Book Review: Mona Lynch’s Hard Bargains

Jeff Sessions’ career as Attorney General started exactly with what you would expect from him: a revocation of the Obama Administration’s commitment to end reliance on private prisons for domestic inmates and the promise to ramp up marijuana enforcement. Both of these are examples of this government’s effort to find the most reasonable, fiscally responsible, and decent thing that should be done and then do the exact opposite.

We know that private prisons in the federal system are not big players in the overall incarceration picture. The Obama Administration’s declaration that they would cease to rely on them seemed more a symbolic move than something that would actually make a difference (not that they could intervene in state incarceration matters anyway.) Moreover, throughout that period, private facilities were still used (and are still used) for incarceration of immigrants before deportation, and there was never any talk of stopping that practice.

We also hear the federal government arguing for a dinosaur-era approach to marijuana, featuring a new lie: that marijuana usage is related to opioid overdosing, which is unsupported by research and harkens back to the dark days of the Anslinger war on drugs in the 1920s.

These developments make Mona Lynch‘s new book, Hard Bargains, remarkably timely. In the book, Lynch conducts a careful and perceptive ethnography of three federal district courts: one in the Northeast, one in the Southeast, and one in the Southwest. Lynch is well aware that federal prosecutions are not the driving force behind mass incarceration, but she uses federal drug enforcement as an interesting laboratory for the study of prosecutorial discretion.

Indeed, the main takeaway from the book is the unhealthy combination of two seemingly contradictory factors: the existence of tough sentencing laws, which presumably bind discretion (albeit less so since 2005), and the existence of broad prosecutorial discretion, which allows them full use of these draconian sentencing provisions. On the back cover, Kate Stith, whose excellent book with Jose Cabranes Fear of Judging was a well-informed and passionate cry against sentencing guidelines,  interprets Lynch’s analysis as pointing to lack of discretion. I think the lack of discretion is only half of the problem. With the advent of extreme sentencing laws, how they are deployed is up to individual prosecutorial ideology, and as an outcome, a different culture of federal sentencing develops in the three different districts.

Not that any of these is particularly appetizing. Lynch’s account of the Northeast depicts a court that is captive in the hands of a zealous prosecutor on a mission to “rescue” people from themselves and from the streets, who basically wrangles minor drug cases out of the states’ hands and pushes them into the federal system, sometimes in violation of the Petite policy of refraining from double prosecution. In his enthusiasm to end the drug epidemic, he imposes lengthy and unreasonable restrictions on their freedom, which the court almost invariably approves. In the Southeast, there isn’t even a pretense of rehabilitation: an elderly judge delivers moralizing lectures to defendants on the receiving end of obscene, decades-long sentences for nonviolent drug crimes. And in the Southwest, marijuana backpackers–poor, undocumented immigrants carrying marijuana by foot as payment to their coyotes–are rounded up, summarily shifted to “flip flop court” for misdemeanor charges, where they are made to plead guilty in batches and march off to detention before deportation.

It’s difficult to figure out which of the three models is the most horrible. The variations confirm, though, that when outrageous mandatory minimums, unreasonable calculations of criminal histories, and breathtaking arbitrariness in terms of offense categories, come together, the problem is not, or at least not exclusively, lack of discretion. The problem is that a dazzling array of options, including very frightening and oppressive ones, is on the table, and prosecutors get to pick and choose which of these to deploy.

The extent of prosecutorial power here cannot be underrated. The publication of Hard Bargains coincides with the publication of John Pfaff’s Locked In, which looks at the unfettered discretion and power of county prosecutors (and which I’ll review in a future post). Lynch and Pfaff’s analyses are complementary.

As in her previous book Sunbelt Justice, Lynch is not only a meticulous and perceptive observer but also a master storyteller. The defendants, prosecutors, and judges come to life in her vignettes from court cases she witnessed. Her description of the poor, disenfranchised immigrants forced to plead guilty in batches is particularly disheartening (my students were in tears when I read this section aloud in class yesterday.) Lynch has a keen psychologist’s eye for personalities and motivations, and she realistically captures the ideologies and worldviews that make her characters tick.

It is horrifying to think of how this system, already bloated, draconian, and rotten in the Obama years, could wreak more havoc and destruction in Trumpistan, and the news from the last two days suggest at least two directions in which things could get even worse: reintroducing the profit mechanisms that drove private incarceration by improving these companies’ relationship with the feds, and inflicting the awful drug sentencing scheme on marijuana defendants to an even greater extent (with the obvious potential victims being the people at the bottom of the Trumpistani social ladder: poor immigrants from Mexico.) I dread to think that the horrors and inhumanities described by Lynch could be something we might come to miss in the years to come.

Reading Recommendations for the Summer

Those of you who are following the news might appreciate a few of these books as summer companions that offer some context for what we’re seeing in policing and the community. 

