I conclude by briefly indicating a way forward. What follows is not intended as a set of policy prescriptions; instead, I offer four themes that must remain central if we are to scale back our prison system and reduce the damage that incarceration causes. In offering these ideas I want to reiterate that, despite the critique offered in this Article, I share much common ground with the New Jim Crow writers. Without papering over the analytic and strategic differences that exist between us, these concluding pages seek to clarify how closely my goals overlap with those of the writers I have discussed.
First, combating mass incarceration will require a multiracial movement. Some of the New Jim Crow writers understand this, yet they do not appreciate the extent to which the Jim Crow analogy pushes non-black prisoners to the margins. The Jim Crow claim is, at the end of the day, an appeal to the base--a metaphor with great potential to mobilize blacks and racial justice advocates to care about mass incarceration. But it comes at a cost--namely, the analogy does not encourage other racial groups to recognize that, on this issue, black interests coincide with their own. As Darren Hutchinson has argued, framing issues in terms of black and white discourages other racial minorities from engaging in coalition politics. A similar point applies here: If whites and Hispanics disappear from view in discussions of mass incarceration, they are less likely to see a campaign against it as speaking to and for them. This is a missed opportunity--especially now, when fiscal considerations could motivate large numbers of voters to demand reductions in our bloated prison system.
Second, an effective response to mass incarceration requires that moral appeals on behalf of mass incarceration's direct targets be combined with broader arguments on behalf of community safety. In questioning the New Jim Crow writers' account of the origins of mass incarceration, I have suggested that some of those who push for tough-on-crime laws, and many of those who support them, do so out of a real concern about safety. To be clear, I hardly think this is the only motivation: The New Jim Crow writers make a powerful case that racial animus and indifference play a role as well. But a substantial number of Americans care primarily about being able to walk home without being mugged or seeing drug sellers lurking on the corner. Progressives should acknowledge such concerns and make the case that mass incarceration is detrimental to community safety, rather than necessary to secure it.
The good news is that such a case can be made. In the past decade, even as the nation's prison population has grown, four states have reduced their prison populations while also cutting crime. New York City's success in lowering crime rates has been widely chronicled, but new research by Franklin Zimring reveals a less-well-known fact: New York City reduced crime while also reducing the number of residents sent to prison. In the short term, such a policy change requires pulling various criminal justice levers-- for example, expanding alternatives to incarceration, reducing the time served in prison, reducing parole revocations, and making better use of probation resources. Over the longer term, it requires human capital investments of the sort that both the New Jim Crow writers and I endorse.
Among the most important of such investments is education. As I discussed in Part VI, there is a close connection between incarceration rates and educational attainment: Blacks and whites who have dropped out of high school are ten times more likely to be incarcerated than those who have attended college. While correlation is not causation, these facts suggest that appropriate educational (and other social-service) interventions may be, in addition to their other benefits, crime-fighting measures.
Third, an effective response to mass incarceration requires increased attention to how we treat prisoners. Even if the movement to challenge mass incarceration is ultimately successful, America will continue to have an enormous system of prisons and jails for a long time to come. And even if our prison population shrinks substantially, some people will always need to be locked up--hence the urgency of attending to the conditions in which prisoners are held.
Prison conditions receive too little attention among mass incarceration's critics, including the New Jim Crow writers. It is difficult to say why this is so, but at least for the New Jim Crow writers, the explanation may lie in their focus on the War on Drugs. After all, a strong case can be made that drug offenders (especially drug users, who receive the bulk of the New Jim Crow writers' attention) should not be incarcerated at all. Having framed the issue in this way, these writers may feel less compelled to focus on improving prison conditions.
