Politics & Law

Put a fork in it: Paper of record declares mass incarceration dead

Jonathan Simon

So forgive my mixing New York metaphors and class signifiers (I’ve never really lived in Gotham), but as cultural markers go today’s frontpage story in The New York Times, using the phrase “mass incarceration” and declaring  it dead (or at least out of favor among everyone they know and like) is an important occasion in the life of those of us who want to see it so.

Transformative social policies, penal and otherwise, are primarily acts of imagination and John Tierney’s article, which spilled over into two full pages of the national print edition, offered a wide ranging and thoroughly critical look at some of the policies that have defined our penal sensibilities for the past forty years.  Tierney, no less the Times “Findings” columnist, promises more to come, but today’s dose offered up a large helping of reportage on how the policy elite, particularly nationally prominent social scientists  and the politicians who sometimes seek to find space for innovation, now view mass incarceration.

Tierney’s coverage (and the consensus it may have captured) is highly concentrated on one part of mass incarceration, the war on drugs.  The article profiles half a dozen Americans who have already served years, sometimes decades, on Life Without Parole Sentences, for non-violent drug crimes, generally involving possession of large quantities of drugs for sale, and many of them were accomplices with a less substantial role even in that crime than others.

As the profiles make clear, none of these prisoners, and many others like them, have done the kind of unforgivable things that most American associate with LWOP sentences, namely murder, or at least kidnapping, rape, child sexual abuse.  Nor on an individual level do any of them pose any significant risk of committing those kinds of acts in the future.  Instead, their incarceration is premised on the prospect that LWOP sentences would deter many from entering drug dealing, and incapacitate others committed to the life.

Tierney’s reporting is particularly significant for naming mass incarceration as such (even if misses the opportunity to cite or interview some of the social scientists who named as it such, like David Garland who is a couple dozen blocks away at NYU).  After opening with Stephanie George, a woman sentenced to LWOP for drug possession more than a dozen years ago, Tierney moves beyond the individual to place it in

“a revolution in public policy, often called mass incarceration, that appears increasingly dubious to both conservative and liberal social scientists. They point to evidence that mass incarceration is no longer a cost-effective way to make streets safer, and may even be promoting crime instead of suppressing it.”

Also significant is that Tierney traces the genealogy of mass incarceration from policy to political success through the enormous intellectual influence of the late James Q. Wilson, a political scientist who taught at Harvard, UCLA and Pepperdine, and whose book Thinking About Crime (originally published in 1975) was in my view the key text of mass incarceration in its embryonic form.  His framing of crime as an economic and later an almost biological problem, caught the imagination not only of the conservative Republicans he personally aligned himself with, but many leading Democratic politicians as well (for my own version of the genealogy see my “Mass Incarceration: From Social Policy to Social Problem” in Joan Petersilia and Kevin Reitz, The Oxford Handbook of Sentencing and Corrections“).

According to Tierney, mass incarceration is now viewed as empirically dubious by contemporary social scientists.  Stephen Levitt, one of the most prominent exponents of the thesis that mass incarceration worked (at least until the mid 1990s), suggests that now the marginal value of the prisoners being incarcerated is so low from a crime control point of view that we ought to have at least a third fewer of them.  Criminologists Peter Reuter and Jonathan Caulkins note that the declining level of drug prices and wide availability have conclusively proven that locking up drug dealers cannot shrink let alone stop that market.

The change here is not in the social science, where the consensus was against mass incarceration a decade ago, but in the sense that it might matter to politicians (especially at the state and local level who have the most to gain from shrinking correctional budgets) and that it might be safe to come further out in this nice warm water of policy consensus.   Of course the cultural salience of papers may be shrinking.  The paper of record is not what is was in ’64 when Abe Rosenthal helped make living in cities seem insanely dangerous from a crime perspective by blaming the Kitty Genovese murder on bystander effects (which come up in Joe Nocera’s column this week). The problem is that with penal matters things can get hot fast.  Thus a few notes to keep in mind as we watch the further role out of this important series of columns and the response to it.

  • Bear in mind that despite the importance of social scientists like James Q Wilson in legitimizing it, mass incarceration was not primarily sold to the public on its social science bonafides and indeed Wilson, despite having been a great social scientist up to that point marked a transition to being mostly an ideologue with the very book Thinking About Crime.  The book was not filled with great social science theory or data, but in fact was largely based on the presumption that when the price of crime goes up, the amount of it must go down.  Instead the marketing of mass incarceration was its fit with a series of cultural experiences, especially the racialized fear of rioting in the late 1960s and the theme of criminal monsters (serial killers and sex offenders) that began in the 1970s, along with the trope of government bureaucratic bungling which made any crime policy not built of brick and mortar apparently unreliable.  Creating a just and legitimate alternative to mass incarceration will take a lot more than “freakonomics” (which is closer in spirit to what got us into it), especially political and moral discourse and struggle about what mass incarceration meant.
  • The war on drugs only accounts for a portion of mass incarceration.  A large and growing share of it is the unnecessary length of prison sentences for violent crimes, including the “unforgivable ones”.  While Tierney and his sample of social science elites and politicians steer a wide berth around any possibility of reconsidering LWOP and other long sentences for violent crimes, reforms that fail to do so will leave us with a system that looks a lot like mass incarceration, maybe a third smaller (per Professor Levitt’s preferences, against 5x increase since 1970), perhaps even more racialized, and because of the significant role of health care costs, perhaps not much cheaper in the long run.  More importantly, unless we deconstruct the historically situated (but now forgotten) fears that underly our extreme sentences for violent crime, it will be easy for policy entrepreneurs to promote new wars on drugs and related forms of deviance in flusher fiscal times.

Cross-posted from Jonathan Simon’s blog Governing Through Crime.

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