In his 1985 masterpiece Visions of Social Control, criminological giant Stanley Cohen starts off by identifying the main features that transformed the way Western industrialized societies control deviance, which were largely completed by the 19th century: increased state involvement, increased classification of deviants, increased segregation into total institutions, and the decline in the infliction of bodily pain. He goes on to sketch three primary templates in which scholarly literature has sought to explain this transformation:
Uneven Progress: this story is an “arc of progress” trope, which essentially sees shifts in social control as overall benign. Not only are they motivated by a desire to do good, but they actually do good: in the overall scheme of things, our ideas of appropriate punishment become more humane and sophisticated, and the occasional misstep along the way will course-correct itself in time.
Good (but Complicated) Intentions – Disastrous Consequences: this story, of which David Rothman’s Conscience and Convenience is the perfect example. Notions of enlightenment and benevolence (often misguided by paternalistic perceptions of who the underclass is and what’s best for them) shape basic notions of what the solution should be, but along the way the values become diluted and the original plan is undermined by managerial and practical goals.
Finally, the Discipline and Mystification story, whose best representatives are structural Marxists and Foucault, argue that the terrible system we’ve come to create is exactly what it is intended to be. Controlling and repressing the underclass is the goal of the capitalist elite, or the ultimate aim of governmentality. This is a much more cynical view than the one espoused by the previous model: we actually don’t want to do good–what we really want is to produce docile workers and citizens and our social control systems achieve exactly that.
While Cohen mostly addresses the classic subject of the emergence of the prison and other confinement institutions (in other words, the shift that Foucault addressed in Discipline and Punish and Rusche and Kirchheimer addressed in Punishment and the Social Structure), I find that his classification of templates applies well to the study of mass incarceration as well. Visions was published in 1985, when a rise in incarceration patterns in both the United States and the United Kingdom was already becoming evident but not near its maximum rate circa 2008 (and the declining crime rates were probably not a clearly pronounced trend yet.) Since the publication of Visions, many scholars of punishment and social control have provided their own accounts of the rise of mass incarceration, and while the accounts conflict with each other on various theoretical and practical points, one feature they tend to share is eschewing the “uneven progress” perspective. You’d be hard pressed to find an analysis of mass incarceration that thinks that the shift in incarceration patterns has been positive. Criminologists look at the mirror through a negative slant, one that is not solely attributable to bias: in a lot of ways, things *have* gotten worse, or at least it is easy to problematize the argument that they have gone better. For example, is it really better to give lethal injections in highly controlled and supposedly medicalized conditions than to hang people in the town square? The rate of botched executions would suggest not. And, is it really better to put people in county jails ill-equipped to provide for their needs than to warehouse them in giant, overcrowded facilities? The complaints about basic conditions and health care would suggest not. If there are narratives of progress, uneven or not, they are usually to be found in official communiques of correctional authorities and institutional actors, not in scholarly critiques.
As to the more critical paradigms, perhaps because of the dramatic influence of radical criminologies and Foucaultian thinking (see also here), most classic and new accounts of mass incarceration tend to fall into the “discipline and mystification” category. These employ categories of class and race (less frequently, gender) to argue that the system is deliberately shaped to oppress, control, and marginalize the bottom rungs of the social hierarchy. This theme became even more pronounced with the rise to prominence of the conversation about neoliberalism (at least the way we have redefined the concept) and with the vast popularization of critical race analyses of mass incarceration (which not so much offer theoretical novelty, but have had a dramatic effect on the world outside academia.)
It is easy to see the appeal of the “discipline and mystification” approach. First, virtually all punishment and society scholars agree that mass incarceration has been, overall, an unqualified evil, and the natural tendency is to look for blame, mostly among people and institutions we find objectionable. And second, the world of criminal justice does offer clear examples of people and institutions whose bad will cannot be denied. The Southern judge in Mona Lynch’s Hard Bargains comes to mind, as does the prosecutor that opens Nicole Gonzalez van Cleve’s Crook County. Similarly, Joe Arpaio (to whom Lynch has appropriately referred to as a “penal cartoon”) is not someone you have to strain much to ascribe bad will to–and neither is Harry Anslinger.
These folks make for easy cases. But much of the perspectives that assume bad will, or some negative design from inception, do not actually feature ill-willed individuals at the helm, but rather the argument that individuals’ reactions to events are shaped by deeper systemic inequalities. The source of evil, in other words, lies in society, culture, or established state institutions, and people operate largely within these structural boundaries, thus fulfilling the goal of evil that the institutions intend. These larger-scale analyses follow the theoretical frameworks of Foucault and the Marxists, neither of whom pointed fingers at individuals, and all of which, especially Foucault, actually emphasized the impersonal nature of evil.
