Thursday, June 30, 2022

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 Abstract

Excerpted From: Katherine Beckett and Megan Ming Francis, The Origins of Mass Incarceration: The Racial Politics of Crime and Punishment in the Post-civil Rights Era, 16 Annual Review of Law and Social Science 433 (2020) (8 Footnotes/Literature List) (Full Document)

 

BeckettandFrancisThe term mass incarceration is now widely used to call attention to the unprecedented scale of the US institutions of confinement--and the havoc they wreak. After hovering just above 100 for decades, the incarceration rate climbed rapidly from the 1970s. In 2008, 760 of every 100,000 US residents-- nearly 1 in 100 adults--lived behind bars. Five million others were on probation or parole, more than ten million spent time in jail, and nearly one in three people lived with a criminal record. By 2016, the US incarceration rate had fallen to 655 per 100,000 residents, a nearly 14% decline. Despite this modest drop, the United States remains the world's leading jailer.

As dramatic as its emergence has been, mass incarceration is one (quite important) component of an even larger development, namely, the growth of the carceral state. Sociologist Garland (2001b, p. 2) coined the term mass imprisonment in 2001 to call attention to the “unprecedented expansion of prison populations” in the United States and to the “systematic imprisonment of whole groups of the population.” Since that time, the use of a similar term-- mass incarceration, which also includes the jail population--has exploded. The literature that explores mass incarceration's causes and consequences pays particular attention to the tail end of the criminal process--namely, incarceration--and to the policy developments that have fueled rising incarceration rates. As Garland notes, this focus on incarceration coexists with efforts to “trace all of the forms in which state power is exercised through the criminal justice apparatus.” Studies aimed at this broader objective often use the term carceral state to call attention to the expanding role of penal institutions, broadly defined, in the lives of the poor and in communities of color. Thus, although these terms are sometimes used interchangeably, they do refer to different, if overlapping, phenomena.

This article examines the origins of mass incarceration, the emergence of which has spawned a tremendous amount of social scientific research. Many studies analyze the effects of mass incarceration and show that penal expansion has many effects that enhance, and mask, inequalities. For the formerly incarcerated, these effects include reduced earnings and employment, increased housing instability and indebtedness, and impaired physical and mental health. Mass incarceration also destabilizes the families and communities from which the convicted are overwhelmingly drawn. Given pronounced racial and ethnic disparities in criminal justice contact and involvement, communities of color have been especially hard hit.

Like mass incarceration, the growth of carceral state power has been quite consequential. For example, people who are stopped, frisked, arrested, fined, and surveilled are also harmed by their contact with the criminal justice system, even if they are not confined. Increased contact with the carceral state has led to decreased political participation and civic engagement, thereby undermining citizenship.

Although using the terms mass incarceration and carceral state interchangeably may therefore be appropriate in some contexts, this practice may also cause confusion in discussions of the origins of these developments, as some dynamics that have undoubtedly fueled the growth of the carceral state have not significantly contributed to the growth of prison or jail populations. For example, in New York City, the adoption of broken windows policing clearly empowered the police, subjected many poor New Yorkers to heightened surveillance and control, flooded the courts with low-level arrests, and led to the innovation and expansion of court-based systems of control. Yet both the misdemeanor conviction rate and jail populations declined notably in this context. Thus, although the adoption of broken windows policing in New York City did expand carceral state power, it does not appear to have contributed directly to mass incarceration.

In this article, we focus on mass incarceration specifically. One body of literature shows that mass incarceration is a shortsighted, ineffective, and inhumane approach to public safety. Many countries with far lower incarceration rates experience less crime and have enjoyed declines in crime rates that are akin to those that have taken place in the United States. Similarly, US states that decreased their imprisonment rates the most in recent years have also experienced the largest drops in crime. Moreover, research indicates that incarceration is often criminogenic, that short sentences deter as much as long sentences, and that the vast majority of people age out of crime. For these and other reasons, the National Research Council concluded that “statutes mandating lengthy prison sentences cannot be justified on the basis of their effectiveness in preventing crime”.

Another body of literature seeks to identify the proximate causes of mass incarceration, that is, the specific changes that fueled prison growth. These studies indicate that the increased use of prisons stems largely from two main changes in policy and practice rather than from rising crime rates. First, the proportion of felony arrests that resulted in prison admission (rather than a jail or probation sentence) increased notably after the early 1980s. Insofar as this shift stemmed at least in part from prosecutors' increased proclivity to file felony charges, these findings are consistent with research that highlights prosecutors' vast--and unregulated-- discretionary power. In addition, prisoners are spending more time behind bars. The dramatic increase in drug arrests in the 1980s and 1990s also fueled the growth of prison and jail populations.

In short, it is clear that changes in policy and practice (rather than rising crime rates) are the proximate drivers of the prison boom. Nevertheless, researchers continue to explore--and disagree about--why crime control policy and practice changed in ways that fueled incarceration in all 50 states. In what follows, we review and assess this literature. Our analysis is guided by two main considerations. First, we focus on the capacity of various arguments to explain the emergence of mass incarceration (as opposed to the growth of carceral state power). In addition, we seek to distinguish between its fundamental causes and less-significant contributing factors. Complex institutional and political developments such as mass incarceration can rarely, if ever, be reduced to a single or even a few causes. For this reason, synthetic approaches that identify both macro- and meso-level factors offer an important contribution. At the same time, analyses aimed at identifying the deeper historical and structural origins of mass incarceration may help to distinguish between its fundamental causes, without which mass incarceration would not have occurred, and other factors that played a contributing role but were less central to--and necessary for--its emergence.

