Confronting Confinement: A Report of the Commission on Safety and Abuse in America's Prisons
Among the many jarring sights I have witnessed as a reporter writing about poverty, one of the saddest involved a father, a son, and a maximum security prison outside Joliet, Illinois. The son, a voluble thirteen-year-old named Dwayne, wasn’t a bad kid but had become increasingly troublesome in class. His father had been locked up since Dwayne was five, but still had influence with the three children he had left behind. Or so their mother hoped. Alarmed at her difficulties controlling the family, she looked to the sound of a father’s voice to set things straight. It was a two-hundred-mile round trip from their home in Milwaukee, and I had the only car.
The Stateville Correctional Center is a gloomy fortress with high concrete walls that could serve as a prison movie set. About half its inmates were in for murder, including Dwayne’s father, a low-level crack dealer who had acted as the lookout during an attack on a rival in which a teenage girl was accidentally killed. Eight years later, Dwayne’s mother still missed him too much to settle down with another man. Dwayne claimed to give him little thought, though a school essay suggested otherwise. He had written about an abandoned mouse who was surrounded by predators, only to realize the abandoned creature was himself. “That’s about my Daddy!” he said.1
After sleeping through the drive, Dwayne struck a pose of boredom as we approached the main cell block, while his mother looked stoic and his siblings seemed alarmed. A guard led us to a room ringed by vending machines where a worn-looking prisoner said he was thankful for the rare chance to see his kids. I left them to a private visit, and when they reappeared Dwayne was sobbing and the others looked like they had witnessed a death. “They miss their father,” was all their mother could say. They piled in for a mournful ride home, a study in how many lives can be linked to one prison cell.
Bruce Western makes a crucial point at the start of his important book, Punishment and Inequality in America: “If prisons affected no one except the criminals on the inside, they would matter less.” But with more than two million Americans behind bars, the impact of mass incarceration is impossible to contain. Their fate affects the taxpayers who support them, the guards who guard them, the families they leave behind, and the communities to which they return. Not even the war in Iraq escapes the reach of prison culture; Sergeant Charles Graner, the villain of Abu Ghraib, worked as a Pennsylvania prison guard.
Everyone is affected, but not equally. Black men in their early thirties are imprisoned at seven times the rate of whites in the same age group. Whites with only a high school education get locked up twenty times as often as those with college degrees. Among the many impediments to reform has been the gap between the people who make criminal justice policy—mostly educated whites who favor imprisonment, especially during twelve years of Republican congressional control—and those who live with the consequences.
There is another impediment to reform: mass incarceration seems to have made the streets safer. The vast increase in the prison and jail population from about 380,000 in 1975 to 2.2 million today overlaps with equally stunning declines in crime. The homicide rate in the 1990s fell by 43 percent. Many critics of incarceration argue (a bit too quickly) that crime would have fallen without the prison boom. Perhaps. Still the value of safer neighborhoods is immediate, while the costs of excessive imprisonment are theoretical and vague.
Western’s achievement—a large one—is to make them less vague. He identifies mass incarceration as a major cause of modern inequality, with large and uncounted collateral effects. Imprisonment does more than reflect the divides of race and class. It deepens those divides—walling off the disadvantaged, especially unskilled black men, from the promise of American life. While violent criminals belong in jail, more than half of state and federal inmates are in for nonviolent crimes, especially selling drugs. Their long sentences deprive women of potential husbands, children of fathers, and convicts of a later chance at a decent job. Similar arguments have been made before, but Western, a Princeton sociologist, makes a quantitative case. Along the way, his revisionist account of the late 1990s detracts from its reputation as an era of good news for the poor. Its appearance coincides with several other instructive new studies of American incarceration.
For much of the twentieth century, about one American in a thousand was confined to a cell. The proportion of Americans behind bars started rising in the mid-Seventies, and by 2003 had done so for twenty-eight consecutive years. Counting jails, there are now seven Americans in every thousand behind bars. That is nearly five times the historic norm and seven times higher than most of Western Europe.
