The Punishment Paradigm: Two New Books Take on Prison, Race and History

(Images: Harvard University Press, Russell Sage Foundation)(Images: Harvard University Press, Russell Sage Foundation)

A new literature on mass incarceration is emerging. Drawing on earlier works by Michelle Alexander, Ruthie Gilmore and Angela Davis, a fresh generation of scholars — largely people of color — is bringing forward new and deeper perspectives on this key freedom struggle of our time. Truthout has recently highlighted one of these volumes: Slaves of the State by Dennis Childs. Now we have two more wonderful additions to this body of work: Elizabeth Hinton’s From the War on Poverty to the War on Crime and Alexes Harris’ A Pound of Flesh.

(Image: Harvard University Press)(Image: Harvard University Press)Hinton’s book offers a vast panorama of the historical evolution of mass incarceration. While the narrative starts a little slowly, when she hits stride we see an archivist of vast talents driven by a powerful identification with the people directly impacted by the legislation and policies which she researches. Like Naomi Murakawa, Hinton rejects the notion that “tough on crime” was the sole province of Republicans. In particular she painstakingly demolishes any notion that Ronald Reagan laid the foundation of the carceral state. Hinton provides copious evidence of how liberal civil rights advocates like Kennedy and Johnson bought into a paradigm linking urban poverty to “social pathology” — the “problem” of Black youth.

As Hinton told Truthout, “long before violent crime actually came to low-income Black urban neighborhoods, and long before the launch of the war on drugs, federal policymakers and the social scientists they consulted decided that a generation of Black youth were criminal, or ‘potentially delinquent.'” This ideological influence meant that generations of presidential administrations, regardless of their party alignment, diluted their commitments to social welfare and civil rights by expanding the power of law enforcement. For example, as she explained to Truthout, during the Johnson administration, “policymakers supported the merger of crime control and anti-poverty programs as a means to exert greater social control in the lives of these ‘potentially delinquent’ urban youth.” In essence these were the early days of predictive policing, tracking Black youth into the law enforcement pipeline at a very young age. Ultimately her account virtually casts mass incarceration as an inevitability rather than aberration.

Hinton’s treatment of a number of issues is memorable. First, she properly assesses the importance of the Black urban uprisings of Watts, Detroit, Newark, etc. as turning points in mainstream consciousness concerning inequality and poverty. In making this argument she points to President Lyndon Johnson, the architect of the war on poverty and the driver behind the 1964 Economic Opportunity Act, which Hinton describes as the “most ambitious social welfare program in the history of the United States.” She particularly highlights the exemplary community action programs of the war on poverty, based on the democratic principle of “maximum feasible participation.”

Then came the urban rebellions and the abandonment of utopian idealism. The pendulum began to swing in a more repressive direction. Just one month after the Watts rebellion in 1965, Johnson signed the Law Enforcement Assistance Act (LEAA) officially kicking off the war on crime. The House had passed it 326-0. The process repeated itself in 1968 with the passage of the ultra-punitive Safe Streets Act less than one month after rebellions in 125 cities following the assassination of Martin Luther King. While the LEAA received relatively small funding allocations, Hinton labels the Safe Streets Act as the moment where resources flowed away from addressing the “roots of structural racism” and instead buttressed a repressive crime control strategy that “contained the seeds of the War on Poverty’s undoing.” Budgetary figures bear her out. By 1977 the budget for the LEAA had increased threefold.

While chronicling big picture legislation moves, Hinton also presents numerous subplots that capture the repressive flavor of the times. One of her bright moments is a detailed history of an often ignored episode in US policing — the formation of the highly militarized STRESS (Stop the Robberies, Enjoy Safe Streets) in Detroit in 1971. Funded by a grant from the LEAA, STRESS targeted low income Black neighborhoods identified as the “epicenter of deviance.” STRESS were pioneers in predictive policing, focusing on individuals in specific areas who fit the profile of “criminal.”

Hinton’s book constitutes the most comprehensive analysis of the historical roots of mass incarceration to date.

Often operating undercover and masquerading as potential crime victims, the roughly 200 members of STRESS created an unparalleled culture of racist police violence. In their first two years of operation they killed 18 civilians and suspects, 17 of whom were Black. They also cataloged more than 6,000 arrests. Finally after numerous public anti-STRESS demonstrations and the death of police officers at the hand of STRESS members, the force was disbanded in 1974. By that time even The New York Times was asking whether STRESS was inflicting a “reign of terror upon honest citizens of the black community.” Hinton’s inclusion of the story of STRESS in her volume further emphasizes the deep historical roots of the types of law enforcement practices that feed mass incarceration.

