The New Untouchables Crime: Punishment and Race in America

The current American prison system is a leviathan unmatched in human history. Never before has a supposedly free country denied basic liberty to so many of its citizens. In December 2006, some 2.25 million people were being held in the nearly 5,000 prisons and jails scattered across America's urban and rural landscapes. According to a 2005 report of the International Centre for Prison Studies in London, the United States -- with one-twentieth of the world's population -- houses one-quarter of the world's inmates. The US incarceration rate (now at 714 prisoners per 100,000 residents) is almost 40 per cent greater than the nearest competitors (the Bahamas, Belarus, and Russia). Other industrial democracies, some with significant crime problems of their own, are much less punitive: The US incarceration rate is 6.2 times that of Canada, 7.8 times that of France, and 12.3 times that of Japan. The US spends some $200 billion annually on law enforcement and corrections at all levels of Government, a fourfold increase (in constant dollars) over the past quarter century.

One-third of inmates in State prisons are violent criminals, convicted of homicide, rape, or robbery. But the other two-thirds consist mainly of property and drug offenders. Inmates are disproportionately drawn from the most disadvantaged parts of society. On average, State inmates have fewer than 11 years of schooling. They are also vastly disproportionately black and brown.

Some argue that this massive increase in incarceration reflects the success of a rational public policy: faced with a compelling social problem, Americans responded by imprisoning people and succeeded in lowering crime rates. Crime rates have, indeed, fallen dramatically since reaching their peak in the early 1990s, and increased incarceration does appear to have reduced crime somewhat. But by how much? Estimates of the share of the 1990s reduction in violent crime that can be attributed to the prison boom range from 5 to 25 per cent. (That is, at most one-quarter of the recent decline in crime can be explained by the rise of imprisonment.) Whatever the number, analysts of all political stripes now agree that we have long ago entered the zone of diminishing returns.

Imprisonment rates have continued to rise while crime rates have fallen for the simple reason that US criminal justice policy has become much more punitive. The nation has made a collective decision to punish offenders more severely. Thus, between 1980 and 2001, the chances of someone being arrested in response to a criminal complaint stayed constant, at just under 50 per cent. But, over this same period, the likelihood that an arrest would result in imprisonment more than doubled, from 13 to 28 per cent. As a result, the incarceration rate for violent crime almost tripled, despite a sharp decline in the level of violence. Incarceration rates for nonviolent and drug offenses increased at an even faster pace: between 1980 and 1997 the number of people imprisoned for nonviolent offenses tripled, and the number incarcerated for drug offenses increased elevenfold.

To be sure, in the United States, as in any society, public order is maintained by the threat and use of force. We enjoy our good lives in part because we are shielded by the forces of law and order, which keep the unruly at bay. Yet in this society, to a degree virtually unmatched in any other, those bearing the brunt of law enforcement belong in vastly disproportionate numbers to historically marginalized racial groups. Crime and punishment in America has a color. The extent of racial disparity in imprisonment rates is greater than in any other major arena of American social life: At eight to one, the black-white ratio of incarceration rates dwarfs the two-to-one ratio of unemployment rates, the three-to-one ratio of non-marital childbearing, the two-to-one ratio of infant-mortality rates, and one-to-five ratio of net worth. While three out of 200 young white men were incarcerated in 2000, the rate for young black males was one in nine. A black male resident of the state of California is more likely to go to a state prison than a state college.

The scandalous truth is that the police and penal apparatus are now the primary contact between adult black American men and the American State. Among black male high-school dropouts aged 20 to 40, a third were locked up on any given day in 2000, fewer than three per cent belonged to a union, and less than one quarter were enrolled in any kind of social program. Coercion is the most salient meaning of government for these young men. Sociologist Bruce Western estimates that nearly 60 per cent of black male dropouts born between 1965 and 1969 were sent to prison on a felony conviction at least once before they reached the age of 35.

