Abstract
The dominant implication of the carceral state literature is that path-breaking change is impossible through ordinary politics, reducing the options to either acquiescence or a level of mass mobilization not seen in decades. Over the last decade, however, activists have generated a surge of agitation for carceral reform, especially at the state level. In a twist the scholarly literature did not anticipate, much of that energy is coming from the Right. The theoretical flaw underlying the scholarly pessimism is a focus on the way policies entrench themselves through positive feedback, without commensurate attention to negative feedback. We argue the balance of feedback is shifting to the negative side in the case of mass incarceration. To seriously shrink the prison population, however, conservatives will have to accept the construction of alternative government structures; liberals will have to accept that these will remain more paternalistic than they might like.
The more we learn about how we got into mass incarceration, the less we seem to know how to get out of it. Understanding the rise of the prison leviathan is surely important, not least because of its many corrosive effects on American democracy. But the scholarship on the origins of mass incarceration, while illuminating, has tended to focus heavily on the self-reinforcing aspects of the policy. It thus underestimates the capacity of American democracy to reassert itself against the carceral state. This emphasis is also a problem in the broader literature on policy feedback, which explores how a policy creates conditions that shape its own future: most accounts emphasize positive feedback, or self-reinforcing mechanisms, over negative feedback, or self-undermining ones. But this perspective puts scholars at risk of overlooking recent developments in prison politics that represent a major opportunity for change. In fact, arguments about policy feedback, once broadened to take seriously negative feedback, actually point to many of the key roots of these reformist trends. Pessimistic accounts of endless incarceration, in short, are both analytically blinkered and politically counterproductive. They are also in significant conflict with current, real-world developments.
The dominant implication of the carceral state literature is that path-breaking change is impossible through ordinary politics, reducing the options to either acquiescence or a level of mass mobilization the United States has not seen in decades. Bruce Western, perhaps the literature’s leading scholar, argues, “The self-sustaining character of mass imprisonment as an engine of social inequality makes it likely that the penal system will remain as it has become, a significant feature on the new landscape of American poverty and race relations” (Western 2007, 198). James Whitman concludes in his study of harsh punishment, “Real change would mean change, not just in punishment practices but in much grander American cultural traditions. It would be foolish to think that such change is coming soon” (Whitman 2005, 207). Jonathan Simon suggests that opposition to the carceral state “will not spread from the major political institutions of the United States, which have been largely made over by the war on crime” (Simon 2009, 282). Michelle Alexander argues that progress demands “a ‘radical restructuring of our society’”—one driven by a mass mobilization on the scale of the civil rights movement (Alexander 2012, 260). While more subtle in her assessment, Marie Gottschalk agrees that serious retrenchment can only happen through a movement committed to “presenting the carceral state as first and foremost a pressing civil and human rights issue” (Gottschalk 2007, 239). Such a movement would almost certainly require an exceptionally unlikely direct mobilization of mass incarceration’s victims—the most disadvantaged of our citizens, with the least capacity for collective action.
Even as scholars have spent the last decade painting an overwhelmingly pessimistic picture, however, activists have generated a surge of optimism and agitation for carceral reform, especially at the state level (Weisberg and Petersilia 2010; Lynch 2011, 693). And in a twist that the scholarly literature did not anticipate, much of that energy is coming from the Right. “There is an urgent need to address the astronomical growth in the prison population, with its huge costs in dollars and lost human potential,” former House Speaker and presidential candidate Newt Gingrich wrote in 2011. “The criminal-justice system is broken, and conservatives must lead the way in fixing it” (Gingrich and Nolan 2011). Scores of politicians and activists with unquestioned conservative credentials have signed onto a national “right on crime” campaign that calls for cutting the prison population and investing more in alternatives to incarceration. They have been joined by the American Legislative Exchange Council (otherwise known for helping to spread “stand your ground” and “ballot security” laws) and by conservative think-tanks and politicians in dozens of states who have supported laws curbing or rolling back prison growth. Retrenching the carceral state is becoming as orthodox on the Right as building it was just a few short years ago.
These changes have shifted the trajectory of mass incarceration, as the mechanisms that entrenched it have weakened, while those undermining it have strengthened. Largely because of conservative support—grounded in conservative ideology—the dynamics of imprisonment in the United States are tipping from positive to negative feedback. This development opens up the possibility of a cycle of reform that decarceration advocates—and the scholars whose work informs them—disregard at their peril.
