Smoke and Mirrors: Essential Questions About “Prison Reform“

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. By asking hard questions about the content and consequences of various proposals and exploring ways in which commitments to unregulated free markets, privatization and states’ rights drive the agenda, Smoke and Mirrors shows how this new generation of reforms will reinforce structural racism, intensify economic violence and contribute to the normalization of a surveillance society.

We are bombarded daily with a blizzard of often competing numbers and narratives regarding the state of criminal injustice. Are prison populations declining? Have we really “decreased incarceration” and expanded “diversion”? Have racial disparities in criminal justice decreased? Are they no longer relevant? Have police practices reduced incarceration rates? Are “community” correctional alternatives working?

And we’re hearing that we’ve entered a new era of “bipartisan prison reform.” But don’t celebrate just yet. There is a “reform” agenda, to be sure. What are the elements of that reform? Is this push for “reform” attributable to progressive people power, the result of a genuine and deepening public consensus that race-based policing and mass incarceration must stop? Or is it due to the emergence, several years ago, of Right on Crime the self-described “one-stop source for conservative ideas on criminal justice” – a project of the Texas Public Policy Foundation ? (The TPPF is a conservative research institute in Austin, Texas that is “committed to limited government, free markets, private property rights, individual liberty and personal responsibility.”)

Do these reforms hold out real hope for substantive structural change that, over time, will shift the United States from a carceral nation to a socially and economically just society?

Often the stories told about and the promises implied by “bipartisan reform,” shed more heat than light.

Or to use another metaphor, what you’re hearing about reform is often a matter of Smoke and Mirrors.

Going Deeper Inside the Seductive Promises of Prison Reform

It is vitally important for those of us who have been fighting the prison-industrial complex (PIC) – and the brutalities foundational to it – to inquire more deeply into the reform measures being offered and the data that seem to tell us the nation is actually stumbling toward unity on dismantling mass incarceration.

Are we? Or will many of these reforms simply shift prison-based social control, particularly of Black, Native, and Latino/a communities to a more widespread and varied (but still profit-producing) network of “community corrections?” Who’s calling the shots on what will happen and how it will happen? Have community members, activists, and advocates thought carefully about possible unintended consequences of reforms that may be quickly embraced with too little scrutiny and analysis?

For some time, Criminal InJustice has raised critical questions about the reality of both policy claims and the legitimacy of so-called reforms. What follows is a series of such questions designed to help us all further navigate what may be, in some measure, a shell game, a package of proposals that are, in some measure, deceptively marketed. Each of these areas of inquiry – and others that will arise along the way – deserves more thoughtful attention, and we will be addressing them over time. But for now, we offer a road map and a flashlight.

If the promised reforms really are substantive and implemented in ways that demonstrate integrity – and if they are actually intended to help dismantle a policing/prosecution/incarceration emphasis in the criminal legal system – then politicians and policy advocates will be able to fully and transparently respond to the questions we pose here, as well as new ones that will arise along the way.

Unpack the Numbers

News reports often contain a flurry of statistics, but what they are measuring, what lies beneath, and how they might be correlated makes all the difference. The Devil is always in the Details..

• Are prison populations actually falling? Where? Is this state or federal data or a combination of both ? Changes in a few states in aggregate reporting can create a misleading effect – for example, 70% of the 2012 prison population decline was due to California alone. State populations in aggregate have declined slightly, while Federal prison numbers continue to grow. Take a close look.

• What is said to be declining — prison populations or correctional populations? Recent reports have blurred the two. Correctional populations include everyone under the legal supervisor –prison, probation, and parole. The most recent BJS Report on this indicate a decline — 83% of which was due to a decline in probationers.

• Are racial disparities really shrinking? The answer depends, of course, on how race is measured (see below). It is also important to note than any real declines in Black or Latino/a adult or juvenile prisoners still would not change the glaring disproportionality compared to whites which still runs about 5 to 1 and 2 to 1 respectively. This is true for juveniles as well.

• Which incarcerated populations are reflected in data on mass incarceration? Which are excluded? Do the numbers include those who are in immigrant detention? Incarcerated in tribal jails on American Indian reservations, juvenile detention centers, military prisons, and other custodial facilities? Don’t forget that detention of immigrants is a growth industry that is seldom reflected in reports of “declines.” Don’t assume everyone is being counted.

• Beware simplistic explanations for prison or correctional population declines. Especially question claims that specific police or criminal justice policies are singularly driving these. We have already seen claims that “broken windows” policing practices are responsible for low New York incarceration rates and the evidence suggests that they are not: “Nothing could be farther from reality.There is no reliable evidence showing that “broken windows” has reduced correctional populations or brought down crime. There is however, a vast body of evidence showing that “broken windows” has ravaged certain New York neighborhoods—namely those with high concentrations of poor people and people of color.” (See How New York City Really Reduced Mass Incarceration).

