Prison Reform, Decarceration, or Smoke and Mirrors?
by Kay Whitlock and nancy a heitzeg

We are bombarded daily with a blizzard of often competing numbers and stories regarding the state of criminal injustice. Are prison populations declining? Have we really “decreased incarceration” and expanded “diversion”? Have racial disparities in criminal justice decreased? Are they no longer relevant? Have police practices reduced incarceration rates? Are “community” correctional alternatives working? Have we entered a new era of “prison reform”?

Is the push for “reform” attributable to progressive people power? Or is it due to the emergence, several years ago, of Right on Crime the self-described “one-stop source for conservative ideas on criminal justice” – a project of the Texas Public Policy Foundation ? (The TPPF is a research institute in Austin, TX “committed to limited government, free markets, private property rights, individual liberty and personal responsibility.”) Or has it emerged from some combination of both?

Often these stories shed more heat than light.

Or to use another metaphor, it is often a matter of Smoke and Mirrors.

Throughout this year, Criminal InJustice has offered critical questions about the reality of both policy claims and the legitimacy of so-called reforms. Please see Con Artists, Profit and Community Corrections and Confidence Men & “Prison Reform”.

What follows is a series of critical questions designed to help us all further navigate what may be, in some measure, a shell game. These topics and more will continue to be addressed in depth here at CI. But for now, a road map and a flashlight are offered below.

If these reforms really are substantive, and implemented in ways that demonstrate integrity – and if they are actually intended to help dismantle a policing/prosecution/detention emphasis in the criminal legal system – then politicians and policy advocates will be able to fully and transparently answer the questions we pose here and that will arise along the way.

UNPACK THE NUMBERS

News reports often contain a blizzard of statistics — what they are measuring, what lies beneath, and how they might be correlated makes all the difference. The Devil is always in the Details..

• Are prison populations falling?? Where? Is this state or federal data or combined?? Changes in a few states in aggregate reporting can create a misleading effect – for example, 70% of the 2012 prison population decline was due to California alone. State populations in aggregate have declined slightly, while Federal prison #s continue to grow. Take a close look.

• What is declining — prison populations or “correctional populations? Recent reports have blurred the two. Correctional populations include everyone under the legal supervisor –prison, probation, parole. The most recent BJS Report on this indicate a decline — 83% of which was due to a decline in probationers.

• Are racial disparities really shrinking?? Well it depends of course on how race is measured (see below). It is also important to note than any real declines in Black or Latino adult or juvenile prisoners still would not change the glaring dis-proportionality compared to whites which still runs about 5 to 1 and 2 to 1 respectively. This true for juveniles as well.

• Beware simplistic explanations for prison or correctional population declines. Especially question claims that specific police or criminal justice policies are singularly driving these. We have already seen claims that “broken windows” policing practices are responsible for low New York incarceration rates and the evidence suggests that they are not: “Nothing could be farther from reality.There is no reliable evidence showing that “broken windows” has reduced correctional populations or brought down crime. There is however, a vast body of evidence showing that “broken windows” has ravaged certain New York neighborhoods—namely those with high concentrations of poor people and people of color.” (See How New York City Really Reduced Mass Incarceration )

• Look out for “spurious ” correlations that claim because X and Y are happening at around the same time, they must be linked in some sort of causal relationship. Hardly ever. The most ludicrous recent example of this is the claim that decreases in lead emissions are the cause of declining crime/incarceration. Explanations of crime, arrest and incarceration rates involve multiple variables, both individual and structural, including public policy shifts. This is the sort of reductionist pap that gets sociologists to recall Dan White’s claim that a junk food diet led to his murdering Harvey Milk and Mayor Moscone. We call it “The Twinkie Defense”. And then laugh. So should you.

FOLLOW THE PRISONERS/FORMER PRISONERS

What’s happening to the people who are purportedly being released/diverted from incarceration? Some of the reductions being reported are pretty dramatic – in juvenile detention, for example. This is astonishing, given the 1980s–1990s rush by states to enact laws making it much easier to try juveniles as adults. Whether the reductions being reported are for juvenile or adult incarceration, we need to ask some hard questions.

• Can any part of the change be accounted for by demographic changes? For example, at 24%, the proportion of residents who are 18 and under is at an all-time low, according to the Population Reference Bureau. It was 25.6% in 1990. Twenty-three states and Washington, D.C., lost 10% or more of their child populations just in the last decade. Other demographic changes should also be taken into account.