The Carceral State and Positive Feedback
The idea that the effects of policy “feed back” into the structure of politics is the most important insight that political scientists have contributed to the study of public policy. Following Kent Weaver, we define feedback as “consequences of policy that tend to (influence) the political, fiscal or social sustainability of a particular set of policies” (K. Weaver 2010, 137). Positive feedback entrenches a policy; negative feedback undermines it.
The literature on the carceral state is replete with examples of positive feedback. Government institutions created during moral panics expanded the crime-fighting infrastructure that could be deployed in subsequent crime and vice scares, so state power came down harder in each cycle (Morone 2004; Gottschalk 2007). Faced with rising fear of crime and the shock of urban rioting in the 1960s, candidates and political consultants hardwired law-and-order electioneering into their strategies for office-seeking and partisan combat. The effect was to bully even reluctant legislators into a punitive arms race loaded with racial symbolism (Beckett 1999; Mendelberg 2001; Murakawa 2005; V. Weaver 2007; Stuntz 2011, 236–43). In this regard, crime was both a motor and a beneficiary of broader trends in American political development: the “issue evolution” that put racial conflict on the national agenda and the “Southernization” of U.S. politics (Carmines and Stimson 1989; Perkinson 2010). The success of “tough-on-crime” rhetoric prompted advocates working on a variety of issues, including violence against women, to frame their missions in terms that emphasized punishment and police intervention (Meares and Kahan 1999; Gottschalk 2007). Moreover, criminal justice was immunized from the Right’s critique of government as self-interested, inherently expansionary, and incapable of innovation (Weisberg and Petersilia 2010) because of the honor conservatives bestowed on law enforcement officials, a reverence reminiscent of that afforded to the military. Finally, prison-guard unions, private-prison operators, and local economic-development officers rallied around the carceral state, mustering a level of raw political muscle that critics of mass incarceration could not overcome (Gottschalk 2007, 30; Morone 2004, 460–61; Page 2013; Parenti 1999, 211–38; Mauer 2006, 10–11).
Meanwhile, a variety of mechanisms weakened the resistance of those communities most harmed by mass incarceration. Harsh crime policies entrenched economic inequality, which fed back into imprisonment (Western 2007, 190–98). Suburbanization put a wide gap between voters who elected aggressive prosecutors and the inner-city populations that felt their wrath (Stuntz 2011, 7, 308). Growing state and federal intervention in crime control privileged groups that could organize at these levels of government, muting neighborhood groups that opposed the punitive turn (Miller 2010). As other articles in this volume demonstrate, America’s prison binge led to the criminalization of African Americans and disenfranchised citizens en masse through its legal and psychological effects. Mass incarceration, thus, reinforced the racial stereotypes that originally nurtured it (Alexander 2012, 18) and politically demobilized the communities most inclined to resist it. To some analysts, all these developments were driven by even deeper forces that also tend to be self-reinforcing—a logic of racial domination, a late-modern “culture of control,” a reassertion of state power in the face of neoliberal retrenchment, or a uniquely American bent for harsh justice (Wacquant 2001; Alexander 2012; Garland 2002; Whitman 2005).
The consensus of these pioneering works, in short, is that that the American prison system is characterized by “critically important positive feedbacks and weak negative feedbacks” (Murakawa, forthcoming, 9). 1 As illuminating as this framework of analysis has been, it embodies two theoretical problems. First, it errs in assuming that the balance of positive and negative feedbacks is constant over time. 2 Second, by focusing on structural forces, it ignores how creative political agents can shift perceptions of political identity and, hence, redirect attention to negative versus positive information about policy effects. By incorporating changes in the balance of political feedback and the fluctuating engagement of political entrepreneurs, we can generate a genuinely dynamic model of policy development—one that can incorporate the sudden reversals and disruptive cascades that we know characterize real-world politics (Jones and Baumgartner 2005).
In American prison policy, both the character of the policy feedback and the role of creative political agency have changed over the last decade. As a result, the future of incarceration in America need not—and probably will not—be as dispiriting as its past.
