Marie Gottschalk "Caught: The Prison State"

Caught: The Prison State and the Lockdown of American Politics By Marie Gottschalk 2015 PDF

Major shifts in public policy often have unintended negative consequences, and penal policy is no exception. The road to a just criminal justice system is littered with bursts of optimism that ended up yielding a sharp right turn in penal policy. More than half a century of political agitation finally brought about bans on the convict-leasing system throughout much of the South by the 1920s.72 But the state-run chain gangs and penal farms that replaced the brutal and corrupt practice of leasing out convicts to the highest bidder, who often worked them to death’s door to turn a profit, became enduring symbols of “southern backwardness, brutality, and racism.”73 As Robert Perkinson wryly observes, “Strange as it seems, the chain gang, in which thousands of prisoners, most of them black, were loaded onto cattle trucks and carted around the state to pound rocks and shovel dirt, was celebrated as a humanitarian advance.”74

Moments of apparent left-right convergence on penal policy are fraught with possibility and peril. Growing disillusionment on the left and right with rehabilitation and judicial discretion in the 1970s provided a huge political opening for conservatives to move penal policy in a more punitive direction, partly because this disillusionment coincided with a spike in crime rates.75 Indeterminate sentences and parole boards were cast out at the federal level and in many states. Tough mandatory and advisory sentencing guidelines, and harsh mandatory minimum, habitual offender, and determinate sentencing statutes replaced them. At the federal level, a highly politicized sentencing commission was established that leaned toward prosecutors and increasingly favored mandatory over advisory sentencing guidelines. Federal judges, who initially overwhelmingly opposed the guidelines, ended up slavishly following them in many cases.76 (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.16)

Moreover, for some state actors, crime does pay, as shown in this chapter. Civil forfeiture laws provide police and law enforcement agencies with key sources of funding, much of which is publicly unaccountable. They are a major incentive to keep the war on drugs going. …..

Crime does not necessarily rise during periods of economic distress, but protests, strikes, and civil unrest often do as the unemployed, unions elderly, veterans, the poor, and the sliding middle class take to the streets. When that happens government officials, politicians, and prominent commentators often conflate crime and social protest. Labeling demonstrations and other acts of protest as crimes is an age-old strategy to justify expansions of law enforcement and to delegitimize challenges to the prevailing political and economic order. As the Occupy Wall Street movement gained national traction in fall of 2011, House Majority Leader Eric Cantor (R-VA) warned about the “growing mobs on Wall Street and in other cities across the country.” (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.26-31)

The imposing armories that dot American cities were built as part of the ...

widespread political unrest.

With a few exceptions, U.S. cities have not experienced large-scale civil violence and civil unrest since the upheavals of the 1960s (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.30-1)

Crime continues to pay in other ways for public officials. Faced with tighter budgets, more public officials now view the courts, corrections, and law enforcement as revenue-generating opportunities. This has not only intensified the war on the poor in the United States but also the war on key civil rights protections of the U.S. Constitution. Law enforcement has an enormous financial stake in continuing the war on drugs, which has become a huge cash cow and in some instances a huge slush fund for police and prosecutors. This is thanks to civil forfeiture laws that permit law enforcement officers (usually the police) they “suspect” may be associated with criminal activity. Criminal forfeiture requires that a person be convicted of an offense before his or her property may be confiscated. But in civil forfeiture cases, (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.34-41)

some instances, people are serving more time in jail for failing to pay court costs than they served under their original sentence.97 “Honey Holes” To ease their budget woes, states and municipalities have sought other ways besides civil forfeitures and LFOs to turn a profit from the criminal justice system. (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.37-8)

As in the case of California, state officials and politicians in Arizona instigated the prison boom, but other groups mobilized subsequently to spur it on. (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.54-5)

(Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 [PDF]The Carceral State and the Politics of Punishment - Penn Arts and

The goal of turning prisons into moneymaking machines or at least ensuring that they pay their own way isn’t that far-fetched. The United States has a long history of exploiting inmate labor to make prisons and penal farms highly productive and lucrative. ….

At the same time that legislators have been pushing back against UNICOR, they have been pushing hard to liberate the private sector to enter the inmate labor market in a big way. With the decline of organized labor and the onset of the neo-liberal era in the closing decades of the twentieth century, the hard fought restrictions on the sale of prison made good and the use of prison labor have been eroding. …..

A who’s who of corporate America – including Wal-Mart, Victoria’s Secret, Boeing, and Starbucks – discovered the potential windfall of a captive labor force as their subcontractors began to harness penal labor. .....

As with many penal innovations in the age of mass incarceration, the American Legislative Exchange Council (ALEC), the conservative lobbying organization, has been a key player in liberating the private sector to employ penal labor and expand privatization of corrections. .....

