Reframing the story of mass incarceration, Heather Schoenfeld illustrates how the unfinished task of full equality for African Americans led to a series of policy choices that expanded the government’s power to punish, even as they were designed to protect individuals from arbitrary state violence. Examining civil rights protests, prison condition lawsuits, sentencing reforms, the War on Drugs, and the rise of conservative Tea Party politics, Schoenfeld explains why politicians veered from skepticism of prisons to an embrace of incarceration as the appropriate response to crime. To reduce the number of people behind bars, Schoenfeld argues that we must transform the political incentives for imprisonment and develop a new ideological basis for punishment.
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A New Perspective on the Carceral State
Gradually, during the last decade, punishments for fractious criminals on the former chain gangs have been made less objectionable. First, the lash was abandoned. Then the solitary confinement cell, "the sweat box," the stocks ... And last of all shackles ... The only punishment now invoked is confinement in a regular cell with a restricted diet. — "No More Shackles for Convicts," Atlanta Constitution, July 17, 1938, C4.
In 2002, the Florida Department of Corrections built fifteen "dog cages" at Union Correctional Institution — the state's original prison. The cages are box-shaped, approximately ten square feet, with reinforced wire walls through which flow fresh air, sun, and other natural elements. The space between the wires is not big enough to put a hand or arm through. This is important because the dog cages are not used by dogs; they are used by prisoners segregated in "close management" for their two hours of recreation time per week — one prisoner per cage. Close management units — found in five of Florida's seventy-two prisons — are Florida's version of the "supermax" prison. It is a prison within the prison, aimed at controlling the behavior of prisoners who don't follow prison rules or are deemed too violent for the general population. According to expert testimony in a 2003 legal challenge of close management practices in Florida, "except for the few hours a week during which they are taken to their exercise cages," prisoners in close management have "no meaningful out-of-cell activity," are "subjected to unreasonable property limits," and "denied opportunities to engage in the bare minimum ... programming that would be necessary for them to remain cognitively alert and intellectually functional." Because long-term confinement in solitary conditions can severely debilitate prisoners, many professionals, activists, and academics believe these practices amount to "legalized torture." Yet, between 1970 and 2015, state and federal corrections departments increasingly turned to close management, administrative segregation, secure housing units, and supermax facilities — where prisoners "spend 22 to 24 hours a day locked in small, sometimes windowless, cells" — in order to maintain control of large and potentially violent prison populations.
While close management and supermax prisons are contemporary phenomena, the problem of finding appropriate punishment within prisons is not new. In the early twentieth century, Florida prison captains put recalcitrant prisoners in outdoor six- by three-foot wooden "sweat boxes" for days at a time, with little food or water — a practice dramatized by Paul Newman as a Florida road camp prisoner in the classic movie Cool Hand Luke. Although consistent with early twentieth-century public acceptance of corporal punishment, the sweat box became "objectionable" by the late 1930s. As prison administrators reorganized the state's punishing power over the twentieth century into a modern bureaucratic prison system, solitary confinement cells gradually replaced sweat boxes, and close management replaced traditional solitary confinement. At each turn, the choices made by prison administrators fit with prevailing political, social, and penal logics. Yet vestiges of past policies remained in each new innovation. Restrictive dehumanizing confinement persists.
The historical continuity between sweat boxes and dog cages demonstrates one of the central claims I make in this book — that when it comes to new public policy or institutional innovation, there is "no such thing as a clean historical slate." To understand how we got to where we are today, we need to understand past policy choices and practices. Accordingly, I demonstrate that what appears to be a dramatic break between punishment philosophy and practice pre-1970 and post-1970, when incarceration rates began to rise, is actually a developmental process of change. Our present systems of punishment and their relationship to society, politics, and the economy are predicated on past politics, past policy choices, and past institutional structures.