The Rise of Negative Feedback
Five structural shifts over the last decade have weakened or reversed the forces that drove carceral expansion in previous decades. First, crime has fallen substantially. Public opinion registered the decrease in actual victimization, with only 2 percent of Americans identifying crime as the nation’s most serious problem in 2012, down from 37 percent in 1994. 3 Second, the partisan dynamics have changed. Democrats shifted decisively to punitive positions during the 1990s, deliberately branding themselves as tough in an effort, as then-Senator Joe Biden put it, to “lock Willie Horton up in jail.” 4 In effect, Republicans were so successful in pulling Democrats to their positions on crime that they lost their distinctiveness, and thus their political advantage, on the issue (Holian 2004). Third, terrorism (and more recently immigration) displaced street crime as a politically salient source of fear. Republican office-seekers have discovered that when it comes to painting Democrats as spineless and weak in the face of our enemies, terrorists and illegal immigrants make better foils than street criminals. With crime no longer paying large dividends to Republican office-seekers, policy entrepreneurs have more space to cast incarceration as damaging to conservative policy goals.
Fourth, this reframing has been aided considerably by the onset of fiscal crises following the 2001 and 2008 recessions. State-level austerity has made it easier to convince budget-strapped politicians that incarceration is a wasteful and expensive form of crime control. However, budget pressure alone was insufficient to change the dynamics of crime control. Hard economic times can just as easily spur an escalation of state repression as a withdrawal (Gottschalk 2010). 5 And the budget squeeze has not been purely a function of economics. It has also been driven by a wave of Tea Party–inspired elected officials more committed to austerity and more hostile to raising taxes than ever before. The GOP’s turn toward fiscal orthodoxy is thus the final crucial shift. It has sanctified the cause of cutting budgets and radicalized GOP hostility to government, breeding skepticism about even those public functions Republicans have historically supported, such as criminal justice and the military.
These five changes have dramatically reduced the structural bias toward mass incarceration. But structural opportunities are not self-actuating. The emergence of the conservative decarceration movement also required the intervention of highly motivated and well-connected activists (Dagan and Teles 2012a, 2012b). They tied what had been a handful of scattered state-level reforms into a broader narrative that cast decarceration as a matter of conservative principle, then marshaled their political networks to spread the message, and plotted strategic initiatives at the state and federal levels to bring around potential allies. The most important players in these efforts were the libertarian-leaning Texas Public Policy Foundation (TPPF), which widely publicized a reform package the Lone Star State passed in 2007; and the evangelical Prison Fellowship organization founded by former Watergate villain Charles Colson, which applied a humanizing, religiously inspired framing of forgiveness and salvation to mass incarceration and rallied nationally known conservatives around the cause.
The changes are not merely rhetorical. More than a dozen states, most strikingly in the South, have seriously considered or approved significant sentencing reforms designed to avert future prison growth, and in some cases have even shut down prisons (Jacobson 2006; Right on Crime 2013; Pew Charitable Trust 2013). Changes in historically punitive, politically conservative southern states are particularly striking (Weisberg and Petersilia 2010). Texas implemented a series of reforms between 2007 and 2012 to reduce its incarceration rate and prevent what had been a projected increase of fourteen thousand inmates in its prison population (Levin 2011; Legislative Budget Board 2007). In 2008, Mississippi allowed nonviolent offenders to become eligible for parole after serving 25 percent of their sentences—down from the previous mark of 85 percent—and it was effective retroactively (Justice Policy Institute 2011). And Georgia Governor Nathan Deal was on the brink of tears in 2012 as he signed legislation to reduce mandatory minimum sentences for drug crimes and expand programs to divert drug offenders from prison (Gould Sheinin and Rankin 2012). Such developments in states with cast-iron reputations for being “tough on crime” are changing perceptions about the ideologically appropriate stance on criminal justice for conservatives more broadly. 6 As a result, the prospects for even more dramatic action are growing.
How Far Will This Go?
