Prop 47, Immigration Reform and More: The Contradictory Road of “Reforming” Mass Incarceration

Part of the Series

The Road to Abolition

Mass incarceration has been streaking to new levels on the information radar. The New York Times has begun to tackle it from every angle – public health, juvenile justice, jail reform and higher education. Earlier this month, an article by Stephen Lurie in the Atlantic offered an impassioned, if somewhat absurd plea to President Obama as “the only man who can fix mass incarceration.”

We even have a new information platform, The Marshall Project, with an enormous team of high-powered journalists writing about nothing else. Headed up by former New York Times editor, Bill Keller, The Project aims to bring “transparency to the systemic problems that plague our courts and prisons . . . (and) help stimulate a national conversation about how best to reform our system of crime and punishment.”

With all this information, figuring out what is important and what is rehashed trivia becomes more challenging than ever. Even when we stumble on critical events, frequently a media world driven by the need to go viral leaves out the complexity. With so much happening, what really matters?

Apart from the monumental happenings in Ferguson (which surprisingly few people have linked to mass incarceration), at least three unrelated recent events highlight the changing and complex terrain on this issue: the passage of Proposition 47 in California in the November 4th elections, the immigration policy shifts announced by President Obama on November 20 and the little acknowledged release of a report by the Pew Center on the States predicting future prison population trends. While emerging from varied quarters, each of these reflects both the moves toward decarceration and the resilience of the law and order voice in the process of change.

Proposition 47: Popular Backing for Decarceration

California voters passed Proposition 47, also known as the Safe Neighborhoods and Schools Act, by a 60 percent – 40 percent margin. According to supporters, the measure will free some 10,000 prisoners from the country’s second largest state prison system and cut back on tens of thousands of felony prosecutions.

Proponents from across the political spectrum raised more than $7 million, including huge donations from foundations controlled by liberal activist George Soros and conservative Christian businessman B. Wayne Hughes. Ultra-conservatives Newt Gingrich and Rand Paul also made public statements supporting the initiative, while traditional law and order supporters like the state prison guards union took no position.

On the surface, the proposition adopted a straightforward, technical approach, focusing on lifting some legal thresholds for felonies. The proposition upped the dollar value dividing line between felony and misdemeanor theft and fraud from $500 to $950, while taking similar steps to increase the minimum ounces of drug possession to qualify for a felony. The felony/misdemeanor division is crucial because in most instances, a felony warrants a state prison sentence of at least a year, whereas misdemeanors result in shorter county jail sentence time or even probation. According to supporters, people in prison under felony convictions, which Proposition 47 has reclassified as misdemeanors, would be eligible to apply for immediate release.

The New York Times depicted Proposition 47 as a model for “states around the country looking for smart and safe ways to unravel America’s four-decade incarceration binge.” The Times highlighted the unique approach of putting such an issue on the ballot as well as the unusual step of getting voters to actually vote in favor of an initiative that would release people from prison. These are clearly signs of some turning tides.

As Emily Harris, statewide organizer for Californians United for a Responsible Budget (CURB) put it, “The passage of Prop 47 is yet another clear signal that the majority of Californians want an end to mass incarceration and an increase in spending on social programs.” Lynne Lyman, California state director for the Drug Policy Alliance echoed Harris’s sentiments, “With Prop. 47, California voters took the issue of smart justice into their own hands. If the people lead, the leaders will follow.”

However, in an interview with Justice Not Jails, Harris noted that in addition to potentially releasing people from prison, Prop. 47 also contained less acknowledged components that could fuel further incarceration.

The estimated $150-$250 million the state would save through the prison releases would be channeled into a fund largely managed by the Board of State and Community Corrections (BSCC), a body that has recently directed hundreds of millions into prison and jail construction in conjunction with Governor Jerry Brown’s controversial policy of realignment.

While, ostensibly, the savings from Proposition 47 are intended to support efforts to curb truancy as well as provide backing for substance abuse and mental health treatment to keep people out of prison, Harris has her doubts. “It’s really a strong concern for us that the money could end up meaning there’s some more cops in schools or the building of more jail space.”

Pete Woiwode of the California Partnership, a statewide coalition of antipoverty organizations, shared some of Harris’ worries. “The battle now is to make sure that those services stay in the community and are not just another excuse to build more jails. If the BSCC allows these resources to end up in the hands of the sheriffs, they’ll be violating the will of the voters and pushing poor people towards jail, instead of the services they need.”

Patrisse Cullors-Brignac, director of Dignity and Power Now called on “everyone who voted for this measure to . . . make sure that the school allocation money will fund counselors, restorative justice practices and social workers and not school police, surveillance cameras or high-power weapons as we’ve seen here in the past, especially here in LA.”

President Obama’s Immigration Policy

The immigration measures announced by President Obama on November 20 struck a similar chord of conciliation to that embodied in Proposition 47. While most observers don’t readily connect mass incarceration with immigration, in the past decade or so, immigration detention and criminal prosecution of immigrants has been one of the fastest-growing sectors of the prison-industrial complex.

In 2013, more than half of all federal prosecutions were for immigration-related offenses. Nearly all the roughly 400,000 people who are deported every year spend some time in an immigration detention center. These centers have become the key growth sector for private prison companies, which manage more than 40 percent of those in immigration detention. In addition to upping immigration detention, the Obama administration has intensified criminal prosecutions for immigration law violations. Authorities can charge a person who has a previous conviction for illegal entry with a criminal offense and sentence them to two years in prison.

