AMERICA INCARCERATED

The early 1990s were the age of drive-by shootings, drug deals gone
bad, crack cocaine, and gangsta rap. Between 1960 and 1990, the annual
number of murders in New Haven, Connecticut, rose from 6 to 31, the
number of rapes from 4 to 168, the number of robberies from 16 to
1,784--all this while the city's population declined by 14 percent.

Crime was concentrated in central cities: In 1990 two-fifths of
Pennsylvania's violent crimes were committed in Philadelphia, home to
one-seventh of the state's population. The subject of crime dominated
American domestic-policy debates.

Most observers at the time expected things to get worse.

Consulting demographic tables and extrapolating trends, scholars and
pundits warned the public to prepare for an onslaught, and for a new
kind of criminal--the anomic, vicious, irreligious, amoral juvenile
"superpredator." In 1995 one academic commentator predicted a
"bloodbath" of juvenile violence in 2005.

And so we prepared.

Stoked by fear and political opportunism, but also by the need to
address a very real social problem, we threw lots of people in jail,
and when the old prisons were filled we built new ones.

But the onslaught never came. Crime rates peaked in 1992 and have
dropped sharply since.

Even as crime rates fell, however, imprisonment rates continued their
upward march.

The result, the current American prison system, is a leviathan
unmatched in human history.

According to a 2005 report of the International Centre for Prison
Studies in London, the United States--with 5 percent of the world's
population--houses 25 percent of the world's inmates.

Our incarceration rate (714 per 100,000 residents) is almost 40
percent greater than those of our nearest competitors (Bermuda,
Belarus, and Russia). Other industrial democracies, even those with
significant crime problems of their own, are much less punitive: Our
incarceration rate is 6.2 times that of Canada, 7.8 times that of
France, and 12.3 times that of Japan. We have a corrections sector
that employs more Americans than the combined workforces of General
Motors, Ford, and Wal-Mart, the three largest corporate employers in
the country, and we are spending some $200 billion annually on law
enforcement and corrections at all levels of government, a fourfold
increase (in constant dollars) over the past quarter century.

Never before has a supposedly free country denied basic liberty to so
many of its citizens.

In June 2006 some 2.25 million people were being held in the nearly
5,000 prisons and jails that are scattered across America's urban and
rural landscapes. One-third of inmates in state prisons are violent
criminals, convicted of homicide, rape, or robbery. The other
two-thirds consist mainly of property and drug offenders. Inmates are
disproportionately drawn from the most disadvantaged parts of society.

On average, state inmates have fewer than 11 years of schooling. They
are also vastly disproportionately black and brown.

How did it come to this? One argument is that the massive increase in
incarceration reflects the success of a rational public policy: Faced
with a compelling social problem, we responded by imprisoning people
and succeeded in lowering crime rates.

This argument is not entirely misguided. Increased incarceration does
appear to have reduced crime somewhat. But by how much? Estimates of
the share of the 1990s reduction in violent crime that can be
attributed to the prison boom range from 5 percent to 25 percent.

Whatever the number, analysts of all political stripes now agree that
we have long ago entered the zone of diminishing returns. The
conservative scholar John DiIulio, who coined the term superpredator
in the mid-1990s, was by the end of that decade declaring in a Wall
Street Journal headline that "Two Million Prisoners Are Enough." But
there was no political movement for getting America out of the
mass-incarceration business.

The throttle was stuck.

A more convincing argument is that imprisonment rates have continued
to rise while crime rates have fallen because we have become
progressively more punitive: not because crime has continued to
explode (it hasn't), not because we made smart policy choices, but
because we have made a collective decision to increase the rate of
punishment.

One simple measure of punitiveness is the likelihood that a person who
is arrested will be subsequently incarcerated. Between 1980 and 2001
there was no real change in the chances of being arrested in response
to a complaint: The rate was just under 50 percent.

But the likelihood that an arrest would result in imprisonment more
than doubled, from 13 to 28 percent. And because the amount of time
served and the rate of prison admission both increased, the
incarceration rate for violent crime almost tripled, despite the
decline in the level of violence.

