Dodging Decarceration: The Shell Game of ‘Getting Smart’ on Crime

July 10, 2014

It has taken a long time, far too long, but politicians seem finally to have realized how catastrophically expensive it is for the United States to lock up more people than any other country on the planet. Although most had cared little about how much it would cost their districts when they embraced harsh mandatory minimum sentences, or eliminated the possibility of parole, or further criminalized the public health problems of addiction and mental illness, apparently the economic chickens have now come home to roost.

And, of course, as anyone at all close to the everyday and real workings of our nation’s criminal justice system knows, the costs of mass incarceration are not merely monetary. Yes, it costs billions of dollars to have confined more than 2.4 million people to 1,719 state prisons, 102 federal prisons, 2,259 juvenile correctional facilities, 3,283 local jails and 79 Indian Country jails — as well as in military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories by 2011. But as important, this level of incarceration has devastated the children, the neighborhoods, the lifetime livelihoods, and even the very health, of the imprisoned themselves.

For these reasons, as well as for reasons of fiscal responsibility, it seems that politicians finally might be ready to implement some real criminal justice reform. Not only have advocacy organizations such as the Families Against Mandatory Minimums long been calling for an overhaul of sentencing law, but so now are heavy-hitter administration officials such as U.S. Attorney General Eric Holder. Not only are major reports now suggesting the merits of decarceration, but so too are articles in the New York Times, as well as in publications as unlikely as Business Insider. Much is now being made of a new bipartisan desire for criminal justice reform.

South block at San Quentin State Prison. Photo Credit: Nancy Mullane

South block at San Quentin State Prison. Photo Credit: Nancy Mullane

And, perhaps, this desire is finally being realized. Key states such as California, New York and New Jersey have seen notable reductions in their state prison populations and, according to the Bureau of Justice Statistics, by year’s end of 2012 there were approximately 6,937,600 people under the supervision of adult correctional systems nationally, a marked decline of about 51,000 offenders in one year. As notably, this had been the fourth year in a row that prison population numbers had gone down.

But before we break out the champagne, or before we begin thinking that we are indeed well on our way to a more humane criminal justice system, there is much that we might scrutinize more carefully. Columnist Andrew Cohen has made this exact point — noting, for example, that some of the most significant prison population decline this nation has seen in recent years has had more to do with a very specific decision of the U.S. Supreme Court than to a broader reform mandate. As Cohen and the Prison Policy Initiative show, a number of states have actually have been incarcerating more, not fewer, people.

So, it is indeed too early to get excited about an end to mass incarceration. While it is true, as Cohen noted, that “Eleven states decreased incarceration over the period 2000-2011,” when one accounts for the ups and downs of the imprisonment rate overall since 2001 the only “unscientific word” to use for this trend, he points out, “would be ‘flat.'”

But there is in fact much more at stake here than too prematurely celebrating the imminent end of mass incarceration. In fact, a far greater danger is that we completely misunderstand what actually needs to happen if we are really to end today’s carceral crisis. By focusing so much attention on how many people are confined within this nation’s state or federal prisons in a given year — at best watching these figures inch downward at a glacial pace and, more usually, watching them ebb and flow at still unconscionable levels — we have, perhaps, found ourselves unwitting players in a most insidious shell game that might be called “the Decarceration Dodge.”

Without question it is important that we address today’s historically unprecedented and internationally unparalleled levels of imprisonment. Notably, however, state and federal penitentiaries are but one way in which our nation’s overwhelmingly poorest and disproportionately black and brown people are today confined and contained. Our carceral crisis does not stem solely from locking people up in these facilities.

In fact today’s criminal justice disaster does not at all depend upon excessive rates of imprisonment, or even on current probation and parole policies that have abandoned millions of Americans to a permanent state of semi-freedom. It is, at bottom, rooted in the excessive policing and profiling of very particular communities which, in turn, still leads to their excessive and disproportionate confinement and containment in myriad ways that we talk far too little about.

Indeed, even as we celebrate the dip in state and federal prison populations that have resulted from litigation or legislation, disproportionate policing and racial profiling is still resulting in historically unprecedented levels of containment and confinement of our nation’s poorest, most disenfranchised, and least powerful residents — be they the poor people of color in America’s largest cities, the students of color in school districts both urban and rural, the immigrants, or the poor, the addicted, or the mentally ill of any race, gender or ethnicity anywhere.

