***
The New York Times proclaims the end of mass incarceration; prison population in the US is declining for the first time
in 37 years; Milton Friedman and Pat Robertson are advocating for
marijuana reform; several states abolish the death penalty and others are
closing prisons, importing and exporting inmates, and reducing their usage of
solitary confinement.
What is going on? Is mass incarceration, indeed, coming to
an end? Have we come to care more about the human rights of suspects,
defendants, and inmates? Have we rejected the war on drugs?
This talk, based on my book in progress with UC Press,
argues that these changes are the function of a new discourse of corrections,
fueled by the financial crisis. As I argue in the book, the severe crisis,
affecting especially local governments, generates new ways of conceptualizing
criminal justice problems, new alliances between conservatives and
progressives, new policies and practices of incarceration, and new ways of
imagining the offender.
Many wonderful books have come out recently that tell the story
of mass incarceration, offering political and cultural explanations both on the
micro and macro levels. In adding my own narrative of what happened before, and
especially AFTER the 2007 crisis, I do not wish to supplant political and
cultural analyses with historical materialism. Rather, I argue that the
expenditures on criminal justice tell a story of policymaking sincerity and of
the limits of criminal justice project as a sound fiscal investment. That is,
that a historical-materialist approach complements our understandings of
politics and culture. To understand the extent of this, we need to go back in
time to the first federally-initiated grand project of crime control.
Prohibition, initially the successful product of an
effective narrow coalition, was repealed largely because of its economic consequences:
a combination of poorly-funded law enforcement and the senselessness of giving
up on considerable tax revenue in a lean economic period. This poor experience impacted the
federal laissez-faire approach to criminal justice in the postwar years. This
trend began to be reversed by the Warren Court’s clamoring for federalization
of rights. Ironically, the Nixon election, often described as capitalizing on
high crime rates and protesting the Warren Court’s project of incorporation,
put in place an administration that was equally eager to federalize criminal
justice, but with a very different agenda in mind. The 1968 Omnibus Act’s
primary effect was fueling federal money into law enforcement, with the aim to
make police officers more effective in the streets. At that point, money had
not yet been fueled into prison construction upfront; arguably, money was never
fueled, wholesale, into prison construction at the federal level. Rather, this
front-end federal investment led to an increased number of arrests, requiring
room to house inmates. The trend of punitivizing local law by fueling federal
money persists to this day.
The big project of managing the product of these policing
tactics – prison building– was left to be financed at the local level, and
mostly through bonds. The bond mechanism does to prison construction what the
Nixon funding structure did to prison existence: It pushes it out of sight.
Rather than an open tax requiring voter information and approval, the specific
types of bonds used for prison construction act as a hidden tax, or rather, a
tax on future generations. The hidden aspect of prison finance is particularly
true with regard to private prison construction and operation.
And then, the financial crisis happened. While its epicenter
was the banking industry, it has had profound impact on the fiscal health of
local governments. Since the late seventies, most local governments have come
to rely on a tax base that is increasingly income- and sales-based, rather than
property-based. The former, compared to the latter, is much more sensitive to
fluctuations in the market. Shaking the tax base, and dealing in various
localities with the inability to pay for pensions, meant that local budgets
became depleted.
To bring things back into the correctional realm, it’s
important to remember that corrections constitute at least 7% of all
expenditures in state budgets, exceeding, in some states, the expenditures on
higher education. States and local governments—that is, the locations where the
vast majority of law enforcement, criminal justice and corrections occur—have
therefore had to face a reality so far hidden from the eye by the bond
mechanism and the illusion of a war on crime: The need to do with less.
**
This need to save on corrections has yielded a discourse
that I refer to as Humonetarianism: A scaling-back of the punitive project on
account of its fiscal consequences. In the book, I identify four main features
of Humonetarianism: New Discourse, New Allies, New Practices, and New
Perceptions of Offenders. I want to shortly discuss each in turn.
The new discourse of correctional scarcity tends to be
shallow and to focus on short term. Cost had always been part of the criminal conversation,
but it had never been a centerpiece of policymaking and advocacy. A good
example of this discourse is the new rhetoric of death penalty, whose successes
and gains are significant. Since the financial crisis, five states – New York,
New Jersey, New Mexico, Illinois, and Connecticut – have abolished the death
penalty. Many more states have placed moratoria upon its use and executions
slowed down considerably. In California, Prop 34, which failed to pass in the
2012, nevertheless closed the gap between supporters and opponents of the death
penalty to a mere 6%. An analysis of these campaigns shows the extent to which
abolition advocates moved away from arguments on human rights and deterrence,
put racial discrimination arguments on the back burner, and focused their
campaigns on costs. Similarly, conversations about legalization of drugs have
emphasized the waste involved in pursuing low level nonviolent offenders, and
the successful propositions in Washington and Colorado have relied on the
persuasive power of drugs as a source of revenue, much like their predecessors,
the prohibition repeal advocates.
