The Hidden Cost of Prison and Punitive Excess

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America’s criminal legal system is unduly harsh. Experts explain how we got here and solutions that will benefit everyone.

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Curated by Lauren-Brooke Eisen, J.D.
Director
Brennan Center for Justice

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Introduction

Amer­ica can’t shrink its reli­ance on mass incar­cer­a­tion until we confront our approach to punish­ment. These essays by renowned experts in a vari­ety of fields focus on our deep-rooted impulse to punish people in ways that are far beyond what could be considered propor­tion­ate. Together, they illus­trate how neces­sary it is to rein in the punit­ive excess of the crim­inal legal system, which is inex­or­ably entwined with the legacy of slavery. They also high­light how we have margin­al­ized poor communit­ies and people of color through crim­in­al­iz­a­tion and punish­ment.

Address­ing a range of issues — from poli­cing to prosec­u­tion to unequal access in bail bond requirements to incar­cer­a­tion to life after prison — the writers high­light how our nation has prior­it­ized excess punish­ment over more support­ive and less trau­matic ways of deal­ing with social harm. The essays explore whether, when, and how we could have made differ­ent decisions that would have changed the way these systems of punish­ment and social control evolved.

Look­ing ahead, they also ask how we can learn from this failed exper­i­ment with mass incar­cer­a­tion and prior­it­ize human dignity over human misery.

We hope this series will spur increased discus­sion on these vital topics.

L.B. Eisen
Director, Bren­nan Center Justice Program

The Era of Punitive Excess

By Jeremy Travis and Bruce Western

The criminal justice system is marred by an overreliance on excessive punishment.

Despite a small decline in incar­cer­a­tion rates over the last decade, Amer­ican crim­inal justice policy remains at its most punish­ing point in history. The extent of correc­tional super­vi­sion — includ­ing community super­vi­sion on proba­tion and parole as well as insti­tu­tional super­vi­sion in prison and jails — expan­ded stead­ily from the early 1970s for the next three decades. In 2018, the total correc­tional popu­la­tion numbered 6.4 million adults, 2.1 million of them incar­cer­ated.

Focus­ing just on the incar­cer­ated, the 40-year growth in impris­on­ment rates from the early 1970s has been linked to changes in senten­cing policy, partic­u­larly the wide­spread adop­tion of mandat­ory minimum sentences, often for drug offenses. And then through the enact­ment of very long sentences, partic­u­larly for those convicted of viol­ence and with long crim­inal histor­ies.

A full account­ing of the harsh real­it­ies of the modern system of crim­inal justice in Amer­ica extends beyond the vast reach of correc­tional super­vi­sion. Today’s land­scape of punish­ment also includes the extens­ive crim­in­al­iz­a­tion of social prob­lems such as home­less­ness and mental illness, intrus­ive poli­cing policies such as stop and frisk, the impos­i­tion of fines and fees that exacer­bate poverty, the legis­lat­ively defined collat­eral sanc­tions that close off oppor­tun­it­ies for a full life to millions with crim­inal records, and the new tech­no­lo­gies that place the entire public under a form of state surveil­lance.

We call this new real­ity the “Era of Punit­ive Excess.” In its multiple mani­fest­a­tions, damaging impact, polit­ical durab­il­ity, and unbridled reach into all aspects of Amer­ican life, the modern expres­sion of soci­ety’s need to margin­al­ize the poor and people of color through crim­in­al­iz­a­tion and punish­ment has become a stub­born social fact.

The essays in this series — gener­ously curated by Bren­nan Center for Justice — mark another step in an over­due reck­on­ing with this history. Because the crim­inal justice system that has emerged over the past half century is so deeply inter­twined with the legacy of white suprem­acy in Amer­ica, this reck­on­ing neces­sar­ily under­scores the urgency of recog­niz­ing, and repair­ing, the damage borne by communit­ies of color and margin­al­ized popu­la­tions. At the most funda­mental level, we must ask unset­tling ques­tions about the impulse to crim­in­al­ize and punish, espe­cially as this impulse has been applied select­ively through­out Amer­ican history.

Punish­ment describes not just what crim­inal justice insti­tu­tions do, but also signi­fies a rela­tion­ship between the state and its citizens. We define crim­inal punish­ment as the inflic­tion of human suffer­ing under the color of law. Crim­inal punish­ment describes a coer­cive rela­tion­ship between an author­ity and those subject to its juris­dic­tion. The unequal distri­bu­tion of crim­inal justice super­vi­sion across the popu­la­tion is an essen­tial fact about the punish­ment rela­tion­ship.

Most of the atten­tion of research­ers and poli­cy­makers has focused on the dispro­por­tion­ate incar­cer­a­tion of African Amer­ic­ans and Lati­nos. Through­out the period of rising incar­cer­a­tion, the impris­on­ment rate for African Amer­ic­ans has been 6 to 8 times higher than the impris­on­ment rate for whites. Impris­on­ment rates for Lati­nos have been 1.5 to 2 times higher than for whites. But similar dispar­it­ies can be found in every dimen­sion of the punish­ment land­scape, from arrest patterns to pretrial deten­tion to the impos­i­tion of fines and fees.

The nature of the punit­ive rela­tion­ship lies as much in the qual­it­at­ive char­ac­ter of who is incar­cer­ated or under justice super­vi­sion as in the quant­it­at­ive extent of the impacted popu­la­tion. The punished are often poor, yes, but they are also vulner­able in a vari­ety of other ways that, in the absence of other social supports, exposes them to contact with police, the courts, and pris­ons. This is punish­ment as social policy — a way of respond­ing to the range of social prob­lems (includ­ing crime) asso­ci­ated with Amer­ica’s partic­u­larly severe vari­ety of poverty. The burdens of punit­ive policy have fallen partic­u­larly heav­ily in low-income communit­ies, espe­cially low-income Black communit­ies. Neigh­bor­hood segreg­a­tion concen­trates a wide vari­ety of social prob­lems — poverty, unem­ploy­ment, public disin­vest­ment, unaf­ford­able hous­ing, untreated health prob­lems — that contrib­ute to crime and attract the atten­tion of author­it­ies.

The great injustice of the punit­ive posture of contem­por­ary crim­inal justice was to attrib­ute a super-abund­ance of moral agency to those who, by virtue of economic, demo­graphic, and social disad­vant­age, often had the fewest choices to make. In this social world, shot through with racism, severe poverty, and their accom­pa­ny­ing constraints on action, the moral agency that punish­ment regu­lates is distrib­uted unevenly across the popu­la­tion and is in shortest supply among the most disad­vant­aged. But harsh punish­ment was at best indif­fer­ent to racism and poverty. In this world of punit­ive excess, poverty, trauma, and ill health were seen as bad choices by bad people who were then punished by the police, courts, and pris­ons.

To be some­thing other than cruel, the punit­ive impulse must be direc­ted at those acting with full moral agency. But this full moral agency is not just a matter of philo­soph­ical opin­ion. If empir­ical analysis shows that where incar­cer­a­tion is pervas­ive (a 70 percent impris­on­ment risk for Black men who haven’t finished high school, for example), demo­graphy may have as large an impact on punish­ment as indi­vidual culp­ab­il­ity. Simil­arly, if nearly all those serving time in state prison have histor­ies of untreated mental illness, substance use disorders, phys­ical disab­il­ity, or trauma, punish­ment is less a response to anti­so­cial choices than a way of using state viol­ence to manage vulner­able people who often have few construct­ive altern­at­ives.

If punish­ment is not justice in such a world, then what is? Here, the answer lies in balan­cing the juris­pru­dence of indi­vidual culp­ab­il­ity with the promo­tion of human capab­il­it­ies. If the prob­lems of crime, disorderly beha­vior, and idle­ness are char­ac­ter­istic of the social condi­tions of poverty, then justice is found through the abate­ment of those social condi­tions rather than punish­ing those who live in them.

This suggests a funda­mental change in the work of those who are publicly charged with respond­ing to viol­ence. First, they would guard against the harms they may inflict on the most disad­vant­aged. The possib­il­ity of undue punish­ment, and the neces­sity of safe­guards, are press­ing because crime and disorder are more preval­ent in poor communit­ies, not because of the moral defi­cien­cies of community resid­ents but because of the social condi­tions of severe poverty. Second, and more ambi­tiously, the agents of the response to harm might work actively for promot­ing oppor­tun­ity, citizen­ship, and community involve­ment at the deep­est margins of soci­ety while recog­niz­ing the import­ance of indi­vidual account­ab­il­ity.

In the essays that follow in this series we will hear from cham­pi­ons of justice who are, in differ­ent ways, recog­niz­ing and combatting the harsh real­it­ies of punit­ive excess. On one level, an all-out mobil­iz­a­tion is required to roll back the harm­ful reach of the state in the oper­a­tions of a justice system that causes so much injustice. We applaud the efforts of those who tackle these chal­lenges. Yet a clear-eyed real­iz­a­tion of how far the coun­try has strayed from the path of true justice requires more than system reform. This history compels the conclu­sion that we face a demo­cracy defi­cit. The laws that have brought about the era of punit­ive excess were all passed by our elec­ted repres­ent­at­ives. The prosec­utors who enforced these laws and sought long prison terms were all elec­ted, as were many of the sher­iffs and judges. Police chiefs were appoin­ted by mayors respons­ive to the public will. The build-up of police and prison budgets, the starving of public defend­ers, the continu­ing atrophy of community supports — all were the product of demo­cratic processes. If our demo­cracy brought us to this point, can we hope that our demo­cracy can carry the banner of funda­mental change?

If the past half-century demon­strated the elect­oral effect­ive­ness of tough-on-crime rhet­oric, then revers­ing the trends we have observed will require a new public discourse about how best to respond to harm. That, in turn, is a tall order as the people adversely affected by these stub­born trends are not polit­ic­ally power­ful. Yet in recent years we have seen hope­ful signs point­ing toward a differ­ent future. Prosec­utors are being elec­ted on plat­forms prom­ising deep reform. The upris­ing follow­ing the murder of George Floyd has galvan­ized a nation to imple­ment poli­cing reforms that had been thought impossible a few years ago. A new national admin­is­tra­tion is expli­citly commit­ted to revers­ing the most harm­ful policies of the past.

Beyond these hopes for the future, we must still wrestle with nagging ques­tions brought force­fully to the fore in the era of punit­ive excess: What is the purpose of punish­ment? How does a demo­cracy guard against the inap­pro­pri­ate exer­cise of that state power? How can a soci­ety respond to harm while minim­iz­ing the impos­i­tion of punish­ment? Even more, can our soci­ety respond to harm in ways that respect the human dignity of all involved, do not exacer­bate condi­tions of poverty, provide communit­ies with agency over communal life, and promote heal­ing and racial justice? Answer­ing these ques­tions will allow our coun­try to repu­di­ate the punit­ive project and under­take an authen­tic search for justice.

How Punitive Excess Is a Manifestation of Racism in America

By Theodore R. Johnson

The criminal justice system’s past and present is intertwined with its use as a tool against people of color.

There is a widely accep­ted narrat­ive about incar­cer­a­tion in the United States that goes some­thing like this:

At the dawn of the Reagan era in a nation of 225 million Amer­ic­ans, the incar­cer­ated popu­la­tion was a little more than half a million people with 8 percent behind bars for drug offenses. The “War on Drugs” that raged through­out the 1980s and into the next decade — bring­ing with it stat­utory reforms that relied heav­ily on increased poli­cing, incar­cer­a­tion, and mandat­ory senten­cing — caused the impris­on­ment rate to more than triple to 695 per capita with 24 percent serving time for drug offenses. As a result, nearly 2.3 million people are locked up in the United States today. And the march toward this mass incar­cer­a­tion occurred with Black Amer­ic­ans squarely under­foot, tramp­ling their communit­ies and imprint­ing racial dispar­ity onto the nation’s crim­inal justice system.

That story isn’t wrong, but it is incom­plete. In this all-too-common telling, punit­ive excess, mass incar­cer­a­tion, and racial dispar­ity are comingled — a grim tale of three tragic char­ac­ters arising together from the carceral policies of the last four decades. It would follow, then, that to address one of them would be to make inroads against them all. But this logic is much too thin, mostly serving to make a long story short.

Instead, the more accur­ate account of impris­on­ment in the United States reveals that punit­ive excess, mass incar­cer­a­tion, and racial dispar­ity are distinct phenom­ena. One need only cata­log the exper­i­ences of racial and ethnic minor­it­ies to discern that if mass incar­cer­a­tion and punit­ive excess were abol­ished tomor­row, racial dispar­it­ies would still exist in the range of socioeco­nomic factors that influ­ence one’s life chances and unduly expose people of color to punish­ment and whatever social penal­ties take the place of confine­ment.

This spot­lights an ugly truth lurk­ing within the nation’s struc­tures and policies — one that the crim­inal justice system crys­tal­lizes with aston­ish­ing clar­ity: the unwill­ing­ness to confront a history of racial oppres­sion and the contin­ued devalu­ation of people of color make full equal­ity and justice in Amer­ica unat­tain­able. To estab­lish a fair and unbiased justice system loosened from punit­ive excess and mass incar­cer­a­tion, we must reckon with the cent­ral role race plays in systemic outcomes.

The entrench­ment of racial hier­archy in the United States began before the nation came to be and has long endured. The nation’s found­ing era featured forced displace­ments, chat­tel slavery, inden­tured servitude, outright deni­als of citizen­ship, and dehu­man­iz­a­tion of Native Amer­ic­ans, Black people, and immig­rants of differ­ent races and ethni­cit­ies arriv­ing to the New World. Even a civil war could not straighten out the racial oppres­sion that the nation had wrought.

Though the civil rights move­ment a century later helped the nation painstak­ingly move toward becom­ing a more inclus­ive demo­cracy race remained a primary social determ­in­ant of the meas­ure of justice and citizen­ship one could access. Racial hier­archy and inequal­ity coursed in the nation’s blood­stream, infect­ing every aspect of our soci­ety and pool­ing in the crim­inal justice system.

Its finger­prints are every­where. White segreg­a­tion­ists’ sanc­tioned vigil­ant­ism and terror­ism focused its atten­tion on Black people. The federal govern­ment forcibly corralled more than 120,000 Japan­ese Amer­ic­ans into intern­ment camps during World War II while spar­ing nearly all Amer­ic­ans of German and Italian descent. Today, Latino immig­rants and undoc­u­mented deniz­ens are caged in deten­tion facil­it­ies and separ­ated from their famil­ies, and Black Amer­ic­ans are incar­cer­ated at alarm­ingly high rates and are overrep­res­en­ted in punit­ive excesses such as solit­ary confine­ment and the death penalty.

This history and the policies it birthed resul­ted in a conflated onto­logy of race, social threats, and crime. That is, soci­olo­gists and polit­ical scient­ists have found that, in a soci­ety with a built-in racial hier­archy, the visual mark­ers of race and ethni­city create bound­ar­ies of trust and empathy, lead­ing to civic and social distance between citizens. When certain communit­ies of color are treated like a scourge and cari­ca­tured as incom­pat­ible with Amer­ican values, their very pres­ence can create a heightened sense of insec­ur­ity in the broader soci­ety. The crim­inal justice system has been fash­ioned to manage these soci­etal anxi­et­ies by exert­ing control over the popu­la­tion deemed a danger to the Amer­ican way of life.

The Black Amer­ican exper­i­ence at the turn of the twen­ti­eth century is an example of this soci­ology in motion. In the early decades of the Great Migra­tion, when millions of Black Amer­ic­ans left the brutal­ity and economic insec­ur­ity of the South to seek oppor­tun­it­ies in north­ern and midwest­ern states, they encountered communit­ies of white European immig­rants who were them­selves often discrim­in­ated against and treated as second class citizens. The ensu­ing compet­i­tion for employ­ment and hous­ing — as well as a desire for their own social advance­ment — caused many white citizens to set aside nativ­ist resent­ments toward white European immig­rants and unite in oppos­i­tion to the Black arrivals.

These immig­rants were able to secure patron­age jobs, partic­u­larly in law enforce­ment, as a buffer between Black Amer­ic­ans and white polit­ical and economic elites. Research reveals that the rate of arrest and incar­cer­a­tion of Black Amer­ic­ans in Great Migra­tion destin­a­tion cities increased as the propor­tion of white immig­rants on local police forces increased. Charges for petty offenses against Black people skyrock­eted, turn­ing accus­a­tions of crimes like suspi­cious beha­vior, disorderly conduct, and public drunk­en­ness into instru­ments for social control.

As Martin Luther King Jr. said upon remem­brance of the work of renowned soci­olo­gist and histor­ian W.E.B. DuBois, so long as the devalu­ation of Black people persisted, “the brutal­ity and crimin­al­ity of conduct toward the Negro was easy for the conscience to bear. The twis­ted logic ran: If the black man was inferior, he was not oppressed.”

In the end, we have a system where justice is delivered unevenly and, at times, arbit­rar­ily. It’s as if struc­tural racism compels Lady Justice to lift her blind­fold and slant her scales, forcing some of her people at the margins to tumble off the edge beyond her reach.

Any seri­ous attempts at reform and making our justice system truly just will require a direct confront­a­tion with what African Amer­ican stud­ies scholar Eddie Glaude Jr. calls the value gap. This is the idea that the true plague in Amer­ican soci­ety is that people of color, partic­u­larly Black people in a nation where chat­tel slavery featured so prom­in­ently, are simply valued less. As such, no matter what law and policy is imple­men­ted with racial justice and equal­ity as its goal, if the value gap is left unad­dressed, Glaude argues, “our systems will always produce the same results: racial inequal­ity.”

There is no way around this quandary. It is a product of our history that people of color remain overly exposed to the darkest corners and worst impulses of our crim­inal justice system, its insti­tu­tions and prac­tices, and its actors. Reima­gin­ing justice in Amer­ica requires a color-conscious approach to policy, employ­ing meas­ures and taking actions that account for people’s dispar­ate paths and exper­i­ences. Perhaps this is why in her initial concep­tion, Lady Justice wore no blind­fold — when a system is truly just, it does­n’t need to be blind to be impar­tial or equit­able.

At the same time, policy reforms to end mass incar­cer­a­tion and cease excess­ive punish­ment are crit­ic­ally import­ant. Treat­ing the threat of incar­cer­a­tion as a last resort instead of a first response to any social prob­lem is an unas­sail­able good for any fair and just soci­ety. Respect­ing the human­ity and dignity of all people by refus­ing to subject them to cruel and unusual punish­ments not only helps us live up to our consti­tu­tional prin­ciples, but it also ushers the United States one step closer to being the more perfect union outlined in its national canon.

That goal, however, remains a distant one — no other people imprison each other more than Amer­ic­ans. And Louisi­ana embod­ies this pecu­li­ar­ity in super­lat­ive fash­ion. It has the highest incar­cer­a­tion rate in the coun­try, and Fair Bryant knows this better than anyone. Bryant, a Black man who served time in the state’s infam­ous prison known as Angola, was sentenced to life upon being convicted of attempt­ing to steal hedge clip­pers in 1997. His fate was the product of punit­ive excess hall­marks — habitual offender laws, harsh mandat­ory senten­cing, and forced field labor in an insti­tu­tion that owns the horrific distinc­tion of hold­ing two men in solit­ary confine­ment for nearly four decades, the longest period in Amer­ican history.

For Bryant, like too many others, the crim­inal justice system has been anything but fair. Bryant’s life is stark reminder that ending mass incar­cer­a­tion and erad­ic­at­ing punit­ive excess should neither shake us from being clear-eyed about the outsize role race plays in Amer­ica nor stuff these policy reforms into racial justice frames for polit­ical expedi­ency’s sake. We must tell the whole story of incar­cer­a­tion in the United States, complete with its ugly bits and filled with all its details, complex­it­ies, and nuances. Only then will we be able to bring our system to justice.

Losing Our Punitive Civic Religion

By Jonathan Simon

Much of the American legal system is based on a set of enduring myths about who are criminals and how they should be treated.

Like the Covid-19 dead, the mass suffer­ing and racial dispro­por­tion­al­ity of our highly punit­ive crim­inal justice system — police, pris­ons, court super­vi­sion, immig­ra­tion deten­tion — sit heav­ily on Amer­ican soci­ety today. With pris­ons second only to long-term care facil­it­ies in rates of Covid-19 deaths, we might do well to recog­nize that they bear the very same burden in some import­ant ways. In both trans­mis­sions and punish­ments, the United States has become infam­ous glob­ally as the coun­try with a single digit share (5 percent) of the world’s popu­la­tion, and as of Febru­ary a double-digit share (20–25 percent) of both Covid-19 cases and pris­on­ers.

Accel­er­ated by the paral­lels between these crises, the United States is exper­i­en­cing a remark­able wave of interest in reform­ing our crim­inal justice system. Seri­ous atten­tion is even being given to the argu­ment that it is past time to abol­ish (or at least “defund”) such long-stand­ing crim­inal justice insti­tu­tions as police and pris­ons. But neither reform nor abol­i­tion will get very far unless we under­take a substan­tial rethink­ing of what we want and expect from crim­inal law and punish­ment. Centur­ies of enthu­si­astic innov­a­tion in both (always in the name of reform, and often with abol­i­tion of some crueler penal­ties in mind) have instead left us not with mean­ing­ful change, but with a set of power­ful punit­ive myths that have become a genu­ine Amer­ican civil reli­gion — one that offers crim­inal account­ab­il­ity as a kind of sacra­ment of legal fidel­ity, and state punish­ment as a primary source of indi­vidual correc­tion and social improve­ment.

These beliefs have enjoyed extraordin­ary popular­ity in our history, help­ing to make crim­inal law one of the primary subjects of both popu­lar enter­tain­ment and elect­oral polit­ics, and render­ing crim­in­o­logy a form of popu­lar science. To call them myths is conten­tious, but it is our very lack of interest in test­ing them empir­ic­ally that sustains support for everything from library fines to the death penalty. Left largely unchal­lenged in courts, legis­latures, pulpits, news­pa­pers, and univer­sit­ies, these myths make it exceed­ingly easy for Amer­ic­ans collect­ively to address crim­inal law and punish­ment, when what we require instead is the more demand­ing work of reform­ing our demo­cracy and rein­vent­ing our forms of social solid­ar­ity.

Perhaps the oldest myth in our punit­ive civic faith, one with roots in medi­eval theo­logy, has the high-minded label “account­ab­il­ity.” People who commit crimes have to be held account­able; their debt to soci­ety must be paid. Left unsaid is why crimes, which gener­ally are complex social events with many causes, should be thought of as creat­ing a “debt, ” and why punish­ment should be seen as a “repay­ment.” The appeal of account­ab­il­ity, of paying your debt to soci­ety, is supposed to be requal­i­fic­a­tion and rein­teg­ra­tion; in real­ity, it has usually meant the oppos­ite.

The United States is hardly alone in emphas­iz­ing account­ab­il­ity as a prin­ciple. It can be found in the penal law of all nations and also in modern human rights law, which is partic­u­larly insist­ent that crimes against human­ity not be forgiven, even as part of recon­cili­ation in conflict-ridden soci­et­ies. But Amer­ica is unique in the degree of our zeal for full payment. We allow thou­sands to die in prison. We pursue even those who even­tu­ally win release with demands for finan­cial repay­ment of the cost of their punish­ment. Letting people go without paying their full debt is treated as an anathema on both sides of our polit­ical divide, even though many experts agree it will be essen­tial if we are to clear our chron­ic­ally over­crowded pris­ons, which were sites of medical suffer­ing even before Covid-19.

Myth two divides the popu­la­tion into the hard­work­ing and the idle, attrib­ut­ing crime to the latter. This myth dates back to the post-revolu­tion­ary period, when the disrup­tion of the war, economic trans­form­a­tion, and increased immig­ra­tion led to the first of many polit­ical turns toward crim­inal law as a means to improve the social order of the new demo­cracy and its concom­it­ant slave soci­ety.

The birth of the penit­en­tiary in the North­east in the early 1800s as a place of forced labor and solit­ary confine­ment was perhaps the most famous and influ­en­tial response. A less visible form of the merger of forced labor and contain­ment was slavery and espe­cially the carceral form of plant­a­tion slavery in the Missis­sippi Delta during the cotton boom. The prison and the plant­a­tion were supple­men­ted by forms of organ­ized poli­cing, namely the slave patrol in the South and the “London” model of uniformed muni­cipal police, organ­ized along semi-milit­ar­ized lines. In both cases idled work­ers were effect­ively crim­in­al­ized (e.g., unac­com­pan­ied enslaved persons were prosec­uted and imprisoned as “vagrants”).

Today, the almost reli­gious zeal with which 19th century reformers once touted the curat­ive value of forcing the idle to work has slackened some­what, but in other ways it lingers, espe­cially for the poor. Our pris­ons still make people work without rights or minimum wage compens­a­tion but without impart­ing mean­ing­ful skills that could open employ­ment oppor­tun­it­ies on reentry. And young people out of work or school are still the most likely targets of poli­cing and prosec­u­tion. In a soci­ety that seems to have less paid work for many, this is a formula for more punish­ment, not less.

Perhaps the most punit­ive myth of all, one that has been a recur­rent source of crim­in­al­iz­a­tion and extreme punish­ment, is only about a century old: the belief that our law enforce­ment insti­tu­tions — judges, police, prosec­utors, prison offi­cials — are expert at identi­fy­ing the truly danger­ous, whose removal to prison would make soci­ety much safer.

This article of civic faith is rooted in the astound­ing success of the racist pseudos­cience of eugen­ics. The early 20th century move­ment among eugen­i­cists to control repro­duc­tion and immig­ra­tion and to increase law-enforce­ment powers prom­ised that crime could virtu­ally be elim­in­ated by remov­ing or incar­cer­at­ing (or even ster­il­iz­ing) those with genet­ic­ally based “crim­inal traits.” The primary targets were immig­rants from east­ern and south­ern Europe, African Amer­ic­ans, and rural whites, all of whom were presumed to be crim­in­ally inclined based on hered­ity and race.

It was after immig­ra­tion was effect­ively cut off in 1924 that eugenic theory made Black communit­ies the cent­ral focus of punit­ive enforce­ment. The scan­dals asso­ci­ated with ster­il­iz­a­tion in the United States and elim­in­a­tion­ist prac­tices toward the disabled in Nazi Germany ulti­mately discred­ited eugen­ics as science.

But the belief that most seri­ous crime was caused by a danger­ous and devi­ant minor­ity survived. While the search for causes slipped from biology to soci­ology, the reli­ance on crim­inal records guar­an­teed that the eugenic era’s racial­ized think­ing about crime would continue. Today we are increas­ingly likely to rely on stat­ist­ical indic­at­ors driven by algorithms to identify the danger­ous, but advan­cing tech­no­logy erases rather than removes the racist legacies of this approach. We continue to believe that the people we currently jail after arrest, or those we imprison after convic­tion, were prop­erly selec­ted for their danger­ous­ness. This belief makes seri­ous efforts to end pretrial deten­tion or prolonged impris­on­ment a bridge too far for contem­por­ary politi­cians.

By the 1970s, all of these myths were losing their cultural cred­ib­il­ity, demon­strated in seri­ous discus­sions of redu­cing reli­ance on impris­on­ment and recon­ceiv­ing the concept of public safety. By the end of the decade, however, a new campaign to address social instabil­ity through more poli­cing and impris­on­ment was ascend­ing. A new myth — that cleans­ing neigh­bor­hoods of likely offend­ers (“Broken Windows”) would save them from a tide of viol­ence and poverty — helped justify the largest increase in pris­ons and poli­cing in our history.