Pessimists confronted with this accumulating reform record might argue that while policy-makers have stepped off the gas pedal, the carceral state’s cruise control will soon kick in. In this view, austerity might have prodded some states into marginal reform, but mandatory-minimum sentences, aggressive prosecutors, and other positive feedbacks remain in place: if and when the economy rebounds, and budgets loosen up, conservative interest in the issue will slacken. Indeed, there might even be a backlash in which a relatively small number of high-profile crimes by offenders diverted from prison spark a reversion to the “hard/soft” dichotomy that has recently been displaced on the Right by “smart/dumb.” Alternatively, if states do ease sentencing but congressional dysfunction continues to keep the federal government tough as ever, the disparity could induce officials to divert more serious cases into the federal system. Or, to continue the pessimistic line, the reform movement could be hijacked by the private prison industry that promises to lower costs without dramatically reducing incarceration. Corrections Corporation of America, for example, has already offered to replenish state coffers by buying publicly owned prisons, and Rick Scott has pushed hard for privatization in Florida (Bousquet 2012; Kirkham 2012).
It is also possible to imagine resurgent get-tough-on-crime campaigns adding new categories of criminals to the prisons even while others are being released. Immigration detention currently is adding only thirty-four thousand or so prison beds to the national total. But more than ten times as many people cycle through those beds, and the numbers could rise if the crackdown on immigrants ratchets up (Meissner et al. 2013). Liberals, frustrated by their inability to pass any kind of gun control, and perhaps turning their attention to inner-city killings, could push for tougher policing and punishment on illegal guns (Denvir 2013). Finally, a panic around meth could make policy-makers hesitant to decriminalize nonviolent drug offenses.
In all these pessimistic scenarios, the window for substantial change closes before the reform movement gets to the real drivers of high incarceration levels. Supporters of the carceral status quo “run out the clock” until agenda space closes and political attention shifts elsewhere. The machinery of mass incarceration rumbles on.
For a variety of reasons, however, we believe the negative feedbacks that we have described will not be squelched and instead will become a countervailing force to mass incarceration. First, while major decarceration will ultimately require reformers to face tough questions about shortening the sentences of serious offenders, there is much that can be achieved through less controversial changes—what critics might dismiss as “tinkering” with the carceral state. The options include finding alternatives to incarceration for public-order and low-level drug offenses, reducing time served (if not sentences) for property and serious drug offenses, and reshuffling parole systems to ensure supervision is focused on those most likely to reoffend. Second, the target for these reforms is wide: some 60 percent of offenders housed in American prisons and jails are there for nonviolent crimes (Schmitt, Warner, and Gupta 2010).
The scope for continued decarceration is thus substantial, and the momentum real. The crucial issue is whether policy entrepreneurs from both the Left and Right are able to galvanize significant public investment in alternative social-order institutions, such as prison and parole, which have been starved for resources and attention during the era of escalating prison growth (Gottschalk 2010; Weisberg and Petersilia 2010; Mauer 2011; Kleiman 2011). Without building what Mark Kleiman has called the “outpatient prison”—professionally staffed, technologically sophisticated, and legally empowered—there is little chance of making a dent in the number of people held in the “inpatient prison,” or insulating the decarceration movement politically against a backlash.
The barriers to such alternative forms of state-building are substantial. Most obviously, conservatives who see prison reform as an opportunity to shrink government will be uneasy with the idea that it requires strategic government expansion, too. In coalitional terms, if evangelicals yield too much power over the reform brand to fiscal conservatives, a “hard” austerity framing is more likely to prevail. And even if ideological obstacles are overcome within the prison-reform community, some of the most effective crime-reduction programs overlap with areas of policy where partisan gridlock tends to prevail. Finally, investments in alternatives to incarceration could be frittered away—for example, in indiscriminate therapeutic drug treatment, programs that purport to “divert” offenders who were unlikely to be imprisoned anyway, or alternatives designed to appear so “tough” that they end up funneling most participants back to prison as failures (Clear and Austin 2009, 315). This could revive the corrosive belief that while prison does not reduce reoffending, neither does anything else (Weisberg and Petersilia 2010).
The big question is whether incarceration is reaching a similar juncture as capital punishment, a “tipping point . . . where changes in public understanding have begun to induce further changes in policy, which in turn reinforce those same changes in public understanding” (Baumgartner, De Boef, and Boydstun 2008, 10). The “Nixon-goes-to-China” repositioning of conservatives is the decisive opening for this shift. Decades of tough-on-crime politics have positioned conservatives as the authoritative voice on matters of crime and punishment, making it difficult for liberals opposed to mass incarceration to win a hearing, even today.
