Downsizing Prisons

How to Reduce Crime and End Mass Incarceration

Michael Jacobson

• Publisher: NYU Press
• Year: 2005
• Print ISBN: 9780814742914
• eBook ISBN: 9780814743249
• Topic: Social Sciences
• Subtopic: Social Policy
• Index: Social Sciences

A convincing argument that mass incarceration neither reduces crime nor ensures safety Over two million people are incarcerated in America's prisons and jails, eight times as many since 1975. Mandatory minimum sentencing, parole agencies intent on sending people back to prison, three-strike laws, for-profit prisons, and other changes in the legal system have contributed to this spectacular rise of the general prison population.After overseeing the largest city jail system in the country, Michael Jacobson knows first-hand the inner workings of the corrections system. In Downsizing Prisons, he convincingly argues that mass incarceration will not, as many have claimed, reduce crime nor create more public safety. Simply put, throwing away the key is not the answer.

1
Mass Incarceration

IN 1993, DURING a slumber party, 12-year-old Polly Klaas was abducted from her home in Petaluma, California, and killed by a sex offender on parole named Richard Davis. The viciousness of the crime, the purity and innocence of the victim, and the psychotic unremorseful persona of Davis—who claimed at his sentencing hearing that Polly said before he killed her “just don’t do me like my dad”¹—all combined to fuel a supercharged political environment that propelled Californians in 1994 to vote overwhelmingly for the now-famous “three strikes” law, requiring life in prison after a third felony conviction.

In 1994, 7-year-old Megan Kanka was lured into her neighbor’s house by a twice-convicted child molester who said he wanted to show her a puppy. He then sexually molested and murdered her. Less than two years later, President Bill Clinton signed into law the federal Megan’s Law, requiring that communities be notified when sex offenders were returning to their neighborhoods. By 2002, every state had some version of a sex-offender notification law.

In 1997, Jenna Grieshaber, a nursing student in Albany, New York, was murdered by a parolee previously convicted of a violent crime. One year later, Governor George Pataki signed Jenna’s Law into effect. This law ended discretionary release on parole—namely, the ability of a parole board to grant a prisoner early release—for all those convicted of a violent felony in New York.

That high-profile events affect and help shape public policy is not particularly new or surprising. Yet the frequency with which such events serve as a catalyst to influence criminal justice policy differentiates this realm from other policy arenas. Many writers have commented on a dialectical relationship between high-profile events and criminal justice policy. A number of sociologists and criminologists, including David Garland, Katherine Beckett, Michael Tonry, Edwin Sutherland, and Stanley Cohen, have noted the powerful impact and political use of such events in shaping public opinion and policy.² While the events themselves cannot entirely explain wholesale shifts of direction in policy in the absence of larger political and social trends, their impact has nonetheless been significant. Simply naming laws after victims cements the relationship between law and heinous high-profile crimes. In an era when conservative and retributive positions on crime dominate policy and public discourse, the “value” of such high-profile cases is high, for law makers and politicians.

For what better way to bring home the need for more and longer prison sentences than a real-life horrible and tragic crime such as the murder of Polly Klaas? Such cases become metaphors for all that is wrong in society, and the powerful emotional responses they elicit can be used as leverage to further toughen up the criminal justice system. In fact, high-profile events serve multiple political purposes that combine to increase the harshness of contemporary punitive policies. As Beckett notes, “Emphasizing the pathology of criminals and the utility of punishment, for example, obscures the role of social inequality in the generation of crime. Political outcomes such as three strikes legislation are thus best understood as a product of symbolic struggles in which actors disseminate favored ways of framing social problems and compete to have these versions of reality accepted as truth.”³

Many significant changes in criminal justice policy over the last 10 to 15 years have followed one or a series of high-profile crimes. It requires only a few horrible crimes to be committed by individuals on probation for all 700,000 parolees and the 4 million probationers in the United States to be affected.⁴ By 2000, 16 states had completely eliminated discretionary release on parole, and an additional 4 states had abolished discretionary parole for selected crimes.⁵ Twenty-four states now have some kind of three strikes legislation.⁶ Hence it is not surprising that many of these states have named their newly altered laws after the victims of high-profile crimes.