Our punit­ive past, however, need not doom us to a punit­ive future. The ideas that have become our civic faith need to be rein­ven­ted in light of our evolving commit­ment to decency and subjec­ted to the kind of exper­i­ment­a­tion and test­ing we demand from other aspects of govern­ment. Can account­ab­il­ity be honored in ways other than punish­ment? Can dignity and secur­ity be afforded to people by means other than wage labor? Can risk factors that increase the chances of people becom­ing involved in crim­inal conduct be recog­nized and redressed without labelling the people exposed as “danger­ous”? Can the govern­ment promote neigh­bor­hood effic­acy and morale without hound­ing the unhoused and hungry from our streets and parks? These are ques­tions that are too often treated as if we already knew the answer were “no” — a faith that’s past time to lose.

Crime, the Myth

By Emile DeWeaver

It’s up to society to say what is and isn’t a crime, and it varies more than one might think.

Crime is not real. This asser­tion flies in the face of common sense and consensus. Of course crime is real, one would be justi­fied in think­ing — we see “crime” every day on the news. Charles Manson was, in fact, respons­ible for nine murders. Dylann Roof did, in fact, enter the Emanuel African Meth­od­ist Epis­copal Church and kill nine people. Crime rates are, in fact, either up or down or stable on a given day in every city in the United States.

So how could crime be a fiction? The reader and I likely agree that people hurt others and trans­gress moral bound­ar­ies. We may also agree that communit­ies have the job of figur­ing out how to prevent and remedy such trans­gres­sions because a basic precon­di­tion for happi­ness is safety. If, however, we are actu­ally to create a soci­ety that is safe for every­one, we’ll profit from chal­len­ging our belief in the “real­ity” of crime.

Begin this chal­lenge by consid­er­ing race. For hundreds of years, race’s real­ness was a “fact, ” but today, scient­ists under­stand that race is not real. What “real” means is well described by journ­al­ist Jenée Desmond-Harris. “By ‘real, ’ I mean based on facts that people can even begin to agree on. Perman­ent. Scientific. Object­ive. Logical. Consist­ent. Able to stand up to scru­tiny.” Racism is real, as real as Dylann Roof. Race, however, is a fiction, and the creation of this fiction was a polit­ical project aimed at a polit­ical end.

It is in this sense that crime is also fiction, and I’ll offer one more example before I come to my point. Consider the differ­ence between a person and a person’s myth­o­logy — specific­ally, consider King Arthur of medi­eval England. Histor­i­ans debate whether or not Arthur was a histor­ical person whose accom­plish­ments have been wildly exag­ger­ated (his legend features sorcer­ers, an unbreak­able sword that cuts through anything, and a lady who lives beneath a lake) or whether he is a pure fiction.

As a thought exper­i­ment, let’s say he was a histor­ical figure around which a fictional legend arose. You would be justi­fied in saying that King Arthur is real; his myth­o­logy is not. What if, however, this distinc­tion isn’t avail­able to you. Would it make sense to say King Arthur is real if we make no distinc­tion between his histor­ical person and a king who killed giants and dragons with a magic sword?

The national conver­sa­tion about crime engages a similar myth­o­logy: prevail­ing narrat­ives routinely deny us the abil­ity to make the distinc­tion between myth and real­ity. These narrat­ives are, like racial narrat­ives, polit­ical projects aimed at polit­ical ends. Given the confla­tion between myth and real­ity, it makes as much sense to call crime real as it does to call the legend of King Arthur real. If we want to call crime real, we have to locate the truth of what it is and what it isn’t. We have to dispel the myth­o­lo­gies of crime.

One myth is that we punish people for commit­ting crimes. The truth is we punish people less because of what they do and more because of who they are. If I kill a stranger on the street for disobey­ing my orders, I’m a murderer. Police officers routinely kill unarmed people for, accord­ing to police claims, resist­ing arrest — arrests, as in the case of George Floyd, where no mean­ing­ful “crime” has been commit­ted — but we don’t treat police forces like crim­inal insti­tu­tions.

If I steal toilet paper from a conveni­ence store, I’m a thief who deserves incar­cer­a­tion, but when Donald Trump and his “univer­sity” steal $25 million from students, he’s merely someone who has to return the money he stole. On Janu­ary 6, Trump incited an insur­gency in nation’s capital that resul­ted in multiple deaths. If Patrisse Cullors, the cofounder of Black Lives Matter, incited an insur­gency in the Capitol, she’d likely be shot to death on the street without a trial.

In these compar­is­ons, there’s no moral differ­ence that justi­fies crim­in­al­iz­ing me or Cullors but not police officers or Trump. Yet popu­lar narrat­ives in the United States have manu­fac­tured a moral differ­ence. Such fabric­ated differ­ences often rest on narrat­ives about how the actions of a “crim­inal” harm people or soci­ety. But when we compare the scale of harm done to soci­ety by Trump or Officer Derek Chau­vin to the harm done by, say, a 16-year-old drug dealer, crime (or the absence of it) is no longer a func­tion of the harm a person causes — it’s a func­tion of priv­ilege, which neces­sar­ily implic­ates the perpetu­ation of white suprem­acy. In other words, the truth beneath the myth­o­logy of crime is that many Amer­ic­ans feel justi­fied in punish­ing people not because of what the people have done but because of their social posi­tion relat­ive to the white power struc­ture.

Then there’s a second myth, that crime is an act commit­ted by an indi­vidual. Call­ing an act a crime is instead a choice we make as a soci­ety about how we respond to harms commit­ted in our community. I recently exper­i­enced how this myth oper­ates while stand­ing in line at a local Walgreens.

I was about to check out at the cash register when I looked up from my phone and noticed a secur­ity guard becom­ing excited, even agit­ated. He altern­ated between whis­per­ing to a store clerk and posi­tion­ing himself to track someone in the surveil­lance mirrors on the store’s ceil­ing.

The scene awakened trauma in my body. I remembered all the times I’d been caught shoplift­ing as a child, how quickly and easily our crim­inal legal system could destroy a young life, family, and community in the name of justice. I began to scan the secur­ity mirrors too, think­ing please don’t let this be some kid. The secur­ity guard ducked into an aisle. I tracked him in the mirrors to determ­ine his target. The person steal­ing wasn’t a kid.

I sighed with only slight relief because the person’s age was of little consol­a­tion. From the state of his hoodie, it seemed likely that he was a home­less person. We’re in the middle of a pandemic, I thought, and he’s strug­gling to survive. The secur­ity guard inter­cep­ted him. By then, more and more people — both staff and custom­ers — had real­ized what was happen­ing. The store grew tense, fear­ful.

I watched the guard escort the man along the back of the store. When I was 18, I was a secur­ity guard; I knew the next step for the guard was to call the police. I was about to pay for the coffee I had bought, so I asked the clerk to ring up the sale and told her I’d be right back. The secur­ity guard moved toward the store exit with his charge. I stopped them and addressed the home­less man.

“Hey, man, ” I tried to sound as casu­ally author­it­at­ive as I could. “Go back, get whatever you want, and I’ll pay for it.”

Some­thing quite phenom­enal happened.

The store’s tense, fear­ful atmo­sphere evap­or­ated. A look of deep relief washed over the secur­ity guard, and he stepped back without protest. The people stand­ing in line relaxed. A woman work­ing in the photo depart­ment left her post to open a third check­out stand specific­ally to get this home­less man checked out. She smiled and treated him like a human being. It’s true that I had to buy this treat­ment for him ($30 for toilet paper, food, and a razor), but that did not make the decisions every­one made in that store any less real or less import­ant. All it would have taken is for one person to insist on police involve­ment, and that home­less man would have been arres­ted. It took the entire community wait­ing in that store to save this man.

The home­less man had in one second gone from a crim­inal whom people feared and even reviled to a member of a community who needed support. Not only did this community — the people in the store — choose to support him, they seemed hungry to do it. They’d just needed to be shown a path and given the oppor­tun­ity to be the community that the man deserved. The differ­ence between crime and not-crime wasn’t the home­less man’s actions or his intent. It was his community’s response.

Race, Mass Incarceration, and the Disastrous War on Drugs

By Nkechi Taifa

Unravelling decades of racially biased anti-drug policies is a monumental project.

I have a long view of the crim­inal punish­ment system, having been in the trenches for nearly 40 years as an activ­ist, lobby­ist, legis­lat­ive coun­sel, legal scholar, and policy analyst. So I was hardly surprised when Richard Nixon’s domestic policy advisor John Ehrlich­man revealed in a 1994 inter­view that the “War on Drugs” had begun as a racially motiv­ated crusade to crim­in­al­ize Blacks and the anti-war left.

“We knew we could­n’t make it illegal to be either against the war or blacks, but by getting the public to asso­ci­ate the hippies with marijuana and blacks with heroin and then crim­in­al­iz­ing them both heav­ily, we could disrupt those communit­ies. We could arrest their lead­ers, raid their homes, break up their meet­ings, and vilify them night after night in the even­ing news. Did we know we were lying about the drugs? Of course we did, ” Ehrlich­man said.

Before the War on Drugs, expli­cit discrim­in­a­tion — and for decades, overtly racist lynch­ing — were the primary weapons in the subjug­a­tion of Black people. Then mass incar­cer­a­tion, the gradual progeny of a number of congres­sional bills, made it so much easier. Most notably, the 1984 Compre­hens­ive Crime Control and Safe Streets Act elim­in­ated parole in the federal system, result­ing in an upsurge of geri­at­ric pris­on­ers. Then the 1986 Anti-Drug Abuse Act estab­lished mandat­ory minimum senten­cing schemes, includ­ing the infam­ous 100-to-1 ratio between crack and powder cocaine sentences. Its expan­sion in 1988 added an overly broad defin­i­tion of conspir­acy to the mix. These laws flooded the federal system with people convicted of low-level and nonvi­ol­ent drug offenses.

During the early 1990s, I walked the halls of Congress lobby­ing against vari­ous omni­bus crime bills, which culmin­ated in the grand­daddy of them all — the Viol­ent Crime Control and Safe Streets Act of 1994. This bill featured the largest expan­sion of the federal death penalty in modern times, the gutting of habeas corpus, the evis­cer­a­tion of the exclu­sion­ary rule, the trying of 13-year-olds as adults, and 100,000 new cops on the streets, which led to an explo­sion in racial profil­ing. It also included the elim­in­a­tion of Pell educa­tional grants for pris­on­ers, the imple­ment­a­tion of the federal three strikes law, and monet­ary incent­ives to states to enact “truth-in-senten­cing” laws, which subsid­ized an astro­nom­ical rise in prison construc­tion across the coun­try, lengthened the amount of time to be served, and solid­i­fied a mental­ity of mean­ness.

The prevail­ing narrat­ive at the time was “tough on crime.” It was a narrat­ive that caused then-candid­ate Bill Clin­ton to leave his pres­id­en­tial campaign trail to over­see the execu­tion of a mentally chal­lenged man in Arkan­sas. It was the same narrat­ive that brought about the crack­–­powder cocaine dispar­ity, suppor­ted the trans­fer of youth to adult courts, and popular­ized the myth of the Black child as “super­pred­ator.”

With the prolif­er­a­tion of mandat­ory minimum sentences during the height of the War on Drugs, unne­ces­sar­ily lengthy prison terms were robot­ic­ally meted out with callous aban­don. Shock­ingly severe sentences for drug offenses — 10, 20, 30 years, even life impris­on­ment — hardly raised an eyebrow. Trau­mat­iz­ing sentences that snatched parents from chil­dren and loved ones, destabil­iz­ing famil­ies and communit­ies, became common­place.

Such punish­ments should offend our soci­ety’s stand­ard of decency. Why haven’t they? Most flab­ber­gast­ing to me was the Supreme Court’s 1991 decision assert­ing that mandat­ory life impris­on­ment for a first-time drug offense was not cruel and unusual punish­ment. The rationale was ludicrous. The Court actu­ally held that although the punish­ment was cruel, it was not unusual.

The twis­ted logic reminded me of another Supreme Court case that had been decided a few years earlier. There, the Court allowed the execu­tion of a man — despite over­whelm­ing evid­ence of racial bias — because of fear that the floodgates would be opened to racial chal­lenges in other aspects of crim­inal senten­cing as well. Essen­tially, this ruling found that lengthy sentences in such cases are cruel, but they are usual. In other words, systemic racism exists, but because that is the norm, it is there­fore consti­tu­tional.

In many instances, laws today are facially neut­ral and do not appear to discrim­in­ate inten­tion­ally. But the dispar­ate treat­ment often built into our legal insti­tu­tions allows discrim­in­a­tion to occur without the need of overt action. These laws look fair but never­the­less have a racially discrim­in­at­ory impact that is struc­tur­ally embed­ded in many police depart­ments, prosec­utor’s offices, and courtrooms.

Since the late 1980s, a combin­a­tion of federal law enforce­ment policies, prosec­utorial prac­tices, and legis­la­tion resul­ted in Black people being dispro­por­tion­ately arres­ted, convicted, and imprisoned for posses­sion and distri­bu­tion of crack cocaine. Five grams of crack cocaine — the weight of a couple packs of sugar — was, for senten­cing purposes, deemed the equi­val­ent of 500 grams of powder cocaine; both resul­ted in the same five-year sentence. Although house­hold surveys from the National Insti­tute for Drug Abuse have revealed larger numbers of docu­mented white crack cocaine users, the over­whelm­ing number of arrests nonethe­less came from Black communit­ies who were dispro­por­tion­ately impacted by the facially neut­ral, yet illo­gic­ally harsh, crack penal­ties.

For the system to be just, the public must be confid­ent that at every stage of the process — from the initial invest­ig­a­tion of crimes by police to the prosec­u­tion and punish­ment of those crimes — people in like circum­stances are treated the same. Today, however, as yester­day, the crim­inal legal system strays far from that ideal, caus­ing African Amer­ic­ans to often ques­tion, is it justice or “just-us?”

Fortu­nately, the tough-on-crime chorus that arose from the War on Drugs is disap­pear­ing and a new narrat­ive is devel­op­ing. I sensed the begin­ning of this with the 2008 Second Chance Reentry bill and 2010 Fair Senten­cing Act, which reduced the dispar­ity between crack and powder cocaine. I smiled when the 2012 Supreme Court ruling in Miller v. Alabama came out, which held that mandat­ory life sentences without parole for chil­dren viol­ated the Eighth Amend­ment’s prohib­i­tion against cruel and unusual punish­ment. In 2013, I was delighted when Attor­ney General Eric Holder announced his Smart on Crime policies, focus­ing federal prosec­u­tions on large-scale drug traf­fick­ers rather than bit play­ers. The follow­ing year, I applauded Pres­id­ent Obama’s exec­ut­ive clem­ency initi­at­ive to provide relief for many people serving inor­din­ately lengthy mandat­ory-minimum sentences. Despite its fail­ure to become law, I celeb­rated the Senten­cing Reform and Correc­tions Act of 2015, a care­fully nego­ti­ated bipar­tisan bill passed out of the Senate Judi­ciary Commit­tee in 2015; a few years later some of its provi­sions were incor­por­ated as part of the 2018 First Step Act. All of these reforms would have been unthink­able when I first embarked on crim­inal legal system reform.

But all of this is not enough. We have exper­i­enced nearly five decades of destruct­ive mass incar­cer­a­tion. There must be an end to the racist policies and severe sentences the War on Drugs brought us. We must not be content with piece­meal reform and baby-step progress.

Indeed, rather than steps, it is time for leaps and bounds. End all mandat­ory minimum sentences and invest in a health-centered approach to substance use disorders. Demand a second-look process with the presump­tion of release for those serving life-without-parole drug sentences. Make sentences retro­act­ive where laws have changed. Support categor­ical clem­en­cies to rectify past injustices.

It is time for bold action. We must not be satis­fied with the norm, but work toward insti­tu­tion­al­iz­ing the demand for a stand­ard of decency that values trans­form­at­ive change.

The American ‘Punisher’s Brain’

By Andrew Cohen

U.S. sentencing practices seem especially extreme when compared with countries like Canada, Germany, and the Netherlands.

Our penchant for punit­ive senten­cing goes back beyond the Consti­tu­tion or the Pilgrims or even Brit­ish common law. It goes back further than the Magna Carta or the Code of Hammur­abi or the Talmud, back to the dawn of human history, when small groups of people adop­ted concepts of culp­ab­il­ity and punish­ment as a matter of basic survival. Our ancient ancest­ors shamed and weeded out the rule-break­ers among them, some­times with leni­ency, usually in harsh ways, to protect the integ­rity and the unity of their tribe.

All humans may be hard­wired to be cruel in a fash­ion. But as Robert Ferguson argued in his 2014 master­work, Inferno, the United States has allowed these instincts to domin­ate crim­inal justice policy. The result over the past half century has been an unpre­ced­en­ted era of mass incar­cer­a­tion. On any given day, more than 2 million people are locked up in the nation’s 5,000 or so pris­ons and jails, many serving sentences grossly dispro­por­tion­ate to the nature of their crimes. And that does­n’t even include another 50,000 or so people effect­ively imprisoned in federal or private immig­ra­tion deten­tion centers.

A 2016 report by the Bren­nan Center for Justice concluded that nearly 40 percent of the prison popu­la­tion at the time — nearly 600,000 people, or more than the entire popu­la­tion of Atlanta or Milwau­kee — was imprisoned without any legit­im­ate public safety justi­fic­a­tion. Moreover, as the Senten­cing Project recently revealed, there are more people serving life sentences today across the nation — some 206,000 people in federal and state pris­ons — than there were people in prison alto­gether in the United States in 1970. In fact, 83 percent of the world’s popu­la­tion of life-without-parole pris­on­ers is living behind Amer­ican bars.

But if retributive justice is in our DNA, if punish­ment comes down to us from prehis­tory, why is Amer­ican justice so much harsher than it is in other West­ern demo­cra­cies? The Neth­er­lands, for example, impris­ons its citizens at a per capita rate that is one-tenth the Amer­ican per capita rate for all sorts of crim­inal offenses.

One obvi­ous root of this excep­tion­al­ism is Amer­ica’s endless struggle over racial justice. We endured punit­ive senten­cing in the racist “Black Codes” that sprung up in south­ern states after the Civil War to incar­cer­ate or force newly freed slaves into a form of inden­tured servitude. We saw it in “convict leas­ing.” We saw the same in the form­a­tion of Jim Crow laws sanc­tioned by the Supreme Court and in the discrim­in­at­ory hous­ing and employ­ment prac­tices and policies the law allowed.

Modern punit­ive senten­cing schemes began to take root half a century ago, when the Nixon admin­is­tra­tion began its “war on drugs,” a futile battle the nation is still waging. These punit­ive efforts meta­stas­ized in the late 1980s and early 1990s, when a nation­wide crime wave gener­ated a “tough on crime” response that led to the creation and enforce­ment of “three-strikes” laws, expan­ded the scope of mandat­ory minimum sentences, and fueled “truth in senten­cing” meas­ures. All of these, together, vastly expan­ded the number of people sent to federal and state pris­ons.

Those policies are largely still with us, three decades later, despite recent reforms and a decades-long decline in viol­ent crime. So, in some juris­dic­tions, is capital punish­ment. At the same time, there has been an explo­sion of excess­ively punit­ive sex offender laws, requir­ing regis­tra­tion on lists, impos­ing resid­ency restric­tions, and even impris­on­ing people for “treat­ment” long after their prison terms have been completed.

Roughly 20 such “civil commit­ment programs” now exist in vari­ous states, and many of the people in them may be indef­in­itely detained. We also see the Amer­ican “punish­er’s brain, ” as Color­ado Judge Morris Hoff­man once put it, in the often inhu­mane ways in which the condemned are forced to serve out these sentences in danger­ous, dirty pris­ons bereft of adequate health care. And we see it all even though there still appears to be little compel­ling evid­ence justi­fy­ing excess­ively punit­ive sentences. In fact, a grow­ing body of evid­ence has under­mined long-perceived links between public safety and the length of prison sentences.

The rise of habitual offender three-strikes laws is a good example of the excess­ively punit­ive dynamic. These senten­cing laws, a byproduct of the 1990s “law and order” push, gener­ally require judges to mete out life-without-parole sentences to defend­ants who commit at least three offenses if the most recent of them is considered a “seri­ous” felony. Judges and legis­lat­ors in some states have used partic­u­larly broad defin­i­tions of these trig­ger­ing offenses. In Wash­ing­ton, for example — the first state to enact a three-strikes law — second degree robbery was for decades a three-strike-trig­ger­ing offense even though it was stat­utor­ily defined as a crime without a weapon and without injury to the victim.

“Truth in senten­cing” state laws, also spawned during the 1980s and early 1990s, are another good example of the ways in which Amer­ican poli­cy­makers have imposed partic­u­larly harsh senten­cing regimes. These laws were enacted to require pris­on­ers to serve a higher propor­tion of their sentences than had been the prac­tice, with much less “time off” for “good beha­vior” and much less defer­ence given to the judg­ments of local parole boards. Once again, Wash­ing­ton was the first state to enact such a meas­ure, in 1984, and today at least 40 states and the District of Columbia have some form of it on the books.

Mandat­ory minimum sentences are simil­arly wide­spread. The last 75 years or so have seen the tide of federal mandat­ory minim­ums ebb and flow. From the 1950s to 1970s it expan­ded. Then it receded. The Compre­hens­ive Drug Abuse Preven­tion and Control Act of 1970, a progress­ive law from the Nixon era, abol­ished mandat­ory minimum sentences for almost all drug offenses. Then the polit­ics of crime and justice turned again toward harsher punish­ment and more incar­cer­a­tion, and from the mid 1980s until just a few years ago Congress churned out one new mandat­ory minimum senten­cing scheme after another, even after doubts were raised about their effect­ive­ness.

The harsh­ness of these senten­cing regimes is magni­fied when they are compared to those in other coun­tries. For example, Amer­ican laws have long gran­ted trial judges the free­dom to impose consec­ut­ive sentences on separ­ate charges related to the same crime — in many instances effect­ively length­en­ing a defend­ant’s sentence to life without parole, but without saying so. There are U.S. pris­on­ers sitting in their cells with 200-year sentences. By contrast, only within the last decade were Cana­dian trial judges even allowed to issue consec­ut­ive sentences,  and only in murder cases, specific­ally to ensure longer sentences before parole eligib­il­ity. European coun­tries are even more enlightened in their senten­cing approaches.

Dispar­it­ies in senten­cing are espe­cially stark when compared to prac­tices in such European coun­tries as Germany and the Neth­er­lands. The laws and crim­inal justice policies of these nations don’t just differ from their Amer­ican coun­ter­parts in the details — they differ in philo­sophy. The U.S. “punish­er’s brain” is absent from European justice models, which emphas­ize rehab­il­it­a­tion and reso­cial­iz­a­tion. Germany’s Prison Act, for example, specific­ally states that the very purpose of incar­cer­a­tion is to help pris­on­ers lead lives of “social respons­ib­il­ity free of crime” upon release.

The vast major­ity of defend­ants convicted of crimes in Germany and the Neth­er­lands — even what we would consider “crimes of viol­ence” in the United States — never spend any meas­ur­able time in prison. Most are diver­ted into other programs, or forced to pay fines, or given suspen­ded sentences. These prac­tices, and the emphasis on rehab­il­it­a­tion for those pris­on­ers who are kept behind bars, go hand-in-hand with low crime and recidiv­ism rates in those coun­tries.

When it comes to punit­ive senten­cing regimes, Canada sits some­where in between the Amer­ican and European models. Only 29 crimes in Canada’s crim­inal code carry a mandat­ory minimum sentence, most having to do with fire­arm-related offenses in a nation that has no Second Amend­ment. Canada did enact its own “truth in senten­cing” law in 2009 — federal legis­lat­ors wanted to be more punit­ive — but the meas­ure was struck down five years later by a unan­im­ous Supreme Court of Canada.

Amer­ican senten­cing laws are still harsher than those of coun­ter­parts in many other demo­cra­cies, and we are still by far the world’s incar­cer­a­tion leader, but recent bipar­tisan justice reforms on both a federal and state level have begun to change the Amer­ican punish­ment narrat­ive. Citing evid­ence-based prac­tices and rely­ing on stat­ist­ics under­min­ing long-held justi­fic­a­tions for many punit­ive sanc­tions, justice reformers across the coun­try have convinced poli­cy­makers that the costs of excess­ive sentences don’t just fall on the incar­cer­ated or their famil­ies but rather on all of us.

Treating All Kids as Kids

By Kim Taylor-Thompson

Persistent and longstanding racism has fueled harsher treatment of young Black people in the justice system.

Amer­ica’s mistreat­ment of Black chil­dren is chronic and casual. Sadly, it is an Amer­ican phenomenon — a handed-down thing — that is deeply rooted in Amer­ican soil and in the Amer­ican psyche. Virtu­ally every system that touches Black chil­dren in this coun­try — public schools, foster care, immig­ra­tion — treats them more harshly than white chil­dren. Argu­ably, though, the most acute harm occurs in the crim­inal justice system, where we routinely exer­cise the power to desig­nate and derail.

On a daily basis, the system prema­turely labels Black chil­dren as adults, ignor­ing the child in the offender. We care­lessly discard young Black offend­ers in a struc­ture never designed for chil­dren. There, these young people lose much more than their free­dom. They lose the oppor­tun­ity to develop in a health­ier envir­on­ment. They can expect lifelong chal­lenges asso­ci­ated with less educa­tion, increased mental health prob­lems, higher rates of suicide, and greater finan­cial instabil­ity. To inter­rupt this persist­ent pattern of mistreat­ment, we need to adopt a bright line rule prohib­it­ing the prosec­u­tion of anyone under 21 in the adult crim­inal justice system.

Chil­dren have the right to be chil­dren. But our crim­inal justice system routinely ignores that real­ity when applied to Black chil­dren. Both brain science and common sense confirm that an adoles­cent’s act differs signi­fic­antly from that of a mature adult. Adoles­cents are works in progress who exhibit signa­ture traits. They are impuls­ive, they have greater diffi­culty recog­niz­ing and regu­lat­ing emotional responses, and they fail to appre­ci­ate fully the risks of their beha­vior, favor­ing short-term rewards over poten­tial costs. Adoles­cents succumb more read­ily to negat­ive external influ­ences such as the beha­vior of peers — even their very pres­ence, in fact — and the influ­ence of unstable envir­on­ments.

But neur­os­cience tells us that the regions of the adoles­cent brain govern­ing impulse control and risk avoid­ance have not yet fully formed. The good news is that these traits are not fixed; volat­il­ity and impetu­os­ity are trans­it­ory. As young people mature into their mid-20s, they are better able to resist emotional impulses and regu­late their beha­vior thanks to the devel­op­ment of brain struc­tures and systems involved in exec­ut­ive func­tion and impulse control. By the time young people reach their mid-20s, most will stop enga­ging in crim­inal conduct.

In recent years, this evid­ence has begun to persuade a grow­ing number of courts and poli­cy­makers to ques­tion the national reflex to desig­nate younger and younger people as adults in the crim­inal justice system. But the dark under­belly of that hope­ful story is that not all chil­dren enjoy the bene­fits of that new approach. Even as we exper­i­ence a reduc­tion in our youth justice popu­la­tion, racial dispar­it­ies persist. The prism of race distorts our percep­tion of the Black youth­ful offender and misshapes the Black child’s exper­i­ence of justice. Three inter­sect­ing phenom­ena are at play: stereo­typ­ical assump­tions, dehu­man­iz­a­tion, and “adul­ti­fic­a­tion.”

The “Black person as crim­inal” stereo­type, which equates danger­ous­ness with skin color, has demon­strated remark­able resi­li­ence over time. It persists even in light of conflict­ing data. Indeed, the narrat­ive is so pervas­ive and cultur­ally ingrained in Amer­ica that we impli­citly make the connec­tion even when we expli­citly reject the view. We see young Black offend­ers as anim­als or savages who engage in “wild­ing” beha­vior. The process of dehu­man­iz­a­tion turns Black chil­dren into undif­fer­en­ti­ated objects. It deprives them of their indi­vidual features, those qual­it­ies that make them valu­able and unique. Instead, we brand them as name­less pred­at­ors.

