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Left and Right Agree we should Address Mass Incarceration – so Why am I Worried?

March 19, 2014

Like many criminal justice and drug policy reformers I have watched with great interest the growing bi-partisan support among elected officials for addressing ‘mass incarceration’. Much of this new-found interest is due in part to Michelle Alexander’s well-received book, The New Jim Crow, which elevated concerns about mass incarceration and its relationship to the ‘war on drugs’ in African-American and liberal communities. Response to The New Jim Crow is part of a broad cultural shift in discussion of drugs and criminal justice policies, reflected in the popularity of shows like Breaking Bad and WEEDS, documentary films like The House I Live In and growing national acceptance of marijuana legalization. As someone who has spent the past 15 years advocating for reform of our criminal justice system and the end of punitive drug prohibition these developments should fill me with hope and optimism, instead I am filled with skepticism and great trepidation for the future.

It seems I’m not the only one who views these developments with a sense of unease. In a recent article on the website Prison Culture entitled: Prison Reform’s In Vogue & Other Strange Things…the author starts by noting the widespread optimism among journalists and others over the prospects for criminal justice reform and then goes on to express skepticism about the legitimacy of the development by citing history. The modern penal institution is a product of an earlier reform movement, which sought to replace physical torture and punishment with a system that would encourage quiet reflection, penance and rehabilitation. The author references a seminal report titled, Struggle for Justice, published decades ago which put it this way:

“More judges and more ‘experts’ for the courts, improved educational and therapeutic programs in penal institutions, more and better trained personnel at higher salaries, preventive surveillance of predelinquent children, greater use of probation, careful classification of inmates, preventive detention through indeterminate sentences, small ‘cottage’ institutions, halfway houses, removal of broad classes of criminals (such as juveniles) from criminal and ‘nonpunitive’ processes, the use of lay personnel in treatment – all this paraphernalia of the ‘new’ criminology appears over and over in nineteenth-century reformist literature.”

Sound familiar? Struggle for Justice was published in 1971 and was referencing reforms from the previous century. As the authors astutely observed many ‘reforms’ were merely changes in semantics: “Call them ‘community treatment centers’ or what you will, if human beings are involuntarily confined in them, they are prisons.” Everything being proposed to reform the criminal justice system by state and federal legislators today, are reconfigurations of things we’ve done before with varying degrees of success.

During a recent conference call with activists on prospects for systemic reform Michelle Alexander is quoted as saying:

“We see politicians across the spectrum raising concerns for the first time in 40 years about the size of our prison state,” said Alexander, “and yet I worry that so much of the dialogue is driven by financial concerns rather than genuine concern for the communities that have been most impacted and the families that have been destroyed” by aggressive anti-drug policies.

Unless “we have a real conversation” about the magnitude of the damage caused by the drug war, “we’re going to find ourselves, years from now, either having a slightly downsized system of mass incarceration that continues to hum along pretty well,” she said, “or some new system of racial and social control will have emerged again, because we have not learned the core lesson that our history is trying to teach us.”

I share Michelle Alexander’s concerns. I agree we have to directly confront the gross hypocrisy and misuse of resources associated with drug prohibition, but that’s only one aspect of the broader problem confronting us. I completely endorse the essential premise of The New Jim Crow – mass incarceration is the newest iteration of the racial caste system that was created during the earliest days of the republic and has persisted in various forms to the present.

For me, the problem is in framing the issue as dismantling ‘mass incarceration’. There’s no dispute the US incarceration rate is a human rights disaster, we have the highest incarceration rate in the world, except for the island nation of Seychelles. It has become an international embarrassment for the U.S., much the same way that legal racial segregation was in the 1950s and 60s. African-Americans learned the hard way that dismantling legal segregation and discrimination was not the same as dismantling racism and the institutions that support it – politically, socially and economically. Similarly, ending the ‘war on drugs’ will not significantly change the circumstances of communities that have been historically victimized by racially biased drug law enforcement. The frame of ending mass incarceration is great for educating people about the consequences of the war on drugs, but the frame we should use to guide policy reform is ending mass criminalization.

Mass incarceration is one outcome of the culture of criminalization. Criminalization includes the expansion of law enforcement and the surveillance state to a broad range of activities and settings: zero tolerance policies in schools that steer children into the criminal justice system; welfare policies that punish poor mothers and force them to work outside of the home; employment practices that require workers to compromise their basic civil liberties as a prerequisite for a job; immigration policies that stigmatize and humiliate people while making it difficult for them to access essential services like health care and housing. These and similar practices too numerous to list fall under the rubric of criminalization.

