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The poor storm: Ending mass incarceration in America

Jonathan Simon, professor of law | February 2, 2012

“But every society has a poor storm that wretches suffer in, and the attitude is always the same: either that the wretches, already dehumanized by their suffering, deserve no pity or that the oppressed, overwhelmed by injustice, will have to wait for a better world. At every moment, the injustice seems inseparable from the community’s life, and in every case the arguments for keeping the system in place were that you would have to revolutionize the entire social order to change it — which then became the argument for revolutionizing the entire social order. In every case, humanity and common sense made the insoluble problem just get up and go away. Prisons are our this. We need take more care.” — Adam Gopnik, “The Caging of America: Why do we lock so many people up?” The New Yorker, Jan. 30, 2012

You know that mass incarceration has arrived as a social problem it is time to solve when literary writers who usually raise goose bumps on the arms of readers in book store cafes writing about Paris, brie and turkey (the food not the country) turns to the question of why so many Americans are fated to spend much of the rest of their lives in prison while the country in enjoying its lowest crime rates in decades. In a powerful essay wrapped around a discussion of several recent books on criminal justice in America, Adam Gopnik delivers up the most thoughtful understanding of mass incarceration yet to appear in American journalism (read it here).

Gopnik goes right to the point. Prison is cruel, even if you are not raped or in need of careful medical attention, because it turns the very gift of life itself, time, into a trap designed to produce pain. And it does. Of course America is not the only nation that adopted prisons, which appeared to be a humane alternative to torturing people in scaffolds or transporting them to Australia at the end of the 18th and beginning of the 19th century. The difference is that we send so many people and seek to incarcerate them so long.

Why? Drawing on excellent recent books on American punitiveness, including William Stuntz, The Collapse of American Criminal Justice; Robert Perkinsons, Texas Tough: The Rise of America’s Prison Empire, and Michelle Alexanders, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Gopnik suggests American proclivity for incarceration comes from different strains in our culture. One associated with the North, is a confidence in procedures to justice (as well as an optimism about machines to make things better, the penitentiary was a machine). Another associated with the South, is a commitment to forceful racial controls through degrading means (exemplified by Texas’ tradition of plantation prisons described by Perkinson and in Michael Berryhill’s just published, The Trials of Eroy Brown). Gopnik also mentions the rise of private prisons which also puts the profit motive behind building up and maintaining mass incarceration.

But as Gopnik recognizes, all of these features of American penality and life were present before the late 1970s, when the present run-up of incarceration began. The change was facilitated by the massive increase in urban crime that began in the early 1960s, and may have ended in the 1990s. This crime wave, often blamed on demography, but never adequately explained, reshaped American expectations about cities and insecurity in ways that transformed the routine activities of every generation since (just look at our locked down lives as well as our locked up prisoners). As the wave crested in the 1970s, alarming images of violent crime on the streets (serial killers) and in prisons (Gopnik mentions killings of guards at Marion federal prison in 1983 which initiated the first federal supermax prison, but the twisted story of the Attica prison uprising and retaking in 1971 may have already framed American prisoners as psychotic terrorists more than a decade earlier).

The fear of crime, named already as an object as well as problem by a New Yorker writer Richard Harris in 1969, has been with us ever since and forms the moral foundation for the mass incarceration state. It is this ingredient, above all, which has made prisons unassailable even at time when both the proceduralism and racism of our system have been widely exposed. Which is why the New York crime decline, charted by Zimring is so important. New York reduced crime vastly more than anyone else and did so while imprisoning fewer people and it did so largely using a grab bag of mundane police tactics. The key assumption of mass incarceration, that a prisoner in prison, is a long string of crimes avoided, is simply false.

Stripped of any pretense that prison reduces crime, it amounts to a cruel punishment now untethered to any limits of proportionality that as Durkheim argued provides the essential signature of the common consciousness in the will to punish. But even naked cruelty, can stand for decades, look at slavery or child labor. But if reducing crime is a matter of taking more care, as Gopnik apprehends, it will take a change of conscience, not a change in our criminologies (or not just a change, the truth is important) to unlock mass incarceration. Even now, the small steps back from the edge of proceduralism and racial control, like the reduction of the crack/powder sentencing differential in federal law, and the leeway granted by the Supreme Court to federal courts in sentencing under the no-longer mandatory guidelines, are under political pressure (hear Carrie Johnson’s report “GOP Seeks Big Changes in Federal Sentences, on NPR here). Its not just our political parties,its our media, our urban landscapes, and ultimately our own imagination that keeps crime available as a construct to interpret our world and authorize power.