When we add adul­ti­fic­a­tion to the mix, the justice exper­i­ence for Black chil­dren warps even further. Research reveals that we see Black boys and girls as older than their actual chro­no­lo­gical age. Parti­cipants in a series of compre­hens­ive stud­ies misper­ceived 13-year-old Black boys as 17-year-olds. Just as import­antly, the older that the parti­cipants considered the child, the more culp­able the child seemed. In a separ­ate set of stud­ies of Black girls, respond­ents considered Black girls more adult than white girls at almost all stages of devel­op­ment. That adul­ti­fic­a­tion led respond­ents to conclude that Black girls needed less nurtur­ing and protec­tion than their white peers. The bottom line is simple: together, these phenom­ena prema­turely strip Black chil­dren of the priv­ilege and protec­tions of child­hood, provok­ing danger­ous rami­fic­a­tions for them in the justice context.

We can trace an indelible through-line from this coun­try’s racist origins to today’s racial­ized mistreat­ment of young people in our justice system. During slavery, white slavers separ­ated Black chil­dren from their moth­ers because a child could garner a greater profit. This was not just prof­it­eer­ing; it was an expli­cit insist­ence that Black chil­dren were chat­tel, not human. During Jim Crow, white mobs lynched Black chil­dren if they dared cross a racial bound­ary that white soci­ety inven­ted and ruth­lessly enforced. Again, the declar­a­tion: Black chil­dren were not like other chil­dren. They needed to “know their place” in the racial caste or risk the ulti­mate sanc­tion. Our history primed this nation to expect and accept the dispar­ate treat­ment of Black chil­dren as some­how appro­pri­ate or deserved.

The 20th century justice system delivered on that expect­a­tion. Politi­cians, academ­ics, and the media created and spread a “super­pred­ator” myth­o­logy fore­cast­ing a tidal wave of viol­ence by a new breed of offend­ers. This myth­o­logy conten­ded that Black chil­dren were more pred­at­ory, more danger­ous, more adult-like than white chil­dren. Although juven­ile crime rates actu­ally dropped in this period, the threat stoked fear that white Amer­ica was in danger. That mischar­ac­ter­iz­a­tion allowed Amer­ic­ans to with­stand any tug of moral constraint in the rush to charge Black chil­dren as adults in the crim­inal justice system — chil­dren as young as nine. Politi­cians pushed “adult time for adult crime” legis­la­tion and then filled our pris­ons with young Black kids.

Even as recently as the summer of 2020, we continue to trip over remind­ers of this racial­ized treat­ment. When a white 17-year-old, Kyle Ritten­house, opened fire on protest­ers in Kenosha, Wiscon­sin, killing two protest­ers, conser­vat­ive pundits and polit­ical oper­at­ives were quick to describe him as a “little boy out there trying to protect his community.” Even when he walked past police toting a semi-auto­matic rifle, they did not stop or ques­tion him; almost certainly, an armed Black 17-year-old would not have lived to tell the story. But Ritten­house was not perceived as danger­ous. He was seen as a child. Contrast that with 12-year-old Tamir Rice, a child play­ing with a toy gun in his neigh­bor­hood park. A Clev­e­land police officer sized up Tamir in an instant. He considered him danger­ous, shoot­ing and killing him within two seconds of getting out of his patrol car — evid­ence, once again, of the perni­cious power of racial­ized percep­tions in our discre­tion­ary calls.

Retain­ing the discre­tion to charge a young offender in adult court leads to an unten­able form of racial excep­tion­al­ism: an adoles­cent’s signa­ture traits will be treated as “mitig­at­ing qual­it­ies” unless the offender is Black. Adoles­cent char­ac­ter­ist­ics skew differ­ently when we add race to the mix. Impuls­iv­ity morphs into danger­ous unpre­dict­ab­il­ity. Misbe­ha­vior in the company of peers becomes “gang activ­ity.” The inab­il­ity to appre­ci­ate long-term risks devolves into intrinsic irre­spons­ib­il­ity. So long as we allow the discre­tion­ary call to charge some offend­ers in the adult system, we will continue to see prosec­utors in juven­ile court weapon­iz­ing adult prosec­u­tion as a way to coerce a more severe outcome in juven­ile court. We will continue to see Black kids shouldered out of rehab­il­it­at­ive care even when they engage in the exact same beha­vior as white chil­dren. We will continue to see prosec­utors misper­ceiv­ing Black chil­dren’s wrong­ful conduct as will­ful rather than the product of imma­tur­ity. Break­ing this racism habit requires us to prohibit the prosec­u­tion of anyone under 21 in the adult crim­inal system.

What Did You Call Me?

By Rahsaan “New York” Thomas

An incarcerated person writes about how dehumanizing language like “inmate” is destructive.

It all starts with a label. Nazi Germany, Rwanda, and Amer­ican slavery all hold that in common. In each case, targeted groups were assigned names that had the psycho­lo­gical effect of dehu­man­iz­ing. Once you’re not seen as a human, you don’t see your­self as human — and inhu­man treat­ment begins that could cause your end. 

Mass incar­cer­a­tion star­ted with labels, too. The n-word accom­pan­ied the Black Code laws that returned freed slaves to plant­a­tions to work the fields, unpaid (under “convict leas­ing” schemes) for minor, often made-up offenses like vagrancy or not sign­ing a labor contract with a white plant­a­tion owner. Under Nixon, when it had become polit­ic­ally incon­veni­ent to call Black people the n-word, they called us “crim­in­als” and proceeded to build pris­ons focused on punish­ment instead of rehab­il­it­a­tion to discip­line beha­vior born of oppres­sion and intergen­er­a­tional trauma, rather than offer­ing repar­a­tions or heal­ing. The tag “super-pred­at­ors” launched the lock­ing up of kids, senten­cing teen­agers to multiple life terms, then hous­ing them in adult insti­tu­tions. One label ran along­side all the others and helped balloon the prison popu­la­tion in Amer­ica to over 2.3 million. That term is “inmate.” 

Webster’s defines “inmate” as “a person confined with others in a prison or mental insti­tu­tion.” But call­ing a person an inmate does­n’t describe where you are, it says who you are. It iden­ti­fies you as your incar­cer­a­tion, as an outcast. 

Not all labels are harm­ful, of course. Call­ing someone a student or a mother brings up posit­ive images and reac­tions. Not so the word “inmate.”

With over 20 years in prison and count­ing, I hear correc­tional officers use the word constantly with an inflec­tion in their voice that sounds like they’re talk­ing about someone less than human. I remem­ber a correc­tional officer giving a new CO a tour of the media center at San Quentin. “This is where the inmates record the ‘Ear Hustle’ podcast, ” he said, mean­ing to express pride in what we did — but because of his use of the word “inmate, ” what I heard in my mind was, “This is where the monkeys we trained record ‘Ear Hustle’.”

Correc­tion officers are trained not to see us as human; it helps them do their jobs. They are trained to be able to pepper spray or even shoot us without warn­ing, if it appears neces­sary. It helps them main­tain that “profes­sional” distance by seeing us as differ­ent from them, less than them, as “inmates.”

I think soci­ety must see people in correc­tional facil­it­ies as less than human as well. Even some social justice advoc­ates and news report­ers use “inmate” without regard for the damage it causes. I’ve seen incar­cer­ated people intern­al­ize that word, lose touch with their person­hood, and do noth­ing with their prison time but mop floors. 

If you think that word is harm­less, close your eyes and tell me what image comes to mind when you hear the word “inmate.”

Language is obvi­ously import­ant. Why do news­pa­pers and even the Cali­for­nia prison system respect the pronouns and language of the LGBTQ community? Why did news report­ers stop call­ing undoc­u­mented immig­rants “illeg­als”?

As Emile DeWeaver poin­ted out in his article “Moving the Needle on Black Liber­a­tion, ” mass incar­cer­a­tion harms more Black people than police shoot­ings. In 2017, the police killed 112 Black people but imprisoned nearly a million. People get lynched in “courtrooms around the coun­try Monday – Friday, ” raps Plies in his hit “100 Years.” Yet, as I watch my 15-inch flat screen TV from the top bunk of a 6 × 9 cell, I don’t see armies of protest­ers march­ing against the much larger prob­lem of mass incar­cer­a­tion. 

I believe we allowed mass incar­cer­a­tion to happen right in front of our faces because we lost sight that pris­ons contain people. We lost sight of the inhu­man­ity of putting a 16-year-old in an adult maximum-secur­ity prison or senten­cing a burg­lar to 66 years to life. We didn’t care about “inmates, ” because we forgot they’re human beings. 

Call­ing someone housed in a correc­tion facil­ity “a person in prison” or an “incar­cer­ated person” is very differ­ent from call­ing him or her an “inmate.” If we use “person” as the noun and “incar­cer­ated” as the adject­ive, we keep their human­ity front and center.

We are people despite our mistakes. I’ve been in hundreds of prison self-help group sessions and heard the back­stor­ies of hundreds of men incar­cer­ated for viol­ent crimes. They all even­tu­ally took account­ab­il­ity for the harm they caused. Remorse drives many of them to help stop cycles of further viol­ence. From hear­ing their back­stor­ies and study­ing beha­vi­oral science, I see their human­ity and that they often commit­ted crimes for really human reas­ons. When we call any of them “inmate, ” we discon­nect from the person and we don’t take account­ab­il­ity for our role in fail­ing them before they made the decision that failed us.

Consider my own circum­stances. Grow­ing up, I was a nerd who atten­ded Cath­olic schools from 1st grade through the 11th. I played video games on a Commodore 64 computer, rode a skate­board, collec­ted Marvel comic books, watched Star Trek, played Dungeons & Dragons just like the guys in The Big Bang Theory.

However, I grew up in the New York City’s murder capital — Browns­ville, Brook­lyn. Being an awkward, extra-light-skinned kid was hell. I faced bully­ing daily. When bullied, when robbed, when beat up, I had three choices: endure phys­ical harm, call the cops and face ridicule from the police and ostra­cism from my peers, or fight back. I chose to become pugna­cious towards the oppres­sion. Although I have always hated viol­ence, I hated feel­ing help­less and being bullied even more. So, I fought my neigh­bor — for accept­ance, for respect, and to be left alone.

Things accel­er­ated when I was 17. A 16-year-old with a gun tried to rob me and my little brother. I refused to give up my gold ring; I ran, my little brother was shot. After that day, I star­ted carry­ing a gun and using it when faced with similar circum­stances. Fast forward to age 29, when two armed men were robbing my friend right before my eyes. I opened fire, killing one and wound­ing the other.

Today I real­ize that my real enemies weren’t my neigh­bors or the police. The real enemies were post-Jim Crow segreg­a­tion accom­plished through redlining, employ­ment discrim­in­a­tion, poli­cing policies rooted in main­tain­ing white suprem­acy, gun show loop­holes, address­ing crim­inal beha­vior and addic­tion through viol­ence, the lack of emotional intel­li­gence educa­tion in the school-to-prison pipeline, felony disen­fran­chise­ment and untreated trauma.

My growth took place in prison. However, it wasn’t by design. I star­ted my time in a maximum-secur­ity prison want­ing help, but all they had was Narcot­ics Anonym­ous, Alco­hol­ics Anonym­ous, Jesus, Buddha, and Mohammed. It took 13 years for me to reach San Quentin and get real help, real oppor­tun­it­ies, and only by God’s grace did I make it here. I owe San Quentin for being a unique correc­tional facil­ity that offers me unique oppor­tun­it­ies. In the last seven years here, I’ve accom­plished so much, includ­ing gradu­at­ing from college, getting nomin­ated for a Pulitzer Prize, effect­ively coun­sel­ing kids through the SQUIRES program, creat­ing a program empower­ing incar­cer­ated artists, complet­ing 10 self-help groups, and more. Yet some still call me an “inmate.” Good thing I know I’m not, or I would have wasted these last 20 years just mopping floors and getting face tattoos.

The Federal Funding that Fuels Mass Incarceration

By Lauren-Brooke Eisen

Decades of financial incentives by the federal government have encouraged states and cities to put more people behind bars for longer, with devastating results.

Other essays in this series have poin­ted out how senten­cing laws and other crim­inal legal policies have created a system of mass incar­cer­a­tion result­ing in more than 2.1 million people behind bars, almost 4.5 million people on proba­tion and parole, and 70 million people with crim­inal convic­tions. What is far less well-known is how federal fund­ing for law enforce­ment and prison construc­tion has played a key role in creat­ing today’s vast national carceral land­scape. For more than half a century, federal dollars have incentiv­ized and rewar­ded dispro­por­tion­ately punit­ive responses to crime.

Since the late 1960s, federal fund­ing has fueled local crim­inal justice policy in ways that have resul­ted in more arrests, more incar­cer­a­tion or proba­tion, harsher senten­cing laws, and more contacts with the crim­inal justice legal appar­atus. Today, Wash­ing­ton spends billions of dollars each year subsid­iz­ing state and local crim­inal justice agen­cies. The Justice Depart­ment by itself distrib­utes more than $5 billion in federal grants to state and local govern­ments annu­ally, not includ­ing the fund­ing that law enforce­ment agen­cies across the nation get from the Depart­ment of Home­land Secur­ity. Hundreds of millions more come through the Depart­ment of Defense, which facil­it­ates the trans­fer of milit­ary-grade weapons and armored vehicles to police depart­ments — for instance, a $705,000 armored mine-resist­ant vehicle for Bridge­port, Connecti­cut. Even the Depart­ment of Agri­cul­ture has gotten involved, provid­ing $360 million to build jails in rural communit­ies since 1996.

The history of such punit­ive fund­ing stretches back to Pres­id­ent Lyndon John­son’s sign­ing of the Omni­bus Crime Control and Safe Streets Act of 1968, which earmarked $400 million for law enforce­ment purposes. Four years later, Richard Nixon, who had ascen­ded to the pres­id­ency after running a campaign focused on “law and order, ” announced that since 1969, his admin­is­tra­tion had doled out $1.5 billion in state and local law enforce­ment grants, compared to just $22 million during the final three years of the John­son admin­is­tra­tion.

In the ensu­ing years, as crime increased — partic­u­larly crime related to the spread of crack cocaine — so did the flow of federal dollars. The Anti-Drug Abuse Act of 1986, signed by Pres­id­ent Ronald Reagan, increased fund­ing for law enforce­ment and mandated harsher penal­ties in federal drug cases, includ­ing life impris­on­ment. The legis­la­tion not only dedic­ated more than $1 billion to state and federal law enforce­ment agen­cies, includ­ing an author­iz­a­tion of $96.5 million for new federal pris­ons, but also expan­ded the use of no-knock warrants, such as the one used by Louis­ville police last year when they killed Breonna Taylor as she slept in her home.

Then came the legis­la­tion that showed how policy had been fully separ­ated from real­ity. Crime in the United States peaked in 1991, but even as it declined Wash­ing­ton’s appet­ite for crueler penal­ties and over­reach­ing enforce­ment increased. The water­shed moment was the enact­ment of the Viol­ent Crime Control and Law Enforce­ment Act, often referred to as the 1994 Crime Bill, signed into law by Pres­id­ent Bill Clin­ton.

By the time of the bill’s enact­ment, the viol­ent crime rate had already fallen by 6 percent. By the time it took effect the follow­ing year, viol­ent crime was down by 10 percent. Yet over the next decade, despite what would become the most dramatic drop in crime in the nation’s history, politi­cians chose not to lead the nation in urgently neces­sary conver­sa­tions about the proper role of enforce­ment and punish­ment, but to feed the punit­ive machine they had built.

The 1994 Crime Bill did ban 19 types of semi­auto­matic fire­arms (defined as “assault weapons”) as well as restrict­ing the char­ac­ter­ist­ics of fire­arms that could be sold legally, and it included the Viol­ence Against Women Act to protect victims of domestic viol­ence. However, the legis­la­tion also mandated harsher penal­ties for people caught in the crim­inal legal system. It author­ized the death penalty for dozens of exist­ing and newly defined federal crimes, and it required life impris­on­ment for any convic­tion for a third viol­ent felony, the infam­ous “three strikes and you’re out” policy. It also estab­lished a fund­ing mech­an­ism that incentiv­ized and rewar­ded states for send­ing people to prison for very long peri­ods of time.

The 1994 Crime Bill also offered federal grants to states to expand their prison capa­city, and it made the grants depend­ent on states’ increas­ing the length of incar­cer­a­tion of those convicted of viol­ent crimes. Through the bill’s Viol­ent Offender Incar­cer­a­tion and Truth-in-Senten­cing (TIS) Incent­ive Grants Program, the legis­la­tion author­ized $12.5 billion in grants to fund incar­cer­a­tion, with nearly 50 percent earmarked for states that adop­ted tough “truth-in-senten­cing” laws that scaled back parole. Specific­ally, states were rewar­ded for having or enact­ing laws requir­ing those convicted of viol­ent crimes to serve at least 85 percent of the sentence imposed, making it diffi­cult for those convicted of viol­ent crimes to earn early release based on rehab­il­it­at­ive prin­ciples. Eleven states adop­ted TIS laws in 1995, one year after the bill was signed. By 1998, incent­ive grants had been awar­ded to 27 states and the District of Columbia.

In addi­tion to the finan­cial incent­ives, states found signi­fic­ant symbolic value in the program’s messaging. In 1999, the authors of an Urban Insti­tute study on the legis­la­tion’s impact inter­viewed a staff member of Connecti­c­ut’s Office of Policy and Manage­ment. They wrote, “When asked about Connecti­c­ut’s motiv­a­tion in moving to an 85 percent truth in senten­cing law, [the staff member] respon­ded that Connecti­cut liked to be ‘ahead of the curve’ on national reforms, and she implied that the state govern­ment might be viewed negat­ively if it did not seek federal funds to help with its perceived crime prob­lem.”

Another creation of the 1994 Crime Bill was the Community Oriented Poli­cing Services (COPS) Program, a divi­sion of the Justice Depart­ment that has provided billions of dollars to police depart­ments to hire new officers. Between 1995 and 1999, the annual appro­pri­ation for the COPS program aver­aged nearly $1.4 billion. At the same time — as journ­al­ist Radley Balko demon­strated in his 2013 book, Rise of the Warrior Cop: The Milit­ar­iz­a­tion of Amer­ica’s Police Forces — the federal govern­ment ceded some control over the use of this money, result­ing in many law enforce­ment agen­cies spend­ing funds not on community poli­cing, but on the milit­ar­iz­a­tion of their forces.

And so it contin­ued: even as the frequency of crime declined, the federal response was more spend­ing on more enforce­ment and more punish­ment. In 2005, when reau­thor­iz­ing the Viol­ence Against Women Act, Congress expan­ded previ­ous laws provid­ing fund­ing for local police to create the Justice Assist­ance Grant (JAG) program. All 50 states plus Wash­ing­ton, DC, six U.S. territ­or­ies, and more than 1,000 local govern­ments now util­ize JAG funds, which amount to $300 to $500 million yearly — dollars that support almost any crim­inal justice activ­ity covered by the federal stat­ute.

For many years, civil rights groups criti­cized the program for fund­ing drug task forces that were often unne­ces­sary for the protec­tion of public safety. These task forces provide aven­ues for agen­cies across govern­ments to share person­nel, equip­ment, intel­li­gence, and other resources. Crit­ics, includ­ing the Bren­nan Center, poin­ted out that federal offi­cials asked JAG recip­i­ents to report the number of arrests made, but not their crime rates. DOJ also meas­ured the amount of cocaine seized, but not whether those arres­ted were screened for drug addic­tion. The depart­ment’s own metrics sent a signal to states and local govern­ments that JAG fund­ing was impli­citly condi­tioned on more arrests, more cocaine busts, and more prosec­u­tions — inev­it­ably at the expense of crime preven­tion activ­it­ies or programs that could divert people from the crim­inal legal system.

Today, there is an emer­ging recog­ni­tion that federal dollars have helped deepen today’s devast­at­ing fissures between police and the communit­ies they purport to serve, perpetu­at­ing trauma and harm through mass incar­cer­a­tion and crim­inal legal system over­reach. Under the Obama admin­is­tra­tion, the Justice Depart­ment revised JAG perform­ance meas­ures to better steer recip­i­ents toward the devel­op­ment of programs that would reduce crime and incar­cer­a­tion, in place of increased enforce­ment and arrest activ­ity. For example, the DOJ stopped asking how many people were arres­ted and how many drugs were seized, and instead star­ted asking about the number of cita­tions issued in lieu of arrest, and whether prosec­utors routinely recom­mend altern­at­ives to prison.

The ripple effects from mass incar­cer­a­tion are caus­ing gener­a­tions of damage. So many chil­dren (more than 5.3 million under age 18, by a recent estim­ate) have exper­i­enced parental incar­cer­a­tion that in 2013 Sesame Street felt it neces­sary to add a Muppet named Alex, whose father is incar­cer­ated, to reach out to chil­dren grap­pling with how to grow up with a parent behind bars.

In a 2015 speech before the NAACP, Bill Clin­ton publicly apolo­gized for the harm the 1994 Crime Bill caused. “I signed a bill that made the prob­lem worse, and I want to admit it, ” he said. “In that bill there were longer sentences and most of these people were in prison under state law, but the federal law set a trend, and that was over­done. We were wrong about that.”

In what was a remark­able and rare acknow­ledg­ment of how far afield poli­cy­makers and govern­ments strayed by over­fund­ing the growth of our police and carceral state, one can catch a glimpse of the regret of a nation.

Covid-19 and the Struggle for Health Behind Bars

By Homer Venters

For many, harming the health of people in prison appears to have become part of their punishment. That needs to change.

A little more than a year ago, I left my job as pres­id­ent of a nonprofit so I could respond full time to the spread of Covid-19 in jails, pris­ons, and immig­ra­tion deten­tion centers. Since then, I’ve conduc­ted about 30 inspec­tions of facil­it­ies to assess their Covid-19 responses and provide recom­mend­a­tions.

How do things look from this perspect­ive? Are we any closer to build­ing systems and cultures that promote health in these settings, instead of harm­ing the health of the incar­cer­ated to such a degree that it actu­ally becomes a part of punish­ment? When I compare Covid-19 to past health crises in carceral settings, I’m concerned that we will simply improve care deliv­ery for one disease instead of using this moment to push for trans­par­ency about all health risks and health outcomes behind bars.

The Centers for Disease Control and state health depart­ments are currently engaged in carceral settings, but their gaze will soon shift once vaccines have been delivered and rates of Covid-19 abate. We must keep their focus there, to learn and report on the truth of health care access, adequacy, and outcomes just as they do for the rest of our soci­ety.

Now, some notes from the field. As of June, most of the atten­tion regard­ing Covid-19 behind bars is focused on vaccin­a­tion efforts, with good reason. Start­ing in Janu­ary, vaccines became widely avail­able to most correc­tional staff. For detained people, access star­ted in waves in Febru­ary and March. Low accept­ance rates among correc­tional staff created a surplus of avail­able vaccine in many facil­it­ies, enabling even more detained people to become vaccin­ated. By March and April, the low vaccin­a­tion rate among correc­tional staff was a national prob­lem, and many pris­ons, jails, and deten­tion centers were strug­gling to exceed a vaccin­a­tion rate of 40 percent among staff, while achiev­ing vaccin­a­tion rates over 60 percent among detained people.

But in some insti­tu­tions, the way vaccines are offered — usually to large groups of indi­vidu­als, for example every­one in a hous­ing area or dining hall — is itself a prob­lem. This approach often leaves little room for people with ques­tions about vaccine safety or complex medical prob­lems to ask their own ques­tions about vaccin­a­tion. As a result, some of the people who need the vaccine the most, like those who have multiple seri­ous health prob­lems and those who are taking numer­ous medic­a­tions, end up not being vaccin­ated simply because they are denied the oppor­tun­ity to learn what they wish to know.

Both of these vaccin­a­tion chal­lenges — the hesit­ancy of correc­tional staff and the defi­cien­cies of the assembly line approach to vaccin­a­tion of the detained — can be addressed with engage­ment. An engage­ment approach, which entails elicit­ing the indi­vidu­al’s input and parti­cip­a­tion in his or her health care, is stand­ard for community health clin­ics, hospit­als, and other health organ­iz­a­tions. But in jails, pris­ons, and immig­ra­tion deten­tion facil­it­ies, the very notion of indi­vidu­al­ized engage­ment can be seen as a threat to the para­mil­it­ary approach of correc­tions.

For example, a common response to a patient exhib­it­ing suicidal beha­vior is to lock them in a cell, naked except for a rough “suicide smock, ” with the goal of depriving them of the means to harm them­selves. This approach not only fails to address the actual mental health crisis but also adds addi­tional humi­li­ation and isol­a­tion for a person who desper­ately needs treat­ment and engage­ment.

Some penal systems are work­ing to increase Covid-19 vaccine engage­ment via one-on-one meet­ings with high-risk patients. These sessions are often added into the preex­ist­ing visits that people with chronic health prob­lems already have, so as to target high-risk patients who may have ques­tions about their health prob­lems, medic­a­tions, and Covid-19 vaccines. Some law enforce­ment agen­cies have also conduc­ted surveys of their staff to under­stand atti­tudes and reluct­ance and to provide incent­ives for vaccin­a­tion. But most Amer­ican correc­tional health services remain under the author­ity of secur­ity forces, which often have little appet­ite for public health and infec­tion control.

Much of the current focus in the battle against Covid-19 behind bars has been to identify the morbid­ity and mortal­ity of the disease among a vulner­able group of people. But this work has also iden­ti­fied the numer­ous weak­nesses in care and condi­tions before Covid-19, includ­ing fail­ing sick call and chronic care systems and lack of consist­ent access to specialty care and medic­a­tions.

The most damning fail­ure illu­min­ated by Covid-19 is how the CDC and state depart­ments of health are essen­tially AWOL when it comes to track­ing health outcomes or provid­ing object­ive assess­ments of the qual­ity of care for people behind bars. For hospit­als, nurs­ing homes, and many other cohorts of our soci­ety, these are tasks that both state depart­ments of health and the CDC perform routinely, and with great skill — but not in carceral insti­tu­tions. The CDC created help­ful Covid-19 guidelines early in the pandemic, but it has almost no involve­ment in track­ing actual adop­tion of those recom­mend­a­tions, nor does it even aggreg­ate stat­ist­ics about deaths and illness from Covid-19 in carceral settings.

And despite clear evid­ence of the increased risk of illness and death from Covid-19 behind bars, the CDC has been all but silent on the most effect­ive tool: release. Release of high-risk patients has been essen­tial to protect the most vulner­able people from seri­ous illness and death from Covid-19, and it has also been crit­ical to allow­ing facil­ity admin­is­trat­ors the room to estab­lish medical isol­a­tion and quar­ant­ine units when the need arises.

This lack of over­sight and interest among our national and state health bodies has rein­forced the horrible real­ity that harm­ing health is part of the punish­ment of incar­cer­a­tion. People are routinely incar­cer­ated with and even because of health prob­lems for which they will never receive treat­ment; instead, they are exposed to new health risks that can cause them to suffer seri­ous illness, long term disab­il­ity, or death.

For example, people arres­ted on substance use-related charges rarely receive evid­ence-based treat­ment for that health prob­lem. In many communit­ies, the primary response to a mental health crisis is the same: incar­cer­a­tion in a local county jail. These beha­vi­oral health prob­lems lead to incar­cer­a­tion for people of color, those who are poor, and espe­cially those who are unin­sured, yet these same health prob­lems are unlikely to be treated appro­pri­ately, caus­ing many jail deaths.

