the American variant of neoliberalism used these facts to help establish itself. Indeed, one might conclude that the punitive turn, with its disdain for rule-breakers, losers, and outcasts, paved the way for the neoliberal turn, with its love of the market.
Another common line of criticism begins by recognizing the role liberals have played in constructing the punitive state. This scholarship conveys essential truths, but it too often overcorrects the prevailing storyline and erases valuable points of reference.
Naomi Murakawas book, The First Civil Right, is a case in point. The author scrutinizes New Deal timidity in the face of racial violence and calls attention to prominent Democrats and liberals who helped build the prison state by pursuing color-blind laws and modern police forces. In telling this important story, however, Murakawa blurs the important distinction between the Great Society approach to law enforcement and the punitive turn that followed.
Had the Democratic Party stayed its fundamentally social-democratic course, had it kept with the penal systems reformist program, had the policies of Johnsons Attorney General Ramsey Clark remained in place, and this is no small matter had the criminal justice system continued to develop alternatives to incarceration, the United States would not have evolved into a carceral state.
It is of course possible that prison rates would still have risen with the crime rates between the 1970s and the 1990s, but they would not have exploded, and mass incarceration would have remained the stuff of dystopian fiction.
Many activists, journalists, and scholars have highlighted draconian drug penalties as a primary cause of mass incarceration. To be sure, the war on drugs played a significant role in the prison systems growth, especially during the 1980s. But it represents just one element of the larger war on crime and has been slowly winding down since the early 2000s.
Today, drug offenders represent only about 15 percent of sentenced prisoners. While this is by no means a negligible number, we need a wider perspective. Enhanced penalties for a variety of offenses drug possession and distribution, surely, but also violent crimes, repeat offenses, crimes committed with a firearm, and sex crimes have all fueled the growth of the penal system. One often-overlooked population is parole violators, who represented 26 percent of prison admissions in 2013. The fact that the parole system, devised to reduce the prison population, now enlarges it gives us important clues about the self-perpetuating nature of the system today.
Finally, sociologists, criminologists, and critical race scholars have closely scrutinized the racial disparities in arrest, prosecution, and incarceration rates. Many conclude that mass incarceration constitutes a modern regime of racial domination or a new Jim Crow.
This perspective highlights important facts. While African Americans make up only 13 percent of drug users, they account for more than a third of drug arrestees, more than half of those convicted on drug charges, and 58 percent of those ultimately sent to prison on drug charges. When convicted, a black person can expect to serve almost as much time for a drug offense as a white person would serve for a violent offense.
These statistics demonstrate how race-neutral laws can produce race-biased effects, especially when police, prosecutors, juries, and judges make racialized judgments all along the way. Needless to say, had the mania for incarceration devastated white middle- or even working-class communities as much as it has black lower- and working-class communities, it would have proved politically intolerable very quickly.
But the racial critique consistently downplays the effects of mass incarceration on non-black communities. The incarceration rate for Latinos has also risen, and the confinement and processing of undocumented immigrants has become especially harsh. And although white men are imprisoned at a substantially lower rate than either black or brown men, there are still more white men in prison, in both raw and per capita numbers, than at any time in US history.
In mid-2007, 773 of every 100,000 white males were imprisoned, roughly one-sixth the rate for black males (4,618 per 100,000) but more than three times the average rate of male confinement from the 1920s through 1972. As James Forman Jr argues, the racial critiques focus on African American imprisonment rates expressly discourages the cross-racial coalitions that will be required to dismantle mass incarceration.
In his important contribution to this debate, Forman has outlined the racial critiques main limitations. First, he argues that this analysis minimizes the historical effect of spiking crime rates on public opinion and lawmaking. By blaming only white backlash for harsher penalties, the racial critique obscures substantial levels of black support for these policies.
Second, Forman shows that the often-invoked Jim Crow system makes for a poor analogy with mass incarceration. Jim Crow was a legal caste system that took no notice of class distinctions among black people. By contrast, todays punitive system does not affect all African Americans the same way; rather, it predisposes the poorest and least educated to incarceration, and the impact of mass incarceration is concentrated in black inner-city neighborhoods. (As Bruce Western has shown, the risk of going to prison for college-educated black men actually decreased slightly between 1979 and 1999.)
Third, because of its emphasis on drug laws, the racial critique skirts the important question of violent crime. Roughly half the prisoners now in custody were convicted of violent crimes, and racial disparities among this population are even wider. [An] effective response to mass incarceration, Forman concludes, will require directly confronting the issue of violent crime and developing policy responses that can compete with the punitive approach that currently dominates American criminal policy.