The appeal of this perspective is obvious in the American context. Many accounts of American mass incarceration start at the outset by pointing fingers toward Richard Nixon and Ronald Reagan as Bad Guys no. 1 and 2 (for a classic example see Katherine Beckett.) In both of these cases, especially regarding Nixon, we have enough evidence to know that there was actual bad animus behind the decisions. The more recent punishment and society works, however, have been expanding the circle of blame to institutions and individuals previously perceived as part of the “good guy” bloc. In Governing Through Crime, Jonathan Simon argues that politicians of every stripe, including progressives, benefit from posturing as tough on crime. In The Prison and the Gallows, Marie Gottschalk places some of the blame for mass incarceration on the shoulders of prisoners’ rights advocates and death penalty opponents. In The First Civil Right, Naomi Murakawa attributes much of the evil of mass incarceration to civil-rights liberals. And in From the War on Poverty to the War on Crime, Elizabeth Hinton argues that Nixon was not so much an aberration, but rather a direct continuation of the oppressive, paternalistic, racist approaches to crime control of his predecessors, Kennedy and Johnson, who were assisted by the oppressive, paternalistic, and racial top-down policies espoused by their academic advisors, criminologists Cloyd Ohlin and Richard Cloward.
We could debate the factual assertions underlying these works. While many of the arguments they advance are grounded in careful historical inquiry, others overlook the ways in which liberals and progressives have fought against the incarceration sprawl (I have some classic examples of this in Yesterday’s Monsters, where I show that, contrary to received wisdom, many civil rights organizations saw right through determinate sentencing and, back in the mid-1970s, warned that it would bring about a bloated correctional apparatus.) Maybe some of the tendency to blame liberals and progressives comes from an effort to “overcorrect” previous literature, which relegated the blame to Nixon, Reagan, and their cronies, without any self introspection on the left. But for our purposes here, I think it’s more helpful to look at tone. To the extent that these folks have “blown it” and contributed to the scale of imprisonment and its adjacent, or embedded, racial injustices, should we spend scholarly effort at looking at their intentions, or at the structural constraints within which they were working? The tendency in the field is clearly to do the latter, which is why I find two recent books so refreshing.
The first of these is James Forman’s Locking Up Our Own, which uses as its case study Washington D.C., a city characterized by robust participation of African American politicians and law enforcement officials in its structure of policymaking structure. Forman takes on the question why these African American stakeholders ended up supporting some of the policies that brought about increased crime control crackdowns in the streets, as well as punitive sentencing policies. The book revolves around several historical axes: the advent of the war on drugs, the crossroad on gun control policies, sentencing policies, the response to the crack epidemic, and the expansion of stop-and-frisk police strategies.
What is important about Forman’s account is that at no point does he make light of the gravity of the problems faced by the African American community. Violent crime and drug-related devastation, as well as the proliferation of illegally-obtained weapons, were all real things that were happening in real neighborhoods to real people, and raised serious problems that imperiled and burdened communities already burdened by institutional racism (of course, these problems themselves originated from institutional racism as well; this is the tragic double-winged problem of racialized law enforcement, that both criminality and criminalization stem from the same poisoned fountain of stunted opportunities and crippling poverty.) Moreover: Forman does not doubt at all the altruistic motivation of the actors–police chiefs, journalists, lawmakers–who, in the name of wanting to assist their community in its plight, ended up espousing policies that, in hindsight, yielded disastrous consequences. The urge to clean up the streets from drugs led to aggressive, disproportionate enforcement. The desire to help people help themselves against armed assailants exacerbated the proliferation of guns. Sentencing reforms filled prisons and fueled punitive animus, and adding stop and frisk to the police’s toolbox disintegrated any trust between the police and the communities they were hoping to serve.
