FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN:
HOW BIPARTISAN CRIMINAL JUSTICE REFORM MAY LEAD TO A
FOR-PROFIT NIGHTMARE
CARL TAKEI*
Since 2010, advocates on the right and left have increasingly allied to denounce mass
incarceration and propose serious reductions in the use of prisons. This alliance serves useful
shared purposes, but each side comes to it with distinct and in many ways incompatible long-term
interests. If progressive advocates rely solely on this alliance without aggressively building our
own vision of what decarceration should look like, the unintended consequences could be serious.
This Article describes the current mass incarceration paradigm and current left-right reform
efforts. It then outlines how, if progressives do not set clear goals for what should replace mass
incarceration, these bipartisan efforts risk creating a nightmare scenario of mass control,
surveillance, and monitoring of Black and Brown communities. Finally, the Article explains why
this mass control paradigm would lay the groundwork for a heavily-privatized, extraordinarily
difficult-to-end resurgence of mass incarceration in subsequent decades.
INTRODUCTION ......................................................................................................................... 126
I. MASS INCARCERATION AND THE CARCERAL STATE ................................................. 128
A. Birth of a Carceral Nation .......................................................................................... 128
B. Why Did Mass Incarceration Happen? ...................................................................... 130
C. The Modern Carceral State ........................................................................................ 132
1. Mass Incarceration in Prisons and Jails ............................................................... 132
2. Community Corrections Facilities and Supervision ............................................ 134
a. Community Corrections Facilities ............................................................... 134
b. Supervision ................................................................................................... 136
c. How Community Corrections and Supervision Feed Back into Mass
Incarceration ................................................................................................. 138
3. Criminal Justice Debt as a Further Path into Incarceration ................................. 139
4. Immigration Detention ........................................................................................ 140
5. The Role of Private Prisons in the Carceral State ............................................... 142
D. The “User-Funded” Criminal Justice System ............................................................ 153
II. REFORM EFFORTS ................................................................................................................ 155
A. Voices in the Wilderness ........................................................................................... 155
B. The Critique from the Left ......................................................................................... 157
C. The Right Speaks Out ................................................................................................ 161
* The author is a Staff Attorney at the National Prison Project of the American Civil Liberties Union (“ACLU”), focusing
on the private prison industry, immigration detention conditions, and local jails. All views expressed in this article are my
own and should not be attributed to the ACLU. I am indebted to Ruthie Epstein, David Fathi, Josh Loh, and others for
their helpful comments and suggestions, and to my father for chasing down answers to obscure research questions. I
gratefully acknowledge the much-needed research assistance work performed by Daniel Hatoum, Josh Mitman, Taylor
Pender, and in particular Christine Anderson.

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

126

[Vol. 20.2

1. Right on Crime, the Heritage Foundation, the Cato Institute, and the Koch
Brothers ............................................................................................................... 161
D. The New Bipartisanship ............................................................................................. 163
1. Early Progressive Efforts to Ally with the Right................................................. 163
2. More Recent Reform Efforts and the Limits of the Left-Right Alliance ............ 166
III. THE NIGHTMARE FUTURE OF MASS CONTROL AND A NEW PARADIGM OF
MASS INCARCERATION ............................................................................................... 170
A. Conservative Decarceration ....................................................................................... 171
B. Private Interests Move In, and the Net Widens ......................................................... 174
C. Mass Control Supplants Mass Incarceration.............................................................. 176
D. Prisons Expand Once Again—But Now with an Entrenched Privatized
Apparatus of Mass Control, Surveillance, and Monitoring ....................................... 178
IV. CONCLUSION........................................................................................................................ 182
INTRODUCTION
It is now widely acknowledged that the United States incarcerates far too many people.
Though the country has less than 5% of the world’s population, it houses nearly 25% of the
world’s prisoners.1 And despite fierce partisanship on most issues, major actors across the
political spectrum agree that something needs to be done about this mass incarceration epidemic.
Every major civil rights organization involved in criminal justice issues (including the
ACLU, the NAACP, the NAACP Legal Defense Fund, The Leadership Conference for Civil and
Human Rights, the Lawyers’ Committee for Civil Rights Under Law, and others) and major
progressive-aligned think tanks like the Sentencing Project, the Center for American Progress and
the Brennan Center for Justice have called for an end to mass incarceration.
On the right, think tanks like the Heritage Foundation, the American Conservative Union
and conservative thought leaders like Newt Gingrich, Grover Norquist, and Pat Nolan have all
called for criminal justice reform. Prominent former elected officials like Rick Perry, Jeb Bush,
and Ken Cuccinelli have joined in this call. Even the Koch brothers—perhaps the most infamous
financial supporters of ultraconservative causes—are now publicly supporting and funding efforts
at criminal justice reform.
In the early stages of the 2016 presidential race, both the Oval Office and its aspirants—
from both parties—expressed support for decarceration that would have been unimaginable just a
few years ago. In a landmark 2015 speech, President Barack Obama declared, “Mass
incarceration makes our country worse off, and we need to do something about it,” and conducted
the first-ever visit by a sitting president to a federal prison.2 Early in the primaries for the 2016

1

Sari Horwitz, Holder seeks to avert mandatory minimum sentences for some low-level drug offenders,
WASH. POST, (Aug. 12, 2013), https://www.washingtonpost.com/world/national-security/holder-seeks-to-avertmandatory-minimum-sentences-for-some-low-level-drug-offenders/2013/08/11/343850c2-012c-11e3-96a8d3b921c0924a_story.html [https://perma.cc/2DWY-S72M].
2
White House, Remarks by the President at the NAACP Conference (July 14, 2015),
https://www.whitehouse.gov/the-press-office/2015/07/14/remarks-president-naacp-conference
[https://perma.cc/CH5PANSK]; Peter Baker, Obama, in Oklahoma, Takes Reform Message to the Prison Cell Block, N.Y. TIMES (July 16, 2015),
http://nyti.ms/1K8ZqX0 [https://perma.cc/V93M-NNN6].

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

127

presidential race, both Democratic and Republican candidates issued similar calls for criminal
justice reforms.3
The left and the right, however, each come to this alliance with distinct and, ultimately,
incompatible interests. Recently, the progressive advocacy community has begun to seriously
grapple with the limits of the left-right alliance. This includes differences over whether and how
to address policing practices and racial disparities in prosecutions, suspicions that conservatives
are using decarceration as a Trojan Horse to protect white-collar criminals, and disagreement
about whether decarceration should be accompanied by increased societal investment in housing,
employment opportunities, health care, and other social services.4
Separately, progressive advocates are also examining the negative implications of the
general trend toward greater criminal justice privatization.5 However, there has so far been little
effort to connect the dots between the two.6 Unifying these two lines of thinking illustrates why
3

Peter Baker, 2016 Candidates Are United in Call to Alter Justice System, N.Y. TIMES (Apr. 27, 2015),
http://nyti.ms/1DERGad [https://perma.cc/U42S-WEBC]. Notably, this did not include Donald Trump. Id. Trump said
relatively little about criminal justice reform on the campaign trail, but his few statements on the issue were negative. See
Eric Levitz, Donald Trump Warns NRA That ‘Heartless Hillary’ Will Take Their Guns, Free All Violent Criminals, N.Y.
MAG. (May 20, 2016), http://nymag.com/daily/intelligencer/2016/05/trump-to-nra-clinton-will-free-all-criminals.html
[https://perma.cc/8XW9-ND6F].
4
See discussion infra Section II.D.2. See also David Jaros, Flawed Coalitions and the Politics of Crime, 99
IOWA L. REV. 1473, 1507 (2014) (arguing that related efforts to establish criminal “problem-solving courts” are “eerily
reminiscent” of earlier bipartisan coalition to establish federal sentencing guidelines, and that each side “must resolve . . .
whether their objectives are, in fact, incompatible, and whether cognitive bias may be distorting their expectations of what
problem-solving courts will ultimately achieve”).
5
See, e.g., HUMAN RIGHTS WATCH, PROFITING FROM PROBATION: AMERICA’S “OFFENDER-FUNDED”
PROBATION INDUSTRY (2014) [hereinafter PROFITING FROM PROBATION] (describing growth of privatized probation in
Alabama, Georgia, and Mississippi); Complaint, Reynolds v. Judicial Correction Services, Inc., No. 2:15-cv-00161-MHTCSC (M.D. Ala. Mar.12, 2015) (lawsuit filed by SPLC alleging that private probation company is operating as a
racketeering enterprise extorting money from poor defendants); Complaint, Thompson v. DeKalb County, No. (N.D. Ga.
Jan. 29, 2015) (lawsuit filed by ACLU alleging that county officials and private probation company are unlawfully
denying probationers the right to counsel and to an indigency hearing before sentencing them to jail); Brave New Films,
To Prison for Poverty, Brave New Films, http://www.bravenewfilms.org/toprisonforpoverty [https://
perma.cc/6U2R-V9AS]; Brave New Films, To Prison for Poverty Part 1, YOUTUBE (June 4, 2014),
https://www.youtube.com/watch?v=C_cIWv9yc3A [https://perma.cc/YQ8G-F45H].
6
Caroline Isaacs of the American Friends Service Committee (AFSC) has done valuable work by
describing how private prison companies are expanding from merely warehousing people into a “treatment industrial
complex” that allows them to profit from providing treatment-oriented programs and services. She argues that the profit
motive will lead to a “net-widening” effect that will increase the number of people ordered to remain under supervision by
these companies. However, Isaacs does not examine how the profit motive would shift as mass supervision becomes
established and mass incarceration declines—a key element of my Article. See CAROLINE ISAACS, TREATMENT
INDUSTRIAL COMPLEX: HOW FOR-PROFIT CORPORATIONS ARE UNDERMINING EFFORTS TO TREAT AND REHABILITATE
PRISONERS FOR CORPORATE GAIN, AFSC ARIZONA, GRASSROOTS LEADERSHIP & SOUTHERN CTR. FOR HUMAN RIGHTS
(2014), https://www.afsc.org/sites/afsc.civicactions.net/files/documents/TIC_report_online.pdf [https://perma.cc/UV2KJNRT]; CAROLINE ISAACS, COMMUNITY CAGES: PROFITIZING COMMUNITY CORRECTIONS AND ALTERNATIVES TO
INCARCERATION, AFSC ARIZONA (2016), https://afscarizona.files.wordpress.com/2016/08/communitycages.pdf
[https://perma.cc/5BCJ-7QMA]. David Dagan and Steven Teles cover similar ground by discussing the differing positions
of liberal and conservative decarceration advocates, including the general support of conservatives for criminal justice
privatization. However, Dagan and Teles conclude that both liberal and conservative reformers will need to accept, in
place of mass incarceration, a supervisory carceral state characterized by paternalistic government action. See David
Dagan & Steven M. Teles, Locked In? Conservative Reform and the Future of Mass Incarceration, 651 ANNALS AM.
ACAD. POL. & SOC. SCI. 266, 271 (2014). Hadar Aviram has explained how the privatization of services within public

128

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

[Vol. 20.2

relying solely on the bipartisan alliance to decide what comes after decarceration is a dangerous
choice. If the United States follows a fiscally conservative plan for decarceration that relies on
increased privatization, the unintended consequences could be serious. Accordingly, although
progressive advocates should continue working to find common ground with conservatives, we
should be working equally as hard to promote our distinct vision of what kind of societal
structures (including both the criminal justice system and other forms of public spending) should
replace mass incarceration.
Parts I and II of this Article provide context by describing the current mass incarceration
paradigm, including the privatization of criminal justice functions and the “user-funded” criminal
justice system, as well as describing the current left-right reform efforts. Part III argues that if
progressives do not set clear goals for what should replace mass incarceration, these left-right
reform efforts risk creating a nightmare scenario of mass control, surveillance, and monitoring of
Black and Brown communities. Finally, it argues that this mass control paradigm would lay the
groundwork for a heavily-privatized, extraordinarily difficult-to-end resurgence of mass
incarceration in subsequent decades.
I. MASS INCARCERATION AND THE CARCERAL STATE
In this article, I use Marie Gottschalk’s term “carceral state” to refer to the full range of
penal punishments and controls, from secure confinement in prisons and jails to various forms of
supervision and governmental control.7 I reserve the narrower term “mass incarceration” for the
use of secure confinement. Although mass incarceration is the most visible and inhumane
component of the carceral state, it is part of a larger system, and—for the reasons explained in
Part III below—criminal justice reform efforts that focus only on the mass incarceration
component of the carceral state are unlikely to actually end either the carceral state or mass
incarceration in the long term. This section provides context for Parts II and III by describing the
origins and contours of our present carceral state. It begins with the origins of mass incarceration,
describes the major elements of the carceral state, and then describes the related trends of
privatization and the “user-funded” criminal justice system.
A.
 Birth of a Carceral Nation
From 1925 (when the Bureau of Justice Statistics first began collecting nationwide data)
to 1972, the U.S. per-capita incarceration rate remained relatively stable, with prison and jail
populations rising in tandem with the overall population.8 But starting in 1972, the United States

prisons, as well as the neoliberal economy in which both operate, have the effect of narrowing the distinction between
these prisons and their privately-operated counterparts. However, Aviram does not examine how incarceration interacts
with supervision, and her policy prescription is merely to change the compensation model for prisons. See Hadar Aviram,
Are Private Prisons to Blame for Mass Incarceration and its Evils? Prison Conditions, Neoliberalism, and Public Choice,
42 FORDHAM URBAN L.J. 411, 434-38, 448-49 (2014). Additionally, Sharon Dolovich has examined private prisons
(though not other forms of criminal justice privatization) through a liberal legitimacy framework. See Sharon Dolovich,
State Punishment and Private Prisons, 55 DUKE L.J. 437 (2005).
7
See MARIE GOTTSCHALK, CAUGHT: THE PRISON STATE AND THE LOCKDOWN OF AMERICAN POLITICS, 12 (2015).
8
JEREMY TRAVIS, BRUCE WESTERN & STEVE REDBURN, EDS., NAT’L RESEARCH COUNCIL OF THE NAT’L
ACADEMIES OF SCIENCES, THE GROWTH OF INCARCERATION IN THE UNITED STATES: EXPLORING CAUSES AND
CONSEQUENCES 34 (2014), http://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration.pdf [https://perma.cc/S5N2-

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

129

embarked on an historically unprecedented prison boom that grew unabated for nearly three
decades. By the time the U.S. incarceration rate stabilized in 2009, the United States was
incarcerating people at more than four times its historical incarceration rate and seven times the
rate of Western European democracies.9 In absolute numbers, this meant that the United States
maintained a total of 2.29 million people in custody in 2009—seven times more people than the
United States incarcerated in 1972.10 As President Barack Obama stated in a July 2015 speech,
“For what we spend to keep everyone locked up for one year, we could eliminate tuition at every
single one of our public colleges and universities.”11
Since 2009, there has been some progress in reducing the incarcerated population. By
2015, the combined prison and jail population had fallen about 5% from its 2009 peak.12
However, contrary to popular belief, this modest reduction in the national incarceration rate is not
the result of a uniform, nationwide decarceration trend. Instead, it is attributable to specific policy
changes that reduced prison populations in a handful of states—primarily California, New York,
and New Jersey.13 Meanwhile, the national jail population has changed relatively little since
2011.14 Additionally, the immigration detention population—though a relatively small part of the
overall incarcerated population—consistently exceeded 30,000 from 2007 to 2014.15 In other
words, claims that mass incarceration is clearly or inevitably on its way out have been greatly
exaggerated.16
This incarceration boom coincided with a similarly stunning increase in the number of
people under criminal justice supervision, such as probation and parole. From 1976 to 2010, the
probation population grew from 923,000 to 4.06 million.17 Similarly, from 1975 (the earliest date
for which data are available) to 2010, the parole population grew from 143,000 to 841,000.18

PRRH] [hereinafter NAS REPORT].
9
Id. at 34-37. See also TODD D. MINTON AND ZHEN ZENG, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE
STATISTICS, JAIL INMATES IN 2015, NCJ 250394 2, tbl. 1 (June 2015) [hereinafter JAIL INMATES IN 2015] (jail population
peaked in 2008, at more than three-quarters of a million people); E. ANN CARSON, U.S. DEP’T OF JUSTICE, BUREAU OF
JUSTICE STATISTICS, PRISONERS IN 2015, NCJ 250229 2, tbl. 1 (Dec. 2016) [hereinafter PRISONERS IN 2015] (prison
population peaked in 2009, at more than 1.6 million people).
10
NAS REPORT, supra note 8, at 35-37.
11
Remarks by the President at the NAACP Conference, The White House Briefing Room (July 14, 2015
4:54
PM),
https://www.whitehouse.gov/the-press-office/2015/07/14/remarks-president-naacp-conference
[https://perma.cc/8GK2-KHV8].
12
See PRISONERS IN 2015, supra note 9, at 2, tbl. 1 (prison population); JAIL INMATES IN 2015, supra note
9, at 2, tbl. 1 (jail population). The combined prison and jail population fell from 2,382,887 in 2009 to 2,254,992 in 2015.
13
PETER WAGNER, TRACKING STATE PRISON GROWTH IN 50 STATES, PRISON POLICY INITIATIVE (May 28,
2014), http://www.prisonpolicy.org/reports/overtime.html [https://perma.cc/PBR3-G2US].
14
See JAIL INMATES IN 2015, supra note 9, at 2, tbl. 1.
15
ICE, WEEKLY DEPARTURES AND DETENTION REPORT, 9 (June 20, 2016). The population briefly
dropped below 30,000 in 2015, but rose significantly above 30,000 in 2016. Id.; CARL TAKEI, MICHAEL TAN & JOANNE
LIN, ACLU, SHUTTING DOWN THE PROFITEERS 8 (Sept. 30, 2016), https://www.aclu.org/sites/default/files/field_
document/white_paper_09-30-16_released_for_web-v1-opt.pdf [https://perma.cc/K28R-KGTC] (“In recent months, the
average daily detention population has grown to record levels, hitting nearly 37,000 people in June 2016”).
16
See, e.g., URBAN INSTITUTE, THE PRISON POPULATION FORECASTER // STATE PRISON POPULATION
(Aug. 2015) http://webapp.urban.org/reducing-mass-incarceration/ [https://perma.cc/K5T2-JBKL] (“If the 15 states in our
forecaster make no policy changes and current trends hold constant, the prison population in those states is forecasted to
decline only 2 percent by the end of 2021”).
17
NAS REPORT, supra note 8, at 40.
18
Id. at 41.

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

130

[Vol. 20.2

Thus, by 2010, nearly 5 million people were on probation and parole.19 Because violations of
terms of supervision often return people to prison and jail, the growth in probation and parole
supervision helped further feed the incarceration boom. As the National Academy of Sciences
reported in its comprehensive 2014 study of mass incarceration, parole violations accounted for
an increasing share of state prison admissions as mass incarceration became more entrenched—
rising from 20% in 1980 to 30% in 1991 and then between 30 and 40% in 2010.20
B.
 Why Did Mass Incarceration Happen?
As mass incarceration continued to metastasize from the 1970s to the 2000s, many
people assumed that rising rates of incarceration were a result of increases in crime, and that if
crime rates fell, so would prison populations.21 However, that turned out not to be the case. While
both crime and incarceration rates did rise significantly from the early 1960s to the 1980s, violent
crime fell in the 1990s even as the incarceration rate continued to rise, and crime rates stabilized
at a relatively low level in the 2000s as incarceration rates hit their peak.22 For this reason, the
National Academy of Sciences flatly stated in 2014 that “the very high rates of incarceration that
emerged over the past decades cannot simply be ascribed to a higher level of crime today
compared with the early 1970s, when the prison boom began.”23
So, what actually caused mass incarceration? The consensus explanation points to
changes in law enforcement priorities and sentencing policy that resulted in state and federal
authorities putting more people in prison for more reasons and for longer periods of time than at
any prior time in U.S. history.24 Throughout this period, rising incarceration rates were unrelated
to trends in crime, and social science evidence had “strikingly little influence on deliberations
about sentencing policy.”25 Instead, these changes in policy and practice were largely a response
to racist fear mongering (exemplified by the Willie Horton ad26 in the 1980s and overblown fears
of juvenile “superpredators” in the 1990s stoked by John DiIulio27) and the perceived urgency of
19

Id. at 42.
Id. at 41.
21
See, e.g., James Dao, Pataki Proposes Legislative Plan to Curb Violent Crime by Youths, N.Y. TIMES
(Dec. 10, 1995) (discussing New York Governor Pataki’s plan to fund additional prison construction in response to youth
crime); Josh Barbanel, Koch Recommends Stiffer Penalties and More Prisons, N.Y. TIMES (Feb. 15, 1985) (reporting New
York Mayor Koch’s statement that if forced to choose between improving city schools and expanding prisons, he would
expand prisons because only stiff sentences can deter crime).
22
NAS REPORT, supra note 8, at 46-47.
23
Id. at 47.
24
Id. at 48-49 (drug law enforcement efforts); 50-51 (increased likelihood that arrest would lead to prison
sentences); 68-69 (“Increased admission rates are closely associated with increased incarceration for drug crimes and
explain much of the growth of incarceration in the 1980s, while increased time served is closely associated with
incarceration for violent crimes and explains much of the growth since the 1980s. These trends are, in turn, attributable
largely to changes in sentencing policy over the period.”) 70-78 (describing first phase of shift from indeterminate to
determinate sentencing, aimed at increasing consistency and driven by notions of fairness), 78-85 (describing second
phase of shift, aimed at increasing certainty and severity of sentences).
25
Id. at 69 (concluding lack of relationship between crime and incarceration trends), 89 (discussing lack of
influence of social science evidence).
26
See Beth Schwartzapfel & Bill Keller, Willie Horton Revisited, THE MARSHALL PROJECT (May 13, 2015,
6:37 PM), https://www.themarshallproject.org/2015/05/13/willie-horton-revisited [https://perma.cc/Z8KT-5PCJ].
27
See John J. DiIulio, Jr., My Black Crime Problem, and Ours, CITY JOURNAL (Spring 1996). See also
Clyde Haberman, When Youth Violence Spurred ‘Superpredator’ Fear, N.Y. TIMES: RETRO REPORT (April 6, 2014),
20

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

131

the War on Drugs. At both state and federal levels, legislators responded by approving
increasingly harsh sentencing laws, including mandatory minimum sentences, “Truth in
Sentencing,” Three Strikes laws, and stiff sentencing guidelines. The same dynamics led
legislators to ramp up the size and aggressiveness of the police presence in cities—particularly in
Black and Brown neighborhoods.28 Both liberals and conservatives supported many of these
changes—including the shift from indeterminate sentencing to the use of sentencing guidelines,
which liberals incorrectly believed would reduce racial disparities and biases in sentencing.29
One highly influential theoretical framework for explaining and critiquing mass
incarceration is Michelle Alexander’s 2010 book, The New Jim Crow, positing that the War on
Drugs converted the criminal justice system into a new form of racialized social control.30 Under
this framework, the carceral state functions as a “racial caste system . . . . a set of structural
arrangements that locks a racially distinct group into a subordinate political, social, and economic
position, effectively creating a second-class citizenship.”31 In Alexander’s framework, the
criminal justice system “is no longer concerned primarily with the prevention and punishment of
crime, but rather with the management and control of the dispossessed.”32

http://www.nytimes.com/2014/04/07/us/politics/killing-on-bus-recalls-superpredator-threat-of-90s.html
[https://perma.cc/V7FH-EHGD].
28
See, e.g., NAS REPORT, supra note 8, at 50, 61; Anne R. Traum, Mass Incarceration at Sentencing, 64
HASTINGS L.J. 423, 428-430 (2013) (suggesting that the war on drugs vastly expanded prosecutions and harsh sentencing,
which led to mass incarceration); Heather Schoenfeld, The War on Drugs, The Politics of Crime, and Mass Incarceration
in the United States, 15 J. GENDER RACE & JUST. 315, 327-44 (2012) (using Florida as a case study of how state policy
changes led to mass incarceration); see generally David Cole, Turning the Corner on Mass Incarceration?, 9 OHIO ST. J.
CRIM. L. 27 (2011).
There is a near-universal consensus that these changes in sentencing policy and policing practices are the main causes of
mass incarceration. However, John Pfaff recently received public attention by pushing a contrarian explanation that
emphasizes prosecutorial aggressiveness rather than sentencing laws (oddly, without seriously exploring how sentencing
laws might have contributed to this prosecutorial aggressiveness). See John F. Pfaff, The War on Drugs and Prison
Growth: Limited Importance, Limited Legislative Options, 52 HARVARD J. ON LEGIS. 173, 175-76 (2015); David Brooks,
Opinion, The Prison Problem, N.Y. TIMES (Sept. 29, 2015), http://www.nytimes.com/2015/09/29/opinion/david-brooksthe-prison-problem.html [https://perma.cc/7828-MAV7] (praising Pfaff). Pfaff argues that the War on Drugs had only a
limited impact on prison growth because sentences for drug offenses account for only one-fifth of the growth in prison
populations since 1980, and claims that the chief cause of mass incarceration is a mysterious, unexplained increase in the
aggressiveness of prosecutors. Pfaff, supra at 182, 198-99. However, Pfaff inappropriately ignores the ripple effects that
the War on Drugs had on the entire criminal justice system, including harsher non-drug sentencing statutes and greater
powers for police. These changes massively increased the power and leverage of prosecutors in both drug and non-drug
cases, which is why Doug Berman has characterized the Pfaff/Brooks account as “too simplistic and incomplete.” See
Doug Berman, Is the “don’t blame the drug war for mass incarceration” counter-narrative problematically incomplete?,
SENTENCING LAW AND POLICY (Sept. 29, 2015), http://sentencing.typepad.com/sentencing_law_and_policy/2015/09/isthe-dont-blame-the-drug-war-for-mass-incarceration-counter-narrative-problematically-incomplete.html
[https://perma.cc/694Z-2DQW].
29
NAOMI MURAKAWA, THE FIRST CIVIL RIGHT: HOW LIBERALS BUILT PRISON AMERICA (2014) (arguing
that liberal law-and-order ideologies of this kind entrenched notions of Black criminality, fueled carceral state-building,
and fortified the legitimacy of the carceral state); Jaros, supra note 4, at 1490-97 (arguing that cognitive biases may have
lulled liberals into false solidarity with conservatives).
30
See generally MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF
COLORBLINDNESS (2010).
31
Id. at 179-80.
32
Id. at 183.

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

132

[Vol. 20.2

Despite its explanatory power, however, Alexander’s framework is a flawed roadmap for
reform. For example, James Forman argues that Alexander’s focus on the War on Drugs diverts
attention from the role that excessive punishment for violent offenses plays in mass incarceration,
that the use of the Jim Crow analogy obscures class distinctions among Blacks, and that the
analogy may not help to mobilize other racial groups that have also been harmed by mass
incarceration.33 Additionally, Marie Gottschalk argues that “[t]ethering a penal reform agenda too
tightly to the goal of reducing racial disparities in incarceration could have a perverse result—
smaller disparities but not necessarily more racial or social justice.”34 Gottschalk points out that
reducing the number of people in prison for low-level offenses can paradoxically lead to greater,
not lesser, racial disparities in their prison populations. Minnesota, for example, has both an
incarceration rate well below the national average and an 11:1 Black-white imprisonment ratio—
significantly worse than the rest of the country.35 Thus, Gottschalk warns that the New Jim Crow
framework fails to address how complex it will be to dismantle the carceral state in a way that
serves the ends of racial justice: focusing exclusively on shrinking the carceral state may actually
worsen its racial disparities, and focusing exclusively on its racial disparities may not reduce the
size or abusiveness of the carceral state.36
C.
 The Modern Carceral State
Mass incarceration is just one component of the modern carceral state, which is
composed not only of federal and state prisons and local jails, but also federal and state
community corrections facilities, federal and state forms of supervision like probation and parole,
and the federal immigration detention system.
1.
 Mass Incarceration in Prisons and Jails
In 2015 (the most recent figures available), there were about 1.53 million people in state
and federal prisons and 728,000 people in local jails throughout the United States.37
Prisons hold people who have already been convicted of a crime and who are serving
longer sentences (typically, exceeding one year). Most people in prison (about 1.33 million) are in
the custody of state governments for violations of state laws, while a significant minority
(196,000 as of 2015) are in federal custody for violations of federal law.38 Prisons are the primary
focus of most efforts at decarceration, both because the absolute number of people in prison are
larger than the number of people in jail and because prisons are operated by the state and federal
governments rather than local jurisdictions—which makes it easier to reduce prison populations
through a combination of changes to state and federal criminal statutes and changes to the policies
of state executive agencies and the federal government.
In contrast, the 728,000 people incarcerated in local jails are scattered across some 2,850
jurisdictions nationwide.39 These jurisdictions are typically city or county entities, run by locally33

James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87 N.Y.U. L.
REV. 21, 45-49, 64 (2012).
34
GOTTSCHALK, supra note 7, at 133.
35
Id. at 132-34.
36
Id. at 133.
37
PRISONERS IN 2015, supra note 9, at 2, tbl. 1; JAIL INMATES IN 2015, supra note 9, at 2, tbl. 1.
38
PRISONERS IN 2015, supra note 9, at 5, tbl. 2.
39
JAIL INMATES IN 2015, supra note 9, at 10.