• Where are these juveniles who are no longer detained by the juvenile justice system actually at?? Home? In what types of community-based programs?? Adult system?? Are the declines in detention attributable largely to reductions in long – term detention or do they reflect an increased effort to release youth prior to adjudication? The answer matters. A lot.

• Check out the ALEC-promoted “swift, certain, and proportionate” (pdf link) for addressing parole and probation violations. How will this data be tallied and reported so that we may track purported de-carceration over time? Will decarceration become a permanent part of the civic landscape, in the sense that our society dramatically reduces those under any type of correctional control? Or are we dealing with carceral “sleight of hand?”

• “Drug courts” and other correctional “net-widening” alternatives are being promoted as true “alternatives to incarceration.” But too often, they ensnare people in the criminal legal system who otherwise would not be prosecuted at all. How can we track the patterns of adjudication to drug court, based on severity of offenses charged?

• Find out what’s happening to prisoners transferred to other institutions because of facility closures or state prison population reductions (See California and Louisiana. How many are being sent to county jails? How is this being reported so that we can publicly monitor these closures/transfers?

• How will purported “decarceration” measures affect prison-based gerrymandering?

• How do states plan to link these “prison reduction” measures to re-enfranchisement of prisoners whose vote has been taken away?

• What types of “re-entry “programs are available? What type of programming is offered? How do we separate “myths” from meaningful efforts? How is “success” and/or “recidivism” measured? What is the track record of private contractors now gaining a larger share of the “re-entry market?” Are policy makers and advocates learning from scandals and corruption that already have been uncovered?
  

THE “COLOR-BLIND” & “OVERCRIMINALIZATION” SCAMS

It’s magic! While racial bias in policing, prosecution, and incarceration remains a structural/systemic problem that has existed, literally, since the time of colonization of this continent, it is implied that “prison reform” will take care of this pesky problem. And deal with “overcriminalization.” Lift an eyebrow and ask more questions.

• Why don’t most of the foundations and advocacy organizations participating in the “prison reform” public relations blitz talk specifically about the “overcriminalization” of people of color and make clear recommendations regarding the racially-biased enforcement of “race neutral” laws and law enforcement policies, ranging from “stop and frisk” to “gang” laws and policies, in and out of prison? Why isn’t structural/systemic racism explicitly named as the major contributor to mass incarceration? Where are the solutions that address larger societal contributors, such as poverty, segregation, de-funded educational institutions, racial profiling and more?

• How is race being measured and reported? Are Latinos white or not white? Are more and more respondents collapsed into broad, less revealing racial categories? How are mixed-race people counted?Is race counted at all? Is the measurement and reporting of race used to create the illusion that racism matters less? Because that’s not only relevant to BJS and Census figures. States are free to count any damn way they want, even if they’re supposed to follow a formula. That’s voluntary; it’s often not mandated.

• Right on Crime has announced its opposition to “overcriminalization.”. But look closely, and they mean “the over- criminalization” of businesses and corporations. Nothing in there about the over criminalization of people of color and poor people. Nothing in there about immigrants. Nothing in there about women of color and queers of color. In your state, are they talking about “over- criminalization?” What do they really mean? And have race and class – at the intersections of gender, gender identity, sexuality, and citizenship status – been magically disappeared from the discussion?

COMMUNITY SAFETY

First, we were told that “get tough” is essential for community safety. Now we’re told it isn’t – sort of. It’s complicated. Actually, it still is necessary, in the eyes of the Right and neoliberals, but only in ways that aren’t centered in the “prison reform” discussions. Forget dealing with structural problems like race-based law enforcement, poverty, widening gaps between rich and poor, a crisis in health care – including mental health care – for poor people, crumbling public school infrastructure, and lack of good jobs with benefits. Advocates just shout “community safety!” to sell reform without actually investing in things that would create safety for poor people and people of color as well. But while they’re shouting, let’s inquire more deeply.

• As “prison reform” is sold with a “community safety” guarantee, how much of this guarantee is more “get tough” in the form of cops in schools, permitting teachers and others to freely carry concealed weapons in all public and private spaces, etc.? What about the proliferation of “stop-and-frisk” police practices? Whose safety are we talking about, and whose are we continuing to sacrifice?

• How much of the community safety discussion revolves around ensuring solid social services and human needs programs – ranging from greater investment in public (not charter or private) schools? Excellent community-based mental health programs and substance abuse treatment centers? Other health care programs? Jobs programs? Housing and food assistance programs?

