Mass Incarceration: Are the Feds Charting a New Path?

Mass incarceration finally seems to have appeared on the federal government’s radar. Attorney General Eric Holder’s uncharacteristically passionate advocacy for the voting rights of people with felony convictions is the latest indication of a changing stance in Washington. “It is time to fundamentally reconsider laws that permanently disenfranchise people who are no longer under federal or state supervision,” Holder told a Georgetown University audience. His address in February 2014 highlighted the plight of 5.8 million Americans denied the right to vote because of their criminal record. The Georgetown address follows closely on President Obama’s granting of relief in December to 21 prisoners sentenced under racially biased crack cocaine laws. Holder himself issued a watershed critique of the War on Drugs in August 2013.

Congressional Action

In late January 2014, the Senate Judiciary Committee joined the fray, passing a Smart Sentencing Act, which would reduce existing mandatory minimums for federal drug charges and would facilitate the release of some 8,000 people, mostly African-Americans, still serving time for crack-cocaine offenses.

Yet even with these changes, Washington still lags far behind much of the country in implementing what activists call “decarceration.” Although 2013 was the fourth year in a row in which the number of people behind bars in the United States declined, the federal system continued an expansion that has increased its prisoner count by 54 percent from 2000 to 2012. While the feds continue to erect new facilities, New York, Michigan and even conservative states such as Texas, Georgia, North Carolina and Arkansas have closed prisons, shut down juvenile detention centers and channeled more money into programs to divert people from jail. New York has been the leading light in this process, shutting down seven prisons and even planning to repurpose the Bronx’s Fulton Correctional Facility into a re-entry center and “green business incubator.”

New Allies Emerge

In several states, these moves have been driven by what Soros Justice Fellow Tracy Huling calls a “newfound political will of state Governors, both Democrat and Republican, to close prisons and, in some cases, to reduce the overall size of their incarceration systems.” Ultra-conservative organizations like Right On Crime (ROC) have been key to this process. Co-founder Newt Gingrich summarized ROC’s core motivation: “There is an urgent need to address the astronomical growth in the prison population, with its huge costs in dollars and human potential.” Right on Crime has been particularly prominent in Texas under Gov. Rick Perry. In 2007, a state corrections plan projected that Texas would need an additional 17,000 prison beds at a cost of $1.6 billion. Republican State Senator and ROC member Jerry Madden sparked an about-face, stopping the growth of the nation’s biggest state prison system. Madden’s reforms allocated more funds for alternatives to incarceration and relaxed parole regimes. Supporters claimed the policy shift freed up 12,000 prison “beds.” Moreover, a broad-based coalition including the Texas ACLU, AFSCME Local 3807, and the conservative Texas Inmate Families Association foiled attempts to grow the state’s existing roll of more than a dozen privately owned prisons.

More recently, this across-the-aisle approach has found the ACLU working with the American Legislative Executive Council (ALEC), known for backing anti-immigrant legislation and pro-corporate measures. ALEC seems to have had an epiphany on criminal justice, largely spawned by a massive loss of corporate members and funding during the past two years. Most of these supporters exited the ALEC camp in the wake of the Trayvon Martin case, during which the council’s role in pushing “stand your ground laws” came to the surface. ALEC responded by abolishing its “tough on crime” Public Safety and Elections Task Force in 2012 and replacing it with a Justice Performance Project that has lobbied for eliminating mandatory minimum sentences.

How Far Has the Tide Turned?

Despite the potential power of such alliances, the tide is far from fully turned. First, in many cases, the balance sheets between closures and openings remain askew. For example, while Pennsylvania closed two prisons with a total capacity of 2,388 in 2013, it has a 4,000-bed facility at Skippack lined up at an estimated expense of $400 million. Similarly, California slashed its prison population by 10 percent in 2012, but many of these prisoners simply have been re-shuffled to do long stretches in the expanding county jails.

Also, there is more to assessing progress than simple examination of openings and closings. For example, the impact of mass incarceration on working-class communities of color still remains largely unaddressed. Although under the January omnibus spending bill, Congress did allocate $27 million for this purpose to the Justice Reinvestment Initiative, such an amount is unlikely to make a serious dent in the devastation caused by a carceral system that now consumes $70 billion annually.

Linked to such notions of reinvestment is the need for a shift in the ethos of criminal justice. Many of the current changes at all levels are prompted more by financial concerns than any desire to transform the punishment paradigm that has driven mass incarceration. However, healing the wounds of mass incarceration involves authorities actually accepting responsibility for a disastrous “tough on crime” policy that New Jim Crow author Michelle Alexander contends has become less about crime prevention than “the management and control of the dispossessed.” A start toward a new ethos would be to overturn still-extant harsh sentencing policies of the 1980s and ’90s such as three strikes, truth in sentencing and trying juveniles as adults. These remain on the books in nearly all states.

The Other Face of the Feds

Lastly, despite the changing rhetoric and a modicum of legislative action, the federal government itself remains an enormous obstacle to decarceration, particularly in the realm of immigration. ICE continues to expand deportations and build more detention centers. From 2001 to 2011, the number of people passing through ICE per year more than doubled. Existing laws that permit a sentence of up to 20 years for simple illegal entry (depending on a person’s criminal record) help ensure a steady flow of “clients” into these facilities. To compound the difficulties, private prison corporations have staked out immigration detention as their market niche. While the privates control only 8 percent of prison “beds” nationwide, they oversee about half of all immigration detainees. As a 2013 National Immigration Forum report,” The Math of Immigration Reform,” stated: “Billions of dollars could be saved if the government reduced its overreliance on detention and properly allocated resources towards more humane and effective alternative methods of monitoring.” There is still a long way to go.

88 More Years

In a recent piece in The Huffington Post, Marc Mauer, director of the Sentencing Project, estimated that at the present rate of decrease in the prison population it would take 88 years to achieve the carceral version of “back to the future”- the incarceration rates of 1980. With the United States still incarcerating at a per capita rate ten times that of Sweden and four times that of China, prison reform and abolition advocates still have a long wait to begin any celebrations. Perhaps the concern is, as Lois Ahrens, director of the Real Cost of Prisons Project, put it: A “little ‘progress’ takes on meaning disproportionate to what is actually happening.”