• Look out for “spurious ” correlations that claim because X and Y are happening at around the same time, they must be linked in some sort of causal relationship. Hardly ever. The most ludicrous recent example of this is the claim that decreases in lead emissions are the cause of declining crime/incarceration. Explanations of crime, arrest and incarceration rates involve multiple variables, both individual and structural, including public policy shifts. This is the sort of reductionist pap that gets sociologists to recall Dan White’s claim that a junk food diet led to the murder of Harvey Milk and Mayor George Moscone. We call it “The Twinkie Defense.” And then laugh. So should you.

Update: Since this column originally appeared, Prison Policy Initiative has published the most comprehensive data on mass incarceration that exists to date. It presents a much more dynamic picture and nuanced analysis than other sources. Various PPI reports can be found here. Of special interest is PPI’s Mass Incarceration: The Whole Pie, a sobering look at everyone who’s behind bars in the United States.

Follow The Prisoners/Former Prisoners

What’s happening to the people who are purportedly being released/diverted from incarceration? Some of the reductions being reported are pretty dramatic – in juvenile detention, for example. This is astonishing, given the 1980s–1990s rush by states to enact laws making it much easier to try juveniles as adults. Whether the reductions being reported are for juvenile or adult incarceration, we need to ask some hard questions.

• Can any part of the change be accounted for by demographic changes? For example, at 24%, the proportion of residents who are 18 and under is at an all-time low, according to the Population Reference Bureau. It was 25.6% in 1990. Twenty-three states and Washington, D.C., lost 10% or more of their child populations just in the last decade. Other demographic changes should also be taken into account.

• Where are these juveniles who are no longer detained by the juvenile justice system actually at? Home? In what types of community-based programs? Adult system?? Are the declines in detention attributable largely to reductions in long – term detention or do they reflect an increased effort to release youth prior to adjudication? The answer matters. A lot.

• Check out the ALEC-promoted “swift, certain, and proportionate” (PDF) for addressing parole and probation violations. How will this data be tallied and reported so that we may track purported decarceration over time? Will decarceration become a permanent part of the civic landscape, in the sense that our society dramatically reduces those under any type of correctional control? Are we really turning to transformative justice alternatives? Or are we dealing with carceral “sleight of hand?”

• “Drug courts” and other correctional “net-widening” alternatives are being promoted as true “alternatives to incarceration.” But too often, they ensnare in the criminal legal system people who otherwise would not be prosecuted at all. How can we track the patterns of adjudication to drug court, based on severity of offenses charged?

• What’s happening to prisoners transferred to other institutions because of facility closures or state prison population reductions (See California and Louisiana). How many are being sent to county jails or private correctional centers in other locales? How is this being reported so that we can publicly monitor these closures/transfers?

• How will purported “decarceration” measures affect prison-based gerrymandering?

• How do states plan to link these “prison reduction” measures to re-enfranchisement of prisoners whose vote has been taken away? How do states and the federal government propose to remove/dismantle other “collateral consequences” of incarceration for released persons with felony conviction? These include denying access to post-secondary education, public housing, and various other social benefits. “Collateral consequences” might also include fines, fees, and other assessments that impose almost impossible financial obstacles to successful re-integration into community life

• What types of “re-entry “programs are available? What type of programming and social supports (such as health care, education and job training, and affordable housing) are offered? How do we separate “myths” from meaningful efforts? How are “success” and “recidivism” measured? What is the track record of private contractors now gaining a larger share of the “re-entry market?” Are policy makers and advocates learning from scandals and corruption that already have been uncovered?
  

The “Color-Blind” & “Overcriminalization” Scams

It’s twisted magic! While structural racism in policing, prosecution, and incarceration remains a systemic problem that has existed, literally, since the time of colonization of this continent, it is implied that “prison reform” will take care of this pesky problem. “Overcriminalization” of particular communities will vanish, over time, in response to various policy reforms. Lift an eyebrow and ask more questions.

• Why don’t most of the foundations and advocacy organizations participating in the “prison reform” public relations blitz talk specifically about the “overcriminalization” of people of color, particularly Black, Latino/a, and American Indian/Indigenous communities? Why don’t they make clear recommendations regarding the racially-biased enforcement of “race neutral” laws and law enforcement policies, ranging from “stop and frisk” to “gang” laws and policies, in and out of prison? Why isn’t structural/systemic racism explicitly named as the major contributor to mass incarceration? Where are the solutions that address larger societal contributors, such as poverty, segregation, defunded public educational institutions, racial profiling and more?