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

133

elected officials—most often sheriffs. Nationwide, more than 60% of the people in jail are being
detained pretrial and have not actually been convicted of a crime; the remainder are typically
serving sentences too short to justify transfer to a prison—usually one year or less.40 This
represents a mass sorting of rich defendants from poor defendants, as the vast majority of those
detained pretrial are held simply because they cannot afford to pay bail.41 Those who cannot make
bail feel increased pressure to plead guilty because each successive day in jail means lost liberty,
lost income, and separation from family.42 Continued pretrial detention may also mean denial of
necessary medical care or even death.43
Pretrial detention has also been linked to worse case outcomes. The New York City
Criminal Justice Agency found that in nonfelony cases, defendants who were released pending
disposition had a 50 percent conviction rate, but detained defendants had a 92 percent conviction
rate.44 Similarly, a recent study funded by the Arnold Foundation found that defendants held
during their entire pretrial period were significantly more likely to be sentenced to jail or prison
upon conviction, with longer sentences than their non-detained counterparts.45
Given the widespread lack of community mental health and drug treatment resources,
jails often serve as the de facto first-line institutions for people in need of mental health and drug
addiction treatment.46 Jails are also where people targeted by aggressive policing policies are most
40

Id. at 5, tbl. 4.
Timothy R. Schnacke, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a
Framework for American Pretrial Reform, U.S. DEP’T OF JUSTICE, NAT’L INST. OF CORR. 24-25 (Aug. 2014),
http://www.pretrial.org/download/research/Fundamentals%20of%20Bail%20-%20NIC%202014.pdf
[https://perma.cc/
63CJ-8A4F] (estimating that approximately 90% of felony defendants detained pretrial are detained simply due to lack of
money to pay bail).
42
Nick Pinto, The Bail Trap, N.Y. TIMES MAGAZINE (Aug. 13, 2015), http://www.nytimes.com/
2015/08/16/magazine/the-bail-trap.html [https://perma.cc/PRG9-FSTC] (“By encouraging poor defendants to plead guilty,
bail keeps the system afloat.”); The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony
Defendants in New York City, HUMAN RIGHTS WATCH
31-32 (Dec. 2, 2010), https://www.hrw.org/sites/
default/files/reports/us1210webwcover_0.pdf [https://perma.cc/5L9M-85RP] (“Judges, prosecutors, and defense counsel
all know that defendants at arraignments who face the prospect of pretrial detention because they cannot post bail are
likely to agree to plea bargains.”).
43
See, e.g., Order Granting Motion for Preliminary Injunction at 30-33, 39, Hernandez v. County of
Monterey, No. 5:13-cv-2354-PSG (N.D. Cal 2015), http://www.clearinghouse.net/chDocs/public/JC-CA-0107-0008.pdf
[https://perma.cc/T8CU-PMGX] (granting preliminary injunction regarding unconstitutional medical care, suicide risks,
and barriers to disability access); Cruel and Unusual Punishment: How a Savage Gang of Deputies Controls LA County
Jails, ACLU & ACLU OF S. CALIF. 1, 4 (Sept. 2011), https://www.aclu.org/sites/default/files/field_document/78162_aclu_
jails_r2_lr.pdf [https://perma.cc/EM9J-R96Z] (describing jail’s culture of deputy-on-prisoner violence); Mitch Smith,
Sandra Bland’s Mother Files Wrongful-Death Lawsuit, N.Y. TIMES (Aug. 4, 2015), http://www.nytimes.com/2015/08/05/
us/sandra-bland-family-lawsuit.html [https://perma.cc/5FU3-NUBK] (describing death of Black motorist in a Texas jail).
44
Mary T. Phillips, Pretrial Detention and Case Outcomes, Part 1: Nonfelony Cases, NEW YORK CITY
CRIMINAL JUSTICE AGENCY, INC. 56 (Nov. 2007); Mary T. Phillips, Bail, Detention, & Nonfelony Case Outcomes, NEW
YORK CITY CRIMINAL JUSTICE AGENCY, INC. 1, 5-6 (May 2007). This relationship between detention and conviction
continued to remain significant even after controlling for the number and severity of arrest charges, the offense type of the
arraignment charge, the defendant’s criminal history, demographic characteristics, borough, and length of case processing,
and other factors. Id. at 6.
45
Pretrial Criminal Justice Research, LAURA AND JOHN ARNOLD FOUND. 3 (Nov. 2013),
http://www.arnoldfoundation.org/wp-content/uploads/2014/02/LJAF-Pretrial-CJ-Research-brief_FNL.pdf
[https://perma.cc/4QLF-RSMQ].
46
See Ram Subramanian et al., Incarceration’s Front Door: The Misuse of Jails in America, VERA
INSTITUTE OF JUSTICE 11-12 (Feb. 2015), http://www.vera.org/sites/default/files/resources/downloads/incarcerations41

134

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

[Vol. 20.2

likely to be incarcerated. “Broken Windows” policing strategies—which target minor public order
offenses such as vandalism, panhandling, and public drinking47—are a prime example. The chief
impact of such strategies is to create a steady number of arrests of poor people of color.48
Additionally, aggressive efforts to collect criminal justice fines and fees create another source of
unnecessary arrests. These arrests result in jail stays.49 Unnecessary jailing of people arrested for
minor offenses can also cut them off from jobs, family, and other financial and social supports—
making them more likely to commit crimes than if they had remained connected to these sources
of stability. A recent study found that for people identified as low risk for pretrial misconduct,
spending as little as two to three days in jail after being charged was associated with significantly
increased chances they would commit new crimes within the next two years compared to similar
people who had been released within 24 hours.50
2.
 Community Corrections Facilities and Supervision
The reach of the carceral state extends far beyond prisons and jails. On any given day,
there are an unknown number of people in residential community corrections facilities and nearly
4.7 million people on some form of community supervision, such as probation or parole.51

a.
 Community Corrections Facilities
There is no concise, generally agreed-upon definition of a community corrections
facility. Generally speaking, they are residential facilities in or near population centers where
prisoners are assigned either to serve a sentence in lieu of prison or to serve the final portions of
their sentence.52 In the federal system, the Federal Bureau of Prisons (BOP) has broad discretion
front-door-report.pdf [https://perma.cc/E2QR-ZFF9].
47
George L. Kelling & James Q. Wilson, Broken Windows: The police and neighborhood safety, THE
ATLANTIC (March 1982).
48
K. Babe Howell, Broken Lives from Broken Windows: The Hidden Costs of Aggressive OrderMaintenance Policing, 33 N.Y.U. REV. L. & SOC. CHANGE 271, 281, 307 (2009) (“[T]he arrests resulting from ZTP are in
the hundreds of thousands, are for particularly minor offenses, disproportionately affect people of color, and do not result
in more seizures of weapons.”). The consequences of Broken Windows policing can also be deadly. Al Baker et al.,
Beyond the Chokehold: The Path to Eric Garner’s Death, N.Y. TIMES (June 13, 2015), http://www.nytimes.com/
2015/06/14/nyregion/eric-garner-police-chokehold-staten-island.html [https://perma.cc/D3Y5-RSB5].
49
See discussion infra Section I.C.2.d. (discussing criminal justice debt as path to incarceration). See also,
e.g., In for a Penny: The Rise of America’s New Debtors’ Prisons, ACLU (Oct. 2010), https://www.aclu.org/files/assets/
InForAPenny_web.pdf [https://perma.cc/B7EK-2YLC] [hereinafter ACLU, In for a Penny]; Criminal Justice Debt: A
Barrier to Reentry, BRENNAN CENTER 8, 32 (Oct. 2010), http://www.brennancenter.org/sites/default/
files/legacy/Fees%20and%20Fines%20FINAL.pdf [https://perma.cc/3RWC-YZTF]; Investigation of the Ferguson Police
Department, U.S. DEP’T OF JUSTICE CIVIL RIGHTS DIVISION 52-58 (March 4, 2015), http://www.justice.gov/sites/
default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf [https://perma.cc/435ZGHHS].
50
Pretrial Criminal Justice Research, supra note 45, at 1, 5.
51
See Danielle Kaeble & Thomas P. Bonczar, NCJ 250230, Probation and Parole in the United States,
2015, BUREAU OF JUSTICE STATISTICS 1 (2016) (community supervision statistics at year-end 2015).
52
See Ray Knapp & Peggy Burke, Residential Community Corrections Facilities: Current Practice and
Policy Issues, U.S. DEP’T OF JUSTICE, NAT’L INST. OF CORRECTIONS 5-7 (Aug. 1992), http://static.nicic.gov/Library/
010938.pdf [https://perma.cc/94RE-3FVN].

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

135

to decide whether to place a person in a secure prison or community corrections facility,
regardless of what the sentencing court recommends.53
Nobody knows how many community corrections facilities exist in the United States.
However, within the federal system, about 10,000 people are in BOP-contracted residential
reentry centers on any given day, which represents about five percent of the BOP’s custody
population.54 So a rough, back-of-the-envelope estimate would suggest there may be somewhere
in the neighborhood of 50,000 to 100,000 people in similar facilities under the jurisdiction of state
correctional authorities.55
Unlike prisons, community corrections facilities are usually not directly operated by the
government. Instead, they are operated by nongovernmental entities—sometimes non-profit,
sometimes for-profit—that contract with correctional agencies.
In theory, community corrections facilities are supposed to provide enhanced services
and education in a residential, community-based setting. In practice, however, they can become
dysfunctional, dangerous places that fail to provide the promised services, allow violence and
rape inside their doors to go unchecked, or both, and ultimately fail to ease the difficult transition
from prison to the community.56 A recent Rutgers University study concluded that “very little is
known about the effectiveness” of halfway houses and that “[r]esearch has not yet suggested an
evidence-based residential reentry model for handling the complex problems of special needs
groups on the path to reintegration.”57 Indeed, one recent study of community corrections centers
in Pennsylvania found that spending time in such a facility was “a significant predictor of
recidivism,” and that the control group (i.e., people who were simply put on parole supervision
after release from prison) generally had better outcomes.58 Similarly, a recent study of BOP
halfway houses concluded that participation in halfway house programs “does not have a more
positive influence on offender outcomes,” and that increasing the length of time a person spends
in a halfway house has no relationship with positive outcomes.59
53

See 18 U.S.C. § 3621(b).
Population Statistics, BUREAU OF PRISONS, http://www.bop.gov/about/statistics/population_statistics.jsp
[https://perma.cc/86VV-PR4L] (last visited Dec. 21, 2016) (indicating 9,269 people in Residential Reentry Centers).
55
See PRISONERS IN 2015, supra note 9, at 3, tbl. 1 (listing number of prisoners under jurisdiction of
federal and state correctional authorities). This is a very rough estimate because it does not account for varying state
policies and practices.
56
See, e.g., Justin Moyer, To some, D.C. halfway house is more like ‘Hopeless Village,’ WASH. POST (Aug.
29, 2013), https://www.washingtonpost.com/opinions/2013/08/29/cd282a86-f4c1-11e2-9434-60440856fadf_story.html
[http://perma.cc/4F2P-8JJQ]; Sam Dolnick, At a Halfway House, Bedlam Reigns, N.Y. TIMES (June 17, 2012),
http://nyti.ms/1wU5IBH [https://perma.cc/B8FS-YYS4]; Sam Dolnick, As Escapees Stream Out, a Penal Business
Thrives, N.Y. TIMES (June 16, 2012), http://nyti.ms/1C0iW5A [http://perma.cc/G6ZJ-N8AG].
57
RUTGERS UNIVERSITY CTR. FOR BEHAVIORAL HEALTH SERVICES & CRIMINAL JUSTICE RESEARCH,
HALFWAY FROM PRISON TO THE COMMUNITY: FROM CURRENT PRACTICE TO BEST PRACTICE 8, 2 (2013),
https://cafwd.app.box.com/s/oit9lo07b72124qjjcik [http://perma.cc/CJC2-PJLQ] [hereinafter HALFWAY FROM PRISON].
58
EDWARD J. LATESSA, CHRISTOPHER T. LOWENKAMP, & KRISTIN BECHTEL, CTR. FOR CRIMINAL JUSTICE
RESEARCH, UNIV. OF CINCINNATI, COMMUNITY CORRECTION CENTERS, PAROLEES, AND RECIDIVISM: AN INVESTIGATION
INTO THE CHARACTERISTICS OF EFFECTIVE REENTRY PROGRAMS IN PA., FINAL REPORT 4-6, 173, (May 2009),
https://www.uc.edu/content/dam/uc/ccjr/docs/reports/project_reports/PA_ReentryFinal_report.pdf [http://perma.cc/7Z3DBY8P].
59
JENNIFER LERCH, FAYE S. TAXMAN, & AMY MERICLE, ADVANCING CORRECTIONAL EXCELLENCE!,
GEORGE MASON UNIV., WHAT WORKS IN RESIDENTIAL REENTRY CENTERS - REPORT 6: TECHNICAL VIOLATION RATES
9 (Dec. 2010),
AND REARREST RATES ON FEDERAL PROBATION AFTER RELEASE FROM AN RRC
https://www.gmuace.org/documents/publications/2010/Monograph%206.pdf [http://perma.cc/XU8L-3W5D].
54

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

136

[Vol. 20.2

Various best practices for community corrections facilities have been proposed, but those
best practices also include the caveat that research on these facilities “is in its infancy.”60
Additionally, there is little uniformity in how government contracts with such facilities are
structured.61
b.
 Supervision
Supervision can be imposed at three different stages of the criminal justice process:
pretrial supervision for people released pending trial, a sentence of probation imposed in lieu of
some or all of a prison or jail term, and parole supervision following release from prison or jail.
Pretrial supervision is often the fate of the people “lucky” enough to avoid pretrial
detention. In years past, people who successfully paid bail pending trial or who were released
without bail were generally not subject to supervision. Now, however, the combination of an
ever-expanding carceral state and new technologies that make mass pretrial supervision possible
have made it more attractive for jurisdictions to expand pretrial supervision to people who might
otherwise have simply been released pending trial. Electronic monitoring—chiefly tracking
people with GPS monitors—has become especially common. Between 2005 and 2015, the
number of people in the criminal justice system subjected to electronic monitoring grew by nearly
140 percent.62
Since the mid-twentieth century, probation supervision has operated as a formalized
function of the courts.63 A probation officer’s role is not limited to merely carrying out courtordered supervision; they typically also conduct factual investigations and prepare reports that
guide the judge’s decisions of whether to release a defendant pending trial, whether to permit a
defendant to receive probation instead of a prison sentence, and what conditions to impose on
both pretrial release and post-sentence probation.64
Probation generally involves severe limitations on a supervisee’s Fourth Amendment
rights; the U.S. Supreme Court has held that probation conditions may authorize warrantless
searches of a supervisee’s home and person without probable cause, and any law enforcement
officer (not just probation officers) may freely take advantage of this warrantless search

60

HALFWAY FROM PRISON, supra note 57, at 14-15.
See id. at 10-13.
62
PEW CHARITABLE TRUSTS, USE OF ELECTRONIC OFFENDER-TRACKING DEVICES EXPANDS SHARPLY 1
(Sept.2016),http://www.pewtrusts.org/~/media/assets/2016/10/use_of_electronic_offender_tracking_devices_expands_sha
rply.pdf [https://perma.cc/KC7L-3WRG]. See Molly Carney, Note, Correction through Omniscience: Electronic
Monitoring and the Escalation of Crime Control, 40 WASH. U.J.L. & POL’Y 279, 294 (2012) (contending that electronic
monitoring brings new populations under criminal justice supervision, not just those that would otherwise be
incarcerated); Erin Murphy, Paradigms of Restraint, 57 DUKE L.J. 1321, 1367-68 (2008) (arguing that “the economics of
technological control enable the regulation of greater numbers of persons under less stringent conditions for a longer
period of time and to a greater degree than an equivalent physical intrusion.”). But see Samuel R. Wiseman, Pretrial
Detention and the Right to Be Monitored, 123 YALE L.J. 1118, 1378-80 (2014) (conceding that availability of electronic
monitoring would likely lead to increased use of monitoring on defendants who would otherwise have been released on
bail or personal recognizance, but contending that “the liberty and privacy costs [to these individuals] must be weighed
against the benefits to those who would otherwise not be released”).
63
Joan Petersilia, Probation in the United States, 22 CRIME & JUST. 149, 155 (1997) (describing
nineteenth-century origins of probation in an informal arrangement between a judge, a bootmaker, and an alcoholic, and
describing its later formalization and professionalization).
64
Id. at 159-61.
61

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

137

authority.65 Additionally, a sentence of probation typically involves numerous behavioral
requirements. Within the federal system, for example, all probation supervisees must submit to
periodic drug tests regardless of whether or not their crime was drug-related, and standard
conditions of probation include not traveling outside a specific geographic area, avoiding places
where drugs are illegally sold or used, avoiding associating with “any persons engaged in criminal
activity,” avoiding associating with anyone else with a felony record without the probation
officer’s permission, and permitting the probation officer to “visit the defendant at any time at
home or elsewhere” to observe and seize “contraband.”66 Other jurisdictions impose similar
restrictions as a matter of course, and courts are free to pile on additional conditions with little
substantive appellate review.67 When a person violates any of these conditions, his or her
probation officer has discretion to decide whether to bring the violation to the court’s attention
and, if so, what sanctions to recommend to the court.68 Most commonly, a sentence of probation is
paired with a suspended prison sentence for the original offense; this enables the judge (at the
request of the probation officer) to respond to a violation by continuing or extending probation,
modifying the terms of probation, or revoking probation and immediately imposing the original
suspended prison sentence.69 Additionally, some jurisdictions are experimenting with “flash
incarceration” programs that empower probation officers to order limited periods in jail without a
judicial hearing.70
65

See United States v. Knights, 534 U.S. 112, 121-22 (2001) (warrantless police search of probation
supervisee’s home supported by less than probable cause was constitutional, even though it had no relationship to his
probation officer’s efforts to monitor probation compliance); Griffin v. Wisconsin, 483 U.S. 868, 876-88 (1987)
(approving warrantless searches of probation supervisees without probable cause). Although the U.S. Supreme Court has
not directly addressed whether a probation supervisee may be searched without any individualized suspicion at all, a
number of circuit courts of appeal have answered this question in the affirmative. See, e.g., United States v. King, 736
F.3d 805, 810 (9th Cir. 2013) (upholding probation supervision condition imposing suspicionless, warrantless searches);
United States v. Monteiro, 270 F.3d 465, 470-71 (7th Cir. 2001) (same); United States v. Kingsley, 241 F.3d 828, 837 (6th
Cir. 2001) (same); United States v. Sharp, 931 F.2d 1310, 1311 (8th Cir. 1991) (same); Owens v. Kelley, 681 F.2d 1362,
1366 (11th Cir. 1982) (same).
66
UNITED STATES SENTENCING COMMISSION GUIDELINES MANUAL § 5B1.3(a)(5) (drug testing), §
5B1.3(c) (other standard conditions) (Nov. 1, 2015), http://www.ussc.gov/sites/default/files/pdf/guidelinesmanual/2015/GLMFull.pdf [http://perma.cc/6GCM-PADH] [hereinafter 2015 SENTENCING GUIDELINES MANUAL].
67
See Cecelia Klingele, Rethinking the Use of Community Supervision, 103 J. CRIM. L. & CRIMINOLOGY
1015, 1032-36 (2013) (conditions can range from general admonitions to bizarrely specific and problematic commands);
See generally Andrew Horwitz, Coercion, Pop-Psychology, and Judicial Moralizing: Some Proposals for Curbing
Judicial Abuse of Probation Conditions, 57 WASH. & LEE L. REV. 75 (2000) (describing extremely broad range of
conditions that have survived appellate review, including commanding people not to live with their co-defendant spouses
or fiances, acts of public shaming such as requiring drunk driver to at all times wear pink bracelet labeled “D.U.I.
CONVICT,” and restrictions on freedom of association with only a tenuous relationship to the actual crime of conviction);
Fiona Doherty, Obey All Laws and Be Good: Probation and the Meaning of Recidivism, 104 GEORGETOWN L.J. 291
(2016) (arguing that standard probation conditions construct a definition of recidivism that contributes to
overcriminalization).
68
Petersilia, supra note 63, at 159.
69
Id. at 165.
70
See Hon. Philip H. Pennypacker & Alyssa Thompson, Realignment: A View from the Trenches, 53
SANTA CLARA L. REV. 991, 1033 (2013) (describing California flash incarceration program); See generally Lorenzo
Arroyo, Working Paper, Flash Incarceration: Due Process in an Era of Intermediate Sanctions (Mar. 1, 2012),
http://law.stanford.edu/wp-content/uploads/sites/default/files/child-page/183091/doc/slspublic/Flash_Incarceration_
Arroyo.pdf [http://perma.cc/DQ7Q-8E32]. AMERICAN PROBATION AND PAROLE ASS’N, INDIVIDUAL STATE PROFILES
SUMMIT ON EFFECTIVE RESPONSES TO PROBATION AND PAROLE VIOLATIONS (Dec. 11-12, 2012), https://www.appa-

138

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

[Vol. 20.2

Parole enables prisoners to complete their sentences under supervision rather than
serving their entire sentences in prison. Although most states restricted the use of parole in the
1970s (and the federal prison system and some states abolished discretionary parole), substantial
numbers of people are released from prison to parole supervision each year.71 Like probation,
release on parole involves restrictions on liberty and onerous supervision requirements.72 Indeed,
the Supreme Court has explicitly stated that “parolees have fewer expectations of privacy than
probationers” because rather than being part of the original sentence, parole is a conditional
release from what would otherwise be continued incarceration.73 Since the 1970s, parole
supervision has also largely shifted from a casework model aimed at “restoring offenders to the
community” into a supervision model whose primary goals are to closely monitor parolees and
punish them for failing to meet all required conditions.74
c.
 How Community Corrections and Supervision Feed Back into Mass Incarceration
According to the Bureau of Justice Statistics, reincarcerations accounted for one-fifth of
all exits from probation and more than a quarter of all exits from parole in 2015, most of which
occurred because the supervisee had violated one or more probation or parole conditions.75 As
Cecelia Klingele argued in a recent law review article, community supervision often functions
more like a “deferred sentence of incarceration” than a true alternative to incarceration.76 Klingele
notes that while conditions like curfews, monthly financial disclosures, restrictions on who the
supervisee can socialize with, and required treatment programs may be reasonable when
considered individually, the “sheer number of requirements imposes a nearly impossible burden
on many offenders.”77 A study of courts in Wisconsin found that defendants sentenced to
community supervision were subject to an average of thirty conditions per person.78 The more
stringent the conditions, the higher the risk that the supervisee will be unable to successfully exit
supervision.79 Additionally, supervisees who are offered rehabilitative interventions, such as
counseling or drug treatment, are often more likely to end up having probation or parole revoked

net.org/eWeb/Resources/SPSP/State-Profiles-Individual.pdf [http://perma.cc/2UF3-6ZY3] (describing flash incarceration
authority in Arkansas, Louisiana, Missouri, New Hampshire, North Carolina, Oregon, South Carolina, and Washington);
NAT’L CTR. FOR STATE COURTS, ADMINISTRATIVE RESPONSES TO PROBATION VIOLATIONS: DUE PROCESS AND
SEPARATION OF POWERS ISSUES (2012), http://www.ncsc.org/~/media/Microsites/Files/CSI/Education/admin%20
sanctions%20legal%20memo%2012-18.ashx [http://perma.cc/TS7W-A2AQ] (analyzing whether flash incarceration is
permissible under due process and separation of powers).
71
Christine S. Scott-Hayward, The Failure of Parole: Rethinking the Role of the State in Reentry, 41 N.M.
L. REV. 421, 433-34 (2011); Klingele, supra note 67, at 1027-28.
72
See id. at 435-36 (describing typical conditions, and noting the number and types of conditions have
increased over the last fifty years).
73
Samson v. California, 547 U.S. 843, 857 (2006) (upholding police officer’s suspicionless, warrantless
search of parolee).
74
Scott-Hayward, supra note 71, at 439; Klingele, supra note 67, at 1028.
75
See Kaeble & Bonczar, supra note 51, at 4, tbl. 3, 6, tbl. 5.
76
Klingele, supra note 67, at 1020.
77
Id. at 1035.
78
KIT VAN STELLE & JANAE GOODRICH, UNIV. WIS. POPULATION HEALTH INST., THE 2008/2009 STUDY
OF PROBATION AND PAROLE REVOCATION 158 (2009), https://uwphi.pophealth.wisc.edu/about/staff/van-stelle-kit/20082009-study-of-probation-and-parole-revocation.pdf [https://perma.cc/UZM5-SR89].
79
Petersilia, supra note 63, at 165.

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

139

than those who are not offered treatment services.80 This makes intuitive sense—the more
frequently a person must travel to check in with a probation or parole officer, go to court (which
often involves long waits before one’s case is called), and attend required programming, the more
difficult it is for that person to maintain a job and keep strong family connections. Yet
maintaining employment and supporting one’s family are often themselves set as conditions of
supervision—leaving the supervisee caught between the Scylla of failure to check in and the
Charybdis of unemployment.81
Community corrections facilities suffer from similar issues. For people who are already
at a low risk of recidivism, residential “rehabilitation” programs can actually increase the
likelihood of future criminal justice involvement.82 As criminal justice researchers Lowenkamp
and Latessa put it, “[w]hen we take lower-risk offenders, who by definition are fairly prosocial (if
they weren’t, they wouldn’t be low-risk), and place them in a highly structured, restrictive
program, we actually disrupt the factors that make them low-risk” by cutting them off from
prosocial contacts such as jobs, family, and peers.83
For these reasons, both community supervision and community corrections facilities can
function as easy paths back to incarceration.84 Indeed, one study recently concluded that patterns
of probation and incarceration after the mid-1980s are “consistent with the idea of probation as a
net-widener that played a role in the build-up of mass incarceration, with both populations
expanding throughout the build-up.”85
3.
 Criminal Justice Debt as a Further Path into Incarceration
In many places, defendants who cannot afford to pay fines and fees imposed on
conviction—which frequently add up to thousands of dollars, and can even accumulate interest
while the person is incarcerated—end up being placed on supervision to pay these debts, and then
being arrested and re-jailed solely for failing to pay them off. This phenomenon—dubbed
“modern-day debtors’ prisons” in 2010 by the ACLU and the Brennan Center for Justice—
violates the Equal Protection Clause of the Fourteenth Amendment.86
Nevertheless, modern-day debtors’ prisons remain widespread. In 2014 and 2015 alone,
the ACLU, Southern Poverty Law Center, and Equal Justice Under Law filed debtors’ prison
80

Klingele, supra note 67, at 1038.
See, e.g., 2015 SENTENCING GUIDELINES MANUAL, supra note 66, at § 5B1.3(c) (standard conditions of
probation in the federal system include “the defendant shall support the defendant’s dependents and meet other family
responsibilities” and “the defendant shall work regularly at a lawful occupation unless excused by the probation officer for
schooling, training, or other acceptable reasons”).
82
See generally, Edward J. Latessa & Christopher Lowenkamp, What Works in Reducing Recidivism?, 3
U. ST. THOMAS L.J. 521 (2006).
83
Christopher T. Lowenkamp & Edward J. Latessa, Understanding the Risk Principle: How and Why
Correctional Interventions Can Harm Low-Risk Offenders, TOPICS IN COMMUNITY CORRECTIONS 7 (2004),
https://www.uc.edu/content/dam/uc/ccjr/docs/articles/ticc04_final_complete.pdf [https://perma.cc/U8L4-8PZ6].
84
See Klingele, supra note 67, at 1058.
85
Michelle S. Phelps, The Paradox of Probation: Community Supervision in the Age of Mass
Incarceration, 35 LAW & POL’Y 51, 64 (2013).
86
ACLU, In for a Penny, supra note 49, at 81; BRENNAN CENTER, CRIMINAL JUSTICE DEBT: A BARRIER
TO REENTRY, supra 49 at 19. The U.S. Supreme Court held in Bearden v. Georgia that courts must inquire into a
defendant’s reasons for failing to pay a fine or restitution before sentencing him to prison for that failure; to imprison
someone merely because of poverty would be “fundamentally unfair.” Bearden v. Georgia, 461 U.S. 660, 668-69, 672
(1983).
81

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

140

[Vol. 20.2

lawsuits in Alabama, Louisiana, Mississippi, Missouri, and Washington.87 While there has never
been a comprehensive, national survey of how many people are incarcerated for criminal justice
debt, it is clear that debtors’ prisons are not restricted to one region of the country; in-depth
reports by the U.S. Department of Justice, the ACLU, and others have documented debtors’
prisons in states as far-flung as Georgia, Louisiana, Michigan, Missouri, Ohio, and Washington.88
Moreover, the widespread reliance of the criminal justice system on such fines and fees heightens
the risks that local courts will engage in such practices.89
4.
 Immigration Detention
Immigration detention is another component of mass incarceration. It is carried out under
the authority of the Immigration and Customs Enforcement (“ICE”), the interior enforcement
agency of the U.S. Department of Homeland Security (“DHS”). Its purpose is not to punish, but to
hold people while their civil immigration proceedings are pending. In practice, however,
immigrants are detained in jails and jail-like facilities.90
ICE detention is far smaller than the criminal justice system as a whole: with its daily
capacity of 34,000 detention beds, ICE holds about as many people as all of the parish jails in
Louisiana.91 However, the immigration detention system is important to examine because it has
been a vanguard of both privatized, for-profit incarceration and privatized, for-profit supervision.
It is estimated that more than 60% of immigration detention beds are run by private prison
companies.92 These privately run beds are located both in private prisons dedicated to immigration

87

Shutting Down Debtors’ Prisons, EQUAL JUSTICE UNDER LAW, http://equaljusticeunderlaw.org/wp/
current-cases/ending-debtors-prisons/ [https://perma.cc/CBJ4-JALZ] (last visited on Feb. 24, 2016); SPLC lawsuit closes
debtors’ prison in Alabama, SOUTHERN POVERTY LAW CENTER (Aug. 25, 2014), https://www.splcenter.org/
news/2014/08/26/splc-lawsuit-closes-debtors’-prison-alabama-capital [https://perma.cc/VMK6-BGQD]; Kennedy v. City
of Biloxi, ACLU, https://www.aclu.org/cases/kennedy-v-city-biloxi [https://perma.cc/XD82-DRTT] (last updated Sept. 27,
2016); Fuentes v. Benton County, ACLU, https://www.aclu.org/cases/fuentes-v-benton-county [https://perma.cc/FS6AYSXZ] (last updated June 1, 2016).
88
ACLU, In for a Penny, supra note 49, at 17, 29, 43, 55, 65; The Outskirts of Hope, ACLU OF OHIO (Apr.
4, 2014), http://www.acluohio.org/the-outskirts-of-hope [https://perma.cc/Q2BP-DQ79] (last updated Mar. 14, 2014); US
DEP’T OF JUSTICE CIVIL RIGHTS DIVISION, INVESTIGATION OF THE FERGUSON POLICE DEPARTMENT (March 4, 2015),
http://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/03/04/ferguson_police_department_report.pdf [https://perma.cc/PR49-V39T]; See generally
Koran Addo, ArchCity Defenders saw problems with municipal courts before Ferguson turmoil, ST. LOUIS POSTDISPATCH (Apr. 15, 2015), http://www.stltoday.com/news/local/metro/archcity-defenders-saw-problems-with-municipalcourts-before-ferguson-turmoil/article_f1493907-7c8c-55af-a68b-6e36df0c2cae.html [https://perma.cc/7WPN-SEUD].
89
See ACLU, In for a Penny, supra note 49, at 9.
90
See U.S. COMMISSION ON CIVIL RIGHTS, STATUTORY ENFORCEMENT REPORT: THE STATE OF CIVIL
RIGHTS AT IMMIGRATION DETENTION FACILITIES 184 (Sept. 2015), http://www.usccr.gov/pubs/ Statutory_Enforcement_
Report2015.pdf [https://perma.cc/4KR5-DAPL]; HUMAN RIGHTS FIRST, JAILS AND JUMPSUITS: TRANSFORMING THE U.S.
IMMIGRATION DETENTION SYSTEM—A TWO-YEAR REVIEW 33 (2011), https://www.humanrightsfirst.org/wp-content/
uploads/pdf/HRF-Jails-and-Jumpsuits-report.pdf [https://perma.cc/L7V7-53WQ].
91
See TODD D. MINTON ET AL., BUREAU OF JUSTICE STATISTICS, CENSUS OF JAILS: POPULATION
CHANGES, 1999-2013, at 15 T.9 (Dec. 2015), http://www.bjs.gov/content/pub/pdf/cjpc9913.pdf [https://perma.cc/86HE58PX].
92
BETHANY CARSON & ELEANA DIAZ, GRASSROOTS LEADERSHIP, PAYOFF: HOW CONGRESS ENSURES
PRIVATE PRISON PROFIT WITH AN IMMIGRATION DETENTION QUOTA 6 (Apr. 2015), http://grassrootsleadership.org/
reports/payoff-how-congress-ensures-private-prison-profit-immigrant-detention-quota [https://perma.cc/7PNR-SVTY].

