The Future of Mass Incarceration: Punishment in the Proposed Era of Decarceration

by Chez Rumpf, PhD Candidate in Sociology, Loyola University Chicago

Two weeks ago in a speech to the American Bar Association, Attorney General Eric Holder openly critiqued the United States’ “War on Drugs,” admitting it has been a failure and that its unintended consequences have severely harmed individuals, families, and entire communities. Specifically, Holder took issue with mandatory minimum sentencing policies that have contributed greatly to the build-up of the United States’ prison nation. He went so far as to instruct federal prosecutors throughout the United States to no longer pursue mandatory minimum sentences for low-level, nonviolent federal drug charges.

An End to the “War on Drugs” and Mass Incarceration?

Holder’s comments carry a great deal of symbolic importance. It is undeniably noteworthy for the country’s Attorney General to openly challenge and call for a reversal of U.S. crime policies and to acknowledge publicly that mass incarceration is a grave social injustice, in part because of the severe racial disparities that permeate the criminal legal system. It remains to be seen, however, whether the symbolic importance of Holder’s speech will translate to changes in policy and practice. As Kara Dansky recently noted on the ACLU’s blog, federal prosecutors may resist Holder’s instructions based on their own racist beliefs and adherence to “tough on crime” ideology.

Even if federal prosecutors follow Holder’s instructions, changes in federal sentencing policies for drug charges will have a limited, though important, impact on the overall problem of mass incarceration. For one, the vast majority of incarcerated people in the United States are held in state, not federal, prisons. While Holder’s comments may signify real changes for the 216,362 people who make up the federal prison population, his comments simply do not apply to the 1,382,421 people who were serving time in state prisons at year-end 2011 (BJS 2013).

Additionally, only 16.8% of incarcerated people in state prisons (in contrast to 48% of the federal prison population) were serving time for drug-related offenses at year-end 2011, according to the Bureau of Justice Statistics. Thus, even if Holder’s proposed reforms were extended to the state level, they would not impact the vast majority of people serving time in state prisons and would do little to advance decarceration overall. As Dylan Matthews recently argued:

“Holder is taking a fairly plausible approach to reducing the U.S. incarceration rate at the level where he can effect it. But that’s not the level that matters most, and if we were to get serious about reducing the state-level incarceration and admissions rates, we need to talk not just about reducing sentences for drug crimes but also about reducing prison admissions for drug offenses, and perhaps also lowering sentences for property crime and even violent offenses, particularly robbery.”

Mass Incarceration through Other Means

To be clear, I think it is important to acknowledge the positive shift Holder’s comments signify. But given the historical evolution and expansion of the criminal legal system, I cannot trust that tweaking one very specific area of the system will change its overall violent nature, specifically the way it criminalizes poverty and operates as a system of racialized social control. Furthermore, I am hesitant to get too hopeful about or wrapped up in the possibilities that reversing the “War on Drugs” may bring, since such a narrow focus obscures the complex ways the criminal legal system likely will continue to target disadvantaged communities.

My current research with formerly incarcerated women makes me concerned that even if the state makes the positive shift to stop locking people up for drugs, it will just find other things for which to imprison people. To explain, all of the women with whom I’ve worked as part of my dissertation research have been incarcerated for behaviors related to their substance abuse. Their official charges, however, are not always drug charges. While many women’s records include drug-related charges such as possession, manufacturing, and distribution, they also include charges such as prostitution, possession of a firearm, child endangerment, and assault. In all of these non-drug cases, their “crimes” were deeply tied to their substance abuse. The non-drug charges mask deep-rooted struggles with substance abuse, efforts to stop using, and relapse. And just like the official drug charges, they mask experiences of poverty and trauma and work to criminalize the survival strategies of certain women, specifically poor women, women of color, and women living in disadvantaged communities that routinely are targeted by law enforcement.

The important lesson here is that a decrease in drug-related charges will not ensure a decrease in incarceration. Rather, the criminal legal system easily can continue to criminalize drugs and even carry out a “war on drugs” without arresting and locking people up for drug crimes per se. All of us who care about social justice must pay attention to what new form the “War on Drugs” takes.

Investing in Alternatives to Mass Incarceration

But let’s imagine that the United States does enter an era of decarceration. Let’s imagine that at the state and federal levels, the criminal legal system moves away from imprisoning people not only for drug-related charges but for a whole host of “crimes.” Let’s imagine that the U.S. government turns to community corrections and alternatives to incarceration. Such shifts raise a crucial question: Are local, state, and federal governments willing to invest in these programs?

Presently, there is little political will to adequately fund re-entry programs, as recovery homes and non-residential re-entry services throughout Chicago are terribly under-resourced. Although the Illinois Department of Corrections (IDOC) provides limited funding to recovery homes for housing people who are on parole, recovery homes struggle to keep their doors open. The women with whom I’ve worked for my dissertation research explain that many homes require residents to turn their LINK cards (food stamps) over to the recovery home staff, who in turn purchase food for the house. Women also discussed how after their individual IDOC funding runs out, some recovery homes require them to pay rent in order to continue to reside there. Some women described uninhabitable living conditions, such as rodents and standing water. These same women also expressed deep gratitude for the assistance they have received from these programs. All in all, many recovery homes are doing the best they can with the limited funds they have to assist women in their transitions out of prison. But in many cases, this assistance is not enough, and women become desperate to move out, often into precarious living situations with partners, friends, or family or into unstable arrangements where they rent a room in buildings where drug use and prostitution is common.

