TThe statistics are familiar but still staggering: America’s prison rate per 100,000 is “almost twice that of Russia and Iran, four times that of Mexico, five times that of England, six times that of Canada” and nine times that of Germany. In addition, “parole and probation are regulating the lives of 4.5 million Americans” – more than twice the number of those in prison.
These numbers come at the beginning of Bill Keeler’s new clever and short book, as he attempts to explain how America has become so addicted to mass incarceration, and how we can finally fix a system with a disproportionately large black and bon population.
Keeler is a veteran journalist who won a Pulitzer for the first time in the New York Times as a foreign correspondent, in Moscow with the collapse of the Soviet Union. He went on to become an executive editor and then a columnist, but within 30 years, criminal justice wasn’t one of his specialties. That all changed when Neil Barsky, journalist-turned-investor-turned-philanthropist, chose Keeler to be founding editor for Marshall Projectan ambitious effort to produce great journalism on the “Causes and Consequences” of Mass Incarceration.
Keeler’s book highlights many of the best articles by Marshall Project reporters, but it also uses much of his reporting to shed light on this dark side of American democracy.
‘Good news’: The prison population has actually been on a slow and steady decline, from a peak of 2.3 million in 2008 to 1.8 million in 2020, including an unprecedented 14% drop driven by early releases due to Covid.
America’s unfortunate exception on this subject is actually a fairly recent development. From the 1920s through the 1970s, the incarceration rate remained mostly constant at about 110 out of every 100,000 Americans. But it’s close to 500 today.
Liberals and conservatives were equally responsible. Democratic House Speaker Thomas “Tip” O’Neill sharply overreacted to a cocaine overdose from Lynn Bayez, a Boston Celtics member who pushed the Drug Abuse Control Act of 1986, “which imposed mandatory penalties, asset forfeitures, and strangely harsh. Penalties for crack cocaine were favored by black neighborhood residents, while white cocaine consumers faced more lenient penalties.
As Keeler writes, “Rehabilitation has been vilified on the right as pampering.” But Senate Democratic Judiciary Committee Chairman Joseph R. Biden of Delaware made everything much worse by endorsing the Violent Crime and Law Enforcement Act of 1994, which not only spurred the prison-building boom but also rescinded Bill Grants grants to inmates registered in college courses. President Biden admitted his mistake.
It was President Reagan who introduced the profit motive into the prison business, allowing the American Correctional Institution to pioneer “the idea of for-profit privately-run prisons”. As Keeler explains, “since the new prison owners were paid the same way hotel owners were paid, by occupancy, they had no incentive to prepare prisoners for release.” Private prisons now house about 7% of the state and 17% of the federal population.
Keeler makes an unintended argument for sending more Republicans to prison, by pointing out that three unlikely advocates of prison reform are Republican officials who ended up in prison.
Patrick Nolan was the minority leader in the California State Assembly when he was indicted in 1993 on racketeering and racketeering charges. He served 25 months in a federal prison near San Francisco. When he was released, he was recruited by Charles Coulson, the notorious Watergate criminal from the Nixon White House who found the debt “shortly before he spent seven months in a federal prison.”
Coulson campaigned for a more humane treatment of prisoners. Nolan became director of a new Center for Criminal Justice Reform at the American Conservative Union Foundation. Meanwhile, Bernard Kerik, a police commissioner for Rudy Giuliani who spent three years in federal prison for tax fraud and other crimes, has become an advocate for the voting rights of ex-felons.
Not all news is good. By the end of the Trump administration, Nolan had succumbed to a right-wing conspiracy theory that “billionaire George Soros masterminded the ‘Trojan horse’ strategy to elect prosecutors who handle crimes nicely and bring down the entire criminal justice system.”
KEiler points to Norway and Germany as the best examples of systemic reform. While US prison guards rarely receive training for more than a few weeks, Germans take two years of undergraduate courses in psychology, ethics, and communication. American visitors in German prisons are amazed when they see unarmed guards “shooting baskets, playing chess, sharing lunch” and having conversations with prisoners.
One reason for Europe’s progress so far is the de-politicization of the criminal justice system: judges and prosecutors are appointed, not elected.
Fordham University professor John Pfaff noted that in the United States, during the 1990s and 2000s, “with the decline in violent crime and violent crime arrests, the number of felony cases in state courts” suddenly rose. Because of political pressure, “tens of thousands of prosecutors” were appointed, “even after rising crime stopped in the 1980s.”
Pfaff attributed the racial inequality in prisoner numbers to “an imbalance of political power – tough prosecutors elected by suburban whites who see society’s destruction of mass incarceration from a distance”.
Keeler reports that the most effective ways to reduce the prison population are also the most obvious:
Make low-level drug offenses “non-crimes.”
Refer people to “mental health and addiction programmes, probation or community service.”
Abolish mandatory minimum sentences and encourage ‘judges’ to ‘apply the least severe sentence appropriate in the circumstances’.
Giving “compassionate release to elderly and infirm prisoners” who pose no real threat to the general population.
The challenge is to get these common senses to overcome the rhetoric of politicians who still criticize anyone who is “tolerant of crime” – the faltering ideology that got us into this catastrophe in the first place.