The U.S. & California: Leaders of the Un-free World

By Mary Coomes and Paul Gilroy

The U.S. Leads the World in its Per Capita Incarceration Rate.Out of every 100,000 American men, 1,100 are in jail.Because of a passion for arrests and a dedication to longer and longer sentences, our jails now bulge with more than 2 million souls.

It’s time to ask ourselves some questions.Who created this situation and why?What is us costing us, not just monetarily, but morally, to put so many of our fellow citizens behind bars?And if we don’t want to be regarded as a 20th century Dickensian nightmare, what can we do to create a better legacy for our time?

First, some background.Until the 1970s, our rate of incarceration held steady at around 110 prison inmates for every 100,000 people.But in the 1980s and 90s, the rate quadrupled.And in 1998, it stood at 445 per 100,000.During those two decades, the nation added about 1,000 new prisons and jails.We began to develop, as some have called it, a “prison industrial complex.” 

California: A case study

In 1977, California prisons held 19,600 inmates.According to recent statistics from the California Department of Corrections, the number of prisoners in California’s (now 33) state prisons has reached 160,655-- that’s an incarceration rate of 467 per 100,000 people (not including prisoners in county jails). Today, after the construction of 21 new prisons between 1978 to 1998 at a cost of 5.2 billion dollars, California now has the largest prison system in the western industrialized world.It holds more people in its prisons than any other state system.And California has more people in its jails and prisons than do France, Great Britain, Germany, Japan, Singapore and the Netherlands combined.Even with all the new construction, the California system is the most overcrowded prison system in the country.

These figures reveal a tremendous expansion of the prison system in the U.S. and in California. More importantly though, the numbers force us to face the fact that such growth is unsustainable without a major shift in state government funding priorities.And no matter how much we might value fighting crime, it seems clear that a society that loudly recites a mantra of“freedom” while locking up more people than any other country in the world has a serious problem.

How did we get into this mess?It has to do with a shift in the political climate over the last thirty some years.Beginning in the late 60s, elected leaders began moving toward a “Law and Order” politics, which was in large part a backlash against the perceived lawlessness of the 1960s -- uprisings in the cities, civil disobedience in support of civil rights and against the Vietnam war.Conservatives who feared the growing unwillingness of many in society to stay in their place called for a crackdown on this “disorder.”The emphasis on Law and Order, pushed by political figures like George Wallace, Richard Nixon, and Ronald Reagan, meant a more punitive attitude toward criminal justice issues. 

Today, we are accustomed to a political climate in which our elected leaders compete with one another to be seen as “tough on crime.”Imagine a governor in the early 1990s signing a bill that contained an inmate bill of rights and included a limited program of conjugal visits.It would have been political suicide.The fact that none other than Governor Ronald Reagan signed such a bill into law in 1968 illustrates how drastically attitudes about punishment and reform have shifted over the past few decades.

Until the 1970s, the California prison system pursued-at least in theory-a policy of rehabilitating prisoners.The rehabilitative ideal meant that prisons served to prepare criminals to reenter society and become productive citizens.Sentencing under this system was indeterminate; the legislature set the maximum sentence for particular crimes-not minimums.Judges and the parole board, known as the Adult Authority, tried to fit the punishment to the individual and would release the prisoner when they considered him or her fit to re-enter society.

But there was no place for rehabilitation within the new politics of Law and Order in the 1970s.Thus, even supposedly liberal Democratic Governor Jerry Brown-- to appear tough on crime-- signed the bill that replaced indeterminate sentencing with fixed sentences.Significantly, that law also removed from the penal code language declaring that rehabilitation was the ultimate goal of the system and replaced that language with “punishment.” 

Under Governors Deukmejian in the 1980s, and Pete Wilson and Gray Davis too in the 1990s, the tough-on-crime policies have continued.In the 1990s the California legislature pushed through over 400 bills increasing prison sentences and others that required mandatory sentences for certain crimes.

In 1994, California under Pete Wilson passed one of the first and harshest “Three Strikes, You’re Out” laws in the nation.And it wasn’t just lawmakers who supported this.California voters passed the same law again in the form of an initiative.Under the law, prosecutors could call for special penalties for those convicted of second or third felonies if the first was a serious or violent felony.Under three-strikes, most sentences double after the second offense and increase to 25 to life after the third.