If the re-entry field in Chicago is any indication of the state’s willingness to invest in supportive programs for people who are in trouble with the law, the likelihood that the state will provide adequate financial support for community corrections and alternatives to incarceration is not promising. As Political Scientist Marie Gottschalk recently warned during her talk at the American Sociological Association’s Annual Meeting, folks who advocate for “justice reinvestment” must pay attention to whether the money saved through decarceration in fact goes back into communities. There is no guarantee that these proposed savings translate to resources for the very communities that law enforcement targets. Thus, in addition to advocating for decarceration, prison reformists and abolitionists must also demand actual investment in alternatives. The rhetoric of decarceration must not obscure the harsh realities that people in trouble with the law regularly encounter.

Punishment without Mass Incarceration

Perhaps most importantly, prison reformists and abolitionists must also focus on the underlying logics of mass incarceration. Scholars have well documented the punitive turn the criminal legal system has taken since the mid-1970s, as jails and prisons have abandoned rehabilitation in favor of punishment. But punishment does not end at the jail or prison gate. Rather, it follows the nearly five million people who are on probation or parole into the communities to where they return upon leaving jail and prison. As many research participants have shared with me, probation and parole are just “set-ups.” In other words, it is just a matter of time before people living under the correctional supervision of the state slip up and find themselves re-incarcerated.

Most of the women I have interviewed are living highly regulated lives and discussed routine instances of intrusive surveillance, such as random drug testing through urinalysis at recovery homes, treatment programs, and parole and probation offices. Whereas substance abuse specialists routinely note that relapse is a common part of the recovery process, women who are on parole and probation face severe consequences when they do relapse, such as loss of their housing and re-incarceration. In this way, the criminal legal system effectively criminalizes recovery for women living on the margins of society, as formerly incarcerated women do not have the luxury to relapse. That luxury is reserved for more privileged groups for whom criminalization, punishment, substance abuse, and recovery are not intricately intertwined.

Truly investing in community corrections programs that connect people to supportive services, employment, and housing likely will spare people the trauma of incarceration and aid with the seemingly insurmountable task of reintegration to society. But it is important to understand whether and how such programs prolong the threat of punishment in people’s lives. While I support diverting funding from prisons to alternatives to incarceration, I do not complacently and naively assume that these alternatives will restructure the underlying power relations and oppressive practices of our criminal legal system. As Project NIA founder and director Mariame Kaba advised during the August 15^th event Transformative Justice and the Trayvon Martin Case: A Consideration, “For any reform, ask, ‘Is it shortening or extending the reach of the state?’”

In the worst-case scenario, alternatives to incarceration may actually strengthen the carceral state by further extending its reach into communities. And let’s be clear that certain communities will feel the state’s extended reach. Sociologist Reuben Miller’s research shows that Chicago’s re-entry programs are heavily concentrated in the same south and west side communities to where the majority of incarcerated people in Illinois return upon release. The move from mass incarceration through prisons to mass incarceration through community corrections likely will deepen the roots of the carceral state in these same racially segregated communities that experience high rates of poverty and surveillance.

The Need for Transformation

To truly revamp the criminal legal system and begin to address in any meaningful way the severe harm that the “War on Drugs” and mass incarceration have ravaged across disadvantaged communities, the United States needs to abandon its collective commitment to and fixation with punishment. As long as punishment is the underlying driving force of the criminal legal system, the state will continue to perpetuate inequality and harm. As Lynne Haney (2013:127) concludes in her recent article in Signs about mothering in an alternative-to-incarceration program in California, “the pull to punitiveness will continue to undermine the promise to provide real alternatives to incarceration.”

What follows, then, is that prison reformists and abolitionists must work for transformation of the very logic of the criminal legal system, rather than transforming specific components. More broadly, we must work for societal transformation in which notions of justice are not tied to punishment. This is the type of work that Angela Davis refers to when discussing how to envision a world without prisons. As Davis explains in Are Prisons Obsolete? (2003) and The Meaning of Freedom (2012), abolition is not only about tearing down prisons; it also is about building up resources.

Talk of ending the “War on Drugs” and ushering in an era of decarceration is enticing. Such talk must not distract prison reformists, prison abolitionists, and social justice activists in general from the larger project of “pulling apart the conceptual link between crime and punishment” (Davis 2003:112) and building true alternatives not only to incarceration but also to punishment.

Note: I am grateful to my friend Chez for writing and publishing this post at Prison Culture. She has previously published two other excellent posts here: one was about the Casey Anthony trial and the other was about disrupting the relationship between the PIC and the anti-violence field. You should read both pieces. They are excellent.