Conservatives Against Incarceration?
Fiscal conservatives were never going to bring down the carceral state. A broader fight against social inequality is needed.
Many are mourning the death of comprehensive criminal justice reform at the federal level in the wake of the election of Donald Trump, who unabashedly campaigned as the law-and-order candidate. They fear we may be at the beginning of the end of the “smart-on-crime” era, in which historic adversaries across the political spectrum joined forces to reverse the punitive policies and politics that have turned the United States into the world’s leading warden.
Some have sought solace in the belief that Trump’s victory will have a limited impact because most people are apprehended, tried, and sentenced subject to state and local statutes and authorities, not federal ones, and that 90 percent of the more than 2 million people incarcerated today in the United States are serving their time in state prisons and county jails, not federal penitentiaries. They view Trump as a political meteorite that may have blown up the elite bipartisan reform coalition in Washington as it blazed through an uncharted political universe but left promising reform coalitions at the state and local levels largely intact.
This conventional postmortem paradoxically overestimates Trump’s responsibility for imperiling criminal justice reform at the national level while underestimating his likely impact on state and local reform efforts.
Trump’s outsized personality and spectacular victory obscure the reality that the smart-on-crime approach had severe limitations and weaknesses that have been hiding in plain sight for years. The politics that gave birth to this strange bedfellows coalition engineered by Right on Crime — a group of brand-name conservatives and libertarians that included Newt Gingrich, Grover Norquist, and Charles and David Koch — helps explain both its limited accomplishments and the triumph of Trumpism.
Unwarranted Fiscal Optimism
Right on Crime congealed around the purported fiscal burden of mass imprisonment. Publications and institutions both liberal and conservative rallied around the claim that the United States could be cajoled into closing many of its jails and prisons because it could no longer afford to keep so many people locked up, especially in the wake of the Great Recession. But the prison buildup resulted from a complex set of developments. No single factor explains its rise, and no single factor will bring about its demise.
This dollars-and-cents optimism was unwarranted from the start. Despite the unprecedented prison boom, corrections costs remain a relatively small component of state expenditures — less than half of what states spend on highways. Most prison costs are fixed and are not easily cut. The only way to seriously reduce spending on corrections is to shut down penal facilities and lay off correctional staff.
Faced with powerful interests that profit politically and economically from mass imprisonment, most states ended up making largely symbolic budget cuts that did not substantially bring down the incarcerated population. (They did, however, render life in prison and life after prison leaner and meaner thanks to cutbacks in programs, health services, and even meals for people who are incarcerated.) The few states that slashed their prison populations, notably New York, New Jersey, and California, were deep blue ones that have yet to realize major budget savings.
The fiscal argument for penal reform obscured the reality that successful decarceration will likely cost more money, not less, at least over the short and medium term. People reentering society after prison need significant educational, vocational, housing, health, and economic assistance to ensure that the communities they are returning to are not further destabilized by waves of people released from prison.
If we are serious about alternatives to incarceration, then community-based mental health and substance abuse programs will also need substantial new funding.
What’s Wrong with the 3 R’s?
Elite politicians and policymakers doggedly pursued a reform agenda centered on reentry, justice reinvestment, and reducing recidivism rates — the 3 R’s. Serious discussion of ameliorating the structural causes of high concentrations of crime and poverty in certain communities was not part of the political equation.
At a time when the pillars of the US welfare state were being pummeled by direct assaults from leading conservatives associated with Right on Crime and by gentler jabs from President Barack Obama and some other top Democrats, it is hard to imagine that calls for justice reinvestment would actually result in reallocating the tens of billions spent annually on corrections to social and economic programs that reduce crime and improve the lives of people residing in high-crime communities.
The 3 R’s were compatible with the powerful consensus among political elites of the two major political parties that the country’s budget deficits are the preeminent domestic threats to its economic and political future.
The obsessive pursuit of short-term goals in penal policy in service to budget deficit concerns crowded out more ambitious goals. Reducing the country’s incarceration rate to its historical norm of 120 to 130 inmates per 100,000 people — or about one-sixth the current rate — was a nonstarter. So was the more modest goal of cutting the incarceration rate for jails and prisons in half, to about 350 per 100,000 — which would still be extraordinarily high compared to that of other Western countries.
