The figures are startling. In the last year of the Carter administration (1979), our nation's federal prisons held about 20,000 inmates. By contrast, as the Clinton administration draws to a close we will have 135,000 inmates in federal prisons; projecting an annual growth of 10 percent the number will reach a quarter million in five years. In 1979, there were 268,000 inmates in the prisons of all 50 states. Today, they hold almost 1.3 million. In 1979, there were 150,000 in local jails and lockups. Today, local jail facilities hold nearly 700,000. This year, we will exceed 2 million inmates in our prisons and jails. As we enter the millennium, the nation has about 6.5 million of its citizens under some form of correctional supervision.
And a new twist has been added: the “supermax” prison composed exclusively of cells used for solitary confinement. A place of studied sensual deprivation and psychological torture, it was designed by correctional managers to control their populations as privileges in routine prisons were diminished and sentences were lengthened. A product less of management necessity than of a twisted psyche, these temples to sado-masochism now dot the American landscape, presently containing 20,000 mostly minority inmates.
Spurred on by a “drug war” that focuses inordinately upon the poor and minorities, we have seen astonishing patterns of incarceration among young black men vis à vis similarly accused white men. Although the rates of drug consumption are roughly equal among white and black populations, blacks are imprisoned for drug offenses at 14 times the rate of whites.
The patterns in some states are truly astonishing. Between 1986 and 1996 for example, the rate of incarceration for drug offenses among African Americans increased by 10,102 percent in Louisiana; in Georgia, by 5,499 percent; in Arkansas 5,033 percent; in Iowa 4,284 percent; and in Tennessee 1,473 percent.
There are currently more than 50 million criminal records on file in the US, with at least 4 to 5 million “new” adults acquiring such a record annually. This record sticks with a person, whether or not charges are dropped or there is a subsequent conviction. A notorious example occurred in the recent police killing of Patrick Dorismond, an unarmed young Haitian immigrant. In an attempt to rationalize the police behavior, Mayor Rudolph Giuliani characterized the deceased as “no altar boy” and released a “criminal record” that included two past convictions for “disorderly conduct” and a juvenile charge that had been dismissed over two decades earlier when Dorismond was 13 years old.
For certain racial and ethnic groups, being arrested and locked up is a given. Beginning in adolescence, we have established a warped “rite of passage” for young African Americans and Hispanics; only by a fluke will they avoid acquiring a “criminal record” — the result of an arrest.
In 1990, the nonprofit Washington, DC–based Sentencing Project found that on an average day, one in every four African-American men ages 20–29 was either in prison, in jail, or on probation/parole. Ten years later, the ratio had shrunk to one in three.
Research conducted by the National Center on Institutions and Alternatives revealed that more than half of young black males living in Washington, DC, and Baltimore are caught up in the criminal justice system on an average day — either in prison, jail, on probation or parole, out on bond, or being sought on a warrant.
Three of every four (76 percent) African-American 18-year-olds living in urban areas can now anticipate being arrested and jailed before age 36. In the process, each young man will acquire a “criminal record.” By the late 1990s, federal statisticians were predicting that nearly one of every three adult black men in the nation could anticipate being sentenced to a federal or state prison at some time during his life.
The most telling numbers of all are contained in a US Justice Department historical breakdown of admissions to state and federal prisons over the past century. Although African Americans were always over-represented (often for reasons unrelated to crime rates), the racial gap grew exponentially as we approached the millennium. In 1926, whites made up 79 percent of the inmates entering our state and federal prisons. Blacks made up 21 percent. By 1999 however, African Americans were making up between 55 percent and 60 percent of all new admissions to state and federal prisons. If Latino inmates are included, slightly over three out of four Americans sentenced to federal or state prisons were minorities.
This fact has brought a sea change in public attitudes regarding crime and criminals and ushered in the era of the “rhetorical wink,” characterized by Lani Guinier, whereby a white politician can talk about getting tough on “criminals” and, with a wink, convey to the audience “black criminals.” Race need never be mentioned.
The uncomfortable truth is that the national attitude on crime is more firmly grounded in race than in putative crime rates. The surge in crime rates occurred between 1965 and 1973. The general trend since that time, with “blips” in 1989 and 1991, has been for crime to either remain stable or to decline.