This element of California’s elevation of strict punishment to a moral crusade has been the most controversial.Not so much out of sympathy for those to be imprisoned, but because it would cause the prison population to skyrocket.I’ll return to this point later.

Related to the political cultural that promotes incarceration for punishment is a second factor--the institutional power and self-interest that has been created by years of the punitive, law and order ethos.The colossal prison system now has a large number of camp followers; people who have a vested interest in its continuation and expansion. Here the notion of the “prison-industrial complex” is useful-that is, a group of bureaucratic, political, and economic interests that demand increased spending on prisons regardless of need.This new complex functions just like the prison industrial complex of which President Dwight Eisenhower warned.Ike was concerned that in the 1960 election between Nixon and JFK, fears of a non-existent “missile gap” with the Soviet Union were stirred up by military contractors, the press, and candidates looking for more military spending.He worried that these self-interested groups would goad Americans into expensive and unnecessary over-responses to the military threat of the Soviet Union. Similarly, some people now argue that the “tough on crime” political hype that supports longer sentences and more prisons leads us to misdirect our funds and attention.

Prisons no longer serve simply to house criminals, the also serve as an economic development tools.A kind of “Prison Keynesianism” to funnel money into economically depressed areas.In the past twenty years, California has built most of its new prisons in depressed rural areas, and this has created a kind of built-in demand for the economic support of policies of punishment.Prisons are the number one employer in Imperial County in the South.Prisons like Avenal, Blythe, Corcoran, and Delano are sometimes the only source of a decent-paying blue collar jobs in their areas.

Towns like Crescent City, in the Northwestern corner of the state, where Pelican Bay State Prison is located, were on the verge of total collapse when the construction of a major prison promised the community economic salvation.Unemployment there stood at 20% when Pelican Bay was built in 1989.

Certain communities have come to see prisons as advantageous -- and their political representatives pay attention to this constituency and avoid threatening this new incarnation of political pork. Playing a leading role in this constituency is the California Correctional Peace Officer Association, the prison guards union.This organization has become a real force in state politics. The union gave $1 million to Republican Pete Wilson’s gubernatorial campaign in 1990, and $2 million to Democrat Gray Davis in 1998.

Prison growth has been good to the towns in which they’re built and to the prison guards, and they fight politically to keep the benefits.

Politicians have tied their political fortunes to the crime issue.The story of Proposition 21 from a few years ago reveals a great deal about the implications of using the crime issue as pawn in a political game. Back in 1998, Governor Pete Wilson was considering a run for the Presidency and wanted to secure his credentials as a tough-on-crime candidate, and so he pushed the Gang Violence and Youth Crime Prevention Act.This hard-line measure included a provision that would give prosecutors rather than judges the right to decide when a juvenile should be tried as an adult.Numerous corporate donors ( including Unocal, Transamerica, PG&E and Chevron) who wanted to win the favor of a potential U.S. president gave a total of $750,000 to the Proposition campaign.As PG&E spokesman Scott Blakely put it, his company had supported the drive with $50,000 but had “no position pro or con.”After Wilson lost re-election and the corporate donors lost interest, the initiative still had a war chest seven times the size of its opponents’.Gray Davis, the Democrat, perhaps wishing to avoid appearing weak endorsed the proposition.(Picking on children has always been part of the cult of punishment).It passed overwhelmingly.

There’s another, potentially more powerful, player in the prison-industrial complex and that is private, profit-driven prison corporations.California has not followed this trend in large part because the prison guards union is so strong and private prisons are notoriously anti-union.Better wages for jailors, after all, eat into the profits.

As capitalist enterprises, private prisons need to maintain and even expand the prison population.What looks like waste to taxpayers equals profit to them.Companies like the Correctional Corporation of America bank on benefiting from state prison overflow.The CCA recently spent $100 million to build a prison in the Mojave Desert outside of California city.They assumed that in the rural area where layoffs at Edwards Air Force Base created high unemployment and with California state prisons bulging at the seams, they could force their way into the California “market” in prisons.As one CCA executive told the Wall Street Journal, “If you build it . . . the prisoners will come.”Hardly a recipe for good criminal justice policy.