• How is race being measured and reported? Are Latino/as classified as white or not white? Are more and more respondents collapsed into broad, less revealing racial categories? How are mixed-race people counted? Is race counted at all? Is the measurement and reporting of race used to create the illusion that racism matters less? Because that’s not only relevant to BJS and Census figures. States are free to count any damn way they want, even if they’re supposed to follow a formula. That’s voluntary; it’s often not mandated.

• Is it implied that particular reforms, such as reducing mandatory minimums for minor drug offenses will reduce the larger problem of structural racism in the criminal legal system without addressing that racism directly and comprehensively? Why aren’t current calls for sentencing reform advocating for the abolition of all mandatory minimums?

• Right on Crime has announced its opposition to “overcriminalization”. But look closely, and they mean “the overcriminalization” of businesses and corporations. They want to remove corporations from any possible criminal charged and punishments. “Free market” forces, including fines, which are often reduced or dodged, are considered sufficient to address massive corporate abuses. There’s nothing in there about the overcriminalization of people of color and poor people. Nothing in there about immigrants. Nothing in there about women, transgender people, and queers. In your state, are they talking about “overcriminalization?” What do they really mean? And have race and class – at the intersections of gender, gender identity, sexuality, and citizenship status – been magically disappeared from the discussion?

Community Safety

First, we were told that “get tough” was essential for community safety. Now we’re told it isn’t – sort of. It’s complicated. Actually, it still is necessary, in the eyes of the Right and neoliberals, but only in ways that aren’t centered in the “prison reform” discussions. Forget dealing with structural problems like race-based law enforcement, poverty, widening gaps between rich and poor, a crisis in health care – including mental health care – for poor people, crumbling public school infrastructure, and lack of good living wage jobs with benefits. Advocates just shout “community safety!” to sell reform without actually investing in things that would create safety for poor people and people of color as well. But while they’re shouting, let’s inquire more deeply.

• Whose safety are we talking about, and whose are we continuing to sacrifice?

• As “prison reform” is sold with a “community safety” guarantee, how much of this guarantee is more “get tough” in the form of cops in schools, permitting teachers and others to freely carry concealed weapons in all public and private spaces, and similar measures? What about the proliferation of “stop-and-frisk” police practices? Will private security guards still be able to wield life-and-death force with relative impunity?

• How much of the community safety discussion revolves around ensuring solid social services and human needs programs – ranging from greater investment in public (not charter or private) schools? Excellent community-based mental health programs and substance abuse treatment centers? Other health care programs? Jobs programs? Housing and food assistance programs?

• Are these initiatives actually challenging and dismantling the school-to-prison pipeline, or are they reinforcing it? What is the racial impact of school disciplinary policies, school-based policing, and the like? What is the impact of giving school-based police officers the discretionary power to determine which student infractions should be handled through school disciplinary procedures and which should go into the criminal legal system? How are demonstrable patterns of race-based policing likely to influence this discretionary authority?

• Amid the clamoring for increased gun control and “safe” schools and communities, who will be protected and who will be policed? What have we learned from past legislation and its’ uneven enforcement?

Follow The Money

The central argument used to promote “prison reform” is the high and unsustainable level of state spending on prisons and corrections. The implication is that money saved will go to “better uses.” Let’s ask about those “better uses”.

• Where will the “money saved” go? Will it go to help mitigate/dismantle the prison pipeline by reverting to human needs spending for education, housing, health care, and jobs programs? Don’t assume it will go anyplace that liberals and progressives really care about.

• What diversionary options are available? What is the influence of private for- profit agendas here? How much of this money will flow to private companies that increasingly contract with governments and schools to provide surveillance, monitoring, and control technologies?

• Is legal accountability less for private “community corrections” programs? Are private corrections initiatives permitted to circumvent non-discrimination/fair treatment statutes and policies? What’s the track record of holding private prison profiteers accountable for neglect and human and civil rights abuses?

• Where state laws purport to make it illegal to profit from community-based corrections, take a closer look, as in New Jersey. (See Con Artists, Profit and Community Corrections). Nonprofit organizations can be shell institutions created for the sole purpose of funneling money to profit-making individuals and companies via the ever-popular “subcontracting” route.

• How much public taxpayer money is already being used to subsidize for-profit entities through Social Innovation Financing in the “delivery” of community correctional programs for both juveniles and adults? What is really the bottom-line – client “success” or profit? How will the purported “savings” from these programs be invested – in communities or in the private sector?