This punitive turn in the nation's social policy -- intimately connected with public rhetoric about responsibility, dependency, social hygiene, and the reclamation of public order -- can be fully grasped only when viewed against the backdrop of America's often ugly and violent racial history. An historical resonance between the stigma of race and the stigma of imprisonment serves to keep alive in US public culture the subordinating social meanings that have always been associated with blackness. The subtle and not-so-subtle consequences of America's history of race relations helps to explain why the US is exceptional among democratic industrial societies in the severity and extent of its punitive policy and in the paucity of its social-welfare institutions. Race was a central factor influencing the evolution of American social policy in the last third of the twentieth century.

The political scientist Vesla Mae Weaver, in a recently completed dissertation, examines policy history, public opinion, and media processes in an attempt to understand the role of race in this historic transformation of criminal justice. She argues -- persuasively, I think -- that the punitive turn represented a political response to the success of the civil-rights movement. Weaver describes a process of "frontlash" in which opponents of the civil-rights revolution sought to regain the upper hand by shifting to a new issue. Rather than reacting directly to civil-rights developments, and thus continuing to fight a battle they had lost, those opponents shifted attention from a political demand for racial equality to a seemingly race-neutral concern over crime.

Once the clutch of Jim Crow had loosened, opponents of civil rights shifted the "locus of attack" by injecting crime onto the agenda. Through the process of frontlash, rivals of civil rights progress defined racial discord as criminal and argued that crime legislation would be a panacea to racial unrest. This strategy both imbued crime with race and depoliticized racial struggle, a formula which foreclosed earlier "root causes" alternatives. Fusing anxiety about crime to anxiety over racial change and riots, civil rights and racial disorder -- initially defined as a problem of minority disenfranchisement -- were defined as a crime problem, which helped shift debate from social reform to punishment.

So consider the nearly 60 per cent of black male high-school dropouts born in the late 1960s who are imprisoned before their 40th year. While locked up, these felons are stigmatized; their links to family disrupted; their opportunities for work diminished; their voting rights may be permanently revoked. They suffer civic excommunication. America's zeal for social discipline consigns these men to a permanent nether caste. And yet, since these men -- whatever their shortcomings -- have emotional needs, including the need to be fathers, lovers and husbands, we are creating a situation where the children of this nether caste are likely to join a new generation of untouchables. This cycle will continue so long as incarceration is viewed as the primary path to social hygiene.

One cannot reckon the world-historic American prison build-up over the past 35 years without calculating the enormous costs imposed upon the persons imprisoned, their families, and their communities. This is a question of social morality, not social hygene. Nor can social science tell us how much additional cost borne by the offending class is justified in order to obtain a given increment of security for property or peace of mind for the rest of us. These questions about the nature of the American State and its relationship to its people transcend the categories of benefits and costs.

Yet the discourse surrounding punishment policy invariably discounts the humanity of the thieves, drug sellers, prostitutes, rapists, and, yes, those whom the State puts to death. It gives insufficient weight to the welfare, to the humanity, of those who are knitted together with offenders in webs of social and psychic affiliation. What is more, institutional arrangements for dealing with criminal offenders in the United States have evolved to serve expressive as well as instrumental ends. We wanted to "send a message," and have done so with a vengeance. In the process, we have created not only facts, but also constructed a national narrative of blame. We have created scapegoats and assuaged our fears. We have met the enemy, and the enemy is them, the others.

Incarceration keeps them away from us. The sociologist David Garland writes: "The prison is used today as a kind of reservation, a quarantine zone in which purportedly dangerous individuals are segregated in the name of public safety." This situation is morally problematic in the extreme. We Americans have chosen to invest in human punishment, but not in human development. Our society creates crime-promoting conditions in our sprawling urban ghettos, and then acts out rituals of punishment against them as some awful form of human sacrifice. We law-abiding, middle-class Americans have, through our elected representatives, made decisions about social policy that benefit us, created from a system of suffering, rooted in State violence.
This situation raises a moral problem that we Americans cannot avoid. We cannot pretend that there are more important problems in our society -- unless we are also prepared to say that we have turned our backs on the ideal of equality for all citizens and abandoned the principles of justice. We ought to be asking ourselves the fundamental question: What are our obligations to our fellow citizens -- even those who break our laws?