Whatever the reasons for the oversight, it must be remedied: How we treat those we incarcerate is a critical front in the battle against mass incarceration. Consider Brown v. Plata, in which the Supreme Court recently ruled that California must reduce its prison population in order to mitigate the unconstitutional harms associated with overcrowding. The lower court, in finding for the plaintiffs, had warned that the state's continued failure to address the severe crowding in California's prisons would perpetuate a criminogenic prison system that itself threatens public safety. Justice Kennedy recognized that concern in his majority opinion, quoting then-Governor Schwarzenegger's acknowledgement that overcrowding increases recidivism, as well as testimony from the Acting Secretary of the California prison system, who said that she absolutely believe[s] that we make people worse, and that we are not meeting public safety by the way we treat people. The record in Plata clearly illustrates that prison conditions are not only a prisoners' rights issue, but are also a crime prevention issue. Most prisoners, after all, are serving time for violent offenses. And even with longer prison sentences, the vast majority of American prisoners will be released eventually. So we face a choice: Will we take individuals whom we have judged unfit for life in the free world, expose them to further violence, destabilize them psychologically, and deny them treatment for addiction, trauma, and mental illness? Or will we attempt to create a system of support and rehabilitation for the incarcerated? For their sake, and our own, the answer seems clear.
Fourth, advocates for a more parsimonious use of punishment must take violence, and the fear of violence, seriously. There is nothing wrong (and a lot that is right) about emphasizing the profound racial disparities in incarceration rates for drug crimes. But there is everything wrong with accounts of crime policy that fail to mention the fear, disorder, and violence that accompanied city life in much of the 1970s, 1980s, and early 1990s.
Ta-Nehisi Coates compares life in Baltimore's black community during the 1980s with his father's urban experience a generation before:
When crack hit Baltimore, civilization fell. Dad told me how it used to be. In his time, the beefs were petty and stemmed from casual crimes. . . . The bad end of a beef was loose teeth and stitches, rarely shock trauma and Blessed Assurance ringing the roof of the storefront funeral home.
. . . But as time went on, we forgot ourselves and went cannibal--the next brother became a meal to feed our rep. At night, Action News unfurled the daily scroll, and always amid the rescued dogs, the lost toddlers, the scandalous bankers, there was us, buckled by the pop-pop of a .22, laid out on a sad stain of blood.
I didn't fully get it then, but this was an inglorious turn. The world was filled with great causes--Mandela, Nicaragua, and the battle against Reagan. But we died for sneakers stitched by serfs, coats that gave props to teams we didn't own, hats embroidered with the names of Confederate states. I could feel the falling, all around. The flood of guns wrecked the natural order.
And it wasn't just Baltimore. Bodies--mostly black, mostly young, and mostly poor--fell all across America. In Washington, D.C., the number of homicides tripled in just seven years as the violence associated with the crack trade ravaged the city. Crime has declined since the era that Coates recounts. But there are neighborhoods where violence remains a daily fact of life. David Kennedy, in his recent book, Don't Shoot: One Man, a Street Fellowship, and the End of Violence in Inner-City America, explains:
Everybody knows crime is down these days, it's a national success story. America's homicide rate hit almost 10 per 100,000 in the peak years; it's now about half that. But not for black men. Black men are dying, overwhelmingly by gunshot, at a horrendous pace. In 2005, black men aged eighteen to twenty-four were murdered at a rate of 102 per 100,000 (white men of the same age: 12.2 per 100,000). Recent data show that, even as homicide overall continues to decline, black men are dying more. Between 2000 and 2007, the gun homicide rate for black men aged fourteen to seventeen went up 40 percent; eighteen to twenty-four, up 18 percent; twenty-five and over, up almost 27 percent.
Kennedy's response to this crisis consists of programs grounded in what he calls focused deterrence. The strategy concentrates police resources on the offenders driving violent crime while also seeking sustained cooperation with the communities most affected by the violence. Police and community members work together to convey a single message to those who are causing the violence: Violent crime will not be tolerated. Kennedy's approach is not the only one; Zimring, for example, drawing on the story of New York City's crime reductions, suggests other ways to reduce crime while shrinking prisons. It is too early to tell whether any of these approaches are sustainable at scale. But this is a conversation that we must have, and that racial justice advocates must engage in, if we are to bring the disastrous era of mass incarceration to an end.
. Copyright © 2012 by James Forman, Clinical Professor of Law, Yale Law School.
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