• Take a look at new proposals to rely heavily on surveillance technology, ultimately replacing face to face parole/probation relationships between offenders and public officials with house arrest/tracking technologies. What companies are profiting from this? Who pays the costs of these technologies and services? More and more, those costs are being shifted to adjudicated individuals and their families. Is this part of the carceral “sleight of hand” that purports to “lower costs?” For whom? Who profits from such arrangements? How do these costs affect a person’s possibility of successful community re-entry? Is any prison-based labor used to produce this profit-making technology? What is the relationship of companies that expect to profit from “community corrections” to production of war/military technologies?

• While the Right pursues union-busting measures across the board, how is the Right dealing with police and correctional employees’ unions? Is it using the “reform” agenda to buttress or bust them? How does the Left address the pro-incarceration advocacy of correctional officers’ unions? What are these unions saying with regard to proposed reforms? What is the larger union movement saying?

• How many community corrections programs will be faith-based? What faith-based organizations receive subcontracts? Any patterns here, in terms of denominations, faith traditions, and political perspectives of these organizations? Will people of all faiths and spiritual traditions, or those who are agnostic and atheist, have equal access to all services and opportunities? Will private companies be permitted to openly discriminate against particular groups – LGBTQ people, Muslims, and American Indians for example?

• Which local/state/federal officials and politicians have economic/political ties to community corrections interests?

• Where does the right-leaning, corporate-funded American Legislative Exchange Council (ALEC) stand in these discussions? (Hint: It’s using “overcriminalization” as a way to deconstruct “big government” and further privatize corrections. It’s somewhat akin to a “charter school” strategy to privatize public education).

What Will Happen To and In the Remaining Prisons?

As we talk about “community corrections” reform, we should be asking what the future will be of prisons that remain – and what will be the fate of women, men, and youth incarcerated in them? We at Criminal Injustice are concerned that a civic storyline may emerge that goes something like this: “The problem of mass incarceration’s been taken care of. The remaining prisons will hold only truly violent people – the worst of the worse. We don’t have to care about them.” And CI is also concerned that these facilities – probably overcrowded – will continue the horrific torture of extended solitary confinement. But with “reforms” in place, there will be even less media concern about this form of torture, and the perception will be reinforced that the remaining people in prison deserve whatever brutality they experience. The overwhelming majority will continue to be people of color and poor people, because structural racism and economic violence is foundational to the criminal legal system in the United States.

• Will anyone care about inmates who are left or the conditions they face , so long as strained-to-bursting state corrections budgets are relieved?

• Will the remaining inmates be increasingly housed in privatized prisons which are largely free of accountability, transparency, or constitutional reach?

• Will those invested in prisons as a source of employment opportunities continue to push for the expansion of the use of solitary confinement in order to insure a stable number of correctional officers? In those few places governments are placing some restrictions on who can be placed in solitary confinement and for how long, what oversight and accountability mechanisms are in place? How are the families of prisoners placed in solitary confinement permitted to monitor conditions and prisoner well being?

Conclusion

We know some will say that we are too cynical, that we are sacrificing the good for the perfect. But cynicism is the wrong word, and we are not holding out for some impossible idea of perfection.

We have worked tirelessly for important reforms – but always within a framework that challenges the race-and-class-based nature of the U.S. criminal legal system and that serves to dismantle processes of criminalization that harm so many at the intersections of race, class, gender, gender identity, sexuality, disability, and citizenship status. And we have learned, again and again, that just embracing generic reforms without asking how they are likely to play out on those communities that have always been presumptively criminalized is a fool’s game.

We remember how, in the 1970s, liberal/left advocacy for reform of indeterminate sentencing, which led to much abuse, transmuted into mandatory minimums, three strikes laws, so-called “truth in sentencing” laws and other “get tough measures.” The same measures the Right initiated and moderates and liberals quickly embraced decades ago. We are well aware of ways in which popularly-embraced “hate crime” laws produced unintended harmful consequences that only intensified the policing at the intersections of race, class, gender, and sexuality.

Now, while organizations challenging the prison industrial complex, with its foundational racism and economic violence, have been working tirelessly, often with great vision, for reform, most of the policy proposals coming up in state legislatures are produced by or echo ALEC and Right on Crime measures. Large nonprofit foundations have urged liberals to collaborate with the Right in “unlikely allies”. Do we really believe that ALEC and Right on Crime – which is now supported by many of the very people who drove “tough on crime” and mass incarceration have become champions of racial and economic justice?

We simply think, based on past experience, that it’s unwise to uncritically embrace the new stories touting “bipartisan” reform and its ostensible successes. We need to be asking questions that aren’t being openly asked. We need to be challenging the large justice foundations to care about these questions. We need to be asking about “stealth” agendas that may be tucked into organizational funding, advocacy, and legislation that aren’t part of the broader public discussion. We need to be challenging journalists to ask these questions. And we need to be organizing in our own states to influence the outcome of reform in truly progressive ways.

So we remain, as always, watchful and wary.