Feb 16, 2016 (San Diego) Mass incarceration is the result of policies enacted at both the federal and state government. They have resulted in the current incarceration of 1, 516, 879 people according to the Sentencing Project. The United States has the highest incarceration rate in the world. We lead countries such as Russia and China, and while the talk has started on prison reform, we have yet to take concrete. This lack of concrete action is at all levels. Well except one, President Barack Obama did sign an executive order regarding drug offenders in federal custody. He has also commuted the sentences of 46 drug offenders.
This issue started to enter the mainstream after the death of Michael Brown in Ferguson Missouri. There were other issues that also entered the consciousness of the general public, such as unequal, racialized policing, and police militarization, but mass incarceration also came to the fore. It was one of those stories that exploded, and questions arose. The main question was why?
We have two main stories emerge from this. These are two major explanations as to the causes of mass incarceration, if you will. The first cause of this policy disaster is the war on drugs that started in earnest in the Nixon White House. This led to tough on drugs state and federal laws and unequal sentencing (and enforcement) of substances. The best example of this is crack cocaine. People who use crack will see sentences that are much longer than those who use powder. Those who use crack also tend to be poor and black or brown. This is seen as not precisely a coincidence.
The second explanation is that courts were given mandatory minimums partly to reform a system of indeterminate sentencing that was racially tinged. There is some to be said about this. Black prisoners tended to get harsher sentences than their white counterparts. This is particularly the story in California where the legislature did pass such law. It was California Senate Bill 42, and it did end discretion on the part of the judge.
Indeterminate sentencing in theory, allowed for the prison to determine when to release a prisoner, depending on his or her behavior. Determinate sentencing removes that discretion from both the judge, and the prison system. There are mandatory minimums and it does not matter how the prisoner behaves. This removes a motive to behave as well, and to reform.
New York Judge Marvin Frankel wrote a treatise on this subject as well. It was called Criminal Sentencing: Law Without Order. In this treaty, according to Naomi Narakawa in The First Civil Right:
Frankel’s disdain for discretion oscillated between different, even antithetical, systems of logic. On the one hand, judicial discretion yielded unacceptably arbitrary punishment. For Frankel, “wholly unchecked and sweeping” discretion invited judges to indulge their personal whims. For any given judge on any given day, the sentencing “philosophy” at work might be, according to Frankel, “punitive, patriotic, self-righteous, guilt-ridden, and more than customarily dyspeptic.” Unfettered discretion was therefore “intolerable” to any society that “professes devotion to the rule of law.” On the other hand, judicial discretion yielded unacceptably harsh punishment. Frankel designated the United States “the world’s cruelest nation—cruelest in terms of incarcerating more people for longer periods than any other country.”
This judge was not alone. The California State Senate acted on this as well. One has to wonder what his view would be at present given where determinate sentencing and mandatory minimums have led. We are in the middle of a crisis of our own making. This is a nightmare made of three strike laws and sentencing grids.
There is a third theory, provided by Fordham Professor John Pfaff, who was interviewed by Slate. This is that District Attorney’s have become tougher on crime, see their offices as possible launch pads to higher political office, and police have become more efficient in crime investigation. If his explanation is true, it will make this a much harder nut to crack. The reason, political ambition is hard to regulate. And if this is reduced to more people behind bars is good for my political future, then we will have a hell of a time changing this dynamic, unless voters reject this.
The Presidency and Policy Demands
When presidential candidate Hillary Clinton met Black Lives Matter Activists there was this moment of historical intersection. It was the moment when her husband’s record on mass incarceration came to the center of the discussion. From the video released by the activists it was an uncomfortable moment. She was confronted with the consequences of mass incarceration and the 1994 Violent Control Act.
This was the moment when the 1990s came back at us, rushing at us like a bad dream. This was also a moment of choice. Clinton chose to say that she might as well go talk to white people. She also seemed quite dismissive of what these young activists were talking about. She might as well have been anywhere else, but in that physical space.