The penal population grew because crime increased; because the number of police and prosecutors grew (which raised the odds of punishment); and because policymakers, disillusioned with the ethos of rehabilitation, imposed tougher penalties. The increase in severity occurred on the front end with longer sentences and reduced judicial discretion to shorten them, and on the back end by making fewer prisoners eligible for early release.
Meanwhile, the “war on drugs” led to the arrest of growing numbers of small-time users and dealers. By the late 1990s, 60 percent of federal inmates were in for drug offenses. The result is an ever-growing prison system, populated to a significant degree by people who need not be there. It was no liberal advocate but Supreme Court Justice Anthony M. Kennedy who offered a damning view of criminal justice in the United States: “Our resources are misspent, our punishments too severe, our sentences too long.”
Despite the crackdown, white men with college degrees are only slightly more likely than previously to end up in prison. Among black men with college degrees, the odds of imprisonment have fallen. But by 2000, high school dropouts of either race were being locked up three times as often as they had been two decades before. And racial disparities have become immense. By the time they reach their mid-thirties, a full 60 percent of black high school dropouts are now prisoners or ex-cons. This, Western warns, has resulted in “a collective experience for young black men that is wholly different from the rest of American society.”
Much about black underclass life is tragic, but the racial imbalance in the prison population is particularly extreme. For example, while blacks are twice as likely as whites to be unemployed, they now go to prison eight times as often. We are used to thinking of prison as at least partially a byproduct of the larger tragedy of poverty; Western depicts it as a cause. Through mass incarceration, he writes, “the poor are made poorer and have fewer prospects.”
This happens in part because an inmate’s earnings prospects fall. Most men in their twenties and thirties experience rapid earnings growth, as their skills and contacts expand. Those in prison atrophy and leave stigmatized. Devah Pager, a Northwestern University sociologist, conducted an experiment in which pairs of otherwise identical men applied for jobs with one identifying himself as an ex-con. The disclosure of a prison record reduced the chances of getting a second interview by half for whites and by two thirds for blacks. Using the National Longitudinal Survey of Youth, Western estimates that a prison record reduces a man’s annual earnings by 30 to 40 percent, through less work and lower pay. For the average black man, the lifetime loss comes to $86,000. (Whites, with more to lose, lose more: $114,000.)
Incarceration taxes family life, too, leaving disadvantaged men with even weaker prospects as husbands and fathers. A prison record reduces a black man’s chances of getting married by 11 percentage points. Married or not, most jailed men have kids, making the prison boom a growing source of disadvantage for young people. As the gloomy trip to the Joliet prison made clear, the whole family does the time. From 1980 to 2000, the number of children with fathers behind bars rose sixfold to 2.1 million. Among white kids, just over 1 percent have incarcerated fathers, while among black children the figure approaches 10 percent.
It may be tempting to view these men—dope sellers, petty thieves—as fathers in name only, with few ties to their kids. But nearly half are living with their children at the time of their arrest. And the perpetual surprise about bad parents is how much their children need them anyway. In marginalizing so many men, in the cause of stabilizing their community, the prison boom risks destroying the communities it aims to save. Mass imprisonment, Western writes, “may be a self-defeating strategy for crime control.”
There is a rejoinder, of course—locking them up makes streets safer, especially the streets of poor neighborhoods. Western acknowledges that “the 1990s crime drop provided a remarkable improvement in public safety and quality of life, particularly for the disadvantaged.” But his analysis gives the prison boom just 10 percent of the credit. The theory is partly one of diminishing returns: we are locking up people who pose little threat, and keeping others long past their most dangerous years (typically ending in their mid-thirties). And prison time, Western says, can turn minor offenders into hardened criminals, through the influence of other inmates and the denial of later opportunities.
