Lockup Lowdown: The Case Against our Huge—and Increasingly Private—System

By Glen Martin

Incarceration remains a growing trend in the Land of the Free. The United States, with only 5 percent of the global population, accounts for 25 percent of the world’s prisoners, according to the American Civil Liberties Union. And as a recent New Yorker article reveals, a trend toward the privatization of criminal justice has only made things worse. Judges now routinely pass on court fees and the costs of supervision to impoverished probationers, with the result that many default on their debts and are re-jailed. Debtor prisons were outlawed in the U.S. in 1833, but they are back in business with a vengeance.

Amy Lerman, an assistant professor at UC Berkeley’s Goldman School of Public Policy, traces the tipping point to the War on Drugs.

“We started seeing substantive changes to policing and imprisonment in the late 1960s and early 1970s,” says Lerman, who was quoted in the New Yorker piece and has written two books on the American criminal justice system.  “Before that, the police and the courts were more focused on violent offenders. Since then, we’ve seen militarization of the police, far tougher penalties for most crimes, and a huge spike in imprisonment and probation rates. And for all that, there has been no net social benefit. Even more troubling is the fact that  ‘crime’ and ‘crime control’ have become code for race. The burden of these (post-Drug War) policies has fallen disproportionately on people of color.”

Lerman notes the “collateral consequence” of imprisoning large numbers of people from urban neighborhoods is profound, rippling through families and social institutions alike.

“The effects are negative and long-lasting,” she says. “When people go into our prisons, they typically don’t emerge rehabilitated. They come out as better criminals, and that has a devastating impact on their communities.”

Lerman agrees with the general thesis of the New Yorker article: the privatization of prisons and probation programs is a failure.

“But that doesn’t mean the public incarceration system is superior,” she says. “Both institutions are broken. Prisons are problematic for democratic societies in the best of circumstances. They are by no means unnecessary, but they are coercive by nature, inherently contrary to democratic institutions and impulses. So implementing any prison policy in an open society is likely to be complicated and difficult.”

Lerman finds the relatively recent trend of forcing people to pay for their own probation particularly troublesome. The policy has been widely adopted, and is popular among voters because costs are borne by the offender, not the state.

 “We’re starting to get some data on this, and I’m deeply concerned,” Lerman says. “Many of the people who end up on probation are poor. They’re likely to have a weak attachment to the labor force. When they’re hit with court and monitoring fees, they’re stuck. They can’t pay the principal of what they owe, let alone the interest, and the interest just keeps accruing. Ultimately, they’re remanded to custody. But the people who can pay do pay. So you end up with this deep disparity between rich and poor. To a very real degree, these policies criminalize poverty, and that should be a real cause for alarm.”

That’s all gloomy stuff—but Lerman counsels against despair. We may have hit the high water mark for draconian criminal penalties, and the tide could be receding.

“I think we’ve arrived at a remarkable moment in criminal justice,” she says. “I’m cautiously optimistic. Many states are trying to stabilize or reduce their prison populations. That includes California, which is under a court order for inmate reduction. We’re also seeing a trend toward sentence reduction for nonviolent, nonsexual crimes. Marijuana is being decriminalized. Federal statues for crack cocaine possession have been loosened. There’s a growing realization that the old approaches are unworkable and unaffordable. We’re seeing accelerating change, though it’s going to take decades to undo the institutional damage. I think we’ll look back on this period as a dark time for criminal justice—as an embarrassment.”

Filed under: Law + Policy
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