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Prohibition, initially the successful product of an effective narrow coalition, was repealed largely because of its economic consequences: a combination of poorly-funded law enforcement and the senselessness of giving up on considerable tax revenue in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