But it is important to recognize that, even as African American stakeholders participated in locking up their own, their own biographies and stories show their genuine good intentions. Forman’s account shines with historical nuance when he delves into the personal history of Burtell Jefferson, Washington D.C.’s first African-American Chief of Police. Jefferson rose through the ranks making ten times the effort of his white counterparts, overcoming immense structural racism and outsmarting the racist selection policies by excelling in the promotion tests so that his blackness could not count against him by those who sought to exclude him from rank. Jefferson shines as someone whose truly admirable rise through the ranks was motivated by a desire to do well for a plighted community, and as someone who spent an enormous effort mentoring others who followed in his footsteps. Jefferson is just one example of the people Forman introduces in the book, most of whom were motivated by a similar genuine desire to help their communities. Their motivations, except when he finds evidence to the contrary, are taken at face value, even as he places them in the context of the structurally rotten situation they were in.
Forman’s answer to the main question animating his book is therefore not one of evil, mystification, and bad faith: it all boils down to lack of imagination. When you have a hammer, he argues, everything looks like a nail. In the absence of workable public health models for handling the drug crisis, or a memory of using more innovative models, people sought, in good faith, to represent the interests of the community and assist it in its plight. It is valuable to acknowledge, as Forman does, the tragedy in the fact that violent crime–which was and is a real problem in urban neighborhoods–disproportionally implicates as well as victimizes people of color. Because of this, the politicians’ and cops’ demands for a crackdown is not merely motivated by racial animus, but by the value of protecting the very community that produced both the crime and the victimization. Was the fix worse than the problem? Sure. Could it be avoided? We can only tell in hindsight. Can we fault the architects of the fix? Only for their lack of prescience.
Heather Schoenfeld’s Building the Prison State offers a similar nuanced analysis, though her take on the reformers is somewhat less benign than Formans. The book looks at the growth of mass incarceration in Florida, identifying the root of the problem as a cynical exploitation of a loophole left in the consent decree in Costello v. Wainwright. In the case of Schoenfeld book, the interventions that paved Florida’s path toward astronomical growth in incarceration were not so much front-end policing reforms, but rather the construction of additional institutions. The growth of the state’s population by two million throughout the sixties, as well as the actual rise in crime and the new policing techniques, meant that between 1968 and 1972 the prison population grew by 31 percent (p. 74). The warden, Wainwright, was amidst a modernization project, and saw the overcrowded and outdated facilities as hurdles on his path to implement more rehabilitative programming behind bars. Civil rights attorney Toby Simon, who fought for the inmates who suffered from the overcrowding, prevailed, but so did prison officials who wanted updated facilities. Since the entire Florida system was overcrowded, Wainwright would not be able to reduce overcrowding by moving inmates from facility to facility, but by pursuing one of two courses of action: releasing prisoners (via good behavior or parole) or increasing capacity (via building more prisons.) The political developments in the years that followed, argues Schoenfeld, and the law-and-order sense that releasing inmates was a non-starter, led to the latter strategy–which was not only technically compliant with the consent decree, but also true to its spirit: Judge Scott gave equal weight to both strategies. It was the historical aftermath, complete with the rise in racist animus, that led to the increase in incarceration.
At each junction of her narrative, Schoenfeld emphasizes that the disastrous outcomes of the implementation of Costello could have been avoided. But her accounts of the motives of individuals show an interesting mix of institutional agents along the political spectrum, most of whom genuinely wanted to fix what they perceived as substandard incarceration conditions. That the outcome became coopted as the raison d’être of a big construction project does not contradict the fact that, absent evidence to the contrary, people’s good intentions–both Simon’s and Wainwright’s–are taken at face value.
Schoenfeld’s answer to the question why incarceration spiked in Florida is therefore nuanced and complicated. Far from top-down villainy, it seems to be a combination of the federal court’s reluctance to lean on the state, and perhaps a lack of prescience about the possible implications of prison construction.
Both Forman and Schoenfeld’s accounts of mass incarceration are attentive to the structural constraints–as Schoenfeld calls them, racial projects–underlying assumptions about crime, criminality, and the need to protect the public. But neither of them goes as far as to deem the disastrous outcome foreseeable, planned, or self-serving. The characters they describe operate within these constraints, but they are not powerless pawns in the clutches of an oppressive machine: they wield power to do what they genuinely believe will make the situation better. This approach is far from naive: it is sensitive to the convergence of institutional interests and to the dilution and perversion of ideals. But it does not assume “intelligent design” in the carceral architecture.