The incarceration rate for nonviolent and drug offenses increased at
an even faster pace: Between 1980 and 2001 the number of people
incarcerated for nonviolent offenses tripled, and the number of people
incarcerated for drug offenses increased by a factor of 11. Indeed,
the criminal-justice researcher Alfred Blumstein has argued that none
of the growth in incarceration between 1980 and 1996 can be attributed
to more crime:

The growth was entirely attributable to a growth in punitiveness,
about equally to growth in prison commitments per arrest (an
indication of tougher prosecution or judicial sentencing) and to
longer time served (an indication of longer sentences, elimination of
parole or later parole release, or greater readiness to recommit
parolees to prison for either technical violations or new crimes).

This growth in punitiveness was accompanied by a shift in thinking
about the basic purpose of criminal justice.

Until the 1970s, the sociologist David Garland argues, the corrections
system was commonly seen as a way to prepare offenders to rejoin society.

Since then, the focus has shifted from rehabilitation to punishment
and stayed there.

Felons are no longer persons to be supported, but risks to be dealt
with. And the way to deal with the risks is to keep them locked up. As
of 2000, 33 states had abolished limited parole (up from 17 in 1980);
24 states had introduced three-strikes laws (up from zero); and 40
states had introduced truth-in-sentencing laws (up from 3). The vast
majority of these changes occurred in the 1990s, as crime rates fell.

This new system of punitive ideas is aided by a new relationship
between the media, the politicians, and the public.

A handful of cases in which a predator does an awful thing to an
innocent get excessive media attention and engender public outrage.

This attention typically bears no relation to the frequency of the
particular type of crime, yet laws--such as three-strikes laws that can
give mandatory life sentences to nonviolent drug offenders--and
political careers are made on the basis of the public's reaction to
media coverage of such crimes.

Despite a sharp national decline in crime, American criminal justice
has become crueler and less caring than it has been at any other time
in our modern history.

Why?

The question has no simple answer, but the racial composition of
prisons is a good place to start.

The punitive turn in the nation's social policy--intimately connected
with public rhetoric about responsibility, dependency, social hygiene,
and the reclamation of public order--can be fully grasped only when it
is viewed against the backdrop of America's often ugly and violent
racial history.

There is a reason why our inclination toward forgiveness and the
extension of a second chance to those who have violated our behavioral
strictures is so stunted, and why our mainstream political discourses
are so bereft of self-examination and searching social criticism.

This historical resonance between the stigma of race and the stigma of
imprisonment serves to keep alive in our public culture the
subordinating social meanings that have always been associated with
blackness. Race helps to explain why the United States is exceptional
among the democratic industrial societies in the severity and extent
of its punitive policy and in the paucity of its social-welfare
institutions.

Slavery ended a long time ago, but the institution of chattel slavery
and the ideology of racial subordination that accompanied it have cast
a long shadow.

I speak here of the history of lynching throughout the country; the
racially biased policing and judging in the South under Jim Crow and
in the cities of the Northeast, Midwest, and West to which blacks
migrated after the First and Second World Wars; and the history of
racial apartheid that ended only as a matter of law with the civil
rights movement.

It should come as no surprise that in the post-civil rights era, race,
far from being peripheral, has been central to the evolution of
American social policy.

The political scientist Vesla Mae Weaver, in a recently completed
dissertation, examines policy history, public opinion, and media
processes in an attempt to understand the role of race in this
historic transformation of criminal justice.

She argues--persuasively, I think--that the punitive turn represented a
political response to the success of the civil rights movement.

Weaver describes a process of "frontlash" in which opponents of the
civil rights revolution sought to regain the upper hand by shifting to
a new issue.

Rather than reacting directly to civil rights developments, and thus
continuing to fight a battle they had lost, those opponents (consider
George Wallace's campaigns for the presidency, which drew so much
support in states like Michigan and Wisconsin) shifted attention to a
seemingly race-neutral concern over crime:

Once the clutch of Jim Crow had loosened, opponents of civil rights
shifted the "locus of attack" by injecting crime onto the agenda.
Through the process of frontlash, rivals of civil rights progress
defined racial discord as criminal and argued that crime legislation
would be a panacea to racial unrest.

This strategy both imbued crime with race and depoliticized racial
struggle, a formula which foreclosed earlier "root causes"
alternatives. Fusing anxiety about crime to anxiety over racial change
and riots, civil rights and racial disorder--initially defined as a
problem of minority disenfranchisement--were defined as a crime
problem, which helped shift debate from social reform to punishment.