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

141

detention and in privatized county jails that contract out some or all of their beds to ICE. (Just
11.8% of ICE beds are actually operated by the agency itself.)93 Additionally, since 2004, ICE has
entirely contracted out the function of supervising immigrants on release—both the contract for
intensive supervision (“ISAP”) and a recent family supervision contract have been awarded to
subsidiaries of GEO Group, a private prison company.94 As of February 2016, GEO reported that
there were some 44,000 people being supervised under its ISAP contract; the number of people
being supervised under the new family case management contract has not yet been publicly
reported.95 The current state of immigration detention—most notably, ICE’s apparent inability to
carry out significant functions except through private-prison contractors—is largely a product of
the agency’s rapid growth. In 1985, ICE’s predecessor agency held fewer than 5,000 people in
immigration detention—but that figure more than quadrupled by the year 2000.96 When combined
with a lack of in-house correctional expertise and a disinclination to build its own detention
facilities, these rapidly increasing demands left ICE with a clear path of least resistance: private
prisons.
The resulting dependence of ICE on these private-prison contractors should serve as a
cautionary tale for criminal justice agencies that are considering greater reliance on such
contractors. Depending largely on the detention contractor’s willingness or resistance to adopt
new standards, ICE detention contracts may specify no standards at all, standards that date back to
the year 2000 (before the creation of DHS and ICE), interim 2008 standards, or the most recent
2011 standards.97 And these standards are poorly enforced; ICE’s oversight mechanisms often fail
to identify and address violations, and do not punish detention contractors even when substandard
medical care contributes to preventable deaths in detention.98 Significant concerns have been
93

See id. at 3; NATIONAL IMMIGRANT JUSTICE CENTER, THE IMMIGRATION DETENTION TRANSPARENCY &
HUMAN RIGHTS PROJECT: AUGUST 2015 REPORT 5 (Aug. 2015), http://immigrantjustice.org/sites/immigrant
justice.org/files/images/NIJC%20Transparency%20and%20Human%20Rights%20Project%20August%202015%20Report
%20FINAL3.pdf [https://perma.cc/JUT3-53EW].
94
RUTGERS SCHOOL OF LAW-NEWARK IMMIGRATION RIGHTS CLINIC, FREED BUT NOT FREE 8
(July 2012), http://lastradainternational.org/lsidocs/Freed%20but%20not%20Free.pdf [https://perma.cc/W2JZ-DNR9]
(describing 2004 contract award to BI, Inc.); Isaacs, supra note 6, at 8 (describing GEO acquisition of BI, Inc.); John
Burnett, As Asylum Seekers Swap Prison Beds For Ankle Bracelets, Same Firm Profits, NAT’L PUBLIC RADIO (Nov. 13,
2015 4:56 PM), http://www.npr.org/2015/11/13/455790454/as-asylum-seekers-swap-prison-beds-for-ankle-braceletssame-firm-profits [https://perma.cc/B4WX-44WF] (describing 2015 ICE contract award to GEO Care).
95
George Zoley, The GEO Group’s (GEO) CEO George Zoley on Q4 2015 Results - Earnings Call
Transcript, SEEKING ALPHA 8 (Feb. 17, 2016 5:29 PM), http://seekingalpha.com/article/3904376-geo-groups-geo-ceogeorge-zoley-q4-2015-results-earnings-call-transcript?page=8 [https://perma.cc/6JKP-QB96].
96
See César Cuauhtémoc García Hernández, Naturalizing Immigration Imprisonment, 103 CAL. L. REV.
1449, 1466 (2015) (illustrating rapid growth of immigration detention).
97
GAO, GAO-15-153, IMMIGRATION DETENTION: ADDITIONAL ACTIONS NEEDED TO STRENGTHEN
MANAGEMENT AND OVERSIGHT OF FACILITY COSTS AND STANDARDS 30 (Oct. 2014), http://www.gao.gov/
assets/670/666467.pdf [https://perma.cc/QZ5Y-C5HE]; NATIONAL IMMIGRANT JUSTICE CENTER, THE IMMIGRANT
DETENTION TRANSPARENCY AND HUMAN RIGHTS PROJECT: AUGUST 2015 REPORT 6 (Aug. 2015), http://immigrant
justice.org/sites/immigrantjustice.org/files/images/NIJC%20Transparency%20and%20Human%20Rights%20Project%20
August%202015%20Report%20FINAL3.pdf [https://perma.cc/Y4FS-XJWF].
98
See GAO, supra note 97; DETENTION WATCH NETWORK & NATIONAL IMMIGRANT JUSTICE CENTER,
THE IMMIGRATION DETENTION TRANSPARENCY AND HUMAN RIGHTS PROJECT, LIVES IN PERIL: HOW INEFFECTIVE
INSPECTIONS MAKE ICE COMPLICIT IN IMMIGRATION DETENTION ABUSE (Oct. 2015), http://immigrantjustice.org/sites/
immigrantjustice.org/files/THR-Inspections-FOIA-Report-October-2015-FINAL.pdf
[https://perma.cc/UHB6-VF6U];
ACLU, DETENTION WATCH NETWORK, & NATIONAL IMMIGRANT JUSTICE CENTER, FATAL NEGLECT: HOW ICE IGNORES
DEATHS IN DETENTION (Feb. 2016), http://immigrantjustice.org/sites/immigrantjustice.org/files/Fatal%20Neglect_ACLU

142

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

[Vol. 20.2

raised about over-use of GPS tracking by the GEO Group subsidiary that ICE relies on for ISAP.
Such over-use appears to be incentivized by the contract, which both allows the contractor to
select the level of supervision for each individual and compensates the contractor more
generously when it puts a person on GPS tracking instead of less-intrusive telephone check-ins.99
However, ICE currently has no choice but to rely on GEO Group or a similar contractor for these
tasks because the agency lacks the capacity to carry out these functions itself.
Accordingly, even if ICE ultimately decides to cease relying on private prisons for
detention, the agency will have difficulty extricating itself from these relationships without
seriously reducing its detention population and implementing a more robust spectrum of
alternatives to detention.100 In December 2016, the Homeland Security Advisory Committee (a
panel of experts appointed to advise the Secretary of Homeland Security on policy issues)
recommended by a 17-to-5 vote that DHS make “a measured but deliberate shift away from the
private prison model,” while noting that moving its current detention population into federally-run
facilities would “take years, carry significant costs, and require congressional partnership.”101
5.
 The Role of Private Prisons in the Carceral State
Nationwide, about 7% of state prisoners and 18% of federal prisoners are held in private
prisons run by for-profit companies.102 However, there are major variations from state to state. For
example, according to the Bureau of Justice Statistics, the State of Alabama houses fewer than
500 prisoners in private prisons—but more than 14,000 Texas prisoners and more than 12,000
Florida prisoners are in the custody of private prisons.103 Meanwhile, more than 60% of ICE’s
34,000 immigration detention beds are in private prisons.104 Additionally, the private prison

%2C%20DWN%2C%20NIJC.pdf [https://perma.cc/5NEV-XY93].
99
See, e.g., RUTGERS SCHOOL OF LAW-NEWARK IMMIGRANT RIGHTS CLINIC, supra note 94 at 13-16;
Mark Noferi & Robert Koulish, The Immigration Detention Risk Assessment, 29 GEO. IMMIGR. L.J. 45, 91-92 (2014)
(expressing concern that use of risk assessments and electronic supervision will widen and normalize over-supervision of
immigrants in removal proceedings); Maria Sacchetti, Program to track immigrants grows, drawing scrutiny, BOS. GLOBE
(March 17, 2013), https://www.bostonglobe.com/metro/2013/03/16/monitor/A6e2Hxv3hRAOJufFLqT7QN/story.html
[https://perma.cc/X69A-7PLH]. See also OFFICE OF THE INSPECTOR GENERAL, DEPARTMENT OF HOMELAND SECURITY,
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT’S ALTERNATIVES TO DETENTION (REVISED), 4 (Feb. 4, 2015),
https://www.oig.dhs.gov/assets/Mgmt/2015/OIG_15-22_Feb15.pdf [https://perma.cc/W6R6-CYKW] (ICE contractor is
paid $0.17 a day per participant for telephonic monitoring versus $4.41 a day per participant for GPS monitoring).
100
See Takei et al., Shutting Down the Profiteers, supra note 15, at 15-17.
101
Carl Takei & Joanne Lin, In Stunning Reversal, Law Enforcement, Military, and Security Advisors Urge
Homeland Security to Shift Away from Private Prisons, ACLU (Dec. 2, 2016), https://www.aclu.org/blog/speakfreely/stunning-reversal-law-enforcement-military-and-security-advisors-urge-homeland (explaining committee vote and
findings); HOMELAND SECURITY ADVISORY COUNCIL, REPORT OF THE SUBCOMMITTEE ON PRIVATIZED DETENTION
FACILITIES 2 & n.3, 11 n.14 (Dec. 1, 2016), https://www.dhs.gov/sites/default/files/publications/DHS%20HSAC%20
PIDF%20Final%20Report.pdf [https://perma.cc/48G3-T33F] (noting that the full committee voted to endorse the
dissenting subcommittee view in footnote 14 calling for a phase out of private prisons, and to reject the subcommittee’s
majority recommendation regarding continued reliance on private prisons).
102
PRISONERS IN 2015, supra note 9, at 28, app. tbl. 2.
103
Id.
104
Carson & Diaz, supra note 92, at 3, 6.

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

143

industry is increasingly diversifying into for-profit community corrections facilities and for-profit
post-release supervision, as well as supervised release for non-citizens awaiting outcomes in their
immigration cases.105
While it has historical antecedents in both the Eighteenth-century English “keeper”
system and the post-Civil War practice of “convict leasing,” the modern private prison industry
did not begin until 1983, with the founding of Corrections Corporation of America106
(“CCA/CoreCivic”).107 In the ensuing decades, private prisons grew rapidly—from a population
of approximately 7,000 prisoners in 1990, to 87,000 in 2000, to more than 126,000 in 2015108—
because mass incarceration enabled them to make alluring offers to both their host communities
and state correctional officials. To struggling rural towns with few opportunities for economic
growth, the private prisons offered the prospect of desperately-needed new jobs—and, with the
seemingly limitless growth of the prison population, these jobs seemed like they would be secure
for many years to come. In exchange, the host communities eagerly provided generous
development subsidies, including tax-free construction bonds, property tax abatements, and
subsidized road and sewer connections.109 To state correctional officials, the private prisons
offered new prison space that could rapidly be brought online, did not require the state to commit
105

See infra text accompanying notes 152-159. See also Isaacs, supra note 6, at 13.
In October 2016, CCA rebranded itself as “CoreCivic,” citing its expansion into reentry services and
other areas beyond traditional prisons. See Devlin Barrett, Private-Prison Firm CCA to Rename Itself CoreCivic, WALL
ST. JOURNAL (Oct. 28, 2016), http://www.wsj.com/articles/private-prison-firm-cca-to-rename-itself-corecivic1477666800. However, the nonprofit organization Community Initiatives for Visiting Immigrants in Confinement
(“CIVIC”), which provides services and support to detained and incarcerated immigrants, subsequently alleged that
CCA’s new CoreCivic mark infringed on CIVIC’s existing mark. Private Prison Company CCA Has Stolen the Name of a
Nonprofit that Advocates Against the Use of Private Prisons, CIVIC (Dec. 13, 2016), http://www.endisolation.org/
blog/archives/1165 [https://perma.cc/7DMK-J3BY]. Due to the likelihood of confusion with the CIVIC nonprofit
organization, this Article refers to the rebranded private prison company as “CCA/CoreCivic” rather than “CoreCivic.”
107
ACLU, BANKING ON BONDAGE: PRIVATE PRISONS AND MASS INCARCERATION 10, 13 (Nov. 2011),
https://www.aclu.org/files/assets/bankingonbondage_20111102.pdf [https://perma.cc/PL2H-FSK9]. Under the old English
keeper system, private “keepers” who ran prisons supported themselves by billing prisoners and their families for food and
accommodations. Though wealthy prisoners could pay to be held in furnished apartments, buy beer and meals, and receive
conjugal visits, those without means were relegated to dungeon-like cells. Id.; see also MITCHEL P. ROTH, PRISONS AND
PRISON SYSTEMS: A GLOBAL ENCYCLOPEDIA, at 188-89 (2006). The U.S. convict leasing began after the end of the Civil
War in the states of the former Confederacy. Under this system, tens of thousands of newly-freed African-Americans were
arrested on trumped-up charges and then “leased” by local sheriffs to coal mines, plantations, and work camps across the
South. DOUGLAS A. BLACKMON, SLAVERY BY ANOTHER NAME: THE RE-ENSLAVEMENT OF BLACK AMERICANS FROM THE
CIVIL WAR TO WORLD WAR II, 53-57, 89-93 (2008). Each business owner paid finder’s fees to the local sheriff and agreed
to take custody of the “leased” prisoners in exchange for the right to extract forced labor from the men while they
remained in his custody. Id. at 127-33. This practice continued well into the twentieth century, and provided a model for
monetizing incarceration that the private prison industry would adapt and modernize decades later. Id. at 57. See generally
DAVID M. OSHINSKY, “WORSE THAN SLAVERY”: PARCHMAN FARM AND THE ORDEAL OF JIM CROW JUSTICE (1996)
(describing convict-lease system in Mississippi and subsequent creation of Parchman prison farm).
108
U.S. DEP’T OF JUST., BUREAU OF JUSTICE STATISTICS, CENSUS OF STATE AND FEDERAL
CORRECTIONAL FACILITIES, 1995 iv (Aug. 1997); ALLEN J. BECK & PAIGE M. HARRISON, U.S. DEP’T OF JUST., BUREAU
OF JUSTICE STATISTICS, PRISONERS IN 2000 7, tbl. 8 (Aug. 2001); PRISONERS IN 2015, supra note 9, at 28, app. tbl 2. Note
that this number is underinclusive because it does not include immigration detention facilities, which are heavily
privatized.
109
Phillip Mattera et. al., GOOD JOBS FIRST, JAIL BREAKS: ECONOMIC DEVELOPMENT SUBSIDIES GIVEN TO
PRIVATE PRISONS 21-23, 28-29 (Oct. 2001), http://www.goodjobsfirst.org/sites/default/files/docs/pdf/jailbreaks.pdf
[https://perma.cc/FW9V-9RUJ].
106

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

144

[Vol. 20.2

to funding construction or being responsible for the entire multi-decade lifecycle of the physical
plant (that risk was, instead, borne by the host community), and would use the magic of the free
market to increase efficiency and decrease costs to the state.110
Yet neither promise was fully realized. For host communities, recent research has
concluded that building new private prisons is actually associated with negative local job growth
and depressed wages.111 And there are numerous cautionary tales of rural towns that went deeply
into debt to finance new private prisons only to be left with unpaid bills and ruined bond ratings
after their prisoner contracts ended. (Meanwhile, the private prison companies were able to
simply pack up and leave town.)112
As more and more prisoners are housed in private prisons, the early promises of
flexibility and freedom give way to vendor lock-in: once a state houses a substantial number of
people in private prisons, officials no longer have the ability to quickly cancel contracts and
relocate prisoners if they become dissatisfied with the performance of the private prison
industry.113 Take, for example, the infamous Kingman private prison in Arizona. In 2010, three
men escaped unnoticed from Kingman and then carjacked and murdered an elderly couple before
they were rearrested.114 A scathing security review by the Arizona Department of Corrections
concluded that private prison company MTC’s staff were inexperienced, undertrained, and
routinely ignored alarms; the state therefore removed 238 high-risk prisoners from Kingman until
MTC could address the problems cited in the review.115 However, the company was unfazed;
MTC even threatened to sue state officials, claiming that the state’s removal of these prisoners
violated a 97% minimum occupancy guarantee in its contract. The state caved, agreeing to
compensate MTC an additional $3 million for the empty prison beds.116 It was not until 2015,

110

JAMES AUSTIN & GARRY COVENTRY, U.S. DEP’T OF JUSTICE, EMERGING ISSUES ON PRIVATIZED
PRISONS 15 (2001).
111
Shaun Genter, Gregory Hooks & Clayton Mosher, Prisons, jobs and privatization: The impact of
prisons on employment growth in rural US counties, 1997–2004, 42 SOCIAL SCIENCE RESEARCH 596-610, 606-08 (2013).
112
See, e.g., John Burnett, Private Prison Promises Leave Texas Towns In Trouble, NAT’L PUBLIC RADIO
(Mar. 28, 2011), http://n.pr/i1MhWx [https://perma.cc/532A-KYL5] (describing how Littlefield, Texas borrowed $10
million to build a private prison that went empty after Idaho stopped sending prisoners and the private prison company
GEO Group left town); BANKING ON BONDAGE, supra note 107, at 22-23 (describing how Hardin, Montana issued $27
million in municipal bonds to finance a private prison but failed to obtain any contracts for prisoners); See Cristina
Costantini & Jorge Rivas, Texas town strikes private prison deal, then it all goes wrong, FUSION.NET (Apr. 8, 2015),
http://fusion.net/story/115888/texas-town-strikes-private-prison-deal-then-it-all-goes-wrong/
[https://perma.cc/9Q694NVC] (describing how Willacy, Texas is struggling to repay $63 million in bond debt after the Federal Bureau of Prisons
cancelled its contract for a private prison in Willacy).
113
See Dolovich, supra note 6, at 495-500 (discussing limited willingness of state agencies to cancel
private prison contracts).
114
Bob Ortega, Arizona prisons slow to fix flaws in wake of Kingman escape, ARIZ. REPUBLIC, Jun. 26,
2011,
http://www.azcentral.com/news/articles/2011/06/26/20110626arizona-prison-safety-improvements.html
[https://perma.cc/JE9R-BE79].
115
See Bob Ortega, Arizona prison oversight lacking for private facilities, ARIZ. REPUBLIC, Aug. 7, 2011,
http://www.azcentral.com/news/articles/2011/08/07/20110807arizona-prison-private-oversight.html
[https://perma.cc/UR7D-VDH7].
116
IN THE PUBLIC INTEREST, CRIMINAL: HOW LOCKUP QUOTAS AND “LOW-CRIME TAXES” GUARANTEE
PROFITS FOR PRIVATE PRISON CORPORATIONS, 9 (2013), http://www.njjn.org/uploads/digital-library/Criminal-LockupQuota,-In-the-Public-Interest,-9.13.pdf [https://perma.cc/AV9U-WK2L].

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

145

after a riot injured 16 people and badly damaged the facility, that the state finally decided to
cancel MTC’s contract—and awarded it to a different private prison company (GEO Group,
which had contributed $52,000 to the governor’s reelection campaign).117
The lock-in problem is even worse when a private prison company both owns and
manages the prison: in that situation, cancelling contracts and relocating prisoners would require
government officials to either build an entire new prison or identify available space elsewhere
(usually out-of-state) owned by another private prison company.118 In 2010, for example, the
Federal Bureau of Prisons was considering whether to renew its contract with the GEO Group’s
Reeves prison in Texas. Although BOP officials concluded that the prison contractor “did not
fulfil [sic] contract terms from [2006] award until Oct. 2010,” “Lack of healthcare has greatly
impacted inmate health and wellbeing,” and “Contractor shows little sign of improvement,” they
chose to renew the contract because non-renewal would cost time and money and cause BOP to
lose its “credibility as a solid customer” with the private prison companies.119 That “credibility”
came at a price. A 2015 contract audit by the U.S. Department of Justice’s Inspector General
identified numerous subsequent performance and staffing issues at Reeves as well as millions of
dollars in “unallowable or unsupported costs” paid to the contractor. 120
The limited competition in the private prison “market” further worsens the problem of
vendor lock-in. The market is often described as an effective duopoly of CCA/CoreCivic and
GEO Group.121 Together, these two companies dominate the market, with combined annual
117

Craig Harris, Arizona cuts ties with private-prison operator over Kingman riot, ARIZ. REPUBLIC, Aug.
27,
2015,
http://www.azcentral.com/story/news/arizona/politics/2015/08/26/arizona-kingman-riot-cause-correctionsdepartment-report/32432963/ [https://perma.cc/Q27V-YHQ4]; See Laurie Roberts, Roberts: Private prison contract goes
to Ducey contributor, ARIZ. REPUBLIC, Oct. 28, 2015, http://www.azcentral.com/story/opinion/op-ed/laurieroberts/2015/
10/28/roberts-private-prison-contract-goes-ducey-contributor/74750596/ [https://perma.cc/LY75-8VBK].
118
In statements to its investors, CCA/CoreCivic states that its owned-and-managed facilities have a
greater than 90% contract retention rate because of “high barriers to entry & switching costs;” for its government
customers, constructing a replacement prison would require “significant capital” and a “long construction timeline.” CCA,
FOURTH QUARTER 2015 INVESTOR PRESENTATION, at A-13, (Feb. 2016), http://www.cca.com/investors/presentationswebcasts-events [https://perma.cc/SS6M-ZZZ5] (click on “Fourth Quarter 2015 Investor Presentation”). Both
CCA/CoreCivic and GEO, the two largest private prison companies in the United States, have shifted most of their
portfolios to owned-and-managed facilities rather than managed-only facilities. As of December 31, 2015, CCA/Corecivic
reported that of its total portfolio of approximately 88,500 beds, only 15,048 (17%) were on management-only contracts
and the remainder were owned by the company. CCA, 2015 ANNUAL REPORT ON FORM 10-K FOR THE FISCAL YEAR
ENDING DECEMBER 31, 2015, at 53, 65 (Feb. 25, 2016), http://www.cca.com/investors/financial-information/annualreports [https://perma.cc/D6TM-ZU7M]. As of the same date, of GEO’s portfolio of 86,054 beds, 32,992 (38%) were on
management-only contracts and the remainder were owned by the company. GEO, SUPPLEMENTAL INFORMATION,
FOURTH QUARTER AND FULL YEAR 2015, at 10 (Feb. 17, 2016), http://www.snl.com/irweblinkx/QuarterlyResults.aspx?
iid=4144107 [https://perma.cc/5SRR-7QL2].
119
ACLU, WAREHOUSED AND FORGOTTEN: IMMIGRANTS TRAPPED IN OUR SHADOW PRIVATE PRISON
SYSTEM, 54-55 (2014), https://www.aclu.org/sites/default/files/assets/060614-aclu-car-reportonline.pdf. [https://perma.cc/
LX6V-48EK].
120
OFFICE OF THE INSPECTOR GENERAL, U.S. DEP’T. OF JUSTICE, AUDIT OF THE FEDERAL BUREAU OF
PRISONS CONTRACT NO. DJB1PC007 AWARDED TO REEVES COUNTY, TEXAS TO OPERATE THE REEVES COUNTY
DETENTION CENTER I/II PECOS, TEXAS, i-ii, 17 (2015), https://oig.justice.gov/reports/2015/a1515.pdf [https://perma.cc/
KV93-74D3].
121
See, e.g., Henry Hoffman, Corrections Corp. of America Can Help Right Your Profile, SEEKING ALPHA
(Aug. 6, 2010, 10:15 AM), http://seekingalpha.com/article/219078-corrections-corp-of-america-can-help-right-yourportfolio [https://perma.cc/6NVZ-GCKN]; Joe Weisenthal, This Investor Presentation For A Private Prison Is One of the
Creepiest Presentations We’ve Ever Seen, BUSINESS INSIDER (Mar. 12, 2012, 1:06 PM), http://www.businessinsider.com/

146

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

[Vol. 20.2

revenues exceeding $3 billion and nearly 175,000 facility beds.122 The third-largest private prison
company, privately-held MTC, is markedly smaller; its corrections division consists of about
26,000 beds.123 CCA/CoreCivic and GEO Group have acquired essentially all other competitors of
any size.124 It is unlikely that the market will become more competitive in the future, because the
significant capital requirements for prison construction and the established market advantages
held by CCA/CoreCivic and GEO create high barriers to entry.125
Evidence of the claimed cost savings from private prisons has been at best mixed. For
example, from 2008 to 2010, Arizona’s own Department of Corrections repeatedly concluded that
the state was paying more money to house prisoners in private prisons than in comparable state
prisons.126 A number of other studies have reached similar conclusions.127 Meanwhile, the most
prominent study to date finding that private prisons offered a better value than public prisons was
actually the subject of a university ethics complaint because its authors failed to disclose the
the-private-prison-business-2012-3 [https://perma.cc/37MX-9MLY]; Matt Kennard, US states seek to privatize prisons,
FINANCIAL TIMES (Sept. 19, 2011, 6:21 PM), https://www.ft.com/content/6ba2792e-d00b-11e0-81e2-00144feabdc0.
122
Corrections Corporation of America (CXW) Income Statement, YAHOO! FINANCE,
https://finance.yahoo.com/q/is?s=CXW&annual [https://perma.cc/BB6R-YYUZ] (last visited Apr. 12, 2016); The GEO
Group, Inc (GEO) Income Statement, YAHOO! FINANCE, https://finance.yahoo.com/q/is?s=GEO&annual
[https://perma.cc/62V3-TRFV] (last visited Apr. 12, 2016); supra note 118 (discussing portfolios of CCA/CoreCivic and
GEO).
123
MANAGEMENT & TRAINING CORPORATION, CORRECTIONS (2015), http://www.mtctrains.com/sites/
default/files/1pager_Corrections.pdf [https://perma.cc/B66E-GDN7].
124
See generally, GEO to Buy Cornell Companies for $685 Million, DEALBOOK (April 19, 2010, 7:32
AM), http://dealbook.nytimes.com/2010/04/19/geo-to-buy-cornell-companies-for-685-million/ [https://perma.cc/D5V6Z42Y]; see generally, The GEO Group Announces Acquisition of Eight Correctional and Detention Facilities Totaling
More Than 6,500 Beds, BUSINESS WIRE (Jan. 26, 2015, 7:55 AM), http://www.businesswire.com/
news/home/20150126005618/
en/GEO-Group-Announces-Acquisition-Correctional-Detention-Facilities [https://perma.cc/D3ZD-JJVD].
125
See, e.g., UNIVERSITY OF OREGON INVESTMENT GROUP, CORRECTIONS CORPORATION OF AMERICA 6
(Nov.
19,
2009),
http://uoinvestmentgroup.org/wp-content/uploads/2009/12/Corrections-Corp.-of-America.pdf
[https://perma.cc/JB33-ESZX]; Mike Fee, Corrections Corporation vs. GEO Group: Which Prison Stock Should You
Buy?, THE MOTLEY FOOL (June 16, 2014, 7:03 AM), http://www.fool.com/investing/general/2014/06/16/correctionscorporation-vs-geo-group-which-prison.aspx [https://perma.cc/4XAF-3UTM]; See also, CCA, FOURTH QUARTER 2015
INVESTOR PRESENTATION, supra note 118, at 14, A-13 (noting high barriers to entry).
126
AMERICAN FRIENDS SERVICE COMMITTEE, PRIVATE PRISONS: THE PUBLIC’S PROBLEM, 19-21 (Feb.
2012), https://afsc.org/sites/afsc.civicactions.net/files/documents/AFSC_Arizona_Prison_Report.pdf [https://perma.cc/
4CZD-DXCV] (summarizing cost comparisons); Craig Harris, Arizona faces growing cost of private prisons, ARIZONA
REPUBLIC, Dec. 29, 2013, http://archive.azcentral.com/news/arizona/articles/20131204arizona-private-prisons-growingcost.html [https://perma.cc/D295-CDLV] (the last such cost comparison was conducted in 2010 because the Arizona
legislature repealed the cost comparison statute in 2012). John Kavanagh, Private prisons really are cheaper for
taxpayers, THE ARIZONA REPUBLIC (Jan. 10, 2014, 10:41AM), http://archive.azcentral.com/opinions/articles/20140111
private-prisons-keep-money-taxpayers-pockets.html [https://perma.cc/52PQ-GVDD].
127
See, e.g., STATE OF HAWAII, THE AUDITOR GENERAL, REPORT NO. 10-10, MANAGEMENT AUDIT OF
THE DEPARTMENT OF PUBLIC SAFETY’S CONTRACTING FOR PRISON BEDS AND SERVICES: A REPORT TO THE GOVERNOR
AND THE LEGISLATURE OF THE STATE OF HAWAI’I, 16 (2010) (finding that Hawaii Department of Public Safety
“repeatedly misled lawmakers and the public” by reporting inaccurate incarceration costs that favored sending prisoners to
CCA/CoreCivic private prisons on the Mainland instead of publicly-operated prisons in Hawaii); GOV’T
ACCOUNTABILITY OFFICE, GAO-08-6, COST OF PRISONS: BUREAU OF PRISONS NEEDS BETTER DATA TO ASSESS
ALTERNATIVES FOR ACQUIRING LOW AND MINIMUM SECURITY FACILITIES 2, 4 (2007) (finding that BOP failed to collect
adequate data to determine whether private federal prisons were more or less expensive than publicly operated federal
prisons).