To aid in thinking about the moral dimensions of the current situation, I wish to suggest a thought-experiment: Let us imagine, in the spirit of the political philosopher, John Rawls, that any one of us could occupy any rank in the social hierarchy. Let me be more concrete: Imagine that you could be born a black American male outcast shuffling between prison and the labor market on his way to an early death to the chorus of nigger or criminal or dummy. What social rules would we pick if we actually thought that they could be us? If any one of us had a real chance of being one of those faces looking up from the bottom of the well -- of being the least among us -- then how would we talk publicly about those who break our laws? What would we do with juveniles who go awry, who roam the streets with guns and sometimes commit acts of violence? What weight would we give to various elements in the deterrence-retribution-incapacitation-rehabilitation calculus, if we thought that calculus could end up being applied to our own children, or to us? How would we apportion blame and affix responsibility for the cultural and social pathologies evident in some quarters of our society if we envisioned that we ourselves might well have been born into the social margins where such pathology flourishes? I expect that we would still pick some set of punishment institutions to contain bad behavior and protect society. But wouldn't we pick arrangements that respected the humanity of each individual and of those they are connected to through bonds of social and psychic affiliation?

Moreover, continuing with the thought-experiment, wouldn't we also recognize a kind of social responsibility, even for the wrongful acts freely chosen by individuals? This is not to argue that people commit crimes because they have no choices, or that in this sense the "root causes" of crime are social; individuals always have choices. My point is that society at large is implicated in an individual's choices because we have acquiesced in -- perhaps actively supported, through our taxes and votes, words and deeds -- social arrangements that work to our benefit yet to that person's detriment. These discriminatory arrangements shape his consciousness and sense of identity in such a way that the choices he makes, which we may condemn, are nevertheless compelling to him -- an entirely understandable response to circumstance. Closed and bounded social structures -- like racially homogeneous urban ghettos -- create contexts where "pathological" and "dysfunctional" cultural forms emerge; but these forms are neither intrinsic to the people caught in these structures nor independent of the behavior of people who stand outside them.

When we hold a person responsible for his or her conduct -- by establishing laws, investing in their enforcement, and consigning some persons to prisons -- we need also to think about whether we have done our share in ensuring that each person faces a decent set of opportunities for a good life. We need to ask whether we as a society have fulfilled our collective responsibility to ensure fair conditions for each person -- for each life that might turn out to be our life. And what American can honestly say that we now have laws and policies that we would endorse if we did not know our own situation and genuinely considered the possibility that we might be the least advantaged?

Too many Americans fail to see that, because of the paucity of our social welfare institutions, we as a society are collectively responsible for creating conditions that spawn the wrongful acts of individual persons. As a result, the enormous racial disparity in the imposition of social exclusion, civic excommunication, and lifelong disgrace has come to seem legitimate. We shift all the responsibility onto their shoulders, only by irresponsibly -- indeed, immorally -- denying our own. And yet this entire dynamic has its roots in past unjust acts that were perpetrated on the basis of race.

Producing a racially defined nether caste through the ostensibly neutral application of law should be profoundly offensive to our ethical sensibilities -- to the principles we proudly assert as our own - a nation conceived in liberty and dedicated to the proposition that all persons are created equal. Mass incarceration has now become a principal vehicle for the reproduction of racial hierarchy in US society. Our country's policymakers need to do something about it. And all of us Americans are ultimately responsible for making sure that they do.
Adapted from "Why Are So Many Americans in Prison? Race and the Transformation of Criminal Justice", Boston Review, July/August 2007.