Judging each penal reform by putting it on the evidence-based, cost-benefit scales to determine whether it lowers crime while saving public money reinforced the tight linkage in the public mind between punishment and crime. It was at odds with leading research that crime rates move up and down quite independently of punishment practices. According to a 2014 National Research Council report, the “increase in incarceration may have caused a decrease in crime, but the magnitude is highly uncertain and the results of most studies suggest it was unlikely to have been large.”
The 3-R and smart-on-crime approach was widely portrayed as a way to wring politics out of penal reform. The aim was to devise penal reforms that attracted overwhelming bipartisan consensus. But this goal came at a high political cost. It left largely unchallenged key political and economic calculations and interests that built and sustain the carceral state.
The fiscal imperative frame sought to adopt a “practical tone” that avoided hot-button issues like the racial injustices that helped build and sustain the carceral state. As such, it was incapable of tapping into the explosive calls for wholesale criminal justice reform that erupted with the 2014 police shooting death of Michael Brown in Ferguson, Missouri and the emergence of the Black Lives Matter movement.
Back to the 1960s and ’70s
Recasting the problem of mass incarceration in ostensibly nonpartisan econometric or cost-benefit language did little to challenge the excessively punitive rhetoric that has left such a pernicious mark on penal policy over the last half century. This rendered reforms to dismantle the carceral state vulnerable to resurgent law-and-order rhetoric, as we saw in the 2016 campaign.
Since the 1960s, presidential aspirants of both parties have periodically unleashed and legitimized law-and-order rhetoric, stoking fear, xenophobia, and racism and fostering more punitive policies at all levels of the criminal justice system.
In one of the most notable examples, Richard Nixon’s impassioned denunciations of the Supreme Court’s 1972 Furman decision declaring capital punishment unconstitutional spurred the creation of the pro–death penalty movement, which swept dozens of state capitals. Legislators quickly rewrote their death penalty statutes and generated the political momentum for the Supreme Court’s reinstatement of capital punishment in the 1976 Gregg decision.
On the campaign trail this election season, Donald Trump made Nixonian appeals to a “silent majority.” The Republican nominee warmly embraced hardliners who championed militarized policing and blamed Black Lives Matter for a reputed rise in violent crime and attacks on police officers. This undercut local efforts to make the actions of the police more democratically accountable and to stem the extraordinarily high rate of police killings of civilians in the United States. Trump, on the other hand, was rewarded with a warm endorsement from the 330,000-member Fraternal Order of the Police.
In the face of Trump’s law-and-order appeals, supporters of the fiscal frame had nothing to offer. They had long ago ceded the political space to challenge penal policies and practices on social justice or human rights grounds.
Death of the Social
The 3-R approach to penal reform unfolded alongside a growing push to banish certain people — those convicted of violent or sexual offenses, those serving life sentences, wide swaths of immigrants — from society, in some cases permanently. These seemingly contradictory gestures were actually two sides of the same neoliberal coin.
Problems such as crime, poverty, mass unemployment, and mass incarceration are no longer viewed as having fundamental structural causes that can be ameliorated by policies and resources mobilized by the state. Instead, these problems are regarded as the result of fate or individual choice.
Consequently, the main focus is on devising micro-interventions at the local and community levels to alter individuals’ behavior. Anyone deemed unable or unwilling to change must be banished — either to the prison or to the prison beyond the prison created by restrictions on voting, housing, and public benefits and services for people with criminal records. Why? Because even though local communities have been valorized as the primary sites of political, social, and economic sustenance, they also are regarded as fragile bulwarks in the face of the turmoil and anxiety wrought by neoliberal globalization.
The fiscal argument was also no match for the considerable economic interests deeply invested in the carceral state. These vested interests were not the main catalysts for the carceral state’s emergence, but they represent major impediments to dismantling it.
The fiscal argument provided a huge political opening for the expansion of the private prison industry and the possible return to one of the most ignominious chapters in US penal history — the unbridled exploitation of penal labor for profit. Private prison entrepreneurs promoted the false claim that privatized correctional services and facilities saved money and provided a superior product.
They also helped legitimize the idea of turning the criminal justice system into self-supporting profit centers by increasing the use of captive labor and levying fees and financial penalties on people charged with violating the law.