Chuck Epp, Steven Maynard-Moody, Donald Hayder-Markel (2014) Pulled Over: How Police Stops Define Race and Citizenship

David Simon (2006) Homicide: A Year on the Killing Streets

Victor Rios (2011) Punished: Policing the Lives of Black and Latino Boys

Adrian LeBlanc (2003) Random Family: Love, Drugs, Trouble, and Coming of Age in the Bronx

James Liebman and the Columbia DeLuna Project (2014) The Wrong Carlos: Anatomy of a Wrongful Execution

Ioan Grillo (2012) El Narco: Inside Mexico’s Criminal Insurgency

Radley Balko (2013) Rise of the Warrior Cop: The Militarization of America’s Police Forces

William Garriott (2011) Policing Metamphetamine: Narcopolitics in Rural America

If readers have additional recommendations, feel free to post them in the comments. And if any readers would like to spend some time discussing one or more of these books on the blog, please let me know.

Orange is the New Black, Second Season – Spoiler Alert

Screenshot 2014-06-11 06.37.58I’ve just finished viewing the recently-released new season of Orange is the New Black, which I had awaited with much anticipation since reading Piper Kerman’s book and the first season. It was everything I hoped for and more, and the storylines were engaging and fantastic. And, even taking into account what we all already know–that TV series aim to entertain and have to compete in the ratings arena–this season’s plotlines highlight some important prison issues that the public may not be aware of and offers an intelligent, critical look at them.

Let the spoilers begin!

This season’s episodes are drawing attention to two populations of inmates that have previously been in the dark to the public: the old and the infirm. It’s easy for the public to imagine the typical prisoner as a young black male, and the statistics on prison population confirm the overrepresentation of such inmates, but that ignores the growing aging population in prison and the special problems they pose. As life-course criminology shows, people tend to age out of street crime as a natural transition to adulthood, and lengthy incarceration beyond those periods, particularly for nonviolent, nonsexual offenses, therefore raises serious questions.

In Cheap on Crime, I talk about the rise in attention of correctional authorities to the old and the infirm, modifying Feeley and Simon’s risk-based actuarial justice to a cost/risk equation. That is, recession-era politics look not only at the risk an individual poses, but also at the cost of his or her incarceration. Orange is the New Black raises these hard questions through the stories of older and infirm inmates these season, focusing on two in particular: Sister Jane Ingalls, an excommunicated, politically active nun incarcerated for chaining herself in place at a nuclear weapons base during a political protest, and Rosa Cisneros, a former professional bank robber now undergoing chemotherapy for an aggressive cancer.

Sister Ingalls, friends with a group of older inmates, witnesses the painful “compassionate release” of a fellow inmate with Alzheimer’s, shocked at the fact that no plans are made to care for the inmate after dumping her on the street. This sad and shocking fact reflects the weakness of many similar “compassionate release” programs designed to save money on care of the elderly without thinking about support following their release. Horrified by the prison authorities’ indifference to the plight of an old, frail, sick inmate, Sister Ingalls embarks on a hunger strike. For a while, she sits on the sidelines of a group of inmates organizing a hunger strike for various issues, and eventually, she remains the lone hunger striker after other inmates are placated with some minor concessions.

Notably, some of the serious issues raised in the context of the hunger strike mirror events from the recent Pelican Bay hunger strike. One of the demands of the strikers in the series was to clarify the administrative policies behind sending inmates to the SHU. Of course, in Orange is the New Black, we only see the SHU being used as a punitive, disciplinary mechanism, rather than as a vague, indefinite status for suspected gang members, as is the case in Pelican Bay, Corcoran, and elsewhere. Nonetheless, we get to see the impact of a month in the SHU on two inmates: Chapman and Watson, both of whom are deeply traumatized by their stay in solitary confinement. The other important issue raised in the series is force feeding of Sister Ingalls – shown as an unpleasant process through IV and raising problematic ethical questions. As some readers may recall, Judge Henderson’s order to allow force feeding of inmates effectively ended the Pelican Bay strike, and more or less around the same time the world was shocked by rapper Mos Def’s demo of force feeding in Guantanamo.


Rosa Cisneros’ chemotherapy treatments also confront the viewers with the liminal place between inmate and patient. The series pays careful attention to Rosa’s transportation in and from prison; to her shackling and unshackling moments at the doctor’s office; and to a teenaged fellow cancer patient’s confusion about her prison uniform, thinking it’s merely “old lady chemo clothes.” Rosa bonds with the teenager through stories of her history as a professional bank robber, which we see in flashback, reminding us that a bald, ill woman was once a vibrant, energetic adolescent involved in daring criminal enterprises. The last scene of the season sees Rosa transform once more, as she “goes with a bang” into her younger, energetic self, daring and transgressing one more time. But before that glorious, powerful end, we see a scene far less dramatic but equally moving: Rosa sits in Healy’s office, where she receives the news that the Department of Corrections will not fund surgery for her, which essentially dooms her to an ineffective chemo course and to an early grave. She receives these news, as well as the news of having three more weeks to leave, in serenity and acceptance. “Talk to me,” she says to the doctor, “like you would talk to someone you like.”