But will conservatives continue to sing their new song? The signs are promising. The libertarian-evangelical alliance represented by Prison Fellowship and TPPF has staked a strong claim to “ownership” of the criminal justice issue within the conservative movement. These reformers have made cost, efficacy, and redemption central parts of the conservative framing of corrections, largely displacing the rhetoric of retribution and “take no chances” absolutism. Virtually all the conservative intellectual investments in criminal justice now focus on reducing prison populations. What is more, the new ideas have been battle-tested in national Republican primaries. As a result, championing criminal justice reform has become a way for ambitious conservatives to brandish their cost-cutting credentials, significantly widening the potential audience for what might otherwise be seen as a narrow policy concern. Finally, after the GOP’s widely recognized flop among minorities in 2012, criminal justice reform just might be a way to attract constituencies who feel little connection with the party.
If these forces gain in strength, we can imagine a multidecade effort to undo the excesses of the carceral state. Budget incentives would push county judges and sheriffs toward low-incarceration options; prosecutors would be held accountable not just for punishing high-profile criminals but for overall crime-control efficiency; and increased funds to probation and parole departments would be structured so as to focus supervision on high-risk offenders (Lynch 2011). The web of collateral sanctions that now extend punishment far beyond the prison—which are already drawing the attention of conservatives—would be partially unwound (Pearlstein 2011). The goal of halving the incarcerated population, currently just a hypothetical bandied about in parts of the literature, could be within reach if these sweeping reforms are put in place (though an equal reduction in community supervision strikes us as almost impossible) (Clear and Austin 2009; National Institute of Corrections 2013).
To be sure, both liberals and conservatives would find much to dislike about this new supervisory state. Civil liberties would coexist uneasily with rapidly growing data-gathering capacities and with actuarial and medical techniques that claim to predict future behavior (Raine 2013; Beckett 1999, 103–4; Harcourt 2006). Empowering probation and parole officers would extend the prison beyond the walls (Weisberg and Petersilia 2010) and require enhanced powers of discretion that could raise due-process concerns. In fact, conservatives likely will want to experiment with privatized forms of noncustodial supervision such as expanding the bail system into the postconviction arena (American Legislative Exchange Council [ALEC] 2007). But conservatives will have to accept that a purely deregulatory or privatized solution to mass incarceration will not suffice. Disassembling the carceral state will demand swapping one (much less coercive) form of government action for another. New forms of government action will need to be created and old ones injected with new prestige. Liberals, on the other hand, will have to accept that these new structures will remain more paternalistic than they might like (Kleiman 2013).
Nonetheless, it is now possible to envision a future in which both sides accept, for their own reasons and in their own language, that the moral and financial costs of mass incarceration are too high, and that the number of Americans in prison is a sign of failure, rather than a point of pride. In this scenario, Republicans and Democrats would argue about who is better at keeping down incarceration and crime, rather than who can punish more harshly. Reaching that point would certainly take more time—and caution—in Left-Right collaborations. At the moment, elite conservatives are still best served by arms-length alliances with the Left to ensure the credibility of the reform brand. But the situation may be less constrained at the grassroots level, which is essential but largely untapped so far (Schoenfeld 2011; Miller 2011). Given the increased attention to criminal justice in the evangelical community, one promising possibility involves faith-based interracial alliances, such as the Friends of Justice organization that sprung out of the flawed 1999 drug sting in Tulia, Texas (Bean 2010).
Competition between conservatives and liberals over crime policy will never disappear. But if negative feedbacks increasingly dominate positive ones, a new and more decent axis of competition is foreseeable—and may even come to have self-reinforcing dynamics of its own. Scholars need to recognize that the carceral state’s past is no longer prologue and seize current opportunities to build a system that preserves our safety while not violating our conscience.
Footnotes
Notes
David Dagan is a PhD student in American and comparative politics at the Johns Hopkins University in the Department of Political Science.
Steven M. Teles is an associate professor of political science at the Johns Hopkins University. He is the author of The Rise of the Conservative Legal Movement (Princeton 2008) and Whose Welfare? AFDC and Elite Politics (Kansas 1996), and coeditor of Conservatism and American Political Development (Oxford 2009) and Ethnicity, Social Mobility and Public Policy (Cambridge 2005).