Of course, this argument (for which Weaver adduces considerable
circumstantial evidence) is speculative. But something interesting
seems to have been going on in the late 1960s regarding the
relationship between attitudes on race and on social policy.

Before 1966 public attitudes on the welfare state and on race varied
year to year independently of one another.

You could not predict much about a person's attitudes on welfare
politics by knowing the person's attitudes about race. After 1966 the
attitudes moved in tandem as welfare came to be seen as a race issue.

Indeed, the year-to-year correlation between an index measuring
liberalism of racial attitudes and attitudes toward the welfare state
over the interval 1950 to 1965 was .03. These same two series had a
correlation of .68 over the period 1966 to 1996.

The association in the American mind of race with welfare, and the
association of race with crime, have been achieved at a common
historical moment.

Crime-control institutions are part of a larger social-policy
complex--they relate to and interact with the labor market,
family-welfare efforts, and health and social work activities. Indeed,
sociologist Garland argues that the ideological approaches to welfare
and crime control have marched rightward to a common beat: "The
institutional and cultural changes that have occurred in the crime
control field are analogous to those that have occurred in the welfare
state more generally." Just as the welfare state came to be seen as a
race issue, so, too, crime came to be seen as a race issue, and
policies have been shaped by this perception.

Consider the tortured racial history of the war on
drugs.

Blacks were twice as likely as whites to be arrested for a drug
offense in 1975 but five times as likely by 1988. Throughout the
1990s, drug-arrest rates remained at historically unprecedented levels.

Yet according to the National Household Survey on Drug Abuse, drug use
among adults fell from 20 percent in 1979 to 11 percent in 2000. A
similar trend occurred among adolescents. In the age groups 12-17 and
18-25, use of marijuana, cocaine, and heroin all peaked in the late
1970s. Thus, a decline in drug use across the board had begun a decade
before the draconian antidrug efforts of the 1990s were initiated.

Of course, drug usage rates and drug arrest rates needn't be expected
to be identical.

Still, we do well to bear in mind that the social problem of illicit
drug use is endemic to our whole society.

Significantly, throughout the period 1979 to 2000, white high school
seniors reported using drugs at a significantly higher rate than black
high school seniors. High drug-usage rates in white, middle-class
American communities in the early 1980s account for the urgency many
citizens felt to mount a national attack on the problem.

But how successful has the effort been, and at what
cost?

Think of the cost this way: To save middle-class kids from the threat
of a drug epidemic-- one that might not even have existed by the time
that drug incarceration began its rapid increase in the 1980s--we
criminalized underclass kids. Arrests went up, but drug prices have
fallen sharply over the past 20 years--suggesting that ratcheting up
enforcement has not made drugs harder to get on the street.

The strategy clearly wasn't keeping drugs away from those who sought
them. Not only are prices down, but the data show that drug-related
visits to emergency rooms also rose steadily throughout the 1980s and
1990s.

An interesting case in point is New York City. Analyzing arrests by
residential neighborhood and police precinct, the criminologist
Jeffrey Fagan and his colleagues Valerie West and Jan Holland found
that incarceration was highest in the city's poorest neighborhoods,
though these were often not the neighborhoods in which crime rates
were the highest. Moreover, they discovered a perverse effect of
incarceration on crime: Higher incarceration in a given neighborhood
in one year seemed to predict higher crime rates in that same
neighborhood one year later. This growth and persistence of
incarceration over time, the authors concluded, were due primarily to
the drug enforcement practices of police and to sentencing laws that
require imprisonment for repeat felons. Police scrutiny was more
intensive and less forgiving in high-incarceration neighborhoods, and
parolees returning to such neighborhoods were more closely monitored.

Thus, discretionary police behavior led to a high and increasing rate
of repeat prison admissions in the designated neighborhoods, even as
crime rates fell.

