The Ghosts of Old Reforms

Caughtby Marie Gottschalk

Princeton University Press. 496p $35

After toiling in the trenches of the American criminal justice system for half a century, I had long abandoned any illusions that criminal justice policy is the product of rational analysis. But I saw faint glimmers of hope in recent measures ameliorating harsh drug laws. President Obama’s Fair Sentencing Act reduced the ratio between crack and powder cocaine for purposes of federal mandatory minimum sentences from the ridiculous 100 to 1 down to the preposterous 18 to 1. The momentum of the push to decriminalize marijuana suggested that drug hype may have declining influence. A 2014 California initiative (Proposition 47) eliminated prosecutorial and judicial discretion to treat many nonviolent drug offenses as felonies. While Marie Gottschalk concedes that the war on drugs is a major culprit in the mass incarceration of black youth and women, she quickly disabuses us of the notion that winding down that war will dramatically reduce our prison and jail populations. Noting that the carceral state, as she calls it, has extended its reach to other marginalized groups, including immigrants, poor whites and those charged with sex offenses, she convincingly demonstrates:

For those seeking to dismantle the carceral state, the key challenge is not to determine what specific sentencing and other reforms would slash the number of people in jail and prison. The real challenge is figuring out how to create a political environment that is more receptive to such reforms and how to make the far-reaching consequences of the carceral state into a leading political and public policy issue.

Frankly, I prefer the “prison state” of her subtitle to the “carceral state” of her text, but apparently she likes the alliteration with cancer, e.g. “The Metastasizing Carceral State.” In many respects, the growth of our prison populations has resembled a cancerous spread, and Gottschalk carefully documents how deeply the prison mentality has imbedded itself in all our governing institutions, public services and public benefits. In many states, restrictions on where convicted sex offenders can live has left homelessness as their only alternative. The political clout of unions of correctional officers and police in many states outweighs the influence of teachers’ unions. The overcrowding of prisons, the abandonment of any pretense of rehabilitation and the privatization of jails and prisons has eroded the conditions of confinement to levels of shameful inhumanity.

There are many directions in which the finger of blame can be pointed, but Gottschalk reserves her greatest scorn for neoliberalism, which she defines thus:

[A]n ideology and package of policies that deify low taxes, macroeconomic stabilization (through low inflation and low public debt), financial and trade deregulation, privatization of public assets and services, and the retrenchment of the welfare state.... Neoliberalism has long rested on...denigrating the role of government to solve economic and social problems.

In defining her goal of razing the carceral state, however, Gottschalk invites dystopian despair at the same time that she warns us to guard against it. The reality is that successful decarceration on her terms will cost massive amounts of money and require public acceptance of higher crime rates. The best we can hope for is incremental change over the course of decades.

Criminal justice reform is not a sport for the short-winded. In dismissing each of the halting steps we are currently taking to reduce our prison and jail populations, she says we need to resist the belief that tackling the root causes of crime will solve the problem, and that evidence-based research about “what works” will yield an agenda that is “highly constrained and politically vulnerable.” Ultimately she urges a return to the goals of rehabilitation that drove the penal reform of the last century.

In 1884, John Peter Altgeld, who as governor of Illinois later ordained his political demise by pardoning the Haymarket “anarchists,” published a remarkable little volume titled Our Penal Machinery and Its Victims. Identifying the same flaws in the prison state of a century ago that Marie Gottschalk identifies in today’s, his solution was indeterminate sentencing, which would motivate prisoners to “reform” in order to shorten their sentences. A century later, California was among the states that abandoned indeterminate sentencing, finding it was fundamentally flawed in its confidence that the risks of recidivism could be assessed based on a prisoner’s behavior while confined. But Altgeld’s reforms have been resurrected in California, and in response to a U.S. Supreme Court ruling in 2011 that the conditions of confinement in California were unconstitutional, Gov. Jerry Brown presided over a massive “realignment” to move prisoners out of the state prisons and into county jails for shorter terms.

Gottschalk dismisses moves like this as a game of “Whack-a-Mole.” She notes that California has approved applications from 21 counties to build more than 10,000 new jail beds at a cost of $1.2 billion, and that counties have eschewed using the billions of new state dollars allocated for realignment to invest in mental health and substance abuse treatment and other social services for the offenders diverted out of the state prison system.

Her criticism is fully justified, to the extent that any incremental reform will fall short of her ultimate goal. But shouldn’t we applaud a step in the right direction and urge others to take the same step, then turn our attention to the next step of improving social services? Public confidence in incremental reforms must be carefully nurtured. Gottschalk suggests that politicians and policy-makers mistakenly see the public as inherently punitive. The failure of our efforts to end a dysfunctional death penalty in California suggests just the opposite.

The public fear of crime so successfully orchestrated by the neoliberals to support construction of the prison state is still a potent force, and as Marie Gottschalk herself concludes, “For all the talk about a new bipartisan era that leans toward less punishment, not more, the ghosts of the law-and-order era have not been vanquished.”