I recently told European colleagues work­ing on Covid-19 about two aspects of our system that shocked them — and should shock all of us into action. The first was that the most recent data on deaths in U.S. jails dates from 2016. Just recall the contro­versy over how deaths from Covid-19 were repor­ted in New York nurs­ing homes; imagine wait­ing five years to learn of those deaths. The second shocker: Covid-19 is estim­ated to have reduced the life expect­ancy of pris­on­ers in Flor­id­a’s state system by four years. Both of these facts indict a national public health appar­atus that has turned its back on incar­cer­ated people, inev­it­ably widen­ing racial dispar­it­ies in the process.

We must make an affirm­at­ive decision to apply the same lens of health expert­ise and trans­par­ency to carceral settings as we do to other parts of soci­ety. Concretely, we can begin to address this fail­ure by setting up an office of deten­tion health in the CDC that is charged with track­ing the health of incar­cer­ated people nation­wide and the care provided them. In fact, this is one of the many interim recom­mend­a­tions recently made by the Biden-Harris Health Equity Task Force (which I am a member of) to involve the CDC in track­ing health outcomes and promot­ing health among incar­cer­ated people.

With federal support, the same monit­or­ing process could be used in state health depart­ments, and then we can join the effort to meas­ure how incar­cer­a­tion harms health, how carceral settings should provide health care, and how undo­ing mass incar­cer­a­tion can improve indi­vidual, family, and community health.

The CDC has a lot of work to do in this realm, and it can start by look­ing at the rates of “long Covid, ” determ­in­ing the effic­acy of release and other Covid-19 responses during the pandemic, getting involved in suicide preven­tion (still the number one cause of death among the incar­cer­ated), and analyz­ing the health needs (and costs of care) of the enorm­ous and grow­ing portion of elderly people behind bars.

These minimal inter­ven­tions are crucial for improv­ing our response to Covid-19, as well as the next pandemic, and for inform­ing the nation of public health prob­lems that arise from mass incar­cer­a­tion. They are also small but neces­sary steps towards address­ing the real­ity that harm­ing health is not a byproduct of incar­cer­a­tion but, seem­ingly, one of its object­ives.

Collateral Consequences and the Enduring Nature of Punishment

By Cameron Kimble and Ames Grawert

For some people, punishment can continue years after the sentence ends, even decades.

Introduction

Less than two years ago, while combat­ing the worst wild­fires in its history, Cali­for­nia enlis­ted the help of nearly 2,000 imprisoned people to serve as fire­fight­ers. Profes­sion­ally trained and serving in the same way as other seasonal fire­fight­ers, many of them worked long hours on the front lines, clear­ing tinder brush and trees with chain­saws and hand tools to halt the flames.

But until a recent change in a long-stand­ing law, this fire­fight­ing exper­i­ence would have had precisely zero util­ity for most of these people after their release from prison. As crim­inal offend­ers, they would have been barred for life from becom­ing licensed emer­gency respon­ders. And the people of Cali­for­nia would have been deprived of their exper­i­ence, their skill, and their bravery.

Yes, the law was finally changed — but that made only the tini­est dent in the forbid­ding edifice of more than 45,000 state and local laws and regu­la­tions that have profound rami­fic­a­tions for Amer­ican soci­ety: the social exclu­sion that arises from the “collat­eral consequences” of mass incar­cer­a­tion. Roughly 600,000 people leave pris­ons every year hoping that their punish­ment has ended, only to encounter a combin­a­tion of laws, rules, and biases form­ing barri­ers that block them from jobs, hous­ing, and funda­mental parti­cip­a­tion in our polit­ical, economic, and cultural life.

These “collat­eral consequences” power­fully illus­trate the excess­ively retributive nature of Amer­ican crim­inal justice. From the inab­il­ity to acquire a driver’s license (and thus, the inab­il­ity to drive to work) to limits on access to college or even milit­ary service, they serve to remind people with crim­inal records of their perman­ent status as “other.”

Truly ending mass incar­cer­a­tion will require elim­in­at­ing these consequences as well, ensur­ing that we welcome people with a crim­inal record back into soci­ety and, ulti­mately, shift­ing our crim­inal justice paradigm away from retri­bu­tion and towards restor­a­tion. As Jeremy Travis notes, in the modern, developed welfare state of the 20th century, the collat­eral consequences faced by formerly imprisoned Amer­ic­ans amount to a vari­ant of the anachron­istic tradi­tion of “civil death, ” in which return­ing citizens are “defined as unworthy of the bene­fits of soci­ety, and [are] excluded from the social compact.”

Limits on Employment, Opportunities

As of 2018, 80 percent of employ­ers conduc­ted back­ground screen­ing on candid­ates for full-time posi­tions. While in some cases there is a compel­ling rationale for these checks, in others they screen people out of the work­force unne­ces­sar­ily, turn­ing a convic­tion record into a scar­let letter. In her seminal study, “The Mark of a Crim­inal Record,” the late Devah Pager found that a crim­inal convic­tion reduced the like­li­hood of a job applic­ant receiv­ing a call­back by 50 percent for white applic­ants and by nearly two-thirds for Black applic­ants.

But beyond private actions, the role of govern­ment in limit­ing oppor­tun­it­ies for the formerly incar­cer­ated is mani­fest. Start­ing in the mid-1980s, state legis­latures accel­er­ated the number and breadth of occu­pa­tional restric­tions for people with prior convic­tions. In the 1970s, roughly 1,950 separ­ate laws limited job oppor­tun­it­ies for people with a crim­inal record. Today, more than 27,000 rules bar formerly justice-involved people from hold­ing profes­sional licenses. (This includes a New York State law that bars anyone with a crim­inal convic­tion from obtain­ing a bingo oper­at­or’s license!)

These limit­a­tions and the corres­pond­ing lack of job oppor­tun­it­ies can trap people in poverty for decades after incar­cer­a­tion. As of 2019, nearly one-fourth of those serving time in pris­ons fell between the ages of 20 and 29. Most of them will be released at some point — many will enter the job market, and some will find success. But even then, they are likely to begin their work­ing lives earn­ing roughly $7,100 less per year than indi­vidu­als of similar socioeco­nomic status without a crim­inal record and end them trail­ing these peers by more than $20,000 annu­ally. As recent Bren­nan Center research suggests, a prior crim­inal convic­tion is devast­at­ing to an indi­vidu­al’s earn­ing prospects, but a prison record all but ensures a life­time strad­dling the poverty threshold.

Social exclu­sion helps explain this poverty trap. When work is secured after a stint in prison, it is often tempor­ary, part-time, and low paying, thus lack­ing in prospects for upward mobil­ity. Even those who find decent jobs are limited by back­ground screen­ing and licens­ing rules that make progress in one’s career that much more diffi­cult at every step, as people with a record may be less likely to be considered for the promo­tions and raises that drive wage growth. Simil­arly, licens­ing restric­tions and crim­inal back­ground inquir­ies make people who have spent time in prison unlikely to see the same return on invest­ment from profes­sional creden­tial­ing or train­ing as their peers.

The Tattered Social Safety Net

English soci­olo­gist T.H. Marshall observed in 1950 that, as West­ern soci­et­ies evolved, so too did the notion of citizen­ship. Where citizen­ship in the 18th and 19th centur­ies was defined by civil and polit­ical rights, he concluded that citizen­ship in an advanced 20th century soci­ety meant social rights. He called these “a compound of mater­ial means and imma­ter­ial ends . . . located between the poles of wealth and happi­ness” — in other words, what we know as welfare. Yet more than 70 years later, many Amer­ican states continue to exclude people with crim­inal convic­tions from welfare bene­fits, lead­ing to mater­ial depriva­tion that compounds their social isol­a­tion.

Job and hous­ing insec­ur­ity make it more likely that someone with a crim­inal record might need to rely tempor­ar­ily on govern­ment programs designed to provide relief from poverty. But since 1996, people convicted of certain drug crimes have been ineligible for govern­ment assist­ance through the Tempor­ary Assist­ance for Needy Famil­ies (TANF) program and Supple­mental Nutri­tion Assist­ance Program (SNAP). Congress permit­ted states to opt partially or wholly out of this frame­work and, thank­fully, many states have in fact chosen to relax those rules. But even modi­fied bans in nearly half the states continue to compound disad­vant­age and set up a self-perpetu­at­ing cycle of poverty and recidiv­ism. Given how many people involved with the justice system also stand on the edge of poverty (in one study, more than half of formerly imprisoned people surveyed report annual earn­ings less than $500 just before their incar­cer­a­tion), these restric­tions are espe­cially damaging.

Moreover, formerly incar­cer­ated people face a signi­fic­antly elev­ated risk of home­less­ness, in part because another crit­ical part of the social safety net, public hous­ing, is often unavail­able to many of the tens of millions of Amer­ic­ans with an arrest or convic­tion record. Begin­ning in the 1980s, Congress passed and public hous­ing author­it­ies imple­men­ted “one strike and you’re out” rules provid­ing for the evic­tion of people who became involved in crim­inal activ­ity. Those policies have slowly been tempered, but they still perman­ently exclude people convicted of certain crimes. Home­less­ness and hous­ing insec­ur­ity make it that much harder for people to stay connec­ted to family, employ­ment, and the basic neces­sit­ies of life — almost the very defin­i­tion of social exclu­sion.

Things are begin­ning to change. After complet­ing a pilot program launched in 2013, the New York City Hous­ing Author­ity began allow­ing select people with crim­inal records back into public hous­ing on a provi­sional basis, help­ing reunite famil­ies in the process. Further reforms are forth­com­ing. And a few years ago, the public hous­ing author­ity in New Orleans elim­in­ated its blanket ban on hous­ing assist­ance for people with a crim­inal record. But in many states, the exclu­sions remain in place.

Voting Rights

The prac­tice of felony disen­fran­chise­ment traces its roots back to ancient times,  but found new life in the Jim Crow era. After formerly enslaved Black people were freed, states quickly imple­men­ted so-called Black Codes, which encour­aged and stream­lined the base­less arrest and convic­tion of Black citizens. Build­ing on this struc­ture, many states adop­ted laws to strip voting rights from people with a crim­inal record. Some states, like Virginia, expan­ded preex­ist­ing laws to encom­pass offenses like petty theft, as white politi­cians believed many Black people could be easily convicted of such crimes.

Unfor­tu­nately, this racist legacy endures. Currently, 30 states disen­fran­chise at least some people based on past convic­tions. The work to change these laws has proceeded in fits and starts, though with increased momentum in recent years, as the governors of Iowa and Kentucky, among others, issued exec­ut­ive orders restor­ing voting rights to people with prior convic­tions. Also, in 2018, a super­ma­jor­ity of Flor­idi­ans voted to restore voting rights to as many as 1.4 million people with felony convic­tions. Shortly after the refer­en­dum, though, Flor­ida legis­lat­ors passed a law that made voting rights condi­tional upon people paying all fees, fines, and resti­tu­tion owed due to their convic­tion, which the “over­whelm­ing major­ity” of Flor­idi­ans with convic­tions cannot afford to pay.

Collat­eral consequences of crim­inal convic­tion or incar­cer­a­tion are not unique to the United States. But they are unique here for their depth, sever­ity, and pervas­ive­ness. Brit­ish citizens, for example, are only deemed ineligible for welfare bene­fits if convicted of a welfare fraud offense. And their ineligib­il­ity is tempor­ary: it lasts just four weeks. In 2002, Canada’s Supreme Court found “denial of the right to vote on the basis of attrib­uted moral unwor­thi­ness” incom­pat­ible with Cana­dian demo­cratic values.

But in the United States, after finish­ing a prison sentence, citizens face contin­ued de facto punish­ment, as their crim­inal record increases the like­li­hood that they suffer home­less­ness, restricts their access to the social safety net, and strips them of their right to vote, further damaging their sense of civic inclu­sion. This fixa­tion on contin­ued punish­ment is not inev­it­able: it is a policy choice, and it is one that can be changed.

Probation and Parole as Punishment

By Peggy McGarry

Community supervision must be transformed in order to help people caught up in the justice system, not hurt them further.

Introduction

Community super­vi­sion — gener­ally speak­ing, our systems of parole and proba­tion — began in the 19th century as a peer-to-peer system of support. Community members came forward to assure the court or prison that they could help those convicted of crime to live lawfully outside of jail or prison.

In 1841, for example, John Augus­tus, a Boston shoe­maker, persuaded the court to release a man to his care, convinced he could cure the man of his drunk­en­ness. When he was success­ful, the Boston courts began using community care to suspend crim­inal sentences. In 1876, Zebu­lon Brock­way, the warden of the prison in Elmira, New York, prevailed upon the author­it­ies to release to community care men whom he believed were “rehab­il­it­ated.” In the early 20th century, states and counties estab­lished form­al­ized systems of support and surveil­lance as the popu­la­tion of cities and towns grew.

Despite the trans­ition to govern­ment agen­cies with profes­sional staff and budgets, the funda­ment­ally support­ive nature of those systems remained in place well into the 20th century. For people released from jail or prison, staff were avail­able to “rein­teg­rate” them, to help them with the prob­lems that might have led to their crimes in the first place, and to see that they succeeded. Today, however, many of those agen­cies are more primed to find and punish fail­ure than to promote success. The length of super­vi­sion and the nature of the condi­tions have grown more oner­ous and punit­ive, and the consequences of fail­ure more severe.

So, we ask: what happened?

Civil Rights, Voting Rights, and the Nixon Administration

A focus on crime and “urban unrest” — code for fear of people of color — grew in the after­math of the upheavals of the 1960s and the passage of the Civil Rights Act and the Voting Rights Act. Faced with the poten­tial for people of color having power, the policies and rhet­oric of the Nixon admin­is­tra­tion, partic­u­larly its South­ern strategy and “War on Drugs, ” were aimed at making sure that they didn’t. The atten­tion to crime, espe­cially urban crime, was taken up by the media and by poli­cy­makers of both polit­ical parties at the federal and state levels. It led to the passage of harsher senten­cing laws, includ­ing the recat­egor­iz­a­tion of offenses to make them incar­cer­a­tion-eligible, crim­in­al­iz­a­tion of more kinds of beha­vi­ors, and longer terms of incar­cer­a­tion.

Prison and jail popu­la­tions increased, and state and local budgets were hit hard. The era’s polit­ical rhet­oric about race and crime made it much easier to consider those caught up in the system as “other, ” rather than as members of the same community. Instead of an oppor­tun­ity to restore lives, release on parole or proba­tion became a priv­ilege that could be taken away. Any viol­a­tion, no matter how trivial, could be seen as an affront to the gener­os­ity and forbear­ance of the court or parol­ing author­ity.

The budget hits from the growth in incar­cer­a­tion and the build­ing of more pris­ons and jails, with the assist­ance of nearly $3 billion in federal fund­ing, meant fewer dollars for community super­vi­sion: fewer staff, larger case­loads, less money for services and a vari­ety of other things to help those released remain stable in the community. Agen­cies once struc­tured to provide assist­ance were reduced to offer­ing surveil­lance and enforce­ment.

The trend to punish harshly did not end with senten­cing. Laws were passed at the state and federal levels that closed off many public bene­fits that had once been offered to the newly released, such as public hous­ing and public assist­ance, making a success­ful term of super­vi­sion that much harder to achieve.

The Changing Nature of Supervision

As “tough on crime” became the rally­ing cry in many polit­ical campaigns, and as federal and state legis­latures and agen­cies made changes to laws and policies, the result­ing climate affected the actions and decisions of both judges and parole boards. Worried about their elec­tions and appoint­ments, judges looked to longer terms and more rigid “stand­ard” condi­tions of super­vi­sion as insur­ance. Although in recent years this has begun to change, governors often filled parole board posi­tions with polit­ical allies with little educa­tion or exper­i­ence in crim­inal justice. While they often make head­lines for their release decisions, parole boards also determ­ine the condi­tions of super­vi­sion and the responses to any viol­a­tions of them.

Long lists of condi­tions — the rules for living while on proba­tion or parole — have become the struc­ture of super­vi­sion: surveil for adher­ence, punish for viol­a­tion. Stand­ard condi­tions do not address the specific needs of each person but impose the same rules of conduct on every­one. While some are sens­ible, most are controls on noncrim­inal beha­vior. “Do not asso­ci­ate with felons” — though the indi­vidu­al’s only place to live might be a family home or shel­ter also occu­pied by people with felony convic­tions. “Do not move your place of resid­ence without permis­sion from your parole officer” — though in the crowded hous­ing of poor communit­ies, frequent moves are more common than in soci­ety at large. “Do not consume alco­hol” — though alco­hol use may have been in no way connec­ted to the indi­vidu­al’s crime. “Do not leave the county without prior approval, ” curfews, frequent report­ing, and random drug test­ing — even if the original crime had noth­ing to do with drugs. These are but a few of the common condi­tions, condi­tions that can inter­fere with a person’s abil­ity to keep a job or fulfill family oblig­a­tions like child­care.

Apart from stand­ard condi­tions of release, the judge or parole board usually imposes addi­tional require­ments, includ­ing treat­ment, classes, elec­tronic monit­or­ing, and others. In many places, the person on super­vi­sion is expec­ted to cover the costs of such programs or even the cost of the super­vi­sion itself. To someone strug­gling to find hous­ing and employ­ment, to keep a job or initi­ate family reuni­fic­a­tion, these fees can guar­an­tee fail­ure and rein­car­cer­a­tion.

This is the result of the budget reduc­tions for staff and services that arose from “tough on crime” rhet­oric. Politi­cians denounced services to those on super­vi­sion that “regu­lar” people could not get, while simul­tan­eously push­ing for a “mess up and you’re back” approach. With larger case­loads and fewer resources, officers had signi­fic­ant motiv­a­tion to yank a “diffi­cult” case — a person strug­gling to comply with condi­tions — and recom­mend revoc­a­tion and a return to jail or prison. For a judge or parole board, that recom­mend­a­tion was easy to approve since it was polit­ic­ally safer than continu­ing a diffi­cult case — even if the “diffi­cult” circum­stance was a noncrim­inal viol­a­tion of condi­tions.

The Transition to Law Enforcement

As the duties of proba­tion and parole officers became more about surveil­lance and enforce­ment of condi­tions, rather than the original concept of community care and rein­teg­ra­tion, the recruit­ment and train­ing of new officers changed as well. They were no longer hired for their “help­ing” skills or orient­a­tion. In many places, new officers were trained along­side insti­tu­tional correc­tions officers and law enforce­ment person­nel. The focus of such train­ing is on find­ing and respond­ing to crime: surveil­lance tech­niques, use of force, use of fire­arms, how to subdue the “other.” Begin­ning in the mid-1980s, their unions and asso­ci­ations success­fully lobbied for arming super­vi­sion officers. While these officers surely do encounter danger­ous situ­ations at times, their desire to be armed was driven mostly by the differ­ence in the pay and bene­fits avail­able to those in public safety. The subsequent arming of proba­tion and parole officers completed the trans­ition of those agen­cies from a service orient­a­tion to iden­ti­fic­a­tion as law enforce­ment.

Without time and resources, with scant encour­age­ment from their agen­cies, officers have little reason to work patiently with super­visees to help them stabil­ize and be success­ful. Officers are not given raises or promo­tions based on the successes achieved by people on their case­loads, and the decision to revoke someone back to jail or prison at the first sign of trouble is affirmed by how often their revoc­a­tion recom­mend­a­tions are approved. It’s a process of circu­lar reas­on­ing: the judge, parole board member, or regional super­visor assumes that the officers in the field know best how to respond to viol­a­tions; the officers assume their responses and recom­mend­a­tions are correct because the judge or parole board member approves them.

These prob­lems have been exacer­bated in recent years by the moves in states to reduce prison spend­ing by making more people eligible for proba­tion and parole. However, with more people eligible for release on super­vi­sion with longer terms, and as the resources — and the inclin­a­tion — for effect­ive and humane super­vi­sion have disap­peared, revoc­a­tion has become more frequent. Accord­ing to the Pew Trust’s Public Safety Perform­ance Project, between 2000 and 2018, 28 states increased the length of their proba­tion sentences. And accord­ing to the Coun­cil of State Govern­ments, 25 percent of prison admis­sions in 2017 were revoc­a­tions from super­vi­sion.

Conclu­sion

A differ­ent approach to community care is crit­ical if we are to make it a useful tool for prevent­ing future crime and enhan­cing both family and community well-being. There have been many efforts in recent decades to change how parol­ing author­it­ies make decisions, how super­vi­sion is conduc­ted, and how revoc­a­tions are handled. We know how to use officer time effect­ively to engage with the people on their case­loads, how to assess who needs more time and who can be left alone, how to inter­vene in ways that are help­ful rather than punit­ive, how to encour­age stabil­ity and success. And we know how to work with communit­ies, reli­gious organ­iz­a­tions, health care and social service agen­cies to improve lives, rather than to destroy them.

But that change isn’t happen­ing in enough places. We will continue to see these trends until we inten­tion­ally recruit officers who are more inter­ested in preven­tion than enforce­ment, unless we invest in officer train­ing that focuses on how to help those on super­vi­sion to succeed, unless we change our reward struc­ture to incentiv­ize those whose clients succeed, and unless we stop order­ing long terms of super­vi­sion and oner­ous condi­tions.

We have not done these things primar­ily because we seem to be content to waste the lives of those who have broken the law. The damage we continue to do is of little concern to us. They are other. And, appar­ently, their lives don’t really matter.

The Dehumanizing Work of Immigration Law

By Jennifer M. Chacón

America’s immigration rules are unduly harsh, leading to family separation and other needless suffering.

During his confirm­a­tion hear­ing to be attor­ney general, when asked about the Trump admin­is­tra­tion’s policy of separ­at­ing chil­dren from their parents at the U.S.–Mex­ico border, Merrick Garland repu­di­ated the policy, stat­ing “I can’t imagine anything worse.”

Yet, now that he is confirmed, Attor­ney General Garland presides over an agency that repres­ents the U.S. govern­ment in court arguing every day that parents should be separ­ated from their chil­dren, broth­ers from sisters, grand­chil­dren from grand­par­ents. Family separ­a­tion is baked into our immig­ra­tion system. It is as much a part of that system as is family unific­a­tion. Unless our elec­ted offi­cials make signi­fic­ant changes to laws and policies, Garland’s name will appear on thou­sands of case captions oppos­ite a person facing family separ­a­tion, often perman­ent.

Public offi­cials histor­ic­ally have justi­fied their parti­cip­a­tion in our immig­ra­tion system’s daily sunder­ing of family ties by invok­ing the rule of law. We are a nation of immig­rants, after all, “but we are also a nation of laws.” People who want to be here, we are repeatedly told, need to do it “the right way.” Those who viol­ate our laws will face consequences. The comfort­able invoc­a­tion of these brom­ides requires the assump­tion that the law provides sens­ible aven­ues for deserving people, partic­u­larly those with strong family ties to the United States, to enter or remain legally. But the real­ity is much differ­ent. In fact, our immig­ra­tion laws are excep­tion­ally harsh in ways that frequently defy common sense.

First, we need to acknow­ledge that the notion that there is a “right way” to immig­rate is just not true for many people. Most long-term, undoc­u­mented resid­ents, for example, do not fit the law’s rigid categor­ies for lawful immig­ra­tion, even though they are long­stand­ing members of our communit­ies and do some of the nation’s most essen­tial work. The annals of U.S. immig­ra­tion history are filled with the stor­ies of men like Oscar Martinez, an undoc­u­mented resid­ent in the United States for 25 years with a loving family and community, who have never­the­less been depor­ted because they could not navig­ate a legal path to citizen­ship.

Even when long-term resid­ents have found a way to regu­lar­ize their status — such as when marriage to a citizen opens up the possib­il­ity of a spousal visa — our laws make it almost impossible to do things “the right way.” A noncit­izen who marries a citizen gener­ally becomes eligible for a visa sponsored by her citizen spouse. But the law requires anyone who has been in the coun­try for more than a year without author­iz­a­tion to leave the coun­try to process her visa, whereupon she faces a 10-year bar before reen­ter­ing on that family-sponsored visa.

Noncit­izens with Tempor­ary Protec­ted Status (TPS) might have been spared some of this legally imposed separ­a­tion. TPS hold­ers who became eligible for family-based or employ­ment-based visas during their time in the United States success­fully argued to several federal appeals courts that their admis­sion to the TPS program was a legal admis­sion that allows them to bypass the need to leave the coun­try and face the 10-year reentry bar when processing their family-based visas. Yet Assist­ant Attor­ney General Michael Huston argued before the Supreme Court in April that the better read­ing of an ambigu­ous stat­ute was to treat TPS hold­ers as if they have not been “admit­ted” when they seek to adjust their status based on an avail­able visa.  The Supreme Court unan­im­ously agreed.

This sounds like a banal and tech­nical argu­ment, but the effect is to require TPS hold­ers, many of whom have now lived in the United States for two decades, to leave the coun­try and contend with the 10-year reentry bar when they other­wise qual­ify for a visa grant­ing lawful perman­ent resid­ent status. The full weight of the U.S. govern­ment was thus brought to bear in favor of a legal posi­tion that will inev­it­ably require more need­less family separ­a­tions.

Second, our coun­try has not always honored its own legal processes when immig­rants are doing things “the right way.” For example, U.S. treaty oblig­a­tions prohibit the govern­ment from penal­iz­ing asylum seekers who arrive at the border without docu­ments. But under Pres­id­ent Trump, when Cent­ral Amer­ican asylum seekers presen­ted them­selves to U.S. Border Patrol agents at the south­ern border in 2018 and 2019, as permit­ted by law, many were crim­in­ally prosec­uted and thou­sands of parents were separ­ated from their chil­dren.

While that family separ­a­tion policy gener­ated a national outcry, and even drew criti­cism from the govern­ment itself, there was little public atten­tion paid to the tens of thou­sands of others who were turned back and told to remain in Mexico, often in situ­ations of great peril, while they awaited their hear­ing. When the U.S. govern­ment shut down asylum processing in the wake of Covid-19, doing things “the right way” turned increas­ingly deadly as condi­tions deteri­or­ated in migrant camps.

Notwith­stand­ing the Biden admin­is­tra­tion’s prom­ise to reverse harsh Trump-era policies, it took the admin­is­tra­tion until June 1 — more than four months — to form­ally termin­ate the so-called “Migra­tion Protec­tion Protocol, ” prolong­ing the misery of asylum seekers who, by the end of the Trump admin­is­tra­tion, had already languished in Mexico for as long as two years. Even now, asylum seekers face an over­burdened system where they some­times have to wait years to have their claims adju­dic­ated and where five-year-old chil­dren have had to appear without coun­sel in proceed­ings.

Third, long-time lawful perman­ent resid­ents who have contact with the crim­inal legal system are often denied the chance to do things “the right way.” Crim­inal records, no matter how old or how minor — for instance, for marijuana-related convic­tions involving conduct that is no longer even crim­inal in some juris­dic­tions — are often a barrier to regu­lar­iz­ing an immig­rant’s status and remain­ing in the United States.

The law allows for the deport­a­tion of long-time resid­ents, includ­ing lawful perman­ent resid­ents, for offenses that were not deport­able offenses at the time of their commis­sion. In describ­ing the harsh effects of these immig­ra­tion laws, Nancy Morawetz discussed a deport­a­tion case the govern­ment was pursu­ing in 2000 on the basis of a convic­tion for posses­sion of a small amount of drugs in 1978, three years after the immig­rant entered the coun­try as a lawful perman­ent resid­ent. U.S. law requires deport­a­tion for a long list of relat­ively minor offenses regard­less of a person’s family ties, length in the coun­try, or service in the U.S. milit­ary.