Which is why it is not just felicitous that a writer on food and culture takes an interest in prisons. Starting with the great wave of revulsion that greeted John Howard’s State of the Prisons in England and Wales (1777), writers and artists have played a crucial role in articulating the cruelty of prisons by touching the humanity of readers and observers.

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

Comments to “The poor storm: Ending mass incarceration in America

  1. legal representation means that the police are either prejudice or they, the prosecution and polititions are social sycopathic people who don’t care about a person rights and will do what ever they can to circumvent them in an effort to secure convitions. As for the Death Penalty, it should be abolished when we have uncovered the fact that innocent people have been sentence to die for something they did not do or for that matter, a crime that never occurred. This is evident with the exoneration of what I believe are perfectly innocent people like Anthony Graves, George Stinney, Lena Baker, Just to name a few. So for all you pro death penalty people, count your days becase this maddness will end.

  2. Mass incarceration is nothing more than the “New Jim Crow”. The fact that Black folks and people who live in lower income communities are the target of these programs is telling. As an American who just so happened to be black, I have on numerous occations been stopped an questioned by the police only to be forced to invoke my constitutional rights just to get the cops to back off and leave me alone. Understandable cops have a difficult and sometimes dangerous job to do but, the people they should worry about harming them are the ones they victimize. However, to arrest some people for carrying a small amount of weed in their pocket because they are black or just so happen to be poor and not arrest some well off person who can or his family can afford quality

  3. I’m a NYer subscriber and a fan of Adam Gopnik’s articles, but I found his piece on prisons so outlandish in its arguments I actually thought I was reading a parody on liberals by The Onion!

    According to Gopnik, America is openly engaged in rounding up innocent minorities and unjustly convicting them of “crimes” with mere legal trickery, and then dumping them in prisons and even solitary confinement for the sake of sheer cruelty. Gopnik compares our system to the Gulag justice of the USSR (if not Nazi Germany is the unstated but obvious implication). You who support your local police, did you realize you’re a quisling?

    Our shameful solution of Mass Incarceration is done at great expense, but not to reduce crime and keep citizens safe, but only for racist spite. It follows that the entire American criminal justice system from beat cops to judges is on this grand conspiracy, even though, Gopnik keeps reminding us, it is obvious to anyone with half a brain that locking up these innocents has utterly nothing to do with the dramatic decrease in crime over the last 30 years. The decrease in crime is merely a strange coincidence.

    We also learn that many thousands of people are in prison today because they possessed a small amount of marijuana. This is Gopnik’s centerpiece example for the America’s large prison population; and it’s completely untrue like most of his other points.

    There’s just so much of the incredible, the untrue and the intellectually dishonest in Gopnik’s piece that I can’t touch on it all here.

  4. If you are reading this I so humbly ask that you please sign my petition to Governor Cuomo and the NYS Legislature in support of a “Second Chance Act” for eligible (i.e., reformed) 1st time non-violent felony offenders whom have gone at least 7 years without being convicted of any subsequent felony acts so as to end the current state sponsered practice of LEGALIZED DISCRIMINATION against these reformed individuals every single day in nearly every sector of their lives (e.g., PLEASE imagine being LEGALLY DISCRIMINATED AGAINST every single time you try to get a halfway decent job to feed your family and/or every single time you try to rent a halfway decent/affordable apartment all because of some past victimless mistake, like in my case, happened when I was just 19 years old). Please stand with me by signing this petition and tell our elected officials its time to give reformed 1st time non-violent felony offenders a 2nd chance at being 1st class citizens and to promote this “apperantly” radical new idea of rehabilitation in our “so called” “CORRECTIONAL” SYSTEM. PLEASE sign my petition by clicking on the following link @ . Todays date is 2/26/2012. Thanks so much for reading this!

  5. None of our politicians (or very few anyhow)are willing to do anything about it…it is not a vote-getter. The Democrats like to thump their chests and talk about how “tough on crime”…every bit as much as the Republicans. As for cruelty….my impression is most Americans either don’t want to know about it, or don’t care.
    — Pana

  6. The dominant reasons for this cataclysmic social breakdown of American Democracy are far too many decades of failures by our elected representatives, including:

    1) Failures to fund the education necessary for all citizens to meet the requirements and needs of Democracy,

    2) Selling out of America by enabling the export of millions of American jobs overseas (which is the #1 cause of our trade deficit and all of our social and economic problems), and

    3) Their paramount cultural values of cowardice, greed and immorality which are the antithesis of the cultural values of our Founding Fathers who risked their live to “mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

  7. Of course, prison reduces crime. That crime could decline at the same time that the prison population declines in one particular city is a far cry from stripping any pretense that prison reduces crime. Consider the counterfactual — how much would crime have declined in New York without those reductions in the prison population? There is an enormous body of empirical evidence that documents non-trivial and often substantial crime reductions that result from increases in the prison population.

