The Persistence of Mass Incarceration

by James Kilgore

Over the last four years, “we have turned the corner” has become the dominant narrative on mass incarceration. The basis for this optimism appeared sound. From 2009-2012, total prisoner numbers were down nationally for the first time since the late 1970s, with the figures for Blacks behind bars also declining. Moreover, people in surprising places were making conciliatory noises. Attorney General Eric Holder grabbed some new handles – champion of employment access for people with felony convictions and promoter of lighter sentences for those with drug offenses. Some New Jim Crowdiscourse even crept into his rhetoric. The New York Times consistently peppered their op-ed pages with condemnation of the bloated U.S. carceral state, proclaiming in a May 24, 2014 piece that “The American experiment in mass incarceration has been a moral, legal, social and economic disaster. It cannot end soon enough.”

To top it off, the right wing joined the “softer on crime” fray. Grover Norquist and Newt Gingrich sparked a conservative anti-imprisonment drift through their Right on Crime organization which decried the excessive use and cost of punishment. Then Rand Paul followed suit, standing shoulder to shoulder with Cory Booker to back a Redeem Act which would ease criminal penalties for juveniles. In the background a steady stream of popular advocacy combined with legislative and financial re-thinks appeared to be making major inroads into criminal justice orthodoxy. But in September 2014, carceral optimism gave way to a much harsher reality. The Bureau of Justice Statistics’ (BJS) annual report on national prison populations revealed that incarceration numbers were up for the first time since 2009. The rise was a mere 0.3%, but even this slight uptick may have burst the bubble of the new paradigm.

In fact, this miniscule upswing in the prison population likely highlights much deeper contradictions that were there all along. Fourteen states hit new record high prison populations in 2013, while 31 states recorded an increase in prison admissions. To make matters worse, several icons of decarceration recorded population upturns. Texas, with the largest state prison system in the country, has been perhaps the most widely-marketed example of decarceration, dropping its prison population by 3.5% from 2011 to 2012 alone. Yet for 2013 the Lone Star State led the reverse trend, with its count rising from 157,900 to 160,295 prisoners. Similarly, California, the second biggest state system and also a leading driver of population decrease in previous years, showed a slight expansion, from 134,211 to 135,981.

For Judy Greene, director of the anti-mass incarceration research group Justice Strategies, the figures for Texas and California reflected that the changes in previous years had been “narrowly felt in a handful of states.” She pointed out that between 2010 and 2012, more than 90% of the prison population reductions took place in three states: California, New York and Texas. With the failure of California and Texas to continue on the path toward decarceration, the rest of the country essentially continued with carceral business as usual. Predictably, the overall racial disproportionality also remained profound, with Black males of all ages still six times more likely to be incarcerated than their white counterparts and two-and-a-half times more likely to be locked up than Latinos. The racial disparity in incarceration rates for Black women remained less dramatic, registering at about twice that of whites.

Some Good News

Sandwiched between the news of statistical reversal rested a few positive trends. For the first time in recent years, the total population in the federal prison system declined, falling from 217,815 to 215,866. But the feds are a small slice of the pie, constituting about 10% of all those behind bars in the U.S.

In addition, a few states with consistent records of reducing prison populations continued on track. Star decarceration performers like New York and New Jersey, which have seriously reduced admissions through changes to sentencing and drug policy as well as easing parole conditions, both posted their seventh consecutive year of prison population decline.

Perhaps the other positive was in the realm of immigration. While not covered in the Bureau of Justice Statistics report, locking up immigrants became a key component of mass incarceration in the 2000s. In that regard, deportations did decline in 2013 after hitting a record level of over 400,000 in 2012. Moreover, felony convictions for immigration offenses also fell slightly, although the average daily population in detention centers was up from 32,194 to 33,811. Still, the administration’s failure to implement comprehensive immigration reform, coupled with the 50,000-plus unaccompanied children on the border, hardly makes this issue a source of faith in the process and pace of change.

Concerns About the Change Process

Ultimately, the BJS report along with events like those in Ferguson, Missouri reinforced the concerns of many anti-mass incarceration campaigners that current changes were not digging deep enough to yield long-lasting results. Peter Wagner, director of the Massachusetts-based Prison Policy Initiative, highlighted the need for states “to decide whether the people they are sending to prison really need to be there” and the corresponding issue of deciding which people “currently in prison can go home.” Instead, he lamented, states are continuing to hike “the number of people they send to prison for new offenses and violations of parole and decreasing the number of people they let out.”

Author and activist Ruthie Gilmore, who currently is associate director of the Center for Place, Culture and Politics at CUNY, argued that the BJS statistics have exposed the shortcomings of “opportunists” who have “blown up real solidarity.” She maintains that moderate reforms have promoted “the delusion that it’s possible to cherry pick some people from the prison machine” rather than undertake a broad restructuring of the communities which have been devastated by mass incarceration. Mariame Kaba, head of Project NIA, which practices transformative justice as a foil to youth incarceration in Chicago communities, concurred with Gilmore, stressing that “the rationale for and logic of punishment is unchanged. The targets of our punishment mindset also remain overwhelmingly black and poor.”

Kaba points out that the discourse has altered but policy seems to have lagged behind. “Talk and actions are not the same thing,” she said, “there is a need to move beyond awareness and take steps to address mass incarceration in real ways.”

What are the “Real Ways”?

The question is: what are these “real ways”? Mainstream reformers have pushed for a number of changes: laws to reform harsh sentencing policies, especially for drug offenses. Reentry has been another area of emphasis, with the feds alone having put over $100 million into Second Chance Act initiatives to smooth the return for those coming home from prison. Relaxing drug laws, including the legalization of marijuana in Colorado and Washington, may have some impact, especially in the federal prison system where more than 50% of the population has drug offenses. But in state institutions, which hold over 85% of the nation’s prison population, only 16% are locked up for drug convictions while more than 50% have cases involving violence. To date, few reformers want to consider releasing or easing up on sentencing for those convicted of violent crimes. Even many reentry initiatives avoid people with convictions for violent crimes.

Greene argues that it still boils down to serious sentencing reform which would go beyond merely those with drug convictions. The need, she argues, is “both to sharply reduce the number of people we send to prison and to shorten the inordinate amount of time those sent to prison have to serve before they are released.” Gilmore extends the sphere of change to focus on “the foundations on which mass incarceration has been built – structural racism and structural poverty and the capitalism that is devouring the planet.”

Convergence of Agendas?

One certain outcome of this statisticalshift will be heightened debate among those involved in efforts to roll back the U.S. prison system. As Gilmore put it, “the fact that prison numbers rose in 2013 is a testament to the deep fragmentation of social justice work in the USA.” While a year ago a so-called “convergence of agendas” looked a likely prospect, the Bureau of Justice Statistics’ report in the wake of high-profile police violence and failed immigration policies foretells an intensified struggle between those who argue that the system is broken but can be fixed and those who, like Mariame Kaba, contend that “reform is not enough, that we need much more urgent and radical (as in getting to the root of the problem) solutions. This is the only way that we will successfully address mass criminalization.”

James Kilgore is a faculty member at the University of Illinois and an activist with the Champaign-Urbana Citizens for Peace and Justice. He is the author of three novels, all of which were drafted during his six-and-a-half years of incarceration. His forthcoming book, to be published by The New Press in September 2015, is titled Understanding Mass Incarceration: A People’s Guide to the Key Civil Rights Struggle of Our Time.

This article was originally published by Counterpunch (www.counterpunch.org) on September 23, 2014; it is reprinted with permission of the author.

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