When people talk about mass incarceration they’re usually referring to the more than 2 million Americans behind bars in local jails or state and federal prisons. That number, as high as it is obscures the fact on any given day an additional 4 million people are under some form of correctional supervision – generally, probation or parole. According to the Wall Street Journal, studies reveal American men have a 52% likelihood of arrest over their lifetime – that’s basically a 50/50 chance. Either American men have an extraordinarily high rate of criminality or we’ve cast the police net way too wide and caught way too many in it.

I’m also suspicious of the reasons for the sudden embrace by the libertarian right of prison reform. Call me cynical, but I have a hard time believing they’ve seen the light and now support the agenda for racial justice despite the efforts of Rand Paul, Grover Norquist, Mike Lee and others to persuade us differently. From my perspective, the right’s embrace of prison reform is consistent with their broader vision of limited government. Over the past decade we’ve seen an aggressive campaign by conservatives to promote privatization of many traditional government services. Education and corrections are two ‘big-ticket’ areas of government expenditure, they have the additional benefit (from the right’s POV) of being areas that primarily serve low-income and minority populations – groups with limited clout and even less resources. Reducing government expenditures in these areas thru displacement and/or privatization accomplishes the economic and political objectives of right-leaning conservatives, especially if any savings derived from such “reforms” are returned to the ‘public’ in the form of tax cuts. Grover Norquist said as much during a remarkably honest exchange on the PBS NewsHour where he appeared with then NAACP E.D. Ben Jealous, ostensibly in support of the organization’s Smart on Crime Initiative.

I believe that, for a variety of reasons, the criminal justice system was already moving towards reducing incarceration – perhaps not at the same speed but the movement was headed in that direction. My reasoning is fairly simple. We have reached a stage technologically where we no longer need to incarcerate people in order to accomplish the goals of the criminal justice system.

I believe that racism (and the US criminal justice system is just one of the many tentacles of modern racism) is primarily designed to serve the interests of capitalism. When those interests involved the domination of blacks in order to exploit their labor (aka slavery), racism helped facilitate that purpose – justifying black subordination, white supremacy and the violence on which the system relied. In today’s post-industrial economy as black labor has become increasingly irrelevant, the education and criminal justice systems have become the principal tools for black subordination and economic exploitation. The prison industrial complex (PIC) is the new arena for the commodification of black bodies for the profit of a few. But the PIC doesn’t require people be housed in actual prisons. Home monitoring and surveillance equipment; community-based transitional housing; residential drug treatment facilities – provide methods of non-incarcerative control. We can turn people’s homes into their prisons and make them pay for the privilege of staying there, all in the name of reform.

The major problem with defining the issue as reducing ‘mass incarceration’ is that almost anything you do that reduces the number of people behind bars can be called ‘reform’ regardless of the impact it may have on individuals and irrespective of whether it has any substantial impact on racial disparities in the criminal justice system. It could be the criminal justice equivalent of the pyrrhic victory blacks experienced in winning the legal battle against school segregation only to find themselves a decade later with few white children in the public schools to integrate with.

Reframing the campaign as one to reduce criminalization would have us address all the various ways people are being targeted, not just for illicit drug use. The new front for criminalization is the criminalization of poverty. There’s been a proliferation of new laws and practices at the state and local level designed to punish people for being poor by requiring them to submit to drug tests, background checks and other intrusive practices as a requirement for access to public benefits.

Reframing the campaign as one to reduce criminalization would also weed out those who see prison reform as a vehicle to promote privatization and limited government and have no interest in the ‘justice reinvestment’ approach that seeks to use savings derived from reduced incarceration to invest in the communities where the majority of criminal justice consumers live. Libertarian politicians like Rand Paul, Mike Lee and Rick Perry oppose things most people want and need – like increasing the minimum wage; expanding Medicaid eligibility; increasing food stamps and other income support; investing in early childhood education; protecting consumers from predatory financial institutions and expanding the vote. If the same folks who say they support prison reform as a ‘racial justice’ issue get behind these issues I’m down with them all the way, if not, they should get stepping……….


At What Age does a Black Male Become a Threat?