A person who has a previous non-illegal entry felony conviction, such as a drug-related offense, can get up to 20 years in a federal facility simply for crossing the border illegally. To accommodate these prisoners, the federal government has constructed a series of 13 Criminal Alien Prisons, which hold up to 25,000 people. These are also predominantly owned by the two major private prison corporations, the Corrections Corporation of America and the GEO Group.

All told, this heightening of immigrant prosecution has contributed to an enormous escalation of those classified as “Hispanic” in state and federal prisons. While the absolute numbers of blacks and whites has remained relatively constant since 2000, the numbers of Hispanics has increased by more than 50 percent.

In theory, Obama’s immigration plan should substantially reduce the number of prosecutions and deportations for immigration. Particularly important is the scrapping of Secure Communities, a measure that mandated local authorities to cooperate extensively with federal immigration authorities. Secure Communities became a major source of tracking undocumented people, often leading to the deportation of those guilty of nothing more than a traffic offense. Even Homeland Security Secretary Jeh Johnson had soured on Secure Communities, stating that it had “become a symbol for general hostility toward the enforcement of our immigration laws.” Nearly 300 municipalities agreed, largely under pressure from immigrants’ rights activists, and had opted to formally reduce their cooperation with Secure Communities.

However, as with Proposition 47, the real life implications of Obama’s plan for incarceration numbers remain uncertain. The package also comes with stepped up border enforcement and increased Border Patrol. According to Detention Watch Network (DWN), the new policy will not impact the 34,000 bed quota for immigration detention cells, so those numbers may not fall. Silky Shah, Director of DWN, further noted that the “executive action will do nothing to protect both documented and undocumented immigrants with criminal convictions who have already paid their debt to society, and will instead intensify the dragnet in order to earn political points and maintain the corrupt and arbitrary quota.”

While content with the thrust of the president’s new direction to focus on deportation only of those with criminal convictions, Mark Fleming, legal coordinator for the National Immigrant Justice Center, noted that a culture of focusing on deportations has become institutionalized in ICE, with officers’ pay even linked to the number of deportations procured. He argued that how they change the culture among ICE agents may be “more important than the exact details” of the program. Whether the successor to Secure Communities, the Priority Enforcement Program, will embody that cultural change remains to be seen.

Pew Center Report on Prison Population Trends

A third event drew far less attention but offers considerable cause for reflection on the state of mass incarceration: the release of a Pew Center on the States report based on a survey of prison population projections in 34 states. The Pew Center, which has been an important advocate of the need to build across-the-aisle alliances on criminal justice reform and a generally optimistic voice for reform, revealed that 28 of the 34 states projected increases in state prison populations between now and 2018.

These states account for 70 percent of the nation’s prison population. Iowa led the way with a projected 16 percent hike, while Alaska and Wyoming also projected double digit growth. Just six states foresaw declines: Hawaii, Louisiana, Massachusetts, North Carolina, Oregon and Pennsylvania. The figures were based on projects by state corrections officials.

These projections take us to the heart of the problematic notion of treating mass incarceration as just a numbers game. After more than three decades of steadily escalating prison populations, the national figure fell from 2010-2012, only to record a slight increase in 2013. The contradictory trends are perplexing.

Ultimately, however, projecting prison populations is a political, rather than a statistical act. Most officials make such predictions by extrapolating past patterns of one or more of three variables: growth in the incarcerated population, growth in the overall population or in crime levels. None of these allows for active intervention by the state to reduce incarceration or fund alternatives. Corrections officials have a clear-cut interest in supporting the assumption that mass incarceration will continue virtually unabated. Mass incarceration has treated them well. Politically, projected growth provides a basis for corrections officials to keep fighting for budgets and resource allocations that reflect these projections.

So while politicians may make noises and even pass laws that ease enforcement of some crimes, without a conscious plan to close prisons, cap populations, and build alternative programs that keep people out of prison, the system will continue to tick over, allocating funds according to projected needs.

The projections also highlight the problem with looking at national incarceration figures without disaggregating them by state or region. The nation’s four largest state prison systems, along with the federal system, hold about a third of the incarcerated population. As Judy Greene, director of Justice Strategies, told Truthout, “the declines between 2010 and 2012 . . . were almost entirely due to policy-driven declines in three big states with unusually large prison populations, California, New York and Texas.”

During that period, the nation’s prison population decreased by about 41,000, with roughly 38,000 of that decline coming from those three states. While these reductions, except in the case of New York, may be less substantive than the figures indicate, they have had a major impact on the national prison populations. At the same time, 23 states recorded prison population increases from 2010 to 2012. The population trends remain contradictory, a clear sign that things are different from the 1990s and early 2000s, but still not a definitive turning of the tide.

Mass incarceration has landed on the political agenda at both the national and local levels. But sometimes separating real change from rhetoric and contradictory processes, depicted as “much-needed reforms,” poses major challenges. Moreover, at times, liberal observers and certain nonprofits may have an emotional or financial stake in presenting a picture far rosier – or more dismal – than reality.

The complexities of measures like Proposition 47 and Obama’s immigration policy changes remind us that to advance the struggle against mass incarceration further, the growth of a social movement capable of unpacking those complexities and mobilizing people into action remains the key to transformation of the criminal justice system.