By now, the great American incarceration tragedy is old news, as are most ideas about what to do about it. But then along comes this book, Excessive Punishment: How the Justice System Creates Mass Incarceration, edited by Lauren-Brooke Eisen, a former prosecutor and journalist who is now senior director of the Justice Program at the Brennan Center for Justice. Consisting of 38 chapters by 38 authors, along with an introduction by Eisen, the book provides a refreshingly informative and often inspiring take on our incarceration problem. It is refreshing because each chapter is very short (all are under 10 pages once the notes are taken out) and written in punchy, concise language shorn of scholarese. It is informative because, even for someone like me who has written quite a bit about the topic, new insights abound, if only because the authors include not just law professors, but sociologists, criminologists, defense attorneys, prosecutors, directors of advocacy and research entities, investigative journalists, federal and state officials, and a number of formerly incarcerated individuals. It is inspiring because, while all of the authors offer searing diagnoses of our obsession with punitiveness, they also provide bracing stories of people resisting it or provocative means of undermining its consequences.
If there is one central message in the book, it is that our system is far too harsh, for a variety of reasons. Eisen’s introduction argues that “[i]ncarceration has become about neither rehabilitation nor holding people accountable. Instead, it has become about retribution.” (P. 2.) Jonathan Simon agrees, writing that “[t]he appeal of accountability, of paying a debt to society, is supposed to be reintegration[,] in reality, it has usually meant the opposite—sanctions into perpetuity.” (P. 21.) Jeremy Travis and Bruce Western, in the book’s final chapter, put it this way: “The great injustice of the punitive posture of contemporary criminal justice [is] to attribute a superabundance of moral agency to those who, by virtue of economic, demographic and social disadvantage, often had the fewest choices to make.” (P. 339.) Backing up this point, Lenore Anderson points to research finding that even victims, many of whom know their perpetrators, prefer rehabilitation over punishment (P. 30.) Peggy McGarry starkly concludes that “we seem to be content to waste the lives of those who have broken the law.” (P. 258.)
So how did this happen? Alison Seigler describes how concern about sentencing disparities associated with the rehabilitative ideal led both the left and the right to condone mandatory minima, truth-in-sentencing, three-strikes laws, and all the other paraphernalia of the tough-on-crime era (P. 78.) Eisen’s own chapter, as well as the chapters from Morgan Godvin and Nkechi Taifa on drug policy and the chapter from Alia Nahra and Hernandez Stroud on policing, document how federal funding incentives fed this hyper-punitiveness, with an especially devasting impact on communities of color. Kim Taylor-Thompson examines the expansion of transfer jurisdiction for juveniles, a development that she argues had particularly adverse effects on Black children perceived as dangerously unpredictable (in contrast to their white counterparts, who were often seen as treatably impulsive). McGarry notes Nixon’s 1970s Southern strategy that sought to use the fear of “Black crime,” induced by civil rights disturbances in urban areas, to bolster criminalization efforts. Adam Gelb writes of “anticipatory sentencing,” a term he uses to explain why, even in jurisdictions with parole, sentences can be quite long; prosecutors and judges, aware that parole boards often release prisoners after a fraction of their maximum term has been served, make sure that term is heightened. Other chapters make clear how every aspect of the system—probation and parole supervision, collateral consequences, deportation, legal fines and fees, and solitary confinement—has become, through explicit and implicit policy choices, a vehicle of punishment rather than rehabilitation, making them barriers to successful re-entry into society. Travis and Western summarize the indictment as follows: “we live in an era of punitive excess because the American people, through our democratically elected representatives, have chosen it.” (P. 341.)
On a more positive note, the book highlights both successful efforts at resisting the punitive current and reform efforts that reject the punitive premise entirely. Blake Strode details the holistic defense model developed by the Bronx Defenders that provides services well beyond legal defense work, including help with social security and disability claims, child support and custody matters, and supportive referrals to social service providers (P. 263.) David Singleton describes efforts in several states aimed at providing a mechanism for reconsidering long sentences. Ram Subramanian emphasizes that some European countries manage to simultaneously treat prisoners with dignity and reduce crime rates, and Steven Chanenson, Jordan Hyatt and Synove Anderson describe an experiment in Pennsylvania that suggests the same thing can happen in the United States as well. Several chapters reference restorative justice programs, although interestingly—given its current vogue in academia—the abolition movement is mentioned only obliquely and only by a couple of authors. Most poignant are the stories told by Kathy Foer-Morse, Christopher Blackwell, Rahsaan “New York” Thomas and Shon Hopwood about how they survived abusive and dehumanizing prison environments.
For anyone wanting an eclectic yet well-informed view of American incarceration today, the distilled wisdom in this book is well worth reading.