At one point, it contracted out female chain gangs to Martori Farms, one of Wal-Mart’s leading suppliers. The women worked for fifty cents an hour, far below the prevailing wage, in blistering heat without proper water, breaks, or protection from the sun. (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.58-63)

ALEC runs a “sophisticated operation for shaping public policy at a state-by-state level,” … Over the years, private prison companies and the National Rifle Association (NRA) have played leading roles in ALEC. Both Correction Corporation of America (CCA) and the GEO Group (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.62-3)

With the passage of the draconian crime bill in 1994, federal budget officials predicted that the number of employees in the federal Bureau of Prisons would need to grow by the thousands to handle all the projected new inmates.132 Committed to reducing the size of the government, the Clinton administration sought to keep these new employees “off the books” through privatization. The White House proposal to increase the number of federal inmates housed in private facilities initially received a frosty from senior officials at the Department of Justice, the Bureau of Prisons, and elsewhere. They bluntly questioned the findings of a White House analysis that suggested privatization might save money. A DOJ-commissioned report at the time concluded that private prisons saved little if any, money; did not necessarily improve the performance of prisons; posed thorny legal and constitutional issues.

The Clinton administration plowed ahead anyway with its plans to contract out more beds to the prison industry to house federal prisoners. The revolving door between the private prison industry and top officials in the Clinton administration helped transform the DOJ and BOP from critics to champions of privatization. The tens of millions of dollars that the private prison industry invested in the government over the years through lobbying and campaign contributions at the local, state and national levels also helped turn the tide in favor of privatization despite growing evidence that private prisons did not do it better for less. ......

The use of deadly force, and the mistreatment of inmates. In at least one case, CCA said it was turning down a request because the information sought was deemed to be a trade secret. (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.66-77)

It has not been completely smooth sailing for the private prison industry. In recent filings with the Securities and Exchange Commission, CCA acknowledged (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.69-70)

The chronically marginalized and chronically disadvantaged are the people most likely to end up in jail or prison. One-third of inmates in state prisons were unemployed at the time of their arrest, and barely half were working full time. …. During the heyday of the rehabilitation era in the 1960s and 1970s, intensive general education and professional counseling programs were thought to be the best way to provide offenders and ex-offenders with “the tools they need to overcome histories of social disadvantage.” (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.82-3)

The U. S. approach to its returning citizens stands in striking contrast to how prisoners and ex-offenders are treated in other Western countries. The U.S. parole system “seems to be designed to catch a person doing something wrong, rather than provide the services to prevent an offense.” Western European countries “primarily use parole and probation services as a way of ensuring that the person is receiving appropriate services and treatment to help ensure reintegration into the community.” In Finland, for example, only about one in five people on parole has a supervision or surveillance component to their release. All released prisoners in Finland have access to services regardless of whether or not a parole officer is supervising them closely. In the United States, about 200,000 people are released from prison each year without supervision (either because it is the conclusion of their sentence or because they are under some kind of mandatory release). They are generally left largely on their own to integrate back into society without housing, employment, or other assistance. In Germany and France, punishment law and penal practices are expressly designed to avoid creating “any sense of status differentiation between prisoners and the general population. On the contrary, practices in both countries are supposed to dramatize the facts that inmates are just like everybody else.” (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.96-9)

This fixation on recidivism rates, in discussions of penal reform fosters the misperception with the general public and with government officials who should know better that released offenders are (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.104-5)

The focus on the prisons that Texas did not build has deflected attention away from the fact that Texas has been energetically disinvesting from the very items proven to reduce crime and improve the quality of life in the disadvantaged communities that hurt most by crime and by get-tough policies. These include high quality schools, good health care, and social services. It also has deflected attention from the fact that the budget crisis in Texas was not an act of nature but rather a crisis that was politically engineered by some of the very people who are being hailed as leaders in penal reform today.

In Texas and many other states, the political debate has centered on what is to be cut and on how to maneuver within a tight budget climate. The conversation (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.112-3)

Leveling down is consequential in other respects. African Americans and Latinos may be disproportionately subjected to certain abusive and degrading conditions, like solitary confinement.