Another revelation in Hinton’s book is her presentation of the little mentioned 1970 Long Range Master Plan for the federal prison system. Ordered by President Nixon, the Department of Justice ultimately converted it into an 800-page manual for prison planners. The Master Plan contained the blueprints for the federal model of mass incarceration, complete with budget projections for new prison building and the creation of more than 100,000 new jobs in the corrections sector. Nixon’s attorney general, John Mitchell, who was soon to become famous for his “no-knock” tactics in rounding up suspects (especially political activists), labeled the Long Range Master Plan the “Magna Carta of prison reform.”

Hinton stresses that the imposition of repressive policing did not come without struggle. While Nixon was developing his grand plan, the antiwar movement and prison abolitionists were still attempting to forge a new reality. These efforts are reflected in one of the book’s most memorable quotes, from federal Judge James Doyle in 1972. Doyle proposed that the “institution of prison probably must end,” and went on to label prisons as “intolerable within the United States as was the institution of slavery, equally brutalizing to all involved, equally toxic to the social system, equally subversive of the brotherhood of men, even more costly by some standards and probably less rational.” Despite dissenters like Doyle, Nixon and the LEAA pushed ahead with the mapping of new prisons and offered tantalizing funding support to states that agreed to follow suit. The foundation for Reagan and Clinton to grow a prison industrial complex had been laid.

Reagan contributions were a dose of personal charisma and mobilizing the funding for prison expansion and militarized policing as well as developing the nuances of dog whistle politics to facilitate generating white voter support for his war on drugs and his political party.

Ultimately Hinton’s book constitutes the most comprehensive analysis of the historical roots of mass incarceration to date. Those wanting to deepen the understanding of this history that they may have gained from The New Jim Crow, the Golden Gulag and The First Civil Right would do well to seriously engage this wonderful work.

(Image: Russell Sage Foundation)(Image: Russell Sage Foundation)Alexes Harris’ A Pound of Flesh is a more narrowly focused, but equally important study. Her work addresses an issue that has gained rising attention since the federal report on criminal justice in Ferguson: the finances of local regimes of mass incarceration. While the Federal report seemingly outlined an extreme case of super-exploitation of the poor through citations, fines and fees, Harris’s research implies that Ferguson is more the rule than the exception.

The heart of this volume is an in-depth case study of the financial punishment regime in Washington State. Harris magnificently combines modern data collection technology with old-school-sociologist interviews and participant observation. Throughout her writing, the authenticity of her method percolates. She interviewed 50 people face-to-face, visited state legislators in their offices, judges in their chambers, clerks in their courts. She did field work in five of Washington’s 39 counties. Perhaps most impressively, she observed 85 sentencing hearings and 50 violation hearings. She saw the system at work and connected to those who drove it and suffered its consequences. Furthermore, while this is a case study, Harris is constantly aware of potential connections and implications for other jurisdictions, from municipalities to the federal government.

Not surprisingly, her research findings do not paint a pretty picture. Essentially she is framing what she calls monetary sanctions or Legal Financial Obligations (LFOs) as a major “method of social control that symbolically, physically and perpetually punishes the poor.” These sanctions come in three main forms. First there is restitution, the money paid to the victim of a crime. Next come fines associated with a specific crime. In many states every felony has a particular fine attached to it; in Washington State each felony convictions carries a $600 fine. Other states are far more punitive with Class A and B felonies in Arkansas carrying fines of up to $15,000 and Kansas authorities empowered to attach a fine of up to $500,000 to a level 1 drug crime. The third and most common form of sanctions take the form of court fees — charges linked to a supposed service provided by the court (e.g. court automation fee, jail booking fee, urine sample fee, jury fee).

Despite the alleged outlawing of debtors’ prisons in the 19th century, the practice is alive and well.

The expansion of monetary sanctions under mass incarceration has been remarkable. In 1991 Harris says that 25 percent of people behind bars in the US reported receiving a monetary sanction with their case. By 2004 the figure was 66 percent. All states use some form of monetary punishment with Pennsylvania topping the ranks of the punitive with 2,629 types of monetary sanctions. To make matters worse, some jurisdictions add a surcharge or collection charges to the fees. In Arizona in 2012, the surcharge on total monetary sanctions reached 83 percent. Hence a person who had fines and fees totaling $1,000 would ultimately have to repay $1,830. Many jurisdictions also add interest on unpaid debt. The scale of this debt is astronomical. In Alexander County in Washington State, with a population of just under 2 million, the courts opened 19,000 new monetary sanction accounts from 2007 to 20012. By 2014, the total amount owing was just over $740 million. The average arrear was $4,713.

