Repackaging Mass Incarceration

by James Kilgore

Since my CounterPunch article in November 2013, which assessed the state of the movement against mass incarceration, the rumblings of change in the criminal justice system have steadily grown louder. Attorney General Eric Holder has continued to stream his mild-mannered critique by raising the issue of felony disenfranchisement;* the President has stepped forward with a proposal for clemency for people with drug offenses that could free hundreds. In the media, we’ve seen a scathing attack on America’s addiction to punishment in The New York Times and the American Academy of Sciences has released perhaps the most comprehensive critique of mass incarceration to date, the 464-page The Growth of Incarceration in the United States: Exploring Causes and Consequences. 

In late May 2014, several dozen conservatives including Newt Gingrich, Grover Norquist and former NRA president David Keene pulled together the first Right on Crime (ROC) Leadership Summit in Washington, D.C. The ROC, an organization which boasts a coterie of members with impeccable right-wing credentials, reiterated the need for conservatives to drive the process of prison reform. The conference’s “call to action” argued: “In our earnest desire to have safer neighborhoods, policy responses to crime have too often neglected core conservative values – government accountability, personal responsibility, family preservation, victim restoration, fiscal discipline, limited government and free enterprise.” Gingrich engaged in similar kinds of soul searching: “Once you decide everybody in prison is also an American then you gotta really reach into your own heart and ask, is this the best we can do?”

All of this has precipitated another round of optimistic cries about the possibilities of a left-right coalition on mass incarceration, including a high-profile Time Magazine op-ed co-authored by Norquist and MoveOn.org co-founder Joan Blades.

While the spirit of reconciliation in criminal justice attracts most of the media attention, a number of pieces have also emerged rejecting any rush to positive judgment. For example, fellows at the Brennan Center compiled a statistically based report which contends that carceral change has not yet turned the corner, while Black Agenda Report co-founder Bruce Dixon asserted that Obama’s clemency measures would have no significant impact on mass incarceration.

However, another process, likely at least as important in the long run as number crunching, coalitions or clemency, also has been gaining steam. The official voices of incarceration – politicians, corrections officials, private prison operators, prison guards unions and county sheriffs – are exploring changing discourse and cosmetic reform in order to avoid systemic restructuring. In the business world, they call this repackaging.

Repackaging Mass Incarceration: Carceral Humanism

Currently this repackaging assumes several forms. One of the most important is carceral humanism or what some people refer to as incarceration lite. Carceral humanism recasts the jailers as caring social service providers. The cutting edge of carceral humanism is the field of mental health. According to a recent report by the Treatment Advocacy Center, in 2012 the U.S. had over 350,000 people with serious mental health issues in prisons and jails as compared to just 35,000 in the remaining state mental health facilities. Prisons and jails have become the new asylums and jailers are waking up to the fact that mental health facilities also represent a new cash cow.

Likely the most important examples of carceral humanism are happening in California. There, Governor Jerry Brown has played a shell game called realignment in which he’s transferred thousands of people from state facilities to county jails in order to comply with a federal court order to reduce the state prison population. To help counties adapt to all these new prisoners, the governor gave $500 million to the state’s sheriffs to build extensions onto their jails. In response, the sheriffs had to come to Sacramento to pitch for a slice of that money. They didn’t come talking about public safety. Their mantra focused on caring-providing opportunities and improved circumstances for those in custody. The Department of Corrections and Rehabilitation’s summary from Lake County, one of the 15 winners out of 36 submissions, is illustrative: “$20 million for a new Type II, 40-bed women’s jail with a new stand alone 39-bed Medical/Mental Health Services building with program space, a new administration building, and renovations so that existing space can accommodate programs.”

The new jails are about institutionalizing the funding of mental health and other services behind the walls, further diverting money from the already bare-bones social services in communities. The Lake County proposal also featured another prominent strain of carceral humanism – a women’s jail, or in the present corrections jargon, a “gender-responsive” facility. Since mainstream research now argues that women experience incarceration differently than men, law enforcement is waving the gender banner to access more funding for construction. Los Angeles lies at the cutting edge in this regard. In March 2014, the LA Board of Supervisors authorized $5.5 million for consultants to draw up a plan for what some law enforcement people are calling a “women’s village.” Deputy Sheriff Terri McDonald of Los Angeles suggested that the new facility could be a place where “women and children could serve their time together.”

Carceral humanism has also surfaced in the repackaging of immigration detention centers. The latest immigration prisons carry the label “civil detention” centers. The GEO Group, the nation’s second-largest private prison operator, opened its latest such facility in Karnes, Texas. The LA Times called it a “pleasant surprise for illegal immigrants.” Immigration and Customs Enforcement (ICE) officials boast that people detained in Karnes won’t be housed in cells but in “suites” holding eight people. Those detained will be supervised not by guards or correctional officers but by “resident advisers.”

Repackaging 2: Non-Alternative Alternatives to Incarceration

A second form of repackaging mass incarceration falls under the heading of non-alternative alternatives to incarceration. These non-alternatives purport to change things but in essence simply perpetuate the culture of punishment. The most common forms of these are drug courts, mental health courts and day reporting centers. While many of these may be well-intentioned and in some cases have positive effects, they typically involve heavy monitoring of a person’s behavior, including frequent drug testing, limitations on movement and association, a whole range of involuntary but supposedly therapeutic programs of dubious value and very little margin of error to avoid reincarceration. Perhaps the most extreme example of a non-alternative alternative to incarceration, and one which is likely to gain increasing traction, is electronic monitoring.

