Prisoners Of Politics: Breaking The Cycle Of Mass Incarceration – (The Politics of Criminal Justice Reform)

Author: Rachel Barkow
Publisher: Cambridge, MA: Belknap Press of Harvard University Press, 2019. 304p.
Reviewer: Jonathan Simon | February 2021

Some trends last for decades and others unfold in months.  Both are true today of America’s troubled criminal justice system.  Continuing a trend that began in the 1970s, the entire system remains many times larger than it had been historically.  Despite a decade of steps toward reducing incarceration through modest reforms in the states and even the federal government, the prison population remains not far from its modern peak of the early 2000s.  Despite some well-known reform prosecutors in a few big cities, much of the mechanism of aggressive law enforcement remains fully in motion, as is visible in the death of Breanna Taylor in a now infamous drug raid on her apartment by the Louisville Police department in the spring of 2020.

Yet in the year since Rachel Barkow’s Prisoners of Politics was published, the policy space for criminal justice reform has been radically altered by the lynching of George Floyd by the Minneapolis Police in May 2020 and an unprecedented mass movement for Black Lives that is calling not for reforms, but potentially transformative reorganization of law enforcement.

As a result of these very recent trends, some readers may be tempted to dismiss Prisoners of Politics as too modest in its embrace of evidence based, expert mediated criminal justice policies.  In any of the many particulars addressed in this extremely efficient guide to our current problems, such critics may or may not be right, but because of the longer trend, the persistence of mass incarceration despite a decade of crisis and challenge, those critics would pass by this careful case for moderating the worst aspects of mass incarceration at their (and our) peril.  As part II of the book documents, for much of the past four decades a powerful headwind of populist punitiveness has swept across governments in the US and much of the world.  In the US, where our system is distinctively responsive to electoral pressures, this populism created a tough on crime politics that long seemed unstoppable.  If we are indeed at a transformative moment in the politics of criminal justice reform, it is not because this “tough on crime” populism is dead but because it may now face a counter populism anchored in the experience of younger generations in the US and especially people of color.

Given that reform of criminal justice is likely to unfold in a very complex and unpredictable political environment, one likely to favor the status quo, Professor Barkow’s reform realism is one that retains considerable value for the present conjuncture.  After reviewing the book’s rich but pointed survey of the maladies in our criminal justice system and its political sources, I’ll return to the question of  whether an expertise and data-first approach to reforming criminal justice can address the systemic racism in our system of mass incarceration.

Rachel Elise Barkow, the Segal Family Professor of Regulatory Law and Policy and Faculty Director of the Center on the Administration of Criminal Law at New York University, is as well placed as anyone in academia and beyond to observe the flaws of our contemporary practices from a systemic perspective.  Most criminal justice scholars, this one included, tend to concentrate on criminal justice institutions like police, parole, or prisons, and therefore often lack perspective on what makes those institutions so problematic compared to other aspects of modern government.  Professor Barkow, in contrast, has come to her views of criminal justice very much a scholar of the modern administrative state as a whole, as well as criminal justice.  In a body of influential law review articles, Professor Barkow has built a compelling case for treating criminal justice more like we treat other rule making and enforcement practices by the government.  Much of that insight is brought to bear in part III of Prisoners.  It is also highly relevant that since 2013 Professor Barkow has served as a member of the United States Sentencing Commission, an independent federal agency charged with recommending changes in federal sentencing guidelines based on empirical monitoring of practice.  Moreover, Barkow was appointed by President Obama during a period where the Commission has made significant efforts to reform some of the most punitive aspects of federal sentencing law, in the face of considerable resistance by Congress.  As a commissioner, Barkow has been able to observe the federal part of our criminal justice system (which represents only about ten percent of American prisoners, but is a sizable system in its own right, larger than any single state) with the most systemic data available.  She has also witnessed the politics of reform from much closer than the ivy towers of academe.  Flawed as it is, and Barkow discusses commissions at some length in chapter nine, the US Sentencing Commission is a possible model for the kind of expert based reform that Barkow supports.