Political Cognitive Dissonance
Promoting Right on Crime as an indispensable anchor of the reform coalition created a profound case of political cognitive dissonance. Chasing after Grover Norquist or Newt Gingrich to get their blessing for modest shifts in penal policy was politically enervating. Among other things, it denied the numerous ways the carceral state is metastasizing in the United States and impairing the health of vital democratic and other institutions.
Elite reformers celebrated Right on Crime even as the Koch brothers deployed massive amounts of “dark money” to shred the very things proven over the long time to enhance public safety and foster a more just criminal justice system — a robust social safety net and lower levels of economic inequality.
Jane Mayer of the New Yorker suggests that the Koch brothers cynically and shrewdly deployed the issue of criminal justice reform to engineer “the best image overhaul that money can buy.” They used it as a vehicle to rebrand themselves as compassionately concerned about the plight of the poor and disadvantaged while leaving unaltered their trickle-up economic policies and their staunch opposition to government action on climate change.
Grover Norquist, a prominent figure in Right on Crime, is the nation’s foremost anti-tax crusader and is widely known for bluntly stating that he aims to shrink government “down to the size where we can drown it in the bathtub.”
His organization Americans for Tax Reform belongs to the American Legislative Exchange Council (ALEC), a longtime advocate of prison construction, privatization of the penal system, and punitive measures such as “truth-in-sentencing” and “three-strikes” statutes. ALEC has been at the forefront of the assault on public-sector unions and public schools. It also was the leading incubator of a spate of punitive legislation directed at immigrants and a champion of the controversial “stand your ground” gun laws.
Ideology Trumps Fiscal Concerns
One recent controversy surrounding Obamacare starkly calls into question the depth of Right on Crime’s commitment to fiscal pragmatism over ideology. Key figures in the group have been some of the loudest voices encouraging governors and legislators to opt out of Medicaid expansion under the Affordable Care Act.
States that have eschewed Medicaid have forfeited gargantuan sums of federal money desperately needed to support health care, substance abuse, and mental health programs that treat low-income people in the community and keep them out of jail and prison.
The opt-out states have also rejected the opportunity to shift a large chunk of the medical costs of treating incarcerated people onto the federal tab. Texas, unjustifiably lauded as the epicenter of comprehensive criminal justice reform, stands to lose $10 billion a year in federal money because of its decision under Governor Rick Perry, another Right on Crimer, to pass on expansion.
Medicaid expansion remains the biggest game changer within easy reach for criminal justice reformers today. It has the potential to be far more consequential over the long term than the modest sentencing reform bill that has languished in Congress for more than a year and has been the centerpiece of the elite bipartisan reform coalition.
Yet instead of accepting the billions of dollars in Medicaid funding, Texas and other opt-out states chased after federal Second Chance and justice reinvestment dollars, which are a relative pittance.
The Dismal Reform Record
The latest data on incarceration rates are a painful reminder that the rhetoric of reform has far outpaced the reality of reform.
While the total number of people in US prisons and jails has stabilized since the Great Recession, no major contraction appeared in sight — even before the age of Trump. The US incarceration rate of 700 per 100,000 remains nearly the highest in the world. The total US jail and prison population for 2014 was just a hair below the 2008 total, the peak year in the decades-long incarceration surge.
California, which has been under enormous political and legal pressure to reduce its prison population thanks to the Supreme Court’s 2011 Brown v. Plata decision, accounts for much of the slowdown in the country’s incarcerated population. Incarceration rates have been declining or holding steady in about half of the states and increasing in the rest. States project a 3 percent increase in their prison populations by 2018, according to a 2014 report by the Pew Foundation.
The Sentencing Project has calculated that if declines in the prison population were to continue at a clip of about 1.8 percent a year (the biggest year-to-year drop registered since the boom began), it would take until 2101 for the prison population to return to its 1980 level.
The war on drugs is far from over. Some states and counties have responded to the opioid epidemic by declaring a public health emergency. Others have doubled down on the war on drugs, increasing penalties for opioid-related offenses and finding creative ways to pursue homicide charges against drug dealers, users, and friends who supplied drugs to people who subsequently died of an overdose. Dozens of states have lightened up penalties on the so-called non, non, nons — nonserious, nonviolent, nonsexual offenders— while expanding the use of life sentences and other harsh penalties. Sentence lengths have grown for all major offense categories other than drug possession.