July 15, 2013

My grandson is too young to know anything about the events surrounding the death of Trayvon Martin or the trial of George Zimmerman, yet the outcome of the trial may have a significant impact on his life. He’s too young to watch the news and frankly doesn’t care about it unless it concerns his favorite character, Elmo, after all he’s not yet 2 years old.

He started talking about six months ago, his first intelligible word was ‘Hello’. He understands it is a greeting so he uses it constantly, whenever we’re walking down the street or through a store he says hello to everyone he sees and will continue to say it until they respond to him. Because he is still a baby and very personable, he almost always gets a smile and hello back from the people he greets. Sometimes, people ignore him, or look the other way, but to date I’ve never noticed any anger or hostility or fear directed his way.

Right now when people see him they see a cute, well-dressed little boy with a winning smile and engaging personality, his blackness is a matter of minimal significance. Unfortunately, I know at some point that will change. At some point – I’m not sure at what age – people will look at him and the first thing they’ll see will be his color and everything else about him – his smile, his openness, his intelligence, his desire to engage – will be filtered by their view about his color, whether they find his very existence menacing and they will act accordingly. This fact is not new to me, it’s something I’ve thought about ever since his birth but the events of this weekend have elevated that occasional thought into a real worry.

At what age does a black male become a threat in America? Is it 15, 10 or is it as young as 5? I know police have not been hesitant to handcuff and arrest young children and treat them like criminals. The following picture is seared into my memory:


At what age does a black male become a threat? I wanted to believe that we are no longer a country that sees all black males as potentially threatening but that’s a belief not grounded in reality. The reality is we are a country where a substantial percentage of the population sees black males (particularly young ones) as potentially threatening despite having twice elected a decidedly non-threatening black man as President.

My grandson is being raised to feel free in all environments, to move fluidly across the broad span of socio-economic spaces in society. That’s how I raised his father and it’s how his father wants to raise him. One would think it’s admirable to raise a child that way but I’m beginning to fear it could be a liability. We can raise him to feel free everywhere but what happens when he runs into someone who doesn’t believe he is free to be anywhere? What happens when he runs into someone like George Zimmerman who believes people who look like him are ‘punks’ or criminals who should be monitored, controlled and even killed if they seem threatening. How do I protect him from that without restricting his freedom?

I don’t believe the majority of people think or act like George Zimmerman, I don’t even think the majority of white people think or act like Zimmerman. The problem with this case and the outcome of the trial is that it sends the wrong message. Instead of discouraging vigilantism and racial profiling, it served to justify and excuse it. Not just because of the jury verdict – which was not unreasonable given the evidence and lawyering – but because of the media and political conversation that has surrounded it.

Most observers have lost perspective of the human elements involved in the case – it is a tragedy for all involved. Did George Zimmerman pursue Trayvon Martin setting off the chain of events that led to the shooting? Absolutely, there’s little doubt of that. Is it possible that in the heat of a physical altercation, he legitimately feared for his safety and reached for and used his gun? Quite possibly. Did he have some racial animus? Most likely. But I don’t think he set out that night to hunt down and kill a black man and I don’t think he’s a racial supremacist. The problem is he lives in a country that empowered him to walk the streets with a loaded gun and know that if he used it against a minority male, he could rely on local police to believe his claim of self-defense.

This case is about so much more than the unfortunate killing of a black teenager by a Hispanic wanna be cop. It’s about the way people’s attachment to their right to own guns has become more important than others right to live without getting shot. It’s about a political culture where hatred of your enemy (Obama) would cause one to be dismissive and hostile to grieving parents and suggest their innocent child was responsible for his own death. It’s about a society that accepts without question white fear of blacks and is blind to black fears of whites despite centuries of whippings, lynchings, beatings, jailings and state executions. And despite all the talk of a “national conversation about race” I don’t think too many people are ready and willing to talk openly, honestly and listen to the other side.

I think the best outcome we can expect from this particular case is to use it as a barometer of how hot racial tensions in the country have become and a road map of the institutional changes we must make to avoid similar outcomes in the future.

My hope is that my grandson will never encounter a George Zimmerman but the question of when does a black male become a threat is one I have to learn the answer to. Why? So I can prepare him in advance for the day he walks up and says hello to someone and they look away in fear……..

Reflections on Michael Jackson………………..

