Tag: Criminal Justice

Review: Are Prisons Obsolete?

Review: Are Prisons Obsolete?

Are Prisons Obsolete? by Angela Y. Davis

My rating: 4 of 5 stars

Despite the important gains of antiracist social movements over the last half century, racism hides from view within institutional structures, and its most reliable refuge is the prison system.

If you know anything about Angela Davis—anti-racist activist, Marxist-feminist scholar—you know that her answer to the question posed in the title is “Yes.” This is a short primer on the prison abolition movement, written at a time (2003) when criminal justice reform was not an especially popular topic in mainstream politics. Though mass incarceration was already well underway by the time Angela Davis published this book, it would take the public over a decade to come to grips with this disturbing transformation of the American criminal justice system.

Angela Davis spent some time in prison herself. Indeed, she was the third woman to make it onto the FBI’s 10 most-wanted list, when guns registered under her name were used in a deadly courtroom attack. (After a nationwide campaign, a court ruled that mere possession of the arms used in a crime was not enough evidence to entail guilt, and she was released.) Davis already considered herself an anti-prison activist in the late 1960s, when the national prison population was about 200,000. By the time she published this book, that number had gone up by 1,000%.

Davis provides some valuable background into the rise of prisons. Though nowadays the prison—like public schools and office jobs—seems like an inevitable part of life, it is worth remembering that, like so much we take for granted, it arose under particular historical circumstances in the not-too-distant past. In the case of prisons, it arose in the context of the Enlightenment, specifically when ideas of the social contract and individual rights became more widespread. After all, it does not make much sense to punish somebody by depriving them of their rights if they did not have any to begin with. (This is also why prison was not used as a punishment for slaves or, for many years, women.)

Another historical root of the prison is Christianity. The name ‘penitentiary’ indicates what early prison advocates hoped it would accomplish: by giving criminals time to reflect upon their evil ways, they would repent, reform themselves, and be able to return to society as a productive member. It does not take much imagination to see the continuity between the monastery and the jail, where the inhabitants occupy cells, follow strict routines, and endure much time alone.

Thus, prison originally arose as a far more humane alternative to the sorts of corporal and capital punishments common in America and Europe—lashings, removal of limbs, burning, hanging, and so on. And of course, however brutal prisons may be, I think we must acknowledge that they are certainly more humane than what came before. Nevertheless, we must also acknowledge that much of the rhetoric of reform and repentance has fallen away. Considering the brutal conditions inside prisons, and the high rates of recidivism upon release, talk of personal transformation nowadays would sound insincere at best.

Davis then goes on to offer a series of other critiques of the prison system. The anti-racist perspective—that the criminal justice system disproportionately targets people of color—will be familiar to most Americans nowadays. Davis also has much to say on the subject of female prisons, the most disturbing of which is the widespread sexual assault that occurs in these institutions. Last, Davis talks about the perverse economic incentives of prison: cheap labor, captive markets, and a way of dealing with otherwise ‘unproductive’ members of society. In short, the criminal justice system, as it stands today, exacerbates and reinforces existing inequalities.

The last chapter is on potential alternatives, and this is where I thought the book was most lacking. Davis is fairly vague on the possible alternatives to prison. She does, however, make the important point that there is not one, single replacement, but a variety of options for different sorts of problems. Some of these are obvious: expanding mental health resources, legalizing and regulating sex work, drug rehabilitation programs, and other usual suspects. But the great stumbling block to prison abolition is not the many non-violent acts that are currently criminal, but violence. What shall we do with rapists, armed robbers, and murderers (which, it is important to note, commit a minority of crimes)?

Davis does not directly answer this question, but instead ends with the story of Amy Biehl, a young white American woman who was killed in South Africa during the unrest of Apartheid. The four men convicted of her murder were pardoned as part of the Truth and Reconciliation Commission; two of them eventually met Biehl’s parents, and were hired to work in the NGO established in Amy’s name.

Davis offers this story as an example of “restorative,” rather than “retributive,” justice. However, I think that reliance on such stories does sidestep the essential issue at hand, and that is the issue of deterrence.

