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Apr. 2, 2009
Prisons, Politics, and Pragmatism
Jon B. Eisenberg
Email: jon@eisenbergappeals.com
Jon is a retired appellate attorney and the author of California Practice Guide: Civil Appeals and Writs.
During the common law era in England, all felonies were punishable by death. Prison was just a station on the way to the gallows. Penology certainly has changed - at least in the United States, and especially during the past 30 years. In 1975, America housed 241,000 prisoners; by 2005 that number had jumped to 1.5 million. In Prison State: The Challenge of Mass Incarceration, Purdue University sociologist Bert Useem and Rutgers University economist Anne Morrison Piehl explore this phenomenon's results, causes, and future implications. In Race, Incarceration, and American Values, Brown University economist Glenn C. Loury addresses the same phenomenon, though with a narrower focus. Prison State is an important book, if not easy reading. The authors nicely summarize their findings in a single sentence: "Although earlier expansions of prison capacity may have yielded solid crime reductions, the scale of imprisonment is now so great that the gains from further expansions are rapidly declining." They provide thorough statistical support for what they say, with plenty of tables, charts, and graphs. Some technical passages are bound to be daunting to the lay reader. Fortunately, each of the book's main chapters has a helpful concluding summary that synthesizes everything into more palatable prose. Let's start with the results of mass incarceration. Has it done America any good? The authors say yes: "In a phrase, more prison, less crime." Mass incarceration has reduced crime in America. But alas, "the effect is not large." In the statistician's language, "at the median rate of imprisonment over the[buildup] period, a 10% increase in the state prison population would lower crime rates by 0.58%." The authors seem to think that's good but not great. Has the prison buildup done any collateral damage? At its outset, critics warned it would bring a dramatic decrease in the incarceration rate for violent offenders, an increase in violence and chaos inside the prisons, and massive unemployment upon an eventual surge of newly released prisoners. But the statistics tell us that none of this has come to pass. Cause is more controversial. Why did we start throwing all those people into prison? Some scholars say the modern American "prison state" began as a by-product of wrenching social change, rooted in public fear and frustration rather than reason. Others say it was a purposeful and logical response to a genuine surge of violent crime in the late 1960s and early 1970s. And then there is an uglier explanation: racial politics. Useem and Piehl describe a school of thought that says the prison buildup is "an element in an insidious project of human domination," a "social mechanism" to "regulate" African-Americans, and that "the segregation of African-Americans into ghettos has been replaced by mass imprisonment." The authors, however, opt for the more benign explanation: The buildup was a reasonable response to rising crime rates. They reject the racial-politics explanation, asserting that its proponents rely on "faith" that "through sheer intelligence" they "got it right," whereas Useem and Piehl "would be more insistent on evidence." Here the authors display their own brand of faith - in statistics. But how does one measure the intangible of racism? That question doesn't puzzle Loury, whose Race, Incarceration, and American Values puts at least some of the blame for the prison boom squarely on race: "Race helps to explain why the United States is exceptional among the democratic industrial societies in the severity and extent of its punitive policy." According to Loury, "the punitive turn represented a political response to the success of the civil rights movement," whereby "opponents of the civil rights revolution sought to regain the upper hand by shifting to a new issue." Put succinctly, "Crime and punishment in America have a color." There are no tables, charts, or graphs in Loury's slim volume. We do indeed have to take what he says on faith. But there is spirited dialogue: Loury's essay is followed by a "forum" of pithy comments by professors Pamela S. Karlan of Stanford University, Loüc Wacquant of UC Berkeley, and Tommie Shelby of Harvard University. Karlan describes how "[f]elon disenfranchisement has decimated the potential black electorate." Wacquant sees class as the primary culprit, saying "inmates are first and foremost poor people" and "[r]ace comes second." Shelby urges a clean break with accommodationism "by openly demanding full justice for all citizens, and attacking racism and socioeconomic inequality directly." Their responses provide a nice complement to the formidable work of Useem and Piehl. The role of racial politics as a cause of mass incarceration might be debatable, but Loury rightly observes that the racial consequences are clear, offering his own statistics: "[A]t eight to one, the black-white ratio of incarceration rates dwarfs the two-to-one ratio of unemployment rates, the three-to-one ratio of non-marital childbearing, the two-to-one ratio of infant-mortality rates and [the] one-to-five ratio of net worth." And Loury makes a plea: "Given our history, producing a racially defined nether caste through the ostensibly neutral application of law should be profoundly offensive to our ethical sensibilities ... . Mass incarceration has now become a principal vehicle for the reproduction of racial hierarchy in our society. Our country's policymakers need to do something about it." So, what is to be done? Prison State tells us that mass incarceration has reached a point of dramatically diminishing returns. Useem and Piehl use the language of statistics: "The regression results showed not just declining marginal returns but acceleration in the declining marginal returns to scale." And in plain English: "Our own view is that we are past the point ... where prison expansion generates sufficient social benefits to justify the financial and social costs." In a word, enough. But how to stop? As Useem and Piehl put it, "Although social movements are strong in their mechanisms of mobilization, they have weak brakes." (Loury uses another vehicular metaphor to make the same point, observing "there was no political movement for getting America out of the mass-incarceration business. The throttle was stuck.") But the authors of Prison State allude to a way out: "[I]n many states, fiscal pressures will provide the impetus for pragmatic reforms that did not have any political traction during the most rapid years of the prison buildup." This observation resonates powerfully in California today as our Legislature and governor struggle to fend off the state's financial collapse. If, as Useem and Piehl insist, "[t]he prison buildup movement ... was a pragmatic effort to deal with an escalating crime rate rather than ... an irrational expression of a disturbed population or an effort to achieve an otherwise extraneously political agenda," then pragmatism may dictate its future: Mass incarceration will subside because we can no longer afford it. Jon B. Eisenberg is an appellate lawyer in Oakland and principal coauthor of California Practice Guide: Civil Appeals and Writs (The Rutter Group, 2008).
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