Professor Barkow’s reform posture begins and remains within a commitment to main presumptive goals of American crime policies, that is, to prevent crime (through deterrence, incapacitation and reform) and redress serious criminal acts that have occurred (retribution).  One might question whether racism isn’t a bigger driver of penal policy than such respectable public goals.  Yet in taking these at face value, Barkow is able to make the powerful point over and over again: if these values actually describe what we want from criminal justice, we ought to be outraged by their failure to deliver.  If these are truly our goals, then the public have been terribly misserved by decades of investing in police, prosecution, and prisons.  What we have in criminal justice she concludes powerfully “failed government on an epic basis.”  The fact that we have not been outraged is the target of Barkow’s moderately toned survey of the failed policies.  The fact that an unprecedented number of Americans in the summer of 2020 were marching for criminal justice reform and telling pollsters they thought systemic racism was a problem may suggest that time for outrage has come.

Prisoners begins at a place skipped over by many accounts of mass incarceration: substantive criminal law.  Beginning in the late 1960s and continuing through the 1990s, Congress and state legislatures have served up a steady diet of new criminal laws and sentence enhancements to voters who they presume welcome any increase in penal severity.  Far more criminal laws were added in this period than at any other time in our history and summing to more than all the previous laws in most states.

The title of chapter one, “Misleading Monikers” gets at a very important feature of modern crime legislation not previously discussed in the literature, the tendency of lawmakers to build laws around frightening populist images of crime threat (gang members, armed career criminals, drug kingpins that they apply more broadly.  The legislators next build the law out to make it as convenient as possible for prosecutors to gain convictions.  As a result, many contemporary criminal laws capture an extraordinarily broad range of criminal conduct, some of which is very threatening, but much of which is not.

This is a starting point for what chapter two calls “senseless sentencing.”  With crimes covering a wide range of conduct and sentences anchored by the worst figures imagined in that range, there is little connection between the crime prevention or retributive goals of the system and the prison terms handed out.  Like other recent surveys of the system’s flaws, Prisoners puts a lot of the blame for this growing legitimacy deficit on prosecutors.  By choosing what crimes to charge, prosecutors have basically unreviewable discretion to set the likely prison sentence, and over a considerable range.  Since many contemporary sentencing schemes limit the power of judges to choose a sentence within the range, defendants have little choice but to plea bargain for something below the maximums.  The result is an aggregate level of punishment that almost certainly outweighs the retributive guilt of those suffering or the crime control value in locking them up.

In a different era, extra imprisonment might have been justified as providing a rehabilitative component that would ultimately make the cost and suffering valuable in crime control terms.  In the era of mass incarceration however, no one can reasonably make that argument.  The result is what chapter four labels “counterproductive confinement,” time spent in jails and prisons that promises no help against future difficulties on reentry.  To an incredible degree, American correctional functionaries in the period of mass incarceration have come to accept high recidivism rates as largely inevitable (a prophecy that can become self fulfilling when combined with aggressive parole supervision).

All of these tendencies toward over punishment were amplified further by cutting back on historic practices of early release from imprisonment, including parole and clemency.  This leaves far too many people living under the burden of what Barkow calls “obsolete outcomes” with no way for the system to recalibrate a more appropriate punishment.  The undoing of these release mechanisms has been noted often, but drawing on the broader scholarship on regulation, Professor Barkow offers an interesting explanation for why these mechanisms have always been unpopular and became more so in a period of heightened salience of crime fear anchored in behavioral economics.  The “endowment effect” is the name given by economists and psychologists to a cognitive bias frequently observed in experiments, i.e. that  subjects develop an aversion to giving up something they already possess, even if they have just acquired it, and even if offered something of equal or greater value.  In a similar way, the public tends to view the perceived risk of crime from releasing a person from prison (especially if they could have been held longer) as greater than the risk from people who are not in custody.  This irrational but strong bias can explain why even states engaging in efforts at prison population reduction, like California after the landmark Supreme Court decision in  Brown v. Plata[1], go to great pains to avoid releasing any actual prisoners (as opposed to diverting others from going to prison in the first place).

The last part of the tour of our overextended penal system takes up what Barkow calls “collateral calamities,” the literally thousands of civil disabilities associated with either conviction or imprisonment.  These penalties are often not even visible to ordinary citizens or potential offenders, leading sociologist Joshua Kaiser to call them “hidden sentences.”  Hiding sentences does not make much sense from a retributive or deterrent point of view and indeed, there appears to be largely no penological justification for most of them.  These are amplified by frequent use of private criminal records databases to exclude people with records (numbering in the millions) from jobs or housing opportunities.  The result can be homelessness, hunger, and social death (little wonder going back to prison may not loom as much of a threat).