One well-known account of the origins of mass incarceration emphasizes the centrality of racial and electoral politics in the contemporary United States and the ways in which the two-party, winner-take-all system structures these forces. This racial politics perspective contends that the social and policy shifts that fueled mass incarceration have their roots in the political dynamics unleashed by the emergence and successes of the civil rights movement in the 1950s and 1960s. In recent years, many researchers have usefully complicated and/or extended this framework, while others have offered interpretations that emphasize other, ostensibly more fundamental dynamics. For example, some attributes mass incarceration to the rise of neoliberalism, whereas others emphasize shifts in cultural values and sensibilities. Recently, several analysts have argued that the policies and practices that drove mass incarceration have their origins in high and/or rising rates of violent crime. Still, others emphasize the role of liberals in the prison buildup.

In what follows, we more fully explicate the racial politics perspective, describe several friendly amendments to it, and explore a range of arguments that challenge it in more fundamental ways. We argue that recent research adds welcome nuance and complexity to the racial politics perspective and usefully identifies the mechanisms by which the political dynamics it highlights influenced policy and practice at the federal and state levels. We also argue that alternative accounts that identify neoliberalism, changing norms and attitudes, trends in violent crime, and/or the role of liberals offer some important insights but generally obscure rather than illuminate the deeper, most fundamental origins of mass incarceration. In the end, we maintain that although mass incarceration is the result of many changes and dynamics, it simply cannot be explained without reference to the centrality of racial politics; the importance of the crime issue to the GOP electoral strategy that emerged in the wake of the civil rights movement; and the nature of the decentralized, two-party electoral system, which increased the weight and importance of socially conservative swing voters and encouraged bipartisan competition for ownership of the crime issue.

[. . .]

Arguments about the fundamental origins of mass incarceration must account for the fact that it is unique to the contemporary United States. Accounts that emphasize the cultural changes associated with late modernity or the forces of neoliberalism falter precisely because they cannot explain US penal exceptionalism. Alternatively, perspectives that emphasize high and (ostensibly) rising levels of violence in recent decades ignore the fact that rates of violence were just as high in the 1920s and 1930s as in the 1980s and 1990s, that rates of white victimization were flat or falling after 1980, and that total crime rates fell from after the early 1990s as incarceration rates continued to skyrocket. Although black rates of victimization did increase in the 1960s, they too were dropping throughout much of the penal buildup. Moreover, given that exceptionally high rates of black victimization have been the norm rather than the exception throughout US history, it seems highly unlikely that rising levels of black victimization in the 1960s were the fundamental cause of mass incarceration.

In addition to explaining US penal exceptionalism and the fact that mass incarceration is historically unprecedented, accounts of the origins of mass incarceration should provide a plausible account of the specific changes in policy and practice that account for rising incarceration rates across the states since the 1980s. As noted previously, studies suggest that an increase in the share of arrests that resulted in a prison sentence and changes in sentencing law and policy (which increased time served, especially for violent crimes) in the 1980s, 1990s, and 2000s were the proximate causes of mass incarceration; the increase in drug arrests in the 1980s and 1990s also played a role. Accounts that emphasize the role of liberals, and especially officials in the Kennedy and Johnson administrations of the 1960s, show that the tactics used by liberals during that time may have modestly expanded carceral state capacity, mainly at the federal level. However, in our view, they do not explain the specific changes in practice and policy at the state and local levels that are the proximate causes of mass incarceration.

We have argued that US mass incarceration cannot be explained without reference to the unique role of race in American politics and the ways in which racial dynamics have been shaped by the nature of the American political system. In the context of the profound partisan realignment triggered by the Democratic Party's (belated and conflicted) support for the civil rights cause, and the existence of the winner-take-all, two-party system, the GOP developed a new electoral strategy that involved reliance on tough and highly racialized rhetoric regarding crime and punishment. This strategy was aimed specifically at winning over formerly Democratic, socially conservative white voters. Over the past four decades, the two parties have competed to secure the loyalty of these voters, although it is fair to say that the GOP has relied more heavily on the racialized rhetoric and images that, as research shows, these voters favor. Although the unique historical events associated with Watergate temporarily interrupted the GOP's reliance on crime-related issues, the revival of the southern strategy by the Reagan administration and thereafter fundamentally transformed the national conversation about crime and punishment, heightened racial tensions and punitive preferences, and triggered bipartisan competition to be toughest on crime. As Campbell & Schoenfeld show, this national political development also set into motion several political, ideological, institutional, and fiscal dynamics at the state and local levels that found expression in the policies and practices that fueled mass incarceration.

In recent years, the politics surrounding the crime issue have changed in many important ways. First, some conservatives have embraced the criminal justice reform cause, and the Republican Party is split over the issue. Democrats, too, are increasingly critical of mass incarceration, and many are scrambling to obscure their prior support for tough criminal sentencing policies. At the same time, the Trump administration's heavy-handed reliance on racialized calls for punitive approaches to immigration and the alleged threat that it poses to public safety taps into long-standing racial stereotypes and resentment as well as economic anxieties among key constituencies. Further complicating matters, the electoral landscape has arguably changed in ways that incentivize Democrats, but not Republicans, to seek to appeal to independent and swing voters. The implications of these complex and ever-changing dynamics for the future of mass incarceration are unclear. What is clear is that efforts to address the political dynamics that sustain punitive policies must be informed by recognition of the political utility of the crime issue in a two-party, winner-take-all system and its centrality to contemporary racial politics.



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Vernellia R. Randall
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Professor Emerita of Law
The University of Dayton School of Law

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