The conversation about drug legalization and de-prioritizing
drug law enforcement reveals the second aspect of this discourse: Its ability
to generate new allies. The 2012 presidential election, and, to a lesser
extent, the 2008 presidential election, were notable for the complete lack of
any criminal justice discourse, and especially the absence of drugs. The Obama
administration, despite its controversial commitment to bipartisanism, did not
fear alienating centrists and moderates by explicitly making marijuana
enforcement a low priority. Leading conservative voices are calling for an end
to the war on drugs, citing fiscal responsibility and the possibility of
revenue as a powerful incentive. Among such names we count Jeb Bush, Chris
Christie, free market economist Milton Friedman, and religious figures such as
Pat Robertson.
The impact of humonetarianism has gone beyond rhetoric and
legislation, and has generated the third feature of this discourse: Innovative
practices in the field. California’s criminal justice realignment, consisting of
a refunneling of low-level offenders out of state prison and into county
jails—was initiated as a budgetary savings mechanism, correcting decades of
economic disincentives and ending what Frank Zimring referred to as the
“correctional free lunch.” Many states are closing or repurposing their
prisons, which yields a less savory aspect of humonetarianism: Deals with other
states to house their surplus prison population and thus make a profit on
closed institution. But many states, like California and Hawaii, are now
questioning the economic value of shipping their inmates out of state, and
coming up with structures to keep them at home. Even institutions that cannot
be repurposed, such as supermax prisons, seem to be saving considerable amounts
of money through reduction projects. Moreover, the financial crisis creates an
increased reliance on community corrections. Expenditures on programs have been
cut; the shallowness of the conversation in some localities does not allow for
a long-term assessments of the savings promised by recidivism reduction. But
there is an increasing reliance on GPS monitoring.
Fourth and finally, humonetarianism has made salient some
features and traits of the offender population. For decades, a policy of
selective incapacitation has made us examine inmates through the lens of their
level of risk; the financial crisis has come to make us see them in terms of
cost. The recent modest success in scaling back Three Strikes in California was
based on the increased salience of long-term Three Strikers as old and infirm
inmates, whose lengthy incarceration drives up the costs of health care, already
contested in California. And in many states, the introduction of geriatric
parole and medical parole are a somber indication of how little Americans
expect of their government: Not broad national healthcare for themselves, but
less state-financed free healthcare for their inmates.
**
There are limits to the power of humonetarianism to
transform the criminal justice apparatus. The for-profit aspect of our
incarceration project arguably leads to particularly ferocious activities by
private prison providers, who in this market of dearth try to offer an
alternative to decreasing incarceration. This is not only an exploitation of
the punitive state for profit, but sometimes generating more punitiveness by
lobbying for punitive laws, as well as seeking new and emerging populations of
potential inmates, such as undocumented immigrants.
It is also business as usual in many plantation-like
institutions that have always relied on a “tough-‘n’-cheap” financial logic.
The rhetoric of self sufficiency has a strong hold on many prisons and jails in
the rural south, and it has not abated, but rather been strengthened, in the
current crisis.
The dearth of rehabilitation programs, and their declining
number in these lean years, is another reminder of a limitation of this
discourse: It is mostly focused on emergency, short-term savings. Because
humonetarianism is not accompanied, in any serious way, by a true change in
perception of human rights, the idea of thinking about reentry and recidivism
reduction as a long-term cost-saving mechanism has not been as successful as it
could, perhaps, be. Recidivism studies are, by nature, difficult to do, and
moreover, they take time, which cannot be translated to proven political gains
in a short election cycle. The theoretical possibility to frame these as a
deeper form of savings has not, so far, yielded much success in the
correctional arena.
There are also big questions about the extent to which humonetarian
arguments have any traction with regard to particularly violent or reviled
offenders. Sex offender policies come to mind immediately. The last California
elections showed that old-school punitivism, masquerading as victim rights
discourse, is still a powerful incentive to voters in creating more
post-incarceration sanctions on sex offenders. The strong rhetorical pull of decades can, apparently,
withstand any argument about financial waste, as it has withstood the evidence
of low recidivism rates.
Given these challenges, can humonetarianism be successful
and enduring, and for how long? Its main advantage is the broad appeal of the
financial argument. A possible counterargument is that, by focusing on costs,
we arguably pay an intangible price of cheapening public discourse and taking
human rights arguments off the table. I am less concerned about this issue.
Americans have always expressed their values and measured their priorities by
their willingness to pay taxes. A vote of confidence in lowering the price tag
on corrections is also an expression of preferences for road construction,
education, health care, and other services, and a statement that the mass
incarceration project has lost its appeal as a national priority.
What remains to be seen is whether cost-centered reforms
will stand when the economy improves. And in that department, while it would be
unwise to offer accurate predictions, my crystal ball offers this: Some things
might come back, some things might not come back, and some things might come
back in different forms. For example, I expect that, once a critical mass of
states abolishes the death penalty on fiscal grounds, it will not come back. I
expect that a recriminalization of marijuana, once it is perceived as any other
product in the market, is not feasible. Will we find other wars and panics?
Probably, and those will have to be addressed through other-than-cost arguments
if they occur at a time of economic plenty.
While the lasting power of cost-driven changes in policy
remains to be seen, a sincere and thoughtful appeal to the public’s sense of
fiscal responsibility, accompanied by an effort to reframe the cost
conversation as a long-term concern, are one of the major steps we must take to
end mass incarceration, so that we do not, to quote Rahm Emmanuel, let a
serious crisis go to waste.
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