What a strange moment we’re in… Prison ‘reform’ is in vogue.
Last week, Buzzfeed published an article citing “bipartisan optimism” about prison reform. This weekend, the New York Times editorialized that out of this dysfunctional Congress “there may come one promising and unexpected achievement: the first major reforms to America’s broken criminal justice system in a generation.” On Monday, it was USA Today’s turn to deliver the ‘good news’ of reform. It appears then that folks in the Beltway and in the media are currently optimistic about criminal legal reform. The optimism has also spread to states like Louisiana, New York and Texas.
“…federal prosecutors already have the discretion to do what Mr. Holder is directing them to do. The trick will be getting them to do it. In other words, actually reducing the number of people subject to outdated and overly harsh mandatory minimums is totally dependent on prosecutors following Mr. Holder’s lead.”
Marijuana legalization for adults is proceeding in Colorado and Washington, with more states considering doing the same. Yet with every action, there is a reaction and last week the House of Representatives passed a bill “to force President Barack Obama to crack down on states that have legalized marijuana in any form.”
Nevertheless, the excitement is palpable about conservative organizations like “Right on Crime.” Since such groups are now willing to publicly criticize the criminal legal system as fiscally unsustainable, some hope that a window for decarceration is open. Books have been published this year suggesting that the era of the “punishment imperative” has ended (in fact that it actually ended in the early 2000s). Several words have been repeated in articles, conferences, media and legislatures across the country: fiscal responsibility, discretion, disproportionate minority contact, mass incarceration and reform.
As someone who has devoted years of her life to the work of first reforming and then later abolishing prisons, one might think that I would be excited about recent developments. In fact, my natural skepticism is now at its peak mainly because I am a student of history. The prison itself was born out of a reform movement and since its inception in the U.S. in the late 18th century, we have been tinkering towards imperfection. With every successive call for ‘reform,’ the prison has remained stubbornly brutal, violent and inhumane. A report titled “Struggle for Justice” published in 1971 put it this way:
“More judges and more ‘experts’ for the courts, improved educational and therapeutic programs in penal institutions, more and better trained personnel at higher salaries, preventive surveillance of predelinquent children, greater use of probation, careful classification of inmates, preventive detention through indeterminate sentences, small ‘cottage’ institutions, halfway houses, removal of broad classes of criminals (such as juveniles) from criminal and ‘nonpunitive’ processes, the use of lay personnel in treatment – all this paraphernalia of the ‘new’ criminology appears over and over in nineteenth-century reformist literature.”
There isn’t a prescription suggested in the quote above that is not currently being proposed by someone somewhere in America as a necessary ingredient of prison reform. It is as it ever was. While reformers have co-existed with the prison, so too have abolitionists (in some form or another). The authors of “Struggle for Justice” called for prison abolition in the early 70s and warned against reforms that were mainly changes in semantics: “Call them ‘community treatment centers’ or what you will, if human beings are involuntarily confined in them, they are prisons.”
Unfortunately, I fear that we are currently living through an era of label changing and semantics switching. My friends Dr. Nancy Heitzeg and Kay Whitlock have cautioned against the smoke and mirrors of reform. They offer a set of critical questions that we should be asking as we organize for and read about new ‘reforms.’ I take their warnings to heart.
Some people have asked if, as an abolitionist, I am conflicted about engaging in prison reform efforts. My answer is always no. Jessica Mitford (1973) quotes a prisoner who encapsulates my philosophy. She asked him if he believed that prisons should be abolished or reformed and whether these were antithetical goals. He wrote back:
“Sure, prisons should be abolished. But don’t let up on reform. If I’ve got cancer, don’t wait for the definitive cure to be discovered before treating me.”
Still not all ‘reforms’ are desirable or salutary. In the Foreward to a wonderful new book called “The Struggle Within: Prisons, Political Prisoners, and Mass Movements in the United States, Dr. Ruthie Gilmore, scholar-activist and prison abolitionist, distinguishes between “reformist reform” and “nonreformist reform.” She defines reformist reform as “tweak[ing] Armageddon” and nonreformist reform as “deliberate change that does not create more obstacles in the larger struggle.” That larger struggle is prison abolition which she describes as “a movement to end systemic violence, including the interpersonal vulnerabilities and displacements that keep the system going.”
In other words, a test of whether a reform is worth pursuing depends on if it is strengthening and reinforcing the prison or if it is helping to ultimately dismantle it. To my mind, calls to increase prison funding are reformist reforms that only serve to perpetuate & grow prison bureaucracy. Building new jails and prisons to house “special populations” or to alleviate overcrowding are also reformist reforms. Nonreformist reforms, to me, must necessarily DECREASE the number of people locked in cages. As Jessica Mitford (1973) has written: “If the starting point is that prisons are intrinsically evil and should be abolished, then the first principle of reform should be to have as few people as possible confined, for as short a time as possible.” This seems deceptively simple and common-sense. Yet ask yourself how many current proposed reforms take this idea as their central starting point.
In a recent conference call organized by the Drug Policy Alliance, lawyer & author Michelle Alexander worried that current reform efforts may not succeed in uprooting oppression:
“We see politicians across the spectrum raising concerns for the first time in 40 years about the size of our prison state,” said Alexander, “and yet I worry that so much of the dialogue is driven by financial concerns rather than genuine concern for the communities that have been most impacted and the families that have been destroyed” by aggressive anti-drug policies.
Unless “we have a real conversation” about the magnitude of the damage caused by the drug war, “we’re going to find ourselves, years from now, either having a slightly downsized system of mass incarceration that continues to hum along pretty well,” she said, “or some new system of racial and social control will have emerged again, because we have not learned the core lesson that our history is trying to teach us.”
And here, Alexander begins to get at the root of my skepticism about current ‘reform’ efforts. While budget concerns seem to be galvanizing politicians to action and the public is less concerned about ‘crime,’ what hasn’t changed is the need in this country to control and manage redundant populations. What hasn’t changed is that black bodies (in particular) are the ones still considered disposable and redundant. Based on the current state of the country’s economy, this imperative seems more salient and important than ever. Critics will argue that the small but steady decreases that we have seen over the past 3 or 4 years in the prison population have disproportionately redounded to incarcerated black people’s benefit. This is true though the decreases are by no means dramatic and the disproportionality of who is locked up remains skewed against black people. What hasn’t changed is the perception that black children are more suspicious and less innocent. What hasn’t changed is the logic of anti-blackness and the perception of black people as less than human.
How can a country that is congenitally unable to honestly discuss racism (particularly anti-black racism) supposed to eradicate it? And what about capitalism? What’s our plan for replacing it? How about our ever-expanding surveillance state? What new ways of racialized and other surveillance will we be subjected in the future?
The authors of “Struggle for Justice” remarked on the “impossibility of achieving more than superficial reformation of our criminal justice system without a radical change in our values and a drastic restructuring of our social and economic institutions…” Similarly, Dr. Gilmore admonishes that “the goal [of prison abolition] is to change how we interact with each other and the planet by putting people before profits, welfare before warfare, and life over death.”
Absent the large scale, cross-sectional movement-building needed in order to uproot the oppressions that both give rise to the PIC and hold it in place, I’m afraid that this latest round of proposed prison reforms will only be another version of tinkering towards imperfection.
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