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

147

funding they received from the private prison industry.128 And there is evidence that private
prisons are artificially deflating their average costs by cherry-picking young, healthy prisoners
who are the least expensive to house.129
Additionally, correctional officials and the public slowly realized that handing control of
prisons over to for-profit companies has profound human consequences. In slightly more than
thirty years of operation, the private prison industry has racked up a long and disturbing record of
abuse, neglect and misconduct.
To take just a few examples: In what has become known as the “Kids for Cash” scandal,
two Pennsylvania juvenile court judges were convicted of accepting some $2.6 million in
kickbacks in exchange for sending thousands of juvenile defendants to private prisons from 2002
to 2009.130 One Idaho prison operated by CCA/CoreCivic was so brutal that prisoners nicknamed
it “the Gladiator School,” and a study by the Idaho Department of Corrections found that more
acts of violence occurred in the Gladiator School than Idaho’s seven other prisons combined. The
ACLU sued over the culture of violence and brutality in this prison in 2010 and reached a
settlement with CCA/CoreCivic in 2011—but the company broke that agreement and repeatedly
falsified security staffing records, leading a federal judge to find the company in contempt of
court in 2013.131 In Ohio, the state sold a public prison to CCA/CoreCivic in 2011; by the end of
128

Matt Stroud, Corporations are using dubious research to take over prisons, THE VERGE, Aug. 6, 2014;
Martha Woodall, Temple completes probe of profs’ prison study, PHILADELPHIA INQUIRER, July 18, 2014. The widelycirculated working paper and numerous op-eds published by the authors did not disclose the funding sources. See Simon
Hakim & Erwin Blackstone, Cost Analysis of Public and Contractor-Operated Prisons, (Apr. 2013) (Working Paper,
Temple University); Simon Hakim & Erwin Blackstone, Op-Ed, Data shows running prisons for profit is a win-win,
DETROIT FREE PRESS (June 7, 2013); Simon Hakim & Erwin Blackstone, Op-Ed, Private prisons offer big savings for
Maine corrections budget, KENNEBEC JOURNAL (May 23, 2013); Simon Hakim & Erwin Blackstone, Op-Ed, Temple
economics professors: Private prisons make fiscal sense, NEWSOK (May 17, 2013); Erwin Blackstone & Simon Hakim,
Op-Ed, Blackstone, Hakim: Prison privatization can provide real benefits, SUN-SENTINEL (May 7, 2013). The final
version of the study, published in non-peer-reviewed form by a libertarian think tank, belatedly disclosed the funding the
authors received from the private prison industry. See SIMON HAKIM & ERWIN A. BLACKSTONE, PRISON BREAK: A NEW
APPROACH TO PUBLIC COST AND SAFETY (June 2014) (“The authors of the study were partially funded by members of the
private corrections industry. No other funding was provided.”).
129
See Christopher Petrella, The Color of Corporate Corrections, Part II: Contractual Exemptions and the
Overrepresentation of People of Color in Private Prisons, RADICAL CRIMINOLOGY, No. 3, 81, 82-85 (Dec. 2013)
(concluding that people of color are overrepresented in private prisons compared to public prisons, and attributing this to
policies that allow private prisons to select for younger, healthier prisoners, who happen to be disproportionately people of
color); Richard A. Oppel, Jr. Private Prisons Found to Offer Little in Savings, N.Y. TIMES (May 18, 2011),
http://www.nytimes.com/2011/05/19/us/19prisons.html [https://perma.cc/9QUG-SWHU] (quoting Arizona state legislator
accusing private prisons of “cherry-picking” by taking the “easy prisoners” and leaving the “most expensive prisoners
with the taxpayers”). Indeed, in early 2015, the newly-appointed head of the Florida Department of Corrections candidly
admitted to legislators that the private prison companies are allowed to cherry-pick the “least violent and the healthiest
inmates,” although she backtracked on the remarks the following day. Sascha Cordner, Could Florida’s New DOC Head
Be Backing Away From Certain Earlier Candid Remarks?, WFSU (Jan. 21, 2015), http://news.wfsu.org/post/couldflorida-s-new-doc-head-be-backing-away-certain-earlier-candid-remarks [https://perma.cc/SA5S-8T6G].
130
Craig R. McCoy, Former Pa. judge gets 28 years in ‘kids for cash’ case, PHILLY.COM (Aug. 12, 2011),
http://articles.philly.com/2011-08-11/news/29876628_1_ciavarella-michael-t-conahan-juvenile-court
[https://perma.cc/24CT-EPHN]; Ian Urbina, Despite Red Flags About Judges, a Kickback Scheme Flourished, N.Y. TIMES
(Mar. 27, 2009), http://www.nytimes.com/2009/03/28/us/28judges.html [https://perma.cc/LP7P-S7QF].
131
Press Release, ACLU Lawsuit Charges Idaho Prison Officials Promote Rampant Violence,
ACLU (Mar. 11, 2010), www.aclu.org/news/aclu-lawsuit-charges-idaho-prison-officials-promote-rampant-violence
[https://perma.cc/2SWW-P8T8]; Carl Takei & Stephen Pevar, CCA At It Again: Held in Contempt for Understaffing

148

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

[Vol. 20.2

2012, the prison had experienced a 300% increase in prisoner-on-staff assaults and a 180%
increase in prisoner-on-prisoner assaults since the last state correctional inspection.132 In 2012, a
federal judge described how a private prison operated by GEO Group, Inc. for young men and
teenagers in Mississippi had devolved into “a cesspool of unconstitutional and inhuman acts and
conditions” and “a picture of such horror as should be unrealized anywhere in the civilized
world,” and ordered mass transfers out of the prison.133 At another private prison in Mississippi
(first run by GEO Group and then taken over by MTC, another private prison company), an
ACLU lawsuit detailed grisly allegations of abuse and neglect, including rampant rapes, people
held in solitary confinement with untreated mental illnesses, guards ignoring fires set in cells, and
malnourishment and chronic hunger.134 An ACLU report, a subsequent investigative report in The
Nation, and three reports by the Justice Department’s Inspector General detailed how profitseeking in the BOP’s private prisons for immigrants led to overcrowding, understaffing, and
deaths from shockingly bad medical care.135 These findings were so horrifying that in August
2016, the Justice Department concluded that private prisons “compare poorly to our own bureau
facilities” and announced a multi-year phase-out of the BOP’s private prison contracts.136 (The
election of Donald Trump as president has, however, raised questions about the future of this
phase-out plan.137) Additionally, a number of studies have found that violence is more prevalent in
Prison and Lying About It, ACLU (Sept. 17, 2013), https://www.aclu.org/blog/cca-it-again-held-contempt-understaffingprison-and-lying-about-it [https://perma.cc/2NLK-FWT4]; Kelly v. Wengler, No. 1:11-cv-00185-EJL (D. Idaho Sept. 16,
2013) (order finding CCA/CoreCivic in contempt of court), https://www.aclu.org/legal-document/kelly-v-wenglermemorandum-decision-and-order-finding-cca-civil-contempt?redirect=prisoners-rights/kelly-v-wengler-memorandumdecision-and-order-finding-cca-civil-contempt [https://perma.cc/AQE9-ARQC]. See also Letter from Randy Blades,
Warden, Idaho Dep’t of Correction, to Phillip Valdez, Warden, Idaho Correctional Center (Aug. 28, 2008) (on file with
the author) (“Since the beginning of 2008, incidents of violence at the Idaho Correctional Center has [sic] steadily
increased to the point that there are four incidents for every one that occurs in the rest of the Idaho state operated facilities
combined.”).
132
Another Bad Inspection for CCA-Owned Lake Erie Correctional Institution, ACLU OF OHIO:
PRISONERS’ RIGHTS PRESS RELEASE (Feb. 25, 2013), http://www.acluohio.org/archives/press-releases/another-badinspection-for-cca-owned-lake-erie-correctional-institution [https://perma.cc/7NU8-8V3N].
133
Order Approving Settlement, DePriest v. Epps, et al., No. 3:10-cv-00663-CWR, at 5-6 (S.D. Miss. Mar.
26, 2012). This came not long after the U.S. Department of Justice issued a similar report describing staff sexual
misconduct at Walnut Grove as “brazen” and among the worst that DOJ had seen “in any facility anywhere in the nation.”
Letter from Thomas E. Perez, Asst. Attorney General Civil Rights Division, to Phil Bryant, Mississippi Governor, Re:
Investigation of the Walnut Grove Youth Correctional Facility (Mar. 20, 2012), http://www.justice.gov/sites/
default/files/crt/legacy/2012/04/09/walnutgrovefl.pdf [https://perma.cc/4KEB-8DYR].
134
Complaint, Dockery v. Epps, Civil Action No. 3:13-cv-00326 (S.D. Miss. May 30, 2013),
http://www.clearinghouse.net/chDocs/public/PC-MS-0007-0001.pdf [https://perma.cc/MT5U-3ME4].
135
See generally ACLU, WAREHOUSED AND FORGOTTEN, supra note 119; Seth Freed Wessler, Separate,
Unequal, and Deadly, THE NATION, Jan. 28, 2016, at 13-21; Office of the Inspector General, supra note 120; OFFICE OF
THE INSPECTOR GENERAL, U.S. DEP’T. OF JUSTICE, REVIEW OF THE FEDERAL BUREAU OF PRISONS’ MONITORING OF
CONTRACT PRISONS (2016), https://oig.justice.gov/reports/2016/e1606.pdf [https://perma.cc/9279-SP7V]; OFFICE OF THE
INSPECTOR GENERAL, U.S. DEP’T. OF JUSTICE, AUDIT OF THE FEDERAL BUREAU OF PRISONS’ CONTRACT WITH
CORECIVIC, INC. TO OPERATE THE ADAMS COUNTY CORRECTIONAL CENTER IN NATCHEZ, MISSISSIPPI (2016),
https://oig.justice.gov/reports/2016/a1708.pdf [https://perma.cc/48P8-MLLU].
136
Charlie Savage, U.S. to Phase Out Use of Private Prisons for Federal Inmates, N.Y. TIMES (Aug. 18,
2016),
http://www.nytimes.com/2016/08/19/us/us-to-phase-out-use-of-private-prisons-for-federal-inmates.html?_r=0
[https://perma.cc/DLT9-EQJW].
137
See Jeff Sommer, Trump’s Win Gives Stocks in Private Prison Companies a Reprieve, N.Y. TIMES
(Dec. 3, 2016), http://www.nytimes.com/2016/12/03/your-money/trumps-win-gives-stocks-in-private-prison-companies-a-

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

149

private prisons, and that recidivism is higher for people held in private prisons than public
prisons.138
Despite this record, private prisons have grown into a multibillion-dollar industry. The
two largest private prison companies—Corrections Corporation of America/CoreCivic and GEO
Group—are both publicly traded, with annual revenues of, respectively, $1.79 billion and $1.84
billion in 2015.139 They have developed into a potent lobbying force in both state and federal
arenas, with their lobbying and campaign contributions targeted at particular states and particular
congressional committees.140 For example, the Palm Beach Post reported that in Florida alone,
private prison companies spent more than $4 million on state political parties, election committees
and candidate campaigns between 2000 and 2013.141 In Oklahoma, private prisons skeptic Justin
Jones was forced to resign from his position as Director of the Oklahoma Department of
Corrections in 2013, reportedly because private prison lobbyists objected to his resistance to
expanding privatization.142 His successor quickly expressed openness to more private prison
contracts.143
The industry also exerts influence through indirect means. Arizona’s SB 1070
legislation, which increased the state’s powers to jail immigrants, was based on model legislation

reprieve.html [https://perma.cc/8CAC-3UW3] (discussing how private prison stocks rebounded after Trump’s
election); Seth Freed Wessler, Donald Trump’s Looming Mass Criminalization, THE NATION (Nov. 28, 2016),
https://www.thenation.com/article/donald-trumps-looming-mass-criminalization/
[https://perma.cc/CB3K-S3Y2]
(describing likely BOP expansion under Trump).
138
Curtis R. Blakely & Vic W. Bumphus, Private and Public Sector Prisons – A Comparison of Select
Characteristics, 68 FED. PROBATION 27, 30 (2004) (concluding that “the private sector is a more dangerous place to be
incarcerated,” and reporting that based on national data, “the private sector experienced more than twice the number of
assaults against inmates than did the public sector.”); AUSTIN & COVENTRY, supra note 110 at 52 (reported that “the
privately operated facilities have a much higher rate of inmate-on-inmate and inmate-on-staff assaults and other
disturbances” than publicly operated facilities, when institutions of similar security levels are compared.); Anita
Mukherjee, Do Private Prisons Distort Justice? Evidence on Time Served and Recidivism (Mar. 15, 2015),
http://harris.uchicago.edu/sites/default/files/NLSY97/Paper%20sent%20091715.pdf
[https://perma.cc/UWJ9-CR7X]
(finding that, compared to those in public prisons, people held in private prisons end up serving more time without
attendant reductions in recidivism).
139
CXW Income Statement, supra note 122; GEO Income Statement, supra note 122.
140
JUSTICE POLICY INSTITUTE, GAMING THE SYSTEM: HOW THE POLITICAL STRATEGIES OF PRIVATE
PRISON COMPANIES PROMOTE INEFFECTIVE INCARCERATION POLICIES (June 2011), http://www.justicepolicy.org/uploads/
justicepolicy/documents/gaming_the_system.pdf
[https://perma.cc/LV8C-DTWG];
BETHANY
CARSON
&
ELEANA DIAZ, GRASSROOTS LEADERSHIP, PAYOFF: HOW CONGRESS ENSURES PRIVATE PRISON PROFIT WITH
AN
IMMIGRATION DETENTION QUOTA 6 (Apr. 2015), http://grassrootsleadership.org/sites/default/files/
reports/quota_report_final_digital.pdf [https://perma.cc/WP9N-BERJ].
141
Pat Beall, Money at the Statehouse? Prison firms pour it on, PALM BEACH POST (Nov. 16, 2013),
http://www.mypalmbeachpost.com/news/news/money-at-the-statehouse-prison-firms-pour-it-on/nbtPN/
[https://perma.cc/BF7F-F4RC].
142
Barbara Hoberock, Corrections professionals connect DOC exec’s resignation to private prison
lobbying, TULSA WORLD (June 19, 2013), http://www.tulsaworld.com/news/government/corrections-professionalsconnect-doc-exec-s-resignation-to-private-prison/article_95bcaf7a-2906-5646-bb7f-ed4991af10a2.html
[https://perma.cc/KK8F-4NVF]; Sean Wallace, Playing politics with prison, OKLAHOMA GAZETTE (July 2, 2013),
http://okgazette.com/2013/07/02/playing-politics-with-prison/ [https://perma.cc/8PM9-EUW5].
143
New Oklahoma Corrections director willing to use private prisons, NEWSOK (Feb. 22, 2014),
http://newsok.com/article/3936345 [https://perma.cc/8N9H-84EJ].

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

150

[Vol. 20.2

drafted by a committee of the American Legislative Exchange Council (“ALEC”), a membership
organization of state legislators and corporate interests. CCA/CoreCivic’s representative to ALEC
participated in the ALEC meetings that generated this model legislation.144
There is a revolving door between correctional agencies and the private prison industry.
In 2011, for example, Harley Lappin became an executive at CCA/CoreCivic less than a month
after retiring from his position as Director of the Federal Bureau of Prisons.145 Similarly, Stacia
Hylton left the Office of the Federal Detention Trustee—where she was responsible for managing
federal detention acquisitions for BOP, ICE, and the U.S. Marshals Service—in 2010 to consult
for GEO Group, and then returned to head the U.S. Marshals Service later that year.146 A host of
other high-level corrections officials have followed similar paths into the private prison
industry.147 Additionally, private prison companies foster cozy relationships with corrections
officials through sponsorships and contributions to industry associations such as the American
Correctional Association, the American Jail Association, the Association of State Correctional
Administrators, the Corrections Technology Association, and the National Sheriffs’
Association.148
Private prisons suffer from oversight and transparency problems. A 2012 report by the
National Council on Crime and Delinquency concluded that oversight and monitoring of private
prisons has “proven to be difficult and tends to be lax and ineffective.”149 Meanwhile, the public
remains in the dark because many public records statutes do not reach documents held by private
prison companies.150
The private prison industry depends on the expansion of the carceral state for its
continued profitability. The annual reports that the two largest private prison companies file with
144

Laura Sullivan, Prison Economics Help Drive Ariz. Immigration Law, NPR (Apr. 4, 2012, 4:12 PM),
http://n.pr/9paAzO; How Corporate Interests Got SB 1070 Passed, NPR: AROUND THE NATION (Feb. 23, 2012, 2:26 PM),
http://n.pr/aNi0nF [https://perma.cc/R53S-HZYC].
145
James Ridgeway, Federal Prison Director Defects to Private Prison Company, MOTHER JONES (June 3,
2011),
http://www.motherjones.com/mojo/2011/06/federal-prison-director-takes-job-private-prison-company
[https://perma.cc/DG4B-N9TW].
146
Id.; Jim McElhatton, Watchdog groups rip marshals nominee, THE WASH. TIMES (Nov. 10, 2010),
http://www.washingtontimes.com/news/2010/nov/10/watchdog-groups-rip-marshals-nominee/
[https://perma.cc/AJ8HPMD3].
147
See, e.g., Cristina Costantini & Jorge Rivas, Shadow Prisons, FUSION.NET (Feb. 4, 2015),
http://interactive.fusion.net/shadow-prisons/ [https://perma.cc/Q3WS-EM3L] (listing former DOJ and DHS officials who
obtained executive positions at private prison companies); Jennifer Sullivan, State Prisons Chief Leaving for Private
Corrections Job, SEATTLE TIMES (Sept. 22, 2015), http://www.seattletimes.com/seattle-news/state-prisons-head-leavingfor-private-corrections-job/ [https://perma.cc/84VU-W8EK]; Zaid Jilani, NM Corrections Secretary Refusing to Penalize
Contract-Breaching Private Prison Company He Used To Work For, THINKPROGRESS (Sept. 7, 2010, 5:02 PM),
http://thinkprogress.org/politics/2010/09/07/117742/nm-secretary-penalize-prison/ [https://perma.cc/9HUD-U7EM].
148
See generally IN THE PUBLIC INTEREST, BUYING ACCESS (Aug. 2015), https://www.inthepublicinterest.
org/wp-content/uploads/Buying-Access-In-the-Public-Interest-PDF.pdf [https://perma.cc/BGC6-5DQ3].
149
CHRISTOPHER HARTNEY & CAROLINE GLESMANN, NATIONAL COUNCIL ON CRIME & DELINQUENCY,
PRISON BED PROFITEERS: HOW CORPORATIONS ARE RESHAPING CRIMINAL JUSTICE IN THE U.S. 15 (MAY 2012),
http://www.nccdglobal.org/sites/default/files/publication_pdf/prison-bed-profiteers.pdf [https://perma.cc/YVL8-YURN].
See also, e.g., WAREHOUSED AND FORGOTTEN, supra note 119, at 52-55 (criticizing BOP’s lack of adequate oversight in
its private prison contracts); LIVES IN PERIL, supra note 98, at 11-13 (criticizing ICE’s lack of adequate oversight in its
private prison contracts).
150
Mike Tartaglia, Note, Private Prisons, Private Records, 94 B.U. L. REV. 1689, 1722-32 (2014)
(describing limited applicability of public records laws to private prisons).

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

151

the SEC describe this relationship in frank terms. For example, CCA/CoreCivic’s 2014 annual
report states:
Our growth is generally dependent upon our ability to obtain new contracts to
develop and manage correctional and detention facilities . . . . The demand for
our facilities and services could be adversely affected by the relaxation of
enforcement efforts, leniency in conviction or parole standards and sentencing
practices or through the decriminalization of certain activities that are currently
proscribed by criminal laws. For instance, any changes with respect to drugs
and controlled substances or illegal immigration could affect the number of
persons arrested, convicted, and sentenced, thereby potentially reducing demand
for correctional facilities to house them. Immigration reform laws are currently
a focus for legislators and politicians at the federal, state, and local level.
Legislation has also been proposed in numerous jurisdictions that could lower
minimum sentences for some non-violent crimes and make more inmates
eligible for early release based on good behavior. Also, sentencing alternatives
under consideration could put some offenders on probation with electronic
monitoring who would otherwise be incarcerated. Similarly, reductions in crime
rates or resources dedicated to prevent and enforce crime could lead to
reductions in arrests, convictions and sentences requiring incarceration at
correctional facilities.151
As decarceration has become a greater topic of political discussion, the private prison
industry has responded by adding community corrections facilities and community supervision to
its portfolios, and adopting new messaging designed to accommodate the new bipartisan
consensus that the United States holds too many people in prison.
Between 2013 and 2016, CCA/CoreCivic acquired three companies—Correctional
Alternatives, Inc., Avalon Correctional Services, and Correctional Management, Inc.—that
operate community corrections facilities, and purchased other community corrections facilities in
Pennsylvania. As a result, CCA/CoreCivic now has nearly 5,000 community correctional beds in
its portfolio.152 The company sees clear opportunities in what it describes as a “fragmented”
market for reentry services—i.e., an environment mainly populated by nonprofit and small, local
for-profit entities—and CCA/CoreCivic executives claim the corporation’s size and
diversification give it a competitive advantage.153 In August 2014, CCA/CoreCivic’s President
151

SEC, FORM 10-K, ANNUAL REPORT OF CORRECTIONS CORPORATION OF AMERICA 27-28 (Dec. 31,

2014).
152

Corrections Corporation of America (CXW) CEO Damon Hininger on Q1 2016 Results - Earnings Call
Transcript, SEEKING ALPHA (May 5, 2016, 11:00 AM), http://seekingalpha.com/article/3972006-corrections-corporationamericas-cxw-ceo-damon-hininger-q1-2016-results-earnings-call?part=single [https://perma.cc/HL6A-WFRH]. See also
Press Release, CCA Acquires Correctional Alternatives, Inc., CCA (Aug. 5, 2013 12:00 PM), https://www.cca.com/pressreleases/cca-acquires-correctional-alternatives-inc [https://perma.cc/4W6G-7F6E]; Press Release, CCA Announces
Acquisition of Avalon Correctional Services, Inc., GLOBENEWSWIRE (Oct. 29, 2015), https://globenewswire.com/newsrelease/2015/10/29/781383/0/en/CCA-Announces-Acquisition-of-Avalon-Correctional-Services-Inc.html
[https://perma.cc/Y2GK-UUYL]; Press Release, CCA Acquires Correctional Management, Inc., GLOBENEWSWIRE (Apr.
11, 2016), https://globenewswire.com/news-release/2016/04/11/827544/0/en/CCA-Acquires-Correctional-ManagementInc.html [https://perma.cc/YA5X-KB96].
153
See Corrections Corporation of America (CXW) CEO Damon Hininger on Q3 2015 Results - Earnings

152

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

[Vol. 20.2

and CEO delivered a speech in which he claimed that “[r]eentry programs and reducing
recidivism are 100 percent aligned with our business model,” and stated that thanks to the
company’s new acquisitions of community corrections facilities, “[i]f policymakers put a major
emphasis on community corrections—and many experts believe they should—CCA/CoreCivic is
positioned to help.”154
GEO Group has also moved aggressively to expand into providing other types of carceral
services. In 2011, GEO acquired Behavioral Interventions, Inc. (“BI”), a provider of GPS tracking
services for criminal justice and immigration agencies.155 GEO has successfully widened the net
for BI’s services in the immigration context, with ICE increasingly placing GPS monitors on
Central American mothers released from family detention facilities. According to news reports,
ICE increased its use of ankle-mounted GPS trackers by about forty percent in just the first half of
2015, with both the equipment and staffing provided by GEO Group.156
GEO also provides the same GPS trackers and monitoring services for criminal justice
agencies. In February 2016, GEO reported that its BI subsidiary was supervising some 139,000
people, including 89,000 people on GPS supervision and other electronic tracking products.157
GEO has also been expanding its portfolio of residential community corrections facilities, day
reporting centers, and juvenile facilities. In February 2016, the company reported that it had
twenty-one residential community corrections facilities with some 3,000 beds, sixty-four day
reporting centers supervising more than 4,000 people, and twelve juvenile residential facilities.158
As a result, the company’s annual reports have begun noting that while the company’s growth is

Call Transcript, SEEKING ALPHA (Nov 6, 2015, 7:10 PM), http://seekingalpha.com/article/3659136-correctionscorporation-americas-cxw-ceo-damon-hininger-q3-2015-results-earnings-call?part=single [https://perma.cc/XZ9R-Q9JW]
(“Since our acquisition of CAI in 2013, we have continued to develop a robust pipeline of acquisition opportunities in this
fragmented market and we believe there will continue to be many attractive targets available that can contribute to our
future growth.”); CORRECTIONS CORPORATION OF AMERICA, REMARKS AS PREPARED FOR DAMON HININGER, PRESIDENT
AND CEO 3 (Aug. 22, 2014), http://www.cca.com/Media/Default/documents/Social-Responsibility/Providing-Proven-ReEntry-Programs/Hininger-Reentry-Speech-Transcript.pdf [https://perma.cc/LF9C-23TB] (“We can provide consistency
and common standards across facilities. We can serve multiple levels of government on an as-needed basis. And perhaps
most importantly, we can scale.”); Carl Takei, Prisons Are Adopting the Walmart Business Model, HUFFINGTON POST
(Sept.
29,
2014),
http://www.huffingtonpost.com/carl-takei/prisons-walmart-business-model_b_5900964.html
[https://perma.cc/A3E7-SDRQ].
154
Hininger, supra note 153, at 3-4.
155
Press Release, The GEO Group Closes $415 Million Acquisition of B.I. Incorporated, (Feb. 11, 2011,
7:37 AM), http://www.businesswire.com/news/home/20110211005372/en/GEO-Group-Closes-415-Million-AcquisitionB.I [https://perma.cc/25VD-JG6Y].
156
John Burnett, As Asylum Seekers Swap Prison Beds for Bracelets, Same Firm Profits, NAT’L PUBLIC
RADIO (Nov. 13, 2015 4:56 AM), http://www.npr.org/2015/11/13/455790454/as-asylum-seekers-swap-prison-beds-forankle-bracelets-same-firm-profits [https://perma.cc/VBH2-7EPD]; Molly Hennessy-Fiske, Immigrants Object to Growing
Use of Ankle Monitors After Detention, L.A. TIMES (Aug. 2, 2015, 3:30 AM), http://www.latimes.com/nation/
immigration/la-na-immigrant-ankle-monitors-20150802-story.html [https://perma.cc/38R3-XUHN]. See Julie Turkewitz,
Immigrant Mothers Released From Holding Centers, but With Ankle Monitors, N.Y. TIMES (July 29, 2014),
http://www.nytimes.com/2014/07/30/nyregion/immigrant-mothers-released-from-holding-centers-but-with-anklemonitors.html?_r=0. [https://perma.cc/VV6K-X2EK]. See also RUTGERS SCHOOL OF LAW IMMIGRATION RIGHTS CLINIC,
supra note 94 (describing the burdens of immigrants subjected to GPS monitoring).
157
GEO Group Q4 2015 Earnings Call Transcript, supra note 95.
158
Id.

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

153

“primarily dependent” on prison, jail, and detention contracts, they are also able to grow based on
“our ability to obtain new contracts to offer electronic monitoring services, provide communitybased re-entry services and provide monitoring and supervision services . . .”159
Meanwhile, privatized probation (which is currently entrenched in Alabama, Georgia,
and a few other places in the South, but is still mainly performed by small local and regional
companies) is a growing business that will become a natural acquisition target for CCA/CoreCivic
and GEO in the coming years. Under the privatized probation model, a for-profit company takes
over the entire probation function, with corporate “probation officers” exercising the same kinds
of broad, discretionary authority as government probation officers. As discussed infra, this leads
to serious abuses.
D.
 The “User-Funded” Criminal Justice System
Starting in the 1980s, the rising costs of the criminal justice system led a growing
number of states to begin billing criminal defendants for the operation of the system that
prosecutes them—euphemistically described as criminal justice “user fees.” By 2014, at least
forty-three states and the District of Columbia permitted defendants to be billed for a public
defender, at least forty-one states permitted prisoners to be charged room and board for jail and
prison, and at least forty-four states permitted people to be billed for their own probation and
parole supervision.160
Funding the criminal justice on the backs of people entangled in the system does not
reduce crime. Instead, research indicates that charging such fees harms a person’s ability to
reintegrate back into society after a criminal conviction.161 What the “user-funded” criminal
justice system does enable, however, is further growth of the carceral state despite taxpayers’
unwillingness or inability to fund this juggernaut. And once the system is “user-funded,” private,
for-profit companies are all too happy to take advantage.
As a result, court-imposed criminal justice debts are hardly the only form of “user fees”
charged to people ensnared in the system. Recently, the Federal Communications Commission
(“FCC”) began to regulate the exorbitant telephone rates and ancillary fees charged to people in
prison (and, by extension, their families and friends) by prison-specific phone companies.162 In the

159

See SEC, FORM 10-K, ANNUAL REPORT OF THE GEO GROUP, INC. 36 (Dec. 31, 2014),
http://investors.geogroup.com/Cache/1500077485.PDF?O=PDF&T=&Y=&D=&FID=1500077485&iid=4144107
[https://perma.cc/9U7H-EWSN].
160
Joseph Shapiro, As Court Fees Rise, The Poor Are Paying The Price, NAT’L PUBLIC RADIO (May 19,
2014),
http://www.npr.org/2014/05/19/312158516/increasing-court-fees-punish-the-poor
[https://perma.cc/XW4NUWRC].
161
Douglas N. Evans, The Debt Penalty: Exposing the Financial Barriers to Offender Reintegration,
RESEARCH & EVALUATION CENTER, JOHN JAY COLLEGE OF CRIMINAL JUSTICE at 9 (August 2014),
https://www.prisonfellowship.org/site/wp-content/uploads/2015/12/The-Debt-Penalty_John-Jay_August-2014.pdf
[https://perma.cc/92PB-32NC]; Lauren-Brooke Eisen, Charging Inmates Perpetuates Mass Incarceration, BRENNAN
CENTER FOR JUSTICE at 2, 4-5 (2015), https://www.brennancenter.org/sites/default/files/blog/Charging_Inmates_Mass_
Incarceration.pdf [https://perma.cc/YH4G-H9AJ].
162
Second Report and Order and Third Further Notice of Proposed Rulemaking, In the Matter of Rates for
Interstate Inmate Calling Services, WC Docket No. 12 (FCC Nov. 5, 2015), https://apps.fcc.gov/edocs_
public/attachmatch/FCC-15-136A1.pdf [https://perma.cc/6MR4-RS2P]; Report and Order and Further Notice of Proposed
Rulemaking, In the Matter of Rates for Interstate Inmate Calling Services, WC Docket No. 12 (FCC Sept. 26, 2013),
https://apps.fcc.gov/edocs_public/attachmatch/FCC-13-113A1.pdf [https://perma.cc/2YVQ-D7H9].