Last but not least, in one of the comical scenes, the inmates are treated to a “mock job fair”, which starts with a jovial dress-up and fashion show, and continues with mock interviews with, of all people, the representative of Philip Morris (“because who else would employ former inmates?”)

Screenshot 2014-06-11 06.38.23
Everything about this bullshit so-called rehabilitation program screams the need for useful, realistic, evidence-based vocational training. The inmates are dressing up and interviewing for positions they have no hopes of receiving after their release. The program becomes mere entertainment, a spectacle, a mockery of reality-show-type contests, and does not provide any useful skills for the outside world. When Taystee, the only inmate who seems to take the job fair seriously, asks the Assistant Warden whether the “winner” of the job interview will actually receive a real job, she is mocked and offered a $10 addition to her commissary funds. The warden’s mockery implies that the rehabilitative programming is never seriously meant to rehabilitate, which reflects much of the unsuccessful prison programming that led Robert Martinson to conclude that “nothing works.”

As an aside, the recession may have changed this by prompting states to reduce their recidivism rates to save money. I’ve just received word that the Council on State Governments’ Justice Center will be releasing a report tomorrow, timed to an event on Capitol Hill, showing 6%-18% decline in recidivism rates in eight states, due to conscious efforts to invest in effective rehabilitation and reentry programming. The humorous scene in Orange is the New Black is a reminder of how time served can be effectively used, or completely wasted, depending on the thoughtfulness and genuine motivation of correctional authorities.

What are your favorite moments, characters, and issues, from Season 2?

Film Review: The House I Live In

Eugene Jarecki’s new film The House I live in, which is currently available for purchase streaming from Amazon and iTunes, opens with a press conference featuring Richard Nixon. Flanked by his assistants, Nixon declares war on the “Number One enemy of the American people”: Drugs.

The remainder of the movie is a sober examination of the colossal failure of the war on drugs. It documents this war through the personal histories of addicts, sellers, police officers, activists, prison guards, and others whose lives are woven into the tapestry of overenforcement and mass incarceration.

Much to my relief, the movie does not minimize the immense harm that drugs bring upon users, their families, and their communities. It acknowledges the devastation of addiction, as well as the fact that many (albeit not all) drug dealers sell to finance their own habits. It also is sensitive to the sociological nuances of drug use. The movie treats the crack epidemic of the 1980s, as well as the subsequent onslaught of meth on the American heartland, with care, acknowledging the seriousness of the problem but avoiding moralistic panic. And yet, as David Simon says on the film, to acknowledge the devastation of drugs is not to automatically condone what has been done to combat that devastation. The immense expense and effort, and the dehumanizing effects of the war on drugs itself, have not led to a decrease in drug abuse, and can be deemed a failure.

One of the movie’s great strengths is the finesse with which it treats the relationship between the drug war and racial strife. Particularly attuned to the plight of inner-city African American communities, the movie tells the history of drug criminalization as one of racially-motivated policies. While the movie focuses on the black community as a target (and Michelle Alexander, also interviewed, discusses this aspect of the war, as well as David Kennedy from Harvard,) the movie also includes fascinating footage of the opium wars and of enforcement along the Mexican border. And yet, as it moves to tell the story of poor white meth users, the movie also says that the story of the failed drug war transcends race.

Through David Simon’s interview, and fascinating filming of stop-and-frisk scenes, the movie ties up the connection between mass incarceration and street policing. The pay structure for cops is problematized; while brainwork and legwork involved in solving a murder or apprehending a rapist produces, perhaps, one arrest, routine stop-and-frisk activities and warehousing nonviolent drug dealers results in more arrests and in better pay. Another economic angle is the correctional industry; footage from a correctional conference in Tampa shows jocular prison officials trying out tasers and other equipment fueled by an industry of incarceration.

For me, the most controversial aspect of the movie was Jarecki’s linking of the war on drugs to the heritage of holocaust survivorship of his parents. He interviews experts on fascism and genocide, showing how laws that support a demonization and dehumanization of an underclass may lead to annihilation. I think the war on drugs is devastating, speak out frequently against prison condition, and am fully aware of what what the prison industrialized complex means for poor people of color, but I found the analogy difficult to digest; I am not sure it was germane to the goal of the movie. What I did find moving and convincing was Jarecki’s commitment to help others, and to seeing and highlighting the class aspect of the drug war, as part of the heritage of holocaust-survivor parents who vowed to help others who are less fortunate. 
Another personal angle is Jarecki’s ongoing conversation with Nannie Jeter, who escaped the traumas of Jim Crow south to work for his family. In doing so, and wanting to better her circumstances, she encountered more problems and discrimination, and eventually lost a son to the war on drugs. The dialogue between them is moving and convincing, and opens a window to Jarecki’s personal motivation and sense of guilt and commitment in making the movie.

Those of us who have been following mass incarceration for a while will not find much new or shocking information in the movie, but it is a great introduction to mass incarceration in the United States for the many people whose taxes pay for this failed war and who might be unaware of its destructive implications.