Land of the Less-Free

Robert Perkinson, author of “Texas Tough,” on America’s failed policy of mass incarceration.

Texastough Bookcover

If you want to study the movie business you go to Hollywood. If you want to assess the U.S. prison system, you focus on Texas. In “Texas Tough: The Rise of America’s Prison Empire” (Metropolitan), University of Hawaii-Manoa professor Robert Perkinson does just that, telling the story of America’s decades-long punitive revolution through the experience of Texas, the most locked-down state in the most incarcerated country in the world. (At any given time, the U.S. has one of every 100 adults under lock and key.) Perkinson does more than simply explain why America has eschewed a rehabilitative approach to criminal justice in favor of a retributive and profit-driven regime. Most provocatively, he argues that mass incarceration, with its vast racial disparities, should be viewed as a backlash against desegregation and other civil rights breakthroughs. 

Last week, I spoke with Perkinson by phone about the role of politics in the development of the U.S.’s singularly vengeful approach to lawbreaking, and what it might take to get citizens to re-think America’s criminal punishment system.

Why has the U.S. built the biggest prison system in the history of democratic governance? And why have the measures of racial disparity in criminal justice worsened during the post-civil rights era?
A lot of scholars are trying to figure out why. What I argue is that it has more to do with politics than crime, and particularly the kind of poisonous politics of race that have always infected American politics.

Specifically, there are two things that happened. First, the southern conservatives who were fighting against integration turned to criminal justice [after they were defeated] to police this new order. Across the south, the same jurisdictions that fought against civil rights most avidly became the nation’s most avid jailers.

Second, in the mid-1960s, Republicans figured out that they could harvest the conservative white voters who were being driven out of the Democratic Party by its embrace of civil rights, not by spouting racial epithets but by talking tough on crime. The rhetoric was pioneered by George Wallace, picked up by Barry Goldwater, and carried to victory by Richard Nixon. Nationally and at a federal level, that’s where the southern backlash against civil rights through criminal justice achieved national federal influence. And from Nixon forward, Republicans have become the chief architects of the policies—mandatory sentencing, curtailment of parole, shifting of discretion from judges to prosecutors, and so on—that have produced record crops of prisoners.

Then all these crime bills—which haven’t had much effect on crime but have had a huge impact on the prison population—were passed under Ronald Reagan and George H.W. Bush. Most had to do with the war on drugs, a colossal failure, at least in terms of its stated purposes. These bills fueled a huge amount of the prison growth.

What was George W. Bush’s role in the punitive revolution?
George W. was integrally involved in massive prison growth in Texas. The year he became governor, Texas opened a new prison every week. They put up dozens of prisons early in his tenure, and he supervised all sorts of legislation—especially with respect to juveniles and drugs—that have helped inflate Texas’ prison population.

As for his presidency, it was distinguished by making draconian laws more draconian. Famously, John Ashcroft, his first attorney general, aggressively pushed federal prosecutors to seek the death penalty. [Ashcroft] also started micromanaging the plea bargains of U.S. attorneys and urged them to seek the maximum penalty allowed under law. And Bush continued to throw billions of dollars at the enforcement side of the war on drugs, which wrecked a lot of lives and churned through mountains of cash, but did very little to reduce the use of drugs.

What role does the fear of appearing “soft on crime” play in preventing reform of the prison system?
A huge role. And it’s not just appearing soft on crime. For 40 years, politicians have tried to position themselves as being tough on crime, crafting legislation in response to whatever criminal outrage happens to occur during that legislative season, with no regard for the social or fiscal cost. And all this time, the politicians who imagine that we should be smart on crime instead of just tough on crime have been scared by the [Willie Horton] attack on Michael Dukakis by Bush I. Even those Democrats who have recognized the impracticality and demagoguery of different legislative packages have been unwilling to oppose them for fear of getting slammed.

It appears that runaway costs might be the only thing that can slow prison expansion.
That seems to be the element that is giving advocates of change traction. By governing through fear and thinking short-term electoral advantage, and by treating crime packages as subtle racial wedge issues, politicians have created a gigantic, bloated government entitlement program that devours $212 billion per year and pays few dividends in terms of public safety. It has now become clear that if you are going to imprison at a cost of between 20 and 40 thousand dollars per year [depending on the state], then you have to curtail social services and aren’t going to have as many students in college or an effective K-12 education system. Politicians are beginning to look at ways to downsize but it is going to take much more than fiddling around the edges to move the U.S. in a significantly different direction. It is going to take leadership from the top, in the same way the Obama Administration has tried to tackle health care head on.

Why has rehabilitation and the idea of the rehabilitative prison been a failure?
Criminal rehabilitation has never in any circumstances worked as well as its promise. Even in the most effective program a portion of those who go through commit more crimes—sometimes horrible ones. So it has a built-in political disadvantage.

Of course, you’ve got to compare a treatment program to regular imprisonment to judge whether it’s a failure. Thirty percent of people who leave prison—most of them without treatment—commit new crimes. So if a rehabilitation program does a little better for less money then that’s a huge success. That might still mean 20 percent recidivism but that would be a huge success.

Rehabilitation has also come under attack from the right in the post-civil rights era as coddling criminals, and under attack from the left as being patronizing. It got whipsawed in the cultural politics of the 1960s.

Would it be accurate to say that there is a prison-industrial complex?
I have not been so persuaded that that is an accurate way to think about mass imprisonment in the U.S. The term implies that it is greed and the profit motive that is behind the growth of imprisonment. While there are private prison companies using every bit of influence they have to increase incarceration that does not seem like a significantly causative variable. Racial inequality is the predominant force.

Where should the U.S. go from here?
While the hard end of the criminal justice system should attempt to provide education and counseling and drug treatment programs to help people get their lives back together once they are released, to my mind the emphasis needs to be on constricting the size of the system. I also think we need a lot more emphasis on indigent defense, so people get shorter sentences or don’t go to prison at all. We need to revamp sentencing schedules to return discretion to judges. However imperfect judges may be, they are more impartial arbiters than prosecutors.

In 1967, Lyndon Johnson ordered a study of our criminal justice system, much like [Virginia] Senator [Jim] Webb wants to do now. Barack Obama is supporting him and hopefully it will happen. The 1967 report said we should be tackling the problems that become law enforcement problems not with the hard fist of the state but with the helping hand of the state. You can go a long way toward decreasing crime with jobs programs, afterschool programs and treatment programs for addicts. All protect the public more than locking people up. But that would require a shift from criminal justice to social justice, a hard sell in Tea Party America.

What would you like readers to take away from “Texas Tough”?
I want to destabilize the way readers think about these hugely expensive and corrosive institutions. I also want people to realize that even though we have seen tremendous progress in civil rights, the shadows of slavery are still very much animate in the present. We live in a time when black men are more likely to go to prison than they are to graduate from college. That is a shameful contradiction of massive importance.

By emphasizing the ways that the history of race has governed the history of imprisonment, I want people to think about what it took to dismantle previous structures of inequality. Little changes are not going to cut it. It took a Civil War to end the institution of slavery. It took an epic freedom movement to dismantle segregation, and it will take another freedom movement to end mass incarceration.

I believe we will look back on this time as the period of mass imprisonment. I think it will be an era of American history in the same way as the Gilded Age or the Depression/New Deal. My hope is that it will be bounded by the election of Nixon in 1968 and the election of Obama in 2008, a forty-year period of irrationality, fear and reactionary demagoguery that wasted a lot of money, ruined a lot of lives and didn’t do much to protect the public.

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