In my view, the strongest justification for prison is as a deterrent to socially destructive behaviors, and its continued existence should depend on how effective it is as a deterrent. Admittedly, this is not how most of us think about prison. The natural human tendency—so strong as to be almost irresistible—is to think of punishments as vengeance. The idea that somebody could commit a horrid act and get away with it can be deeply disturbing. It is as if the whole universe has been set wrong, and harsh punishment is required to set it right.

This compulsion is so strong that even many people arguing for police defunding or decarceration ask for vengeance. After all, one common demand is that offending police officers be themselves arrested and imprisoned. It is remarkably upsetting to consider that, say, police officers could bust into Breonna Taylor’s house and kill her in her sleep, and not even lose their jobs. And yet letting go of this sense of vengeance is exactly what activists such as Davis are asking us to do.

In cooler moments, we may consider that no amount of punitive action for those officers will bring Taylor back. And, of course, the same is true of most crimes: the punishment may seem to correct the cosmic scales, but it rarely undoes the crime (unless, say, a thief returns stolen goods). The truth, however, is that punishment is not really about the criminal; it is a negative consequence imposed to deter further criminal acts by others. In other words, the punishment is really for all would-be criminals. Thus, punishment is justified if, say, imprisoning the police responsible for Taylor’s death would make other atrocities less likely.

(Of course, in some cases there is also a public safety element to imprisonment. If a person is potential danger to their community, then it is justifiable to remove them. Thankfully, the number of serially violent criminals is fairly low.)

To revisit the case of Amy Biehl, if every murderer was pardoned and then offered a job, I think it is fair to say that this would create a perverse incentive structure. This is the challenge of radical criminal justice reform. And this leads us many empirical questions: How effective are prisons at crime deterrence? Does the crime rate depend on the incarceration rate? Does the crime rate depend on the severity of the sentencing? Is there another sort of deterrence that would be more humane? While considering all these points, the guiding ethical principle must be to inflict the least suffering consistent with a safe community.

Judging for myself, it seems implausible that the incarceration rate and the stringency of sentencing have a decisive effect on the crime rate. The United States has the highest incarceration rate in the world, and yet the country is hardly a paradise of lawful behavior. On the contrary, by many metrics the US experiences far more violent crime than comparable nations. Clearly other factors—widespread poverty, a poor social safety net, the availability of guns—are playing a big role. Furthermore, the continued use of the death penalty in the US, and the use of long sentences and brutal ‘supermax’ prisons, does not seem to have had an appreciable effect on the crime rate.

There is also the question of how our prison system is even contributing to the crime rate. After all, if we incarcerate huge numbers of people for nonviolent crimes, subject them to dehumanizing conditions, and then release them saddled with criminal records—effectively barring them from many jobs and forms of housing—then it stands to reason that criminal behavior will often result. And it does: recidivism rates are persistently high. Ideally, any justice system would not only deter crimes, but would help to rehabilitate those who have committed crimes. After all, the whole community gains when a former inmate becomes a productive citizen. Our current system, by contrast, traps former inmates into second-class citizenship.

If we want to examine a justice system built along different lines, we may take a look at Norway. There, prison sentences are much shorter (the average is around 8 months), and prisons themselves can look very different from what we imagine. In many prisons there are no security cameras and no barred windows, and the security guards are unarmed. (Also keep in mind that Norway’s incarceration rate is nearly ten times lower than America’s!) The consequence of this light treatment has not been an explosion of crime. On the contrary, Norway is one of the safest countries in the world. The recidivism rate is also low, meaning that most former inmates find work and lead productive lives.

Now, one may argue that the Norwegian way could not work in the United States, since it is a country with much less poverty and a stronger social safety net. But this is precisely the point of anti-prison activism: By discouraging us from seeing the prison as a dumping ground for undesirable members of society—a kind of human trash bin—it helps to focus our attention on improving our communities in other, less punitive, ways. A thriving society will simply not need as many prisons as one that is struggling. Imagining a decarcerated world thus requires that we imagine a world where government support comes in the form of jobs programs, affordable housing, drug addiction support, mental health resources, functioning schools—and not simply in the form of a baton and handcuffs.



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Review: The New Jim Crow

Review: The New Jim Crow

The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander

My rating: 5 of 5 stars

A war has been declared against poor communities of color, and police are expected to wage it.

