Oct 23, 2015 Angela Harris
The recent cascade of highly-publicized murders of American black men and women by police and by white “domestic terrorists” has brought into public debate one of the most spectacular forms of American anti-black racism. Ruth Wilson Gilmore defines this racism as “the state-sanctioned or extralegal production and exploitation of group-differentiated vulnerability to premature death.” Michael Brown’s body—killed by police in Ferguson, Missouri in August 2014 and subsequently left on the street for hours—has come to literally embody American contempt for black life.
But Ferguson also exposed a less lethal manifestation of American racism: the reliance of strapped-for-cash municipalities on fines and fees imposed on the poor through the criminal justice system. In her article, Misdemeanor Criminalization, Alexandra Natapoff warns us that one attempt to scale back mass incarceration may, paradoxically, expand racism in this subtle but insidious form. Turning felonies such as drug crimes into misdemeanors, she argues, expands the potential for American cities and counties to make money off poor people—with disturbing implications both for people of color and for the nature of criminal justice.
Natapoff begins her argument by distinguishing “decriminalization” from outright “legalization.” She observes:
Commentators on the left and right, the ABA, the NACDL, and numerous scholars have called for decriminalizing minor offenses as a solution to a wide array of systemic problems. This consensus is fueled in part by a special legal feature of misdemeanors: minor offenses that carry no possibility of jailtime do not trigger the Sixth Amendment right to counsel. Accordingly, eliminating incarceration for misdemeanors looks like a kind of win-win: it relieves defendants of the threat of imprisonment while saving the state millions of dollars in defense, prosecution, and jail costs. Motivated by persistent fiscal crises, many states have accordingly been experimenting with the decriminalization of various crimes, most prominently marijuana possession but also driving on a suspended license, traffic and other regulatory offenses. (P. 1058.)
Yet, though the scaling-back of what academics have taken to calling the “carceral state” is a welcome shift away from the recent, seemingly unstoppable push for building more and more prisons and lengthening sentences that so plagued American politics and society, Natapoff reminds us that reducing felonies to misdemeanors does nothing to disrupt the power of police to harass, abuse, beat up, or even kill suspects on the street, or “the usual panoply of burdens [incident to this power,] including arrest, probation and fines, criminal records and collateral consequences.” (Pp. 1058-1059.) Even civil infractions that cannot serve as the basis for arrest may “derail a defendant’s employment, education, and immigration status, while the failure to pay fines can lead to contempt citations and incarceration.” (P. 1059.) And, Natapoff emphasizes, precisely because they are not technically crimes, infractions “can be imposed on offenders quickly, informally, and without counsel, so that the standard procedural safeguards against wrongful conviction and overpunishment are lessened if not eliminated altogether.” (P. 1059.)
This leads Natapoff to a larger point: if it takes hold in a big way, this sort of decriminalization may signal an incorporation of the carceral state by the poverty-industry state. Misdemeanors and civil infractions are cheaper for government to enforce than felonies, making possible a classic “net-widening” effect, “extending the informal consequences of a citation or conviction deep into offenders’ social and economic lives.” (P. 1059.) Combine net-widening with the continuing crisis of chronically underfunded government services, and state and local agencies may come to lean ever more heavily on the fines and fees they collect from small-time criminal offenders. As the Washington Post recently explained, “some of the towns in St. Louis County can derive 40 percent or more of their annual revenue from the petty fines and fees collected by their municipal courts.” Natapoff notes that such policies in effect serve as a regressive tax—and that nothing in this dynamic is colorblind.
Nor, in the end, would replacing mass incarceration with widespread “black taxes” even necessarily scale back the moralism that has long infused American criminal justice. In an important new ethnography, Nicole Van Cleve of Temple University explores the workings of the Cook County, Chicago criminal courts. Her research details a widespread hostility and disdain expressed by judges, prosecutors, and defense attorneys alike toward so-called “mopes:” the low-level offenders, overwhelmingly poor and black or brown, who fill the court system and receive assembly-line treatment. Van Cleve argues powerfully that “mope” is a racialized slur, mobilizing moral disgust for poor people who have made “bad choices” and do not deserve to be treated with dignity. Increased reliance on decriminalization has the potential to produce ever more mopes, substituting for the stereotype of the violent black brute the stereotype of the shiftless, dependent, morally dissolute black loser.
Natopoff’s article, the fourth in a series exploring the role of misdemeanors in the American criminal justice system, sounds an important warning. As the killings of black men and women continue to shock the nation, it is important not to seize upon partial solutions like decriminalization that merely, in Reva Siegel’s words, accomplish “preservation through transformation.” “Black lives matter” means more than the right to bare life. It also means the right to a life with dignity, and governance that protects rather than preys upon the poor.