Those people — the bulk of the 4.4 million Americans stopped by police officers in cities like New York, or the millions profiled by ICE officers in cities from Los Angeles to Chicago — may or may not end up serving time behind bars in a state or federal facility, but they are still confined and contained. And, these too-often routine experiences of being contained in holding centers or jails, or confined to a detention center, even temporarily and without charge, still result in job loss, in terrible feelings of insecurity on the part of children, and in the general sense that they are unwelcome criminals where they live and work.

We need only to see the explosive growth in this nation’s immigration detention centers, or visit America’s city and county jails, to see that containment and confinement still remain at crisis levels even as we tout declining prison populations at the state and federal level. And, the latter is often dependent upon the former. Not only have detention centers and jails become dangerously overcrowded as they are forced to contain and confine the many thousands of men and women who are stopped, frisked and profiled each day in America, but jails also have become sites of permanent, not merely pre-trial, confinement in states with declining prison populations. Notably, when the U.S. Supreme Court ruled that California must reduce its state prison population, jurists did not say that the state had to free them. And, overnight, county jails across the region were bursting at the seams.

And, in California, since jail space isn’t always an option for making sure that those no longer allowed to stay in state prison system remain confined, “the centerpiece of the administration’s plan to meet the court-ordered prison population cap” has been “the use of in-state and out-of-state contract beds.”

When politicians feel fiscal pressure to reduce the cost of running their state’s penal institutions, the only unequivocal beneficiaries seem to be the private companies that offer to deliver confinement more cheaply. As State Representative John Kavanagh, chairman of the Arizona House Appropriations Committee once explained it:

The bottom line is that Arizona will continue to use private prisons under strict contract terms and state supervision because they have demonstrated they can do the job well, while saving taxpayers their hard-earned dollars.

In fact, according to Brad Livingston, Executive Director of the Texas Department of Criminal Justice, “Privately run state prisons” have, “saved his department some $7 to $8 per inmate per day because of lower salaries and reduced benefits.” As another observer notes, “For-Profit Prisons” have been the “Big Winners of California’s Overcrowding Crisis.”

Jails and private prisons by no means constitute the only shells under which today’s mass incarceration crisis has been quietly shoved in this game of Decarceration Dodge. Another response to politicians’ calls for their states to stop spending so much money on state or federal prisons, to get “smarter on crime,” has led to for-profit “alternatives” to confinement as well as to the increasing containment of people via technology.

As writer James Kilgore has made clear, “On a normal day some 200,000 people wake up with a black plastic box strapped to their leg and the number is growing.” Not only are these high-tech modes of human containment and confinement now seen as a welcome alternative to the expense of locking them up in state or federal prison, but this too has made the business of containing people newly lucrative to some while still devastating to others.

As Kilgore also points out, the biggest supplier of electronic monitors is “also one of the giants of the private prisons sector, the GEO Group” which, in 2011 alone “pulled in earnings of just over $1.6 billion.” In short, containing people is profitable. In the case of electronic monitoring, the profit comes not just from the states who opt to save some money by purchasing monitors rather than paying for prison beds, but also from those who are tethered themselves. Indeed, those who are contained by an electronic monitor most often must pay the costs of their own confinement. These include so-called “start up” fees as much as $200 and daily fees as high as $49 for an average monthly total of $1470.00. And, make no mistake about it, since basic access to employment and access to family is still severely limited when tethered, these fees only deepen the myriad economic and personal crises faced by the confined in America.

And, thus, what exactly it means today that we are seeing “U.S. Prison Populations Decline,” merits serious consideration and skepticism. There is absolutely no question that we must, in fact, decarcerate. In order to bring our incarceration rate even remotely in step with our crime rate — say even accepting the level of imprisonment we had back in 1970 — would mean reuniting over 1.5 million people with their families and communities. And this would be a substantial addressing of our current carceral crisis. As we embrace various headlines indicating that we are now reducing prison populations, though, we must be very sure that we have not just fallen prey to a sleight of hand — that we have not indeed been “taken” by the insidious shell game that is Decarceration Dodge.

Ultimately we must remember that as long as America tolerates racialized stop and frisk policies as well as the profiling of people of color by either the police or ICE, we ensure unacceptable levels of confinement in America. Even as prison populations may shrink at the state or federal level, too many people will still be languishing in jails and disappearing in detention centers. Too many still will be contained by technology. We must refuse to be swindled in a shell game. We must look out for the Decarceration Dodge.

This article was originally published on Huffington Post.