June 25, 2009

It’s 6:15 pm on Thursday, June 25th and I just heard the news that Michael Jackson has died. Apparently he had a heart attack in his LA home and was rushed unconscious to the hospital. Of course the media wasted no time in bringing up all the gossip and innuendo that surrounded his later life and focusing on questions regarding his sexual proclivities and personal idiosyncracies. Once I allowed the truth of the news to sink in, I could not help but feel a great sense of loss. I remember the year the Jackson Five burst on the music scene – it was 1969 and the hit singles “I Want You Back” and “ABC” played regularly on my favorite radio station – WWRL. I was just starting high school and listening to the latest hits and learning the newest dance steps were an important part of my school based social activities. We marveled at this new group of young men with great moves and a great sound and were astounded that the best performer was also the youngest. I’ll never forget the first time I heard Michael sing, “I’ll be There” – his voice was so beautiful and mature, it seemed impossible such music could be coming from someone so young…………
For the next twenty years Michael Jackson, his family, their music and careers were always in the background of my life. I remember clearly the night of the Motown 25th Anniversary show when Michael performed Billie Jean and did the Moonwalk for the first time on television. It was the main topic of conversation the next day – everyone asked the same question – “Did you see Michael last night?”, “Yeah, those moves were BAD!!!!”, “How did he do that?”, “What’s up with the white glove?”. And so it was with Michael Jackson – he was always more than the sum of his parts, his singing, dancing, stage presence were surpassed by none – he was a master at his craft – making music – making us happy and letting us live out our fantasies thru him.

Like Michael, I was raised in the Jehovah’s Witness’ faith so I understood the deep conflict created between his religious beliefs which eschewed all “worldliness” and his status as a “pop star” and icon from the age of ten years old. This tension between his spirituality and physicality played itself out in many ways, not least in the behavior which led to the allegations of pedophilia which dogged him during his later life. It’s hard to adhere to a fundamentalist faith while living in a hedonistic environment – I think his parents did him a disservice by not providing him better coping mechanisms. Despite the role of his religious and family upbringing, there are many factors about Michael Jackson’s life and death that are a reflection of the arc of American culture over the past twenty-five years.

It was clear from the earliest days that Michael was the star of the family – his talent was so enormous it could not be contained – nor could it be kept within the confines of a family group. It was no surprise when he elected to leave Motown and begin a solo career – his first solo album “Off the Wall” only confirmed his genius in doing so – it was far better than anything he’d produced as part of the Jackson Five. Then came the famous performance at the Motown Reunion event – we all watched because we wanted to see him performing again with his brothers not realizing the real treat of the evening would be his solo performance of ‘Billie Jean’. That performance and the album that followed – Thriller – cemented his claim as the greatest performer of his generation and lifetime. It would be great if that was all he would be remembered for – his great talent – his commitment to excellence and his humanitarian commitment to peace and love – especially for the sick and destitute children of the world. Children who like him, were unable to experience the joy and carefree space we associate with youth.

Unfortunately, Michael Jackson’s name will also be associated with the many bizarre events that characterized the last two decades of his life. From the numerous plastic surgeries that left him looking like a mutilated wax version of his former self with badly bleached skin to match his overly straightened hair to the allegations of improper sexual behavior culminating in the trial where he was accused of being a pedophile. That trial like the O.J. Simpson trial – was a total media circus – even though he was acquitted of the charges in many ways it marked the end of Michael’s public life. He was never the same after that event – his descent into obscurity accelerated to its dramatic climax today. It appears he died while in the midst of attempting a career comeback – I for one am glad he died in the effort rather than in the aftermath of failure.

Michael Jackson wanted to be a star and he achieved that goal – well beyond his wildest expectations. What he discovered too late is that stardom can be its own prison, from which there is no parole or reprieve. A glass bubble in which every foible, eccentricity and personal weakness is magnified and spotlighted for public scrutiny and judgment. And judge him we did, the marriages, the adoptions, the Peter Pan-like fantasy world he created and inhabited at his Neverland Ranch in California. His denouement seemed to follow the color of his skin – as he went from a handsome black man to a somewhat spectral looking nearly-white man, he seemed to slip further away from reality, ultimately a victim of the fame his family had programmed him to seek but offered no protection or support from………….. There’s more I want to say but the words that come to mind seem insufficient, so I will end this post with a song from one of his recent albums – Invincible (too bad he wasn’t) the song is entitled – Heaven Can Wait – but apparently not long enough……………….. Heaven Can Wait