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

154

[Vol. 20.2

absence of regulation, a corrupt system developed in which phone service providers offer
“commission payments”—a form of legalized kickback that prison and jail administrators use to
subsidize their operations—that can rise as high as 84.1% of the per-minute rates. As a result,
prison and jail administrators typically award phone service contracts to whichever company
promises the highest commissions. And the phone companies pass the cost of the commissions
onto end-users through inflated per-minute rates, per-connection fees, account deposit fees,
account maintenance charges, account refund charges, and other fees.163 Specialized banking
services (which, for security reasons, are typically the only method by which people in prison and
jail can purchase goods or services) take similar advantage of prisoners and their families, and are
essentially unregulated.164 Such companies can squeeze a last round of profits from prisoners even
after their release, by issuing released prisoners’ remaining money on high-fee debit cards that
can charge withdrawal fees of up to three dollars per transaction and account closure fees of up to
thirty dollars.165
The profiteering continues outside of prison walls. In some states, local jurisdictions
have actually contracted out probation to for-profit companies, with disastrous results.166 These
companies do not bill the courts that contract with them; instead, they make their profits by
collecting fees from the people they supervise.167 Take, for example, Elvis Mann, a fifty-five year
old man in Childersburg, Alabama, whose monthly income consists of $800 in disability benefits
and approximately $300 in food stamps, and who was subject to private probation for committing
several misdemeanor offenses. The court ordered him to pay $8,929 in fines and costs, and to go
on probation with a company called Judicial Correction Services (“JCS”). Over a seven-year
period, Mann paid off more than $6,500 of his judicial debt, typically in installments of $50 to
$100 that he dropped off at the JCS office. Often, however, only about half of each installment
payment went to pay off his debt to the court. The rest—more than $3,000—went into JCS’s
pockets.168 Some companies may further inflate the bill; the Southern Center for Human Rights
recently filed a lawsuit alleging that one private probation company is requiring defendants to pay
for drug tests that the court never actually ordered.169

163

DREW KUKOROWSKI, PETER WAGNER & LEAH SAKALA, PRISON POLICY INITIATIVE, PLEASE DEPOSIT
ALL OF YOUR MONEY: KICKBACKS, RATES, AND HIDDEN FEES IN THE JAIL PHONE INDUSTRY 3-10 (May 2013).
164
Daniel Wagner, Prison bankers cash in on captive customers, THE CENTER FOR PUBLIC INTEGRITY
(Sept. 30, 2014 5:00 AM), http://www.publicintegrity.org/2014/09/30/15761/prison-bankers-cash-captive-customers
[https://perma.cc/86A5-LAUE].
165
Letter from Stephen Raher, Pro Bono Legal Analyst, Prison Policy Initiative, to Richard Cordray,
Director, Consumer Financial Protection Bureau 4 (March 18, 2015), http://static.prisonpolicy.org/releasecards/CFPBcomment.pdf [https://perma.cc/6X3Q-D5MV]; see generally Amadou Diallo, ‘Release cards’ turn inmates and their
families into profit stream, AL JAZEERA AMERICA (April 20, 2015), http://america.aljazeera.com/articles/
2015/4/20/release-cards-turn-inmates-and-their-families-into-profit-stream.html [https://perma.cc/W8ZA-8RBN].
166
See Sarah Solon, Preying on the Poor: For-Profit Probation Edition, ACLU.org (June 18, 2014),
https://www.aclu.org/blog/preying-poor-profit-probation-edition
[https://perma.cc/7DFC-F75G] PROFITING FROM
PROBATION, supra note 5. In DeKalb County, Georgia, the ACLU successfully sued to stop debtors’ prison practices
involving a private probation company. See Thompson v. DeKalb County, ACLU (Mar. 19, 2015),
https://www.aclu.org/cases/thompson-v-dekalb-county [https://perma.cc/X93G-KN6F].
167
See generally PROFITING FROM PROBATION, supra note 5, at 15-16.
168
Id. at 22-23.
169
See generally Carrie Teegardin, Low-income women forced into illegal urine screens in traffic cases,
suit says, ATLANTA JOURNAL-CONSTITUTION (Feb. 18, 2016), http://investigations.blog.ajc.com/2016/02/18/low-incomewomen-forced-into-illegal-urine-screens-in-traffic-cases-suit-says/ [https://perma.cc/D4QD-SBPK].

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

155

Like government probation officers, private probation officers have the power to decide
whether or not to seek a probation revocation hearing against their supervisees. In Georgia alone,
Human Rights Watch found that 124,788 arrest warrants were issued in 2012 for people on
private probation.170 The combination of these powers and the company’s desire for profit can
turn probation meetings into shakedowns backed up by threats of arrest. One woman interviewed
by Human Rights Watch described it this way: “Every time I went down there [to the private
probation company’s office] they was nasty. They’d threaten me with jail and I said, ‘Please,
don’t throw me in jail. I don’t want to lose my kid.’”171
Even where probation is not entirely privatized, for-profit companies have taken over
key supervision functions like GPS monitoring—and bill criminal defendants for the costs of their
own monitoring. These costs can be cripplingly high; for example, one private, for-profit GPS
monitoring company reportedly charges supervisees $300 per month, plus a $179.50 setup fee, for
their court-ordered GPS monitoring. Supervisees who fail to pay the fees are sent back to jail.172
The growth of the user-funded criminal justice system means that a frightening array of
companies are able to profit from the continued flow of people into the criminal justice system
and the inability of these people to escape the system, regardless of what happens to state or local
budgets. And the more that government agencies hand off these functions to private entities, the
more these profiteers will be able to block supervisees from exiting the criminal justice system.
II. REFORM EFFORTS
This section builds on Part I’s description of the carceral state by describing the origins
and growth of current left-right reform efforts and explaining the divergent interests of the left
and right in decarceration. This discussion lays the foundation for Part III’s argument that
progressives should avoid relying solely on this alliance.
A.
 Voices in the Wilderness
In the early years of the War on Drugs, liberal leaders—including many Black leaders—
initially responded by lining up in support of harsher sentencing and heavier police presences in
Black neighborhoods.173 For example, thirteen of the twenty voting members of the Congressional
Black Caucus (“CBC”) supported the Anti-Drug Abuse Act of 1986—including the nowinfamous 100:1 sentencing disparity between crack and powder cocaine that this bill created.174
As the growing carceral state consumed ever more people and neighborhoods from the
1990s to the mid-2000s, a small handful of progressives began trying to raise alarms. But they
were marginalized—voices in the wilderness. Although members of the CBC eventually reversed
positions and called for an end to the sentencing disparities between crack sales and powder
cocaine sales, a moral panic over drugs and urban crime continued to dominate the mainstream
liberal discourse. In 1992, then-Governor Bill Clinton ran for president on an explicitly “tough on
170

PROFITING FROM PROBATION, supra note 5, at 51-52.
Id. at 50.
172
Eric Markowitz, Chain Gang 2.0: If You Can’t Afford This GPS Ankle Bracelet, You Get Thrown In
Jail, INT’L BUSINESS TIMES, Sept. 21, 2015, http://www.ibtimes.com/chain-gang-20-if-you-cant-afford-gps-ankle-braceletyou-get-thrown-jail-2065283 [https://perma.cc/9N9J-VZ2V].
173
NAS REPORT, supra note 8, at 140-141.
174
GOTTSCHALK, supra note 7, at 153; Kyle Graham, Sorry Seems to Be the Hardest Word: The Fair
Sentencing Act of 2010, Crack, and Methamphetamine, 45 U. RICH. L. REV. 765, 778 (2011).
171

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

156

[Vol. 20.2

crime” platform.175 After Clinton’s election, Sen. Joe Biden (D-DE) and Rep. Charles Schumer
(D-NY) spearheaded an effort to develop and pass the 1994 Crime Bill, which—among other
things—dramatically ratcheted up mandatory minimum sentences, expanded the federal death
penalty, and authorized billions of dollars in funding for new prisons.176 Democrats in the 1994
midterm congressional elections competed to show who could be the most effective “tough on
crime” candidate.177 In 1996, President Clinton signed the Anti-Terrorism and Effective Death
Penalty Act, dramatically curtailing the ability of convicted prisoners to challenge unjust
sentences, and slamming the courthouse door on many wrongly-convicted prisoners.178 This
rhetoric and action was replicated in state governments, which adopted numerous policy changes
to make the criminal justice system harsher and symbolically denounce people who committed
criminal offenses.179 By the year 2000, the Justice Policy Institute estimated that the United States
had put more people behind bars in the 1990s than any other decade in the country’s history.180
During this time, mainstream liberals continued to stick to the “tough on crime”
mantra.181 Meanwhile, mainstream civil rights organizations often decried individual instances of
unfairness, but did not attack the larger system.182 The exceptions were relatively few in number
and had distressingly little impact on the broader policy landscape.183 With the publication of
Michelle Alexander’s The New Jim Crow in 2010, however, these voices broke into the liberal
175

Gwen Ifill, THE 1992 CAMPAIGN: The Democrats; Clinton, in Houston Speech, Assails Bush on
Crime Issue, N.Y. TIMES (July 24, 1992) (describing campaign speech in which Clinton, flanked by police officers,
intoned, “We cannot take our country back until we take our neighborhoods back . . . You can’t have civil justice without
order and safety.”).
176
Clyde Haberman, When Youth Violence Spurred ‘Superpredator’ Fear, N.Y. TIMES: RETRO REPORT
(April 6, 2014), http://nyti.ms/1kgDX5d [https://perma.cc/ZWX2-KLM2]; Elizabeth Becker, As Ex-Theorist on Young
‘Superpredators,’ Bush Aide Has Regrets, N.Y. TIMES (Feb. 9, 2001); Justice in Focus: Crime Bill @ 20, VERA INSTITUTE
OF JUSTICE, http://crimebill20.vera.org/justiceinfocus#chapter-119970 [https://perma.cc/NC7U-K997] (last visited Feb.
11, 2016); Marc Mauer, Bill Clinton, Black Lives, and the Myths of the 1994 Crime Bill, THE MARSHALL PROJECT,
https://www.themarshallproject.org/2016/04/11/bill-clinton-black-lives-and-the-myths-of-the-1994-crime-bill#.fatdNO2sy
[https://perma.cc/37XD-N5VG].
177
Paul Waldman, When Everyone Wanted to Be “Tough on Crime,” THE AMERICAN PROSPECT (Aug. 13,
2013) (“My firm had about 30 clients, all Democrats, and we did tough-on-crime pieces for every single one . . . . [E]very
candidate was accusing every other candidate of being soft on crime.”).
178
Press Release, President William J. Clinton, Statement on Signing the Antiterrorism and Effective
Death Penalty Act of 1996 (April 24, 1996), http://www.presidency.ucsb.edu/ws/?pid=52713 [https://perma.cc/JK48JCNT]; RONALD WEICH, ACLU, UPSETTING CHECKS AND BALANCES: CONGRESSIONAL HOSTILITY TOWARD THE
COURT IN TIMES OF CRISIS 6, 25 (Oct. 2001), https://www.aclu.org/sites/default/files/FilesPDFs/ACF47C9.pdf
[https://perma.cc/KG28-9H7T].
179
See NAS REPORT, supra note 8, at 78-85.
180
JUSTICE POLICY INSTITUTE, THE PUNISHING DECADE: PRISON AND JAIL ESTIMATES AT
THE MILLENNIUM 1 (May 2000), http://www.justicepolicy.org/images/upload/00-05_rep_punishingdecade_ac.pdf
[https://perma.cc/WX2G-7LXR].
181
See Harry A. Chernoff et. al., The Politics of Crime, 33 HARV. J. ON LEGIS. 527, 551 (1996) (describing
the political maneuvering that led to passage of the 1994 Crime Bill). See also GOTTSCHALK, supra note 7, at 153.
182
ALEXANDER, supra note 30, at 209-17 (describing this dynamic).
183
See, e.g., Marie Gottschalk, Dismantling the Carceral State: The Future of Penal Policy Reform, 84
TEX. L. REV. 1693 (2006) (describing the carceral state and proposing strategies for dismantling it); Marc Mauer, Thinking
About Prison and its Impact in the Twenty-First Century, 2 OHIO STATE J. OF CRIM. LAW 607 (2005) (describing and
analyzing mass incarceration as its own phenomenon); Paul Butler, Racially Based Jury Nullification: Black Power in the
Criminal Justice System, 105 YALE L.J. 677, 714 (1995) (arguing that Black jurors should engage in race-based jury
nullification as a way to “opt out” of a racist criminal justice system).

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

157

and progressive mainstream.184 As a then-new staff attorney at the ACLU’s National Prison
Project, I was both excited and surprised to see how quickly mass incarceration became a nearuniversal topic of discussion.185
B.
 The Critique from the Left
The left has not coalesced around a single critique of mass incarceration or the carceral
state. However, advocates on the left have articulated several key goals. Many of these goals have
broad support from both mainstream and radical organizations.
Ending the War on Drugs is one such goal. In many cases, this is explicitly linked to a
racial justice critique that emphasizes the disparate enforcement of drug laws against people of
color.186 It also typically involves a call to end the hyper-aggressive policing tactics associated
with the War on Drugs, including the widespread use of military-style tactics and equipment,
mass surveillance, and “jump out” squads.187
Another goal is the liberation of Black and Brown communities from the oppressive
control of police and the criminal justice system. This is the core of the New Jim Crow critique
and a major goal of the Black Lives Matter movement. Black Lives Matter began in 2013 as part
of a new burst of Black activism in response to George Zimmerman’s acquittal on both murder
and manslaughter charges for shooting Trayvon Martin.188 However, it grew to national
prominence in 2014 and 2015, as the movement forced white America and mainstream liberals to
acknowledge the sheer number of unarmed Black people killed by police.189 In the words of one
184

See, e.g., Jennifer Schuessler, Drug Policy as Race Policy: Best Seller Galvanizes the Debate, N.Y.
TIMES (Mar. 6, 2012), http://www.nytimes.com/2012/03/07/books/michelle-alexanders-new-jim-crow-raises-drug-lawdebates.html [https://perma.cc/manage/create] (describing impact of The New Jim Crow); see generally Darryl Pinckney,
Invisible Black America, THE NEW YORK REVIEW OF BOOKS, Mar. 10, 2011 (praising The New Jim Crow).
185
While the term “mass incarceration” was in use in some circles when The New Jim Crow was first
published, its frequency of usage in news articles shot upward from 2010 onward. See Oliver Roeder, A Million People
Were In Prison Before We Called It Mass Incarceration, FIVETHIRTYEIGHT.COM, Sept. 18, 2015,
http://fivethirtyeight.com/
features/a-million-people-were-in-prison-before-we-called-it-mass-incarceration/ [https://perma.cc/G2BG-H8FZ].
186
See, e.g., ACLU, THE WAR ON MARIJUANA IN BLACK AND WHITE, 17-21 (2013),
https://www.aclu.org/sites/default/files/field_document/1114413-mj-report-rfs-rel1.pdf
[https://perma.cc/24SP-ZDEP];
Press Release, NAACP Passes Historic Resolution Calling For End To War On Drugs, NAACP (July 26, 2011),
http://www.naacp.org/press/entry/naacp-passes-historic-resolution-calling-for-end-to-war-on-drugs
[https://perma.cc/XB2Y-6AQU].
187
See, e.g., ACLU, WAR COMES HOME: THE EXCESSIVE MILITARIZATION OF AMERICAN POLICING 41
(June 2014), https://www.aclu.org/sites/default/files/assets/jus14-warcomeshome-report-web-rel1.pdf [https://perma.cc/
QJR3-ZKE8]; Rep. Hank Johnson, The Failed ‘War on Drugs’ Is Militarizing Law Enforcement, Fueling Police Violence,
HUFFPOST BLACK VOICES: THE BLOG (Dec. 24, 2014), http://www.huffingtonpost.com/rep-hank-johnson/the-failed-waron-drugs-i_b_6043558.html [https://perma.cc/B77G-SGFZ]; Nicole Flatow, If You Thought Stop-And-Frisk Was Bad, You
Should Know About Jump-Outs, THINKPROGRESS (Dec. 10, 2014, 12:49 PM), http://thinkprogress.org/justice/
2014/12/10/3468340/jump-outs/ [https://perma.cc/5E5C-DDE2].
188
Alicia Garza, A Herstory of the #BlackLivesMatter Movement by Alicia Garza, THEFEMINISTWIRE.COM
(Oct. 7, 2014), http://www.thefeministwire.com/2014/10/blacklivesmatter-2/ [https://perma.cc/Z9MC-GFGZ]. See also
Ben Baker, The Politico 50: No. 3: Alicia Garza, Patrisse Cullors, Opal Tometi, The three-word civil rights movement,
POLITICO MAGAZINE (Sept./Oct. 2015), http://www.politico.com/magazine/politico50/2015/alicia-garza-patrisse-cullorsopal-tometi [https://perma.cc/2VDW-YMMA]; Mychal Denzel Smith, How Trayvon Martin’s Death Launched a New
Generation of Black Activism, THE NATION (Sept. 15, 2014).
189
See, e.g., Wesley Lowery, Hillary Clinton to call for ending racial profiling and disparities in crack

158

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

[Vol. 20.2

of its founders, Black Lives Matter is “a response to the anti-Black racism that permeates our
society and also, unfortunately, our movements.” Black Lives Matter seeks to secure the basic
dignity and human rights of Black people, not just in the context of police killings and
incarceration, but also in response to Black poverty, disenfranchisement, and other forms of
oppression.190 Other grassroots organizations seek similar goals for Latino and immigrant
communities, such as United We Dream and #Not1More.191
Ending harsh, arbitrary sentencing regimes such as Three Strikes and mandatory
minimum sentencing is another widely-supported goal.192 Some are extending this critique beyond
the most extreme manifestations of arbitrary sentencing. For example, Marc Mauer
recently proposed that prison sentences should generally be limited to no more than twenty
years—an idea borrowed from Norway and premised on the diminishing public safety returns of
each successive year of incarceration.193
A further goal is to remove the profit motive from the criminal justice system. This
means not just ending prisons operated entirely by for-profit companies, but also dismantling the
providers of ancillary services—including medical care, telephone service, and prisoner financial
services—that depend on and profit from the criminal justice system.194 In recent years, this has
cocaine sentences, WASH. POST, Oct. 30, 2015, https://www.washingtonpost.com/news/post-politics/wp/2015/10/30/
hillary-clinton-to-call-for-elimination-of-racial-profiling-and-end-of-crack-cocaine-distinction/?utm_term=.ef97f87dacce
[https://perma.cc/8SK7-XSMN]; Wesley Lowery, President Obama addresses sentencing reform, lack of policing data
and the Black Lives Matter movement, WASH. POST, Oct. 22, 2015, https://www.washingtonpost.com/news/postpolitics/wp/2015/10/22/president-obama-addresses-sentencing-reform-lack-of-policing-data-and-the-black-lives-mattermovement/?utm_term=.e1d11138c61f [https://perma.cc/8SR5-JD6G]; Nicholas Quah & Laura E. Davis, Here’s A
Timeline Of Unarmed Black People Killed By Police Over Past Year, BUZZFEED.COM, May 1, 2015,
http://www.buzzfeed.com/nicholasquah/heres-a-timeline-of-unarmed-black-men-killed-by-police-over#.wuplYZ1na
[https://perma.cc/F8HY-MBQU]; Brittney Cooper, “I am not afraid to die”: Why America will never be the same postFerguson, SALON (Sept. 3, 2014), http://www.salon.com/2014/09/03/”i_am_not_afraid_to_die”_why_america_will_
never_be_the_same_post_ferguson/ [https://perma.cc/YY7Y-ZYLL].
190
Garza, supra note 188. See also Nicole D. Porter, Unfinished Project of Civil Rights in the Era of Mass
Incarceration and the Movement for Black Lives, 6 WAKE FOREST J. LAW & POLICY 1 (2016) (arguing that Black Lives
Matter framework can be used to support more ambitious criminal justice reforms).
191
About
Us,
UNITED
WE
DREAM,
http://unitedwedream.org/about/our-missions-goals/
[https://perma.cc/MCP2-8TTT] (last visited March 1, 2016) (empowering immigrant youth to address inequities and
obstacles faced by immigrants); About, #NOT1MORE, http://www.notonemoredeportation.com/about/ [https://perma.cc/
BAN3-HFBZ] (last visited March 1, 2016) (challenging unfair deportations and criminalization through organizing, art,
legislation, and action).
192
See, e.g., Press Release, ACLU Advocates For Abolition Of Mandatory Minimums Before U.S.
Sentencing Commission, ACLU (May 27, 2010), https://www.aclu.org/news/aclu-advocates-abolition-mandatoryminimums-us-sentencing-commission [https://perma.cc/PK2Y-AX8U]; THE LEADERSHIP CONFERENCE, FACT SHEET:
SENTENCING AND MANDATORY MINIMUMS, http://civilrightsdocs.info/pdf/criminal-justice/Sentencing-Fact-Sheet.pdf
[https://perma.cc/Z4PD-AHSD] (last updated July 23, 2015); Reforming California’s “Three Strikes” Policy, NAACP
Legal Defense and Educational Fund, http://www.naacpldf.org/case-issue/reforming-californias-three-strikes-policy
[https://perma.cc/VZK2-QK5D] (last updated Oct. 25, 2013).
193
Marc Mauer, A 20-Year Maximum for Prison Sentences, 39 DEMOCRACY (2016),
http://democracyjournal.org/magazine/39/a-20-year-maximum-for-prison-sentences/ [https://perma.cc/3RSN-QGNZ].
194
See, e.g., Private Companies Profit from Almost Every Function of America’s Criminal Justice System,
IN THE PUBLIC INTEREST (Jan. 20, 2016), http://www.inthepublicinterest.org/private-companies-profit-from-almost-every/
[https://perma.cc/RJ4C-985P]; GRASSROOTS LEADERSHIP, THE DIRTY THIRTY: NOTHING TO CELEBRATE ABOUT 30
YEARS OF CORRECTIONS CORPORATION OF AMERICA (June 2013), http://grassrootsleadership.org/sites/
default/files/uploads/GRL_Dirty_Thirty_formatted_for_web.pdf [https://perma.cc/5S66-3KQ9]; BERNADETTE RABUY &

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

159

become a particular rallying cry at universities: in 2013, students at Florida Atlantic University
successfully blocked a private prison company from buying the naming rights to the college’s
football stadium, and in 2015, students at Columbia University and the University of California
system successfully campaigned for their schools to divest from private prison companies.195
A further goal is to remove barriers to former prisoners who are returning to the
community and provide them with what is often described as a “second chance.” At a technocratic
level, there is frequent discussion of these topics and a number of efforts have been undertaken to
evaluate the impact of reentry programs on recidivism.196 However, it is important to distinguish
between these efforts and a broader critique; as Gottschalk and others have pointed out, the terms
“reentry” and “second chance” are deeply misleading in the context of deindustrialization and
systemic racial inequality.197 Fortunately, there are a number of efforts by formerly incarcerated
people to create these chances for others, rooted in values of human dignity and equality rather
than the narrow goal of recidivism reduction. One example is Glenn Martin, a former prisoner
who founded Just Leadership U.S.A. to build a grassroots, social-justice-oriented movement that
emphasizes how “America has relentlessly relied on incarceration as a solution to complex social
problems.”198 Critiques that link the carceral state to a broader critique of neoliberalism also play
an important role, by reminding us that the carceral state must be understood within the context of
larger American political, economic, and social forces that economically disenfranchise large

PETER WAGNER, PRISON POLICY INITIATIVE, SCREENING OUT FAMILY TIME: THE FOR-PROFIT VIDEO VISITATION
INDUSTRY IN PRISONS AND JAILS (Jan. 2015), http://static.prisonpolicy.org/visitation/ScreeningOutFamilyTime_
January2015.pdf [https://perma.cc/4GTP-SV2K]; DREW KUKOROWSKI, PETER WAGNER, & LEAH SAKALA, PRISON
POLICY INITIATIVE, PLEASE DEPOSIT ALL OF YOUR MONEY: KICKBACKS, RATES, AND HIDDEN FEES IN THE JAIL PHONE
INDUSTRY (May 2013), http://static.prisonpolicy.org/phones/please_deposit.pdf [https://perma.cc/CN5X-K6YJ]; ACLU,
BANKING ON BONDAGE: PRIVATE PRISONS AND MASS INCARCERATION 10-11 (2011), https://www.aclu.org/files/assets/
bankingonbondage_20111102.pdf [https://perma.cc/7WMK-74ND]; CAROLINE ISAACS, AMERICAN FRIENDS SERVICE
COMMITTEE—ARIZONA, DEATH YARDS: CONTINUING PROBLEMS WITH ARIZONA’S CORRECTIONAL HEALTH CARE (Oct.
2013), http://afsc.org/sites/afsc.civicactions.net/files/documents/DeathYardsFINAL.pdf [https://perma.cc/35GC-U9EN];
JUSTICE POLICY INSTITUTE, supra note 140.
195
Greg Bishop, After Protests, Prison Firm Pulls Donation, N.Y. TIMES (Apr. 2, 2013),
http://www.nytimes.com/2013/04/03/sports/ncaafootball/stadium-wont-be-named-for-private-prison-company.html
[https://perma.cc/WYU5-Q2L2]; Wilfred Chan, Columbia becomes first U.S. university to divest from prisons, CNN (June
24, 105) http://www.cnn.com/2015/06/23/us/columbia-university-prison-divest/ [https://perma.cc/28FP-LA3E]; Jason
Song, UC system divests $30 million in prison holdings amid student pressure, L.A. TIMES (Dec. 26, 2015),
http://www.latimes.com/local/education/la-me-uc-divestment-prisons-20151226-story.html
[https://perma.cc/CXR7A3WE].
196
See, e.g., JEFF MELLOW, ET AL., THE JAIL ADMINISTRATOR’S TOOLKIT FOR REENTRY (May 2008),
http://johnjay.jjay.cuny.edu/files/Jail_Admin_Toolkit.pdf [https://perma.cc/KET2-WHMS]; NANCY G. LAVIGNE & JAKE
COWAN, MAPPING PRISONER REENTRY: AN ACTION RESEARCH GUIDEBOOK (2005), http://www.urban.org/
sites/default/files/alfresco/publication-pdfs/411250-Mapping-Prisoner-Reentry.PDF [https://perma.cc/2RC4-A67X].
197
GOTTSCHALK, supra note 7, at 79-97 (arguing that narrowly focusing on reentry as a path out of the
carceral state ignores the deeper structural issues and political economy on which the carceral state rests).
198
Katti Gray, The Evolution of a Prison Reformer, THE CRIME REPORT (Nov. 10, 2014, 6:11 AM),
http://www.thecrimereport.org/news/inside-criminal-justice/2014-11-the-evolution-of-a-prison-reformer
[https://perma.cc/ATP7-MV6F]; Eleanor J. Bader, Formerly Incarcerated Activist Leads Organization to Mobilize Hearts
and Minds for Decarceration, TRUTHOUT (July 29, 2015), http://www.truth-out.org/news/item/32097-formerlyincarcerated-activist-leads-organization-to-mobilize-hearts-and-minds-for-decarceration [https://perma.cc/Z47A-3X6P];
Advocacy, JUST LEADERSHIP USA, https://www.justleadershipusa.org/advocacy/#more [https://perma.cc/8XZP-VDU5]
(last visited March 1, 2016).

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

160

[Vol. 20.2

swaths of the population.199 These critiques highlight how ongoing unmet community needs and
individual needs help contribute to growth and maintenance of the carceral state.
The most radical and ambitious position on the left, and the one that seeks to unite all of
these critiques, is outright abolition of prisons. As described by longtime activist scholar Angela
Davis, prison abolitionists urge that rather than seeking out a single alternative to the existing
system of incarceration, we should envision a whole range of new institutions to replace it:
“demilitarization of schools, revitalization of education at all levels, a health system that provides
free physical and mental care to all, and a justice system based on reparation and reconciliation
rather than retribution and vengeance.”200 There are a number of local grassroots activists around
the country who endorse prison abolition and are working to build individual institutions along
these lines.201 Ultimately, however, prison abolition is inherently a revolutionary project. As
Truthout editor Maya Schenwar put it, “The monumental shift toward a system structured by
connection instead of isolation will be a shift so deep that it will leave this country
unrecognizable.”202
Even for advocates who believe that prison abolition is an unrealistic goal, the
abolitionist critique is important because it forces prison reform advocates to clarify the role that
incarceration should play in society: If incarceration must continue to exist, then who should be
incarcerated, for how long, in what kind of environment, and for what purposes? Are retribution
and incapacitation sufficient justifications for forcibly removing people from their neighborhoods
and exerting near-total control over their daily lives? If not, what must a prison accomplish in
order to justify its existence? Asking these questions allows us to radically rethink our model of
incarceration. The prison systems of various western European countries offer useful ideas that
U.S. reformers can draw upon. Germany and the Netherlands, for example, treat rehabilitation and
resocialization as the primary goals of incarceration. Rather than constantly dehumanizing the
people in their custody, German and Dutch prisons rely on positive reinforcement, seek to
maintain the connection between prisoners and the larger society, and consider their goal to be to
help prisoners lead more productive, independent lives in society once they return to the
communities.203
The abolitionist critique also raises difficult, important questions about what the societal
response should be to poverty, substance abuse, mental illness, and other factors that contribute to
crime and social disorder. By identifying answers to these questions that do not involve
prosecution, we can chart out real alternatives to the criminal justice system instead of defaulting
to dehumanizing “alternatives to incarceration” that merely function as prisons without walls.
199

GOTTSCHALK, supra note 7, at 10-22; see also Jeremy Kaplan-Lyman, Note, A Punitive Bind: Policing,
Poverty, and Neoliberalism in New York City, 15 YALE HUM. RTS. & DEV. L.J. 177 (2012). Neoliberalism is an ideology
of privileging market-based measures and values over democratic demands, and has been described as a dominant
paradigm for modern law and politics. See, e.g., David Singh Grewal & Jedediah Purdy, Introduction: Law and
Neoliberalism, 77 LAW & CONTEMP. PROBS. 1, 2-3 (2014); Corinne Blalock, Neoliberalism and the Crisis of Legal
Theory, 77 LAW & CONTEMP. PROBS. 71, 72 (2014).
200
ANGELA Y. DAVIS, ARE PRISONS OBSOLETE?, 107 (2003) (describing and defending prison abolition).
201
See MAYA SCHENWAR, LOCKED DOWN, LOCKED OUT: WHY PRISON DOESN’T WORK AND HOW WE
CAN DO BETTER, 185-98 (2014) (chronicling a range of local advocates who are advocating for prison abolition).
202
Id. at 196.
203
See RAM SUBRAMANIAN & ALISON SHAMES, VERA INSTITUTE OF JUSTICE, SENTENCING AND PRISON
PRACTICES IN GERMANY AND THE NETHERLANDS: IMPLICATIONS FOR THE UNITED STATES 11-14 (Oct. 2013),
http://www.vera.org/sites/default/files/resources/downloads/european-american-prison-report-v3.pdf
[https://perma.cc/6ED6-LXB3].