In part II Professor Barkow sets this bloated carceral landscape in the political context of punitive populism.  The birth of “tough on crime” as a populist political appeal that could replace more traditional economic benefits unhinged a criminal justice system in the United States that already had a lot of potential for electoral competition to effect policy (elected prosecutors, elected sheriffs, elected judges in many states).  Much of this dynamic was amplified by television and print media that adopted a “law and order” narrative about crime with a positive feedback loop between media and politicians.  This punitive turn in politics and political turn in penology has been described by others, notably Stuart Hall, Catherine Beckett, and David Garland, but Barkow revisits this history to drive home a critical point for the present and future.  Once the hounds of populism have been unleashed, they are not easily recaptured.

This is especially difficult because so many of the checks on populism built into our federalist Constitution have been eroded during the war on crime of the late 20th century.  Clemency, the power to pardon or reduce penalties typically vested in the chief executive, was recognized as an important check on punitiveness by Alexander Hamilton and Jeremy Bentham, but has been largely abandoned out of fear of political backlash.  Another critical potential check was the judiciary.  The 8th Amendment bans cruel and unusual punishment.  The Supreme Court has long recognized it as a check on excessive as well as cruel punishments.  But in recent decades, in their zeal to affirm populist policies at the state level, the Court set a threshold for grossly disproportionate sentences so high as to make it virtually impossible for an imprisoned person to win relief on this ground.[2]  The Supreme Court could also hold overcrowding to be cruel and unusual punishment, a holding that would require virtually every state to undertake decarceration policies, but current case law requires a showing that the overcrowding is so excessive as to cause cruelty through other factors like failed medical or mental health services.[3]

Professor Barkow’s vision for reform, set out in part III of the book, will disappoint many defunders and abolitionists (and I count myself a supporter of both), but it is anchored in and disciplined by an understanding of the populist politics of punishment and the waning of historical checks on populism that defunders and abolitionists must contend with as well (a subject to which I’ll return).  This part of the book reminded me of a classic criminal justice reform book of my youth, The Honest Politician’s Guide to Crime Control by Norval Morris and Gordon Hawkins, two of the leading scholars of imprisonment at the time.  The book was published in 1972, when mass incarceration was still a project under construction, and high levels of crime in America called for policy response.  Two imminent experts sought to dissuade American politicians.  Needless to add, it didn’t work.  We are at a very different moment now, but an approach that recognizes the permanently political nature of crime policy and then seeks to restrain it institutionally is in many respects Professor Barkow’s greatest contribution in this value laden volume.

Prosecutors bore much blame for over punishment in part I.  Their power over criminal cases cannot be easily taken away without massive resistance, but Professor Barkow suggests it can be policed by the right combination of democratic accountability (something that seemed to be awakening even before the social movement of 2020), experts, and metrics.  Here is one of the key places where Barkow bridges the divide that sometimes opens up between reformers who want to democratize criminal justice to make it more truly responsive (believing, in effect, that it’s not political enough), and those who want to constrain it with expertise (as if it’s too political).  Professor Barkow is clearly in the second group (I’m sometimes in the first), but importantly, she argues that democratic accountability requires metrics that allow voters to assess whether prosecutors are contributing to public safety and using resources well.  In other words, real democratization requires a positive feedback loop between defining goals that actually meet popular needs and then measuring results.

Another important proposal parallels some of the recent calls to defund police.  Prosecutors have acquired numerous roles beyond their core functions of charging crimes and proving them, like forensics and correctional policies.  Barkow argues persuasively for cutting prosecutors back to their traditional roles, arguing that this would reduce somewhat the institutional power of prosecutors to make the system even more punitive (for example, by opposing compassionate release decisions).

Finally, Professor Barkow believes that courts must engage with checking prosecutorial power much as they do that of administrative agencies.  It is quite standard in administrative law cases where a party is challenging the government’s regulations or enforcement actions; courts use the Administrative Procedures Act to police agencies in terms of statutory considerations, constitutional considerations, procedural compliance, and basic rationality.  But when it comes to the penal part of the state, courts find themselves deferring and deferring.

These directions will not lead to radical or dramatic change, but they could clearly counter the dynamics set up by poisonous populist crime politics of the late 20th century.  The real challenge to expert led administratively oriented reforms is whether we have the kind of value consensus as to crime that we at least use to have around issues like pollution or highway safety.   Some years ago Malcolm Feeley and I observed that data based risk assessment methods seemed to be moving into the penal state and might in time reorient its traditional punitive goals to those of risk management.[4]  We turned out to be wrong about punishment for many of the reasons Barkow lays out.  A political system based on punitive populism had no need for reasonable risk measures; rather, inflamed with racialized images of threat and violence, crime politics has supported a “zero tolerance,” spare no expense approach.