Fagan, West, and Holland explain the effects of spatially concentrated
antidrug-law enforcement in the contemporary American metropolis.
Buyers may come from any neighborhood and any social stratum, but the
sellers--at least the ones who can be readily found hawking their wares
on street corners--come predominantly from the poorest, most nonwhite
parts of the city. The police, with arrest quotas to meet, know
precisely where to find them. The researchers conclude:

Incarceration begets more incarceration, and incarceration also begets
more crime, which in turn invites more aggressive enforcement, which
then re-supplies incarceration. . . . Three mechanisms . . .
contribute to and reinforce incarceration in neighborhoods: the
declining economic fortunes of former inmates and the effects on
neighborhoods where they tend to reside; resource and relationship
strains on families of prisoners that weaken the family's ability to
supervise children; and voter disenfranchisement that weakens the
political economy of neighborhoods.

The effects of imprisonment on people's life chances are
profound.

For incarcerated black men, hourly wages are 10 percent lower after
prison than before.

For all incarcerated men, the number of weeks worked per year falls by
at least a third after their release.

So consider the nearly 60 percent of black male high school dropouts
born in the late 1960s who are imprisoned before their 40th year.
While they are locked up, these felons are stigmatized--they are
regarded as fit subjects for shaming.

Their links to family are disrupted; their opportunities for work are
diminished; their voting rights may be permanently revoked.

They suffer civic excommunication. Our zeal for social discipline
consigns these men to a permanent nether caste.

And yet, since these men--whatever their shortcomings--often need to be
fathers and lovers and husbands, we are creating a situation in which
the children of this nether caste are likely to join a new generation
of untouchables. This cycle will continue so long as incarceration is
viewed as the primary path to social hygiene.

I have been exploring the issue of causes, of why we took the punitive
turn that has resulted in mass incarceration. But even if the racial
argument about causes is inconclusive, the racial consequences are
clear. To be sure, in the United States, as in any society, public
order is maintained by the threat and use of force.

We enjoy our good lives only because we are shielded by law and order,
which keep the unruly at bay. Yet in this society, to a degree
virtually unmatched in any other, those bearing the brunt of order
enforcement belong in vastly disproportionate numbers to historically
marginalized racial groups. Crime and punishment in America has a color.

In his fine study "Punishment and Inequality in America" (2006), the
Princeton University sociologist Bruce Western powerfully describes
the scope, nature, and consequences of contemporary imprisonment. He
finds that the extent of racial disparity in imprisonment rates is
greater than in any other major arena of American social life. At
eight to one, the black-to-white ratio of incarceration rates dwarfs
the two-to-one ratio of unemployment rates, the three-to-one ratio of
nonmarital childbearing, the two-to-one ratio of infant-mortality
rates, and the one-to-five ratio of net worth.

While 3 out of 200 young whites were incarcerated in 2000, 1 in 9
young blacks were. A black male resident of California is more likely
to go to a state prison than to a state college.

The scandalous truth is that the police and penal apparatus are now
the primary contact between black American men and the American state.

Among black male high school dropouts ages 20 to 40, a third were
locked up on any given day in 2000, fewer than 3 percent belonged to a
union, and less than one quarter were enrolled in any kind of social
program. Coercion is the most salient meaning of government for these
young men. Western estimates that nearly 60 percent of black male
dropouts born between 1965 and 1969 were sent to prison on a felony
conviction at least once before they reached the age of 35.

One cannot reckon the world-historic American prison buildup over the
past 35 years without calculating the enormous costs imposed upon the
persons imprisoned, their families, and their communities. (Of course,
this has not stopped many social scientists from pronouncing the net
benefits of incarceration without doing so.) Deciding on the weight to
give to a "thug's" well-being--or to that of his wife or daughter or
son--is a question of social morality, not social science.

Nor can social science tell us how much additional cost borne by the
offending class is justified in order to obtain a given increment of
security or peace of mind for the rest of us. These are questions
about the nature of the American state and its relationship to its
people that transcend the categories of benefits and costs.

Yet the discourse surrounding punishment policy invariably discounts
the humanity of the thieves, drug sellers, prostitutes, rapists, and,
yes, those whom we put to death.

It gives insufficient weight to the welfare, to the humanity, of those
who are knitted together with offenders in webs of social and psychic
affiliation. What is more, institutional arrangements for dealing with
criminal offenders in the United States have evolved to serve
expressive as well as instrumental ends. We have wanted to "send a
message," and we have done so with a vengeance.

In the process, we have created facts.

We have answered the question, Who is to blame for the domestic
maladies that beset us? We have constructed a national narrative.