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

161

C.
 The Right Speaks Out
1.
 Right on Crime, the Heritage Foundation, the Cato Institute, and the Koch Brothers
Much like the mainstream left, mainstream conservatives spent the 1980s, 1990s and
early 2000s contributing to the explosion of mass incarceration.204 During this time, a handful of
libertarians—primarily at the Cato Institute—were raising alarms about both the War on Drugs
and mass incarceration, but were largely ignored by mainstream conservatives.205 Additionally,
Chuck Colson was a lonely voice among evangelicals calling for prison reform.206 By the mid2000s, Pat Nolan, David Keene, Richard Viguerie, and Grover Norquist had joined this small
cadre of criminal justice skeptics.207 In 2010, after Newt Gingrich joined the cadre, they agreed
that the time was ripe for them to launch a public campaign to rally conservatives to end mass
incarceration, and announced the “Right on Crime” campaign late that year.208 Supported by the
staff of the Texas Public Policy Foundation (an Austin-based libertarian and conservative think
tank), Right on Crime rolled out its reform agenda in 2011 with a series of op-eds from Gingrich,
Norquist, and Nolan.209
Right on Crime frames criminal justice reform in terms of familiar conservative ideas:
“constitutionally limited government, transparency, individual liberty, personal responsibility,
free enterprise, and the centrality of the family and community.”210 Right on Crime’s statement of
principles devotes significant attention to fiscal conservative principles, such as evaluating the
criminal justice system on whether it provides “the best possible results at the lowest possible

204

See, e.g., Adam Clymer, A G.O.P. Leader Aims At ‘Welfare State’ Values, N.Y. TIMES (Jan. 5, 1992)
(quoting Newt Gingrich as calling on U.S. to “build enough prisons so that there are enough beds that every violent
criminal in America is locked up, and they will serve real time and they will serve their full sentence and they do not get
out on good behavior.”); NAS REPORT, supra note 8, at 113-17 (discussing Republican use of crime to appeal to white
racial anxieties).
205
See, e.g., DAVID BOAZ, CATO INSTITUTE, DRUG LEGALIZATION, CRIMINALIZATION, AND HARM
REDUCTION, TESTIMONY BEFORE SUBCOMMITTEE ON CRIMINAL JUSTICE, DRUG POLICY, AND HUMAN RESOURCES
COMMITTEE ON GOVERNMENT REFORM, UNITED STATES HOUSE OF REPRESENTATIVES (June 16, 1999),
http://www.cato.org/publications/congressional-testimony/drug-legalization-criminalization-harm-reduction
[https://
perma.cc/P46A-DDQZ]; DAVID B. KOPEL, CATO POLICY ANALYSIS NO. 208, PRISON BLUES: HOW AMERICA’S FOOLISH
SENTENCING POLICIES ENDANGER PUBLIC SAFETY (May 17, 1994), http://www.cato.org/pubs/pas/pa-208es.html
[https://perma.cc/KE5M-QD8T].
206
DAVID DAGAN & STEVEN TELES, NEW AMERICA FOUNDATION, HOW CONSERVATIVES TURNED
AGAINST MASS INCARCERATION: PART OF NEW AMERICA’S STRANGE BEDFELLOWS SERIES, 5 (Sept. 2015),
https://static.newamerica.org/attachments/9631-how-conservatives-turned-against-mass-incarceration/CriminalJustice
Reform-Final.0f577974be1d404e8626ec758b71ba6e.pdf [https://perma.cc/RWC6-8SE9].
207
Id. at 6.
208
Id. at 7-10; TPPF launches ‘Right on Crime’ campaign, GRITS FOR BREAKFAST (Dec. 13, 2010),
http://gritsforbreakfast.blogspot.com/2010/12/tppf-launches-right-on-crime-campaign.html
[https://perma.cc/7VGPMRDB].
209
Newt Gingrich & Pat Nolan, Opinion, Prison Reform: A Smart Way for States to Save Money and Lives,
WASH. POST (Jan. 7, 2011), http://www.washingtonpost.com/wp-dyn/content/article/2011/01/06/AR2011010604386.html
[https://perma.cc/F6E8-B2UJ]; Grover Norquist, Conservative Principles and Prison, NAT’L REVIEW (Feb. 10, 2011),
http://www.nationalreview.com/article/259263/conservative-principles-and-prison-grover-norquist
[https://perma.cc/TN9K-ZDYR].
210
Statement of Principles, RIGHT ON CRIME, available in archived format at http://rightoncrime.com/wpcontent/uploads/2010/11/ROC-Statement-of-Principles11.pdf [https://perma.cc/SL3X-9PNA] (as visited Feb. 26, 2016).

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

162

[Vol. 20.2

cost” and being “tough on criminal justice spending.”211 It also includes a strong emphasis on the
rights of crime victims, identifying them as “key ‘consumers’” of the criminal justice system
along with the general public and taxpayers (but, notably, not criminal defendants). 212 It appeals to
religious and conservative values by emphasizing rehabilitation through “harnessing the power of
families, charities, faith-based groups, and communities”—a list that conspicuously omits the
government’s potential role in rehabilitation.213 And finally, it suggests limits on white-collar
prosecutions: “Criminal law should be reserved for conduct that is either blameworthy or
threatens public safety, not wielded to grow government and undermine economic freedom.”214
Right on Crime exhibits no discomfort with private prisons. In fact, although Right on
Crime later removed all references to privatization from its website, its original website explicitly
endorsed private prisons as part of the “Conservative Solution” for criminal justice:
For those instances when prisons are necessary, explore private prison options.
A study by The Reason Foundation indicated that private prisons offer cost
savings of 10 to 15 percent compared to state-operated facilities. By including
an incentive in private corrections contracts for lowering recidivism and the
flexibility to innovate, private facilities could potentially not just save money
but also compete to develop the most cost-effective recidivism reduction
programming.215
From 2011 onward, Right on Crime gained momentum and conservative credibility. By
late 2015, Right on Crime had collected an impressive roster of mainstream conservatives who
supported its principles, including former Texas governor Rick Perry, former Florida governor
Jeb Bush, former Virginia Attorney General Ken Cuccinelli, the Heritage Foundation’s Stephen
Moore, and ALEC’s Lisa B. Nelson.216
Right on Crime soon attracted the support of the Heritage Foundation. However, the
Heritage Foundation has no deep ideological commitment to decarceration. For example, the
Heritage Foundation never expressed opposition to the prison boom of the 1980s and 1990s,
continues to oppose drug law reform, and its stances on criminal justice issues give short shrift to
principles of redemption and forgiveness.217 During the 1980s and 1990s, Heritage Foundation’s
211
212
213
214
215

Id.
Id.
Id.
Id.

Priority Issues: Prisons, RIGHT ON CRIME, available in archived format at
https://web.archive.org/web/20110514100747/http://www.rightoncrime.com/priority-issues/prisons/
[https://perma.cc/N2W7-7PSJ] (as visited May 14, 2011).
216
Statement of Principles, RIGHT ON CRIME, available in archived format at https://web.archive.org/web/
20151214022833/http://rightoncrime.com/statement-of-principles/ [https://perma.cc/G2XG-6NN7] (as visited Dec. 14,
2015).
217
See John M. Broder, No Hard Time for Prison Budgets, N.Y. TIMES (Jan. 19, 2003),
http://www.nytimes.com/2003/01/19/weekinreview/no-hard-time-for-prison-budgets.html [https://perma.cc/JFE2-WJLY]
(opposing cost-driven sentencing reform); Charles D. Stimson, Legalizing Marijuana: Why Citizens Should Just Say No,
THE HERITAGE FOUNDATION (Sept. 13, 2010), http://www.heritage.org/research/reports/2010/09/legalizing-marijuanawhy-citizens-should-just-say-no [https://perma.cc/96JN-297V] (opposing marijuana legalization); Charles D. Stimson &
Andrew M. Grossman, Adult Time for Adult Crimes: Life Without Parole for Juvenile Killers and Violent Teens, THE
HERITAGE FOUNDATION (Aug. 2009), http://www.heritage.org/Research/Reports/2009/08/Adult-Time-for-Adult-CrimesLife-Without-Parole-for-Juvenile-Killers-and-Violent-Teens [https://perma.cc/99QH-6K46] (arguing that the United

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

163

main contributions to the criminal justice policy debate were to endorse prison privatization and
harsher sentences, including expansion of mandatory minimum sentencing.218 Nevertheless, in the
past five years, the Heritage Foundation has eagerly promoted itself as a supporter of bipartisan
criminal justice reform—on the condition that such reform include efforts to protect white collar
defendants from “overcriminalization.”219
Separately, the Koch brothers have thrown their weight—and financial support—behind
various decarceration initiatives. Their interest in the criminal justice system reportedly began in
the 1990s, when federal prosecutors pursued criminal charges against Koch Industries for
violating environmental laws.220 The Kochs’ interest in criminal justice issues, however, extends
beyond white-collar offenses. Since 2004, the Kochs have made annual donations to the National
Association of Criminal Defense Lawyers (“NACDL”) that have addressed issues including
indigent legal defense and “ban the box” initiatives for people attempting to find jobs after being
released from prison.221 And since February 2015, when Koch Industries committed more than $5
million toward the Coalition for Public Safety, a bipartisan push for federal sentencing reform,
they have played an increasing role in left-right advocacy for decarceration.222
D.
 The New Bipartisanship
1.
 Early Progressive Efforts to Ally with the Right
As soon as Right on Crime launched, a handful of progressive and liberal-aligned
advocates and criminal justice researchers (initially including the ACLU, the Brennan Center for

States should continue to sentence juveniles to life without parole).
218
See Dana Joel, A Guide to Prison Privatization, THE HERITAGE FOUNDATION, (May 24, 1988),
http://www.heritage.org/research/reports/1988/05/bg650-a-guide-to-prison-privatization [https://perma.cc/H2PY-VH5A];
Mary Kate Cary, How States Can Fight Violent Crime: Two Dozen Steps to a Safer America, THE HERITAGE FOUNDATION
(June
7,
1993),
http://www.heritage.org/research/reports/1993/06/bg944nbsp-how-states-can-fight-violent-crime
[https://perma.cc/W3UL-FY9N].
219
See, e.g., John G. Malcolm, What’s Missing From the Washington Debate on Criminal Justice Reform,
THE DAILY SIGNAL (Sept. 14, 2015), http://dailysignal.com/2015/09/14/whats-missing-from-the-washington-debate-oncriminal-justice-reform/ [https://perma.cc/N7RA-YTA7]; John Malcolm, The Pressing Need for Mens Rea Reform, THE
HERITAGE FOUNDATION, (Sept. 1, 2015), http://www.heritage.org/research/reports/2015/09/the-pressing-need-for-mensrea-reform [https://perma.cc/38X4-DQQJ]; Jordan Richardson, Shining a Light on Overcriminalization THE HERITAGE
FOUNDATION, (June 1, 2015), http://www.heritage.org/research/reports/2015/06/shining-a-light-on-overcriminalization
[https://perma.cc/Z8SC-TXXJ].
220
Jane Mayer, New Koch: The billionaire brothers are championing criminal justice reform. Has their
formula changed?, NEW YORKER (Jan. 25, 2016), http://www.newyorker.com/magazine/2016/01/25/new-koch
[https://perma.cc/8WJK-MYAR]; Alex Altman, Koch Brother Teams Up with Liberals on Criminal Justice Reform, TIME
(Jan. 29, 2015), http://time.com/3686797/charles-koch-criminal-justice/ [https://perma.cc/455X-LC5B]. See also U.S.
Indicts Koch Industries on Pollution Violations in Texas, N.Y. TIMES (Sept. 29, 2000), http://www.nytimes.com/
2000/09/29/business/us-indicts-koch-industries-on-pollution-violations-in-texas.html
[https://perma.cc/Z3NC-SHZX]
(describing indictment).
221
Altman, supra note 220, at 6.
222
Wesley Lowery, The bipartisan push for criminal justice gets a Koch-funded boost, WASH. POST (Feb.
19, 2015), https://www.washingtonpost.com/news/post-politics/wp/2015/02/19/the-bipartisan-push-for-criminal-justicegets-a-koch-funded-boost/ [https://perma.cc/Z7AR-9FZP]. See also Molly Ball, Do the Koch Brothers Really Care About
Criminal-Justice Reform?, THE ATLANTIC (Mar. 3, 2015), http://www.theatlantic.com/politics/archive/2015/03/do-thekoch-brothers-really-care-about-criminal-justice-reform/386615/ [https://perma.cc/T732-J96E].

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

164

[Vol. 20.2

Justice, and the Sentencing Project) and non-aligned groups like Families Against Mandatory
Minimums (“FAMM”) and the Constitution Project, recognized that Right on Crime had opened
the door to an effective “strange bedfellows” partnership between progressive and conservative
criminal justice reform advocates. Vanita Gupta, who led the ACLU’s criminal justice work from
2010 to 2014, was an early mover in cultivating ties with these conservative advocates. Under
Gupta’s leadership, the ACLU shifted its criminal justice messaging to focus on cost savings,
efficiency, and other ideas that appeal to conservatives. For example, a 2011 ACLU document
laying out the organization’s critique of mass incarceration emphasized that “in order for our
system to do a good job, it must be cost-effective by using our taxpayer dollars and public
resources wisely” and concluded with the statement, “It’s time to improve our criminal justice
system by making it more cost-effective and fair.”223
Other progressive advocates soon pursued the same strategy. The NAACP’s Ben Jealous
launched a “Smart and Safe” criminal justice reform campaign in 2011 alongside David Keene,
Grover Norquist, and other Right on Crime members.224 The Drug Policy Alliance later joined the
roster of progressive organizations in the #Cut50 partnership.225 Most recently, the Koch-affiliated
bipartisan Coalition for Public Safety has brought together the ACLU, Center for American
Progress, Leadership Conference on Civil and Human Rights, and the NAACP with a range of
conservative groups including Americans for Tax Reform, Faith and Freedom Coalition,
FreedomWorks, and Right on Crime.226 By the time President Obama tapped Gupta to lead the
Civil Rights Division of the U.S. Department of Justice in October 2014, conservative advocates
identified her as a trusted partner.227
The decision of Gupta, Jealous, and other progressive advocates to ally with the right
was politically savvy and the correct choice for the time. When Right on Crime first launched, an
accusation of being “soft on crime” was still dangerous for politicians.228 And despite some signs
that state government austerity measures forced by the 2008 fiscal crisis had created an opening
for criminal justice reform,229 the risk of retrenchment was high. In April 2011, for example,
223

Mass Incarceration Problems, ACLU, 1, 2 (May 24, 2011), https://www.aclu.org/files/assets/mass
incarceration_problems.pdf [https://perma.cc/23NB-G9QU] (also on file with the author).
224
Adam Serwer, The NAACP Joins Forces With Grover Norquist, THE AMERICAN PROSPECT (Apr. 6,
2011), http://prospect.org/article/naacp-joins-forces-grover-norquist [https://perma.cc/9REQ-YSAS].
225
Partners, #CUT50, http://www.cut50.org/partners [https://perma.cc/WWY8-WDQH] (last visited Feb.
17, 2016).
226
THE COALITION FOR PUBLIC SAFETY, http://www.coalitionforpublicsafety.org [https://perma.cc/SUN76VLH] (last visited Feb. 17, 2016).
227
Sari Horwitz, Obama to nominate ACLU lawyer to lead Justice Department’s civil rights division,
WASH. POST, (Oct. 15, 2014), https://www.washingtonpost.com/world/national-security/obama-to-nominate-aclu-lawyerto-lead-justice-departments-civil-rights-division/2014/10/15/3630985e-5472-11e4-892e-602188e70e9c_story.html
[https://perma.cc/23E2-LNZ6].
228
Jonathan Simon, Crime as a welcome distraction and respite from reality for politicians, THE
BERKELEY BLOG (Oct. 19, 2010), http://blogs.berkeley.edu/2010/10/19/crime-as-a-welcome-issue-and-respite-fromreality-for-politicians/ [https://perma.cc/2Q7S-MF64] (noting that the fear of being called “soft on crime” was a decadeslong hangover from the 1988 presidential election, when the infamous Willie Horton ad turned the tide against Democratic
presidential nominee Michael Dukakis.). See Schwartzapfel & Keller, supra note 26, at 1; Eric Benson, Dukakis’ Regret:
What the onetime Democratic nominee learned from the Willie Horton ad, NEW YORK MAGAZINE, (June 17, 2012),
http://nymag.com/news/frank-rich/michael-dukakis-2012-6/ [https://perma.cc/LKS2-L6KS].
229
See, e.g., Christine S. Scott-Hayward, The Fiscal Crisis in Corrections: Rethinking Policies and
Practices, VERA INSTITUTE OF JUSTICE, 13, (July 2009), http://www.vera.org/files/The-fiscal-crisis-in-corrections_July2009.pdf [https://perma.cc/S33X-UZ65] (examining recession-driven changes to corrections policies, including

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

165

California’s Democratic governor and a Democratic majority of the state legislature responded to
the Supreme Court’s prison overcrowding order in Brown v. Plata230 with a timid plan that one
commentator described as being developed by “all the stakeholders except for prisoners and their
advocates.”231 Rather than adopting sentencing reforms or directly releasing people from prison,
this “realignment” plan shifted large numbers of prisoners to county custody and had the
unfortunate effect of triggering not widespread decarceration, but a combination of jail
overcrowding and new jail construction.232 Meanwhile, California’s Republican legislators
engaged in familiar fear-mongering and actually called for harsher sentencing laws.233 In October
2011, Gallup concluded that despite a sharp decline in the violent crime rate since the mid-1990s,
Americans’ perceptions of crime had “edged back to a more highly negative outlook,” with a
majority of respondents saying “the nation’s crime problem is extremely or very serious” and
two-thirds saying “it is getting worse.”234 Moreover, as state tax revenues rebounded from the
recession, this reduced the fiscal pressure to decarcerate.
In this tough environment, Gupta and other progressive advocates who built ties with the
right helped convert criminal justice reform from a pie-in-the-sky dream to an idea that was taken
seriously in both liberal and deeply conservative circles. Meanwhile, the Justice Reinvestment
Initiative (“JRI”), which began in 2002 and is funded by the Pew Charitable Trusts and the
Bureau of Justice Assistance, provided a model for identifying and adopting bipartisan reforms.
JRI bills itself as “a data-driven approach to improve public safety, reduce corrections and related
criminal justice spending, and reinvest savings in strategies that can decrease crime and reduce
recidivism.”235 By the end of 2011, states as varied as Texas, South Carolina, Kentucky, Arkansas,
Ohio, and Connecticut had adopted bipartisan criminal justice reforms that promised to reduce
prison populations.236 By early 2013, criminal justice reform ideas had become part of the

operational efficiencies, recidivism reduction strategies, and early release policies); Sasha Abramsky, Is This the End of
the War on Crime? The era of “Lock ‘em up and throw away the key” seems, slowly, to be drawing to a close, THE
NATION (June 16, 2010), http://www.thenation.com/article/end-war-crime/ [https://perma.cc/MH6Z-SDF6] (“For the first
time in more than forty years, criminal justice trends are starting to move in a sensible direction. At the local and state
levels, fiscal necessity is forcing a rethink when it comes to incarceration strategies.”).
230
Brown v. Plata, 563 U.S. 493 (2011).
231
Margo Schlanger, Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics, 48 HARV.
C.R.-C.L. L. REV. 165, 184 (2013).
232
See Allen Hopper, James Austin & Jolene Forman, Shifting the Paradigm or Shifting the Problem? The
Politics of California’s Criminal Justice Realignment, 54 SANTA CLARA L. REV. 527, 554-80 (2014).
233
Michael Vitiello, Reforming California Sentencing Practice and Policy: Are We There Yet?, 46
MCGEORGE L. REV. 685, 709-11 (2014).
234
Lydia Saad, Most Americans Believe Crime in U.S. is Worsening, GALLUP, Oct. 31, 2011,
http://www.gallup.com/poll/150464/americans-believe-crime-worsening.aspx [https://perma.cc/H8PT-MZ4K].
235
COUNCIL OF STATE GOVERNMENTS, JUSTICE CENTER, https://csgjusticecenter.org/jr [https://perma.cc/
HE5W-FHSS] (last visited Nov. 28, 2015).
236
See generally Marc Levin, Adult Corrections Reform: Lower Crime, Lower Costs, CENTER FOR
EFFECTIVE JUSTICE, (Sept. 2011), http://www.rightoncrime.com/wp-content/uploads/2011/09/Texas-Model-Adult.pdf
(describing reforms in Texas) [https://perma.cc/VGX7-VKA7]; South Carolina’s Public Safety Reform: Legislation
Enacts Research-based Strategies to Cut Prison Growth and Costs, THE PEW CENTER ON THE STATES, (June 2010),
http://www.pewtrusts.org/~/media/assets/2010/06/10/pspp_south_carolina_brief.pdf
[https://perma.cc/CFT6-XN86]
(describing reforms in South Carolina); 2011 Kentucky Reforms Cut Recidivism, Costs: Broad Bill Enacts Evidence-Based
Strategies, THE PEW CENTER ON THE STATES (July 2011), http://www.pewtrusts.org/~/media/legacy/uploaded
files/pcs_assets/2011/2011kentuckyreformscutrecidivismpdf.pdf [https://perma.cc/6R29-CEQA] (describing reforms in
Kentucky); Justice Reinvestment in Arkansas, JUSTICE CENTER, COUNCIL OF STATE GOVERNMENTS (Jan. 2016),

166

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

[Vol. 20.2

Republican mainstream and were touted at the annual CPAC conference.237 And in 2013, the U.S.
Department of Justice announced new initiatives like its “Smart on Crime” effort to prioritize
federal prosecutions for certain categories of more serious cases, limit sentences for low-level
nonviolent drug offenses, pursue alternatives to incarceration for low-level nonviolent offenses,
focus more attention to reentry, and reallocate resources to focus on violence prevention.238 In
announcing this policy initiative, U.S. Attorney General Eric Holder explicitly repudiated the
further growth of mass incarceration in bold terms: “‘We must face the reality that, as it stands,
our system is, in too many ways, broken,’” Holder said. ‘And with an outsized, unnecessarily
large prison population, we need to ensure that incarceration is used to punish, to deter and to
rehabilitate—not merely to warehouse and to forget.’”239 And in November 2014, California
voters approved a ballot measure that adopted more significant sentencing reforms than anything
their legislators were able to agree upon.240
2.
 More Recent Reform Efforts and the Limits of the Left-Right Alliance
Since 2014, the new bipartisan criminal justice reform alliance has continued to
accelerate. In March 2015, a bipartisan summit sponsored by individuals and organizations across
the ideological spectrum—ranging from Newt Gingrich and the Koch brothers to Van Jones and
the ACLU—discussed the immediate need for criminal justice reform.241 In November 2015, the
Koch Institute hosted a conference of some 500 advocates, public defenders, prosecutors, judges,
correctional officers, former prisoners, and others to discuss a “transideological” agenda for
criminal justice reform.242 In Congress, bipartisan sentencing reform measures made significant
https://csgjusticecenter.org/wp-content/uploads/2016/01/JusticeReinvestmentinArkansasOverview.pdf [https://perma.cc/
GE8Z-8CAW] (describing reforms in Arkansas); Ohio, BUREAU OF JUSTICE ASSISTANCE: JUSTICE REINVESTMENT
INITIATIVE, https://www.bja.gov/programs/justicereinvestment/ohio.html [https://perma.cc/6PW3-78ZE] (last updated
Sept. 2015) (describing reforms in Ohio); Connecticut, THE COUNCIL OF STATE GOVERNMENTS: JUSTICE CENTER,
https://csgjusticecenter.org/jr/ct/ [https://perma.cc/DHN8-QE8X] (last visited March 2, 2016) (describing reforms in
Connecticut).
237
See Alex Seitz-Wald & Elahe Izadi, Criminal-Justice Reform, Brought to You by CPAC, NAT’L J. (Mar.
7, 2014), http://www.nationaljournal.com/congress/2014/03/07/criminal-justice-reform-brought-you-cpac [https://perma.
cc/V248-32X3] (describing a discussion of criminal justice reform at the Conservative Political Action Conference).
238
See generally U.S. DEP’T OF JUSTICE, Smart on Crime: Reforming the Criminal Justice System for the
21st Century, 2-7 (Aug. 2013), http://www.justice.gov/sites/default/files/ag/legacy/2013/08/12/smart-on-crime.pdf
[https://perma.cc/D7UH-RKVZ] (describing the Justice Department’s review of the criminal justice system and its
proposed reform efforts).
239
Horwitz, supra note 1, at 1.
240
See Paige St. John, Prop. 47 passes, reducing some crime penalties, L.A. TIMES (Nov. 4, 2014),
http://www.latimes.com/local/political/la-me-ff-prop-47-drug-possession-20141103-story.html [https://perma.cc/4ZANGP6U] (discussing Proposition 47); see generally Paige St. John, Prop. 47 puts state at center of a national push for
sentencing reform, L.A. TIMES (Nov. 1, 2014), http://www.latimes.com/local/politics/la-me-ff-pol-1101-proposition4720141101-story.html [https://perma.cc/CTR5-XD7B] (describing campaign to revise sentencing laws in California).
241
See Van Jones, Opinion, A cause that unites the left and right, CNN, March 26, 2015,
http://www.cnn.com/2015/03/26/opinions/van-jones-bipartisan-prison-reform/ [https://perma.cc/42NS-MN5L] (discussing
the Bipartisan Summit on Criminal Justice Reform); Pat Nolan, Conservative and Liberals Join Together for Criminal
Justice Reforms, HUFFPOST IMPACT: THE BLOG (Apr. 16, 2015 11:15 AM), http://www.huffingtonpost.com/patnolan/conservative-and-liberals_b_7057184.html [https://perma.cc/TUZ4-F6VW].
242
Katy Reckdahl, Criminal Justice Reform Without Borders, THE CRIME REPORT, Nov. 5, 2015,
http://www.thecrimereport.org/news/articles/2015-11-criminal-justice-reform-without-borders
[https://perma.cc/A8PFTS2J].

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

167

progress in 2015. This included the CORRECTIONS Act, S.467 and the Smarter Sentencing Act
of 2015, S.502, both of which had broad bipartisan support and sought to reduce a wide range of
drug sentences.243 A somewhat less ambitious bill giving courts more discretion to reduce drug
sentences even won the blessing of U.S. Senator Chuck Grassley, a longtime proponent of harsh
mandatory-minimum sentencing regimes.244
This progress has, however, exposed some of the limits of such consensus-driven,
bipartisan criminal justice reform and raised concerns about whether liberal and conservative
goals are truly aligned.245 JRI’s outcomes represent an early warning sign of the limits of
consensus-driven reform. The JRI model depends on a bipartisan working group of government
officials to analyze data, develop policy options based on a consensus within the working group
members, and implement them.246 By 2013, however, a group of leading researchers, analysts, and
advocates concluded that the initiative had generally failed to reduce prison populations in JRI
states and risked institutionalizing present rates of incarceration: “If the goal [of JRI] is to reduce
mass incarceration, there is scant evidence of success. More alarming, there is little indication that
historic rates of incarceration will be reduced in the future.”247 They attributed this failure to a
shift in JRI’s goals and orientation, driven in part by the need to win support and consensus for
JRI among a wide range of legislators and other public officials.248 The data in the Urban
Institute’s 2014 evaluation of JRI gave credence to this critique. Of the 17 JRI states, seven are
expected to experience prison population growth despite JRI reforms, six are expected to
experience modest drops in prison population of between 0.6% and 8%, and only four are
expected to experience larger drops in prison population (i.e., 10% or more).249 Such singlepercentage changes are too small to significantly affect, let alone end, mass incarceration.250
243

See Russell Berman, Can the Senate Reform Criminal Justice?, THE ATLANTIC (Oct. 2, 2015),
http://www.theatlantic.com/politics/archive/2015/10/will-criminal-justice-actually-be-reformed/408538/
[https://perma.cc/86EL-2L49]; Lauren Fox, The Story Behind a Breakthrough: How a Team of Senators Convinced Chuck
Grassley on Justice Reform, NAT’L JOURNAL (Oct. 1, 2015), http://www.nationaljournal.com/s/74193/story-behindbreakthrough-how-team-senators-convinced-chuck-grassley-justice-reform [https://perma.cc/9AML-A9CF].
244
Id.
245
See infra text accompanying notes 253-264.
246
See Nancy LaVigne, Samuel Bieler, Lindsey Cramer, Helen Ho, Cybele Kotonias, Deborah Mayer,
David McClure, Laura Pacifici, Erika Parks, Bryce Peterson & Julie Samuels, Justice Reinvestment Initiative State
Assessment Report, URBAN INSTITUTE, 13-17 (Jan. 2014), http://www.urban.org/sites/default/files/alfresco/publicationpdfs/412994-Justice-Reinvestment-Initiative-State-Assessment-Report.PDF [https://perma.cc/HR9G-SZEJ] [hereinafter
URBAN INSTITUTE JRI ASSESSMENT].
247
James Austin, Eric Cadora, Todd R. Clear, Kara Dansky, Judith Greene, Vanita Gupta, Marc Mauer,
Nicole Porter, Susan Tucker & Malcolm C. Young, Ending Mass Incarceration: Charting a New Justice Reinvestment 11
(2013), http://sentencingproject.org/doc/Charting%20a%20New%20Justice%20Reinvestment%20FINAL.pdf [https://
perma.cc/9A7J-FQHT].
248
Id. at 7. According to Austin et al., JRI originated as an ambitious strategy to reduce incarceration, but
was weakened by shifting its focus from explicit decarceration to a more generic focus on adopting cost-saving reforms
that protected public safety. Id. at 5-7. This enabled JRI to lower the goal from reducing the number of prisoners to merely
reducing the rate of prison growth. Id. at 1.
249
URBAN INSTITUTE JRI ASSESSMENT, supra note 246, tbl. 6. Though defenders of JRI may argue that the
increases in prison population are smaller than they would have been absent JRI reforms, Austin et al. contend that “these
conclusions are often based on a misunderstanding of the available data on prison admissions, populations, and
projections,” and that many of the pre-JRI projections overestimated the baseline prison population because prison
admissions had already begun to slow or decline between calculation of the baseline projections and the adoption of JRI
reforms. Austin et al., supra note 247, at 11.
250
See discussion supra Section I.A. (discussing the U.S. incarceration boom).

