The Tea Party firebrand Ted Cruz and the working-class champion Elizabeth Warren rarely agree, but both senators support the Smarter Sentencing Act, a proposal to reduce prison terms for federal drug crimes. Pundits often cite that bill as proof of bipartisan momentum for criminal-justice reform. There’s also Rand Paul and Cory Booker’s Redeem Act, which would make it easier to expunge some types of criminal records. This year Bill Keller left The New York Times, where he was executive editor, to lead a criminal-justice-news outlet, the Marshall Project. In a letter he disavows “any particular agenda or ideology.” “As it happens,” Keller claims, “criminal justice is one of the few areas of public policy where there is a significant patch of common ground between right and left.”
Caught: The Prison State and the Lockdown of American Politics
By Marie Gottschalk (Princeton University Press)
Not so fast, says the University of Pennsylvania political scientist Marie Gottschalk. Her new book, Caught: The Prison State and the Lockdown of American Politics, questions whether the same Beltway leaders who have cheered the quadrupling of America’s prison population since the 1970s can now be trusted to dismantle mass incarceration. “For all the talk about the dawning of a new age” in criminal-justice policy, Gottschalk writes, vaunted campaigns like the public/private Justice Reinvestment Initiative and the Grover Norquist-endorsed Right on Crime movement have generated “remarkably modest” real-world effects. If anything, these campaigns further entrench a core premise of mass incarceration: There exists some identifiable subset of dangerous individuals who must be exiled from society.
Elite politicos imply that America’s prison crisis just needs some easy, relatively uncontroversial fixes: Release some drug addicts here, clean up some racial disparities in sentencing there. In a recent speech, the U.S. attorney general, Eric Holder, heralded “a paradigm shift in the way our country addresses issues of crime and incarceration, particularly with respect to low-level, nonviolent drug offenses.” With that telling “particularly,” Holder skirted the more contentious question of whether the United States overrelies on prison as a response to violence.
Tidy recipes for reform both minimize America’s prison problem and oversimplify its causes. If the United States released one-half of all prisoners tomorrow, it would still have an extremely high incarceration rate compared with most of Europe’s. And, contrary to popular belief, the war on drugs is not the primary culprit. Prisons are packed because states now punish violent crimes more strictly than they did before the “tough-on-crime” reforms of the 1970s, 80s, and 90s. As Gottschalk writes, “U.S. prisons are not filled with easily identifiable Jean Valjeans.”
But U.S. prisons are hardly filled with irredeemable monsters. It’s that very binary—in which every convict must be Jean Valjean or Jeffrey Dahmer—that short-circuits the difficult deliberation needed for meaningful criminal-justice reform. The notion “that there are clear-cut, largely immutable, and readily identifiable categories of offenders,” as Gottschalk puts it, simply doesn’t fit the evidence. Reformers’ understandable emphasis on anecdotes of obvious and unusual injustice—the hapless fellows behind bars for lifting a pizza or selling a joint—can risk implying that everyone else in prison deserves to be there.
Although there’s little evidence to support predictions of danger according to type of offense, there is good evidence along a different variable: age. Regardless of their youthful criminal history, Gottschalk notes, most people eventually “age out of crime,” in “a process that some have termed ‘criminal menopause.’ "
That finding fails to square with American lawmakers’ enthusiasm for life sentences, which are virtually unknown, other than in extreme cases, in much of the rest of the world. Historically in the United States, too, true life sentences used to be rare. Before the 1970s, life sentences often meant, in practice, parole after around 10 years. Now, after decades of parole restrictions and “truth-in-sentencing” laws, life sentences really do mean life. In Gottschalk’s words, prisons increasingly resemble “maximum-security nursing homes.”
A genuine movement to downsize America’s prisons, then, would probably not focus on potheads and pizza thieves. Nor would it merely aim to reduce racial disparities within the prison system while leaving the system itself intact. It would begin, instead, with prisoners serving shorter terms for murder and rape. Reducing sentences for violent crimes would realign U.S. penal policy with its own historic norms and with present-day norms in other industrial democracies. And it would help low-level and drug offenders as well, by recalibrating the ladder of punishment downward. “Unfortunately,” Gottschalk writes, “the main thrust of penal reform seems to be moving in the opposite direction.” Politicians lavish attention on prisoners convicted of “nonviolent, nonserious, and nonsexual” crimes, but continue to scapegoat disfavored groups like sex offenders and certain classes of immigrants.
No school of thought on the American “carceral state” escapes Gottschalk’s criticism. Activists who rail against “the prison-industrial complex” substitute conspiratorial slogans for nuanced analysis. Libertarians who count prisons on their list of “big government” bugaboos are too quick to embrace equally oppressive private-sector alternatives, such as for-profit treatment centers. “Prisoner re-entry” programs reduce former inmates’ problems into a need for skills training, downplaying structural obstacles like the lousy economy, weakened labor protections, and discriminatory laws.
Gottschalk is especially critical of those who shoehorn mass incarceration into the fiscal vocabulary of cost-benefit analysis. She views as naïve the faith that fiscal pressures alone might force states to shutter prisons. Since the 1970s, state legislators have found creative ways to finance prison and jail construction, even during rocky economic times and even while railing against government spending.
More fundamentally for self-proclaimed progressives, Gottschalk views this fiscal framing as short-sighted because it accepts the assumption that “shrinking government budgets” should be legislators’ primary goal. The same assumption, of course, has underwritten other policy projects that progressives disavow, including the subversion of public education and the gutting of social-welfare programs. “Developments in penal policy,” she insists, “cannot be understood separately from wider developments in economic and social policy.”
In her final chapter, Gottschalk retreats from the brink of total pessimism. Her most intriguing suggestion is to transform the main bug in American criminal justice—its permeability to public whim—into a feature. Unlike citizens of most countries, which staff courts with career bureaucrats, Americans elect their prosecutors and even, in many states, their judges. The conventional wisdom holds that voters demand strict law and order, and elected officials deliver. But voters could start demanding more-temperate prosecutors, more-forgiving judges, more-merciful governors. She encourages local activists to get involved in district-attorney elections and to lobby incumbent DAs to wield their enormous power in more-equitable ways.
This proposal is appealing. But it exists in uneasy tension with the rest of the book, which catalogs how those most affected by draconian law enforcement are also those most alienated from the polity, both through formal measures and through countless day-to-day roadblocks. An encyclopedic synthesis of recent scholarly work and journalism on criminal justice, Caught spans a wide range of topics but has a simple refrain: Beware of bipartisan reformers bearing gifts. Politicians pretend that hard problems are easy and make easy problems hard. Gottschalk, to her credit, is no politician.