We have created scapegoats, indulged our need to feel virtuous, and
assuaged our fears.

We have met the enemy, and the enemy is them.

Incarceration keeps them away from us. Thus Garland: "The prison is used
today as a kind of reservation, a quarantine zone in which purportedly
dangerous individuals are segregated in the name of public safety." The
boundary between prison and community, Garland continues, is "heavily
patrolled and carefully monitored to prevent risks leaking out from one
to the other.

Those offenders who are released 'into the community' are subject to
much tighter control than previously, and frequently find themselves
returned to custody for failure to comply with the conditions that
continue to restrict their freedom.

For many of these parolees and ex-convicts, the 'community' into which
they are released is actually a closely monitored terrain, a
supervised space lacking much of the liberty that one associates with
'normal life.' "

Deciding how citizens of varied social rank within a common polity
ought to relate to one another is a more fundamental consideration
than deciding which crime-control policy is most efficient.

The question of relationship, of solidarity, of who belongs to the
body politic and who deserves exclusion--these are philosophical
concerns of the highest order. A decent society will on occasion
resist the efficient course of action, for the simple reason that to
follow it would be to act as though we were not the people we have
determined ourselves to be: a people conceived in liberty and
dedicated to the proposition that we all are created equal.

Assessing the propriety of creating a racially defined pariah class in
the middle of our great cities at the start of the 21st century
presents us with just such a case.

My recitation of the brutal facts about punishment in today's America
may sound to some like a primal scream at this monstrous social
machine that is grinding poor black communities to dust. And I confess
that these brutal facts do at times incline me to cry out in despair.

But my argument is analytical, not existential. Its principal thesis
is this: We law-abiding, middle-class Americans have made decisions
about social policy and incarceration, and we benefit from those
decisions, and that means from a system of suffering, rooted in state
violence, meted out at our request.

We had choices and we decided to be more punitive.

Our society--the society we have made--creates criminogenic conditions
in our sprawling urban ghettos and then acts out rituals of punishment
against them as some awful form of human sacrifice.

This situation raises a moral problem that we cannot
avoid.We cannot pretend that there are more important problems in our
society, or that this circumstance is the necessary solution to more
pressing problems--unless we also are prepared to say that we have
turned our backs on the ideal of equality for all citizens and
abandoned the principles of justice.

We ought to ask ourselves two questions: Just what manner of people
are we Americans? And in light of this, what are our obligations to
our fellow citizens--even those who break our laws?

To address these questions, we need to think about the evaluation of
our prison system as a problem in the theory of distributive
justice--not the purely procedural idea of ensuring equal treatment
before the law and thereafter letting the chips fall where they may,
but the rather more demanding ideal of substantive racial justice.

The goal is to bring about, through conventional social policy and
far-reaching institutional reforms, a situation in which the history
of racial oppression is no longer so evident in the disparate life
experiences of those who descend from slaves.

I suggest we approach that problem from the perspective of political
philosopher John Rawls' theory of justice: first, that we think about
justice from an "original position" behind a "veil of ignorance" that
obstructs from view our own situation, including our class, race,
gender, and talents.

We need to ask what rules we would pick if we seriously imagined that
we could turn out to be anyone in the society. Second, following
Rawls' "difference principle," we should permit inequalities only if
they work to improve the circumstances of the least advantaged members
of society.

But here, the object of moral inquiry is not the distribution among
individuals of wealth and income, but instead the distribution of a
negative good, punishment, among individuals and, importantly, racial
groups.

So put yourself in Rawls' original position and imagine that you could
occupy any rank in the social hierarchy.

Let me be more concrete: Imagine that you could be born a black
American male outcast shuffling between prison and the labor market on
his way to an early death to the chorus of nigger or criminal or dummy.

Suppose we had to stop thinking of us and them. What social rules
would we pick if we actually thought that they could be us?

I expect that we would still pick some set of punitive institutions to
contain bad behavior and protect society.

But wouldn't we pick arrangements that respected the humanity of each
individual and of those they are connected to through bonds of social
and psychic affiliation? If any one of us had a real chance of being
one of those faces looking up from the bottom of the well--of being the
least among us--then how would we talk publicly about those who break
our laws? What would we do with juveniles who go awry, who roam the
streets with guns and sometimes commit acts of violence?