My own sense is that Western may be underestimating the role that increased imprisonment has played in reducing crime. A fivefold increase in prison rates is a huge change; it may have had effects that statistical models missed. Steven Levitt of the University of Chicago and William Spelman of the University of Texas have each done statistical analyses that give rising incarceration about a third of the credit for reduced crime.2 Whatever the number, one can accept that imprisonment has helped reduce crime, while appreciating Western’s disclosure of the costs and sharing his sense that the urge to incarcerate has gone too far.
The 1990s were said to be a time when rising tides finally did lift all boats. Western warns that part of the reason, statistically speaking, is that many poor men have been thrown overboard—the government omits prisoners when calculating unemployment and poverty rates. Add them in, as Western does, and joblessness swells. For young black men it grows by more than a third. For young black dropouts, the jobless rate leaps from 41 percent to 65 percent. “Only by counting the penal population do we see that fully two out of three young black male dropouts were not working at the height of the 1990s economic expansion,” Western warns. Count inmates and you also erase three quarters of the apparent progress in closing the wage gap between blacks and whites.
Western is not just tinkering with the numbers. He is rewriting one of the era’s major story lines. “This is the first recovery in three decades where everybody got better at the same time,” President Clinton said just before leaving office. “I just think that’s so important.” Punishment and Inequality in America shows that among one vital group of the poor, the opposite was true: as official unemployment hit record lows, joblessness among young black dropouts rose to record highs. The prison expansion reflected inequality. The prison expansion created inequality. The prison expansion hid inequality from view.
Given how many people they affect, one would expect prison conditions to draw more scrutiny. While two prison stories have made recent news, both prisons were overseas—at Abu Ghraib and Guantánamo Bay. Hoping to direct interest back to the US, the Vera Institute of Justice, a New York policy institute, convened what it called the first national commission on prison conditions in three decades.
The Commission on Safety and Abuse in America’s Prisons was presented as a left–right affair, with Nicholas de B. Katzenbach, the former attorney general, occupying the Democratic half of the co-chairmanship, in partnership with John J. Gibbons, a Republican and former federal appeals court judge. With money from, among others, the Ford Foundation, twenty commissioners held four regional hearings with ninety-eight witnesses and issued its unanimous report in June 2006. Confronting Confinement is notable less for the originality of what it says than for showing the continuing need to say it.
The report tells us that America’s prisons are dangerously overcrowded, unnecessarily violent, excessively reliant on physical segregation, breeding grounds of infectious disease, lacking in meaningful programs for inmates, and staffed by underpaid and undertrained guards in a culture that promotes abuse. What is more, prisoners’ ability to legally challenge their living conditions has been curtailed by a congressional roadblock called the Prison Litigation Reform Act of 1996, which has cut in half the number of inmates filing civil rights complaints.
There is some good news. Since 1980 the murder rate inside prisons has fallen more than 90 percent, which should give pause to those inclined to think that prisons are impossible to reform. But programs for inmate education, training, and drug treatment have been made scarce. (If policymakers were once too credulous about rehabilitation, they are now too dismissive.) And physically separating some inmates from the rest of the population (often in conditions amounting to solitary confinement) has become a punishment of first resort, leading to what the commission called “tortuous conditions that are proven to cause mental deterioration.” From 1995 to 2000, the number of inmates in isolated cells rose 40 percent to 81,000. Despite the decline in homicide, serious violence is common and recordkeeping so poor it often escapes notice. As the commission met in Los Angeles for its final hearing, two thousand prisoners at the North County Correctional Facility erupted in a race riot.
