The Myth of “Bipartisan Criminal Justice Reform”: Mississippi Close-Up

Smoke and Mirrors is a new series that dives into the details of “bipartisan prison reform” to reveal the right-wing, neoliberal carceral sleight of hand that’s really at work. It asks hard questions about the content and consequences of various proposals and explores ways in which commitments to unregulated free markets, privatization and states’ rights drive the agenda for a new generation of reforms that will reinforce structural racism, intensify economic violence and contribute to the normalization of a surveillance society.

“The American experiment in mass incarceration has been a moral, legal, social, and economic disaster. It cannot end soon enough.” ~ “End Mass Incarceration Now”, The Editorial Board, New York Times, May 24, 2014

Yes. Agreed. The numbers are staggering, The United States has 5% of the world’s population and 25% of the world’s prisoners. We hold, according to Prison Policy Initiative, the U.S. holds ” more than 2.4 million people in 1,719 state prisons, 102 federal prisons, 2,259 juvenile correctional facilities, 3,283 local jails, and 79 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories.” The racial gulfs are glaring; “Blacks are incarcerated five times more than Whites are, and Hispanics are nearly twice as likely to be incarcerated as Whites.” The economic costs – astronomical, more than $80 billion on direct correctional expenditures alone, with total costs (including police, legal and court services) approaching a quarter of a trillion dollars. The social costs? Immeasurable. As Maya Schenwar observes, “prison inflicts mass violence.”

“The American Experiment in mass incarceration… cannot end soon enough.”

Increasingly, many also agree, as there are widening calls for “criminal justice reform.” Often, as in the aforementioned New York Times Op-Ed, these reforms are described as “bipartisan.” But are they? And what does this “reform” really look like?

As noted in this series, many calls for “bipartisan criminal justice reform” are thinly masked appeals for right-wing driven policies that seem “reasonable” in the short run, but in the end make the prison industrial complex even more entrenched with new avenues for profiteering, a rejection of federal Civil Rights protections via an extreme states’ rights agenda, and new color-blind policies that magnify the structural racism that lies at the root.

The reality of the “Right on Crime” agenda is most simply more privatization. Privatization ensures that any possibility for public accountability vanishes. Further privatization of criminal justice, coupled with a rejection of federal oversight, serves to pave the way for expanded privatization of other public programs such as Medicaid, Medicare, Social Security, education, food and nutrition assistance, and more. Expect more of this in the upcoming months and years ahead.

Case in point: Let’s consider this CNN segment that aired immediately following the Right on Crime Leadership Summit of May 2014.

On the surface, all this “joint outrage” may seem “reasonable” and warranted. But pay careful attention to the rhetoric, which at once both obfuscates and reveals.

Notice that the two problem states singled by Gingrich are the Deep Blue states of New York and California – and that is no accident. While their particular incarceration challenges, especially with regard to overcrowding, have been in the news, both states actually incarcerate at a rate below the U.S. average of 716 people for every 100,000 residents. The U. S. leaders — in fact, world leaders in imprisonment – are overwhelmingly Deep Red States such as Louisiana, Mississippi, Oklahoma, Georgia and Texas who imprison at a rate of over 1,100 per 100, 000 residents. (See Prison Policy Initiatives’ Breaking Down Mass Incarceration in the 2010 Census: State-by-State Incarceration Rates by Race/Ethnicity for a detailed look at all 50 states). Ironically as we shall see, these states are often touted by Right on Crime as models of smart on crime reform. This, despite having barely dented their exceedingly high incarceration rates.

Notice too that Gingrich misleads by suggesting the money is spent to keep inmates “hired,” as if we are paying prisoners $168,000 per yer. But the money isn’t spent this way – this figure is the per capita cost of incarceration for jails in New York City. The choice of this exorbitant outlier as the talking point is also misleading. Yes, the costs of incarceration are too high, but on average, the annual average taxpayer cost is $31,286 per inmate. New York State is the most expensive, with an average cost of $60,000 per prison inmate. The high costs of New York City’s jail system – yes, $168,000 per year – is an anomaly, with expenditures driven by long delays for inmates awaiting court appearances and/or trials, a wait time that averages 90 days and can extend for years.

Gingrich certainly isn’t proposing that we use any money saved to send inmates to Yale or seek meaningful efforts to reduce the structural conditions that contribute to incarceration. Nor in the specific example of Rikers Island, where 40% of the population faces mental health issues, is he addressing the lack of funding for meaningful mental health services. No, he is complaining about money “wasted on prisoners.” In fact, his primary concern – as well as that of his colleagues on the Right – is “wasteful government spending” and so-called “public safety.” No surprises here.