Still, for-profit prisons have yet to see their day in California.The state continues to avoid private prisons.

Another factor that we must consider in a discussion of the prison boom is crime itself.For all it’s the problems the rise in prisons has created, have they not helped solve the problem of crime at the same time?For many criminals, prison is no doubt the solution.Politicians did not make up the problem of crime in the 1970s (although I would argue they capitalized on it).The rate of violent crime more than doubled in the 1960s and continued upwards in the 1970s.Another spike in the rate in California hit in the mid-1980s, concurrent with the hysteria over crack and gang-related crimes.Violent crime was and is a real problem.Many politicians no doubt thought that this method - an exclusive focus on prison and punishment-- helped solve the problem.

More importantly, during this time, many politicians, like other Americans, were changing their attitudes toward drug crimes.In the early 70s, another liberal, this time the Republican governor of New York, Nelson Rockefeller, proposed an anti-drug law under which all drug dealers would get life in prison-- with no plea-bargaining.The actual law included a slightly less draconian mandatory 15 year to life term for possession of four ounces or selling two ounces.

But the law demonstrated a rising intolerance to drugs.Ever since, we have been fighting the so-called War on Drugs.Our weapon of choice -- not public health measures, but prison.As Franklin Zimring at the Earl Warren Legal Institute put it, “No matter what the question has been in American criminal justice over the last generation, prison has been the answer.”(Until the 2000 election, that is, when a drug treatment-not-prison measure passed).

Still, a rising crime rate does not account for the growth of California’s prisons.For one thing, the crime rate has been declining since the early-1990s, as the number of young males has declined; yet, the number of prisoners in California has doubled.While America continues to have a high rate of violent crime compared to Europe, people convicted of violent crimes constitute a smaller and smaller proportion of our prison inmates.It the ranks of non-violent offenders that contribute to the explosion in prison populations.And although the Three Strikes law has not quite resulted in the predicted mushrooming of prison populations, it is causing significant growth.Barring some policy change, these numbers will continue to grow.

We continue to stick with an approach that favors punishment over reform without ever asking what effect this has on those who commit crimes or on crime rates.And, unlike most government spending, taxpayers have dolled out millions for prisons without complaint.Putting so many people in jail may serve as one way to handle crime, it certainly makes a good campaign speech, and it sometimes provides a decent living for folks in poor rural areas, but still, it costs a lot of money. 

Regardless of whether we think prisons are an effective response to crime, the solution is becoming a problem in itself.

Show Me the Money:

The prison boom in California, of course, has meant a lot of money going to the Department of Corrections.According to James Gomez, head of the California Department of Corrections (CDC) until 1997, each “third strike” conviction represents “a $500,000 investment.”The average yearly cost to the CDC per inmate is $25,607.The Department estimates that it will need to spend some $6.1 billion over the next ten years just to maintain the prisons in their current overcrowded condition.

The focus on prison building has meant a shift of resources within the criminal justice system.Money goes toward building expensive prisons, not toward drug treatment programs that might address the root of the problem or to other less expensive alternatives to prison.For example, California parole officers face huge case loads -- in the 1970s they handled on average about 45 cases, now that number is 90. 

Drug treatment has not been a priority. About 85% of California’s inmates are substance abusers.Yet few, only about 3,000, receive any drug abuse treatment.And only about 8,000 participate in pre-release programs to help them adjust to life on the outside.It is no wonder that nearly 70% of those paroled return to prison.The vast majority of parolees returning to prison (60,000 of 80,000) are sent back for technical violation, like failing a drug test.

Another unanticipated cost of the punitive approach to crime -- and the 3 strikes law in particular-- has been a huge increase in people requesting jury trials.Defendants with two prior convictions may face life in prison.In this situation, they are not going to plea bargain.So not only are the jails overcrowded, so is the court system.And more prisoners awaiting trial clog the county jail systems, which are even more overcrowded and strapped for cash.