Like Bruce Western, the authors of Confronting Confinement emphasize that few of the problems inside prisons truly stay confined. Ninety-five percent of those who go in also come back out. The problems that arise inside prisons, the authors write, go home “with prisoners after they are released and with corrections officers at the end of each day’s shift.” The most obvious example involves the 1.5 million people who are released from prisons and jails each year with an infectious disease—tuberculosis, hepatitis, HIV, and drug-resistant staph infections. They are a threat to everyone, but especially to the minority neighborhoods from which they are disproportionately drawn. Meanwhile, the increasing number of prisons that require inmates to pay for part of their own medical care, an innovation intended to deter malingerers, has been found to reduce clinic visits by up to 50 percent.
Some of the worst news is the most familiar: prisons are the modern mental wards. By the most conservative estimate, the mentally ill account for 16 percent of the prison population, or about 350,000 people on a given day; their true numbers may be twice as high. Aside from adding to their misery, their presence in such large numbers makes cell blocks harder and costlier to police. The solution is not merely to improve the woefully inadequate mental health treatment of prisoners. It is “to improve and expand community mental health treatment” on the other side of the prison walls. But how many blue-ribbon panels have already told us that?
Jeff Manza and Christopher Uggen, who understand the vastness of the jailers’ reach, follow the story out of the cell and into the voting booth. Locked Out examines how the disenfranchisement of felons shapes American democracy—hardly a hypothetical matter in an age of split electorates and hanging chads.
The subject caused a stir in 1998 when a prophetic report by two advocacy groups, the Sentencing Project and Human Rights Watch, showed that four million Americans had lost the right to vote. “This is an issue that can potentially affect some elections,” warned Marc Mauer, a coauthor, with a prescience he could not have grasped.3 Surprised at how little was known about the practice of disenfranchisement, Manza and Uggen, sociologists at Northwestern University and the University of Minnesota, set out to investigate it. Exacting and fair, their work should persuade even those who come to the subject skeptically that an injustice is at hand.
“Disenfranchised felon” is a term that encompasses three groups. Some 27 percent are still behind bars. Others, 34 percent, are on probation or parole. And the largest share, 39 percent, are what the authors call “ex-felons,” whose sentences have been served. Voters are least receptive to letting the first group vote and most receptive to the last. But state practice varies greatly. Maine and Vermont offer ballots to those still behind bars; thirteen states strip the franchise not only from current prisoners but also from probationers, parolees, and some or all ex-felons. By Election Day 2004, the number of disenfranchised felons had grown to 5.3 million, with another 600,000 effectively stripped of the vote because they were in jail awaiting trial. Nationally, they made up less than 3 percent of the voting-age population, but 9 percent in Florida, 8 percent in Delaware, and 7 percent in Alabama, Mississippi, and Virginia.4
We often hear that the transgressions of felons are so severe that they forfeit the moral right to vote. Yet as with many aspects of criminal justice, the United States is out of step with its international peers. At least twenty democracies, including Canada and Israel, allow current prisoners to vote. More to the point, the United States is out of step in this matter with its own historical logic, by which it has been making its democracy progressively more inclusive. We have, over many years, found fit to enfranchise the landless, African-Americans, women, and eighteen-year-olds, and we admit into the polling place any number of others whose political judgments might be compromised—addicts, illiterates, the heavily medicated. But not if they once were caught selling a bag of dope.
Manza and Uggen write with an appealing evenhandedness, searching out arguments that challenge their own. They find few people articulating the case for felon disenfranchisement, which appears to thrive more as practice than theory. Still, Senator Mitch McConnell of Kentucky, now the Republican minority leader, made the case on the Senate floor in 2002, while defeating a Democratic effort to let ex-felons vote in federal elections:
States have a significant interest in reserving the vote for those who have abided by the social contract that forms the foundation of a representative democracy. We are talking about rapists, murderers, robbers, and even terrorists and spies. Do we want to see convicted terrorists who seek to destroy this country voting in elections? Do we want to see “jailhouse blocs” banding together to oust sheriffs and government officials who are tough on crime?
