The prison population has indeed fallen, and crime rates are still down. But while the crime that politicians exploited to create mass incarceration has plummeted, the number of prisoners locked up in the name of public safety has only budged.
Mass incarceration, in short, remains a durable monstrosity.
As of 2015, an estimated 2,173,800 Americans were behind bars — 1,526,800 in prison and 728,200 in jails — according to recently released data from the Bureau of Justice Statistics. That’s 16,400 fewer people in jail and 35,500 fewer prisoners than in 2014 — a 2.3 percent decline and, for prisoners, the largest single-year drop since 1978.
But even as the US becomes a much safer country, it still incarcerates its citizens at much higher rates than most any other on earth. To put things in perspective, our prison archipelago today confines a population similar in size to the city of Houston or the borough of Queens.
At the dawn of mass incarceration in 1980, the US’s already-quite-large prison population was estimated at 329,821. To return to that number, the governments would have to replicate the recent 35,500-prisoner reduction for roughly thirty-four years in a row. That’s a very long time to wait for the poor communities — particularly but not exclusively brown and black ones — that mass incarceration devastates.
The criminal justice reform movement has stopped losing. But it hasn’t really started to win.
Forty percent of the prison population decline between 2014 and 2015 is a result of a drop-off at the federal level, according to BJS. That’s thanks to policies pursued by the Obama Administration that are, to put it mildly, unlikely to be embraced by his successor. Meanwhile, the number of prisoners in state prisons declined by 21,400 — a drop in an ocean given the 1,351,752 locked up from California to Louisiana. (The vast majority of prisoners are held by states, not the federal government.)
What’s more, just six states accounted for roughly 70 percent of that decline. California led the pack with a reduction of 6,500 inmates — the upshot, in part, of an adverse Supreme Court ruling that prompted the authorities to stop locking up some low-level offenders and outsource the incarceration of others to local jails, and a ballot measure reducing penalties for certain drug and property offenders. Reformers have touted conservative Texas, which shed 2,100 inmates, as a model. But Texas still suffers from a sky-high incarceration rate — more than four times higher than Maine’s.
It’s entirely possible, then, that much of the recent decline can be ascribed to idiosyncratic factors in a small number of states and Obama-era reforms. If that’s the case, then we aren’t observing the early days of mass incarceration’s demise but instead the American carceral state stabilizing at a slightly smaller scale.
In recent years, it seemed like America might be shaking off the histrionics and reactionary political machinery that for decades had marched the country toward mass incarceration. Conservatives preaching fiscal austerity and Christian redemption came to believe that the war on crime had locked up too many people at too high a cost to taxpayers. Longtime liberal critics, armed with foundation funding and savvy research, backed reform legislation in Congress that received bipartisan support. Black Lives Matter made the system’s abuses a central feature of the Democratic primary and kept policing controversies in the headlines, roiling city politics from Chicago to New York.
And they achieved some victories. Congress downgraded draconian, racially disproportionate federal drug sentences that punished crack cocaine dealers far more severely than those trafficking in white powder. Thousands of federal drug offenders were released early. President Obama, after receiving a torrent of justly deserved criticism, finally made use of his powers and commuted the sentences of more people than his eleven immediate predecessors combined. States legalized marijuana.
The judiciary has begun to interpret the Eighth Amendment ban on cruel and unusual punishment in a more expansive fashion, taking aim at the death penalty for rape, mandatory life without parole sentences for juveniles, and, in the case of California, prison overcrowding. In Chicago and other cities, voters elected district attorneys who ran on reform — a key strategy to rein in mass incarceration at its front door.
This has all been well and good. But America’s recent tilt to reform appears to be reaching its limit in the contemporary political order.
Today, reform legislation in Congress, even after being weakened to please anti-crime hardliners, is limping if not dead. State-level reforms haven’t moved beyond the low-hanging fruit of nonviolent offenders because helping violent offenders (who make up the majority of state prisoners) is still seen as political suicide. This week, Senator Jeff Sessions, an unreconstructed “law-and-order” warrior, will seek confirmation as attorney general.
In other words, we now face a vicious reaction without having experienced much in the way of real progress. It’s not so much a backlash as a cartoon-esque triumph of the political tactics that have marred US politics since Richard Nixon.
Mass incarceration arose for many reasons. One of the key ones, however, was to manage the poor as the New Right and neoliberal Democrats torpedoed the New Deal social contract and politicians of various stripes presided over the segregation and marginalization of black people in the wake of the Great Migration. Mass incarceration is how the United States dealt with social ills like drug abuse and violence without confronting their socioeconomic context. It’s now become a basic feature of how the American workfare state disciplines and controls its economic — and by no means exclusively black — refuse.
So it won’t end on its own. It won’t be felled by a fiscal crisis, or by a pragmatic, technocratic, and anti-political approach touting evidence-based methods.
“The obsessive pursuit of short-term goals in penal policy in service to budget deficit concerns crowded out more ambitious goals,” political scientist Marie Gottschalk writes. And “judging each penal reform by putting it on the evidence-based, cost-benefit scales to determine whether it lowers crime while saving public money reinforced the tight linkage in the public mind between punishment and crime.”
Even in the face of substantive reforms — the product of the tireless efforts of activists — mass incarceration persists. While incarceration rates for black people and city dwellers are falling, they are rising for whites and those in many rural and suburban areas. Immigrant detention and imprisonment, well before Trump ran for office, was skyrocketing.
An evil of such severity, operating at such a massive scale and so embedded in American society, politics, and economics will require a movement of equal strength to defeat it and the system upon which this extreme punitiveness thrives. We haven’t built that movement yet.