U.S. prisons and jails are exceptional for the extensive use of demeaning and degrading practices that would be considered flagrant human rights violations in most other industrialized countries. The Abu Ghraib scandal provided a brief moment to turn the spotlight on such practices. (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.135-7)

In launching his war on crime, Johnson linked it to the war on poverty. He stressed the need to address “root causes” of crime. So did several presidential commissions appointed in the 1960s to examine the causes of the crime wave and the numerous disturbances that gripped U.S. cities at the time, most notably the Watts riots of 1965. But the root causes approach – which called for addressing these problems by investing more in education, health, welfare, and social and economic programs, not just law enforcement – lost out in public debates for a number of reasons. ... (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.146-7)

Recent state-of-the-art research in criminology has largely substantiated Italian Philosopher Cesare Beccaria’s claim from the eighteenth century that the certainty of punishment is a far greater deterrent to crime than the severity of punishment. The most persuasive studies suggest that increases in the severity of punishment have at best only a modest deterrent effect. (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.176-7)

ICE not only detains but also deports. Under President Obama, the number of annual deportations soared to record levels, peaking at about 410,000 in fiscal year 2012 www.dhs.gov/yearbook-immigration-statistics (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.219)

Thanks to these fast-track programs, the number of criminal case filings in the judicial districts along the 2,000-mile border with Mexico has skyrocketed, paralyzing the courts. Processing so many petty border crossers without any criminal records has severely taxed the US Marshall Service and the federal courts, which must provide transportation, housing, food, defense attorneys, courtrooms, clerks, and judges. The $600 million border security plan that President Obama signed into law in the summer of 2010 failed to include any additional money for overworked courts or overworked defense attorneys handling immigration cases. At the time of his death in the 2011 Tucson shooting spree that severely injured Representative Gabrielle Giffords (D-AZ), Arizona’s chief federal judge John Roll was waiting to speak with the congresswoman to thank her for her efforts to secure more funding for federal courts overburdened with Operation Streamline cases.

Operation Streamline and related programs have severely compromised the rights and dignity of immigrant defendants. In some jurisdictions, Border Patrol attorneys have been deputized as special assistant U.S. attorneys to prosecute Operation Streamline cases. These deputies generally operate out of the Border Patrol offices with little oversight from the United States Attorney’s Office. Their dual appointments raise some troubling conflicts of interests, especially as concerns escalate about excessive use deadly and other force by Border Patrol agents and local residents along the Southwest border.

To handle the massive increase in immigration prosecutions, overtaxed courts have been conducting expedited hearings in which they arraign, convict, and sentence dozens of border crossers – sometimes upward of eighty or a hundred – en masse in a single court appearance. Human rights groups have denounced these as “rapid-fire group trials.” Immigrant defendants often arrive in courts shackled to one another after a brief meeting with a defense attorney that sometimes lasts barely five minutes. Since the number of public defenders has not increased to meet the tidal wave of new criminal investigations cases, an appointed defense attorney often represents dozens of clients in a single hearing. .... (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.222-7)

As in the case of the Prison buildup that began in earnest in the 1980s, Operation Streamline and other efforts to criminalize immigration infractions have ...

Immigration experts attribute much of the recent drop in unauthorized immigrants entering the country to the faltering U.S. economy. ...

They face a much higher risk of dying as they are forced to attempt crossings in more desolate and physically dangerous desert and mountain areas.74 In a perverse outcome for those who want to slash the number of unauthorized immigrants residing permantly in the country, more immigrants are now settling down in the United States. This is because crossing back and forth – a common pattern in the past – has become so expensive and risky. In another perverse outcome, the growing reliance on professional smugglers has heightened border violence.76

Localization of immigration Enforcement

The criminalization of immigration policy hinges on more than just increasing federal government’s capacity to capture, detain, and punish immigrants. Another pivotal institution for criminalizing and localizing immigration enforcement is CAP. Beginning around 2005, the federal government consolidated the several programs that immigration authorities had relied on since the mid-1980s ...

Just months after taking office, President Obama sought to expand the Secure Communities program to include all of the country’s correctional institutions within a few years. If fully implemented .... (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.222-7)

(Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.226-7)

Private prison companies are even more secretive and publicly unaccountable than public departments of corrections, as discussed in chapter 3. Even Jorge Bustamante, the U.N. Special Rapporteur on Human Rights of Migrants, was not permitted to visit the notorious T. Don Hutto Residential Center, a CCA-run immigrant detention facility in Texas. …..

..... Privately operated detention centers have been cites for major uprisings over poor condictions. Two disturbances over lack of adequate medical care wracked GEO’s detention center in Pecos, Texas, in December 2008 and January 2009. The May 2012 riot at CCA’s facility in Natchez, Mississippi, left one guard dead.

ICE also runs an extensive network of secret detention jails. “If you don’t have enough evidence to charge someone criminally but you think he’s illegal, we can make him disappear,” John Pendergraph, a top ICE official, boasted to a conference of police officers and sheriffs in 2008.