Our national sever­ity toward those charged with crimes rever­ber­ates far beyond the crim­inal legal system, weigh­ing down those who have already served sentences for crimes. The pattern of over­poli­cing that plagues Black and Latino communit­ies ensures that immig­rants from these racial groups are overrep­res­en­ted among those depor­ted on crim­inal grounds or barred by crim­inal convic­tions from obtain­ing lawful status and natur­al­iz­ing.

In 2014, at the very same time that Pres­id­ent Obama and other members of his admin­is­tra­tion were critiquing the racial inequit­ies of our crim­inal legal system, it was dismay­ing to hear them doub­ling down on their reli­ance on a noncit­izen’s contacts with the crim­inal legal system as the basis upon which to prior­it­ize them for removal. We were told that the admin­is­tra­tion would deport “felons, not famil­ies, crim­in­als not chil­dren” even though it was clear that famil­ies would be separ­ated by the removal of those labeled “felons, ” and that the felony label itself emerges out of a crim­inal legal system that is both overly punit­ive and racially discrim­in­at­ory.

Again and again, notions of the rule of law are invoked to justify the sunder­ing of famil­ies and communit­ies that would, in other circum­stances, seem unthink­able. Courts have played an essen­tial role in shor­ing up the dehu­man­iz­ing narrat­ives that enable our nation’s harsh enforce­ment prac­tices. In decisions that laid the ground­work for today’s excep­tion­ally severe immig­ra­tion laws, the Supreme Court has treated work­ers coming to fill jobs in the United States as a threat to public safety and secur­ity.

In uphold­ing the consti­tu­tion­al­ity of interior immig­ra­tion check­point stops in the 1976 case of U.S. v. Martinez-Fuerte, Justice Lewis Powell justi­fied these stops — includ­ing those made on the basis of race — as neces­sary to address the “formid­able law enforce­ment prob­lems” posed by the “flow” of a popu­la­tion that he describes at the outset of the opin­ion as “illegal Mexican aliens.” In Justice Sandra Day O’Con­nor’s 1984 decision in INS v. Lopez-Mend­oza, she concludes that illeg­ally obtained evid­ence can be used against immig­rants in their deport­a­tion proceed­ings, analo­giz­ing the ongo­ing pres­ence of an unau­thor­ized immig­rant worker to “a leak­ing hazard­ous waste dump.”

Notably, both of these decisions were handed down before the enact­ment of the 1986 Immig­ra­tion Reform and Control Act. At the time, no law prohib­ited employ­ers from hiring these immig­rant work­ers; indeed, employ­ers were actively recruit­ing the very immig­rant work­ers whose “flow” was treated by the Supreme Court as such a toxic menace. Employ­ers hired work­ers with impun­ity, yet govern­mental offi­cials were given license to viol­ate these work­ers’ Fourth Amend­ment protec­tions when enfor­cing the immig­ra­tion laws. Immig­rant work­ers paid a price for perceived lawless­ness; those whose recruit­ment efforts brought them to the United States did not. And the price increased when legal changes in the 1980s and 1990s attached expans­ive penal­ties to new crimes of migra­tion, made it more diffi­cult for immig­rants to regu­lar­ize their status, and vastly increased the range of crim­inal viol­a­tions that would bar immig­rants from coming to or remain­ing in the United States

Today, people routinely use the term “illegal” not to refer to the law enforce­ment prac­tices like the Migrant Protec­tion Policy that openly viol­ate U.S. treaty oblig­a­tions, or to the hiring prac­tices of many of the nation’s employ­ers, but to describe immig­rants as outside of the law, always threat­en­ing to it. For people thus dehu­man­ized, no legal consequences seem too severe; for them, the law is a threat­en­ing sword, not a protect­ive shield.

Amer­ican economic policies, climate policies, and foreign policy choices play a signi­fic­ant role in shap­ing the forces that drive people in neigh­bor­ing coun­tries from their homes. Yet when those displaced persons — many with family and other affect­ive ties to the United States — arrive at our borders, we use law as a cudgel against them and deploy legal language to mask our inhu­man­ity.

I can’t imagine anything worse.

Monetary Sanctions as a Pound of Flesh

By Alexes Harris

America has established a two-tiered system of justice: one for people with financial means and one for people without.

Introduction

In their essay intro­du­cing the Bren­nan Center series on Punit­ive Excess, Jeremy Travis and Bruce West­ern ask read­ers to ques­tion the purpose of punish­ment. They write, “punish­ment describes not just what crim­inal justice insti­tu­tions do, but also signi­fies a rela­tion­ship between the state and its citizens.”

Few aspects of the crim­inal legal system illus­trate that as vividly as the system of monet­ary sanc­tions, which requires finan­cial payments from most people who make contact with the crim­inal legal system. In addi­tion to fines asso­ci­ated with specific offenses, they are charged for their court processing, for DNA test­ing, for required post-senten­cing rehab­il­it­at­ive programs (such as drug and alco­hol assess­ment and treat­ment), and even in some instances for the costs of incar­cer­a­tion itself. To use Travis and West­ern’s meas­ure, the rela­tion­ship between the state and citizen in this coun­try, partic­u­larly when the citizen is poor or racial­ized, is one of control, margin­al­iz­a­tion, and perpetual punish­ment.

In most states, all monet­ary sanc­tions must be paid in full before a person is released from court super­vi­sion. In many states, people are unable to vote until all costs are paid. They must remain in constant commu­nic­a­tion with court offi­cials about their living and finan­cial arrange­ments. Not only are monet­ary sanc­tions frequently appen­ded to jail or prison time, so are costs asso­ci­ated with proba­tion and other court mandated require­ments, such as elec­tronic home monit­or­ing.

Since the 1980s, paral­lel­ing the massive growth in convic­tions and incar­cer­a­tion, state and local juris­dic­tions expan­ded the types of fees and fines deman­ded of people convicted of traffic viol­a­tions, juven­ile offenses, misde­mean­ors, and felon­ies. At the same time, the cost to local juris­dic­tions of the expand­ing convic­tion and incar­cer­a­tion rate accel­er­ated as well. As a result, poli­cy­makers turned to the very people convicted to pay for the costs of their own processing and punish­ments. For example, Wash­ing­ton State has a mandat­ory victim penalty assess­ment that must be charged for each misde­meanor ($250) and felony ($500) convic­tion, even if there is no direct victim of the crime in ques­tion.

In some states, judges have actu­ally been gran­ted discre­tion to assess crim­inal defend­ants for the cost of a public defender — in other words, an indi­vidual who cannot afford to pay a lawyer is expec­ted to pay for the lawyer that the state is consti­tu­tion­ally required to provide. Further­more, many juris­dic­tions charge per night in jail or prison. For those too poor to pay, interest, per payment fees, and nonpay­ment penal­ties become penal debt that hangs like a cloud over their famil­ies’ lives.

Many states also allow cities and counties to engage in contracts with private collec­tion compan­ies, and when debt is trans­ferred to these agen­cies, addi­tional collec­tion fees are assessed — as much as 50 percent of the prin­cipal owed. These public-private debt collec­tion arrange­ments affect the indi­vidu­als’ credit scores, limit their employ­ment oppor­tun­it­ies, and inhibit their abil­ity to access hous­ing, educa­tion, and trans­port­a­tion. The price of services such as tele­phone calls, elec­tronic commu­nic­a­tion, video visit­a­tion, and health care include kick­backs from the private compan­ies to local juris­dic­tions — the price the collec­tion agen­cies pay to win exclus­ive contracts.

The system of monet­ary sanc­tions rein­forces our two-tiered system of justice: one for people with finan­cial means and one for people without. Within a soci­ety riven by so much inequal­ity, a system of punish­ment based on economic resources can never be fair or just. This “coerced finan­cial­iz­a­tion” perfectly and purpose­fully places the free­dom of poor and racially margin­al­ized people on a perpetual layaway plan. It’s a system so fully embed­ded in our crim­inal legal system that the Amer­ican Rescue Plan Act, passed by Congress in March 2021 to alle­vi­ate the finan­cial pains of the Covid-19 pandemic, allowed private collect­ors and courts to seize the $1,400 stim­u­lus grants from people burdened with unpaid penal debt, either public or private.

Pain­ful Consequences

When they are unable to pay penal debt, people entangled with the crim­inal legal system — already stressed by daily finan­cial choices they must make regard­ing food, health, and child­care — incur addi­tional legal consequences. In many states, they lose their right to drive; then, if appre­hen­ded while driv­ing with a suspen­ded license (even to the job that might enable them to pay their debt), they face renewed incar­cer­a­tion and further finan­cial sanc­tions.

Consequences accel­er­ate, teth­er­ing people to the crim­inal legal system: not only are people who are behind in their payments sent regu­lar court summonses, but in some instances even those making their monthly payments must regu­larly report to the court about their employ­ment and living arrange­ments. This requires many to miss work and to find child­care and trans­port­a­tion (partic­u­larly if their driver’s licenses are suspen­ded) just to attend court hear­ings. When people have been summoned to court but failed to receive notice or chose not to attend out of fear of incar­cer­a­tion, bench warrants are issued for their arrest.

An addi­tional legal consequence related to monet­ary sanc­tions is the over­poli­cing that plagues so many communit­ies of color. Because local govern­ments have come to rely so heav­ily on revenue gener­ated from fines and fees, traffic cita­tions have become a tool for profit-making. This “pock­et­book poli­cing” encour­ages police to use their author­ity and discre­tion to make “pretextual” traffic stops — judge­ment calls that often involve such things as a faulty tail­light, expired license tabs, or an air freshener improp­erly suspen­ded from the rear­view mirror. And when police use their discre­tion to decide whom they are going to pull over, they pull over Black drivers dispro­por­tion­ately more often than white drivers. Black drivers are consequently searched one and a half to two times more often than white drivers. Costly cita­tions for fines and fees fall most heav­ily on those least able to pay them. These fines and fees lead to perpetual state surveil­lance, wealth extrac­tion, and the social control of people who are poor and racially margin­al­ized.

Needed Policy Reform

Set within the context of the crim­inal legal system, this system of punish­ment is nuanced, but it isn’t complic­ated. Policy implic­a­tions are clear. In fact, recog­niz­ing this system as a purpose­ful mech­an­ism designed by both policy and stat­utes allows us to clearly see that it can be dismantled. This set of guid­ing prin­ciples and prac­tices should be estab­lished by state and local poli­cy­makers and court lead­er­ship.

First, stat­utes must be revised to discon­tinue monet­ary sanc­tions asso­ci­ated with felony convic­tions. There is no reason that someone sentenced to incar­cer­a­tion should also receive finan­cial penal­ties, much less be charged daily room and board fees. Fines and fees charged to people who are sentenced to live behind bars, without access to employ­ment and a living wage, are prima facie excess­ive.

Second, monet­ary sanc­tions are also excess­ive when imposed on chil­dren, the unem­ployed, the unhoused, or those suffer­ing from mental health or chem­ical addic­tion disorders. Burden­ing people who are unable — and who may never be able — to pay fiscal debts is a cruel punish­ment.

Third, fiscal penal­ties attached to lower-level offenses that do not call for incar­cer­a­tion, such as traffic viol­a­tions or misde­mean­ors, must be calib­rated to indi­vidu­als’ abil­it­ies to pay the total sum within, say, two years. Coun­tries around the world rely on day fine systems that calcu­late a score based on both the sever­ity of the offense and the daily wage of the convicted indi­vidual.

Fourth, state and local juris­dic­tions must discon­tinue the prac­tice of suspend­ing driver’s licenses related for nonpay­ment of any court fine and fee and cease issu­ing warrants related to nonpay­ment.

Fifth, state and local juris­dic­tions, along with law enforce­ment agen­cies, must review and revise prac­tices related to pretextual traffic stops. Less than one month after the police killing of Daunte Wright in Brook­lyn Center, Minnesota, the mayor and city coun­cil enacted an ordin­ance to create a new Depart­ment of Community Safety and Viol­ence Preven­tion. Among other things, this restruc­tur­ing of police duties trans­ferred the respons­ib­il­ity of traffic enforce­ment to an unarmed civil­ian unit.

Finally, states must require all juris­dic­tions to report (without names attached, to protect indi­vidual privacy) all monet­ary sentences and fees, regu­larly and system­at­ic­ally, to a state-monitored data­base. Such data should include amounts collec­ted, amounts waived, means of levy (fine, fee, surcharge, resti­tu­tion, etc.), and any addi­tional charges imposed related to nonpay­ment, such as late fees, interest, and collec­tion fees.

The evid­ence is clear: The Amer­ican system of monet­ary sanc­tions is a purpose­ful punish­ment aimed at extract­ing wealth from indi­vidu­als, their famil­ies and communit­ies — a pound of flesh that many just do not have left to give. It is a system that valor­izes those “deserving” of redemp­tion (people with finan­cial means) and stig­mat­izes those deemed not deserving of redemp­tion (people living in poverty).

Impov­er­ished citizens who are sentenced to monet­ary sanc­tions clearly under­stand their rela­tion­ship to the state — they are forever indebted, forever subjec­ted to court and police surveil­lance, control, and punish­ment. We have altern­at­ive punish­ment and rehab­il­it­at­ive options; we just need the will to make these changes.

How Atrocious Prisons Conditions Make Us All Less Safe

By Shon Hopwood

The American prison system seems designed to ensure that people return to incarceration instead of successfully reentering society.

Imagine one of those dysto­pian movies in which some char­ac­ter inhab­its a world marked by dehu­man­iz­a­tion and a continual state of fear, neglect, and phys­ical viol­ence — The Hunger Games, for instance, or Mad Max. Now imagine that the people living in those worlds return to ours to become your neigh­bors. After such brutal trau­mat­iz­a­tion, is it any wonder that they might struggle to obtain stable hous­ing or employ­ment, manage mental illness, deal with conflict, or become a better spouse or parent?

This is no fantasy world. Amer­ican pris­ons cage millions of human beings in condi­tions similar to those movies. Of the more than 1.5 million people incar­cer­ated in Amer­ican pris­ons in 2019, more than 95 percent will be released back into the community at some point, at a rate of around 600,000 people each year. Given those numbers, we should ensure that those in our pris­ons come home better off, not worse — for their sake, but for soci­ety’s as well.

Yet our pris­ons fail miser­ably at prepar­ing people for a law-abid­ing and success­ful life after release. A long-term study of recidiv­ism rates of people released from state pris­ons from 2005 to 2014 found that 68 percent were arres­ted within three years and 83 percent were arres­ted within nine years follow­ing their release. And evid­ence confirms the great irony of our Amer­ican crim­inal justice system: the longer someone spends in “correc­tions, ” the less likely they are to stay out of jail or prison after their release. The data tells us that people are spend­ing more time in pris­ons and the longest prison terms just keep getting longer, and thus our system of mass incar­cer­a­tion all but assures high rates of recidiv­ism.

It is not diffi­cult to under­stand why our pris­ons largely fail at prepar­ing people to return to soci­ety success­fully. Amer­ican pris­ons are danger­ous. Most are under­staffed and over­pop­u­lated. Because of inad­equate super­vi­sion, people in our pris­ons are exposed to incred­ible amounts of viol­ence, includ­ing sexual viol­ence. As just one example, in 2019 the Depart­ment of Justice’s Civil Rights Divi­sion concluded that Alabama’s prison system failed to protect pris­on­ers from astound­ing levels of homicide and rape. In a single week, there were four stabbings (one that involved a death), three sexual assaults, several beat­ings, and one person’s bed set on fire as he slept.

Our pris­ons are so viol­ent that they mean­ing­fully impact the rehab­il­it­a­tion efforts for those inside them. There is an ever-present fear of viol­ence in our gladi­ator-style pris­ons, where people have no protec­tion from it. Incar­cer­ated people who frequently witness viol­ence and feel help­less to protect against it can exper­i­ence post-trau­matic stress symp­toms — such as anxi­ety, depres­sion, para­noia, and diffi­culty with emotional regu­la­tion — that last years after their release from custody. Because escal­at­ing conflict is the norm for those serving time in Amer­ican pris­ons (often provok­ing viol­ence as a self-defense mech­an­ism), when they face conflict after being released, they are ill-equipped to handle it in a product­ive way. If the number of people impacted by prison viol­ence was small, this situ­ation would still be unjust and inhu­mane. But when more than 113 million Amer­ic­ans have had a close family member in jail or prison, the social costs can be cata­clys­mic.

Part of the reason our pris­ons are so viol­ent is due to the idle­ness that occurs in them. As prison systems expan­ded over the last four decades, many states rejec­ted the role of rehab­il­it­a­tion and reduced the number of avail­able rehab­il­it­a­tion and educa­tional programs. In Flor­ida, which is the nation’s third largest prison system, there are virtu­ally no educa­tion programs for pris­on­ers, even though research shows that those programs reduce viol­ence in prison and the recidiv­ism rate for those released from prison.

It is not just the viol­ence that is harm­ful. How Amer­ican pris­ons are designed negat­ively impacts the abil­ity of people to be self-reli­ant after their release. Pris­ons create social isol­a­tion by taking people from their communit­ies and placing them behind razor wire, in locked cages. Through strict author­it­ari­an­ism, rules, and control, pris­ons lessen personal autonomy and increase insti­tu­tional depend­ence. This ensures that people learn to rely upon the free room and board only a prison can offer, thus render­ing them less able to cope with economic demands upon release.

The loca­tion of our pris­ons also causes harm. Many pris­ons are located far away from cities and hundreds of miles from pris­on­ers’ famil­ies. Consequently, family rela­tion­ships deteri­or­ate, impact­ing both pris­on­ers and their loved ones. Just this past Mother’s Day, more than 150,000 imprisoned moth­ers spent the day apart from their chil­dren. As chil­dren with an incar­cer­ated parent run greater risks of health and psycho­lo­gical prob­lems, lower economic well­being, and decreased educa­tional attain­ment, the aggrav­at­ing effect of impris­on­ment far from one’s family is obvi­ous.

The ill-considered loca­tion of pris­ons also increases the like­li­hood of inad­equate atten­tion paid to people with seri­ous mental issues, who are widely present in our pris­ons. Pris­ons in remote and rural areas fail to hire and retain mental health profes­sion­als, and due to a lack of such resources, misdia­gnosis of seri­ous mental health issues is more likely. And not only is the treat­ment of such pris­on­ers inad­equate, but false negat­ive determ­in­a­tions can also make it more diffi­cult for them to receive disab­il­ity bene­fits or treat­ment once released.

Pris­ons tend to rinse away the parts that make us human. They continue to use solit­ary confine­ment as a mech­an­ism for deal­ing with idle­ness and miscon­duct, despite stud­ies show­ing that it creates or exacer­bates mental illness. Our pris­ons also foster an envir­on­ment that values dehu­man­iz­a­tion and cruelty. At the federal prison in which I served for more than a decade, I watched correc­tional officers hand­cuff and then kick a friend of mine who had a soft­ball-sized hernia protrud­ing from his stom­ach. Because he was asking for medical atten­tion, they treated him like a dog. There was little empathy in that place. And for over 10 years of my life, when those in author­ity addressed me, it was with the label “inmate.” The message every day, both expli­citly and impli­citly, was that I was unworthy of respect and dignity. Such an envir­on­ment leads people to have a dimin­ished sense of self-worth and personal value, affect­ing a person’s abil­ity to empath­ize with others. The abil­ity to empath­ize is a vital step towards rehab­il­it­a­tion, and when our pris­ons fail to rehab­il­it­ate, public safety ulti­mately suffers.

In sum, if you were to design a system to perpetu­ate intergen­er­a­tional cycles of viol­ence and impris­on­ment in communit­ies already over­burdened by crim­inal justice involve­ment, then the Amer­ican prison system is what you would create. It routinely and persist­ently fails to produce the fair and just outcomes that will make us all safer.

So what can be done to fix our pris­ons? One of the reas­ons why our prison systems are so immune to change is because the worst of prison abuses occur behind closed doors, away from public view. Few prison systems have the inde­pend­ent over­sight and trans­par­ency needed to ensure that they imple­ment the best policies or comply with consti­tu­tional protec­tions such as the Eighth Amend­ment prohib­i­tion on cruel and unusual punish­ment.

There is no reason why our pris­ons should not be modeled on the prin­ciple of human dignity, which respects the worth of every human being. If you trans­lated that into policy, it would mean that people in prison would be protec­ted from phys­ical, sexual, and emotional abuse and would be provided with adequate mental health and medical treat­ment. It would mean prison systems would foster inter­per­sonal rela­tion­ships by placing people in facil­it­ies close to their loved ones and allow­ing ample in-person, phone, and video visit­a­tion. It would mean provid­ing train­ing on how to become better citizens, spouses, and parents. And it would mean offer­ing educa­tional and voca­tional programs designed to provide job skills for reentry, and beha­vi­oral programs designed to create empathy and autonomy, thereby prepar­ing former pris­on­ers to lead law-abid­ing and success­ful lives.

The Prosecutor Problem

By Paul Butler

A former assistant U.S. attorney explains how prosecutors’ decisions are fueling mass incarceration — and what can be done about it.

I became a prosec­utor because I don’t like bullies. I stopped being a prosec­utor because I don’t like bullies.

I grew up on the south side of Chicago in an all-Black neigh­bor­hood. My family had direct exper­i­ence with crime — our house was broken into, and my mother was held up at gun point. As a young Black man, I also had some bad exper­i­ences with police officers, like getting stopped for no reason, or being the object of suspi­cion every time I rode my bike into a white neigh­bor­hood.

So, I went into the prosec­utor’s office in the District of Columbia as an under­cover brother, hoping I could create change from within. I wanted to help keep people safe from crim­in­als, and I wanted to help keep Black people as safe as possible in a racist crim­inal justice system.

What I instead found was that rather than chan­ging the system, the system was chan­ging me. Like many lawyers, I was compet­it­ive and ambi­tious, and the way for a young lawyer to move up in the prosec­utor’s office was to lock up as many people as possible, for as long as possible. It turned out I was good at it, and I star­ted to think of that work as the best way to serve my community.

At some point, though, I began to see things differ­ently. Virtu­ally all the defend­ants were Black or Latino. In Wash­ing­ton, as in many Amer­ican cities, if you visit crim­inal court, you would think that white people don’t commit crime. I came to real­ize that I did not go to law school to put Black people in prison, espe­cially for the drug crimes that I was prosec­ut­ing — crimes that white folks were also commit­ting but didn’t get arres­ted for. I also didn’t feel that my work send­ing so many people to prison — espe­cially Black men — was making communit­ies any safer. On the contrary, I learned that too many prosec­utors use their power in a way that has contrib­uted to the radical increase in incar­cer­a­tion.

As the most power­ful actors in the crim­inal legal system, local and federal prosec­utors have a huge amount of discre­tion and are subject to little judi­cial over­sight — over­sight that might moder­ate their misuse of prosec­utorial power. For example, they decide not only whether to charge someone with a crime, but if so, what crime. Even if a judge does not agree with the prosec­utor’s decision to charge someone with a partic­u­lar crime, the judge is power­less to undo the prosec­utor’s action. Because punish­ment for a crime is largely determ­ined by the sentence that lawmakers have estab­lished in the crim­inal code, the prosec­utor often has more power over how much punish­ment someone convicted of a crime receives than the judge who does the actual senten­cing.

Let’s say that a person has been arres­ted for possess­ing five pounds of weed (in a juris­dic­tion where marijuana posses­sion and selling is crim­in­al­ized). The prosec­utor can choose not to charge that person (no sentence, obvi­ously), charge them with simple posses­sion (usually a sentence of limited dura­tion or sever­ity), or charge them with posses­sion with intent to distrib­ute, which can require — by stat­ute — several years in prison. Most prosec­utor offices are not trans­par­ent about what factors would lead them to which char­ging decision — and that’s assum­ing that the office even has uniform stand­ards. Many don’t, and they decide these issues on an ad hoc basis, which risks allow­ing inap­pro­pri­ate consid­er­a­tions like race to influ­ence who gets charged.

Plea bargain­ing exacer­bates the prob­lem. This is because prosec­utors typic­ally offer an accused person a “deal” to avoid going to trial. Some 95 percent of crim­inal cases are resolved this way. If the defend­ant agrees to confess their guilt, the prosec­utor recom­mends a sentence to the judge that is less punit­ive than what the prosec­utor would recom­mend if the defend­ant goes to trial, and loses. This threat by prosec­utors — to throw the book at defend­ants who are found guilty — radic­ally dilutes the defend­ant’s consti­tu­tional right to a trial.

Unfor­tu­nately, the Supreme Court author­ized this prac­tice in a 1978 case called Borden­kircher v. Hayes. Lewis Hayes had been charged with forgery and faced a 2-to-10-year prison sentence. Prosec­utors offered to pursue a five-year sentence if Hayes pleaded guilty and saved them from “the incon­veni­ence and neces­sity of a trial.” If he refused to plead guilty, prosec­utors said they would seek an indict­ment under the Kentucky Habitual Crime Act. Because Hayes had previ­ously been convicted of two felon­ies, a convic­tion would mandate a sentence of life impris­on­ment. Hayes exer­cised his consti­tu­tional right to a trial, prosec­utors charged him under the Habitual Crime Act, and he was found guilty and sentenced to a life term.

Hayes chal­lenged his convic­tion on the grounds that his 14th Amend­ment due process rights were viol­ated when prosec­utors threatened to re-indict him on more seri­ous charges if he did not plead guilty to the original, less seri­ous forgery offense. In its 5–4 decision, the Supreme Court rejec­ted the chal­lenge. Accord­ing to the Court, the plea-bargain­ing system is an “import­ant compon­ent of this coun­try’s crim­inal justice system, ” and so long as pleas are made “know­ingly and volun­tar­ily, ” there is no consti­tu­tional viol­a­tion. The Court did recog­nize that punish­ing a person because he “has done what the law plainly allows him to do” is “a due process viol­a­tion of the most basic sort.” But it rejec­ted the idea that Hayes was being punished, claim­ing instead that he was just being presen­ted with “diffi­cult choices.”

Since Borden­kircher, plea bargain­ing has become so insti­tu­tion­al­ized that, in a case decided in 2012, Justice Anthony Kennedy noted that plea bargain­ing “is not some adjunct to the crim­inal justice system; it is the crim­inal justice system.” 

Prosec­utors have also contrib­uted to the racial dispar­it­ies that are an endemic feature of the U.S. crim­inal legal system. In 2014, the Vera Insti­tute of Justice published research that examined racial dispar­it­ies at play in the Manhat­tan District Attor­ney’s office, and it concluded that “race remained a stat­ist­ic­ally signi­fic­ant inde­pend­ent factor” at most discre­tion­ary points in the legal process. In Vera’s report, based on the analysis of more than 200,000 cases, research­ers found that Black and Latino people charged with drug offenses were more likely to receive more punit­ive plea offers than white defend­ants, partic­u­larly offers that included incar­cer­a­tion. Black and Latino defend­ants were also more likely than simil­arly situ­ated whites and Asian Amer­ic­ans to be detained before trial. The study did find that prosec­utors treated Black and Latino defend­ants more favor­ably in at least one respect: they were more likely than whites to have cases dismissed before they went to trial — prob­ably, the report argued, because “police were more likely to bring them in on bogus or unsub­stan­ti­ated charges” in the first place.

Many of these policies and prac­tices are being reex­amined in juris­dic­tions across the coun­try, in part thanks to reformers who have won district attor­ney elec­tions. The “progress­ive prosec­utor” move­ment owes its start to Angela J. Davis’s 2009 book, Arbit­rary Justice: The Power of the Amer­ican Prosec­utor, which argued that prosec­utors should use their discre­tion to reduce mass incar­cer­a­tion and racial dispar­it­ies.

