To End Mass Incarceration, We Need to Bust the Myths That Prop It Up

One of the most pervasive myths about incarceration is that it makes a society safer. Now, a leading journalist who focuses on the criminal legal system has taken on that question in her new book.

Victoria Law is a prolific reporter who is perhaps best known for spending years in the trenches exploring the experiences of women in prison. Her work always centers the voices of impacted people, while maintaining a broad lens on mass incarceration and digging deep into a wider variety of issues related to prison and jails.

Having just released a joint book with Truthout editor Maya Schenwar in July of last year, Prison By Any Other Name, Law already has another book on offer. This new work, “Prisons Make Us Safer”: and 20 Other Myths About Mass Incarceration, is designed as a primer. While promoted as a rudimentary guide to the issue of mass incarceration, this volume provides both basic facts and figures while tackling some of the more complex carceral debates in an accessible way. With clear-cut analysis and a plethora of factual information, Law addresses issues like private prisons, the idea of releasing everyone convicted of a nonviolent offense, the perception that immigration has nothing to do with mass incarceration, and the notion that only cisgender Black men are incarcerated. I had the pleasure of interviewing her about the book for this article. She touched on all those issues and provided an especially rich analysis of why we need to pay so much more attention to women and transgender folks who are incarcerated.

James Kilgore: What inspired you to write this book, and how did you find the energy to do it after just having published Prison By Any Other Name?

Victoria Law: I see the two books as complementary. “Prisons Make Us Safer” is a primer for people just beginning to think about incarceration while Prison By Any Other Name is for readers who have already identified mass incarceration as a problem and are thinking about ways to shrink the prison population. That book is to warn against reforms that might seem like they decrease the numbers of people in physical jails and prisons, but actually expand similar systems of surveillance and control to homes, communities and other institutions.

I know you are a voracious reader, so I am wondering as you wrote this book, what authors or activists came into your mind as sources of inspiration for this work?

Angela Y. Davis has inspired all of my work. I’m also heavily influenced by the continued work of Beth Richie, Ruth Wilson Gilmore and Mariame Kaba, to name just a few amazing abolitionists who are organizing and documenting their work.

Aishah Shahidah Simmons’s Love WITH Accountability was pivotal to rethinking about safety from family violence, particularly child sexual abuse.

Leah Lakshmi Piepzna-Samarasinha has long highlighted responses to intimate partner violence in activist communities; her work, along with that of Mimi Kim of Creative Interventions and Ejeris Dixon, who started the Safe Neighborhoods Campaign in Brooklyn, illustrates initiatives happening right here and right now to building a world that doesn’t rely on prisons and punishment.

Your book is about myths that prop up and perpetuate mass incarceration. Can you tell us a bit more about these myths? How do they work? Are they like a Trumpian “Big Lie” or do they contain some kernels of truth?

One of the most widespread myths is that we need prisons to keep us safe(r). It’s a myth we’ve been fed since childhood from school seminars about safety, to crime shows and daily news hours. Every abolitionist has been asked, repeatedly, some variant of “How will we stay safe?” The U.S. has less than 5 percent of the world’s population and approximately 25 percent of its prison population. If prisons kept us safe, then the U.S. should be the safest nation in the world. That’s obviously not the case but it’s a persistent myth that tugs at people’s fears about violence and safety.

Some other myths acknowledge that prisons are problematic, but then blame the bloated prison populations on the private prison industry (which incarcerates approximately 8.5 percent of the nation’s prisoners and 73 percent of those detained by U.S. Immigration and Customs Enforcement) or private corporations that utilize prison labor. Some myths shift the onus of mass criminalization and incarceration away from systemic failures — such as endemic racism, poverty and cut-away social safety nets — to the individual.

These myths take reality — for example, that Black people are disproportionately targeted and incarcerated — and twist a distorted explanation — that they commit more crimes, not that the U.S. has a long history of racism that manifests today in current structural inequalities, including the systemic racism inherent in policing as well as the perpetual under-resourcing of communities of color.

These myths justify the continuation of mass incarceration as a catch-all solution to all of society’s problems. If we don’t debunk these myths, then we end up either continuing down the same path of perpetual punishment (without any real safety) or else fall for proposed reforms that don’t address root causes of problems or ensure safety.

Probably more than any other journalist, you have researched and written about gender issues in relation to mass incarceration, especially about the experience of women in prison and jail. How did that work inform how you tackled this book?

Women make up roughly 10 percent of the nation’s incarcerated population. Not only do women experience all the abuses facing incarcerated men, their gender allows the prison system — and a constellation of other institutions — to inflict additional injustices and violence on them. For instance, the majority of people in prison have children. When a father is imprisoned, he’s likely to have family members who will care for his children. He may not always see or hear from them, but he’s less likely to worry about losing them to foster care. When a mother is incarcerated, her children are five times more likely to end up in the foster care system. Until recently, however, navigating family court and custody issues were not considered prison issues because it wasn’t an issue that affected the majority (incarcerated fathers).