• Are these initiatives actually challenging and dismantling the school-to-prison pipeline, or are they reinforcing it? What is the racial impact of school disciplinary policies, school-based policing, and the like? What is the impact of giving school-based police officers the discretionary power to determine which student infractions should be handled through school disciplinary procedures and which should go into the criminal legal system? How are demonstrable patterns of race-based policing likely to influence this discretionary authority?

• Amid the clamoring for increased gun control and “safe” schools and communities, who will be protected and who will be policed? What have we learned from past legislation?

FOLLOW THE MONEY

The central argument used to promote “prison reform” is the high and unsustainable level of state spending on prisons and corrections.

• Where does the “money saved” go? Does it go to help mitigate/dismantle the prison pipeline by reverting to human needs spending for education, housing, health care, and jobs programs?

• What diversionary options are available? What is the influence of private for- profit agendas here?
• Is legal accountability less for private “community corrections” programs? Are private corrections initiatives permitted to circumvent non-discrimination/fair treatment statutes and policies? What’s the track record of holding private prison profiteers accountable for neglect and human and civil rights abuses?

• Where state laws purport to make it illegal to profit from community-based corrections, take a closer look, as in New Jersey. (See Con Artists, Profit and Community Corrections). Nonprofit organizations can be shell institutions created for the sole purpose of funneling money to profit-making individuals and companies via the ever-popular “subcontracting” route.

• Take a look at new proposals to rely heavily on surveillance technology, ultimately replacing face to face parole/probation relationships between offenders and public officials with house arrest/tracking technologies. What companies are profiting from this? Do any use prison-based labor to produce this profit-making technology? What is the relationship of companies that expect to profit from “decarceration” to production of war/military technologies?

• While the Right pursues union-busting measures right and left, how is the Right dealing with police and correctional employees’ unions? How does the Left address the pro-incarceration advocacy of correctional officers’ unions? What are these unions saying with regard to proposed reforms?

• How many community corrections programs will be faith-based? What faith-based organizations receive subcontracts? Any patterns here, in terms of denominations, faith traditions, and political perspectives of these organizations?

• What local/state/federal officials and politicians have ties to community corrections interests?

• What local/state/federal officials and politicians have close ties to community corrections interests?

WHAT WILL HAPPEN TO AND IN THE REMAINING PRISONS?

As we talk about “community corrections” reform, we should be asking what the future will be of prisons that remain – and what will be the fate of women and men incarcerated in them? We at Criminal Injustice are concerned that a civic storyline may emerge that goes something like this: “The problem of mass incarceration’s been taken care of. The remaining prisons will hold only truly violent people – the worst of the worse. We don’t have to care about them.” And CI is also concerned that these facilities – probably overcrowded – will continue the horrific torture of extended solitary confinement. But now there will be even less media concern about this form of torture, and the perception will be reinforced that the remaining people in prison deserve whatever brutality they experience. The overwhelming majority will continue to be people of color and poor people, because structural racism and economic violence is foundational to the criminal legal system in the United States.

• Will anyone care about inmates who are left or the conditions they face , so long as strained-to-bursting state corrections budgets are relieved?

CONCLUSION

We know some will say that CI is too cynical. But cynicism is the wrong word. Nor do we believe we are succumbing, as has sometimes been charged, to the idea that we won’t settle for less than some impossible idea of perfection. We have worked tirelessly for important reforms – but always within a framework that challenges the race-and-class-based nature of the U.S. criminal legal system and that serves to dismantle processes of criminalization that harm so many at the intersections of race, class, gender, gender identity, sexuality, disability, and citizenship status.

We remember how, in the 1970s, liberal/left advocacy for reform of indeterminate sentencing, which led to much abuse, transmuted into mandatory minimums, three strikes laws, so-called “truth in sentencing” laws and other “get tough measures.” The same measures the Right initiated and moderates and liberals quickly embraced decades ago.

Now, while organizations challenging the prison industrial complex (PIC), with its foundational racism and economic violence, have been working tirelessly, often with great vision, for reform, most of the policy proposals coming up in state legislatures are produced by or echo ALEC and Right on Crime measures. Large nonprofit foundations have urged liberals to collaborate with the Right in “unexpected partnerships.” Do we really believe that ALEC and Right on Crime – which is now supported by many of the very people who drove “tough on crime” and mass incarceration have become champions of racial and economic justice?

We simply think, based on past experience, that it’s unwise to uncritically embrace the new stories touting reform successes. We need to be asking questions that aren’t being openly asked. We need to be challenging the large justice foundations to care about these questions. We need to be challenging journalists to ask these questions. And we need to be organizing in our own states to influence the outcome of reform in truly progressive ways.

So we at CI remain, as always, watchful and wary.