The authors do not dismiss worries about “jailhouse blocs.” They simply find no evidence that such blocs have ever formed. (Rape, murder, and robbery, the crimes McConnell cites, account for about 8 percent of felonies, while drug crimes account for a third.) They do find evidence that disenfranchisement is linked to the less hypothetical problem of race. The more African-Americans a state contains, the more likely it has been to ban felons from voting. Tracing the statutes’ history in states such as Virginia and Florida, Manza and Uggen find that they were enacted along with grandfather clauses, poll taxes, and literacy tests as “another means through which the African American vote was restricted.”
The practice continues to skew the racial composition of the voting rolls today. By denying the vote to felons, the average state disenfranchises 2.4 percent of its voting-age population—but 8.4 percent of its voting-age blacks. In fourteen states, the share of blacks stripped of the vote exceeds 10 percent. And in five states (including Kentucky), it exceeds 20 percent. Focusing on black men, Marc Mauer has estimated that felony laws keep nearly one in seven from voting nationwide. (See chart)
Do felons care? The authors warn against overestimating felon apathy. Locked Out estimates that about 35 percent of disenfranchised felons would vote in presidential elections (compared to 52 percent of the general public). Indeed, the authors attach such importance to the franchise that they see it as a crime-prevention strategy—part of the “civic reintegration” needed to weave “former criminals back into the fabric of law-abiding society.” Anything that builds civic interest is welcome, but Manza and Uggen offer little evidence for the thesis that voting heals.5 While it would be nice if voting builds character, that is not the reason to give felons the vote. The reason is that to do otherwise—to exclude 5.3 million people from the rolls—is to offend the principle of universal suffrage and undermine democratic legitimacy.
However much voting matters to felons, their voting matters to the country. If felons were allowed to vote, the United States would have a different president. Disproportionately poor and black, felons choose Democrats in overwhelming numbers—giving them between 70 percent and 85 percent of their votes in presidential elections. Had they been allowed to vote in 2000, the authors estimate, Al Gore’s margin in the popular vote would have doubled to a million. If Florida had allowed just ex-felons to vote—those who can claim to have paid their debt to society—Gore would have carried the state by 30,000 votes and with it the electoral college. (This estimate uses conservative assumptions: a 27 percent turnout with a 69 percent Democratic preference).
Nor is the impact limited to the presidency. Manza and Uggen find that seven modern Republican senators owe their election to laws that keep felons from voting: John Warner of Virginia (1978), John Tower of Texas (1978), Mitch McConnell of Kentucky (1984), Connie Mack of Florida (1988), Paul Coverdell of Georgia (1992), Jim Bunning of Kentucky (1998), and Mel Martinez of Florida (1998). According to the authors’ estimates of turnout and candidate preference among the disenfranchised, four would have lost even if only the ex-felons in their states had voting rights.
These represent a small share of the four-hundred-plus elections held since 1978. But since the Senate has been so closely divided, a fuller enfranchisement might have shifted some years of partisan control to the Democrats. (This outcome depends on how long one assumes the Democratic victors would have held the seat.) It certainly would have bolstered the Democrats’ power in the minority. Consider just one result of Senate legislation—the upward distribution of wealth through the Bush-era tax cuts—and one sees anew how mass incarceration abets inequality.
In December, Senator Sam Brownback announced he was running for president. A few days later, the conservative Kansas Republican chose to spend the night in a cell at the Louisiana State Penitentiary in Angola. “We don’t want to build more prisons,” he said. “We don’t want to lock people up.” He was there to advertise his support for the prison’s religious programs. Still, his move represented, to say the least, a break with past presidential campaign practice, which includes advertising the crimes of a black rapist (George H.W. Bush), executing a brain-damaged man (Bill Clinton), and mocking the fears of a soon-to-be-executed woman (George W. Bush).
