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Perspectives on US Mass Incarceration


In the face of the upcoming 2016 US Presidential Elections, Kalyani Unkule provides a timely persepective on the worrying trend of Mass Incarceration in the USA

Against a recent history of political polarisation, the problem of mass incarceration is being discussed as providing an opportunity for bipartisan cooperation and is steadily receiving attention from US Presidential hopefuls. America is home to 25 per cent of the world’s prison population and a third of all women behind bars worldwide. The so-called “war-on-crime” wave that hit the US two decades ago has resulted in a situation where the state prisons of Nebraska, Hawaii, Illinois and Alabama are operating at 158, 164, 173 and 197 per cent of design capacity. Overcrowding is not only disruptive to orderly day to day functioning, exacerbating the risk of abuse for all parties but also severely jeopardizes the prospects of rehabilitation and reform that should be at the centre of any correctional system. Even Bill Clinton, under whose administration the tough stance against crime was implemented, concedes: “It’s time to take a clear-eyed look at what worked, what didn’t, and what produced unintended, long-lasting consequences”.

Table: Possible solutions highlighted by candidates seeking nomination for Presidential race in 2016

Democrats Republicans
Addressing racial profiling and disproportionate minority (black and latino) incarceration

Bail Reform
Focusing on alternative responses (treatment and rehabilitation) to imprisonment for low-level and drug-related minor offenders Reinvigorating trial by juries and reducing the incidence of plea bargaining (by placing stringent requirements on prosecutors)
Greater discretion in sentencing for judges as opposed to mandatory minimums Converting regulatory crimes into civil offences
Privacy for young offenders to reduce social stigmatisation Focusing on alternative responses (treatment and rehabilitation) to imprisonment for low-level and drug-related minor offenders
Better training and infrastructure to remedy concerns of law enforcement officials Greater discretion in sentencing for judges as opposed to mandatory minimums
Measures to reduce disproportionate incarceration of minorities for certain offences
Encouraging traditional family values and social morality among youth
Curbing militarisation of police

Review of an array of legal provisions that have contributed to an increasingly dysfunctional system has been urged. Mandatory Minimum Sentencing has particularly been singled out as having outlived its purpose and an approach that allows greater discretion for judges when it comes to sentencing been advocated instead. Also under attack are current provisions related to bail which have been seen to keep low-income, low-level offenders in jail awaiting trial even as individuals with prior convictions often enjoy freedom purely for being able to afford the bail amount. Texas Senator Ted Cruz has spoken of the phenomenon called “over-criminalization” whereby law-makers have progressively added to the list of federal crimes over decades and argued for rationalization of the criminal code.

It is estimated that criminal justice agencies and correctional facilities set the US tax payer back by about USD 260 billion a year. New Jersey Senator Cory Booker has, among others, called attention to the wider social cost of imprisonment in the form of “roadblocks to voting and barriers to obtaining a job, business licenses, housing, education, and public benefits”. The dim prospects awaiting released former offenders has led some to advocate legislation that bans current requirements to declare criminal records at early stages of application for employment. In 2014 Governor Chris Christie enacted legislation to this effect in the form of The Opportunity to Compete Act and there have been periodic attempts to introduce “ban the box” bills at the federal level as well. Since 2005, the state of California has been implementing the “Back on Track” programme aimed at empowering offenders to transition successfully to life out of prison.

In the context of the “Black lives matter” movement and the “All lives matter” counter-movement, the need to revisit the equation between law enforcement agencies and the wider public has also been felt. Vice President Biden has drawn attention to the move away from Community Policing, which he took the lead in introducing under Clinton, due to steep budget cuts since the turn of the century. This has replaced individual patrolling with armored vehicles and the human element with technology, vastly increasing the rift between the Cop and the Community and fanning mistrust and hostility. As seen in the table, Democrats have openly come out in favour of policies aimed at reducing racial profiling. It is worth remembering however that New York Mayor Bill de Blasio’s successful efforts to reduce the incidence of stop-and-frisk have been under scrutiny for not satisfactorily addressing racial profiling at lower overall levels of stops.

The table above captures areas of agreement across the aisle: there seems to be an evolving consensus around doing away with mandatory minimums, and finding alternatives to deal with drug abuse other than as a law and order problem. On this last point however, articulation of policy on drugs is lacking and even within each camp there is disagreement over alternative measures. There are other possibilities conspicuously absent from on-going discussion. Coming from presidential hopefuls, it is striking that the President’s powers to grant pardon or amnesty do not figure among solutions on the table. A vision to cushion the economic set-back faced by communities and interest groups, such as suppliers and guards, reliant on the prison “industry” is also missing. One of the main impediments to any major reform is the high rate of recidivism – anywhere between one third and one half by most estimates. It is much easier to draw attention to the so-called revolving door compared to examples of successful reintegration of ex-offenders, strengthening arguments for incapacitation. A lot will depend on how high crime figures on the American public’s list of concerns and on how much support there is to policies that attack the socioeconomic conditions that foster criminality.

Those in favour of reform face the additional responsibility of finding out and voicing what time behind bars really does to an individual and countering entrenched stereotypes. They may wish  to follow the lead of Academic James Kilgore (who spent approximately six years in prison) who says based on personal experience:

“You can cram 150 “convicts” into a converted gym and make them sleep on triple bunks, and they will develop a way to get along without violence. They will make rules, carve out territory, and respect boundaries. Anyone who breaks the rules may be forced to do a few burpees or even get “checked” (punched), but the rules are clear. If you put 150 CEOs or MacArthur geniuses in the same space, they wouldn’t do half as well.”

Kalyani Unkule is an Assistant Professor at the Jindal Global Law School and Assistant Dean, International Collaborations

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