The consequences of monetary sanctions are often monumental as well. In Harris’s view, LFOs “create prisoners of debt.” The range of punitive measures for failure to court debt is shocking. In more than half of the states, those with outstanding court debts have their voting rights curtailed, with 17 states banning all those who owe even a cent of criminal legal debt from voting. Forty-four states allow judges to incarcerate people who have not paid off court debts. More than 30 states allow that incarceration to be converted to community service.

Harris cites numerous cases of individuals who continue to pay a financial price for felony convictions. A 40-year-old African-American woman she calls Lisa had four felony convictions, mostly drug-related. At the time of her interview with Harris her court debt had grown to $60,000. Another woman, Vilma, had watched her court debts escalate through interest and surcharges from $33,000 to $72,000. Debt can have other long-term effects as well. In some courts, a person who pays off all their fines and fees within a year can qualify to have offenses effectively removed from their record, often called deferred prosecution or expungement. Those who don’t pay the debt must bear the penalty of a permanent blemish on their criminal record. Harris also noted that owing money sometimes blocked people from taking part in court-mandated treatment programs. The Catch-22 is that in some cases individuals must pay off their debt to be admitted to a program and failure to enter the program can lead to reincarceration. Furthermore, even the programs themselves frequently charge a fee — placing the individual in a perilous quandary about what debt to prioritize. In some counties, collection authorities have gone so far as to garnish wages and income tax returns to secure payment of LFOs.

Despite the zeal to impose fines and fees, a relatively small amount of debt is actually recovered. In her survey of five Washington counties, monthly payments from individuals typically hit the $5-$10 range. In 2014, Alexander County reported collecting 0.5 percent of debt owing, with the average annual per person repayment a mere $36.39. The money that is recovered often goes simply into funding the collection system rather than to crime victims or to cover actual court costs.

Perhaps Harris’s most important observation is a simple one: that despite the alleged outlawing of debtors’ prisons in the 19th century, the practice is alive and well. Authorities have shifted the discourse. Now repaying a debt to society is no longer simply about doing time behind bars, it has become a lifelong financial obligation — part of civic responsibility. In legal terms, courts and other judicial actors have simply recast failure to pay debt as a refusal to comply with court orders. Harris lists numerous cases where people claiming indigence as their reason for non-payment have been punished because they failed to seek work mowing lawns or collecting aluminum cans. She also cites the case of what one Washington county called its “auto-jail” policy, a practice that mandated a person report for jail on a specific day and time without having a hearing if they failed to make a monthly debt payment.

While monetary sanctions seem to be omnipresent, the harshness of both charges and collection regimes vary. The determinant factor, according to Harris is where a particular county sits on what she calls the “punishment continuum.” More liberal jurisdictions accept that many of those owing money to the courts are genuinely impoverished, cannot afford to pay their debts and should receive some sort of forgiveness. On the other hand, more conservative localities rest at the other end of the continuum. They argue that poor people make a decision not to repay their debts and must be threatened with further punishment if they fail to make their monthly payments. Nonetheless, regardless of where they sit on the continuum, virtually all jurisdictions are deeply immersed in levying monetary sanctions, collecting money and ultimately depend on this revenue for their system to function. Without taking their pound of flesh from the poor, the system would come crashing down.

While she spells out the system of monetary sanctions in great detail, Harris doesn’t dwell extensively on remedies. However, in an email interview with Truthout she offered a number of policies that could dilute the impact of monetary sanctions. Perhaps her most important proposal was quite ambitious: “States should eliminate all non-restitution fines, fees, surcharge, assessments, interest and collection charges in state superior criminal courts.” She also recommended, a change to existing policy so as to categorize all debt collection as a “civil matter” thereby making failure to pay not subject to punishment by warrants and incarceration.

Recognizing that many of these money sanctions involve state laws, Harris noted a number of ways in which local jurisdictions could override existing penalties until legislation can be changed. These include granting amnesty for certain categories of debt, elimination of money bail which often leads to deeper debt or unnecessary incarceration, implementing a “credit” system through which fines could be paid off through monetizing positive accomplishments like completing a GED or holding a job for a specified length of time. While all of these measures could bring some temporary relief, at the heart of the matter resides the fundamental philosophical issue — a criminal legal system founded on the need to punish those who do harm rather than find ways to reduce harm and provide opportunities for people who have been justice involved.

Hinton’s and Harris’ books remind us of how far down the punitive road we have come, how systemic mass incarceration and all its concomitant harm have become. In many ways these two volumes beg the “what if” question posed by Hinton in her final chapter: “One can only imagine what the United States might look like today had the bipartisan political consensus mobilized behind the principle of ‘maximum feasible participation’ that steered the War on Poverty’s community action programs with the same level and length of commitment as they gave to the War on Crime.”