Reform-minded prosec­utors have differ­ent approaches, but they all reject incar­cer­a­tion as a knee-jerk response to social ills. In Chicago, Cook County State’s Attor­ney Kim Foxx has declined to prosec­ute low-level offenses such as small-scale retail theft as felon­ies. In Baltimore, State’s Attor­ney Marilyn J. Mosby recently announced her office will no longer prosec­ute sex work, drug posses­sion, and other low-level offenses. Phil­adelphia District Attor­ney Larry Krasner requires prosec­utors in his office to state on the record the costs and bene­fits of any prison sentences they recom­mend to judges. In San Fran­cisco, District Attor­ney Chesa Boudin has ended the use of “three strikes” laws.

The progress­ive prosec­utor move­ment is new but prom­ising. Since prosec­utors are one of the primary sources of the prob­lem of mass incar­cer­a­tion and excess­ive punish­ment, they must be part of the solu­tion.

A Holistic Approach to Legal Advocacy

By Blake Strode

For poor, persecuted communities, helping them overcome legal challenges isn’t nearly enough.

On a spring after­noon in 2014, a husband and wife left a local community center in St. Louis County, Missouri, to return home to their seven chil­dren. Within seconds, they were stopped by a police squad car. When officers approached the vehicle, they went to the passen­ger’s side and asked the husband for his name, claim­ing that there had been a recent report about someone who matched his descrip­tion. Despite his assur­ances that he was not the man in ques­tion, the husband was asked to step out of the car and was placed under arrest moments later. (He was, indeed, never charged with any of the wrong­do­ing that formed the pretext for the stop.) When his wife stepped out of the car in protest, she, too, was placed under arrest.

The couple was taken to a local jail, placed in filthy, over­crowded cells, and given bonds of $2,000 each. They would both remain in jail for a month, unable to post bail and not once appear­ing before a judge. While incar­cer­ated, their chil­dren were uprooted from their home and taken into the care of multiple relat­ives. Even­tu­ally, exhausted and desper­ate, they both agreed to plead guilty to a series of muni­cipal charges in exchange for their release. They would still be respons­ible, they were told, for paying nearly $2,000 each, this time as fines and fees for their supposed offenses.

I met this husband and wife more than a year later, in my very first month as a Skad­den Fellow and staff attor­ney with Arch­City Defend­ers, a legal advocacy organ­iz­a­tion in St. Louis. When I met them, their memor­ies from that harrow­ing month were still fresh. They had lost a full month of earn­ings for their house­hold, placing them and their entire family under even more dire finan­cial strain than they already had to bear as a large family with incon­sist­ent sources of income. They were strug­gling to pay rent and util­it­ies, care for their chil­dren, and find more stable employ­ment. 

But despite all of that, their reason for coming to us was that they were still paying hundreds of dollars per month to the local muni­cipal court that had over­seen their jail­ing. The so-called “pay docket” was approach­ing. At these monthly dock­ets, they were expec­ted to make payments of $100 each on their debts, and they could not keep up.

There are several elements of this story that are partic­u­larly egre­gious, but the basic dynam­ics — people who are living peril­ously on the margins being targeted and exploited by the crim­inal legal system — are, in fact, not at all unusual. Susan Butler Plum, the found­ing director of the Skad­den Fellow­ship Found­a­tion, which places new lawyers in public interest posi­tions across the coun­try, has often under­scored the signi­fic­ance of anti-poverty legal work by posit­ing, “My defin­i­tion of poverty is that each thing compounds the next thing.”

It is a defin­i­tion that has returned to my mind many times during my work at Arch­City Defend­ers. Traffic tick­ets, court debts, crim­inal charges, jail, bail, evic­tion, child support, custody, consumer abuse, home­less­ness: our clients do not exper­i­ence these trau­matic chal­lenges one at a time — they exper­i­ence many, all at once or in rapid succes­sion.

When we know that our field is char­ac­ter­ized by system­atic under­fund­ing of indi­gent defense, when 90 percent or more of tenants faced with evic­tion proceed­ings must defend them­selves without coun­sel, and when there’s a complete dearth of free (or even afford­able) legal services for a range of needs, from family law to consumer protec­tion to public bene­fits claims – when we know all this, how can we possibly justify a system in which the over­whelm­ing major­ity of people subjec­ted to archaic legal processes are left to navig­ate those processes with no support what­so­ever? How can we stom­ach a system that does little more than further trau­mat­ize, destabil­ize, and extract from the very people who already have the least? And what can we do differ­ently in the face of entrenched support for the status quo and resist­ance to struc­tural change?

At Arch­City Defend­ers (ACD), we describe ourselves as a holistic legal advocacy organ­iz­a­tion. We are an inde­pend­ent, nonprofit civil rights and legal aid organ­iz­a­tion with a staff of 30 people — about half of them attor­neys and the other half a mix of social work­ers, paralegals, commu­nic­a­tions profes­sion­als, fundraisers, oper­a­tions special­ists, and organ­izers. ACD was foun­ded to fill a gap in legal services in the St. Louis region, and even with the signi­fic­ant growth of our team over the past 12 years, that gap contin­ues to exceed by far the scale of services that we can provide. In part for this reason, the word “holistic” is cent­ral to who we are, how we under­stand the world and the system in which we are embed­ded, and why we believe that tradi­tional legal prac­tice has only deepened some of the most funda­mental injustices in this coun­try.

For us, this word also takes on a dual mean­ing in our daily prac­tice.

On one level, we provide holistic defense and legal repres­ent­a­tion in our work with indi­vidual clients. This type of holistic defense is based upon the model developed and popular­ized by the Bronx Defend­ers. Instead of defin­ing our indi­vidual services by discrete areas of legal prac­tice, our holistic direct services consist of crim­inal or muni­cipal defense; civil legal repres­ent­a­tion for evic­tions, social secur­ity/disab­il­ity and similar public bene­fits claims, child support, custody, and other family law matters; and wrap­around social support in the form of rehous­ing services and case manage­ment, emer­gency rental and util­ity assist­ance, and support­ive refer­rals to a vast network of social service and treat­ment providers.

Under­stand­ing that the chal­lenges facing our clients are complex and inter­sect­ing, our goal is to support people in ways that reflect the real­ity of their lives. Some­times, this is as simple as listen­ing to clients and believ­ing what they say about the most press­ing issues they are facing, instead of substi­tut­ing our judg­ment for theirs. We can only be effect­ive in our work if we develop trust­ing rela­tion­ships with our clients, and that requires that we respect them as the experts on their own lives.

The other element of our holistic advocacy is an emphasis on enga­ging at the systems level as well as the indi­vidual level. Over time, we have developed four pillars in our model: holistic direct services (described above), impact civil rights litig­a­tion, media and policy advocacy, and community collab­or­a­tion. If our holistic direct services focus on provid­ing a range of support to clients as they navig­ate oppress­ive systems, the other pillars focus on expos­ing, combat­ing, and dismant­ling those very systems. In the face of such pervas­ive injustice, an effect­ive defense is crit­ical, but a stra­tegic offense is equally essen­tial.

Our indi­vidual client repres­ent­a­tion forms the found­a­tion of the fights that we under­take through affirm­at­ive civil rights litig­a­tion. These cases, often but not always class actions, chal­lenge abus­ive poli­cing, debt­ors’ pris­ons, cash bail, unfair hous­ing prac­tices, and a range of prac­tices that crim­in­al­ize poverty and home­less­ness. Through litig­a­tion, we seek not only policy trans­form­a­tion, but also monet­ary compens­a­tion for our clients and others simil­arly harmed. Again, we know from our clients that this is a prior­ity.

Our media and policy advocacy with and on behalf of our clients extends far beyond the courts. Having our clients and their famil­ies tell their stor­ies fully and honestly is the most power­ful mech­an­ism for rais­ing aware­ness and spark­ing action, both by poli­cy­makers and every­day people. Whether through tradi­tional media, social media, or other creat­ive storytelling means, our aim is to replace the many dehu­man­iz­ing tropes about our clients with nuanced repres­ent­a­tions that honor the truth of their exper­i­ences. We also seek oppor­tun­it­ies to connect these exper­i­ences to policy in the form of reports, white papers, open letters, and access­ible, illus­trated “know your rights” guides.

Lastly, the efforts aimed at the most last­ing and long-term change are those taken in collab­or­a­tion with part­ners, clients, and other community members to trans­form our systems and reima­gine what is possible. Ulti­mately, organ­ized community is the only sustain­able means of achiev­ing the change we seek. Erad­ic­at­ing poverty and defeat­ing white suprem­acy are polit­ical projects. They will not be won in the courts. So, if we are commit­ted to faith­fully serving our clients and pursu­ing our mission, we must shed the tired falla­cies of “neut­ral­ity” and “objectiv­ity” and be fully in the fight for our collect­ive liber­a­tion. That means support­ing the work of organ­iz­ing campaigns, build­ing coali­tions, and shift­ing power to those we serve.

For people like the couple I described at the begin­ning of this essay, there are rarely fairy-tale endings. Even after resolv­ing the imme­di­ate legal issue and success­fully fight­ing back against the city — receiv­ing signi­fic­ant monet­ary damages for the harm they suffered and secur­ing policy changes prevent­ing the use of secured cash bail to hold anyone in jail on muni­cipal charges — they have contin­ued to face chal­lenges with hous­ing, employ­ment, poli­cing, and even school access for their chil­dren during peri­ods of hous­ing instabil­ity.

I will never forget one after­noon when I picked this couple up from their home in Black, low-income North St. Louis City to prepare for a court appear­ance. As we rode down a main thor­ough­fare lined with closed, boarded-up busi­nesses and check-cash­ing shops, the husband remarked, almost to no one, “When they start the concen­tra­tion camps, they’re coming here first.”

His wife, sitting behind him, narrowed her eyes and looked at him. “What are you talk­ing about?” she asked incred­u­lously. “They’ve already got concen­tra­tion camps. We’re living in concen­tra­tion camps.”

I share this not for shock value or as polit­ical comment­ary. Whether or not you believe the meta­phor to be apt is irrel­ev­ant. The point is that poor, Black and brown, hyper-crim­in­al­ized, and under­served communit­ies across the coun­try under­stand the immens­ity of the chal­lenges stacked against them. The only way for us to be of any use as lawyers and advoc­ates is to under­stand the same, and to marshal every tool at our disposal at every turn. Those we serve deserve noth­ing less.

Surviving a Daily Storm

By Asia Johnson

A formerly incarcerated writer reflects on her time behind bars and the gender disparities in the criminal justice system.

Moth­ers, daugh­ters, sisters, wives: over 2,000 women hold­ing these titles resided with me at Michigan’s only prison for women: the Women’s Huron Valley Correc­tional Facil­ity. There, we were packed into cells — some hold­ing as many as 16 women at a time.

In the Midw­est, severe storms are a regu­lar occur­rence. Have you ever exper­i­enced a Wi-Fi inter­rup­tion or cell service outage? Do you remem­ber how frus­trat­ing it was not being able to connect to the outside world? Could you imagine if your only source of inform­a­tion, even under the best of circum­stances, was cable news? That’s the diffi­cult situ­ation that I and so many others exper­i­enced in prison. Prison is like a town that has been hit by a massive storm, only the damage is perman­ent.

And it does­n’t stop there. The place I lived in for nine years, the place that some women were sentenced to die in, was not designed with our gender in mind. Basic neces­sit­ies such as some femin­ine hygiene products, had to be purchased. Moth­ers visit­ing with their chil­dren some­times had to endure the termin­a­tion of their bond­ing time because the visit­ing room was over­crowded. Expect­ing moth­ers had to walk to the chow hall in rain, sleet, snow, or hellish heat along with the rest of us. Imprisoned men do not have to endure our partic­u­lar female misery.

One morn­ing, while chat­ting with a dear friend who was incar­cer­ated on a murder charge in the death of her abus­ive husband, the subject of senten­cing dispar­it­ies between men and women came up. My friend said, “If I had been a man who’d killed his wife, I’d have an out date.” (An “out date” is essen­tially the day you are able to leave prison.) My friend is serving life without parole. Others joined our conver­sa­tion, and, before I knew it, we all had come to the conclu­sion that women are sentenced more harshly than men.

Now, I recog­nize that as true as it may have felt to us, data does not support my friend’s asser­tion. An oft-cited study from the National Coali­tion Against Domestic Viol­ence showed that while the aver­age prison sentence of men who kill their female part­ners is between 2 and 6 years, women who kill their part­ners, on aver­age, are sentenced to 15 years. But that study was published more than 30 years ago, and more recent stud­ies have not been able to replic­ate these results. In fact, after the imple­ment­a­tion of stand­ard­ized guidelines in 1992, senten­cing dispar­it­ies between men and women began to erode. There is little evid­ence to show that women who kill their intim­ate part­ners are sentenced more harshly than men who commit the same crime.

I went back to my own cell to dwell on our morn­ing talk. I had stayed mostly mum during our earlier conver­sa­tion. I didn’t feel like I had been harshly sentenced. I knew that with my viol­ent crime I could have — and some would argue, should have — been sentenced to die in prison. In the midst of a mental health crisis, I had turned viol­ent, and took the life of a loved one. As a result, I was sentenced to 9 to 30 years of incar­cer­a­tion. The ques­tion I asked myself was, “Had I been treated more harshly than a man would have been in similar circum­stances?”

But was that really a mater­ial ques­tion? While in prison, I spent count­less hours listen­ing to the stor­ies of women who had killed, stolen, struggled with addic­tion, and suffered from mental health issues. They all — we all — had been thrown away. We were all losing time we’d never get back. The men, we thought, got to do their short time and get back to life as they knew it. Now I see that this was not the case: we were all suffer­ing equally under the same excess­ive system of punish­ment.

I was released from prison on Octo­ber 9, 2018. Because I had tried to do everything right ­­—­ to become a “model pris­oner” and to do a great deal of self-work — I was able to walk out of prison exactly nine years after I went in. I was stronger, health­ier, and ready for the world. However, my personal growth was not the result of the insti­tu­tion but of the time I spent in ther­apy and self-reflec­tion. I wish I could say that I came out an expert on incar­cer­a­tion, rehab­il­it­a­tion, and remedi­ation, but that know­ledge didn’t come until later. When I left, I was still grap­pling with the exper­i­ence and the issues that had affected me so deeply. One in partic­u­lar nagged at me: there are women who did not commit a crime nearly as viol­ent as mine who are serving more time than I did. I still struggle with this surviv­or’s guilt. Why and how did I get so lucky as to not be spend­ing the rest of my life locked away in a cage?

Shortly after my return home, I began work­ing for The Bail Project, a nonprofit organ­iz­a­tion whose mission to end cash bail is succinctly captured in its motto: “Free­dom should be free.” I also spent time work­ing closely with the Detroit Justice Center, learn­ing about how to create the world I wanted to live in — one that is more just and equit­able and where free­dom can truly be attained by every­one. I real­ized that the ques­tion of who has it worse in prison — men or women — has been beside the point all along. What is more import­ant is the sad truth that too many are more will­ing to build pris­ons than to dismantle the condi­tions which fill them.

Angela Davis said, “Pris­ons do not disap­pear social prob­lems, they disap­pear human beings. Home­less­ness, unem­ploy­ment, drug addic­tion, mental illness, and illit­er­acy are only a few of the prob­lems that disap­pear from public view when the human beings contend­ing with them are releg­ated to cages.” As one of those people who was releg­ated to a cage, I know firsthand that pris­ons do not work. Amer­ica has a tragic obses­sion with vengeance and punish­ment. This infatu­ation contin­ues to ruin the lives of both men and women all over the coun­try.

Every incar­cer­ated indi­vidual, no matter their gender iden­tity, is surviv­ing a daily storm. So, I ask the ques­tion, when will the rain cease?

Addressing Violent Crime More Effectively

By David Alan Sklansky

Excessive punishment is the wrong response to rises in homicide rates.

Over the past year and a half, as the United States struggled to address Covid-19, homicides in major Amer­ican cities have increased sharply, and aggrav­ated assaults appear to have increased, too. The numbers have been fright­en­ing: a 30 percent jump in killings in 2020, and a further increase of 16 percent in the first half of 2021. Over an 18-month period, about 33,000 lives were lost to viol­ence in the United States — 8,400 more than would have been killed had homicide rates stayed the same as in 2019.

These numbers pale, of course, beside the more than 600,000 Amer­ican deaths from the coronavirus over the same period. It’s also true that homicide rates across the United States have stayed far below their peaks in the 1980s and early 1990s, and about the same as what they were in the early 2000s. Still, 8,400 killings — let alone 33,000 killings — is a stag­ger­ing toll. The numbers are even more devast­at­ing for Black Amer­ic­ans and Lati­nos, who are dispro­por­tion­ately the victims of lethal viol­ence in the United States. For Black men under 45, homicide is far and away the lead­ing cause of death, account­ing for nearly a third of all fatal­it­ies; for Latino men in the same age group, it is the second lead­ing cause of death.

So, while it’s good that the recent spike in homicides is getting atten­tion, it’s crit­ical not to respond with the kinds of policies that gave us mass incar­cer­a­tion and are help­ing to perpetu­ate it — in partic­u­lar, the aggress­ive use of decades-long, mandat­ory prison sentences for “viol­ent” crimes. There are better ways to respond: approaches that have proven effect­ive in redu­cing extreme viol­ence, without driv­ing prison popu­la­tions even higher.

For the last half-century, Amer­ica’s chief strategy for attack­ing viol­ent crime has been to double down on punish­ment. About half of all people behind bars in the United States are serving time for offenses clas­si­fied as viol­ent, many of them with mandat­ory terms prescribed by “three strikes” laws adop­ted in the 1990s. A third of all Cali­for­nia pris­on­ers, for example, were sentenced under the state’s three strikes law.

These laws are part of a web of punit­ive policies aimed at viol­ent offend­ers, who also are commonly excluded from diver­sion programs, prob­lem-solv­ing courts, eligib­il­ity for early parole or human­it­arian release, oppor­tun­it­ies to expunge or seal convic­tions, and laws allow­ing re-enfran­chise­ment. In Oklahoma, for example, defend­ants charged with viol­ent crimes cannot be diver­ted to drug courts or mental health courts. If they are convicted and sent to prison, they can be paroled only by special order of the governor, and they gener­ally are ineligible to use the state’s expun­ge­ment stat­ute. If you or a loved one is facing charges or a conviction for a violent crime in Oklahoma, consider to call this expungement lawyer to explore all available legal options for clearing your criminal record and regaining your rights.

People charged with viol­ent crimes are also often denied proced­ural protec­tions provided to other defend­ants. For example, in Nevada the evid­en­tiary priv­ileges for spouses cannot be invoked by defend­ants accused of viol­ent offenses. Even before the pandemic, viol­ent crime was some­thing of a third rail for crim­inal justice reform in the United States, despite the clear, math­em­at­ical fact that there is no way to seri­ously address mass incar­cer­a­tion without radic­ally redu­cing penal­ties for viol­ent offend­ers.

There are three things wrong with these “brute force” responses to viol­ent crime.  The first is that they impose massive harm for negli­gible bene­fit. There’s no evid­ence that draconian sentences have done much to reduce viol­ence in the United States. They keep offend­ers locked up long after they repres­ent any signi­fic­ant threat, and they don’t appre­ciably increase deterrence, which depends more on the certainty of punish­ment than on its sever­ity. It’s true that crime plummeted in the 1990s, when impris­on­ment rates were rising, but impris­on­ment rates also rose during the 1970s and 1980s, without any change in crime rates. And crime rates during the 1990s — partic­u­larly rates of seri­ous viol­ence offenses — dropped just as dramat­ic­ally in Canada as in the United States, and there was no mass incar­cer­a­tion north of the border. Decades of research have failed to show any bene­fi­cial effect of our long prison sentences on public safety. What is certain is that they destroy lives, tear apart famil­ies, hollow out communit­ies, and wreck state budgets. 

The second prob­lem, which exacer­bates the first, is that “viol­ence” is a morally freighted term without clear bound­ar­ies. Call­ing a crime “viol­ent” is a way of placing it beyond the pale, outside the proper sphere of mercy, redemp­tion, or under­stand­ing. Legal defin­i­tions of “viol­ent crime” are highly arbit­rary, reflect­ing the vagar­ies of moral condem­na­tion rather than efforts at descript­ive accur­acy. Burg­lary is widely clas­si­fied as viol­ent, for example, even if no one is hurt or even at home when the crime occurs.  Arkan­sas and Rhode Island even treat larceny as a viol­ent offense. Bodily assaults, on the other hand, gener­ally trig­ger the special penal­ties for viol­ent crimes only when they are “aggrav­ated” by the inflic­tion of “seri­ous” injury or the involve­ment of a “deadly” weapon, factors that typic­ally reflect the subject­ive judg­ment of police and prosec­utors.  Whether a crime qual­i­fies as “viol­ent” can also be heav­ily influ­enced by racial bias and other forms of preju­dice.

The third and final prob­lem with Amer­ica’s heightened penal­ties for viol­ent crime is that they treat viol­ence as over­whelm­ingly a matter of char­ac­ter rather than of circum­stances. It takes remark­ably few epis­odes of viol­ence for someone to be labeled a “career” or “habitual” offender — three “strikes, ” or in many places only two. In Cali­for­nia, for example, a single previ­ous convic­tion for a “seri­ous or viol­ent felony” doubles the required prison term for a subsequent offense. In many states, simil­arly, a single convic­tion for a viol­ent felony, some­times only a single arrest, can disqual­ify a defend­ant from diver­sion programs. The assump­tion under­ly­ing modern recidiv­ism enhance­ments, and the eligib­il­ity restric­tions on diver­sion programs, isn’t that a small subset of murders, rapes, and aggrav­ated assaults are carried out by people who commit viol­ent offenses again and again; it’s that anyone who commits two or three viol­ent crimes is likely to be inher­ently viol­ent. Our laws increas­ingly assume that the roots of viol­ence are in the hearts and minds of offend­ers, not in the situ­ations in which they find them­selves. We tend to neglect the power­ful social drivers of viol­ence: from poverty and racism to the wide avail­ab­il­ity of guns in the United States. 

Covid-19 may be in that category, too. It’s not clear exactly why homicides have spiked in the United States during the pandemic. The same thing hasn’t happened in the United King­dom or else­where in Europe, and there are cities in the United States that have bucked the trend as well. Some of the nation­wide increase in killings over the past 18 months may have to do with the disrup­tion of social services, which were already thin­ner here than across the Atlantic. Some may be due to a surge of gun purchases during the pandemic. Some may be trace­able to the erosion of trust between the police and public follow­ing the murder of George Floyd in May 2020. (One factor that can be ruled out, though, is the adop­tion of more leni­ent crim­inal justice policies, includ­ing the early release of some pris­on­ers, in liberal parts of the coun­try. Killings have risen in all parts of the coun­try, just as much in Repub­lican-led cities as in cities with Demo­cratic mayors, and just as much in counties with and without progress­ive prosec­utors.) There’s good reason to think, though, that bring­ing the coronavirus under control should be part of any strategy to confront the rising homicide rate. And, in fact, as the worst days of the pandemic have receded in New York City, homicides have fallen as well.

But if Covid-19 has in fact increased homicides, simplistic gener­al­iz­a­tions about “viol­ent crime” have in turn worsened the public health emer­gency. It was clear from early 2020 that over­crowded pris­ons and jails would help the virus spread rapidly. But govern­ment offi­cials across the coun­try, Demo­crats as well as Repub­lic­ans, have repeatedly balked at releas­ing “viol­ent” offend­ers from pris­ons and jails, even as the death toll from the virus in carceral insti­tu­tions has surpassed 2,700, and even as the defin­i­tion of “viol­ent” remains vague and contin­gent.

Plainly, though, tack­ling Covid-19 can’t be the begin­ning and end of our anti-homicide strategy. Even before the pandemic, far too many people were dying viol­ently in the United States. Fortu­nately, there is grow­ing evid­ence that gun homicides between non-intim­ates — the kind of killings that have risen sharply over the past year and a half — can be reduced dramat­ic­ally by viol­ence reduc­tion programs concen­trated on the relat­ively small number of people, places, and social inter­ac­tions respons­ible for most of the street viol­ence in a given city. These programs are not easy to carry out success­fully, and they are even more diffi­cult to sustain over the long term. Pair­ing focused deterrence with social services and peer-to-peer coun­sel­ing, they require trust and collab­or­a­tion between police and community groups, close analysis of local patterns of viol­ence, restraint on the part of police and prosec­utors, a strong commit­ment to help­ing indi­vidu­als exit cycles of viol­ence, and an insti­tu­tional frame­work that can survive lead­er­ship changes, budget crises, and the inev­it­able calls for tougher approaches when, as in 2020 and 2021, homicide rates begin to climb. 

The most famous of these programs, and a model for many of its successors, was Boston’s Cease­fire initi­at­ive, which dramat­ic­ally reduced youth homicides by inter­rupt­ing cycles of retali­at­ory gang viol­ence. Cease­fire iden­ti­fied a relat­ively small number of groups respons­ible for the bulk of youth shoot­ings in Boston and targeted their members with threats of crim­inal enforce­ment along with offers of economic support and social services if they refrained from gun viol­ence. The program relied on consulta­tion and coordin­a­tion between the police depart­ment, a range of other muni­cipal agen­cies and nonprofit groups, and inner-city clergy. A more recent, success­ful version of the Cease­fire approach, in Oakland, Cali­for­nia, has focused on adult shoot­ers rather than juven­iles (reflect­ing differ­ences between homicide patterns in Oakland and Boston) and has deem­phas­ized the role of the police while expand­ing the role of peer-to-peer coun­sel­ing.

It often takes several tries, stretch­ing over years, before a city finds the right approach, appro­pri­ately tailored to local circum­stances. And even the most success­ful programs, like those in Boston and Oakland, are not pana­ceas: both cities have seen increases in gun viol­ence during the pandemic.

Still, we know these programs can work. Boston’s reduced youth homicides by roughly 50 percent. Those gains began to disap­pear in the early 2000s when the program was discon­tin­ued, then were recovered when the program was restar­ted. The results in Oakland were simil­arly impress­ive: both homicides and nonfatal shoot­ings were cut in half. We also know that there are ways to reduce viol­ent encoun­ters between the police and the public, and ways to curtail prison viol­ence, and ways to help victims of abuse within famil­ies and intim­ate rela­tion­ships protect them­selves from getting killed.

None of this is easy. Simpler and emotion­ally cath­artic responses, like longer prison sentences for people convicted of viol­ent crimes, have an obvi­ous allure. But we have been down that road before. It leads nowhere good. Viol­ence is a hard prob­lem, and it cannot be ignored or simply wished away. But even the most press­ing of crises can be made worse.

End Mandatory Minimums

By Alison Siegler

Inflexible, harsh sentences exacerbate crime and racial disparities alike.

To dismantle Amer­ica’s dehu­man­iz­ing and racially skewed human caging system, we must elim­in­ate mandat­ory minim­ums. Forget swinging the pendu­lum from tough-on-crime to leni­ency; it always swings back. Instead, we need a paradigm shift. A paradigm shift occurs in three phases: it starts with a domin­ant paradigm, moves through a crisis phase, and ends with “a revolu­tion­ary change in world-view” that consti­tutes a new domin­ant paradigm.

Currently, the domin­ant paradigm in the crim­inal legal system is the myth that impos­ing harsh mandat­ory minimum sentences and lock­ing people of color in cages are neces­sary to keep white people safe. At the federal level alone, mandat­ory minimum penal­ties form the corner­stone of the human caging system. Prosec­utors’ use of mandat­ory minim­ums in over half of all federal cases dispro­por­tion­ately impacts poor people of color and has driven the expo­nen­tial growth in the federal prison popu­la­tion in recent decades. All 50 states and DC also have mandat­ory minimum senten­cing laws.