Underlying the similarity between sweat boxes and close management is one crucial difference that upends the comparison. Unlike the sweat boxes and chain gangs of the early twentieth century, penal practices in the contemporary era are highly regulated and bureaucratized. Instead of banning penal confinement that rejects human dignity, we have created rules and procedures to protect individuals from "arbitrary" state violence. The courts have upheld the use of solitary confinement when prison administrators can show they have taken steps "intended to minimize the potentially harmful effects," including screening prisoners for mental health problems, adequately training staff on mental health, and providing a "full range" of mental health services and other limited programming for prisoners. Human Rights Watch (HRW) testimony to Congress in 2012 exemplifies the emphasis on "proceduralism":
International treaty bodies and human rights experts ... have concluded that depending on the specific conditions, the duration, and the prisoners on whom it is imposed, solitary confinement may amount to cruel, inhuman, or degrading treatment that violates human rights. (emphasis added)
HRW's critique is not presented in terms of the humanity of prisoners per se, but on the specific technicalities that make supermax confinement violate legal norms. The second claim I make in this book, therefore, builds on the work of scholars who analyze the proceduralist bent of criminal justice policy. I argue that the relatively new regulation and bureaucratization of penal practices by corrections officials, legislators and the courts is part and parcel of the increase in the state's capacity to punish. As lawyers and the courts enforced protections for criminal suspects, defendants, and prisoners, legislators passed laws and budgets that drew more people into the criminal justice system. Ironically then, while the federal courts have deemed close management and other practices constitutional (where they probably would not sweat boxes), close management impacts far more people in 2016 than sweat boxes did 100 years prior.
Measured by number of people incarcerated in jails and state and federal prisons per 100,000 general population, the incarceration rate soared from approximately 161 in 1972 to 760 in 2008 at the height of imprisonment. This amounts to 1 in 100 adults or over 2,000,000 people confined in a U.S. jail or prison. While incarceration rates decreased slightly between 2008 and 2016 — as of 2014, the rate was 690 per 100,000 — the United States still incarcerates more people per capita than any other industrialized nation, including Cuba (510 per 100,000), Russia (475), South Africa (294), and Brazil (274). Given vast racial disparities in incarceration, in the post–civil rights era time spent in prison or jail has become a new marker of marginality and a new means of constituting racial and class divisions in the United States.
In the course of the incarceration boom, the media, think tanks and academics have often noted the above statistics, but have given less attention to the growth of the state institutions that enable mass incarceration. Political scientists use the idea of "state capacity" to help explain the differences in the development of social and economic policy and institutions across industrialized nations. The notion reflects the degree and character of state authority, administrative control, bureaucratic effectiveness, and financial resources. In order for more than 5.3 million people to funnel through our correctional systems each year, the state needs certain capacity in place: enough police officers, courts, data management systems, criminal laws, and prison cells, to give just a few examples.
I reframe the story of mass incarceration as a story of the dramatic increase in the state capacity to punish, what I refer to as carceral capacity. This reframing points to the importance of state actors' creation of new bureaucratic structures, new frontline and administrative positions, new staff training, and new protocols across the institutions of the criminal justice system — law enforcement, courts, and "corrections" (probation, prison, parole, and related sanctions). Some of these changes required legislative action, others bureaucratic initiative, but almost all required the commitment of taxpayers' dollars. Total spending on corrections by the federal and state governments quadrupled between 1980 and 2007 from $17.3 billion to $74.1 billion (in 2007 adjusted dollars). In 2011, states spent one out of every fourteen general-fund dollars on corrections. In some states with especially large prison populations, like California, spending on corrections comprises a larger share of the state budget than spending on higher education.
The reframing of mass incarceration in terms of capacity also points to the importance of physical space. In the past forty years, states and the federal government built over 1,500 new prisons. Each prison not only required concrete and steel, but hundreds of new state employees and systems in place to provide food, health care, and programming. Again, big states like California employ up toward 50,000 people in their corrections departments. As former Florida Department of Corrections secretary Harry Singletary explained to me, by the mid-1990s "corrections" had become a complicated business: "You have to change the way you look at corrections, because you are running a large food service operation. Three meals a day, 365 days, 90,000 prisoners, over 60 prisons. And you have to run it efficiently, effectively." Since the 1970s, the federal courts have prohibited states from providing inadequate food service, from cramming growing numbers of prisoners into old prisons, and, maybe most importantly, from delivering substandard health care. As a result, state policymakers had to choose how to comply with constitutional standards. In the case of overcrowding challenges, they faced a clear choice: reduce the prison population or build more prisons. This leads to my third claim: Mass incarceration was not inevitable. We had to build prisons to make it happen. In the case of Florida, policymakers built 130 prisons between 1970 and 2010 (fig 1.1).