What weight would we give to various elements in the
deterrence-retribution-incapacitation-rehabilitation calculus, if we
thought that calculus could end up being applied to our own children,
or to us? How would we apportion blame and affix responsibility for
the cultural and social pathologies evident in some quarters of our
society if we envisioned that we ourselves might well have been born
into the social margins where such pathology flourishes?

If we take these questions as seriously as we should, then we would, I
expect, reject a pure ethic of personal responsibility as the basis
for distributing punishment. Issues about responsibility are complex,
and involve a kind of division of labor--what Rawls called a "social
division of responsibility" between "citizens as a collective body"
and individuals. When we hold a person responsible for his or her
conduct--by establishing laws, investing in their enforcement, and
consigning some persons to prisons--we need also to think about whether
we have done our share to ensure that each person has a decent set of
opportunities for a good life. We need to ask whether we as a society
have fulfilled our collective responsibility to ensure fair conditions
for each person--for each life that might turn out to be our life.

We would, in short, recognize a kind of social responsibility, even
for the wrongful acts freely chosen by individuals. I am not arguing
that people commit crimes because they have no choices, and that in
this sense the "root causes" of crime are social; individuals always
have choices.

My point is that responsibility is a matter of ethics, not social
science. Society at large is implicated in an individual's choices
because we have acquiesced in--perhaps actively supported, through our
taxes and votes, words and deeds--social arrangements that work to our
benefit and his detriment, and that shape his consciousness and sense
of identity in such a way that the choices he makes, which we may
condemn, are nevertheless compelling to him--an entirely understandable
response to circumstance. Closed and bounded social structures, like
racially homogeneous urban ghettos, create contexts where
"pathological" and "dysfunctional" cultural forms emerge; but these
forms are neither intrinsic to the people caught in these structures
nor independent of the behavior of people who stand outside them.

Thus, a central reality of our time is the fact that there has opened
a wide racial gap in the acquisition of cognitive skills, the extent
of law-abidingness, the stability of family relations, the attachment
to the workforce, and the like. This disparity in human development is
rooted in political, economic, social, and cultural factors peculiar
to this society and reflective of its unlovely racial history.

It is a societal, not communal or personal, achievement.

At the level of the individual case we must, of course, act as if this
were not so. There could be no law, no civilization, without the
imputation to particular persons of responsibility for their wrongful
acts. But the sum of a million cases, each one rightly judged on its
merits to be individually fair, may nevertheless constitute a great
historic wrong.

The state does not only deal with individual cases.

It also makes policies in the aggregate, and the consequences of these
policies are more or less knowable.

Who can honestly say--who can look in the mirror and say with a
straight face--that we now have laws and policies that we would endorse
if we did not know our own situation and genuinely considered the
possibility that we might be the least advantaged?

Even if the current racial disparity in punishment in our country gave
evidence of no overt racial discrimination--and I view that as a wildly
optimistic supposition--it would still be true that powerful forces are
at work to perpetuate the consequences of a universally acknowledged
wrongful past. This is in the first instance a matter of
interpretation--of the narrative overlay that we impose upon the facts.

The tacit association in the American public's imagination of
"blackness" with "unworthiness" or "dangerousness" has obscured a
fundamental ethical point about responsibility, both collective and
individual, and promoted essentialist causal misattributions: When
observers are confronted by the facts of racially disparate
achievement, racially disproportionate crime rates, and racially
unequal school achievement, they will have difficulty identifying with
the plight of a group of people whom they (mistakenly) think are
simply "reaping what they have sown." Thus, the enormous racial
disparity in the imposition of social exclusion, civic
excommunication, and lifelong disgrace has come to seem legitimate,
even necessary.

We fail to see how our failures as a collective body are implicated in
this disparity.

We shift all the responsibility onto their shoulders, only by
irresponsibly--indeed, immorally--denying our own. And yet this entire
dynamic has its roots in past unjust acts that were perpetrated on the
basis of race.

Given our history, producing a racially defined nether caste through
the ostensibly neutral application of law should be profoundly
offensive to our ethical sensibilities, to the principles we proudly
assert as our own. Mass incarceration has now become a principal
vehicle for the reproduction of racial hierarchy in our society.

Our country's policy makers need to do something about it. And all of
us are ultimately responsible for making sure that they do.