    It goes without saying that the crime reductions we get by incarcerating the marginal prisoner have declined since the 1980s. Perhaps, we’ve even reached the point where incarcerating more people simply isn’t worth the cost. But the notion that incapacitating criminals has nothing to do with the crime rate is sheer nonsense. There is not a scrap of empirical evidence to support the enormous logical leap that Professor Simon has taken in this blog post or many others he’s written in the past. It’s hard for me to believe that these types of statements are not just intentional hyperbole designed to stir up conversation. It’s hard to imagine how any serious scholar (or anyone with a scrap of common sense) can take something like this seriously.

  8. While I totally agree that we are locking up way too many people in the US, that it is out of control, and damn sure is often very cruel, I can’t agree with: “Stripped of any pretense that prison reduces crime”

    A serial burgular in prison won’t be able to break into your house. I worked a dozen plus years (teaching) in a prison, and some of the inmates are simply criminal types with little or no conscience, and if not locked up they’re out preying on people. Prison does stop a certain amount of crime.

    Nontheless, it is now epidemic, especially here in California where we can’t afford it, but we locking up huge numbers.

    In the late 1960’s so many started smoking pot and quickly learned to watch out for cops and narcs…& not to trust authority. The drug war wasn’t the only reason for this rise of massive incarceration, but it sure did help.

    None of our politicians (or very few anyhow)are willing to do anything about it…it is not a vote-getter. The Democrats like to thump their chests and talk about how “tough on crime”…every bit as much as the Republicans. As for cruelty….my impression is most Americans either don’t want to know about it, or don’t care.

    Perhaps the only way to change this current situation is to stress more and more that we can’t afford it.

    • Here’s a few thoughts. You say that that the death penalty is a simple solution but you spend the rest of the piece demonstrating how complex it is. You say that it is retributive without saying exactly what is wrong with retributive justice. You that it is not cost effective but government is the least cost effective form of organizational behavior. Actually, government is a negative multiplier and by your logic we should probably do away with the whole thing. You say that the death penalty is around to uphold our vision of justice but you do not give historical reasons for the death penalty, what our vision of justice is and why that vision is faulty. You provide no evidence that rehabilitation works or that the death penalty is more expensive than incarceration.

      The reason for the death penalty in my view is that life is sacred. To take someone’s innocent life is about the worst thing a person can do. It is irrevocable and if you believe in God like I do it is actually a sinful act against a holy God. This is a custom and tradition in our Western Civilization and something the liberal secular humanists would try to deny. Justice require a suitable method of punishment for the ultimate crime. The death penalty cannot change the situation and it is not done for the sake of revenge, it is done as a sign that our civilization does hold life sacred and those who violate it must pay the ultimate penalty. It has nothing to do with cost effectiveness but you are correct that it has everything to do with our vision of law and justice.

      How do you feel about the death recently given in the case of those two men who killed a man’s two daughters and his wife? His daughter was probably molested and his wife was raped and strangled to death. His family was terrorized for about 24 hours. The two girls were tied up in their beds and had gasoline poured over them prior to the house being set on fire. This man lost his whole family and his relatives were traumatized to the point that I doubt any of them will ever be same. I wonder how he feels about the death penalty.

      At any rate, it does not really matter for your exercise if you are pro or con, what matters is how well you make your case. You need to back up empirically what you say, make sure that your statements are consistent and logical. You really need to think deeply about your topic, stick to the main points, make sure that your assumptions are defensible and that you really give it your best shot. This is a great start but you need to keep working at it. Remember to cite sources so people know that you have done the research and give proper attribution.

      I’m sorry to be so hard on you but this is the way I was taught. I had one teacher who had two grades A and F. It was just about perfect or it was unacceptable. That was her way of preparing us for the real world and her constant insistence that we write and rewrite and never give up until we have given it our best shot is the best lesson of all. For me it turned out to be great advice as over the years I have had several jobs that required a high degree of written communication skills.

      I also commend you for putting your stuff up there for for everyone to see and for asking for feedback. That shows you are already extremely bright, have a drive to succeed and not afraid to take criticism. You have a great future ahead of you.

      Best wishes,

      Tea Party Rocks

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