The Private Sector and Immigration Detention

The Prison buildup of the 1980s and 1990s depended on fiscal slights of hand that concealed the real costs of mass incarceration and rendered them less subject to democratic accountability, as elaborated in chapter 3. Likewise the real financial burden of the criminalization of immigration violations has been obscured. For example, no one knows how much Operation Streamline actually costs because it is not an explicit item in the federal budget and has been subjected to little systematic oversight. ICE has been promoting the tougher immigration enforcement regime as a way for local communities to raise extra revenue by contracting with the federal government to house detainees in the city and county jails. Many communities, especially in the Southwest, have explicitly turned to immigration detention to help ease the budget pinch in the wake of the 2008 financial meltdown. But the economic benefits of immigrant detention are likely to be as illusionary as those of the earlier prison buildup, for many of the same reasons discussed in chapters 2 and 3.

Although detention facilities have not been economically profitable for many local communities, they have been a booming business for private, for-profit prison companies. As discussed in chapter 3, immigration detention was a financial godsend for leading private prison firms in the 1980s and 1990s and was a leading factor in turning their fortunes around. CCA and other private-prison companies have been pushing for punitive measures that target immigrants (like Arizona’s SB 1070 discussed earlier) and that expanded the use of immigrant detention. They have invested heavily in lobbying government officials at all levels and in promulgating punitive legislation. Aggressive marketing and lobbying by the prison industry have induced local communities to invest in public-private partnerships, this time to finance and construct new immigration detention facilities. Private prison consultants have emerged as major players in brokering private-public partnerships that technically place the financial risk of building these speculative facilities on the backs of bondholders but in reality put it on the backs of local communities.

Financial arrangements modeled after the lease revenue bonds discussed in chapter 3 ensure that bonds to build immigrant detention facilities do not need to go before voters for approval. Local governments contract with the federal government to house detainees and then typically subcontract with a private company for a set fee to run the detention facility. If the number of detainees and the revenue streams from them fall short of expectations, the local government is still saddled with the bond payments. If it defaults, the municipality imperils its credit rating, as happened in a number of communities. ALEC’s Public Safety and Elections Task Force, which was chaired by the National Rifle Association and whose membership included CCA and the American Bail Coalition, was the incubator for Arizona’s controversial SB 1070 and copycat legislation in other states. (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.230-3)

When Representative Gabrielle Giffords (D-AZ) announced in 2010 that the Obama administration would be sending 1,200 more National Guard troops to police the border with Mexico, she held up a photo of Robert Krentz, the soft spoken rancher shot to death weeks earlier on his ranch. After his death Krentz quickly became the poster child for the war on immigrants and a cause celebre among conservatives. Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.235

In some major U.S. cities, 80 percent of young African American men now have criminal records and thus are subject to a “hidden underworld of legalized discrimination and permanent social exclusion.”A seminal audit study of employment, race and criminal history found that the stigma of a criminal conviction presents a major barrio to employment for white job applicants in the United States and nearly insurmountable barrier for black applicants. White males without a criminal conviction received twice as many callbacks for job interviews as compared with white males with a criminal conviction (34 percent and 17 percent respectively). Only 5 percent of black job applicants with a criminal conviction received a call-back. Black applicants appear to be paying a double penalty. Black job seekers without a criminal conviction were less likely to receive a call-back than white job seekers with a criminal conviction (14 percent and 17 percent respectively).

In 2012, the Equal Employment Opportunity Commission approved new guidelines that restricted employers’ use of background checks to systematically rule out job applicants with a criminal record. The EEOC affirmed that employers are legally permitted to consider criminal records in the hiring process. However, it also acknowledged that across the board exclusions of all applicants with a conviction could violate employment discrimination laws because of their potentially disparate effects on racial and ethnic minorities. In 2013, the federal agency sued Dollar General over its use of criminal background checks, the first lawsuit brought by the federal agency under its new guidelines.

The pervasive inaccuracies of FBI records, widely considered the gold standard of criminal background checks, compound these problems. Approximately one in four U.S. adults has an arrest or conviction record, and the FBI currently maintains records on an estimated seventy-five million people. Half of these FBI records are inaccurate or missing critical information, most notably the disposition of an arrest. This missing information is vital for people applying for jobs or professional licenses. After all, one-third of felony arrests do not result in a conviction, and many others are reduced to misdemeanors. The FBI routinely searches for this missing disposition information when someone seeks to purchase a gun but does not routinely do so in the case of employment or licensing background checks.

The conditions of parole foster additional impediments to employment. Many states require that employers of people on parole permit parole officers to search their workplace premises at any time without advance warning. Many parolees are subject to house arrest and required to get permission from their parole agents any time they need to leave home. This makes it difficult to accept jobs with shifting work schedules and travel requirements.