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

168

[Vol. 20.2

JRI’s disappointing results are partly attributable to politically timid decisions to focus
entirely on cutting sentences for low-level, nonviolent drug offenses without reexamining
sentences for more serious or violent offenses—something for which both liberals and
conservatives share the blame.251 Liberals, in particular, tend to grossly overestimate the modest
impact that reducing sentences for nonviolent drug offenses would have on prison populations.252
However, JRI’s limited results are also attributable to decisions that reflect deeper left-right
divides: in particular, shifting averted correctional spending mainly to other correctional programs
rather than—as the left advocates, and as JRI initially contemplated—reinvesting that money in
community institutions.253 Moreover, the JRI process allows “reforms” that actually contribute to
economic inequalities: Arkansas’ JRI legislation, for example, increased the fees charged to
people on criminal justice supervision by 40% to support the state’s “Best Practices Fund.”254 JRI
documents also carefully avoid linking racial justice issues to criminal justice reform.255
These left-right fissures will only become more difficult to ignore as time goes on. The
conflict over whether to address racial justice concerns is already obvious.256 Additionally, many
on the left—particularly within the Black Lives Matter movement—explicitly reject the notion
that funding corrections and law enforcement programs is equivalent to community
reinvestment.257 There is considerable support on the left for government investments in low251

AUSTIN & COVENTRY, supra note 247, at 4 (“Current JRI efforts that focus on crafting legislation often
incorporate statutory reforms that will not significantly reduce admissions and lengths of stay – especially for people
convicted of serious and violent crimes.”). See also Gottschalk, supra note 7, at 169 (“Releasing low-level drug offenders
or diverting more of them from prison will not dramatically reduce the state and federal prison population.”).
252
See, e.g., ALEXANDER, supra note 30, at 220 (connecting ending the War on Drugs to ending mass
incarceration); The Editorial Bd., Cut Sentences for Low-Level Drug Crimes, N.Y. TIMES (Nov. 23, 2015),
http://www.nytimes.com/2015/11/23/opinion/cut-sentences-for-low-level-drug-crimes.html
[https://perma.cc/JT8BBXLR]; DRUG POLICY ALLIANCE, THE DRUG WAR, MASS INCARCERATION AND RACE (June 2015),
http://www.drugpolicy.org/sites/default/files/DPA_Fact_Sheet_Drug_War_Mass_Incarceration_and_Race_June2015.pdf
[https://perma.cc/VC2R-L7LW] (“[T]he United States imprisons more people than any other nation in the world – largely
due to the war on drugs.”); Barack Obama, Remarks by the President at the NAACP Conference (July 14, 2015),
https://www.whitehouse.gov/the-press-office/2015/07/14/remarks-president-naacp-conference
[https://perma.cc/82V52CHM] (“Over the last few decades, we’ve also locked up more and more nonviolent drug offenders than ever before, for
longer than ever before. (Applause.) And that is the real reason our prison population is so high.”). For a sobering
illustration of the limits of merely reducing prison stays for people convicted of drug or other nonviolent offenses, see
URBAN INSTITUTE, THE PRISON POPULATION FORECASTER // STATE PRISON POPULATION (Aug. 2015)
http://webapp.urban.org/reducing-mass-incarceration/ [https://perma.cc/C4SQ-DEGT] (indicating that reducing prison
stays by 50% for all drug offenses would only reduce state prison populations by about 7% from December 2012 to
December 2021).
253
URBAN INSTITUTE JRI ASSESSMENT, supra note 246, at 44-45, tbl. 9; AUSTIN & COVENTRY, supra note
247, at 3-4, 7.
254
See URBAN INSTITUTE JRI ASSESSMENT, supra note 246, at 59; Public Safety Improvement Act, 2011
Arkansas Laws Act 570 (S.B. 750), § 85(a)(2)(B)(i) (codified at ARK. CODE ANN. § 16-93-104).
255
Joseph Margulies, Shhh! It’s Time for Criminal Justice Reform. Keep Race Out of It, VERDICT (Apr.
6, 2015), https://verdict.justia.com/2015/04/06/shhh-its-time-for-criminal-justice-reform-keep-race-out-of-it [https://
perma.cc/KYX7-A6M4].
256
See generally ALEXANDER, supra note 30.
257
See, e.g., Brendan McQuade, Against Community Policing, JACOBIN (Nov. 18, 2015),
https://www.jacobinmag.com/2015/11/obama-chicago-black-lives-matter-police-brutality/
[https://perma.cc/E66Z-PTG
D]; Mychal Denzel Smith, The Movement Against Police Violence Isn’t Ignoring ‘Black-on-Black Crime,’ THE NATION
(Oct. 29, 2015), http://www.thenation.com/article/the-movement-against-police-violence-isnt-ignoring-black-on-blackcrime/ [https://perma.cc/M3ZB-DCYA]; Marianne Kaba, Opinion, Police “Reforms” You Should Always Oppose,

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

169

income housing, employment, health care, and community-based mental health treatment that
could address the root causes of crime and social disorder—but little such agreement on the
right.258
Many in the left also harbor suspicions about the motives of conservative criminal justice
reform advocates. The Koch brothers and the Heritage Foundation frequently claim that
companies and businesspeople are “overcriminalized” and need protection from white-collar
regulatory offenses with loose mens rea requirements.259 As a result, some have accused
conservatives of using criminal justice reform as a “Trojan Horse” to advance corporate interests
and weaken environmental regulations.260 The conflict came to a head in late 2015 and early 2016,
when Sen. Orrin Hatch (R-UT) and Rep. Bob Goodlatte (R-VA) insisted that any bipartisan
TRUTHOUT (Dec. 7, 2014), http://www.truth-out.org/opinion/item/27852-police-reforms-you-should-always-oppose
[https://perma.cc/35ZY-E6RT].
258
See, e.g., Karen Workman, D.C. Crime Bill Would Pay People to Avoid Committing Crimes, N.Y.
TIMES (Feb. 4, 2016), http://www.nytimes.com/2016/02/05/us/dc-crime-bill-would-pay-people-to-avoid-crime.html
[https://perma.cc/Q2RY-5WE4] (describing progressive D.C. Council member’s legislation to target root causes of crime,
including poverty); Bernie Sanders on Criminal Justice, FEELTHEBERN.ORG, feelthebern.org/Bernie-sanders-on-criminaljustice/ [https://perma.cc/6W75-U666] (last visited March 2, 2016) (tying crime to lack of economic opportunity); Hillary
Clinton, Remarks on Criminal Justice Reform at Columbia University (Apr. 29, 2015) (transcript available at
http://www.vox.com/2015/4/29/8514831/hillary-clinton-criminal-justice-transcript
[https://perma.cc/JV8R-WHK6])
(arguing that discussions of criminal justice reform must also “talk about what’s needed to provide economic opportunity,
better educational chances for young people, more support to families . . .”). Cf., e.g., THE HERITAGE FOUNDATION, THE
REAL ROOT CAUSES OF VIOLENT CRIME: THE BREAKDOWN OF MARRIAGE, FAMILY, AND COMMUNITY (March 17, 1995),
http://thf_media.s3.amazonaws.com/1995/pdf/bg1026.pdf [https://perma.cc/V3Q8-GYNF] (claiming that breakdown of
the nuclear family is the root cause of violence); Paul Ryan Laments Inner-city Culture of Not Working, HUFF. POST
(March 13, 2014), http://www.huffingtonpost.com/2014/03/12/paul-ryan-inner-cities_n_4949165.html [https://perma.cc/
3WDL-C3GF] (suggesting that federal safety net programs should be rolled back because they “trap” people in poverty).
259
See Richardson supra note 219 (discussing interest in mens rea and criminal justice reform); see also
Mayer, supra note 220 (discussing Koch interest in mens rea and criminal justice reform). Notably, NACDL and some
liberal criminal defense attorneys agree that this is a problem. See Overcriminalization, NAT’L ASS’N CRIM. DEF. LAW.,
http://www.nacdl.org/overcrim/ [https://perma.cc/Z3JX-Z5ZF] (last visited Feb. 23, 2016); HARVEY A. SILVERGLATE,
THREE FELONIES A DAY: HOW THE FEDS TARGET THE INNOCENT (2011). However, most progressive organizations see the
concept of white-collar “overcriminalization” as, at best, at odds with more significant criminal justice reform issues. See,
e.g., Zach Carter, Kochs Embedded In Major Rift On Bipartisan Criminal Justice Reform, HUFFINGTON POST (Nov. 25,
2015), http://huff.to/1p1KJQ1 [https://perma.cc/KG79-NJHL]; STATEMENT: CAP President on Criminal Code
Improvement Act of 2015, CENTER FOR AMERICAN PROGRESS (Nov. 18, 2015), http://ampr.gs/21oIB2L
[https://perma.cc/68LX-CGJV]; Anthony Romero, Letter to the Editor, Criminal Justice Reforms, N.Y. TIMES (Feb. 16,
2016), http://nyti.ms/1QluxW1 [https://perma.cc/8JEW-38TV]; Letter from Wade Henderson & Nancy Zirkin, The
Leadership Conference on Civil and Human Rights, to Members of Senate Judiciary Committee (June 19, 2016),
https://justiceroundtable.org/wp-content/uploads/2016/01/Letter-on-Mens-Rea-Reform-Act-of-2015-1-19-16-Senate.pdf
[https://perma.cc/GJ7T-EZMP].
260
Matt Apuzzo & Eric Lipton, Rare White House Accord with Koch Brothers on Sentencing Frays, N.Y.
TIMES (Nov. 24, 2015), http://nyti.ms/1IaQof6 [https://perma.cc/EN2R-ZRTZ]; Zach Carter, Kochs Embedded In Major
Rift On Bipartisan Criminal Justice Reform, HUFFINGTON POST (Nov. 25, 2015), http://huff.to/1p1KJQ1
[https://perma.cc/5T48-ADE6]; Dan Froomkin, Koch “Alliance” on Criminal Justice Reform Exposed as Trojan Horse,
THE INTERCEPT (Nov. 25, 2015), https://theintercept.com/2015/11/25/koch-alliance-on-criminal-justice-reform-exposedas-trojan-horse/ [https://perma.cc/95MR-BPER]; Lee Fang, Koch Brothers Talk Criminal Justice Reform, but Pay for
“Tough on Crime” Political Ads, THE INTERCEPT (Nov. 3, 2015), https://theintercept.com/2015/11/03/soft-on-crime-ads/
[https://perma.cc/9V4E-GJJF]. See also Katy Reckdahl, “We Agree on the Bigger Issue,” THE CRIME REPORT
(Nov. 6, 2015), http://www.thecrimereport.org/news/inside-criminal-justice/2015-11-we-agree-on-the-bigger-issue
[https://perma.cc/9V4E-GJJF].

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

170

[Vol. 20.2

criminal justice legislation must include provisions that stiffen mens rea requirements for whitecollar crimes.261
For their part, conservatives are wary of Black Lives Matter,262 and continue to have
serious disagreements with progressives about what to do with the money saved by reducing
incarceration levels. Many times, they simply tout the cost savings without any mention of
reinvesting it in anything.263 Other times, they emphasize reinvesting the money in crime control,
rather than building positive institutions.264
III. THE NIGHTMARE FUTURE OF MASS CONTROL AND A NEW
PARADIGM OF MASS INCARCERATION
The left is not lacking for vision. The Black Lives Matter movement, the growing
network of grassroots organizations built by formerly incarcerated people, and other elements of
the left are each defining goals for how to build principles of racial justice, community
participation, and human value into a decarcerated future.265 Other progressive advocates must
actively incorporate these principles into our own advocacy rather than letting everything be
framed by the right-left alliance. Decarceration that is not grounded in such a vision, and that
relies primarily or solely on the left-right alliance for its rhetoric and implementation, will
naturally slide into serving the right’s interests—and this slide could ultimately foreclose the
future that the left hopes to create.
The following section describes the inherent limits of the left-right alliance, and how
those limits will combine with the interests of for-profit prison companies and other carceral
profiteers. If progressive advocates are not careful, the left-right alliance will lead to decarceration
that is dominated by cost-cutting rather than a desire to reduce the overall size of the criminal
justice system, which will in turn replace mass incarceration with an even larger carceral state,
characterized by for-profit mass control. That system of for-profit mass control will in turn set the
stage for a final nightmare: a return to mass incarceration in an even more tenacious form.

261

Mike DeBonis, The issue that could keep Congress from passing criminal justice reform, WASH. POST
(Jan. 20, 2016), https://www.washingtonpost.com/news/powerpost/wp/2016/01/20/the-issue-that-could-keep-congressfrom-passing-criminal-justice-reform/ [https://perma.cc/62DS-B4TR]. Interestingly, the Kochs themselves broke with
their supporters and indicated that they would still support a criminal justice reform bill that did not include mens rea
reform. Id.
262
See Sabrina Siddiqui, Republicans ‘Cautious’ About Confronting Black Lives Matter on Campaign
Trail, GUARDIAN (Nov. 2, 2015), http://www.theguardian.com/us-news/2015/nov/02/black-lives-matter-republicansdemocrats-2016 [https://perma.cc/7TZP-FKVP].
263
See, e.g., Andrew Gargano, Federal Sentencing Reform Can Reduce Prison Crowding and Save Money,
THE HILL BLOG (April 29, 2015, 6:00 AM), http://thehill.com/blogs/congress-blog/judicial/240340-federal-sentencingreform-can-reduce-prison-crowding-and-save [https://perma.cc/3DSR-LDA5], Gingrich & Nolan, supra note 209.
264
See, e.g., VIKRANT REDDY, CONSERVATIVE REFORM NETWORK, ROOM TO GROW SERIES: CRIMINAL
JUSTICE REFORM, A NEW AGENDA FOR CRIMINAL JUSTICE 20 (2015), http://conservativereform.com/wpcontent/uploads/2016/02/CriminalJusticeReform_v2.pdf [https://perma.cc/7CFU-GSZY] (savings from reduced
incarceration should be reinvested in prisons that reduce recividism); Richard Viguerie, A Conservative Case for Prison
Reform, N.Y. TIMES (June 9, 2013), http://www.nytimes.com/2013/06/10/opinion/a-conservative-case-for-prisonreform.html [https://perma.cc/G7DZ-DVET] (arguing for savings to be reinvested in alternative punishments).
265
See supra Section II.B.

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

171

A.
 Conservative Decarceration
The right’s push to decarcerate comes from three main sources: fiscal conservatives,
libertarians, and religious conservatives. For fiscal conservatives, the chief goal of decarceration
is to reduce the costs to the government associated with incarceration.266 In many cases, fiscal
conservatives who support decarceration chide their fellow conservatives for failing to look at
prosecutors and prisons with the same distrust that they apply to other government functions, such
as social welfare programs. Grover Norquist puts it this way: “Today’s criminal justice system is
big government on steroids, and the responsibility for taming its excesses falls to those committed
to smaller government: conservatives.”267 The fiscal conservative push to close prisons is not
about safeguarding personal autonomy; instead, they are comfortable with applying coercive
methods of control and supervision to large populations as long as such coercion achieves shortterm behavior modification and is less expensive than incarceration.268 Fiscal conservatives
frequently endorse privatization as a way of making the criminal justice system more efficient.269
Additionally, they tend to emphasize limited narratives of holding individuals accountable, rather
than examining the broader social structures that funnel people into criminal justice
involvement.270
266

See, e.g., Jon Coupal & Leonard Gilroy, Opinion, Cutting Costs for State Prisons, ORANGE COUNTY
REG. (Apr. 8, 2010), http://www.ocregister.com/articles/state-243090-prisons-california.html [https://perma.cc/BXW972ZF]; Newt Gingrich & B. Wayne Hughes, Jr., Opinion, What California Can Learn from the Red States on Crime and
Punishment, L.A. TIMES (Sept. 16, 2014, 5:27 p.m.), http://www.latimes.com/opinion/op-ed/la-oe-0917-gingrich-prop—
47-criminal-justice-20140917-story.html [https://perma.cc/S26Z-9H6V]; Jerry Madden, Opinion, Texas Criminal Justice
Reform a Model for U.S., WASH. TIMES (Feb. 17, 2013), http://www.washingtontimes.com/news/2013/feb/17/maddentexas-criminal-justice-reform-model-us/ [https://perma.cc/H3TE-6XKA].
267
Grover Norquist, Opinion, Conservatives Must Police Bottom Line on Criminal Justice, ORANGE
COUNTY REG. (Feb. 18, 2011), http://www.ocregister.com/articles/prison-288870-government-criminal.html [https://
perma.cc/B7CF-WTWQ].
268
See, e.g., Vikrant P. Reddy & Marc A. Levin, The Conservative Case Against More Prisons, AM.
CONSERVATIVE (Mar. 6, 2013), http://www.theamericanconservative.com/articles/the-conservative-case-against-moreprisons/ [https://perma.cc/DKV2-XVKX] (advocating use of electronic monitoring and specialized institutions like
Hawaii’s “HOPE” court, which requires supervisees to call the court each day to find out whether they have been
randomly selected to report to court the same day to take a drug test, without regard for job scheduling or other demands
on the supervisee’s time); Viguerie, supra note 264 (“The solution lies not only inside prisons but also with more effective
community supervision systems using new technologies, drug tests and counseling programs. We should also require exconvicts to either hold a job or perform community service.”).
269
See Leonard Gilroy & Adrian Moore, Why Bernie Sanders is Wrong About Private Prisons,
REASON
(Sept.
29,
2015),
http://reason.com/archives/2015/09/29/why-bernie-sanders-is-wrong-about-privat
[https://perma.cc/HP3T-45BQ] (arguing that private prison contracts offer more vehicles for accountability than
government-run prisons); Rachel Lu, How Conservatives Are Getting Right on Crime, FEDERALIST, (Feb. 3, 2015),
http://thefederalist.com/
2015/02/03/how-conservatives-are-getting-right-on-crime/ [https://perma.cc/6XUZ-AJGX] (“Private prisons may be a
promising alternative to state or federally-run prisons, since they can be more easily incentivized to explore evidencebased methods for diminishing recidivism.”); Leonard C. Gilroy et. al., Public-Private Partnerships for Corrections in
California: Bridging the Gap Between Crisis and Reform, REASON FDN. & HOWARD JARVIS TAXPAYERS ASSN. 33-34
(Apr. 2010, rev. Apr. 2011) http://reason.org/files/private_prisons_california.pdf [https://perma.cc/5YNX-N27P] (arguing
that California should address prison overcrowding by signing private prison contracts).
270
See Lu, supra note 269 (“We value personal responsibility. Individuals should be held accountable for
what they do, regardless of their childhood. Accountability is essential to justice, but also to moral improvement.”); Reddy
& Levin, supra note 268 (“[J]ust as policymakers should scrutinize government expenditures on social programs and

172

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

[Vol. 20.2

For libertarians, the motivation to decarcerate stems from a general hostility to
government powers and large bureaucracies. In certain powerful respects, this intersects with the
left’s concern about police and prosecutorial abuses of power.271 However, the libertarian critique
is equally suspicious of institutions like a social safety net, community medical and mental health
care, and anti-poverty programs that could carry out the functions presently performed (albeit
poorly) by the carceral state.272 Taken together, these positions suggest that rather than fill the
void created by prison closures, libertarians would prefer to live in a country that maximizes
individual freedom for those with the means to enjoy it, while offering little assistance or comfort
to the rest.
Meanwhile, religious conservatives view decarceration through a moral lens. They
believe that rather than attempting to mete out increasingly severe punishments, the criminal
justice system should save people from being defined solely by their worst moments, offer second
chances, and seek to redeem criminals in the same way that converting to evangelical Christianity
redeems sinners.273 While this vision is in many ways more compatible with progressive visions
of justice than the fiscal conservative or libertarian visions, it is not identical. In particular, the
conservative worldview strongly emphasizes individual narratives of redemption and a focus on
religious community over broad notions of social justice.274 This focus tends to ignore or gloss
over the central elements of the New Jim Crow critique and the Black Lives Matter movement.

demand accountability, they should do the same when it comes to prison spending.”).
271
See generally Radley Balko, Overkill: The Rise of Paramilitary Police Raids in America, CATO
INSTITUTE (2006) http://object.cato.org/sites/cato.org/files/pubs/pdf/balko_whitepaper_2006.pdf [https://perma.cc/H299P8NB] (criticizing police militarization); Terrance G. Reed, American Forfeiture Laws: Property Owners Meet the
Prosecutor, CATO INSTITUTE (Sept. 29, 1992), http://object.cato.org/sites/cato.org/files/pubs/pdf/pa179.pdf
[https://perma.cc/95XE-DNM8] (criticizing asset forfeiture by police and prosecutors); Steven Wisotsky, A Society of
Suspects: The War on Drugs and Civil Liberties, CATO INSTITUTE (Oct. 2, 1992), http://object.cato.org/sites/
cato.org/files/pubs/pdf/pa180.pdf [https://perma.cc/7NXT-FVU8] (warning of War on Drugs infringing on civil liberties).
272
See generally Kent Masterson Brown, The Freedom to Spend Your Own Money on Medical Care: A
Common Casualty of Universal Coverage, CATO INSTITUTE (Oct. 15, 2007), http://object.cato.org/
sites/cato.org/files/pubs/pdf/pa601.pdf [https://perma.cc/Z57Z-NQJW] (criticizing universal health care coverage for
limiting the “unfettered right” to spend one’s own money on health care); Tad DeHaven, The Rising Cost of Social
Security Disability Insurance, CATO INSTITUTE (Aug. 6, 2013), http://object.cato.org/sites/cato.org/files/
pubs/pdf/pa733_web.pdf [https://perma.cc/46HT-4464] (calling for cuts to disability insurance); Jeffrey A. Schaler,
Strategies of Psychiatric Coercion, CATO UNBOUND (Aug. 6, 2012), http://www.cato-unbound.org/2012/08/06/jeffreyschaler/strategies-psychiatric-coercion [https://perma.cc/R3JS-SCSB] (opposing a public health approach to mental
illness); Michael Tanner, The American Welfare State: How We Spend Nearly $1 Trillion a Year Fighting Poverty—and
Fail, CATO INSTITUTE, (Apr. 11, 2012), http://object.cato.org/sites/cato.org/files/pubs/pdf/PA694.pdf [https://perma.cc/
BXR2-H722] (criticizing welfare programs).
273
See, e.g., Galen Carey, An Evangelical Perspective on Criminal Justice Reform, NAT’L ASSOC. OF
EVANGELICALS (Oct. 11, 2012), http://nae.net/an-evangelical-perspective-on-criminal-justice-reform/ [https://perma.cc/
USS8-7K8N] (“When we see prisoners as fellow human beings made in God’s image, we can no longer just lock them up
and throw away the key.”); Mike Lee, Opinion, The Conservative Case for Criminal Justice Reform, FEDERALIST
(Oct. 7, 2015), http://thefederalist.com/2015/10/07/the-conservative-case-for-criminal-justice-reform/ [https://perma.cc/
JSY6-YXKC] (using Christian rhetoric of forgiveness and second chances).
274
See, e.g., Carey, supra note 273 (emphasizing role of chaplains, volunteers, and community groups);
Lee, supra note 273 (criticizing “government-run or government-funded correctional institutions” and praising religious
community institutions).

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

173

Additionally, their focus on private charity over public action leaves little role for the government
in addressing root causes of crime such as poverty, residential segregation and the accompanying
community underinvestment, and lack of job opportunities.275
There are three chief problems with allowing any of these conservative, anti-government,
individual-focused worldviews to drive how decarceration proceeds: (1) they fail to address the
racial disparities in the criminal justice system; (2) they fail to address the underlying social
problems that trap people in a cycle of criminal justice involvement; and (3) they exhibit a
preference for replacing government programs with private entities, in both the criminal justice
system and other contexts.
Reducing the total number of people incarcerated will not automatically reduce the racial
disparities in who gets arrested, prosecuted, and sentenced to prison. Indeed, recent experience
suggests that a decarceration strategy that does not explicitly address these disparities may
actually make them worse. Minnesota has one of the lowest incarceration rates in the country, but
has some of the greatest racial disparities in incarceration, probably because of wealth disparities
between Black and white Minnesotans.276 Similarly, when New York City announced that NYPD
would shift away from arrests and toward issuing summonses for marijuana possession, arrest
rates fell across the city but summonses were issued far more frequently in Black and Latino
neighborhoods than in white neighborhoods—a situation that Vice News described thusly: “Weed
Is Basically Legal in New York City Now, but Only If You’re White.”277 Accordingly, adopting a
conservative, raceblind decarceration strategy means that the burdens of the criminal justice
system will continue to fall overwhelmingly and disproportionately on impoverished communities
of color. Rather than becoming truly liberated, these communities will continue to be subjected to
what Michelle Alexander describes as a racialized caste system or system of social control—
albeit in a different form than today. Some would argue that having large numbers of people
under supervision in communities of color is better than having large numbers of people removed
from these communities through incarceration. But as Black Lives Matter activists have so
effectively argued since the 2014 shooting of Michael Brown, the racially disparate application of
police violence and other forms of social control is itself a serious societal harm that impedes the
full participation of Black people in civic life.278 Moreover, as discussed supra, supervision all too
often serves as a path back into incarceration.

275

See Mark Oppenheimer, With Prison Ministry, Colson Linked Religion and Reform, N.Y. TIMES (Apr.
27, 2012), http://nyti.ms/20TM4Ef [https://perma.cc/6PMX-YF6W].
276
GOTTSCHALK, supra note 7, at 133. See also JONATHAN M. ROSE, COUNCIL ON BLACK MINNESOTANS,
DISPARITY ANALYSIS: A REVIEW OF DISPARITIES BETWEEN WHITE MINNESOTANS AND OTHER RACIAL GROUPS (2013),
http://mn.gov/cobm/pdf/COBM%20-%202013%20Research%20Report%20on%20Disparities.pdf [https://perma.cc/3P6BY2H5] (describing Black-white economic, educational, and other disparities in Minnesota).
277
Theodore Hamm & Alex S. Vitale, Weed Is Basically Legal in New York City Now, but Only If You’re
White, VICE (Oct. 23, 2015), http://www.vice.com/read/weed-is-basically-legal-in-new-york-city-now-but-only-if-yourewhite-1023 [https://perma.cc/KJW4-6SGY].
278
See, e.g., Mychal Denzel Smith, A Q&A With Opal Tometi, Co-Founder of #BlackLivesMatter, THE
NATION (June 2, 2015), http://www.thenation.com/article/qa-opal-tometi-co-founder-blacklivesmatter/ [https://perma.cc/
P9ZK-ZJ76]; Mychal Denzel Smith, A Q&A With Alicia Garza, Co-Founder of #BlackLivesMatter, THE NATION (Mar.
24, 2015), http://www.thenation.com/article/qa-alicia-garza-co-founder-blacklivesmatter/ [https://perma.cc/5KQS-JGRJ];
Van R. Newkirk II, The Permanence of Black Lives Matter, THE ATLANTIC (August 3, 2015) http://www.theatlantic.com/
politics/archive/2016/08/movement-black-lives-platform/494309/ [https://perma.cc/R5EY-HNRC]. See also Ta-Nehisi
Coates, The Black Family in the Age of Mass Incarceration, THE ATLANTIC (October 2015), http://www.theatlantic.com/
magazine/archive/2015/10/the-black-family-in-the-age-of-mass-incarceration/403246/ [https://perma.cc/A4TK-SF5J].