This trend toward imprisonment requires not only a shift in budget priorities within the Department of Corrections, but also a tremendous shift in resources in the state budget.The state will be forced to spend a larger proportion of tax dollars on prisons at the expense of other programs - or else to raise taxes.The former has been the trend in the last two decades. Between 1980 and 1995, the corrections budget increased 847%, while spending for higher education rose 116%. 

The tremendous financial costs and the bureaucratic problems are important, but something more significant is also at stake here. Lest we forget, what about justice?Despite former President Ronald Reagan’s announcement that we live in a color blind society, racism seems alive and well in the political economy of punishment.The punitive culture of law and order politics has hit people of color in such disproportionately high numbers that we cannot ignore the fact that it is - at least in effect - racist. 

And this is especially true of the drug war.Although research shows that white men use drugs at about the same rate as do black men, the latter are five times as likely to be arrested for a drug offense.The disparities in sentencing for certain drugs is but one example of a very thinly veiled tilting of the playing field.Sentences for crack cocaine, used disproportionately by people of color, are ten times longer than convictions for powder cocaine, most often used by whites.

Fighting crime is one thing, but these approaches to crime and to sentencing reveal far more than a society of rule breakers.There is nothing wrong with wanting to reduce crime.But we must examine not only crime, but our solutions to this problem.We cannot ignore how they affect various groups differently, and we cannot ignore their historical roots. 

As mentioned earlier, the law and order rhetoric emerged in the late sixties and the seventies as a political tool.It was conscious attempt on the part of politicians like Democrat George Wallace and Republican Richard Nixon to get white voters in the South and in the Northern cities to shift their allegiances by whipping up fears of black and Hispanic criminals.

For thirty years now politicians have tried to woo white voters by appealing to fears of crime, and they have won doing it.And to the extent that the more liberal political figures have won back some of those voters, they have often made the same appeals.

While the overt racial rhetoric of some Southern politicians in the 1960s, has been shelved, the message is still there.In the hysteria, we have demonized black and Latino men.When we use terms like predators, or “superpredators” to describe youth in black and Hispanic neighborhoods, we feed this hysteria. (And after all, these are the kids labeled in this way.The difference between a “troubled teen” and a “superpredator” can be expressed in a calculus of skin tone and parental income).By adopting this way of viewing kids, we give license to the police who commit acts of brutality in poor and minority neighborhoods.

This sort of demonization encourages us to tolerate incredible levels of official violence, especially against convicted criminals, and sadly, the state of California in the 1990s leads the nation in this regard.Between 1985 and 1995, guards killed 36 inmates -- triple the number killed in the Federal system and the next six biggest incarceration states combined.News stories in the past several years testify to the levels of official violence too -- the acquittals of guards for staging “gladiator battles” in the prison yards at Corcoran, and for arranging the rape of inmates, and the psychologically destructive policy of isolation in the Security Housing Units at Pelican Bay.

These stories are not only a measure of the extent to which the punitive culture has taken hold, but also give us an indication that we are willing to be frankly and expensively counter-productive in order to prove our viciousness toward criminals.Imagine being a prisoner in Pelican Bay for a ten year sentence, kept in isolation for 23 hours each day and often forced to fight for your life during your in the exercise yard.At the end of this sentence you are released with $200 and a bus ticket.What are your chances of getting a home, a job, and of coping with the world?It takes a willful blindness to argue that such a person will be able to adjust if only they work hard and stay straight.Yet this is what California has done through the 1990s.

This is the world we have built.It has cost us a lot, measured in dollars, lives, and principles.We might think of our shining new creation, this huge system of prisons, as the latest in a long line of public works.California has a great history of public works projects, from the water and power projects of the Owens valley, the Colorado, and the Hetch-Hetchy, to the Freeway system, to the UC and Cal State University systems.They have served as models for the nation.Each of these projects has had its problems and its share of corruption, but they have also reflected in some sense the spirit of the era in which they were created.

In the first 130 years in the state of California, we built twelve state prisons.In the past twenty years we have built 21 more.As a reflection of the spirit of the era, such public works will leave a legacy of misplaced priorities, of a costly and counter-productive response to a very real problem.Yet if we have the ability to build a world of gates and barbed wire, we also have the power to tear it down.