As for actual time served, the trend is toward more, not less, time served for most offenses. The number of life sentences and life sentences without the possibility of parole (LWOP) have surged since the Great Recession. Between 2008 and 2012, the number of people who received LWOP — dubbed “the other death penalty” — grew by nine thousand. This increase was equivalent to nearly tripling the country’s death row population.
Police and prosecutors appear to be using their considerable discretion to maintain their felony caseloads in the face of falling crime rates and mounting pressure to end the war on drugs. Rising prison admissions for violent, property, and public order offenses have offset the drop in prison admissions for drug crimes. For all the talk about parole reform, huge numbers of people continue to be returned to prison for technical parole violations. Remove California from the numbers, and the rate of parole-related prison admissions actually increased significantly between 2000 and 2012.
The polarization in Congress and many state legislatures has been a convenient excuse to explain why so little progress has been made in slashing the country’s incarceration rate and ameliorating the collateral consequences of the carceral state. It has been used to justify saddling up to Right on Crime and pursuing small-bore solutions like the 3 R’s.
Claims of legislative gridlock direct attention away from many non-legislative means available to begin razing the carceral state. The carceral state was not built by punitive legislation alone. It also required, particularly in its formative years, a shift in sensibilities as police officers, parole and probation agents, corrections officials, judges, and prosecutors began to wield their discretion in a more punitive direction.
The Real Lawmakers
The late legal scholar William Stuntz once characterized prosecutors as the “real lawmakers” of the criminal justice system because the penal code grants them enormous leeway in charging decisions. As the violent crime rate plummeted in the 1990s, changes in prosecutorial behavior helped drive the continued escalation of the prison population. The number of violent and property offenses prosecuted rose, as did the time served by people convicted of violent offenses.
Many observers attribute US punitiveness to the exceptional politicization of prosecutors and judges. Unlike in nearly every other advanced capitalist country, US prosecutors are elected or otherwise chosen in a partisan manner. Prosecutors and judges in the United States have tended to use their discretion over the past three to four decades to lean in a harsher direction. But that wide discretion also gives them great latitude to forge a less punitive path, even in the age of Trump.
Getting deeply involved in electoral contests for local district attorneys and otherwise putting political pressure on them should be a top priority for civil rights and other groups committed to dismantling the carceral state. These local electoral contests are arguably as important — or even more important — than mobilizing for the quadrennial presidential elections.
In Albany, San Francisco, Brooklyn, Milwaukee, and elsewhere, maverick district attorneys have served as important beachheads to engineer wider shifts in penal policy. The intense public attention on police killings of civilians in the aftermath of Michael Brown’s death drew unprecedented attention to the role of prosecutors in the criminal justice system.
Some sleepy district attorney elections have been transformed into hot contests. In one of the most promising developments of the 2016 election, reform-minded district attorneys and sheriffs were installed in several major jurisdictions, including Houston, Chicago, St Louis, Santa Fe, Tampa, and Denver. It remains to be seen whether these electoral victories will galvanize durable reform coalitions.
The focus, however, cannot be solely on electoral politics. Reform groups must place ongoing pressure on district attorneys to use their wide discretion for less punitive ends. DAs need to be pressed to make their actions more transparent and publicly accountable, to pursue alternatives to incarceration, to eschew mandatory minimums, to establish meaningful units to investigate credible claims of innocence, and to uphold not just the letter but the spirit of the recent landmark Supreme Court decisions declaring that mandatory life sentences for juvenile offenders are unconstitutional.
Alternatives to Right on Crime
The people and communities most harmed by the carceral state have been poorly positioned to challenge the vested interests that sustain it. The Southern strategy, the racialization of public opinion on crime and punishment, and the entrenched history of racism in the United States cannot on their own explain why the carceral state has not faced more opposition from the groups most harmed by it.
The rise of the carceral state coincided with what political scientist Michael Dawson has characterized as a “dangerous decline” in the black public sphere and black civil society since the 1970s. A variety of factors are to blame — internal dissension, state repression, the ascendancy of neoliberalism, growing income and other inequalities among blacks, and the emergence of African-American neighborhoods of extreme and concentrated poverty and crime.