Additional obfuscation is created by Democrat Du Jour™ Van Jones. Jones is justified in his condemnation of the exploding California prison system and Governor Brown’s “doubling down” in his refusal to follow U.S. Supreme Court orders to decarcerate. (Since this interview aired, California voters have passed Proposition 47: The Safe Neighborhood and Schools Act of 2014, which reclassifies several drug and property crimes as misdemeanors and promises to reduce the state prison populations. Questions remain about implementation, the role of private contractors, and exactly what the educational funds will be spent on. More on this to come in future editions of Smoke and Mirrors). Despite the warranted outrage over the state of affairs in the “Golden Gulag,” Jones is sadly mistaken if he thinks Mississippi’s “prison reform” is to be lauded as an example of a leader in efforts to reduce mass incarceration. Instead of doing his homework, he bought wholesale the Right on Crime talking points.

“Forward -leaning and progressive”? “Smarter”?

To the contrary. “Reform” no longer means what we might hope it does.

Mississippi: “Prison Reform” or Privatized Horror?

Mississippi is second only to Louisiana in incarceration rates, and locks up more people per capita than China and Russia combined. More than 20,000 inmates are imprisoned in the state, including more than 2,500 held at the Adams County Correctional Center, a Corrections Corporation of American facility that contracts with the Federal Bureau of Prisons to hold immigration detainees. The state spends $389 million annually on corrections, with taxpayer dollars flowing mostly to private corporations that manage both prisons and community corrections.

The much vaunted “progressive” “bipartisan” reform, House Bill 585, was signed into law by Governor Bryant on March 31. 2014. It is heralded as “a comprehensive criminal justice reform package that protects public safety, reigns in corrections costs and restores clarity to Mississippi’s criminal sentencing guidelines.” It is explicitly described as Right On Crime legislation that is supported by ALEC and developed in consultation with PEW Charitable Trusts.

The legislation will focuses on expensive prison beds on serious and career offenders while strengthening community supervision and other sanctions for less serious offenders. It also provides a uniform definition of “crime of violence” for the first time ever and requires offenders convicted of a violent crimes to serve at least 50 percent of the sentence imposed by the court. It also creates targeted drug offense and property crime penalties that require tougher sentencing for serious offenders.

In addition, the legislation:

• Restores certainty and clarity to Mississippi’s sentencing system by establishing minimum percentages of sentences that inmates must serve before becoming eligible for release;
• Expands judicial discretion to impose research-proven alternatives to incarceration;
• Creates statewide standards for drug courts and establishes a veterans’ court system and;
• Ensures the quality and sustainability of the reforms by creating an oversight council and requiring the tracking of outcomes.

Sound familiar? It should. This is Right on Crime boilerplate rhetoric for widening the net of criminal justice control, and hence, the opportunities for private profiteering. The result is the potential for expanding webs of corruption. Just last week, State Corrections Commissioner Chris Epps and Rankin County School Board President Cecil McCrory resigned as they faced a 49 count Federal indictment. McCrory was the owner of the now-defunct G.T. Enterprises, which provided prison commissary and canteen services through a no-bid contract with the Mississippi Department of Corrections. The charges include money laundering, federal program fraud or the acceptance of gifts by a public agent from someone intending to be rewarded with a business transaction. The indictment alleges that the Commissioner received “more than $1 million in bribes and kickbacks over the last eight years in exchange for hundreds of millions of dollars in prison contracts.” McCrory is accused of bribing Epps and making millions from sweetheart contracts and consulting fees.

In many respects, the correctional system in Mississippi, like Louisiana, seems barely distinguishable from the postbellum era network of private profit and public interests reflected in convict lease and prison farms. In addition to the aforementioned collusion and corruption, these systems are designed, not just to profit from prisoners, but to racialize imprisonment as slavery by another name. House Bill 585 in no way attempts to address the related and intended racial disparity. Mississippi incarcerates Blacks at 3.5 times the rate of whites; African Americans account for 37 percent of the state’s population, but 61.4 percent of its prisoners. Nor is this about stopping the flow of mostly Black youth into the criminal legal system via school to prison pipelines such as the one now subject to Federal intervention in the Merdian School District.