A Political Developmental Perspective on the Carceral State
This book answers how the United States became a nation of prisons and prisoners. Or, put differently, how we came to devalue some lives to the point that we are willing to lock people behind bars and refer to them as "dogs." It demonstrates how partisan competition and racial conflict led to a series of political decisions to expand the state's capacity to punish, which created a governing ideology that elevated prisons and long prison sentences as the appropriate response to crime. The emergence of mass incarceration, however, is only the most visible part of what scholars are now calling the carceral state. The carceral state refers to the network of people and institutions responsible for "mass social control," including the police, courts, jails/prisons, probation, and parole, but also other technologies such as legal financial obligations (fines, fees, and restitution orders) and other types of community sanctions (for criminal and sometimes noncriminal behavior). The carceral state, with its "reliance on mass incarceration and degrading punishment" ensnares more than 8 million people, or one in twenty-three adults, who are under some form of state control. As political scientists Amy Lerman and Vesla Weaver write, the notion of the carceral state marks criminal justice as an "integral part of state activity ... much like the term welfare state refers not only to cash aid, but to a system of social provision that is politically constructed through policies, social movements and institutions."
By conceiving of punishment for criminal wrongdoing under a broader tent of social control, scholarship on the carceral state invokes some of the first sociologists of punishment, including Georg Rusche and Otto Kirchheimer, for whom "punishment is neither a simple consequence of crime, nor the reverse side of crime, ... [but] must be understood as a social phenomenon freed from both its juristic concept and its social ends." The sociological understanding of punishment frees us to look for the foundations of punishment in broad social structures. Structural explanations for the development of mass incarceration in the United States emphasize the role of fundamental socioeconomic changes in the late twentieth century, including deindustrialization, generalized economic insecurity, and the marginalization of African Americans in the labor market. While the exploration of broad socioeconomic changes is useful, it can occasionally take us too far afield from a fundamental truth about punishment in modern societies — that decisions to criminalize behavior and decisions about how to punish criminal behavior are made by our political representatives, bureaucrats, judges, and law enforcement. These are the people that make up "the state." Punishment and its designated role in crime control involve their choices about how to distribute social risk, public resources, and political power.
Political explanations for mass incarceration often hinge on shifts in American politics — often at the national level — such as the collapse of the New Deal coalition, the dismantling of Jim Crow, the post–civil rights era partisan realignment, and the rise of neoliberal politics. In one of the first books on the rise of mass incarceration, sociologist Katherine Beckett, for example, argues that national politicians' crime control rhetoric was part of conservatives' larger agenda to elevate social control over social welfare as a public priority. By framing "street crime" as a problem of "lack of control," conservatives reconstructed public conceptions of the poor in support of their agenda. The vast majority of imprisonment, however, happens at the state level; thus, to really understand how these broad social, economic, and political changes produced the carceral state, we need to examine the choices of state actors and their impact on policy.
Building on state-level accounts of mass incarceration in Arizona, Texas, and California, this book takes the development of Florida's carceral state as its object of study. As advocated by sociologist and legal scholar David Garland in his groundbreaking book, The Culture of Control, my analysis is grounded in a theory of historical change that is action-centered and problem-solving, "in which socially situated actors reproduce (or else transform) the structures that enable and constrain their actions." I use a historical case study research design that traces Florida state actors' policy decisions that expanded carceral capacity — in particular its capacity to imprison criminal offenders (see appendix for details). Not simply a historical narrative, this book attempts to uncover the complex reasons for people's decisions to expand carceral capacity. In order to understand eventual policy choices, I take my cue from historical institutionalist and American state development scholarship, which demonstrates how the preferences of state actors are shaped by various factors such as the political landscape, administrative capacity, and cultural discourses, rather than simple cost-benefit analyses. Specifically, I look to how people define the policy problem, what their incentives are, and the potential solutions on the table by tracing changes to (1) shared meanings and "rationalized myths about the situation"; (2) political struggle and interest group activity; and (3) state capacities.
Excerpted from "Building the Prison State"
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Table of ContentsList of Figures and Tables
Chapter 1. A New Perspective on the Carceral State
Chapter 2. Penal Modernization in the Civil Rights Era, 1954–1970
Chapter 3. Prison Overcrowding and the Legal Challenge to Florida’s Prison System, 1970–1980
Chapter 4. The Unintended Consequences of Prison Litigation, 1980–1991
Chapter 5. The Politics of Early Release, 1991–1995
Chapter 6. Republicans, Prosecutors, and the Carceral Ethos, 1995–2008
Chapter 7. Recession-Era Colorblind Politics and the Challenge of Decarceration, 2008–2016
Chapter 8. Toward a New Ethos