Furthermore, major national organizations committed to social and economic justice are hampered by subtle biases that keep them from advocating for the country’s most marginalized groups, including people with criminal convictions. These organizations will not lead the way out of the carceral state without pressure from a more radical flank. Without that, they are unlikely to develop a penal reform vision that extends much beyond the 3R’s and the Right on Crime coalition.
The preoccupation in media and policy circles with the 3 R’s and Right on Crime overshadowed the growing and promising political ferment at the grassroots against the carceral state. Long before Black Lives Matter became a household name, new groups were forming at the state and local levels to battle various aspects of the carceral state, including felon disenfranchisement, solitary confinement, the abuse of transgender people in prison, exorbitant telephone rates for incarcerated people, the shackling of pregnant women during labor, and employment discrimination against people with criminal records.
Prison-based groups and organizations of formerly incarcerated people have been coalescing to fight the carceral state despite the enormous obstacles to political action they face. It remains an open question, however, whether this upsurge will develop into a broader movement to challenge not only the carceral state but also other growing inequities in the US.
These incipient movements certainly cannot ignore developments in electoral and party politics entirely. But they also cannot bet their future on politicians and the two main political parties. Establishing vibrant, independent institutions and organizations — unions, women’s groups, community and immigrant centers, an alternative press — were key to mounting successful fights against gaping political and economic inequalities in the past, and will be so in the future.
Criminal Justice Reform and Racial Justice
Movements fighting the carceral state must resist the temptation to portray the problem as solely one of racial justice. The historical evidence is overwhelming that racial animus and the quest to preserve white supremacy have been central factors in the development of the US criminal justice system. But as the racial order continues to invent new ways to target blacks, it generates punitive policies and practices that migrate to other dispossessed groups.
The fact that African Americans are disproportionately killed by the police compared to whites has obscured the troubling fact that whites in the United States are at a greater risk of being killed by the police than civilians in other advanced capitalist countries. Some of the whitest states have some of the highest rates of lethal police shootings in the United States — and some of the highest incarceration rates.
African Americans have been and remain central targets of the carceral state and without question have been disproportionately harmed by it. But members of other groups are increasingly finding themselves economically and politically disenfranchised and socially marginalized as a new political and economic order takes hold and the carceral state extends its reach with the onslaught of neoliberalism.
While the US incarceration rate of 400 per 100,000 for whites is low relative to the rates for African Americans (2,300 per 100,000) and Hispanics (1,000 per 100,000), it’s extraordinarily high compared to those of other industrialized democracies. The United States is incarcerating whites at about two-and-a-half to seven times the rates of other advanced capitalist countries.
Framing the movement to dismantle the carceral state as primarily a case of racial disparities renders invisible how the deep penetration of neoliberalism into the social, economic, and political fabric of the United States is fostering wide-scale economic and political inequalities and eroding democratic institutions. It also thwarts the development of a broader political and social movement to challenge the underlying forces that sustain the carceral state and other gross injustices and inequalities in the US today.
As Dawson notes, the three most successful periods of black political mobilization — Reconstruction, the Progressive Era, and the civil rights and Black Power era — “were all marked by innovative initiatives in black civil society, a growing and robust black public sphere,” and an active radical flank. These movements did not single-mindedly focus on the problem of racial disparities and inequities but sought to forge a broader political agenda centered on racial, social, and economic justice.
Immigrants and the Carceral State
A racial disparities framework centered on African Americans also obscures how capturing and detaining immigrants has become one of the most dynamic growth areas of the carceral state.
In a major shift, Hispanics now constitute more than a third of all federal prisoners as a consequence of the escalation in immigration raids and criminal prosecutions of immigration violations. Trump’s campaign against immigrants may have finally blown up the fiction that the punitive revolution in immigration policy that has unfolded over the last two decades is not part of the mass incarceration crisis.
A whole new apparatus to apprehend, detain, and punish immigrants, including undocumented migrants as well as permanent residents with green cards and other authorized non-citizens, has been quietly under construction for many years. This huge and costly system has been built by importing many of the theories, objectives, and methods of law enforcement into immigration enforcement and by deploying inflammatory law-and-order and racialized rhetoric.
Just as the war on drugs served as a bridge to bring local, state, and federal law enforcement authorities closer together, the criminalization of immigrants rests on deploying state and local law enforcement agencies to the front lines of immigration enforcement.