While most people assume jail overcrowding results from rising crime rates, increased violence, or general population growth, that is seldom the case. Here, in order of importance, are the major contributors to jail overcrowding:
- The number of police officers
- The number of judges
- The number of courtrooms
- The size of the district attorney's staff
- Policies of the state's attorney's office concerning which crimes deserve the most attention
- The size of the staff of the entire court system
- The number of beds available in the local jail
- The willingness of victims to report crimes
- Police department policies concerning arrest
- The arrest rate within the police department
- The actual amount of crime committed
It is common for a “trickle-up effect” to set in. Although there may be little or no change in the ways serious crimes are handled, those who engage in minor infractions of the law end up receiving harsh penalties as well, thereby “casting the net” of social control ever wider. Such matters should give the nation pause as we move aggressively to build more prisons and camps, but there is little to suggest any respite.
The distinguished British criminologist Andrew Rutherford summarized the trend well: “All natural tendencies toward stability appear to have evaporated. Not only has there been a quantum leap of unprecedented proportions in prison populations, but there appear also to be no indications of any counter forces which might impose limits.”
Carnegie-Mellon criminologist Alfred Blumstein put it another way: “Once criminal policy in the United States fell into the political arena, little could be done to recapture concern for limiting prison populations. ... Our political system learned an overly simplistic trick: when it responds to such pressures by sternly demanding increased punishments, that approach has been found to be strikingly effective, not in solving the problem, but in alleviating the political pressure to ‘do something'.”
To many, the “tough on crime” attitude seems a good thing — a return to basic values, a focus on the rights of victims, an adieu to the “bleeding heart” policies of the past. Overall, the prevailing public mood on crime is vicious.
I recently watched a video of a “focus group” on crime conducted by a Republican pollster and consultant. In discussing a recent shooting of a teacher by a 13-year-old African-American middle-school honor student, the consultant asked the group what they would do in such a case. Their response seemed even to embarrass him as he tried to smile away the comments of this scientifically chosen “average” group of local citizens. “Fry him!” came the insistent shouts from the group as the 13-year-old's situation was being presented. Only one older African-American man remained silent.
I wanted to avert my eyes from the TV. It brought to mind another mood observed by the Danish sociologist Svend Ranulf when he looked across the border into the Germany of the early 1930s to see how that country proposed dealing with criminals and crime. “Everywhere” he saw a “disinterested disposition to punish.” He called it “disinterested” because “no direct personal advantage seemed to be achieved by calling for the harsh punishment of another person who had injured a third party.” Noting that this punitive inclination was not equally strong in all human societies and was entirely lacking in some, Ranulf concluded that it did not arise out of concern for deterrence. Rather, it was a kind of “disguised envy,” less a response to an increased crime rate than tied to the economic insecurities of the middle class.
Indeed, the anti-crime program undertaken in accordance with the principles of National Socialism and proposed by the Prussian minister of justice in 1933 seems oddly resonant today. Aggravated penalties were added to criminal acts already subject to punishment; mitigation was to be allowed in only the rarest and most exceptional cases; attempts at crime were to be dealt with as severely as accomplished crimes; drunkenness was to be considered an aggravating, rather than extenuating, circumstance; there was to be more liberal recourse to capital punishment; and prisons were to be made harsher, with disciplinary measures to be applied at the discretion of prison wardens. Criticizing the alleged permissiveness of the Weimar Republic toward criminals, the minister ended his white paper with a familiar slogan. “It seemed,” he wrote, “that the welfare of the criminal, and not the welfare of the people, was the main purpose of the law.”
Indeed, prisons and jails are an “early warning system” of sorts for a society. They constitute the canary in the coal mine, providing an omen of mortal danger that often lies beyond our capacity to perceive.
The experience of the past two decades suggests that we are ignoring this warning. We are in a curious position in which a surfeit of prisons filled with a million minority young men is seen not as an embarrassment, but as indispensable to the smooth running of our democracy and integral to its economy. In effect, the attitude that suffused Southern jails and prisons during post–Civil War reconstruction has been replicated nationally.