To be fair, her reaction, one of avoidance, is understandable. Especially when her husband is the one who signed such bill into law, and she is are part of a majority culture that has been trying hard to avoid this for years. She is not alone. So to blame here uniquely for this piece of legislation would be quite silly. But her taking some responsibility for it, even if to appear to care, would be politically expedient. Her avoidance tells us far more about us as a nation, than it tells us about Hillary Clinton in particular.
This is a conversation that majority culture has been trying hard not to have. As a society we also insist that racism is over, becuase we have one black man in the White House and millions in the big house. Ergo racism is over, and we should stop this conversation. Never mind that the form racism is taking is no longer the Jim Crow era of separate drinking fountains (though Flint Michigan might prove that to be partially be in vogue again), but a series of structures that ensure the dominance of one group over another. These are economic, educational, access to healthcare, job opportunities, even where one lives.
We need to confront this, since mass incarceration is a new way to keep the usual suspects down in the United States. This is not just about destroyed families of color, due to family separation when a father, and it is mostly fathers, goes to prison. It is all the consequences that come with it. One of them is that single mothers are left alone to raise children, in a welfare system that was also transformed in the 1990s to make their lives that much harder.
Some of the consequences of mass incarceration include not being able to vote. In some states a felony conviction comes with the loss of the franchise for life. In other states it can be restored after certain amount of time has passed or a governor’s decision to restore it. There is also the inability to quality for section 8 housing, which increases homelessness. Then there is the obvious effect on jobs, and the ability to get them and keep them. So this crisis has created an effective underclass of desperate people, many of whom will continue to reoffend just to get a roof over their heads.
this is why this is becoming a critical question for not just Hillary Clinton, but other politicians as well. Quite frankly, it also makes this country look like a cruel place around the world. When we put more people behind bars than the Chinese and Russians, it’s kind of hard to sell one self as a land of the free and the brave. Given that a lot of these policies came from fear, that is even more unhelpful.
How Do We Get Away from this Place?
Slowly we are seeing a change in these attitudes. This is happening very slowly in the courts where rulings are slowly condemning the system of mass incarceration as it has evolved. There is a definite pushback against the inhumane conditions we see in the prison systems. California saw that challenge in *Brown v Plata* the court admonished the state that there are some minimal standards of humanity that must be followed in the carceral state. These are stated clearly in the 8th Amendment.
This is how this case was described by Jonathan Simon in Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America
Brown v. Plata put the human dignity of prisoners back at the constitutional center of the Eighth Amendment. Reaffirming language used more tentatively in the past (in concurrences by Chief Justice Earl Warren and Associate Justice William Brennan), 1 the Brown majority condemned as “uncivilized” California’s prolonged tolerance of inhumane conditions.
The system chose to ignore human dignitiy. We have, and that led to a state of over crowding and bad medical and mental health care, if one existed at all. This is a situation that most citizens did not want to be bothered with. The attitude still is, “if you do the crime, do the time.” Regardless of what that time looks like. This attitude has led to human rights violations and to us willing to turn the other way and completely dehumanize those behind bars.
This attitude comes from fear, partly. The 1992 race to the White House was predicated on tough on crime policies to control what seemed to be a country on the grips of a crime wave with no end in sight. 1992 incidentally was the year that crime wave crested. Yet, the news stories of the day were of mass shootings and wars in the inner cities among “child predators” who needed to be controlled. This created fear, even panic, among many Americans.
But that race and the Crime Control Bill passed by Congress and signed by President Bill Clinton are just the end of a process. This started well before Bill Clinton even dreamed of the Presidency. This started with President Harry Truman, but truly with the war on drugs of the Richard Nixon Whitehouse. It was truly a renunciation, step by step, of enlightened policies that attempted to reduce recidivism, and give prisoners a reason for hope.
And now we come full circle. That conversation between Secretary Clinton and Activists. That moment when she was confronted with the reality of those policies, and it was not a comfortable moment. It was also the moment the rest of us are also getting to confront the consequences. Hands up, don’t shoot is not just a slogan. Emmett Till and Michael Brown did the same. They woke up the nation from a certain level of slumber. The question now is whether we as a society can deal with this. The question is whether this conversation will continue well beyond the election of the next President of the United States. Ultimately, the question will be whether we confront systemic racism, of which mass incarceration is the most obvious element.