Felon Disenfrancisement

The widespread practice in the United States of denying voting rights to people with a criminal conviction raises additional troubling questions about how the carceral state is defining (and redefining) cistizenship. As Chief Justice Earl Warren declared in the landmark 1964 Reynolds v. Simms decision: “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government."

A maze of state laws denies former offenders as well as probationers, parolees, and prisoners the right to vote. Other established democracies generally place far fewer restrictions on the right to vote for people with a criminal conviction, including those in prison. The United States disenfranchises most of its prisoners. Numerous states also deny the right to vote to large numbers of people who have completed their sentences or who are serving probation or parole.

The political impact of felon disenfranchisement in the United States is so huge because the number of people with criminal records is so huge because of the number of people with criminal records is so huge. Furthermore, felon disenfranchisement laws have stark racial origins and racial consequences. As of 2010, nearly six million people, or about 2.5 percent of the voting-age population, were ineligible to vote because of a current or prior criminal conviction. Only one-quarter of these disenfranchised individuals were serving prison sentences. About 2.6 million of them had completed their sentences. Most of the remainder were probationers or parolees. In addition, hundreds of thousands of people are pretrial detainees held in jail who are legally entitled to vote but who in practice are often disenfranchised. Confined to jail at election time, they do not have ready access to a polling station or absentee ballot.

The distribution of disenfranchised felons varies enormously by state, race, and ethnicity because of great variations in state disenfranchisement statutes and state incarceration rates. At one end Vermont and Maine, which permit everyone to vote, including state prisoners. At the other end is Florida, one of several states that impose a lifelong ban on voting for certain criminal convictions. Florida disenfranchises 1.5 million people – or more than 10 percent of its voting-age population. In Florida, Kentucky, and Virginia, more than one in five voting-age African Americans id disenfranchised due to a criminal conviction. The national disenfranchisement rate for African Americans is nearly 8 percent, or more than four times the rate for non-African Americans. In Arizona and Florida, an estimated 9-10 percent of voting-age Latino citizens are disenfranchised as a consequence of their criminal records. Tens of thousands of Latino votes have gone missing in each of the four states with the largest Latino populations and the four larges prison populations – California, New York, Florida and Texas.

The disenfranchisement of offenders and ex-offenders may be a decisive factor in close elections. Jeff Manza and Christopher Uggen calculate that if Florida had not banned an estimated 800,000 former felons from voting in the 2000 election, Al Gore would have handily carried the state and won the White House. They also conclude that the Democratic Party might have controlled the U.S. Senate for much of the 1990s, as well as several additional governorships in the 1970s, if former felons had been permitted to vote. Their work implicitly challenges the long-standing claims about the sources of the Republican Party’s political dominance in the 1980s and 1990s. If felon disenfranchisement is factored in, the ascendancy of the Republican Party may have been as much a function of locking out wide swaths of the electorate as crafting a new, more conservative message that successfully resonated with disenchanted Reagan Democrats. (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.244-5)

The impact of prison-based gerrymandering on state legislative districting receives the most attention from policy makers and the media. But the redistricting issue is even more consequential in counties and towns with sparse populations. ... (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.254-5)

Rising anxiety among state officials about the escalating costs of state mental institutions in the late 1940s did not on its own empty state asylums. Leadership at the federal level was critical to spurring deinstitutionalization. Another vital factor was the shift in the training, worldview, and identity of the psychiatric profession as the American Psychiatric Association split over the question of institutional care versus the community mental health model. The emergence of major new and inter-connected social movements (including the civil rights movement and the senior citizens movement) also was pivotal in pushing policy makers to embrace deinstitutionalization of the mentally ill. So was the growing journalistic and popular attention to the dire conditions in state mental hospitals. The final critical factor was the reconception of the mental health issue to include not just individuals and their individual diseases but also mental health as a barometer for the health of the whole community.123

Mental institutions were a huge and growing drain on state budgets for years, yet deinstitutionalization progressed very slowly. It was not until the 1990s-three decades after deinstitutionalization started-that whole institutions began to close in significant numbers. It took just as long for political leaders and the public to acknowledge that successful integration requires more than adequate medical treatment, and that the mentally ill needed access to good housing and jobs as well. 124 Deinstitutionalization was not an unqualified victory. With the closing of state mental hospitals and the contraction of federal money for treatment, services, and housing, jails and prisons unfortunately became the mental institutions of last resort for many seriously ill people. Cutbacks in mental health funds together with cuts in federal money for public housing and other services led to streams of apparently deranged people living on the streets. This outcome fueled a backlash against deinstitutionalization and community mental health. It overshadowed the fact that many mentally ill people made successful transitions to community life. 125