When I was in high school, I was taught a story about American history. It went basically like this: The Founding Fathers created the Bill of Rights, which enshrined personal liberty into law. But being flawed men, they did not think of extending these rights to black slaves. This error was corrected over time: we fought the civil war, struck down Jim Crow, and marched for civil rights—trying to create a society where a person’s worth depended on the content of her character, not the color of her skin. This long and difficult process culminated in the election of Barack Obama, whose presidency seemed to be the strongest proof that the ark of history did, indeed, bend towards justice. I watched his inauguration in the auditorium of my high school, as living proof of the validity of this narrative.

When I was in high school, I also read Aleksandr Solzhenitsyn’s description of life in a gulag, and was taught about the horrors of repressive countries where citizens lack basic rights. The Bill of Rights would prevent any such thing from happening on American soil.

But there were many things I was not taught. For example, I was not taught that the United States currently has more people behind bars than Stalin ever had. Nor was it mentioned that, with less than 5% of the world’s population, we have over 20% of the world’s prisoners. None of my teachers likely knew that the United States not only has more prisoners per capita than China—an authoritarian country—but more prisoners in total—more prisoners than a country with over four times our population. In my class on American government, we did not learn that the US incarceration rate is six to seven times that of most European countries. In high school, we learned a little about Nelson Mandela, but we did not learn that the United States imprisons a greater percentage of its black population than South Africa during Apartheid.

When I was in high school, a police officer came in to give us a talk about illegal drugs. He was part of the D.A.R.E. program (Drug Abuse Resistance Education), which has been repeatedly proven ineffective. As if to underline the point, a substantial percentage of my white classmates went on to experiment with drugs, and I cannot recall a single instance of serious legal repercussions faced by any of them. We were not routinely stopped and searched, our homes were not broken into, we did not know anyone who was carted off to jail. My university was the same story: substantial levels of drug use with little enforcement and few consequences. For a white American growing up in these circumstances, the only way to learn about America’s enormous prison population—fueled by a War on Drugs that never seemed to manifest in white neighborhoods—would be to read a book like this one.

In this book, Michelle Alexander describes a criminal justice system totally incompatible with what we think of as the land of the free. She describes a system in which police focus attention on poor, black neighborhoods, and are given legal cover to racially profile. She describes police conducting searches without probable cause and confiscating money and items for mere suspicions. In this system, private residences can be broken into without warning by militarized SWAT teams, often on flimsy or false evidence. Alberta Spruill, a 57 year-old woman in Harlem, died of a heart attack when a flash bang grenade was thrown into her apartment. In 2015, a flash bang grenade was thrown into a baby’s crib in Georgia, burning the infant. In 1992 Donald Scott, a reclusive millionaire, was killed in his own home, apparently because police hoped to confiscate his assets. In none of these cases were drugs found. The case of Breonna Taylor is only the most recent example of this.

Simply put, the Bill of Rights has not prevented a situation from arising that would not be out of place in a book by Aleksandr Solzhenitsyn.

The Fourth Amendment is intended to protect us from “unreasonable searches and seizures,” and requires that warrants have “probable cause” and to specify the “things to be seized.” But when someone can be stopped on the street and patted down based on mere suspicion, or when someone can be stopped in their car and told to lie down in the street while police rummage through their car, confiscating any loose cash, then this constitutional language is dead letter.

The Eighth Amendment forbids “excessive bail” and “excessive fines,” and prohibits “cruel and unusual punishment.” Meanwhile, since the vast majority of those arrested are living in or near poverty, people routinely sit in jails for months, without being convicted of a crime, simply because they cannot make bail. When prisoners are released, they are provided with a pittance at the gate and told to go find work. At a time of extreme financial vulnerability, many are required to pay bills for their own incarceration, their own mandatory drug programs, and their own probation requirements.

As far as cruel and unusual punishment goes, the United States is notorious for being one of the few developed countries that maintains the death penalty. But even putting that to the side, the United States imposes prison sentences for drug offenses that are unusual in the world context, and undeniably cruel. In the Supreme Court case Harmelin v. Michigan, the court upheld a conviction of a life sentence without parole for possession of 672 grams of cocaine. Also unusual and cruel are the penalties imposed on criminals, even after serving their prison sentences. They are not eligible for food stamps or public housing, and often are forever deprived of the right to vote or serve on a jury. And this is putting aside the legal discrimination against former convicts when it comes to housing and employment. In short, any amount of prison time can turn one into a second-class citizen.