For more than 20 years, our politicians have played the dangerous game of one-upping each other over who can demand the harshest punishments. In this pursuit, the definition of what is criminal, the relaxing of limits on the police to enforce laws, and the mandatory use of prison over non-institutional means of control or correction have been distilled to carefully crafted marketing slogans like “three strikes and you're out.”
Offenders emerge from prison afraid to trust, fearful of the unknown, and with a vision of the world shaped by the meaning that behaviors had in the prison context. For a recently released prisoner, experiences like being jostled on the subway, having someone reach across him in the bathroom to take a paper towel, or making eye contact can be taken as a precursor to a physical attack. In relationships with loved ones, this warped kind of socialization means that problems will not easily be talked through. In a sense, the system we have designed to deal with offenders is among the most iatrogenic in history, nurturing those very qualities it claims to deter.
During the question period following a lecture to a college audience, the social critic and linguist Noam Chomsky was recently asked why he was so rarely seen on TV or on the “op-ed” pages of our major news-papers and why he wasn't among those asked to testify on policy matters before Congress. There seemed to be no dearth of commentary from the mavens of the Right, yet he was mostly absent from these forums.
Chomsky responded by describing a conversation he had with ABC/CNN commentator Jeff Greenfield. Greenfield told him that he was unlikely to be booked on a national program like “Nightline,” for example, because he was “from Neptune.” Chomsky's views were too far “outside the box” to merit discussion on a popular TV program. It had nothing to do with whether or not his ideas might be valid. It was because he couldn't be afforded the time needed to lay out the context within which his views might be understood. For him to express his views absent their context put him in the company of those who are from Neptune — out of touch, if not a bit loony.
Chomsky's predicament has a personal resonance. The “context” of my professional life over the past 35 years has been shaped by attempts to create alternative programs for the inmates of detention centers, jails, and prisons. At the beginning, there was some general acceptance of the ideas I tried haltingly to express through my work. However, hope for “consensual validation” of such efforts from peers and policy makers in the criminal justice community has pretty much faded with the years, as a sense of alienation pulls me ever closer to Neptune.
I vividly remember the case of Doug, a stocky 16-year-old addicted to heroin. Late one evening, returning home from a meeting near the state reform school over which I'd recently assumed control, I decided to take a quick side trip to the so-called disciplinary cottage. I asked the “master” on duty whether anyone was upstairs in the “tombs,” (the strip cells that I'd ordered closed a few weeks earlier). No. I guess he thought I wouldn't bother to go upstairs and look. There, in a far corner of one of the dim cells, was Doug, lying stripped on the bare cement floor. I stood in the doorway trying to talk though the mesh security screen that separated us. “How long have you been here?” The muffled reply: “A few days.” “Why are you here?” His voice grew more agitated: “I tried to make it over the fence out back.” I told him I wanted him to come out and go back downstairs. “We aren't using the tombs anymore.” Doug let go a torrent of obscenities — “You naïve asshole! You dumb motherfucker! Don't you know kids like me need to be in here?”
Doug had learned his lessons well. He had become the well-socialized product of our reform school — a “disciplinary cottage success” who believed what it taught. The way to handle unacceptable impulses is to be grabbed, beaten, handcuffed, dragged screaming up cement steps, stripped, and thrown into a “tomb.”
It's not that we don't know that our present medieval tapestry of crime and punishment will at some point unravel. It isn't that there aren't alternative ways presently available for dealing with those who threaten us or break our laws. However, at times they seem largely futile, if not actually counter-productive. In the present poisoned atmosphere, even the most well- intentioned alternatives run the danger of being pummeled to serve the very same warped conception of humanity they would challenge.
Somewhere in my youth I learned that the only unforgivable sin is the sin of despair. For that reason if no other, I choose to continue what has become a somewhat melancholy battle. It is a great comfort to know that so many others continue to exercise their hope for a better way with equanimity and crazy joy.
Miller is best known for closing the state reform schools in Massachusetts and replacing them with community-based programs while serving as commissioner of the state Department of Youth Services. He has since headed criminal justice programs in four other states. His books include: Over the Wall (re-released by Ohio State University Press in 1998) and Search & Destroy: African Americans in the Criminal Justice System (Cambridge University Press, 1997).