This approach is very promising for various reasons. First, it is historically genuine. Delving into the micro-level of institutional and individual motivations does not superimpose our current ideas about governmentality or neoliberalism on the factual patterns. Analyses in the tradition of the “discipline and mystification” family of approaches can play out in ahistorical ways, ascribing bad intentions and villainy to people and ideas in ways that were far from obvious in their time. A good example is Hinton’s critique of Ohlin’s support for top-down reforms to address juvenile delinquency. Ohlin, a prominent criminologist, did a substantial amount of public service, as special consultant on delinquency to the United States Department of Health, Education, and Welfare under John F. Kennedy, associate director of the President’s Commission on Law Enforcement and Administration of Justice under Lyndon B. Johnson, and a member of the National Institute of Law Enforcement and Criminal Justice under Jimmy Carter. Today’s scholarship on racialized criminal control, infused by the deconstructionist approaches exemplified in Khalil Gibran Muhammad’s Condemnation of Blackness, question and critique the emergence of a link between race and criminality; but in a world in which Merton’s now-obvious arguments about inequality and criminality was still fresh, Cloward and Ohlin’s attribution of crime among low income people of color as a product of diminished opportunities was fresh and revolutionary. In other words, they made strides that today seem reactionary but at the time were perceived as progressive, rehabilitative, and far less oppressive than the alternative. Should they have built on community strengths, rather than espousing a top-down approach that looked at the pathologies of the black family as the causes of crime? In hindsight, sure. But in the 1960s, they did not have the benefit of Muhammad and Hinton’s scholarship. Hinton admits that their intentions were likely good, but her analysis for the most part criticizes them for being, essentially, men of their time. In other words, relying on a “good intentions-disastrous outcomes” as the default position fosters another virtue that we tend to fall short on in criminological research: a historically informed approach fosters some understanding, empathy, and forgiveness for reformers, who–like us–wanted to do what they thought as best.
Another advantage of pausing before attributing bad will is that the way we analyze history also shed light on how we should make sense of the present. Many readers of this blog post were (and perhaps still are) ardent supporters of the Ban the Box initiative, because we all want to bring about a reality in which people with criminal records are not excluded from employment and opportunity. Not only do we want to see better reentry and integration of returning citizens into society–especially given what we know of the immense hurdles to successful reentry–but we also harbor serious concerns that discrimination on the basis of criminal records disproportionately burden people of color, widening interracial gaps in employment. But much to our collective dismay, the successful campaign on behalf of Ban the Box has had mixed outcomes.
The policy has increased callback rates for people with criminal records and “effectively eliminated” the effect of having a criminal record on receiving a callback. Case studies from specific cities support these results, showing that hiring rates for people with criminal records increased after ban the box was implemented. Additionally, ban the box as a social movement has drawn attention to the plight of people with criminal records and has increased awareness of the challenges they face beyond employment. But recent research has concluded that ban the box also reduces the likelihood that employers call back or hire young black and Latino men. These findings suggest that when information about a person’s criminal history is not present, employers may make hiring decisions based on their perception of the likelihood that the applicant has a criminal history. Racism, harmful stereotypes, and disparities in contact with the justice system may heavily skew perceptions against young men of color. In other words, rather than using people’s criminal records as a proxy for their race, in the post-Ban-the-Box world we use people’s race as a proxy for their possible criminal records.
An improvement in reentry odds, employment, and racial equality? Not really. But does this mean that those of us who supported Ban the Box and advocated for it was part of the overall design to continue to oppress marginalized populations? Despite the disastrous consequences of the policy, which we must strive to correct, the very fact that we managed to put together a coalition advocating for reentry and equal opportunity is important. It shows that it is possible to organize and advocate. The lessons from the story might be more complicated. Maybe we should conclude that we have to be more imaginative in our predictions of unintended consequences. Maybe we should be wary of falling in love with particular reforms, and maintain the flexibility required to “course correct” once it is evident that something we espoused does not work as well as we’d hoped. Or, more pessimistically, maybe the embedded racial animus in society means that racism always finds a gap through which to sneak in and sabotage people’s dreams of equality and opportunity, and we have to find ways to work against it while forgiving ourselves for not being perfect. In any case, the Ban the Box example, as well as the examples Forman and Schoenfeld discuss, remind us that some humility is in order whenever assessing failed criminal justice reforms.
Finally, assuming good will on the part of criminal justice reformers that we fear are taking us on the wrong track is more conducive to dialogue, and to the use of facts, than disengaging from opponents because we perceive them as ill-motivated, or as captives in systemic inequality. Of course, sometimes the lack of good will will be obvious, but when there is no evidence of sinister machination, we have nothing to lose from engaging with others–especially when dealing with people on the same side of the political map, who have a largely similar vision for a good society and might disagree only on the way to get there.