House Bill 585 is decidedly not about decarceration — the focus is on reducing an estimated future increase in prison beds, not on the release of current inmates or undoing the state’s harsh three-strikes legislation which includes life for even three non-violent crimes. Nor is the law designed to address either the legal limbo in which inmates may linger for years without indictment or counsel, or the barbaric conditions produced by prison privatization. Five of Mississippi’s eight correctional facilities are privatized, including Walnut Grove Youth Correctional Facility – deemed to be one of the Ten Worst Prisons in America – where, amongst other atrocities, youthful inmates were forced to exchange sex for food. East Mississippi Correctional Facility (EMCF), which houses severely mentally ill prisoners, is also privately managed by MTC, and is rife with horrific abuses. The ACLU and the Southern Poverty Law Center are seeking class-action certification for a federal lawsuit, Dockery v. Epps, filed against the Mississippi Department of Corrections on behalf of the inmates at EMCF.

Critics suggest that House Bill 585 may actually increase incarceration costs and rates. In a classic bait and switch, legislation that purports to save money through “reform” may actually increase both prison and community corrections expenditures (and yes, opportunities for private profit) by stiffened drug penalties, expanded definitions of “violent crime” to now include burglary (long classified under the federal Uniform Crime Reports as a property offense), and cost shifting to cities and counties. In the Prison Reform Bill’s Effectiveness Questioned, the Mississippi Chapter of the NAACP notes this (the emphasis is mine):

House Bill 585 increases drug-trafficking penalties for anyone convicted of having at least a kilogram of marijuana with 10 to 40 years in prison. State law originally prosecuted people with a kilogram or more of marijuana for possession of an illegal substance. The bill also increases the minimum amount of prison-time required of individuals convicted of violent crimes to 50-percent of their sentences, and those convicted of nonviolent offense to serve 25-percent of their sentences…

HB 585 classifies all house burglaries as a violent crime, whether or not the occupant is even at home. Critics complain that the new designation would increase the occurrence of “habitual-lifers,” since it appears to eliminate earned time opportunities and denies drug treatment options to a class of offenders who could most benefit…

Local officials in retail-heavy areas also claimed that HB 585 allowed state legislators to dump costs down to local governments. Rankin County Sheriff Bryan Bailey told reporters in March that the increase in the dollar amount required for a crime to qualify as a felony under HB 585 would put prosecution costs directly upon the municipalities and county courts, which often handle misdemeanor cases.

In addition, the new legislation widens the pool of clients now subject to Mississippi’s already privatized probation system, described as a system of extortion for poor defendants who face jail time for the most minor infractions over failure to pay fees. (Smoke and Mirrors will further explore the privatization of community corrections in the next installment). Mississippi is one of the states indicted in a recent Human Rights Watch Report (HRW 2014), Profiting from Probation: America’s Offender Funded Probation Program (pdf):

Every year, US courts sentence several hundred thousand misdemeanor offenders to probation overseen by private companies that charge their fees directly to the probationers. Often, the poorest people wind up paying the most in fees over time, in what amounts to a discriminatory penalty. And when they can’t pay, companies can and do secure their arrest…

In some cases, courts sentence offenders to probation because they think they require supervision and monitoring. But in many cases, people are sentenced to probation purely so that courts can task their probation companies with monitoring an offender’s efforts to pay down fines and court costs over time. These offenders would not be on probation at all if they could afford to pay these costs immediately and in full at the time of their sentencing.

Many are guilty only of minor traffic violations like driving without proof of insurance or seatbelt violations. While these offenses often carry no real threat of jail time in and of themselves, a probationer who fails to keep up with payments on their fines, court costs, and company fees can be locked up… [For example,] The Mississippi Delta town of Greenwood, an impoverished community of 15,000, had more than 1,200 people on probation with the private firm Judicial Corrections Services as of August 2013. Many were guilty only of traffic offenses. The town’s municipal judge told Human Rights Watch that “maybe one or two” of those had warrants out for their arrest. The real figure was close to 300.

So No. Mississippi is not our Model of Criminal Justice Reform. Nor are the 32 other states wound up in the Right on Crime Agenda. When presented with sound bytes lauding “bipartisan criminal justice reform,” please dig deeper. Please ask critical questions, please look twice, and please read between the lines.

If it sounds too good to be true, it is.

In the spirit of cooptation that has characterized right wing efforts towards “criminal justice reform,” let’s close with their very own War on Drugs rhetoric, with the words that heralded the start of the mass incarceration madness the Right invented:

Just Say No.