As previously noted, high-profile crimes do not happen in a vacuum but in a social environment that is already laced with both contempt for and fear of those who are living in poverty, which can all too easily translate into excessive and overly harsh responses to crime. Analyzing the sociological phenomena that lead to a social climate of vindictiveness, criminologist Jock Young writes:

Relative deprivation downwards, a feeling that those who work little or not at all are getting an easy ride on your back and your taxes, is a widespread sentiment. Thus whereas the “contented” middle classes may well feel sympathy towards the underclass and their “relative satisfaction” with their position translates into feelings of charity, those of the much larger constituency of discontent are more likely to demand welfare to work programmes, stamp down on dole “cheats,” etc. Such a response, whatever its rationality, is not in itself punitive: it is at most authoritarian but it is not necessarily vindictive. But tied to such a quasi-rational response to a violation of meritocratic principles is frequently a much more compelling subtext which seeks not only to redress a perceived reluctance to work but to go beyond this to punish, demean and humiliate.

The key features of such resentment are disproportionality, scapegoating, and stereotyping. That is the group selected is seen to contribute to the problems of society quite disproportionally to their actual impact (e.g. teenage mothers, beggars, immigrants, drug users) and they are scapegoated and depicted as key players in the creation of social problems. Their portrayal is presented in an extraordinarily stereotypical fashion which bears little relationship to reality.⁷

Thus, a social climate already exists in the United States that is filled with resentment toward the poor, made worse by the stresses and massive economic insecurity felt by the millions worried about hanging on to their jobs in an era of fiscal retrenchment.

Moreover, as philosopher Nils Christie notes, highly stratified societies seem to find it easier to inflict pain and punishment on groups who are less fortunate.⁸ Perhaps, then, it is not surprising that crime is more susceptible than other areas of government to the influence of high profile incidents. In an already emotionally charged punitive social and political environment, the commission of a high-profile crime, especially one of violence, becomes a catalyst for a series of complex emotional and political responses that can have an almost immediate effect on public policy.

In varying degrees, most people are already frightened by the specter of violent crime. Almost everyone knows someone who has been a crime victim. Most people have strong opinions about crime and what to do about it. No expertise is needed to feel strongly about capital punishment or rehabilitation versus retribution. No specialized knowledge is required to think “this could have been me or my child,” or to become frightened and angry on hearing the awful stories of the crimes committed against Polly Klaas or Megan Kanka. On a visceral level, it seems natural to want to extract revenge against someone like Richard Davis, who could so brutally take the life of a small child. Moreover, expressing anger about crime may feel socially acceptable in an environment already oriented toward retribution and punishment.

Such visceral reactions on the part of the public and law makers alike set criminal justice policy apart from other areas of public policy. For instance, in the medical arena, a hospital may make a tragic mistake during a routine operation on a patient’s appendix, or a doctor may operate on the wrong side of a patient’s brain. In response, investigations by oversight health agencies, lawsuits, and remedial actions are likely to ensue, yet it is hardly likely that the medical procedures themselves will be changed or abolished.

Similarly, it is not unusual for some high school graduates to leave school without knowing how to read or write at or above grade levels. While this may outrage parents and educators, hardly will anyone call for abolishing, say, the twelfth grade in the same way that many will call for the abolition of parole after one or several tragic high-profile crimes. More conceivable is that high school will continue while educators and parents struggle with how to improve our system of public education. Other counterexamples come to mind: a bridge may collapse due to poor maintenance or design; a water sewage system may fail; a NASA spaceship may explode; the military may accidentally drop bombs on civilian targets. Yet all these governmental operations will continue with, perhaps, some modifications implemented as a result of expert analyses. Horrible as each of these social problems may be, especially to those immediately affected, none is likely to result in the kind of spontaneous public and political reaction and basic change in service delivery that have followed incidents of brutal crimes committed by parolees.

On its face, these examples might seem comparable more to errors of technology (a spaceship exploding, a bridge collapsing, and even teaching a child to read) than to value-laden judgments about crime (should a criminal go free or remain incarcerated for as long as possible?). But the analogy may be closer than at first glance appears. For most criminologists know and agree about the risks that different types of people pose to society once they leave prison. Experts in this area concur that the overwhelming majority of people stop committing violent crimes once they pass through their thirties and have significant relationships and children. It is well known that staying drug free and being employed greatly reduce the risk of future criminal activity, and that appropriately targeted rehabilitation programs reduce crime and recidivism.

Yet, the other unique characteristic of policy making in the area of corrections and punishment is that the role of academic experts and researchers has declined over the last 30 years, largely replaced by the growing influence of legislators and politicians.⁹ Again going back to the examples of education, health, transportation, environmental protection, space administration, and the military, the majority of substantive decisions in these areas tend to be made by experts in a respective field; important decisions are usually based on, or at least informed by, research. This is not to say that legislators play no role outside the criminal justice arena; obviously, they do. But to the extent that legislators get involved in the details of, say, bridge construction, they may debate the utility of having a bridge in a particular location, or the overall budget for the bridge, or whether the bridge should be tolled. But I know of no case where a state legislature has decided to legislate the engineering and placement of structural supports for the bridge itself.