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

174

[Vol. 20.2

Similarly, failing to address the underlying social problems and community
underinvestment that trap people in a cycle of criminal justice involvement will prevent these
individuals from being able to escape future involvement in that system. As Marie Gottschalk has
written, “The terms reentry, rehabilitation, and ‘second chance’ are gross misnomers . . . many
former offenders never got a first chance, let alone a second one.”279 Decarceration that prioritizes
cost-cutting and rugged individualism will fail to address the structural causes of crime, such as
poverty, lack of quality formal education, lack of living-wage job opportunities, lack of wealth,
social exclusion, unaddressed mental health issues, and drug addiction.280
Thus, in a conservative-driven decarceration, the criminal justice system will continue to
serve as society’s main response to the unmet needs of these populations. And many
conservatives believe that components of the criminal justice system can operate fairly and
efficiently if delegated to private entities. This pro-privatization bias is where the nightmare
begins.
B.
 Private Interests Move In, and the Net Widens
Consistent with the principles described above, the criminal justice reform proposals that
have emerged from recent bipartisan alliances tend to focus exclusively on decarceration without
attempting to reduce the broad net cast by the criminal justice system generally. For example, the
major criminal justice reform bill introduced with bipartisan congressional support in 2015—the
CORRECTIONS Act (S.467), the Smarter Sentencing Act of 2015 (S.502), and Sentencing
Reform and Corrections Act of 2015 (S.2123)—focused on reducing mandatory minimum
sentences and, in the case of the CORRECTIONS Act, increasing the use of home confinement
and community supervision.281 Similarly, criminal justice reform legislation sponsored by the
Pew/BJA JRI often functioned by shifting certain populations from prisons into supervision
programs like parole and probation.282 And in general, politicians calling for sentencing reform
tend to link less use of prison to greater use of supervision. There are two risks associated with
such proposals. First, the incentives they create for prosecutors may inadvertently result in netwidening by shifting people onto more intensive supervision regimes than those people may have

279

GOTTSCHALK, supra note 7, at 81.
See GOTTSCHALK, supra note 7, at 79-97 (arguing that narrowly focusing on reentry as a path out of the
carceral state ignores the deeper structural issues and political economy on which the carceral state rests).
281
See CORRECTIONS Act, S. 467, 114th Cong. (2015); Smarter Sentencing Act of 2015, S. 502, 114th
Cong. (2015); Sentencing Reform and Corrections Act of 2015, S.2123, 114th Cong. (2015).
282
See URBAN INSTITUTE JRI ASSESSMENT, supra note 246, at 74 (Kansas JRI reforms involved strong
emphasis on community corrections, including requiring post-release supervision for individuals reincarcerated for
probation revocations); 23, 78 (Kentucky JRI reforms included increasing GPS monitoring and other alternative sanctions
for low-level, nonviolent offenses); 82 (Louisiana JRI reforms focused on expansion of early release and parole for people
in prison); 90 (New Hampshire JRI reforms focused on increasing use of parole); 24, 94 (North Carolina JRI reforms
focused on reducing prison sentences, creating an option for an early shift from prison to supervision, increasing the length
of post-incarceration supervision for serious offenses, and shifting misdemeanants from prison to jail or probation); 23, 98
(Ohio JRI reforms included making greater use of community corrections, requiring GPS monitoring for certain people
released from prison, and increasing probation options); 102 (Oklahoma JRI reforms included requiring supervision after
release from prison); 122 (West Virginia JRI reforms included mandatory supervision for all felony offenders).
280

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

175

otherwise received.283 Second, they create opportunities for rent-seeking by companies that profit
from reentry and supervision services.
As described supra, the two major private prison companies have already begun to
acquire community corrections facilities and electronic monitoring firms.284 If bipartisan criminal
justice reform efforts result in a large-scale shift from incarceration to community corrections and
supervision, the now-diversified private prison companies will be poised to capture that business.
As one GEO executive put it on a recent earnings call, “We believe that the emphasis on offender
rehabilitation and community reentry programs as part of criminal justice reform will create
growth opportunities for our company.”285 Additionally, privatized probation firms represent a
natural acquisition target for CCA/CoreCivic and GEO in the coming years—particularly for
GEO, which already has a GPS monitoring subsidiary with complementary capabilities. If such
acquisitions are completed, then in certain states, the two companies could achieve vertically
integrated control over every non-judicial step in the criminal justice system, from pretrial
supervision to incarceration to community corrections to probation and parole supervision.
This vertical integration would incentivize CCA/CoreCivic and GEO not just to keep
people in prison, but to keep people involved in the criminal justice system generally, whether
through expanding the populations subject to probation, extending probation terms, or returning
people to prison through probation revocations. For any individual who enters such a verticallyintegrated system, there is only one outcome that would not feed corporate revenue: a successful
exit from the criminal justice system.
Additionally, because supervision is cheaper on a per-person basis than incarceration,
any shift from prisons to supervision would tend to incentivize these companies to boost revenue
by widening the net of criminal justice system involvement. Statistics compiled by the
Administrative Office of the U.S. Courts indicate that incarcerating a person in a federal prison
costs $30,621 per year, while keeping a person on post-sentencing community supervision costs
$3,909 per year.286 Thus, assuming that both activities yield the same 10% profit margin,287 a
private prison company would have to keep more than 7,800 people on probation for a year to
make the same profits that they would have made from incarcerating 1,000 people for a year.
Indeed, even without vertical integration, private probation firms are incentivized to
widen the net of people on supervision and keep people on supervision rather than allow them to
283

See DON STEMEN & ANDRES F. RENGIFO, NAT’L CRIMINAL JUSTICE REFERENCE SERV., ALTERNATIVE
SENTENCING POLICIES FOR DRUG OFFENDERS: EVALUATING THE EFFECTIVENESS OF KANSAS SENATE BILL 123, FINAL
REPORT at 204-5 (March 2012), https://www.ncjrs.gov/pdffiles1/nij/grants/238012.pdf [https://perma.cc/G6NQ-GY3V]
(Kansas decarceration legislation that mandated community-based supervision and drug treatment for low-level,
nonviolent drug offenses inadvertently resulted in net-widening because “more drug possessors are now subject to stricter
conditions and greater surveillance than prior to implementation of SB 123; a situation that may be leading to higher rates
of revocation.”).
284
See supra text accompanying notes 152-159.
285
The GEO Group’s (GEO) CEO George Zoley on Q3 2015 Results - Earnings Call Transcript, SEEKING
ALPHA (Nov. 5, 2015 5:27 PM), http://seekingalpha.com/article/3653896-geo-groups-geo-ceo-george-zoley-q3-2015results-earnings-call-transcript?part=single [https://perma.cc/PQ6W-VJR5].
286
Did You Know? Imprisonment Costs 8 times More Than Supervision, UNITED STATES COURTS
(June 18, 2015), http://www.uscourts.gov/news/2015/06/18/did-you-know-imprisonment-costs-8-times-more-supervision
[https://perma.cc/S547-ZA8T].
287
In 2014, CCA/CoreCivic’s gross revenue was $1,646,867 and its net income was $195,022, yielding a
profit margin of 11.8%. See CXW Income Statement, supra note 122. Similarly, GEO’s gross revenue was $1,691,620 and
its net income was $143,930, yielding a profit margin of 8.5%. See GEO Income Statement, supra note 122. Thus, a 10%
profit margin is a fair ballpark estimate.

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

176

[Vol. 20.2

successfully complete it. This dynamic has already been documented in the private, for-profit
probation firms that operate in Georgia. Thanks to the existence of private probation companies,
many people who would not otherwise be on probation are placed on indeterminate sentences of
“pay only” probation solely to pay off outstanding court fines and fees.288 The longer it takes for a
person to pay off the underlying court debt, the more fees the probation company collects—and
HRW documented multiple instances of people being trapped in pay-only probation arrangements
for years after being convicted.289
C.
 Mass Control Supplants Mass Incarceration
Fueled by these incentives, it is likely that a successful left-right alliance to end mass
incarceration would rearrange the carceral state rather than shrinking it—replacing the paradigm
of mass incarceration with a new paradigm of mass control. Take, for example, the 50% reduction
in the prison population that has been set as a goal by Van Jones’ #cut50 alliance.290 If successful,
this effort would result in widespread prison closures. However, replacing half of all prison
sentences with equivalent terms of supervision would increase the supervision population to
nearly 5.5 million people.291
Closing prisons and replacing them with mass control would carry obvious appeal for
fiscal conservatives, given the lower per-person costs of mass control. Viewed through the lens of
racial justice, however, the results would be decidedly less impressive. Black and Brown people
would continue to be arrested and prosecuted at rates far out of proportion to their numbers in the
population.292 And even with fewer people in prison, pervasive supervision would further harm
impoverished Black and Brown communities.293
Under a mass control paradigm, young Black men and women would remain in the
community but be marked and tracked by the criminal justice system—perhaps with the literal
shackle of an electronic ankle monitor, or perhaps with the invisible but pervasive eye of
probation and parole supervision. Indeed, in neighborhoods where most young Black men are
subject to the diminished rights of probation and parole supervision, police tactics could further
escalate in aggressiveness and intrusiveness on the streets, in houses, and in businesses and places
of worship without running afoul of any legal boundaries. Given the extremely limited Fourth
Amendment rights of people on probation and parole, this could go far beyond the already

288

PROFITING FROM PROBATION, supra note 5, at 25-27.
Id. at 29.
290
See Our Mission & Work, #CUT50, http://www.cut50.org/mission [https://perma.cc/F49A-P26E] (last
visited Feb. 27, 2016).
291
See Kaeble & Bonczar, supra note 51, at 1 (approximately 4.65 million people on community
supervision at year-end 2015); PRISONERS IN 2015, supra note 9, at 2, tbl. 1 (approximately 1.53 million people in prison
at year-end 2015).
292
See THE SENTENCING PROJECT, REPORT OF THE SENTENCING PROJECT TO THE UNITED NATIONS
HUMAN RIGHTS COMMITTEE 3-12 (Aug. 2013), http://sentencingproject.org/doc/publications/rd_ICCPR%
20Race%20and%20Justice%20Shadow%20Report.pdf [https://perma.cc/M5HC-ZH85] (describing racial disparities in
police activity, access to counsel, prosecution, and decisions by judges and juries).
293
In fact, making greater use of supervision could worsen the racial disparities in who is incarcerated and
who is not. Currently, states that indiscriminately imprison people for both serious and minor offenses tend to have lesser
racial disparities in imprisonment, while states that reserve their prisons mainly for people who have committed serious
offenses tend to have greater racial disparities in imprisonment. GOTTSCHALK, supra note 7, at 133-34.
289

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

177

significant intrusions justified under stop-and-frisk policies.294 A recent proposal by Washington,
D.C. Mayor Muriel Bowser to crack down on probationers and parolees illustrates what kinds of
powers could be unleashed on Black and Brown communities: police empowered to carry out
random searches of supervisees at any time of the day or night, and granted discretion to
immediately jail people for up to 72 hours in response to minor infractions of conditions of
supervision.295 The more people who are on supervision in any given community, the more
confident that police officers would be in freely conducting suspicionless body searches of
random people on the streets, warrantless house raids, and mass sweeps in local stores, churches,
and other places where people on supervision would congregate. The situation for Black people in
these neighborhoods is already bad enough when police are not legally privileged to engage in
such abuse—as Black Lives Matter has so persistently highlighted since the movement began. But
mass control would make it even worse.
Mass control would be similarly distressing from an economic justice perspective.
Instead of addressing issues of concentrated poverty and disenfranchisement, it would expand the
number of people burdened with criminal records. Research shows that having a criminal
record—even one that did not result in prison time—can lead to serious barriers in seeking
employment, housing, public assistance, and education and training.296 Being arrested during
one’s lifetime decreases employment opportunities more than long-term unemployment, receipt
of public assistance, or having a GED instead of a high school diploma.297 Additionally, like the
current systems of privatized probation and privatized electronic monitoring, the new mass
control measures would probably be financed on the backs of those supervised. They would thus
perpetuate a two-tiered system of justice, in which people of financial means can complete their
terms of supervision within the originally allotted time, but poor people would be subject to
longer periods of supervision to pay off their supervision debts (and thereby further add to those
debts) and likely be subject to the same kinds of high fees and debtors’ prison collection practices
that already characterize criminal justice debt collection in many jurisdictions.
Mass control would also be distressing from a good-government perspective. Based on
our three decades of experience with private prison companies, we should expect similar
problems of performance, accountability, and transparency from privatized reentry and
supervision.298 Indeed, the abuses documented in the nascent private probation industry—a “user294

See Samson v. California, 547 U.S. 843, 850 (2006) (upholding police officer’s suspicionless and
warrantless search of parolee); United States v. Knights, 534 U.S. 112, 121-22 (2001) (warrantless police search of
probation supervisee’s home supported by less than probable cause was constitutional, even though it had no relationship
to his probation officer’s efforts to monitor probation compliance); Griffin v. Wisconsin, 483 U.S. 868, 876-88 (1987)
(approving warrantless searches of probation supervisees without probable cause). Cf. CENTER FOR CONSTITUTIONAL
RIGHTS, STOP AND FRISK: THE HUMAN IMPACT (July 2012) https://ccrjustice.org/sites/default/files/attach/2015/08/thehuman-impact-report.pdf [https://perma.cc/3X9U-V6CM] (describing individual and community impacts of stop-and-frisk
policies).
295
See Aaron C. Davis & Peter Hermann, D.C. Mayor to Ask for Expanded Police Powers Amid Homicide
Spike, WASH. POST, Aug. 25, 2015, https://www.washingtonpost.com/local/dc-politics/dc-mayor-to-ask-forexpanded-police-powers-amid-homicide-spike/2015/08/25/f7e57656-4b64-11e5-84df-923b3ef1a64b_story.html?utmterm=.3976ba4fce5c [https://perma.cc/NKH8-48SQ].
296
See REBECCA VALLAS & SHARON DIETRICH, CENTER FOR AMERICAN PROGRESS, ONE STRIKE AND
YOU’RE OUT: HOW WE CAN ELIMINATE BARRIERS TO ECONOMIC SECURITY AND MOBILITY FOR PEOPLE WITH CRIMINAL
RECORDS, 9-28 (Dec. 2014), https://cdn.americanprogress.org/wp-content/uploads/2014/12/VallasCriminalRecordsReport.
pdf [https://perma.cc/G32A-EW5T].
297
Id. at 9.
298
See supra Section I.D. (discussing private prison industry).

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

178

[Vol. 20.2

funded” model kept afloat by abusive debt collection and unnecessary requirements imposed by
private probation officers that increase corporate revenue—suggest the new types of profit-driven
abuses that will come from privatized mass control.299
The most worrisome aspect of mass control is, however, the ease with which it could
pave the way to new and even worse form of mass incarceration.
D.
 Prisons Expand Once Again—But Now with an Entrenched Privatized Apparatus of
Mass Control, Surveillance, and Monitoring
If cost-based decarceration is successful at effecting a large-scale shift of people from
incarceration to supervision, we will know it from the prison closures. Rendered obsolete by the
new mass control paradigm, many of these expensive, heavily-staffed public institutions will shut
down—maybe converted into museums like Alcatraz300 and Eastern State Penitentiary,301 maybe
converted into hotels or condos like Boston’s Charles Street Jail302 or Washington DC’s Lorton
Reformatory,303 or maybe simply left to rot.304
One might think these constraints on prison capacity would create a natural barrier to
putting more people in prison again: there would simply not be enough prison space to safely
incarcerate as many people as before. However, rapid growth in the incarcerated population that
outstripped public prison capacity is exactly what fostered the birth of the private prison industry
in the 1980s. As a 2001 report funded by the U.S. Department of Justice put it, “the pressure of
increased incarceration rates, combined with rising correctional costs” enabled the rise of private
prisons in the 1980s and 1990s largely because of “the overriding desire of many states and local
governments to rapidly increase desperately needed prison bed capacity and to reduce prison
operational costs.”305
As in the original prison boom, the private prison industry would benefit from its ability
to bring new private prisons online faster and with less political hassle than building new public
prisons. Compared to the alternative of building new public prisons—which typically requires
voters to approve prison construction bonds and other obvious, long-term investments in mass
incarceration—contracting with the private prison industry merely requires legislative approval to
expand a correctional agency’s operating budget.306
299

See supra at Section I.E. (discussing “user-funded” criminal justice system and privatized probation).
Alcatraz Island, NATIONAL PARK SERVICE, http://www.nps.gov/alca/index.htm [https://perma.cc/
EW33-PTE9] (last visited Feb. 11, 2016).
301
EASTERN STATE PENITENTIARY, http://www.easternstate.org/home [https://perma.cc/9MVE-R9LB]
(last visited Feb. 11, 2016).
302
THE LIBERTY: A STARWOOD LUXURY COLLECTION HOTEL, http://www.libertyhotel.com/the_hotel/
history.html [https://perma.cc/W6ZY-TPMJ] (last visited Feb. 11, 2016).
303
Antonio Olivo, Former Lorton Prison Site Will Get $188 Million Overhaul Starting in October, WASH.
POST (June 3, 2014), https://www.washingtonpost.com/local/2014/06/03/1ab73b0a-eb36-11e3-9f5c-9075d5508f0a_story.
html [https://perma.cc/EU3Y-F9EP].
304
Rutland Prison Camp, ATLAS OBSCURA, http://www.atlasobscura.com/places/rutland-prison-camp
[https://perma.cc/5M6V-TPE6] (last visited Feb. 11, 2016); Kansas City Workhouse, ATLAS OBSCURA, http://www.atlas
obscura.com/places/kansas-city-workhouse [https://perma.cc/JAS7-AVJ5] (last visited Feb. 11, 2016).
305
JAMES AUSTIN & GARRY COVENTRY, BUREAU OF JUSTICE ASSISTANCE, EMERGING ISSUES ON
PRIVATIZED PRISONS, 13 (NCJ 181249, 2001), http://www.ncjrs.gov/pdffiles1/bja/181249.pdf [https://perma.cc/N2WYE6E7].
306
Id. (“[T]he construction costs of a privately operated facility can be lumped together in the state’s
prison operating budget whereas the state must seek voter approval on a construction bond for a publicly operated facility,
300

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

179

Unlike the original prison boom, private prison companies would additionally benefit
from their now-substantial operating capital, the sophisticated lobbying and public relations
infrastructure they built in the first prison boom, and their deep political connections. In 1983,
CCA/CoreCivic was such a small, ad hoc operation that its first “prison” was actually a converted
motel that the company hurriedly leased and fenced to fulfill the terms of their first contract for
immigrant detention.307 Thirty-three years later, CCA/CoreCivic has grown into a frighteningly
large and sophisticated publicly-traded company, with 66 corrections and detention facilities
around the country, over 5,500 acres of land, and annual revenues of $1.79 billion.308 Today, both
CCA/CoreCivic and its chief competitor, GEO Group, have developed close relationships with
state and federal policymakers.
Furthermore, the private prison companies would benefit from their preexisting
relationships with correctional agencies. In the 1980s, private prison companies were a new,
unknown quantity for correctional officials, and contracting with them was seen as unusual. 309 In a
future of privatized mass control, private prison companies would already be longtime
“government partners” in a range of settings thanks to their expansion into prison, community
corrections, and supervision contracts. This would make private prisons the path of least
resistance for correctional officials seeking to address new overcrowding. Moreover, the
revolving door from federal and state correctional agencies would tend to reward the officials who
play ball with the industry—as in the current environment, such officials could expect offers to
join private prison companies as senior executives with higher salaries than those available in the
public sector. (For example, when Harley Lappin moved from the Federal Bureau of Prisons to
CCA/CoreCivic, his salary jumped from about $180,000 to $1.51 million.310) The industry could
therefore be confident not only in their ability to quickly offer new prison space to these existing
government partners, but in the willingness of correctional officials to take the industry up on
these offers.
As a result of these factors, any post-decarceration prison boom would likely be heavily
privatized—much more so than the prison system is today, and probably similar to the high
degree of privatization in ICE detention.311 As CCA/CoreCivic frequently reminds its investors,

as is usually the case.”).
307
See Damon Hininger, T. Don Hutto – The Mettle of the Man Behind Our Proud Facility, INSIDE CCA
(Jan.
19,
2010),
https://www.cca.com/insidecca/t.-don-hutto-–-the-mettle-of-the-man-behind-our-proud-facility
[https://perma.cc/G9ZZ-KVAJ] (describing how CCA/CoreCivic converted a Houston motel into an immigration
detention facility in 1983, and describing co-founder T. Don Hutto’s actions as “bold and often misunderstood at the
time”); GRASSROOTS LEADERSHIP, supra note 194, at 1 (noting that according to CCA/CoreCivic promotional video,
company co-founder T. Don Hutto hired the former hotel owner’s family as staff members and fingerprinted detainees
himself).
308
CORRECTIONS CORP. OF AMERICA, FOURTH QUARTER 2015 INVESTOR PRESENTATION 5, 16 (February
24, 2016), http://www.cca.com/investors/presentations-webcasts-events [https://perma.cc/27LK-HDLM]; CXW Income
Statement, supra note 122.
309
See Martin Tolchin, As Privately Owned Prisons Increase, So Do Their Critics, N.Y. TIMES (Feb.
11, 1985), http://www.nytimes.com/1985/02/11/us/as-privately-owned-prisons-increase-so-do-their-critics.html [https://
perma.cc/C668-HXPP] (quoting reactions of public officials to private prisons in 1985)]; Austin & Coventry, supra note
305, at 13 (describing controversy).
310
Costantini & Rivas, supra note 112.
311
See discussion supra Section I.C.3. (discussing ICE privatization).

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

180

[Vol. 20.2

only about 10% of prisons are currently privatized, leaving significant “[o]pportunity to gain
market share” by private prison companies.312 A second prison boom would present an
unparalleled opportunity for this “market penetration” to take place.
A second prison boom is, of course, not inevitable. Prison populations would remain
static or fall without increased numbers of prosecutions, longer stays in prison or jail, or increased
numbers of people reincarcerated for violating their terms of supervision. However, mass
privatized monitoring would enable private prison companies to affect the third factor by
manipulating the mass control paradigm. Merely by changing their internal practices, they could
increase rates of probation and parole violations and thereby send more people to prison.
Probation officers have tremendous discretion to decide whether to respond formally or
informally to minor rule violations by their supervisees, as well as to determine whether or not
probation should be revoked in response to the violation.313 Additionally, in states with flash
incarceration programs, probation officers can send a person to jail without judicial
intervention.314 As Joan Petersilia observed in her comprehensive 1997 article on probation, “the
probation population is so large that revoking even a few percent of them or revoking all those
who are rearrested can have a dramatic impact on prison admissions.”315
This dynamic will create an enticing profit-making opportunity for vertically-integrated
private prison companies. Probation and parole are imposed for limited periods of time—if
someone successfully completes their term of supervision, then they will no longer be a source of
income for the company supervising them. So, by granting a private prison company the power to
decide whether to allow a supervisee to complete her term of supervision, extend the term of
supervision, or convert the supervisee back into a prisoner, the state gives that company
tremendous power to shape the demand for its own services. In non-vertically-integrated
companies that solely provide probation supervision, these powers have already led to abuses.316
But a vertically-integrated private prison company would be able to take this one step further.
Similar to Enron’s manipulation of energy markets in the early 2000s, the company could create a
problem—prison overcrowding caused by increased rates of probation and parole revocation—
and then profit from “solving” that overcrowding problem by renting new prison bedspace to the
state.317 Given the evidence that private prison companies already manipulate demand for prison
beds, it would be surprising if they abstained from this new market manipulation opportunity.318
312

CCA, FOURTH QUARTER 2015 INVESTOR PRESENTATION, supra note 308, at 3.
Klingele, supra note 67, at 1038-39, 1040-41.
314
See supra text accompanying note 70 (discussing flash incarceration).
315
Petersilia, supra note 63, at 166.
316
PROFITING FROM PROBATION, supra note 5, at 5-6.
317
The Enron market-manipulation strategy that presents the closest analogy is probably its “load shift”
strategy. Under this strategy, Enron deliberately submitted fake bids to generate more electricity than a single transmission
line could carry, which triggered congestion relief bonuses for any company that could provide a competing generation bid
on another transmission line; Enron would then capture the bonuses by submitting its real bids, which appeared to relieve
the fake congestion. See Jacqueline Lang Weaver, Can Energy Markets Be Trusted? The Effect of the Rise and Fall of
Enron on Energy Markets, 4 HOUSTON BUS. & TAX L. J. 1, 42-46 (2004) (describing how load shift operated).
318
See Justin Jones, How to Starve the For-Profit Prison Beast, ACLU (Apr. 24, 2014, 3:27 PM),
https://www.aclu.org/blog/how-starve-profit-prison-beast [https://perma.cc/QT4W-PQGF] (describing how Oklahoma
increased sentences for possession of a cell phone in prison, which can be stacked on top of the original sentence, after
private prison lobbyists advocated for this legislation); Mukherjee, supra note 138, at 31 (finding that prisoners in private
prisons serve about 4 to 7 percent more time than those in public prisons, and attributing this to private prisons
“distort[ing] release policies . . . by conferring infractions, or prison conduct violations, at higher rates than public
prisons.”).
313

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

181

Believers in privatization may respond that shifting from pure bed-day or supervisionday compensation to a “pay-for-success” (“PFS”) model—for example, setting compensation for
prisons or supervision regimes based on whether their populations reach certain recidivismreduction targets—would eliminate this kind of perverse incentive.319 However, this is a dubious
proposition. PFS is poorly-suited to address the complex root causes of crime and social disorder,
and efforts by investors to minimize their risk would likely influence both the metrics and the
interventions selected in ways that would favor their interests over good policy outcomes.320
Additionally, a vertically-integrated private prison industry would be able to defeat the incentives
built into any particular contract by transferring people in their custody to whichever contract or
set of contracts offered the most profitable terms—essentially, engaging in arbitrage with human
bodies. And taken as a whole, the only way for the industry to continue growing would be to
continue increasing the number of people in its custody—no matter how much individual
contracts seek to disincentivize that growth.
In addition to the company’s general interest in continuing each supervisees’ criminal
justice system involvement, there may be a further incentive for reincarceration instead of merely
extending the term of supervision. Privatized probation is a low-margin business that depends on
high volumes of supervisees to turn a profit.321 Assuming that the company exacts the same
percentage profit from incarceration and supervision, converting a person from an $11/day
supervision contract to an $84/day incarceration contract322 would yield nearly eight times the net
revenue. Multiplied across tens of thousands of supervisees, this reincarceration could translate to
tens or even hundreds of millions of dollars in new annual profits.
Mass control would thus be only the beginning of the nightmare. Once mass control is
established and extensively privatized, the imperative to satisfy shareholders through further
growth will incentivize more incarceration—and thanks to their role in supervision, the private
prison industry will be able to generate more demand for their incarceration services.
This second age of mass incarceration would be even more difficult to end than the
current age of mass incarceration. During the 1980s, private prison companies, prison telephone
and financial services providers, and other prison profiteers were new players that did not yet
have a track record of campaign contributions or a sophisticated lobbying presence in Congress
and state legislatures. They grew organically and developed these capabilities as mass
incarceration continued to metastasize in the 1990s and early 2000s. This is very different from
what the situation will be if a second age of mass incarceration emerges from the mass control
paradigm. In that scenario, the industry will already have strong ties to elected officials and a
powerful lobbying presence. In addition, as described above, the initial shift from mass
319

See Julia Bowling, Do Private Prison Contracts Fuel Mass Incarceration?, BRENNAN CENTER FOR
JUSTICE (Sept. 20, 2013), https://www.brennancenter.org/blog/do-private-prison-contracts-fuel-mass-incarceration
[https://perma.cc/43PL-MZBC] (arguing that PFS contracts could reduce incarceration by encouraging private prisons to
reduce recidivism).
320
See IN THE PUBLIC INTEREST, EVALUATING PAY FOR SUCCESS PROGRAMS AND SOCIAL IMPACT BONDS,
4-5 (Dec. 2015) (explaining why the theory of PFS “looks better on paper than in reality”); Nathaniel Popper, Success
Metrics Questioned in School Program Funded by Goldman, N.Y. TIMES (Nov. 4, 2015), http://www.nytimes.com/
2015/11/04/business/dealbook/did-goldman-make-the-grade.html?_r=0 [https://perma.cc/5M4D-KWTW] (discussing how
student eligibility criteria for Goldman Sachs kindergarten PFS project may have skewed results).
321
PROFITING FROM PROBATION, supra note 5, at 17.
322
See U.S. Courts, supra note 286 (indicating that incarcerating a person in a federal prison costs $30,621
per year, while keeping a person on post-sentencing community supervision costs $3,909 per year). On a per-day basis,
this works out to about $84 per day for incarceration and $11 per day for supervision.

UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE

182

[Vol. 20.2

incarceration to mass control will set the stage for large-scale prison privatization as mass
incarceration returns and the demand for prison beds increases. This will create broad reliance on
the private prison industry by correctional agencies that may have lost the capability to carry out
these functions in-house—much like the situation ICE finds itself in today. And like ICE today,
these agencies will likely find it difficult to impose uniform standards, negotiate contracts that
protect the public interest, and prevent these companies from violating the rights and human
dignity of those in their custody.323
There would also be new political obstacles to ending the second age of mass
incarceration that go beyond the new power of private prison companies and other for-profit
service providers. The return of mass incarceration would sow discord and distrust between
liberal elites and grassroots organizations like Black Lives Matter, who would correctly blame
liberal elites for wreaking more havoc on communities of color. And for these liberal elites,
knowing that decarceration led to a mass control paradigm, which in turn spawned a new prison
boom, could dampen political will to attempt decarceration a second time. On the conservative
side, while libertarians could be relied on to continue objecting to high incarceration rates, many
pro-business, pro-privatization conservatives would be less likely to join any coalition to end the
new mass incarceration; for them, a large but extensively privatized prison system would actually
be a desirable result.
IV. CONCLUSION
Over the past half-decade, the growing left-right alliance to end mass incarceration has
played a crucial role in opening up a broader national conversation about ending our current
prison boom. This shared sentencing reform agenda can and should play an important role in
present and near-term efforts to end the War on Drugs and roll back the extreme, irrational
sentencing practices that have accumulated over the past three decades, such as mandatory
minimum sentencing and Three Strikes laws. However, even as we rely on this alliance for certain
goals, progressives must not mistake these reforms for what is necessary to build a stable
decarcerated future.
Decarceration that proceeds according to a conservative worldview will merely shift
large numbers of people from prison sentences to supervision, without addressing racial justice
concerns or building the positive social institutions that could enable us to shrink the overall size
of the carceral state. This will lead to a mass control paradigm characterized by heavy
privatization of reentry and supervision, further harms to Black and Brown communities, the
perpetuation of a two-tiered system of justice for rich and poor, and significant incentives to
further widen the net of criminal justice supervision.
Mass control will also pave the way for a new and even worse form of mass
incarceration, because vertically-integrated private prison companies will be able to use their
reentry and supervision roles to manipulate the mass control paradigm. Merely by changing their
internal practices, they could rapidly increase demand for prison beds—and then “solve” the
resulting prison overcrowding by renting new prison bedspace to the government. This second
prison boom would be more heavily privatized than the first prison boom. Unlike in the 1980s,
private prison companies would benefit from their now-substantial operating capital, deep
political connections, preexisting relationships with correctional agencies, and the revolving door
for public corrections officials. The power of these companies and other factors would make this
323

See discussion supra Section I.C.3. (discussing ICE).

2017]

FROM MASS INCARCERATION TO MASS CONTROL, AND BACK AGAIN

183

second age of mass incarceration even more difficult to end than the current one.
There is a better path. Rather than focusing narrowly on the goal of decarceration and
shifting people from prisons to punitive forms of supervision, we can chart out an alternative
future that shrinks the entire carceral state. We can radically rethink who should be incarcerated,
for how long, in what kind of environment, and for what purposes. We can develop non-punitive
alternatives to incarceration, and develop strategies for addressing root causes such as poverty,
substance abuse, and mental illness, and other root causes. We can prioritize racial justice,
community participation, and human value. Indeed, these ideas are already circulating in Black
Lives Matter and elsewhere in the grassroots left. Those of us in mainstream progressive
organizations ought to listen carefully to what they are saying.
The United States is in a rare political moment where we may be able to begin a real,
fundamental shift away from the carceral paradigm. We should not squander the opportunity by
narrowing our horizons in a way that locks us into an even more nightmarish future.
***