Criminal justice reform in the U.S. has a long history of repressive outcomes

A decade from now under the First Step Act, expect that incarceration will be not so much reduced as diversified

Published December 27, 2018 4:00PM (EST)


Tony Platt is a Distinguished Affiliated Scholar at U. C. Berkeley’s Center for the Study of Law & Society, and author of "Beyond These Walls: Rethinking Crime and Punishment in the United States" (St. Martin’s Press, January 2019).

It’s good news that Congress is finally taking bipartisan action to authorize some modest changes in the federal prison system. But this criminal justice reform, like many of its predecessors, offers the illusion of real reform and has a sting in its tail.

On the positive side, the First Step Act gives federal judges some discretion in sentencing non-violent drug offenders. It also eliminates disparities in crack and powder cocaine sentences, provides incentives to reduce the federal prison population through early release programs, and expands job training, and health and educational programs inside prisons. Moreover, the Federal Bureau of Prisons can no longer shackle pregnant women with impunity. African Americans, who comprise 38 percent of federal prisoners, should get some relief.

The First Step Act (FSA), however, will cover but a fraction of the U. S. prison population since most prisoners are held in state prisons and local jails. And the FSA will not benefit all federal prisoners: those doing time for corporate fraud, government corruption, and peddling opiates, for example, are eligible to be considered for early release programs, while those convicted of violent crimes and abortion-related offenses are ineligible. The legislation also excludes 11,000 prisoners convicted of violating immigration laws, overwhelmingly for non-violent crimes.

The corporate security industry will especially benefit from the FSA’s recommendation to expand the use of electronic monitoring of those confined in home detention after early release, a trend that is under way throughout the criminal justice system. A decade from now I expect that incarceration will be not so much reduced as diversified.

“America is famously ahistorical,” a sardonic Barack Obama observed in 2015. “That’s one of our strengths — we forget things.” We especially forget that many benevolent criminal justice reforms turn out to have a nasty, repressive underside that expands rather than reduces the net of social control. Great harm is often committed in the name of reform.

When Charles Dickens visited Pennsylvania’s Eastern Penitentiary in 1842, the prison administrators showed off the latest reform: a Quaker-influenced regime that kept prisoners isolated day and night, working in their cells under a code of strictly enforced silence to supposedly motivate penitence and self-improvement. Dickens was horrified by what he witnessed — the “torturing anxieties and horrible despair of hopeless solitary confinement” that left prisoners “dead to everything.” The architects of the silent system, he observed, are indeed “kind, humane, and benevolent gentlemen,” but “they do not know what it is they are doing.”

During the Progressive Era (1890-1920) the child-saving movement created a juvenile justice system that promised to take the delinquent children of immigrants out of their urban communities and transform them into hardworking citizens. Instead, government agencies rounded up tens of thousands of working class youth for mostly petty infractions and sent them to highly regimented youth prisons for punishment — all without due process.

Field matrons working for federal Indian Services imagined that they were civilizing Native American children by forcibly removing them from rural reservations and incarcerating them in faraway boarding schools where they were punished for “talking Indian.”

By the 1970s, the United States would imprison about one million juveniles annually, with youth of color comprising more than 40 percent of those arrested and incarcerated.

The child savers’ rhetoric of benevolence, backed up by unsentimental interventionism, set the stage for what followed.

During World War I, the federal government launched a national campaign against an epidemic of venereal disease in military camps. The Commission on Training Camp Activities provided medical services for male soldiers whom it treated as the victims of devious prostitutes and “charity girls” suspected of lax morality. The “constructive but firm” program established by the War Department resulted in the incarceration of some 30,000 women.

In the 1920s reformers shifted their moral zeal to the scourge of alcohol. The Treasury Department’s Prohibition Unit, staffed by five times more agents than the staff of the FBI, selectively enforced the law against the poor and the unlucky, while the wealthy drank in protected clubs or bribed their way out of arrest.

Between the two world wars, reformers in the eugenics movement justified the involuntary sterilization of tens of thousands of working-class women as a measure to reduce the birthrate of the “socially inadequate.”

After World War II, in the name of protecting family values and national security, thousands of mostly gay men lost or were denied federal jobs on the basis of their sexuality. One third of gay men experienced run-ins with the police, comparable to the experience of African American men today.

The post-World War II experiment in corrections was supposed to replace the exploitation of prisoners’ labor with diagnosis and treatment, analogous to hospital care for the sick and contagious. Instead state prison administrators used the indeterminate sentence as a cudgel to pathologize prisoners’ grievances and encourage mindless submission to authority.

In the 1980s fixed sentences returned, a reform intended to correct the arbitrariness of indeterminate sentencing. It resulted in prisoners serving more time than they had served a decade earlier and an unprecedented boom in prison construction. In 1950 a staff of 23,000 guarded all U. S. jails and prisons. Today more than 700,000 are needed to do the job, and the United States is number one globally in its rate of incarceration. The First Step Act will do nothing to change the United States’ ranking.

This does not mean, however, that all reforms are inherently repressive or self-defeating. Some promise to improve people’s lives without resorting to punitive measures. Following the United Nations’ human rights standards, we could ban the use of prolonged solitary confinement, minimize the differences between daily life inside and outside prison, and provide education and job training for those in need, irrespective of what kinds of crimes they have committed. We could also make extensive use of restorative justice programs as an alternative to incarceration.

If we want to act more boldly and imaginatively, we could also take up Justice Sonia Sotomayor’s call to address the problem of injustice at its root, namely how the police treat “countless people” as if they are not members of a democracy but subjects of “a carceral state, just waiting to be catalogued.” Now that would be a reform worthy of its name.

By Tony Platt

Tony Platt is a Distinguished Affiliated Scholar at U. C. Berkeley’s Center for the Study of Law & Society, and author of "Beyond These Walls: Rethinking Crime and Punishment in the United States" (St. Martin’s Press, January 2019).

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