VIII. THE INVISIBILITY OF THE CARCERAL STATE

Although important parallels exist, there are some key differences between the deinstitutionalization case and the problem of the carceral state. Engineering major cuts to the country's incarcerated population is likely to be an even greater political challenge than deinstitutionalizing the mentally ill. One key difference is that the problems of state asylums were far more visible to the wider public. Prisons were not always the foreign, invisible worlds that they are today for most Americans. Here I mean real prisons, not the prisons imagined by Hollywood and prime-time television. The prisons of popular culture have created a "troubling distance between the punisher and punished," as Michelle Brown explains. They foster spectacle but not a "critical self-awareness of the role of law and institutions in the production of pain and violence." 126

Once upon a time, famous prisons like Sing Sing hosted thousands of visitors each year, including average citizens as well as celebrities like Babe Ruth and the Populist firebrand William Jennings Bryan. Inmates themselves also once played pivotal roles in making the prison a leading public issue. The escapes, strikes, mutinies, and riots of leased convicts, and their angry and mournful letters and memoirs helped bring about the end of the brutal practice of convict leasing and to eventually improve conditions on state-run penal farms. 27 The strikes and protests of inmates in Northern prison factories in the late 19t and early 20th centuries were catalysts for the enactment of state and federal legislation restricting the use of penal labor. 28 The growing number of self-mutilations by convicts on state-run penal farms in the 1940s eventually made it impossible for state officials and enterprising journalists to ignore the abhorrent conditions that provoked these bloody and desperate acts of protest. 129

Protests and riots no longer pose the political problems they once did for state officials and prison administrators. This is due partly to the development of tear gas and other anti-riot equipment beginning in the 1930s and of new management techniques (most notably the extensive use of super-maximum [supermax] prisons and cells that so severely isolate and punish inmates). 130 Today the barriers to mobilizing and protesting from within are extraordinarily high. As such, the massive 2010 strike by Georgia inmates protesting prison conditions and the huge 2011-13 hunger strikes waged against supermax facilities in California are all the more remarkable.

Decades ago, the popular press and a vibrant prison press extensively covered penal issues and served as important prods to reform. Due to cutbacks and restructuring in the news business over the past three decades, investigative pieces documenting abuses in all kinds of institutions, including prisons, nursing homes, and hospitals, are rarer today. That may change with the recent founding of the Marshall Project. This is a new nonprofit news venture dedicated to covering the criminal justice system in the United States that Bill Keller, the former executive editor of The New York Times, has helped launch.131

Another challenge is that corrections administrators and other state officials have been erecting ever-higher barriers for journalists attempting to cover what happens behind prison walls, including complete bans on face-to-face interviews with inmates in some states. 132 The once vibrant in-house penal press is nearly extinct, thanks to a series of unfavorable court decisions since the mid-1970s. These decisions have whittled away First Amendment rights for prison journalists and have granted penal authorities enormous latitude to censor what publications inmates are allowed to read. 33 (An inmate in the federal supermax prison in Florence, Colorado, even had to go to court to fight for the right to read Barack Obama's two best-selling books. Prison authorities had deemed that the president's books were "potentially detrimental to national security.") 134

Compared to prisoners today, the mentally ill and their legal advocates had considerable access to the courts in the 1960s and 1970s to press their civil rights claims and expose the dire conditions in state mental hospitals. Thanks to the Prison Litigation Reform Act, the Antiterrorism and Effective Death Penalty Act, and a string of unfavorable court decisions, prisoners and their legal advocates have had greater difficulty using the courts to pursue civil rights claims and to document and expose the conditions in U.S. jails and prisons. 135 The milestone Brown v. Plata decision may be the exception that proves the rule. It took more than 15 years for this case to reach the Supreme Court. After the Court rendered its decision, California officials continued to wage a legal war of attrition to undermine it.

One cannot help but wonder whether the wider public turned its gaze away from prisons not just because corrections officials developed more sophisticated technologies and legal weapons to quell prison protests and render life behind the walls invisible. One of the big stories from the 1930s onward is how the country's prison population went from being predominantly white to being predominantly black and brown. This likely helps explain why the general public no longer identified with people on the inside, especially once law-and-order politicians decided to turn black into a synonym for violence and crime. Young minority men were a far less sympathetic population than the troubled young white women and elderly patients with dementia who filled state asylums years ago. 136

....

These national organizations will not lead the way out of the carceral state without pressure from a more radical flank. Without that, they are unlikely to develop a penal reform vision that extends much beyond the 3R's and the Right on Crime coalition. As Dawson notes, the three most successful periods of black political mobilization-Reconstruction, the Progressive era, and the combined civil rights and Black Power era-"were all marked by innovative initiatives within black civil society, a growing and robust black public sphere," and an active radical flank.'5 ' These movements did not single-mindedly focus on the problem of racial disparities and inequities but sought to forge a broader political agenda centered on racial, social, and economic justice.