We might make a similar argument about the racial critique of abusive policing, which highlights important injustices but fails to provide a comprehensive picture of the whole system. Police do kill more black than white men per capita, a disparity that only increases in the smaller subset of unarmed men killed in encounters with police. But in raw numbers cops kill almost twice as many white men, and non-blacks make up about 74 percent of the people killed by police. We cannot dismiss these numbers as collateral damage from a racialized system that targets black bodies.
Examining the profile of these unarmed men is revelatory. Statistically, an unarmed white man has a slightly smaller chance of being killed by law enforcement than he does of being killed by lightning; an unarmed black mans is a few times more. In either case, these rates are many times higher than in other affluent democracies, where violent crime rates are lower, the citizenry is less armed, and police if armed at all are less trigger-happy.
Whether black or white, the victims of police shootings have a lot in common: many were experiencing psychotic episodes either due to chronic mental illness or drug use when the police were called. Many had prior arrest records or were otherwise previously known to the police. Whether black, white, or brown, the victims of police shootings are disproportionately sub-proletarian or lower working-class.
Exceptions occur the white middle-class teen shot in the back while fleeing from the police; the black child spotted in the park and hastily shot with what turned out to be a toy gun but most victims appear to have lived lives of extreme precarity, variously marked by racial discrimination, poverty, mental illness, and social abandonment.
Thus far I have described the rise of the carceral state in largely negative terms: what happened in the late 1960s was not only a war on drugs nor a new system of racial domination but something wider. A succession of changing motives and rationales supported the punitive turn, and the urge to punish came from an array of sectors and institutions. The time has come to sum up my analysis in more positive terms.
First, beginning in the 1970s, all social institutions turned toward detection, capture, and sanction. A broad-spectrum cultural shift away from values of forbearance, forgiveness, and redemption animated this transformation. The punitive turn was, first and foremost, a cultural turn.
Many observers today look skeptically at cultural explanations of this sort, which claim that people do x because they believe y. From structuralism to poststructuralism and beyond, a cavalcade of theoretical currents promoted an abstract idea of culture, severing it from history and political economy. In highlighting the cultural element in these developments, however, I do not mean to suggest that culture always sets the course of historical events, only that it sometimes does a point that Friedrich Engels was also keen to make.
Further, I do not assert that once the desire to punish got into peoples heads, it spread uniformly throughout society, nor would I argue that this cultural shift sprang into being ex nihilo.
At its inception, the punitive turn found fertile ground in preexisting institutions of race and class. As it developed, political actors and moral entrepreneurs reworked received ideas, some of them older than the republic, some of them torn from the headlines. The United States long history of capitalism and various forms of power all participated in the carceral states development.
Second, federal legislation played a key role in institutionalizing and hardening this cultural change. This was not merely a question of mechanizing the law with mandatory minimum sentences or three strikes provisions but of automating a system of interconnecting institutions.
The nucleus of this development was already present in the 1968 Safe Streets Act, aimed at expanding and modernizing policing, and in the LEAA, designed to increase prosecution and conviction rates. From this start, police forces grew, became more proactive, and made more arrests.
Securing greater cooperation from more victims, prosecutors brought more cases to court often with higher charges. Responding to the shifting mood, judges sentenced more defendants. Across four decades, legislators passed laws that criminalized more activities, increased sentences, and expressly barred compromise, early release, consideration of mitigating circumstances, and so on. Put simply, the law became more punitive. Such mechanisms could persist under changing conditions because a vast institutional network spanning the state and civil society actively produced fresh rationales for them.
The punitive turn was consolidated into a punitive avalanche.
The result was a transformed system, in which prison, parole, and so on were stripped of their disciplinary aims (reeducation, rehabilitation, reintegration) and reoriented toward strictly punitive goals (detection, apprehension, incapacitation). Horkheimer and Adorno would have called this instrumental rationality: a nightmare version of bureaucracy that suspends critical reasoning and tries to establish the most efficient means to achieve an irrational end.
The present moment seems propitious for change. Violent crime rates have fallen to levels not seen since the early 1960s, reducing public pressure for harsh laws and tough sentences. Upbeat journalists periodically write stories covering more rational approaches to crime and punishment in even conservative states. The criminal justice systems racial disparities have become a point of national embarrassment, and, as early as 2007, the United States Sentencing Commission began retroactively intervening to reduce the sentences of some federal inmates convicted on crack-cocaine charges. Polls suggest that Americans across the political spectrum largely support reducing the number of people in prison.
Improvements have moved slowly, however. The prison population fell from a peak of 2.3 million in 2008 to 2.1 million today, but more substantial declines do not appear to be forthcoming. Thanks to our federal system, substantially reforming the carceral regime will prove difficult: it will demand revising thousands of laws and practices at mostly local levels.