The current President Bush, who as governor oversaw 152 executions in Texas, made a surprising proposal in his 2004 State of the Union speech, when he called for a modest expansion of services to help newly released prisoners. “America is the land of second chance, and when the gates of the prison open, the path ahead should lead to a better life,” he said. The bill for expanding services is still pending, but it has support among religious conservatives influenced by the account of personal redemption put forward by Charles Colson, the Watergate felon turned prison minister.6
A few months earlier, at the urging of Colson and other religious conservatives, a Republican Congress passed the Prison Rape Elimination Act of 2003, which monitors and guides state efforts to eliminate sexual assaults on prisoners. As the law was signed, Colson argued in a column that “whatever a prisoner may have done, he is still created in the image of God, a being whose dignity is to be protected.”7
As the rape bill was heading to President Bush’s desk, Justice Kennedy, a Reagan appointee, chided the members of the American Bar Association for their failure to show more interest in prisoners’ fates. He warned,
A decent and free society, founded in respect for the individual, ought not to run a system with a sign at the entrance for inmates saying, “Abandon Hope, All Ye Who Enter Here.”8
Elsewhere on the conservative landscape, several right-of-center think tanks have attacked the prison boom as wasteful of dollars and lives. The Texas Public Policy Foundation recently called for an expansion of parole, which “recognizes that inmates may change.”9 And the new Democratic Congress, with the support of federal judges to the left and right, is talking of hearings to reexamine mandatory sentencing laws.
The US remains a law-and-order society in a law-and-order age. But with skillful leadership modest change may now be possible. The commission on prison safety report got a plug from a Washington newspaper—not from the Post but from the editorial page of the conservative tip sheet The Washington Times. Prisoners deserve punishment, it said. “But we shouldn’t forget that a vast majority will also be returned to society, which has as much at stake in their rehabilitation as they do.”10
A Letter on Rape in Prisons May 10, 2007
I was following Dwayne’s family for my book about the welfare system: American Dream: Three Women, Ten Kids, and a Nation’s Drive to End Welfare (Viking, 2004). ↩
Other possible explanations include changes in demographics, an improved economy, an expanded police presence, gun control laws, the shrinking impact of crack, and perhaps most controversial, the legalization of abortion. ↩
Tamar Lewin, “Crime Costs Many Black Men the Vote, Study Says,” The New York Times, October 23, 1998. ↩
Although most prisoners cannot vote, they do subtly affect elections through the drawing of legislative districts. Those districts are based on the decennial Census, which counts prisoners as residing where the prison is located. Since inmates largely come from inner cities and prisons are often rural, Manza and Uggen argue that “this practice results in a small but measurable transfer of political power and money from urban centers to rural towns.” They note that 60 percent of Illinois’s prisoners come from Cook County, though only 1 percent are incarcerated there. ↩
Manza and Uggen cite data from a single source, the Youth Development Study, a longitudinal panel in St. Paul, Minnesota. Among people with arrest records, 12 percent of those who voted were rearrested, compared to 27 percent of nonvoters. But once they controlled for other factors, like race and sex, the differences were not statistically significant. Still, the authors call the pattern “suggestive.” ↩
For an interesting look at the importance of conservative evangelicals to criminal justice reform, see Frank O. Bowman III, “Murder, Meth, Mammon, and Moral Values: The Political Landscape of American Sentencing Reform,” Washburn Law Journal, Vol. 44, No. 3 (Spring 2005). Through them, Bowman, a former federal prosecutor, argues, “Republican politicians …can be brought to see that taking the Gospels seriously means forgiveness of at least some criminal sinners and the possibility of redemption for those sinners in this life as well as the next.” ↩
Chuck Colson, “Jesus’ Special Interest: Prison Rape and the Law,” Townhall.com, September 4, 2003. ↩
Anthony M. Kennedy, speech at the annual meeting of the American Bar Association, August 9, 2003. ↩
Marc Levin, “The Role of Parole in Solving the Texas Prison Crowding Crisis,” Policy Perspective, November 2006. ↩
“Snapshots Behind Bars,” The Washington Times, June 8, 2006. ↩