Similarly, including the experiences of trans women (who are often confined in men’s facilities) highlights the transphobic violence inherent in incarceration. Trans people experience all the violence and harassment that cisgender people do; but they also face additional forms of discrimination, harassment and violence based on their gender identities.

By centering women (both cisgender and trans women), I include experiences that might otherwise not be thought of as prison issues but illustrate the insidious ways that mass incarceration devastates not only individual lives, but also families and communities. Centering women’s experiences also pushes readers to think about how gender and gender identity complicate some of the myths about safety, fear and imprisonment.

You devote considerable attention to the myths that surround domestic violence, both in terms of those who do harm and those who are harmed. Why do you think the myths surrounding these issues are so important?

Among people incarcerated in women’s prisons, past abuse — family violence, sexual violence and/or domestic violence — is so prevalent we now have a term for it: the abuse-to-prison pipeline. Until recently, this was a largely ignored pathway. For instance, there’s some anecdotal evidence that many women imprisoned for the death of their partner or ex-partner had experienced sustained abuse from that partner. But there’s no government data on what percentage of women incarcerated for murder or manslaughter had been abused by the person they killed. That’s in large part because of the way our adversarial criminal legal system works — a prosecutor’s job is to convict (or wring a guilty plea from a defendant), not to examine the underlying causes for why harm or violence happened.

It’s only because of the sustained efforts of advocates, including currently and formerly incarcerated abuse survivors, that we’re starting to see this pathway recognized — and legislative efforts being made to provide consideration for the role domestic violence might play. But it’s been a long and slow slog. New York passed the Domestic Violence Survivors Justice Act in 2019. The law allows a judge to consider the role of abuse in the crime when sentencing an abuse survivor and mete out a less harsh sentence than the state sentencing guidelines recommend. The law also allows survivors to apply for resentencing if abuse was a significant factor. But it took advocates nearly 10 years to convince lawmakers to pass this bill.

Even today, if a survivor brings up domestic violence in court, prosecutors (and often judges) dismiss these claims. We saw this last year, at the start of the pandemic, when Tracy McCarter, a Black nurse, was arrested and held for six months awaiting arraignment for the death of her estranged husband. At the start of the pandemic — when nurses were badly needed in New York City’s hospitals, and Rikers Island, the city’s island-jail complex, was a hot spot of infection — prosecutors opposed allowing McCarter to be released pending trial. The district attorney’s office could have looked at McCarter’s statements about the abuse she had suffered — as well as her estranged husband’s past acts of violence — and taken that abuse into consideration both in arguing against her release and, six months later, deciding whether to charge her with murder (which carries a higher sentence), manslaughter, a lesser charge, or no charge at all. But that’s not the way that our criminal legal system works — there’s little incentive for an assistant district attorney to believe a defendant’s claims of abuse, let alone decrease the severity of the charges or drop them altogether.

You offer both restorative justice and transformative justice as vehicles for addressing the harm and violence that our society typically responds to with punishment and incarceration (or even the death penalty). Can you briefly summarize the difference between the two and why you see them as so central to the elimination of mass incarceration and the creation of a different type of society than what racial capitalism has to offer?

Restorative justice is a process centering the needs of the survivor rather than simply seeking to punish the person who caused harm. The process also includes people who have been indirectly affected, such as family members and other loved ones. This typically involves a facilitated meeting in which survivors are able to talk about the long-lasting effects of the harm caused and what they need to begin healing, including actions the harm-doer(s) can take. The harm-doer is encouraged to take responsibility for their actions and work to repair the harm. In our existing court system, the person accused of harm is encouraged to deny, downplay and dismiss the consequences of their actions.

Transformative justice centers the needs of the survivor while also working to transform the conditions that enabled the harm. It also doesn’t rely on policing, imprisonment or other types of punishment.

Here’s an example. Let’s say that I, a small Chinese woman, am walking down the street and am attacked by a man yelling anti-Asian slurs. I hit him with the meat cleaver I have in my purse.

In a restorative justice process, we would (eventually) have a facilitated meeting in which I talk about the effects of the harm he has done to me — I’m now more concerned about being attacked because of my ethnicity, my gender and my size, and feel anxious every time I have to leave my house. I want to know why he’s targeting Asians and help figure out what needs to happen to decrease the chances that he’ll do so again. What resources are available to help him ensure that he won’t do so? And what do I need to feel restored to my previous sense of safety?

In a transformative justice process, we would go deeper to examine the conditions that encouraged this attack. This includes all of what I said above, but we would also identify — and try to change — conditions that led to this harm in the first place. This would involve asking why he is attacking Asians: is it because he’s bought the Trumpian Kool-Aid that Asians are responsible for COVID? Does he have mental health issues that are entangled in racism — and if so, how do we transform that? Also, what are the conditions that have made me fearful enough to carry a meat cleaver in my purse?

Under the current system, we’d both be arrested, jailed and no one would ask, “What are the conditions that need to be changed?” Racists would continue to attack Asians; some of us would fight back, but the root causes would remain unaddressed.

Please note that this is a hypothetical example. While the threat of anti-Asian violence is ever-present these days, I do not carry either a meat cleaver or purse when I go out.