The Sixth Amendment guarantees citizens the right to a “speedy” trial, though I have already mentioned that many people are held in jail, unable to pay bail, for weeks, months, or even years. Though the amendment guarantees a “public” trial, many are thrown into prison without having had a trial at all. This is because prosecutors can tack on charge after charge, with little restraint, meaning a guilty verdict could result in decades behind bars. Faced with such a prospect, even some innocent people take plea deals in order to shorten their sentences.

The amendment guarantees an “impartial jury,” but jury selection—and the exclusion of black jurors—has been common practice for decades. Last, the amendment grants the accused the right to “the Assistance of Counsel,” but, as noted, many are imprisoned without ever having spoken to a lawyer. Even those who do ask for public counsel are wont to be sorely disappointed. Unlike prosecutors—remarkably powerful in the current system—public defenders are underpaid and overworked. The New York Times reports on one lawyer in Louisiana who had 194 cases at the same time.

The Thirteenth Amendment outlaws slavery but makes an exception for convicted criminals. This exception has blossomed into an enormous industry of cheap prison labor. Prisoners work, sometimes voluntarily and sometimes involuntarily, for far less than the minimum wage. The government also provides tax incentives for businesses to use prison, and it is a popular choice. Prisoners making a few cents per hour have labored for Starbucks, Walmart, and Victoria’s Secret, to name just three of the dozens of companies. In seven states, prisoners work the State Capitol Buildings and Governor’s Mansions, cleaning the spaces for the legislators who write the crime bills. In New York City, prisoners were used to dig the mass graves on Hart Island, where the city’s indigent are buried.

Why did this happen? Up until around the 1970s, the United States had an incarceration rate that was broadly similar to other developed countries. The change was political, and started with Nixon, who pioneered the “law and order” rhetoric that was to replace explicit mentions of race. Ronald Reagan put this rhetoric into action by initiating the War on Drugs, ushering in legislation that beefed up enforcement and instituted harsher sentences. But the Democrats certainly do not have clean hands, either. Michelle Alexander singles out the 1994 Crime Bill as the worst piece of legislation in the War on Crime, which was signed into law by Bill Clinton and written by none other than Joe Biden (even Bernie Sanders voted for it). The result of this legislation was a frightening increase in the incarceration rate. And it is difficult to see the timing of this vast expansion—coming right on the heels of the landmark civil rights legislation of the 1960s—as coincidental.

If our criminal justice system is really so egregious, why did it take us so long to realize it? One answer is obvious: the War on Drugs (which Alexander holds as mostly responsible for mass incarceration) is primarily directed against poor people of color, who have little political power. If SWAT teams were regularly raiding college dorms and frat houses—which they would be doing if we were really serious about the evils of drug use—then this level of police overreach and incarceration would never be tolerated.

But the other reason that this system was tolerated for so long is that, unlike earlier forms of segregation, the new War on Crime is formally colorblind. Instead of explicit mentions of race, mass incarceration is supported by the logic of meritocracy. Meritocracy is a seductive idea, not only because it allows us to say that the downtrodden “deserve it”—they are criminals after all—but because it always throws up exceptional counter-examples to the rule. This allows us to turn away from the thousands of black and brown people behind bars and turn toward remarkable people like Barack Obama and, indeed, Michelle Alexander herself. Yet just as the remarkable rags-to-riches stories of some entrepreneurs does not show that the economy is fair, the extraordinary success of Oprah Winfrey does not show that racism is dead.

Michelle Alexander has written an important and, in retrospect, a remarkably prescient book. Writing during the euphoria of the early Obama years, she alerted the public to an enormous and, at the time, largely invisible tragedy. Mass incarceration is simply incompatible with a free society; it has torn apart black and brown communities, and it harms many white Americans (mostly poor) as well. Now, as the current pandemic is spreading through our overcrowded prisons, decarceration is especially vital. And, of course, people who have served their time should not be forced to endure second-class citizenship once they are released. The spate of disturbing police killings is just the most visible symptom of a system that arrests far too many people, and can be reduced simply by decreasing the number of arrests. Decades after the War on Drugs was declared, we have millions behind bars, on probation, or on parole; and as the recent heroine epidemic has demonstrated, the drugs have not gone anywhere.



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