Moreover, while the issue of health care delivery and managed care has been a hotly debated political issue in the United States for the last decade, the actual delivery of the basic medical service is usually, though not always, left to doctors. The ongoing political debate about ending the practice of partial-birth abortions is an example in a medical context of the type of debate that happens in criminal justice all the time. Nevertheless, in these areas, both the public and politicians recognize that experts in the field, knowledgeable about the findings of well-regarded research, are crucial in determining how basic services are designed and delivered.

In the field of corrections policy, a different situation has prevailed. As David Garland writes in his excellent analysis of the impact the dramatic reconfiguration of the U.S. penal system has had on practitioners and researchers through the last few decades:

Hierarchies shifted precariously; settled routines were pulled apart; objectives and priorities were reformulated; standard working practices were altered; and professional expertise was subjected to challenge and viewed with increasing skepticism. The rapid emergence of new ways of thinking and acting on crime, and the concomitant discrediting of older assumptions and professional orientations, ensured that many penal practitioners and academics lived through the 1980’s and 1990’s with a chronic sense of crisis and professional anomie.¹⁰

In fact, over the last 30 years, the role of corrections experts and administrators has largely been supplanted by the increasing power of governors and state legislators. In the early 1970s, corrections experts both in and outside government continued to emphasize two major goals: they were concerned about rehabilitation and about stabilizing the size of the U.S. prison system. Indeed, Garland quotes a 1973 National Advisory Commission report that recommended “no new institutions for adults should be built and existing institutions for juveniles should be closed” and concluded that “the prison, the reformatory and the jail have achieved only a shocking level of failure.”¹¹ Indeed, if one examines the policy positions of the American Correctional Association (ACA), the official association for prisons and jails in the United States, these have regularly included the following: support for community corrections and intermediate sanctions, support of rehabilitative and prevention services, early release and community supervision of non-violent offenders, and effective drug treatment programs.¹²

Yet these recommendations, ensuing from research sponsored by the government and from a correctional group that can scarcely be labeled liberal, did not become the basis of American prison policy in subsequent years. Instead, since the early 1970s, the U.S. prison population has increased eightfold, a policy completely antithetical to the Commission’s recommendations. Thus the direction advocated by legislators and politicians—increasing rather than decreasing the use of prisons—has taken precedence over the advice of criminal justice experts. Quoting Garland again: “Rereading the government documents, research reports and expert commentaries of that period [1970], one finds a set of assumptions and expectations that have been completely confounded by subsequent events.”¹³

In some cases, law makers have used the writings of academic “experts” to justify policy shifts toward greater retribution and increased reliance on prisons. One such article, Robert Martinson’s now-famous “What Works? Questions and Answers about Prison Reform,” was written and broadly disseminated in 1974. Martinson took issue with the emphasis on rehabilitation that reigned in the sixties and seventies, surmising, “With few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism.”¹⁴ His findings, which have been abbreviated “Nothing Works,” became well known in policy circles, despite the fact that within a few years Martinson had greatly modified his earlier findings to argue that many well-structured and targeted recidivism programs were successful.¹⁵ These later findings were completely ignored by the same law makers who eagerly cited his initial article.

A more contemporary example of this striking divergence between research and penal policy is correctional education. In 1994, as part of a much larger crime bill proposed by then-President Bill Clinton (discussed in further detail in Chapter 2), Congress eliminated the Pell Grant funding that reimbursed college courses for prisoners; soon thereafter, a number of states followed suit, eliminating college courses from the programs they made available for prisoners. By 1995 only 8 of the 350 college programs in prison nationwide remained in existence.¹⁶

Compare this popular trend of eliminating college programs for prisoners with the findings of research about the value to prisoners of a college education and/or other professional training. Research indicates that college education reduces recidivism rates;¹⁷ this research is especially well known to practitioners.¹⁸ Specifically in this vein, a recent survey report on prison programming by the Urban Institute concluded: “In general, participants in prison-based educational, vocational and work release programs are more successful—that is they commit fewer crimes and are employed more often and for longer periods of time after release than are non-participants.”¹⁹ Another study done by the New York State Department of Corrections for the Graduate Center of the City University of New York found “Women...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Preface
• Introduction: Bloated Prisons
• 1 Mass Incarceration
• 2 Unintended Consequences
• 3 A New Reality for Prison Systems
• 4 Why Prison Growth Does Not Substantially Reduce Crime
• 5 Why Parole and Probation Policies Need to Change
• 6 Success Stories and Works in Progress
• 7 Downsizing Prisons
• Notes
• Bibliography
• Index
• About the Author