While advocates claim electronic monitoring facilitates employment, building family ties and participation in community activities, my interviews with a number of people on a monitor have revealed a different experience. Jean-Pierre Shackelford, who spent two years on an ankle bracelet in Columbus, Ohio said that he felt like his probation officer had him in a “choke hold” while he was on an ankle bracelet. He labeled monitoring “another form of control and slavery, 21^st century electronic style.” Shaun Harris, on a monitor for a year in Michigan, called it a form of privatized incarceration; “it’s like you just turned my family’s house into another cell” was his comment.

Shackelford and Harris, like many others I spoke with, both reported difficulty getting movement for family activities and a lack of clarity about what was and wasn’t permitted. Shackelford finally took to going to church because that seemed to be the only activity his probation officer would approve. Both Shackelford and Harris, like most people interviewed, complained that they could be put on 24-hour “lockdown” (meaning they couldn’t leave the house at all) for any reason for an indefinite period and there would be no way to appeal such a decision. Even a late return home from work due to a delay in public transportation could result in a re-arrest. To make matters worse, most electronic monitors come with a daily user fee which ranges anywhere from five to twenty dollars a day.

While the punitive nature of ankle bracelet regimes is a cause for concern, the potential to implement exclusion zones with GPS-based monitors contains more serious long-term implications. Exclusion zones are places where monitors are programmed not to let people go. At the moment, authorities mainly use exclusion zones to keep individuals with a sex offense history away from schools and parks. But such zones have the potential to become new ways to reconstruct the space of our cities, to keep the good people in and the bad people out. This technology, which can be set up via smart phones, holds the possibility to turn houses, buildings, even neighborhoods into self-financing sites of incarceration.

In the meantime, firms like the GEO Group, which owns BI Incorporated, the nation’s largest provider of electronic monitoring technology and backup services, are experimenting with new target groups for ankle bracelets. In parts of California and Texas they’ve used electronic monitors on kids with school truancy records. Under a $370 million contract, BI already has thousands of people awaiting immigration adjudication on monitors. Packaged as an alternative, these bracelets actually represent a new horizon for incarceration, finding ways to do it cheaper with technology through the private sector and then getting the user to pay, likely a model that would line up squarely with Right on Crime’s notions of reform.

Repackaging: Why Now?

Most commentators attribute the spirit of change in criminal justice to a belated recognition of the fundamental irrationality of spending so much money locking up so many people for so long. As Grover Norquist put it, “Conservatives may have wanted more incarceration than was necessary in the past, so what we’re trying to do is find out about what works.”

Such analyses make perfect sense but they also ignore a big picture political question. Mass incarceration is becoming a flash point of rebellion and resistance, with African American communities the most visible hot spot. Mass incarceration and the racialized vagaries of criminal justice have been going on for decades but recently we’ve seen new levels of anger and frustration in reaction to the deaths of Trayvon Martin and Oscar Grant, as well as to the sentencing of Marissa Alexander. Even mainstream Black commentators like Melissa Harris-Perry appear incensed. At the grassroots level we’ve witnessed campaigns against stop-and-frisk, solitary confinement, mandatory minimums, crack cocaine laws and a host of new jails and prisons.

On the ideological plane, the notion of the New Jim Crow, categorizing mass incarceration as a new form of slavery and segregation, is catching on. People are latching onto the idea of mass incarceration as a systemic problem that can only be solved with a vast redirecting of resources into the communities that have been devastated by imprisonment. In other words, mass incarceration requires a total paradigm shift. The situation has the potential to explode. Politicians and business people don’t like explosions. When explosions appear to be a genuine possibility it is time to talk reform, time to repackage.

To make matters worse for purveyors of the carceral status quo, the immigrants’ rights movement has also been erupting over the last decade. From the immigrant worker strikes and demonstrations of 2006 to the endless string of demonstrations by the Dreamers and the Dream Defenders in the face of continued mass deportations, a steady stream of unrest has materialized. With the changing national demographics, key players in criminal justice need to be seen to be doing something if they want to maintain their power.

Lastly, there is the movement inside the prisons themselves. The hunger strikes at Pelican Bay in California and in Washington’s Northwest Detention Center, coupled with the outpouring of solidarity these actions prompted, pose a serious threat to the already heavily-smeared image of U.S. prisons. In addition, even once-notorious political prisoners are gaining increasing legitimacy. Captives from across several generations are attracting large coteries of supporters. This includes high-profile individuals who have served decades behind bars, individuals like Mumia Abu-Jamal, Albert Woodfox, Oscar Lopez Rivera, Russell Maroon Shoatz and Leonard Peltier, along with more contemporary prisoners like Lynne Stewart (recently released), Marie Mason and Chelsea Manning. Inside and beyond the walls, there is rebellion in the air.

This reality raises another question: whether a left-right coalition can deliver even enough change to calm the waters. Mass incarceration has become such a fundamental part of how the U.S. addresses issues of race, crime, poverty, gender and inequality, it appears unlikely to collapse from gradual reforms whether inspired by carceral humanism, punitive alternatives to incarceration or more genuine critique. As with civil rights, pressure from below will be required from a social movement that has the creativity to envision an alternative, the skills and legitimacy to mobilize the people who are most directly affected, and the political power to make their voices be heard and get others to join them. Perhaps this social movement is, to borrow a phrase from the Spanish poet Antonio Machado, making the path by walking at this very moment.

* Ed. Note: Attorney General Holder announced his resignation on Sept. 25, 2014.

James Kilgore was a Research Scholar at the Center for African Studies at the University of Illinois (Urbana-Champaign). He is a frequent commentator on mass incarceration, a social justice activist and the author of three novels, all of which were written during his six-and-a-half years of incarceration. He is currently working on a primer on mass incarceration to be published by The New Press in 2015. His writings are available on his website, www.freedomneverrests.com.

This article was originally published in the June 6-8, 2014 edition of CounterPunch (www.counterpunch.org); it is reprinted with permission of the author, with minor edits.