All the focus on the 3-Rs and the Right on Crime coalition has overshadowed the growing political ferment at the grass-roots level against the carceral state. It remains an open question whether all this ferment will coalesce into a broader movement to challenge not only the carceral state but also other growing inequities in the United States, including the unequal distribution of crime. New groups have been forming at the state and local levels to battle various aspects of the carceral state, including felon disenfranchisement, supermax prisons, the abuse of transgender prisoners, exorbitant telephone rates for inmates, the shackling of pregnant women during labor, and employment discrimination against former offenders. 52 A new wave of prisoner and ex-prisoner-led groups-what some dub the "formerly incarcerated peoples' movement"-has been coalescing to fight the carceral state despite the enormous obstacles to political action that they face. 15

A major shift may also be afoot among Christian fundamentalists, who have long been associated with the rise of retributive justice. David Green suggests that we may be at the cusp of a new era of penal optimism as evangelical Protestants take up the cause of penal reform and rally under the banner of the Bible's calls for compassion and forgiveness. Leading Christian fundamentalists like Chuck Colson, who established Prison Fellowship in 1975 and died in 2012, and Pat Nolan, president of Justice Fellowship, have had strong links to the Right on Crime group. But the shift among Christian fundamentalists on the crime and punishment question appears to run much deeper than these elite-level connections. 154

Since the publication of The New Jim Crow, Michelle Alexander has become an outspoken advocate of forging a much wider political movement to challenge the carceral state that goes beyond the race-centered approach she appeared to be endorsing in her best-selling book. She has called for a movement that shakes "the foundations of our economic and social order" in order to ensure that a new system of racial and social control will not be erected in place of the carceral state. In reflecting on the 50'th anniversary of the March on Washington, Alexander declared in 2013 that Martin Luther King "did not play politics to see what crumbs a fundamentally corrupt system might toss to the beggars for justice."' 155

XI. THE CARCERAL STATE AND CRIME

The record drop in crime rates since the early 1990s in the United States is a major achievement that has received enormous attention. Less noted, is that crime is distributed in highly unequal ways, and that unacceptably high rates of violent crime persist in certain urban neighborhoods. 15 6 Ignoring these disquieting facts is like heralding the record highs of the U.S. stock market or recent gains in U.S. per capita income without considering trends in income distribution or poverty rates. No other major city except Los Angeles has a homicide rate that comes close to New York City's relatively low rate of 4 per 100,000.157 Most cities have homicide rates that are at least twice as large as New York's rate and, in many cases, several times or even dozens of times higher.158 The high levels of violence that persist in the United States are quite exceptional when compared to levels of violence in other developed countries. They raise disquieting "questions about the authority and the legitimacy of the state and the possibility of state failure."'159

Since the early 1990s, the homicide victimization rate for African-Americans has fallen by more than half, but it remains extraordinarily high. Extremely high rates of violent crime persist in some urban neighborhoods. 160 The homicide rate in Chicago's affluent Hyde Park, home to Barack Obama, is 3 per 100,000. But the rate in neighboring Washington Park, which is overwhelmingly poor and 98 percent African-American, is 78 per 100,000.161 The homicide victimization rate for young black men involved in criminally active groups in a high crime neighborhood on Chicago's west side is 3,000 per 100,000 or about 600 times the national rate. Put another way, this is three times the risk of stepping on a landmine in Afghanistan, a real war zone. 162

The average rate of criminal violence for black neighborhoods is five times that for white neighborhoods; for minority areas, it is three and a half times that of white neighborhoods. 163 The homicide victimization rate for blacks is about six times the rate for whites.164 Blacks constitute just 13 percent of the population but half of all homicide victims. 165 Despite the great crime drop, over 78,000 black males were homicide victims between 2000 and 2010. (This figure exceeds the total number of U.S. military deaths during the Vietnam War by about 25 percent.166 And for every black male who died of gun violence, almost another three others suffered non-fatal injuries.) 167 Leaving aside homicide, the violent victimization rate for black girls and young black women is, in many ways, comparable to that of their male counterparts.168

Violent crime is highly stratified by race and class, but it is difficult-perhaps impossible-to determine which factor is more important. With the rise in the number of people living in residentially segregated neighborhoods of concentrated poverty, the deleterious effects of growing up and living in such neighborhoods are now well documented. 169 It is extremely hard-perhaps impossible-to disentangle the race effects from the class effects in violence because there are virtually no white neighborhoods as poor as the poorest black neighborhoods. I70 The "worst" urban neighborhoods in which whites reside are considerably, better off than those of the average African-American community, and the most advantaged black neighborhoods are no better off than the typical white neighborhood. 171