Meanwhile, the Left is divided over how to imagine and advocate for our goals. Prison abolitionism has gathered steam among some activists, although it shows little sign of winning over the wider public. With evangelical zeal, abolitionists insist that we must choose between abolition and reform, while discounting reform as a viable option. The history of the prison system, they say, is a history of reform and look where that has gotten us.
I have tried to show here whats wrong with this argument. It is remarkably innocent of history. In fact, the history of reform was interrupted some time around 1973 and what we have had instead for the past five decades is a history of counter-reform. The unconscionable conditions we see today are not inevitable byproducts of the prison; they are the results of the punitive turn.
Abolitionists base their approach on an analogy between the prison system and chattel slavery. This is a strained analogy at best, and it only appears convincing in light of the oversized and unusually cruel American penal system. Slavery was an institution for the extraction of unfree labor over a persons (and his or her childrens) lifetime; the prison is an institution that imposes unfreedom for a set period of time as punishment for serious infractions historically with the express bargain that at least theoretically the lawbreaker was to be improved and reintegrated into society. The better analogy might be with other disciplinary institutions, which also to varying degrees curb freedoms in the name of personal and social good: the school, the hospital, the psychiatric institution.
Abolitionists usually respond to the obvious criticism but every country has prisons by citing Angela Daviss polemical work, Are Prisons Obsolete? Slavery, too, was once universal, they point out; it required the abolitionists utopian vision to put an end to that unjust institution.
But this, too, misstates history. By the time American abolitionism got fully underway in the 1830s, much of Europe and parts of Latin American had already partially or wholly abolished slavery. The Haitian Revolution had dealt the institution a major blow, and slavery was imploding in parts of the Caribbean. A world without slavery was scarcely unthinkable. The same cannot be said of prisons: all signs suggest that the public and not only in the United States believes that prisons are legitimate.
Abolitionist arguments usually gesture at restorative justice, imagining that some sorts of community institutions will oversee non-penal forms of restitution. But here, we are very far out on a limb. Such models might more or less work in small-scale, face-to-face indigenous or religious communities. But, in modern cities, it is implausible to think that families, kinship networks, neighborhood organizations, and the like can adjudicate reconciliation in a fair, consistent manner.
In short, abolitionism promises a heaven-on-earth that will never come to pass. What we really need to do is fight for measures that have already proven humane, effective, and consistent with social and criminal justice.
Consider Finland. In the 1950s, it had high crime rates and a punitive penal system with high incarceration rates and terrible prison conditions. In these regards Finland then was much like the United States today. After decades of humanitarian and social-democratic reforms, the country now has less than one-tenth the rate of incarceration as the United States. Its prisons resemble dormitories with high-quality health care, counseling services, and educational opportunities. Not coincidentally, its prison system does not breed anger, resentment, and recidivism.
Finlands system aligns with that of other Nordic and Northern European nations, all of whom remained continuously on the path of reform. There, small-scale penal institutions are insulated from public opinion, with its periodic rages against lawbreakers, and prioritize genuine criminological expertise. They have expressly rehabilitative aims, working not only to punish but also to repair the person and restore him to society. Penalties top out at around twenty years, consistent with the finding that longer sentences have neither a rehabilitative nor a deterring effect. Many Scandinavian prisons have no walls and allow prisoners to leave during the day for jobs or shopping. Bedrooms have windows, not bars. Kitchens and common areas resemble Ikea displays.
Rather than call for the complete abolition of prisons a policy unlikely to win broad public support the American left should fight to introduce these conditions into our penal system. We should strive not for pie-in-the-sky imaginings but for working models already achieved in Scandinavian and other social democracies. We should demand dramatically better prison conditions, the release of nonviolent first offenders under other forms of supervision, discretionary parole for violent offenders who provide evidence of rehabilitation, decriminalization of simple drug possession, and a broad revision of sentencing laws. Such demands would attract support from a number of prominent social movements, creating a strong base from which we can begin to build a stronger, universal safety net.
Institutions become obsolete only when more effective and more progressive alternatives become available. The poorhouse disappeared when its functions were replaced by social security, public assistance, health care clinics, and mental and psychiatric hospitals. We see no such emergent institutions on the horizon today that might render prisons a thing of the past. What we see instead are examples of criminal justice systems that have continued reforming, modulating, humanizing, shrinking, and decentralizing the functions of the prison. Creating just such a correctional system, based on genuinely rehabilitative goals consistent with our view of social justice, should be a main task of socialists today.
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How to End Mass Incarceration – Jacobin magazine