Oct 7, 2015 Margareth Etienne
With the recent national attention given to concerns about mass incarceration, lengthy prison sentences and atrocious prison conditions, it appears that we have entered a wave of prison reform—once again. But perhaps we believe it to be different in kind or degree from the sort of reformist movements we have had in the past. We might believe that today’s areas of focus—overcrowding due to three-strikes laws, concerns about the treatment of juvenile offenders, the roles of race, ethnicity, poverty and mental health as factors in determining prison demographics, the prevalence of sexual assault and violence in prions, the defunding of rehabilitation and re-entry programs—are new or unique. In Coxsackie: The Life and Death of Prison Reform, historian Joseph F. Spillane exposes the cyclical nature of prison reform debates along with a close examination of the failure of the American reformist movement of the early to mid-1900s. Relying on primary documents that included legislative discussions, periodical accounts, correspondences between key political actors, and primarily prison records, Spillane carefully reconstructs the events that influenced first the construction and later the of management of New York State’s Coxsackie Correctional Facility. Coxsackie (pronounced “cook-sock-ee” according to Spillane), opened as a then-modern vocational reformatory for adolescents in the 1930’s at the height of the progressive prison reform movement in New York but within decades spiraled into a now-modern maximum security warehouse for inmates rife with violence and brutality.
Like a lot of good history books, Spillane’s account depicts the past while helping to explain the present and is a must-read for anyone who cares deeply about prison reform and wants to avoid (or at least understand) common pitfalls. In his depiction of the pendulum swings characteristics of prison reform movements, Spillane begins with what were the triggering events in the 1920’s and 1930’s. According to Spillane, prisons generally suffer from inattention until a “focusing event” raises public awareness or fear. In the 1920’s and 1930’s, prison riots provided a political tipping point presenting the education reformers with an opportunity to advocate for change. Then-reformers blamed idleness, prison overcrowding and draconian four-strikes mandatory life Baumes Laws (little did they know that three-strikes would later became the norm!) for the riots.
This view, and what to do about it, was part of the New Deal era thinking. New rehabilitate service-oriented vocational facilities were to be financed in part by the WPA. Coxsackie was built as one of the first of its kind—a prison without walls, at the end of a quarter-mile long driveway, flanked by open fields, on a tree-lined campus where visitors were ushered into an administrative complex. (P. 49.) I found some photographs of the facility online (today it’s surrounded by tall wire fences) and it looks architecturally more like a distinguished private school building than the cement-block lightless warehouses characteristic of more recently-built prisons.
More important than its physical structure, Coxsackie was distinguished by its programming and staff. The Coxsackie experiment was premised on the notion that offenders could be educated and rehabilitated. Reformers insisted that Coxsackie and similar institutions be staffed and organized with this rehabilitative mission in mind. A Division of Education was created within the Department of Corrections and 86% of the inmates were enrolled in educational problems or likewise. Service and treatment programs were a mainstay of the institution and eventually were integrated in parole and release decisions. The reformers succeeded in championing a system, backed by legislation that was focused less on conservative concerns about coddling prisoners and more on liberal concerns about rehabilitation and re-entry.
So what happened to Coxsackie—and by extension to prison reform? By the 1970’s, this reformist gem devolved into a maximum security, violent, highly racialized, resource-poor, over-crowded institution that has become emblematic of the mass incarceration problem in the United States. Among other things, Spillane’s account blames its underfunding—nearly from its inception—for undermining its mission. Prison politics, several wars, and financial crises and social revolutions changed the debate and the grounds on which prison reform was understood. Furthermore, prison life was not exempt from the racial strife and racism that plagued in a newly integrating (or at least desegregating) society. A focus on law and order permeated and led to a reinstitution of the notion that “a prison should be a place of fear, not hotel.” This all sounds too familiar.
Spillane’s meticulous account of one of the most optimistic efforts in prison reform provides us with a tragic sense of deja-vu as we think about which innovations have failed in the past. Yet Spillane ultimately exposes a key difference between past reformers and today’s reformers. He described the evolution of Coxsackie as not merely a failure of prison reform but a failure of progressivism. Today’s debates over rehabilitation have become fixated “on ‘objective’ measures of success, especially recidivism rates.” Spillane sees this as fighting the anti-reformists on their own turf. He invites us to recall some of the non-quantifiable justifications for the older progressive vision of prison reform that emphasized “humanity, compassion and communication” as inherent virtues. Even when educational or treatment efforts have succeed on recidivism grounds, conservative critics have attacked them for conferring undeserved benefit on undeserving offenders. Perhaps the next wave of prison reforms should be more explicit about identifying its measurable and non-measurable impact on society and on those it incarcerates.