The prin­ciple that under­lies mandat­ory minim­ums is dehu­man­iz­a­tion. As Isabel Wilk­er­son writes, our coun­try’s racial “caste system relies on dehu­man­iz­a­tion to lock the margin­al­ized outside the norms of human­ity so that any action against them is seen as reas­on­able.” So many of the horrors Wilk­er­son cata­logs in the “program of purpose­ful dehu­man­iz­a­tion” insti­tuted by the Nazis and by the United States during chat­tel slavery have analogues in today’s carceral state: anonym­ous uniforms repla­cing cloth­ing, inmate numbers supplant­ing names, the shav­ing of heads, the roll calls. Racial dispar­it­ies in the applic­a­tion of mandat­ory minim­ums are a partic­u­larly stark illus­tra­tion of Wilk­er­son’s thesis. Mandat­ory minim­ums dehu­man­ize people by — in the words of Judge Stephanos Bibas — acting as “sledge­ham­mers rather than scalpels,” fall­ing with equal force on people whose circum­stances are dramat­ic­ally differ­ent from one another and prevent­ing judges from calib­rat­ing punish­ment to suit the person or the crime.

Over the past century, the mandat­ory minim­ums paradigm has moved through the second phase of a paradigm shift — the crisis phase — becom­ing the subject of dispute and contro­versy. Congress first enacted mandat­ory minim­ums for drug offenses in the early 20th century. But reformers pushed back, and by mid-century a rehab­il­it­at­ive senten­cing model began to replace the punit­ive model. In 1970, Congress repealed most drug-related mandat­ory minim­ums, taking more of a public health approach to drug policy.

But, in keep­ing with the chaos that arises from a paradigm shift, by the mid-1970s, anti-impris­on­ment and anti-discrim­in­a­tion reformers on the left began rail­ing against the rehab­il­it­at­ive model because it gave judges too much discre­tion, precip­it­at­ing dispar­it­ies. Para­dox­ic­ally, by criti­ciz­ing “arbit­rary” senten­cing prac­tices, these reformers (chief among them, Sen. Edward M. Kennedy of Massachu­setts) ulti­mately helped usher in the current tough-on-crime era. In the mid-’80s, mandat­ory minim­ums reentered the federal system with a vengeance as a pillar of Pres­id­ent Reagan’s “War on Drugs.” By the end of the 1980s, all 50 states had enacted mandat­ory minim­ums.

Since then, the mandat­ory minim­ums paradigm has come under fire for three primary reas­ons: the real­loc­a­tion of power from judges to prosec­utors; the exten­sion of racism and classism; and the fail­ure to advance community safety.

First, mandat­ory minim­ums shackle judges. Although senten­cing is supposed to be carried out by a neut­ral judge, mandat­ory minim­ums upend this system by posi­tion­ing one adversary — the prosec­utor — as the ulti­mate decision-maker, barring the judge from consid­er­ing a person’s history, culp­ab­il­ity, or family respons­ib­il­it­ies. That is, if a prosec­utor charges someone with a 20-year mandat­ory minimum at the outset of a case and that person is found guilty, the judge not only has no power to change the charge, but is legally bound to put that person in prison for at least 20 years regard­less of whether they were a leader or a lackey. The judge is prohib­ited from consid­er­ing that person’s indi­vidual circum­stances or show­ing mercy.

Other prob­lems flow from this perver­sion of the power balance. Mandat­ory minim­ums “provide prosec­utors with weapons to bludgeon defend­ants into effect­ively coerced plea bargains” and convince people to cooper­ate against others. This produces the Cooper­a­tion Para­dox: Big fish who are more culp­able and have inform­a­tion about other crim­inal activ­ity can avoid a mandat­ory minimum by collab­or­at­ing in the prosec­u­tion of others. Mean­while, the less culp­able little fish are yoked with high mandat­ory minim­ums. They become casu­al­ties of a process that sets aside propor­tion­al­ity or mercy in favor of increas­ing the number of convic­tions. Consequently, the least culp­able play­ers incur severe punish­ments, while the most culp­able lever­age their know­ledge into leni­ent plea deals.

Second, prosec­utors’ power over mandat­ory minim­ums in turn creates racial dispar­it­ies, oblit­er­at­ing any pretense of an unbiased system. A recent study finds that prosec­utors’ mandat­ory minimum charges resul­ted in Black indi­vidu­als spend­ing more time in prison than whites for the exact same crimes. In fact, prosec­utors bring mandat­ory minim­ums 65 percent more often against Black defend­ants, all else remain­ing equal. Another study simil­arly finds that some federal prosec­utors charge Black and Latino indi­vidu­als more often than white indi­vidu­als with posses­sion or sale of a quant­ity of drugs just suffi­cient to trig­ger a mandat­ory minimum; the dispar­ity is highest “in states with higher levels of racial animus.”

Finally, mandat­ory minim­ums do not promote community safety. Rather, any prison time at all increases the risk of future crime because “incar­cer­a­tion is inher­ently crim­ino­genic”; mandat­ory minim­ums only exacer­bate this situ­ation. Flor­ida exper­i­enced a 50 percent spike in crime after enact­ing mandat­ory minim­ums. Long sentences also make it more diffi­cult for people to rein­teg­rate into soci­ety. And our over­re­li­ance on pris­ons makes us less safe by divert­ing resources from other crit­ical public safety needs. In contrast, stud­ies show that shorter sentences in drug cases neither dimin­ish public safety nor increase drug abuse.

The domin­ant paradigm is vulner­able, and insti­tut­ing a new paradigm is both possible and crucial. Pres­id­ent Biden and his attor­ney general have denounced mandat­ory minim­ums, as did former Attor­ney General Eric Holder. Even though federal prosec­utors — all of whom are subject to super­vi­sion by the Depart­ment of Justice — have long been the primary proponents of mandat­ory minim­ums, Attor­ney General Merrick Garland affirmed this posi­tion during his confirm­a­tion hear­ings: “We should . . ., as Pres­id­ent Biden has sugges­ted, seek the elim­in­a­tion of mandat­ory minimum[s].”

However, despite Garland’s testi­mony, his Depart­ment of Justice has given no sign that it will stop pursu­ing mandat­ory minim­ums. In fact, earlier this year, Garland rein­stated a 2010 Holder policy that incor­por­ated a long-stand­ing direct­ive to federal prosec­utors: “Where two crimes have the same stat­utory maximum and the same guideline range, but only one contains a mandat­ory minimum penalty, the one with the mandat­ory minimum” should be charged. To make matters worse, Garland chose not to rein­state a 2013 Holder policy that both direc­ted prosec­utors to decline to charge a mandat­ory minimum in “low-level, non-viol­ent drug offenses” and expli­citly acknow­ledged that such sentences “do not promote public safety, deterrence, and rehab­il­it­a­tion.” After twenty years defend­ing people charged with federal crimes, I’ve learned that prosec­utors are rarely agents of change. This is unfor­tu­nate because Garland has real power to reduce racial­ized mass incar­cer­a­tion. He can and should instruct federal prosec­utors to refrain from char­ging and seek­ing mandat­ory sentences, espe­cially in drug cases, where popu­lar oppos­i­tion to mandat­ory minim­ums is strongest. Half meas­ures won’t be effect­ive; empir­ical work suggests that the Obama admin­is­tra­tion’s efforts to temper mandat­ory minim­ums in drug cases did little to reduce sentences or racial dispar­it­ies.

Given that reform efforts by the Depart­ment of Justice would provide, at best, a tempor­ary fix, congres­sional action is needed to shift the paradigm and mitig­ate racial inequal­ity. Congress must repeal federal mandat­ory minim­ums, make the change retro­act­ive for those already serving mandat­ory minimum sentences, and incentiv­ize states to follow suit. The House just passed Sen. Cory Book­er’s EQUAL Act by a bipar­tisan vote, with the Biden admin­is­tra­tion’s endorse­ment. This bill would elim­in­ate the crack/powder dispar­ity that results in longer mandat­ory minimum sentences for Black Amer­ic­ans; but it would not end mandat­ory minim­ums. The most compre­hens­ive solu­tion intro­duced in recent years was the Mandat­ory Minimum Sentence Reform Act of 2017, which would have repealed all mandat­ory minim­ums for federal drug crimes. The bipar­tisan Smarter Senten­cing Act of 2021 would enact a narrower reform, redu­cing mandat­ory minim­ums for certain non-viol­ent drug offenses and making other reforms retro­act­ive.

Any of these reforms would be a step toward estab­lish­ing a new paradigm that abjures mandat­ory minim­ums and respects human dignity. Attempts to stitch up the tattered old paradigm are futile and will not erad­ic­ate the spread­ing stain of racial inequity. We must instead heed Justice Sonia Soto­may­or’s message that, until we value the lives, rights, and liber­ties of those on the receiv­ing end of the system, “our justice system will continue to be anything but.”

Independent Oversight Is Essential for a Safe and Healthy Prison System

By Michele Deitch

Preventive monitoring of conditions in American prisons can help shine a light on what needs to change.

In 1991, when the Soviet Union still exis­ted, I was invited to present a paper at a crim­inal justice confer­ence in Lenin­grad. By the time of the confer­ence a few months later, the Soviet Union had fallen, our gath­er­ing was in newly renamed St. Peters­burg, and confer­ence parti­cipants exper­i­enced an emer­ging open­ness about life in Russia. In this rapidly chan­ging envir­on­ment, I had the oppor­tun­ity to visit a Russian prison with a Brit­ish colleague as two of the first outsiders allowed inside to see condi­tions there. Through a trans­lator, the prison admin­is­trator expressed deep embar­rass­ment about the shock­ingly bad infra­struc­ture — six people in a cell meant for one; the use of buck­ets for toilets in the cells; the deteri­or­at­ing walls; the dark interior of the build­ing. The admin­is­trator did not try to defend what he was show­ing us, but rather saw in our faces that the condi­tions we took in as we walked through the facil­ity were incon­sist­ent with inter­na­tional norms and with respect for human decency. He apolo­gized for the condi­tions and asked what pris­ons were like in our home coun­tries. He was shocked by some of the stor­ies we told him about our own systems and stunned by the preval­ence of brutal­ity and viol­ence and the routine use of force.

This memory has stayed with me over the years because it seems an apt meta­phor for what happens when we pull back the, well, “iron curtain” of our pris­ons and allow outsiders to see what is happen­ing inside. An inde­pend­ent set of eyes brings in the values of the outside world and brings those values to bear on the way insti­tu­tions come to under­stand them­selves and their place in that world. Correc­tional insti­tu­tions rarely have occa­sion to have their norms or culture chal­lenged and to imagine other approaches to serving their mission. But seeing your­self as others see you creates an open­ing for ques­tion­ing why things are done a certain way and can light a fire for change.

Some 30 years later, most of the West­ern world has recog­nized that the protec­tion of human rights in pris­ons demands trans­par­ency and the routine monit­or­ing of condi­tions. Almost every coun­try in the European Union, for example, has a govern­ment entity desig­nated as a “National Prevent­ive Mech­an­ism, ” respons­ible for inspect­ing all places of deten­tion and report­ing publicly on condi­tions. These entit­ies shine a light on correc­tional insti­tu­tions and help normal­ize discus­sions among poli­cy­makers and correc­tions offi­cials about human rights in prison, and about the protec­tion of the dignity of people who are incar­cer­ated.

But the United States is an anom­aly on the world stage. Pris­ons and jails in this coun­try are among the most opaque public insti­tu­tions in our soci­ety. We have erec­ted massive walls and razor wire fences around these build­ings, placed them in remote corners of each state, limited public access to these spaces, and restric­ted inform­a­tion that can reveal what is happen­ing inside the walls. We lack reli­able data pertin­ent to the health, safety, and well-being of people in custody, and cannot even assess the relat­ive safety or danger of any partic­u­lar facil­ity. Inform­a­tion about deaths in custody remains elusive in many states. Even data about the spread and toll of Covid-19 behind bars is spotty and unre­li­able, and is virtu­ally nonex­ist­ent in local jails. In contrast to our peer nations, most states in this coun­try lack over­sight mech­an­isms that can prevent harm in pris­ons and jails by allow­ing inde­pend­ent offi­cials to routinely monitor condi­tions of confine­ment.

For decades, we relied on our federal courts to provide that over­sight. In the 1970s and 1980s, many states’ prison systems oper­ated under the scru­tiny of federal judges who had found condi­tions in the correc­tional facil­it­ies in viol­a­tion of the Eighth Amend­ment prohib­i­tion against cruel and unusual punish­ment. Cases in Texas, Arkan­sas, New York City, and Alabama, among other places, revealed and seared into our collect­ive memor­ies appalling prac­tices such as the use of brutal pris­on­ers as guards to control cell­b­locks; torture devices that deliver elec­tric shocks to the genit­als; “hitch­ing posts” to restrain pris­on­ers in the fields, and rampant viol­ence and over­crowding in dilap­id­ated facil­it­ies. Long-term court over­sight of the detailed consent decrees in these and other cases ensured the dismant­ling of those prac­tices, often through regu­lar inspec­tions conduc­ted by court monit­ors and special masters, and by the ongo­ing threat of contempt fines for agen­cies that resisted reform.

But there are several reas­ons that court over­sight is insuf­fi­cient to fill the gap and promote trans­par­ency. First, court over­sight is react­ive, occur­ring only after prob­lems have hit consti­tu­tional rock bottom; it does not prevent those prob­lems in the first place. Second, increas­ingly narrow inter­pret­a­tions of the Eighth Amend­ment by the Supreme Court, and the restric­tions imposed by the Prison Litig­a­tion Reform Act (PLRA) passed by Congress in 1996, vastly reduce the like­li­hood of success­ful lawsuits (the PLRA also limits the extent of ongo­ing court over­sight follow­ing a rare judg­ment against a prison agency). Third, court over­sight is time­bound, last­ing only as long as it takes to remedy the prob­lem, even though condi­tions can (and do) easily back­slide after the court’s super­vi­sion ends. Finally, the object­ive of court over­sight is to raise insti­tu­tional condi­tions to consti­tu­tional minima, not to help the agency imple­ment best prac­tices, or work towards a more humane culture. The courts continue to be essen­tial as a back­stop against the worst punit­ive excesses, but we fool ourselves if we think they can funda­ment­ally change prison culture and trans­form pris­ons and jails into places that respect human dignity. One need only look at the horror that is Rikers Island to real­ize that even court-sanc­tioned consent decrees do not always solve deep-seated prob­lems.

In 2008, the Amer­ican Bar Asso­ci­ation called on every juris­dic­tion to stat­utor­ily estab­lish an inde­pend­ent govern­ment body to conduct routine, prevent­ive inspec­tions of pris­ons, jails, and other deten­tion facil­it­ies, and to produce public reports about condi­tions inside these insti­tu­tions. The ABA Resol­u­tion set forth a check­list of the elements neces­sary to make such an over­sight body effect­ive, includ­ing require­ments that the entity be inde­pend­ent of the correc­tions agency, have “golden key access” to every part of the facil­ity, and be able to inspect without prior notice. Such external monit­or­ing is meant to comple­ment other forms of external over­sight, includ­ing over­sight exer­cised by the courts, the legis­lature, and accred­it­a­tion bodies. It also comple­ments internal account­ab­il­ity meas­ures such as internal affairs invest­ig­a­tions, audit processes, and griev­ance systems designed to meet the needs of agency admin­is­trat­ors. The goal of external inde­pend­ent monit­or­ing, unlike these other account­ab­il­ity meas­ures, is to enhance trans­par­ency of these closed insti­tu­tions by shin­ing a light on what happens inside, and in doing so, help the agency improve its treat­ment of people in custody.

In the last decade or so, there has been increas­ing momentum support­ing the estab­lish­ment of external correc­tional over­sight bodies. Since 2010, at least six statewide prison over­sight bodies, three statewide jail over­sight bodies, and nine local jail over­sight bodies have been newly created or signi­fic­antly strengthened, adding to the relat­ively short list of those over­sight entit­ies of longer stand­ing. There are seri­ous advocacy efforts under­way to estab­lish such bodies else­where. The Wash­ing­ton State Office of the Correc­tions Ombuds, created in 2018, has been a model for many other states, and its work is a test­a­ment to the import­ance of external scru­tiny of pris­ons. Even in its short time in exist­ence, that office has drawn legis­lat­ive atten­tion to the prison agency’s chal­lenges managing Covid-19 risks for incar­cer­ated people, helped the agency reduce its use of emer­gency restraint chairs, addressed concerns about poor food qual­ity, and high­lighted issues faced by women in custody.

Inde­pend­ent over­sight of pris­ons and jails is by no means a panacea that will ensure the safe and humane treat­ment of people in custody. Monit­or­ing bodies alone cannot curb the abuses they bring to light; they cannot force the spend­ing of neces­sary resources to fix prob­lems; and they cannot make correc­tional admin­is­trat­ors dismantle systems of solit­ary confine­ment or reduce racial tensions, for example. We should not ask them to be enfor­cers: the power to address the prob­lems of pris­ons and jails should remain with correc­tional lead­ers, legis­lat­ors, and governors; the over­sight entity should not become a supra-manage­ment body ulti­mately respons­ible for the cleanup of an agency beyond repair.

What over­sight bodies can do, though, is to be our eyes and ears. They can provide a window into these dark places and deny elec­ted offi­cials the option of remain­ing purpose­fully ignor­ant about correc­tional condi­tions. Their frequent pres­ence in the pris­ons and jails can act as a form of informal social control over the actions of staff, help­ing to restrain staff miscon­duct. They can break down some imagined barrier between the inside and outside worlds, and ques­tion the way things “have always been done.” They can identify troub­ling prac­tices early, and bring these concerns to admin­is­trat­ors’ atten­tion for remedi­ation before the prob­lems turn into scan­dals, lawsuits, or deaths. They can share best prac­tices and strategies that have worked in other facil­it­ies to encour­age a culture of improve­ment. They can assess unmeas­ur­able facets of correc­tions in a holistic way, such as whether people are being treated with dignity and respect, whether they are being held safely, and whether they are being prepared adequately for release. They help human­ize every­one connec­ted to incar­cer­a­tion, includ­ing both people in custody and the staff who super­vise them.

As legal scholar Michael Mush­lin has so eloquently writ­ten, Kafka noted this same phenomenon in his story “In the Penal Colony”; the simple pres­ence of an outside observer changes what happens inside a prison envir­on­ment. It also can show us who we really are. Our extraordin­ar­ily punit­ive pris­ons and jails are this way because we have allowed them to become so; it is time for us to feel shame about that — and to take the urgent and neces­sary steps to prevent future harm.

There Is No One Answer to Over-Policing and Mass Incarceration — There Are Many

By Alia Nahra and Hernandez D. Stroud

Examples abound for successful alternative methods that can greatly improve the current criminal legal system.

Amer­ica is a carceral soci­ety. We releg­ate more than 6 million people to some form of correc­tional control, 2.1 million of them behind bars. We confine people to correc­tional facil­it­ies plagued with inhu­mane condi­tions. We rely on crim­inal punish­ment to respond to basic human needs and solve social issues, like home­less­ness and drug addic­tion. We penal­ize people even after they’ve served their sentence by permit­ting limit­a­tions on their civil liber­ties and saddling them with unbear­able debt, two burdens that prevent indi­vidu­als with crim­inal records from hold­ing full-fledged member­ship in our polity. And we dispro­por­tion­ately punish our soci­ety’s most disem­powered members, the largest share of whom are descend­ants of the enslaved.

There is obvi­ously no easy solu­tion to a prob­lem so complex, so deeply ingrained in the Amer­ican exper­i­ence. But some juris­dic­tions have already taken steps toward reima­gin­ing and unwind­ing our legal system’s reli­ance on punit­ive excess by devel­op­ing hyper-local, community-led systems of account­ab­il­ity, public safety, and finan­cial and polit­ical empower­ment. Each of these provides a model, or at the very least a test case, of mean­ing­ful reform.

In an effort to divert people from the crim­inal legal system, New York City intro­duced plans to trans­fer control of its school-safety program from the police to the city’s Depart­ment of Educa­tion and relieved the police from respons­ib­il­it­ies as inap­pro­pri­ate as serving as cross­ing guards and as import­ant as perform­ing outreach services for unhoused people. Both activ­it­ies will be reas­signed to civil­ian agen­cies.

In Shreve­port, Louisi­ana, after 23 students were arres­ted at South­wood High School for fight­ing, famil­ies respon­ded by form­ing a group called Dads on Duty. The dads take shifts “greet­ing students in the morn­ing and help­ing main­tain a posit­ive envir­on­ment for learn­ing.” Since the initi­at­ive launched this Septem­ber, the school has not exper­i­enced a single incid­ent. This shift embod­ies a welcome break from how things had been: accord­ing to the school’s prin­cipal, Dr. Kim H. Pendleton, trouble­some viol­ence had beset the insti­tu­tion at the start of the academic year.

More than 25 other cities have addressed the school-to-prison pipeline by remov­ing police from their schools. Berke­ley, Cali­for­nia, and Brook­lyn Center, Minnesota, have also over­hauled police involve­ment in traffic enforce­ment. Berke­ley’s city coun­cil has proposed estab­lish­ing a new Depart­ment of Trans­port­a­tion (dubbed “Berk­DOT”) that would task unarmed civil­ians with low-level traffic enforce­ment.

Several cities have redir­ec­ted fund­ing to address the root causes of crime, includ­ing hous­ing and job insec­ur­ity. Austin’s city coun­cil voted to use diver­ted funds to trans­form two hotels into perman­ent support­ive hous­ing units for indi­vidu­als exper­i­en­cing chronic home­less­ness, where resid­ents will have access to case manage­ment services that include mental health and substance use coun­sel­ing, work­force devel­op­ment programs, and job place­ment services.

In an effort to redress decades of inequit­able resource distri­bu­tion, both Los Angeles and San Fran­cisco have rein­ves­ted police funds in youth program­ming, work­force train­ing, and hous­ing support for histor­ic­ally under-inves­ted communit­ies.

Other juris­dic­tions have begun to alter their emer­gency response systems to reduce police contact that dispro­por­tion­ately harms nonwhite resid­ents. In Eugene, Oregon, the Crisis Assist­ance Help­ing Out on the Streets (CAHOOTS) program has redir­ec­ted a func­tion previ­ously performed by the police by creat­ing a program that sends two-person teams of crisis work­ers and medics to respond to 911 and non-emer­gency calls involving people suffer­ing a mental health crisis. CAHOOTS is so success­ful that the organ­iz­a­tion has begun collab­or­at­ing with at least nine other cities to develop similar non-poli­cing models of response.

Along with these revised visions of community safety comes the work of drain­ing our bloated network of pris­ons and jails. In St. Louis, an extens­ive organ­iz­ing campaign succeeded this year in forcing the clos­ure of the city’s infam­ous “Work­house” jail. In Virginia, the RISE for Youth campaign brought about the perman­ent shut­down of 130-year-old Beau­mont Youth Prison, enabling the real­loc­a­tion of millions of dollars toward community-based programs for youth. Among other services, the state has provided evid­ence-based family ther­apy for court-involved youth in under­served communit­ies. RISE for Youth was also success­ful in stop­ping the construc­tion of a new youth prison in the city of Ches­apeake. More recently, the Los Angeles County Board of Super­visors has begun to imple­ment the long-prom­ised clos­ure of the Men’s Cent­ral Jail in down­town L.A., with plans to release, relo­cate into resid­en­tial programs, or divert into community-based treat­ment thou­sands of incar­cer­ated indi­vidu­als.

Also approach­ing the issue from a differ­ent angle, groups such as New York City’s Common Justice, focus on redu­cing and address­ing crime without rely­ing on incar­cer­a­tion. The organ­iz­a­tion has developed success­ful altern­at­ive-to-incar­cer­a­tion programs that divert cases into a restor­at­ive justice process “designed to recog­nize the harm done, honor the needs and interests of those harmed, and develop appro­pri­ate responses to hold the respons­ible party account­able.”

The concept of restor­at­ive justice is a proven method of tack­ling culp­ab­il­ity that works to avoid a reli­ance on impris­on­ment. But even aside from scientific analysis of its merits, it is qual­it­at­ively clear that restor­at­ive justice trans­forms rela­tion­ships and communit­ies by offer­ing a differ­ent approach to redress than the often trau­mat­iz­ing and inef­fect­ive crim­inal legal system. It provides crime victims with the oppor­tun­ity to engage directly with those who have harmed them while still foster­ing account­ab­il­ity for those who caused the harm.

Many of the guid­ing prin­ciples of restor­at­ive justice can be traced to indi­gen­ous prac­tices, such as peace­mak­ing and talk­ing circles used to resolve conflict and injury in Native Amer­ican and First Nation Cana­dian cultures. However, the contem­por­ary exer­cise of restor­at­ive justice in crim­inal legal settings comes from a Cana­dian exper­i­ment that began in 1974 and has provided nearly half a century of know­ledge that can be used to refine best prac­tices.

Its popular­ity has grown in recent years, and today restor­at­ive justice is estab­lished as a valu­able mech­an­ism to address the needs of victims and their communit­ies while promot­ing account­ab­il­ity and the cessa­tion of destruct­ive actions. Some version of the prac­tice now exists in nearly all 50 states. In San Fran­cisco, District Attor­ney Chesa Boudin has put forth a vision for a dramatic expan­sion of the restor­at­ive justice model, prom­ising to make the option of restor­at­ive justice avail­able to victims of all crime.

All told, a wide body of evid­ence illus­trates the grow­ing number of solu­tions to our nation’s reli­ance on incar­cer­a­tion and poli­cing. To oper­ate at scale, these prac­tices require both govern­ment invest­ment and commit­ment from the public to supple­ment exist­ing grass­roots networks.

No single one of these changes is perfect — in fact, they fail even collect­ively to create a completely new vision for justice in Amer­ica. We know these systemic adjust­ments, even if juris­dic­tions every­where imple­ment them, won’t entirely trans­form our soci­ety into one that no longer harms our most margin­al­ized groups.

Yet our nation’s most radical changes — ending slavery, mandat­ing racial integ­ra­tion of public facil­it­ies, root­ing out racial voter suppres­sion tactics such as liter­acy tests and poll taxes — arose from incre­mental steps toward vision­ary goals. We have to start some­where. Perhaps the best way to do so is to acknow­ledge the people and places already improv­ing their communit­ies and adopt­ing their success­ful meth­ods every­where we can.

How Some European Prisons Are Based on Dignity Instead of Dehumanization

By Ram Subramanian

Prisons in Northern Europe are actually supportive, and they see lower rates of violence and recidivism.

On a cold morn­ing in Febru­ary 2013, I led a group of Amer­ican poli­cy­makers and crim­inal justice prac­ti­tion­ers — judges, public defend­ers, legis­lat­ors, correc­tions offi­cials, law profess­ors — on a visit to a juven­ile prison in east­ern Germany. We met with a group of young men, largely between the ages 18 and 21, who were serving between two to five years at the facil­ity; most had been convicted of a viol­ent offense.

Although these young men certainly looked like teen­agers or very young adults — dressed in jeans, cargo pants, color­ful T-shirts, sweat­shirts, and base­ball caps — they would certainly not be considered “juven­iles” in the Amer­ican system of punish­ment, which gener­ally caps the upper age of juven­ile status at 17. A strik­ing aspect of German law extends the ambit of “juven­ile justice” — centered on minimum inter­ven­tion and diver­sion — to young adults up to age 21. Nearly two-thirds of young Germans in this age group who are involved in the justice system typic­ally bene­fit from this. 

The young men were brim­ming with excite­ment. They were eager to show the visit­ors where they worked and stud­ied, how they decor­ated their rooms, and where they cooked their meals. They even intro­duced us to some of the anim­als they attent­ively looked after. They also had a million ques­tions for our group, but one stood out: they wanted to know what sentence they would have received if they had been convicted in the United States. It was a stark and confront­ing ques­tion.