But even if public discussion of crime is becoming more favorable to a risk management approach, the consensus on what risks are acceptable is likely to be limited (for instance to “non-violent” crime or criminals).  More fundamentally, a series of powerful myths about crime and punishment have accumulated as part of our common culture during successive campaigns to expand the penal state which help create a strong presumption that more punishment is good: good for the society, good for the state, even good for the punished person.  The oldest of these myths, dating back to the late Middle Ages, is that crimes unpunished, like debts unpaid, bankrupt a society.  As Professor Barkow’s research on clemency shows, attempts to release prisoners runs into a strong sense that they must pay their full debt to society.

The birth of policing was accompanied by a new myth that centered crime in the idleness of the poor and rapidly criminalized idleness and all those activities that supported it (drinking, gambling, or just loitering).  The turn of the 20th century and the age of eugenics saw third myth come into focus, the “born criminal,” whose innate proclivities to offending could only be incapacitated and not changed.  Identifying and removing these persistent offenders from among us has justified the excess discretion of police and prosecutors ever since.  Finally, in our time, the myth that disorder creates high crime neighborhoods has been institutionalized behind “broken windows” policing to justify aggressive arrests aimed at minor criminality.  Individually and interactively these myths have turned punishment into a veritable civil religion.

It might seem that Barkow’s appeal to expertise might be just the thing for myth busting — however, I’m skeptical.  When beliefs become taken for granted they shape the very data we inquire about.  Science did a pretty good job contesting the idea of the “born criminal” in the mid-20th century, but the myth just transformed a bit into the hunt for “high rate” or “persistent offenders”.  The actual cause of criminality was less central than the desire to offer the public the comforting belief that there is some way to know and act on such people.  I fear that these kinds of myths are unfortunately too deeply institutionalized in our culture to be readily attacked by data.  The kind of metrics that Barkow hopes can check punitiveness in part III, things like recidivism or crime rates in a particular area, presuppose our basic beliefs about why we punish crime. They can rarely if ever challenge them.  Yet while they persist it is hard to persuade the public to undertake deep reforms of the system.  Of course the same problem faces abolitionists, even more dramatically so.  By definition they want to consider the complete elimination of the very punitive institutions, courts, prosecutors, police, prisons, whose historical emergence have evolved to satisfy these myths.  As long as people still believe them, it will be very hard to give up these practices (and not just because of an endowment effect).

What, then, if not experts and data?  A different kind of populism.  In the background of Prisoners of Politics is a sense that the only strong political force around crime policy is the punitive populism described well in Part II.  But in the year since the book came out, and especially in the months since George Floyd’s lynching in May 2020, a new politics has emerged backed by the largest cluster of political demonstrations in the nation’s history.[5]  This politics is one rooted in the lived experience of Black Americans who face both high levels of interpersonal violence and state violence from the agencies of criminal justice.  As Barkow acknowledges throughout the book, institutionalized racism (sometimes in the form of the very myths discussed above) is one driving force that explains our acceptance of such a deeply flawed form of government, but her expert based reforms would do little to challenge it.  In contrast, the Black Lives Matter movement places the racist discounting of certain lives at the center of not just its understanding of American racism, but its understanding of American crime and violence.  By demanding a framework for challenging that violence and racism through democratic engagement and social investment in Black communities and poor communities, the Black Lives Matter movement can do the one thing that can disable the myths of crime: change the topic to some domain in which the myths don’t easily apply, e.g. public health, housing, jobs, mental health care.  Once we have new goals, bring on the experts.

Jonathan Simon is the Lance Robbins Professor of Criminal Justice Law, at Berkeley Law, University of California at Berkeley

[1] 563 U.S. 493 (2011)

[2] In two cases involving “life without parole” sentences for juveniles, the Court used a somewhat more facilitative approach and granted relief but it remains unclear whether they would permit this kind of “categorical” challenge to a person contesting a more conventional long individual sentence.  See Graham v. Florida, 560 US 48 (2010)  and Miller v. Alabama, 567 U.S. 460 (2012).

[3] See Brown v. Plata, 563 U.S. 493

[4] Feeley, Malcolm M., and Jonathan Simon. “The new penology: Notes on the emerging strategy of corrections and its implications.” Criminology 30.4 (1992): 449-474.

[5] The Black Lives Matter movement first became visible after the killing of teenager Trayvon Martin in 2011.

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