XII. CRIME AND ROOT CAUSES

The findings of decades of research on what explains variations in violent crime, especially homicide rates, are remarkably robust. Certain structural factors consistently predict higher rates of homicide: larger and denser populations, geographic location in the South, a higher proportion of divorced males, and higher rates of poverty and income inequality. Two other key structural factors that are related to income inequality-residential segregation and pervasive economic discrimination against certain groups-are likely consequential as well. 172 Over time, the relative weight of these factors has shifted, with structural economic factors related to poverty and income inequality now accounting for a greater proportion of the variance.173 Differences in policing resources and strategies also likely explain variations in rates of violent crime, though experts do not agree on just how much to credit the police for sustained drops in rates of homicide and violent crime.174

Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" Bring it on: The future of penal reform, the carceral state, and American Politics PDF

One cannot talk about crime in the streets today without talking about crime in the suites. Over the past four decades, the public obsession with getting tougher on street crime coincided with the retreat of the state in regulating corporate malfeasance — everything from hedge funds to credit default swaps to workplace safety. Keeping the focus on street crime was a convenient strategy to shift public attention and resources from crime in the suites to crime in the streets. (Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 p.280-1)

Conservatives Against Incarceration? Marie Gottschalk Fiscal conservatives were never going to bring down the carceral state. A broader fight against social inequality is needed. 12/23/2016

Hill Briefing on Private Prison Information Act Mon, 02/01/2010

Judy Greene cited several specific examples of her experience with with the lack of oversight among private prison facilities including:

In June of 2000 the BOP awarded a contract to CCA for a 2,304-bed prison they had built on speculation in California City. Seeking to understand how CCA could acquire the legal power to operate this prison, including the power to use deadly force, in California -- a state which had not enacted legislation conferring such authority on private corporations, a colleague and I submitted a FOIA request for this critical information from [the Bureau of Prisons] BOP. After several months time, we sere notified that under federal regulations pertaining business information, the information I was seeking was exempt from FOIA because the company had deemed it to be a trade secret.

HR 2450 specifically addresses these issues by extending FOIA to all federally contracted prisons and detention centers. Jackson Lee's bill has garnered fifteen Congressional co-sponsors to date.

And the bill has also drawn opposition from companies with private prison interests -- most notably from the Corrections Corporation of America (CCA). Congressman Tim Holden (D-PA) is a current co-sponsor of HR 2450 and introduced a similar measure in the last Congress that also garnered opposition. At the time Rep. Holden stated:

In recent weeks, opposition to this bill has mobilized. Although I cannot testify on their behalf, I can reiterate my concern that opposition to this bill is opposition to reporting transparency...

Lawsuit Says Prison Company Not Complying With Records Request A private company that runs 12 of the state's prison facilities is being sued by a publication that says the company is failing to release information related to deaths and health care at the Dawson State Jail in Dallas. May 1, 2013

The Corrections Corporation of America, a company that runs 12 of the state's prison facilities, is facing a lawsuit from a publication that says it is failing to release information related to deaths and health care at the Dawson State Jail in Dallas.

The prison is one of several that the Legislature is considering for closure because of a declining prison population.

The lawsuit, filed Wednesday with a state district court in Travis County, seeks to force the company to comply with an open records request that was filed in early March by Prison Legal News, a monthly magazine based in Vermont that focuses on prisoner rights. The company has not complied with the request, spurring the magazine to bring a suit against it and, in the words of the petition, "enforce its right under state law to investigate patterns of unconscionable and unconstitutional conditions in corporate-run jails."



Amnesty International: Jailed Without Justice: Immigration Detention in the USA

Private Prisons Rule With Little Oversight on America’s Border 06/20/2014

For-Profit Prison Companies Boost Numbers of Immigrants Detained 01/01/2016

This industry stands to benefit from Trump's crackdown on the border 02/14/2017

Prison Economics Help Drive Ariz. Immigration Law 10/28/2010

The SAGE Handbook of Punishment and Society edited by Jonathan Simon, Richard Sparks p.221)

America's Current Racial Caste System - We Need to Ensure That It Is Our Last Tuesday, July 24, 2012 By Michelle Alexander, The New Press | Book Excerpt

My Four Months as a Private Prison Guard: Mother Jones Shane Bauer July/August 2016

The Clintons Had Slaves 06/06/2017

(Marie Gottschalk "Caught: The Prison State and the Lockdown of American Politics" 2015 at JSTOR