One judge seemed almost unnerved with her own response as she told a young man serving a four-year sentence that he likely would have received 43 years for griev­ously assault­ing a fellow young person and caus­ing brain injury. When pressed why she would have doled out such a long sentence, the judge tried to summon an answer, but hesit­ated, cast­ing around for assist­ance from her fellow Amer­ic­ans. She could only say what sentence was both mandated by the law and typical of senten­cing prac­tices in her state. But she didn’t know why. The conspicu­ous dispar­ity in the scale of punish­ment revealed how absurdly punit­ive crim­inal sentences are in the United States and shattered some of the Amer­ic­ans’ assump­tions of what consti­tutes propor­tional punish­ment.

Between 2013 and 2019, I organ­ized four such study trips to intro­duce Amer­ican crim­inal justice offi­cials to several differ­ent North­ern European correc­tions systems. One of the most strik­ing encoun­ters was a Novem­ber 2018 visit to the neat and well-appoin­ted living and work­ing quar­ters of Halden Prison in south­ern Norway, a maximum secur­ity facil­ity that has received much inter­na­tional atten­tion for being the “most humane prison in the world.”

Our deleg­a­tion was surprised not only by the phys­ical aspects of the place — open, well-lit, and bright, with lots of green spaces — but also the high degree to which the condi­tions of confine­ment were organ­ized around the normal­iz­a­tion prin­ciple, which recog­nizes the inher­ent harms of incar­cer­a­tion and requires that life in prison approx­im­ate the posit­ive aspects of life in the community. Under this prin­ciple, punish­ment is restric­ted to the separ­a­tion from soci­ety mandated by the custodial sentence itself. Condi­tions of confine­ment should them­selves be neither punit­ive nor oner­ous. Instead, the aim of the incar­cer­a­tion exper­i­ence is to enable smooth rein­teg­ra­tion of people upon release and to lead a life of social respons­ib­il­ity.

Consequently, life at Halden is organ­ized around the promo­tion of safety, well-being, and personal devel­op­ment, orches­trated to mimic life on the outside. Incar­cer­ated indi­vidu­als live in private rooms with doors and private bath­rooms. Small groups share communal living spaces that include fully equipped kitchens. There is even a well-outfit­ted music studio, dubbed “Crim­inal Records, ” for record­ing albums or produ­cing a radio show.

They are also encour­aged to main­tain a healthy meas­ure of autonomy and personal agency in organ­iz­ing their daily lives — they cook their own meals and are provided with an array of voca­tional train­ing and educa­tional programs, as well as vari­ous treat­ment options. They are given ample oppor­tun­it­ies to main­tain contact with family and friends, and they can all earn the award of brief peri­ods of tempor­ary leave from prison.

Mean­while, wardens — many of them trained lawyers, social work­ers, and mental health profes­sion­als — and correc­tions officers are encour­aged to develop strong social rela­tion­ships with the people they super­vise, which helps create a respect­ful, support­ive, commu­nic­at­ive, and caring envir­on­ment. Almost half of the approx­im­ately 290 prison staff are women.

Discip­line is very finely graded and discip­lin­ary meas­ures are closely tied to viol­a­tions. Least restrict­ive sanc­tions are preferred, such as reprim­ands, brief restric­tions on money, prop­erty, move­ment or leis­ure activ­it­ies, or delays in sched­uled home leave. Punit­ive solit­ary confine­ment is almost never used and is tightly restric­ted to 8 hours. Unsur­pris­ingly, viol­ence is rare.

Contrast this with the U.S. correc­tions system, where penal life and settings are ordered around the para­mount goals of “custody and order.” Amer­ican prison life is built upon the dehu­man­iz­ing rituals of induc­tion, initi­ation, hier­archy, degrad­a­tion and routine, all designed to assert author­ity and control over the bodies and lives of incar­cer­ated people. Indi­vidu­al­ity is stripped away upon prison entry, replaced by an inmate number and a stand­ard­ized, nondes­cript uniform.

Life in a U.S. prison is filled with an endless parade of secur­ity meas­ures (caging, hand­cuff­ing, shack­ling, strip and cell searches, and lock­downs) punc­tu­at­ing a daily routine marked by enforced idle­ness, the ever-present risk of viol­ence, often adversarial rela­tion­ships with prison staff, and only sporadic oppor­tun­it­ies for construct­ive activ­it­ies offer­ing rehab­il­it­a­tion, educa­tion, or treat­ment. Solit­ary confine­ment is often used as punish­ment for minor viol­a­tions of prison rules, such as talk­ing back, being out of place, or fail­ure to obey an order. Incar­cer­ated indi­vidu­als in Amer­ica live in a harsh, dysto­pian social world of values and rules, designed to control, isol­ate, disem­power and erode one’s sense of autonom­ous self.

Can North­ern Europe’s “human dignity” approach to correc­tions guide Amer­ica down a path­way to help undo the degrad­ing, disem­power­ing, alien­at­ing, and brutal­iz­ing nature of confine­ment? Many argue that there are too many differ­ences — in polit­ics and law, penal philo­sophy and punish­ment culture, in crime types or rates, and system scale and correc­tional resources. Some even argue that Amer­ica is too differ­ent cultur­ally — they more homo­gen­ous, us more diverse.

But these differ­ences obscure some import­ant simil­ar­it­ies, both current and histor­ical. Many European systems, even those currently held up as models, once had much higher incar­cer­a­tion and recidiv­ism rates than they do today. And they continue to face chal­lenges similar to our own, includ­ing over­crowding, overrep­res­ent­a­tion of people with mental illness, and a grow­ing and increas­ingly diverse popu­la­tion of foreign-born indi­vidu­als.

The simple fact is that Finland, Germany, the Neth­er­lands, and Norway have all made a delib­er­ate choice to do things differ­ently. To be sure, Germany’s turn towards a human dignity approach was largely direc­ted and deeply informed by the post-war polit­ical arrange­ments and human rights consensus that emerged after World War II. Norway and Finland, on the other hand, demon­strate that a coun­try need not suffer cata­clys­mic events — geno­cide, milit­ary defeat, foreign occu­pa­tion — to induce funda­mental change.

In all my European trips with fellow crim­inal justice schol­ars and prac­ti­tion­ers, there were always two ques­tions on the lips of every member of every Amer­ican deleg­a­tion: “Does human dignity work?” and “How much does it cost?” Reform-minded correc­tional prac­ti­tion­ers and poli­cy­makers often require polit­ical cover, usually in the form of “evid­ence-based prac­tices” or “cost-effect­ive” solu­tions, to justify proposed changes.

But how do you study the goal of human dignity? Can you isol­ate the appro­pri­ate vari­ables to truly meas­ure cause and effect? If stud­ies came back with bad results, or if meth­ods are found to cost too much, would one stop treat­ing people humanely? While European correc­tions offi­cials are also inter­ested in “what works, ” they explain that there are things they simply cannot and would not do to another person on prin­ciple, such as keep­ing people in punit­ive isol­a­tion indef­in­itely.

Instead, they point to other proof points. Aggres­sion and phys­ical viol­ence — between incar­cer­ated people, or against staff — are rare. Recidiv­ism is lower than in many other coun­tries. Pris­ons are in large part calm, quiet, even strangely congenial places with high degrees of trust between staff and the incar­cer­ated popu­la­tion. Perhaps illus­trat­ive of this was the one word the deleg­a­tion visit­ing Halden kept on hear­ing, from correc­tions officers and pris­on­ers alike: “hope­ful.” One young man was “hope­ful” he would be “better” and make his family “proud.” He was “hope­ful” that he would be forgiven by the person he hurt. He was also hope­ful that one day he could forgive himself. Prison staff, too, expressed hope — hope that their efforts will help the people they super­vise and, on a larger level, hope that they were making a mean­ing­ful contri­bu­tion to the over­all safety of the community.

When confron­ted with what they saw in vari­ous facil­it­ies, most of the Amer­ican visit­ors even­tu­ally came around, despite their initial skep­ti­cism. The spec­trum of what was possible had widened. To treat people humanely and with respect and dignity, they need­n’t wait to build a facil­ity like Halden, nor wait for a legis­lature to thickly weave a human dignity approach into the skein of their penal laws. While it may require an adjust­ment in train­ing, treat­ing people on a person-to-person basis with respect and dignity is essen­tially free.

Putting the brakes on Amer­ican punit­ive excess can and should be accom­plished by center­ing human dignity as a found­a­tional, organ­iz­ing prin­ciple of the nation’s correc­tions system. Exper­i­ments across the coun­try at the prison unit level — in Connecti­cut, North Dakota, Pennsylvania, and else­where — are trying to imple­ment this human dignity ethos. But these tent­at­ive steps will not likely stop the domin­ant punish­ment culture that helped give rise to mass incar­cer­a­tion. Funda­mental changes to the “soul-chilling inhu­man­ity” of Amer­ica’s pris­ons, as one judge has described it, will certainly require much more.

Countering Excessive Punishment with Chances for Redemption

By Carlton Miller

A personal story shows the full costs of an unfair system and demonstrates how it can be improved.

“Carlton, I need to tell you some­thing.” No eight-year-old son wants to hear these words from his mother, her face marred with distress, her voice trem­bling. Sitting on the side of her bed anti­cip­at­ing what she was soon to disclose, I looked in her eyes and held my breath.

She said, “Kendrick is not coming home for a while.” In disbe­lief and bewil­der­ment, I replied, “What do you mean? What happened? How long is ‘a while’?” The tears she attemp­ted to hold back burst into a river of emotions.

Later that even­ing, I saw my eldest brother’s face plastered across the local even­ing news. I do not remem­ber the news anchor’s words, but I will never forget seeing Kendrick hand­cuffed and escor­ted from a build­ing into the back of a police car. I felt like the floor beneath me had opened and swal­lowed me, sink­ing me deeper into a pit of shame, help­less­ness, and frus­tra­tion. What lay ahead was unfathom­able.

My brother’s absence would have devast­at­ing emotional, finan­cial, and health impacts on my family. It was this pain that led me to encounter Amer­ica’s pecu­liar taste for punish­ment, which plagues 113 million adults who have or have had a loved one in jail or prison. In this pain, I found my purpose and dedic­ated my life to becom­ing an attor­ney and cham­pion for crim­inal justice reforms not only in my home state of Louisi­ana, but across the coun­try.

Consid­er­ing the quan­ti­fi­able and qual­it­at­ive gener­a­tional impact of excess­ive punish­ment on famil­ies and communit­ies around the coun­try, this issue is more than a crim­inal justice issue: it is a human rights issue. We are in a crisis — a crisis that has defined the traject­ory of my life.

Kendrick’s excess­ive sentence was a direct result of an unspeak­able policy enacted in the intense wave of racism that engulfed the south­ern states in the wake of Recon­struc­tion. He was effect­ively consigned to life in prison even though the jury in his trial did not come to a unan­im­ous verdict. Among the “Black codes” and convict-leas­ing laws of the Jim Crow era that enabled a white soci­ety to imprison Black people virtu­ally by whim — for offenses such as loiter­ing, break­ing curfew, and fail­ing to carry proof of employ­ment — Louisi­ana waived the require­ment for a unan­im­ous jury in all but capital cases. It was an espe­cially effect­ive way for Black people to be convicted and consigned to an equi­val­ent of slavery, with the state leas­ing them to plant­a­tions, coal mines, and rail­road compan­ies.

This scheme was embed­ded in the law not merely by legis­lat­ive act, but by its inser­tion into the state consti­tu­tion itself. The right to a jury trial may be a funda­mental guar­an­tee of the Sixth Amend­ment of the U.S. Consti­tu­tion, but Louisi­ana’s consti­tu­tional conven­tion of 1898 came up with its own view of how a jury might oper­ate. Article 116 had a clear origin: accord­ing to one commit­tee chair­man, the 1898 consti­tu­tion was specific­ally designed “to estab­lish the suprem­acy of the white race.” Nonun­an­im­ous jury verdicts, which allowed punish­ment based on a 10 to 2 jury vote, would deny thou­sands of Black Louisi­anans their right to a unan­im­ous jury, increase Louisi­ana’s convict leas­ing labor force, and intensify the disen­fran­chise­ment of Black citizens.

In the Spring of 1999, just over 100 years after Article 116 was adop­ted, a nonun­an­im­ous jury convicted my brother of armed robbery and two counts of attemp­ted murder. Two jurors voted to acquit because they had reas­on­able doubts about my brother’s culp­ab­il­ity due to incon­sist­ent state­ments by the surviv­ors and testi­mony about the accused’s iden­tity. This was during the heart of the “tough on crime” era, when federal and state poli­cy­makers engaged in an unpre­ced­en­ted expan­sion of pris­ons and prison popu­la­tions. Mandat­ory minim­ums, senten­cing enhance­ments, restrict­ive parole release policies were the order of the day.

Consequently, due to prior convic­tions, Kendrick’s sentence was enhanced to 64 years and 11 months, and an admin­is­trat­ive determ­in­a­tion made him ineligible for parole. My brother wrestled with untreated addic­tions and repeated inter­ac­tions with the justice system as a young man, but he was still a young man, just 28 years old. No one had been killed in the crime for which he was sentenced. No unan­im­ous jury had ever determ­ined that he was in fact guilty. Yet he was given a de facto life sentence with no hope of ever coming home. In short, he was convicted and sentenced to die in prison — and my family had to serve this time with him.

Kendrick was consigned to a prison system that is notori­ously viol­ent, lacks inde­pend­ent over­sight, and under­mines the health and well­being of those housed and staffed in them. Much of my brother’s incar­cer­a­tion was spent at Louisi­ana State Penit­en­tiary, a former slave plant­a­tion better known as Angola, the largest maximum-secur­ity prison in the nation. It is considered one of Amer­ica’s most viol­ent and abus­ive pris­ons. Kendrick was subjec­ted to work­ing in its fields, super­vised by shot­gun-toting correc­tional officers riding on horse­back. He was one of many who would rather risk solit­ary confine­ment than work in these tortur­ous fields.

Finally, after serving nearly 24 years, in 2021, life came full circle for Kendrick and for our family. Build­ing on the historic Louisi­ana justice reforms of 2017 that I was fortu­nate to play a role in shap­ing, justice advoc­ates secured the enact­ment of a land­mark elder parole law that could be retro­act­ively applied to my brother. On Decem­ber 14, 2021, thanks to the efforts of organ­iz­a­tions like the Louisi­ana Parole Project, Voices of the Exper­i­ence, and First72+, I had the pleas­ure of support­ing my brother at his parole hear­ing. A unan­im­ous decision gran­ted him his release. Two days later, Kendrick walked out of the prison walls and whispered words that shook my core: “Thanks for not forget­ting me, little brother!”

In 2018, Louisi­ana voters over­whelm­ingly chose to elim­in­ate Article 116 from the state consti­tu­tion. The follow­ing year, the U.S. Supreme Court declared such convic­tions uncon­sti­tu­tional. Yet today, the Prom­ise of Justice Initi­at­ive, a New Orleans-based legal services and advocacy nonprofit, must continue to advoc­ate for the approx­im­ately 1,500 people who are still in Louisi­ana’s pris­ons because of nonun­an­im­ous jury convic­tions.

Previ­ous essays in this series have high­lighted the many ways Amer­ica’s excess­ive reli­ance on punish­ment has harmed famil­ies and communit­ies and weakened our demo­cracy. In my case, over the past two decades, my brother’s incar­cer­a­tion has taught me some essen­tial lessons.

Chief among them: if we are going to end the incar­cer­a­tion crisis, we need to see that people are redeem­able and can be restored because, as Bryan Steven­son says, “each of us is more than the worst mistake we have made.” It begins with inter­rog­at­ing and abandon­ing labels such as “felon, ” “crim­inal, ” “inmate, ” or “offender, ” because they work on a broad miscon­cep­tion that those incar­cer­ated for viol­ence are danger­ous and irre­deem­able and fail to account for the fact that so many of the incar­cer­ated have been victims or witnesses of repeated viol­ence in their own communit­ies and suffer from untreated trauma.

I witnessed my brother traverse this valley of despair with a resol­ute hope despite the fact he was not eligible for early release, even though in his years in prison he worked earn­estly, attained occu­pa­tional licenses, and ment­ored other incar­cer­ated people. His char­ac­ter gained him the respect of the wardens, staff, and others housed in prison. Yet his past excluded him from earn­ing good time cred­its that could reduce his sentence. But he never gave up hope, and redemp­tion finally arrived.

By center­ing on redemp­tion and restor­a­tion, we can counter excess­ive punish­ment through policies that promote racial justice and creat­ing release oppor­tun­it­ies for those serving long prison sentences for viol­ent offenses. Research by the Urban Insti­tute recently found that one in five people in prison for at least 10 years is a Black man incar­cer­ated before age 25. In addi­tion to high­light­ing the racial dispar­it­ies in extreme senten­cing, this find­ing also rein­forces the harm that is caused when we “lock people up and throw away the key.”

Correc­tional lead­ers and parole author­it­ies play an import­ant, often opaque role in Amer­ican prison policy and have an immense degree of discre­tion over prison releases. In 34 states, these poli­cy­makers have legal author­ity over the ulti­mate dura­tion of most prison sentences. Any prison reform efforts to reduce the prison popu­la­tion must focus a signi­fic­ant degree on prison-release discre­tion through retro­act­ive and prospect­ive policies that remove parole eligib­il­ity excep­tions, expand elder parole and compas­sion­ate release, allow for “second look” resen­ten­cing, and increase earned and good time cred­its.

These “levers of change” will reduce the amount of time people spend in prison. In recent years, we have seen legis­lat­ors in 25 states intro­duce bills that allow incar­cer­ated people an oppor­tun­ity to have their sentences reduced or to be considered for early release. In my brother’s case, such a law brought Kendrick an imme­di­ate path­way home.

At the heart of our collect­ive effort to change Amer­ica’s reli­ance on punit­ive excess is the acknow­ledge­ment of people’s human­ity, the belief that people can be redeemed and restored. This acknow­ledge­ment under­pins our shared move­ment to reima­gine what invest­ments in people, not punish­ment, can do. These bedrock values are the found­a­tion of the consti­tu­tional guar­an­tees of equal protec­tion, liberty, and due process. They can serve as a light­house beam cutting through the blind­ing fog of excess­ive punish­ment and calm the troub­ling waters of a fear that seek to divide us. If we can keep our eyes on this light, it can guide us to the shores of a stronger demo­cracy that is inclus­ive, equit­able, and promotes healthy famil­ies and communit­ies.

Beyond the Era of Punitive Excess

By Jeremy Travis and Bruce Western

Reckoning with our overreliance on excessive punishment requires a commitment to truth-telling.

How does the era of punit­ive excess come to an end?

In Decem­ber, the city coun­cil of Char­lottes­ville, Virginia, voted unan­im­ously to donate the city’s statue of Confed­er­ate war leader Robert E. Lee to the Jeffer­son School African Amer­ican Herit­age Center, which proposed to melt it down and use the bronze to create “a new work of art that will reflect racial justice and inclu­sion.” The center’s proposal was called “Swords into Plow­shares.” Accord­ing to Andrea Douglas, exec­ut­ive director of the center, “We’re taking some­thing that was harm­ful, taking some­thing that was the source of trauma, and trans­form­ing it into some­thing that is more respect­ive of the demo­cratic, community space.”

If mass incar­cer­a­tion is the bronze statue of punit­ive excess, it should now be melted down and trans­formed. What has been trau­matic and pain­ful should be replaced with a new vision of justice that promotes community well-being, not oppres­sion, and celeb­rates demo­cracy, not racial domin­a­tion. 

The era of punit­ive excess docu­mented in the Bren­nan Center’s collec­tion of essays repres­ents the latest chapter in a long history of white suprem­acy and economic injustice, and it consti­tutes a multi-count indict­ment against the system of crim­inal laws created in its wake. To turn the page on this chapter, we propose an honest reck­on­ing with the harms of punit­ive excess.

Reck­on­ing requires a commit­ment to truth-telling, begin­ning with the tangle of fictions that stand in the way of change: Punish­ment keeps us safe, justice is found in courtrooms, conflicts are best resolved through an adversarial process, harmed parties need retri­bu­tion, pris­ons are places for rehab­il­it­a­tion, punish­ment ends once one leaves prison, the wealthy and the poor receive equal treat­ment under the law. Perhaps fore­most among the fictions of justice is the notion that monu­mental racial dispar­it­ies were neces­sit­ated by patterns of crime and deman­ded by communit­ies of color. A reck­on­ing is needed to set the record straight.

Our idea of a reck­on­ing has three key parts. 

First, a reck­on­ing is a histor­ical project that confronts decades of penal harm that punc­tu­ated centur­ies of struc­tural racism. History reveals how insti­tu­tions that are charged with the task of safety have oper­ated as instru­ments of control and isol­a­tion. History explains why the demo­graphic contours of mass crim­in­al­iz­a­tion and incar­cer­a­tion align so neatly with racial exclu­sion and extreme poverty. The history of slave patrols, convict labor, Black codes, the terror­ism of lynch­ing, the viol­ent suppres­sion of Black polit­ical power after Recon­struc­tion, the role of police and courts in enfor­cing white suprem­acy — under­stand­ing the history of all these offenses against Amer­ica’s Black communit­ies can propel the demand for a new vision of justice that empowers them.

Second, a reck­on­ing is not just a histor­ical reflec­tion. An honest reck­on­ing will also drive a differ­ent kind of polit­ical dynamic, one in which community repres­ent­at­ives have a cent­ral role. Powered by communit­ies that have suffered at the hands of punit­ive excess, a reck­on­ing process can disrupt the status quo and chal­lenge estab­lished polit­ical norms. We have already glimpsed the propuls­ive force of histor­ical reck­on­ing in the work of community move­ments to close jails, reform bail, forgive court debt, and elim­in­ate stop and frisk in juris­dic­tions around the coun­try. By artic­u­lat­ing how the current crim­inal justice ortho­doxy has weakened demo­cratic ideals, deepened poverty and racism, and damaged indi­vidu­als and communit­ies, reck­on­ing fore­shad­ows a funda­ment­ally differ­ent vision of justice. The recount­ing of historic harms will lend urgency to community demands for the real­iz­a­tion of this new vision. We hope that the truth-telling and power-shar­ing that reck­on­ing entails will promote engage­ment over estrange­ment, activ­ism over alien­a­tion. The fertile ground of community conver­sa­tion has the poten­tial to encour­age a new gener­a­tion of lead­er­ship, steeled to sustain the move­ment from vision to real­ity.

Third, a reck­on­ing must also engage the public offi­cials who have driven the justice jugger­naut. They should be enlis­ted in the work of funda­mental change, in part because of the harm that they and their prede­cessors have caused. Truth-telling should provide community repres­ent­at­ives with the chance to confront author­it­ies with a direct account of the harm they’ve suffered and their plans for remedi­ation. Police abuse, gratu­it­ously long sentences, the indig­nity of solit­ary confine­ment, and the unpay­able burden of fines and fees all deserve an account­ing from the public offi­cials who design and staff the system. The myth that safety is rooted in punish­ment can be power­fully exposed if community members speak to how count­less police stops, arrests, and incar­cer­a­tions have put them at risk. Public offi­cials must also be engaged for the prag­matic reason that they sit squarely in the vanguard of iner­tia and resist­ance. A truth-telling process that invites their parti­cip­a­tion will provide oppor­tun­it­ies for some offi­cials to become cham­pi­ons for change. In a struggle for funda­mental trans­form­a­tion, the voice of the convert has zeal and unique cred­ib­il­ity.

In its most success­ful version, a reck­on­ing opens the window for policies that disrupt the logic of punit­ive excess. Communit­ies them­selves would have a much stronger hand in design­ing how and for whom safety is achieved. The pursuit of justice would draw upon community strengths to advance the goals of heal­ing and forgive­ness. The account­ab­il­ity of public offi­cials would reflect a commit­ment to trans­par­ency and civil­ian author­ity. Sanc­tions for those community members who harm others would show unwaver­ing respect for their value and dignity and be propor­tion­ate to the harm they’ve commit­ted.

Disrupt­ing the logic of punit­ive excess by reck­on­ing with the legacy of white suprem­acy is as much a process as it is an outcome. A sustained dialogue that is steeped in history, led by the voice of impacted communit­ies, and confronts offi­cials with the harms they have caused or perpetu­ated will some­times be halt­ing, and often frus­trat­ing. But, we hope, such a process can enable funda­mental change by shar­ing power and broad­en­ing the coali­tion for change. Such a process compels a new polit­ics of justice.

A reck­on­ing will neces­sar­ily probe the signi­fic­ant trauma and harm caused by the agen­cies of the justice system, harms so power­fully detailed in this series of essays. Beyond enumer­at­ing these harms, an honest reck­on­ing will also ask whether the police and penal insti­tu­tions that claim respons­ib­il­ity for safety have actu­ally provided it. This is espe­cially import­ant today, when gun viol­ence and homicide are on the rise. At a time when we see the fail­ure of punit­ive excess clearly, the upward trend in crime some­how nour­ishes the status quo. A reck­on­ing with history will reveal the para­dox that reli­ance on police and pris­ons has yiel­ded signi­fic­ant trauma and harm, and the prom­ise of safety and community well-being remains elusive. We must settle accounts with history in order to create a differ­ent kind of safety that answers the threat of viol­ence, makes communit­ies stronger, and advances a new vision of justice.

Skep­tics will say that this utopian vision of justice is unat­tain­able in Amer­ica. We under­stand the many polit­ical forces arrayed against such a vision. A racist and author­it­arian ideo­logy is deeply embed­ded in our justice system. A large portion of the public views tough-on-crime policies as effect­ive answers to crime and disorder. The justice jugger­naut is sustained by power­ful economic interests and entrenched career incent­ives. Community resid­ents who strive for public safety also regu­larly turn to police and pris­ons for help — but this reflex itself arises in a context where resid­ents often have few altern­at­ives to choose from. We believe that by empower­ing the voices of communit­ies exper­i­en­cing harm, mobil­iz­ing coali­tions to influ­ence public policy, and telling the truth about punit­ive excess, a reck­on­ing process can counter the forces of oppos­i­tion. 

We recog­nize that the road to dismant­ling systems of injustice is long and that progress is not linear. We also believe that dismant­ling the sturdy archi­tec­ture of punit­ive excess will require more than marginal reforms. The statue must be taken off its pedes­tal, melted down, and recast as some­thing new.

History teaches us that a reck­on­ing with history happens only rarely, and then often in the context of pain­ful regime change, such as a defeat in war, a polit­ical revolu­tion, or accu­mu­lated moral outrage. One need only consider the history of the Truth and Recon­cili­ation Commis­sion in post-apartheid South Africa, the estab­lish­ment of a demo­cratic Germany follow­ing the horrors of the Holo­caust and the revel­a­tions of the Nurem­berg trials, or Amer­ica’s own brief exper­i­ment with racially inclus­ive demo­cracy in Recon­struc­tion before it was destroyed by a century of resur­gent white suprem­acy. These and other examples of nations coming to terms with their histor­ical injustices under­score the complex­ity — and neces­sity — of a process of reck­on­ing as a precon­di­tion for a new kind of justice. 

A reck­on­ing does not determ­ine precisely how the swords of punit­ive excess are beaten into the plow­shares of community empower­ment, but we hope it creates a space for such a polit­ical process to begin. This process embod­ies the values of dignity, demo­cracy, and truth-telling. It actively pursues the prom­ise of a multi-racial demo­cracy. These values, when infused into a polit­ical dialogue, have the trans­form­at­ive power to eclipse the era of punit­ive excess.

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Originally published by the Brennan Center for Justice, 04.13.2021-04.05.2022, under the terms of a Creative Commons Attribution-No Derivs-NonCommercial license.

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