The growing entanglement of immigration enforcement and law enforcement has been a flashpoint in local politics across the US for many years now and will continue to be so in the age of Trump. Trump’s exhortations for Mexico to stop exporting its drug dealers and rapists to the United States provided new fuel to propel the “crimmigration” or “immcarceration.” Trump has been the loudest (though certainly not the only) voice equating more immigrants with more crime.
The xenophobic fearmongering of leading Republicans lowered the bar for what counts as reasonable in the debate over immigration reform. But it also deflected attention from how top Democrats, including President Obama, have endorsed a highly punitive path to comprehensive immigration reform based on “securing the border” and vastly expanding the carceral state.
Looking beyond the calls to “build the wall” in the 2016 campaign, the punitive stance on immigration policy has been remarkably bipartisan, differing in degree but not in essence. The leading comprehensive immigration reform proposals to provide a path to citizenship for the estimated 11 to 13 million undocumented migrants in the US have been predicated on vastly increasing the power, authority, and capacity of the government to capture, detain, punish, and deport non-citizens, both documented and undocumented.
For all of the Obama administration’s talk about fostering alternatives to detention for immigrants and treating them more humanely, it pushed deportations and detentions to record levels and steadfastly supported further militarization of the border. Deportations of immigrants, both documented and undocumented, skyrocketed under Obama, totaling nearly 2.5 million by the end of 2015.
Obama has even boasted that under his watch, the number of Border Patrol agents along the southwest border soared. No wonder Paul Begala, a former top aide to Bill Clinton, quipped that “President Obama has put more boots on the ground on the Mexican border than any president since Woodrow Wilson was chasing Pancho Villa.”
The Obama administration justified its tough-on-immigration stance by arguing it would create fertile political space for comprehensive immigration reform legislation. The administration periodically vowed to end the most grievous excesses of the war on immigrants but did little to fundamentally challenge the core premises of that war or the politics that sustain it. As a consequence, a huge political schism opened up between the White House and some immigrant advocacy groups, who derisively nicknamed Obama the nation’s “deporter in chief.”
Grassroots Latino groups and their coalition partners raised alarms about provisions in the mainstream bipartisan immigration bills that would expand the Border Patrol and detention facilities and foster even closer cooperation between local police and federal authorities in immigration control. As one activist lamented, “Comprehensive immigration reform is a crime bill in disguise.”
The Senate measure passed in June 2013 called for an additional $46 billion to secure the border, including $30 billion to double the number of Border Patrol agents. It was a staggering figure — equal to what all fifty states together spend on corrections each year. The Senate bill also stiffened the criminal penalties for immigration violations and expanded the list of offenses that warrant automatic detention. Representative Filemon Vela (D-TX) created a stir when he resigned from the Congressional Hispanic Caucus to protest the group’s tacit support of the Senate bill with its “border surge” provisions.
The battles over immigration policy have created political opportunities and cleavages with major implications for the future of the carceral state and American politics more broadly. They shined a very public spotlight on the growing criminalization of immigrants. They also exposed the diversity of the growing pool of the dispossessed in the United States — be they undocumented workers laboring alongside other low-wage workers in the peripheral economy or detained immigrants kept in jail cells alongside citizens charged with a crime.
Trump’s lock-them-out, throw-them-out stance on immigration could become an important cauldron that helps ignite a broader political movement among immigrant rights groups, social justice groups, labor groups, and human rights groups to challenge not only the carceral state but also the neoliberal turn in American politics. Senator Jeff Sessions (R-AL), Trump’s choice for attorney general, is a longtime foe of even modest sentencing reforms and an ardent champion of wielding an iron fist in immigration policy.
Grassroots Latino groups are at the center of some of the most dynamic political organizing in the US today.
Young Latinos spearheaded the movement pressing Obama to enact and expand the deferred action program he created by executive order in 2012. Latino and other immigrant-based workers centers have injected new energy into the moribund labor movement. A coalition of social justice, labor, and immigrant groups successfully joined together in 2016 to oust Joe Arpaio, the notorious longtime sheriff of Maricopa County, Arizona. And immigrant rights groups, criminal justice and religious organizations, and remnants of Occupy Wall Street have been at the forefront of the campaign to divest from the private prison industry.
The US carceral state may be exceptional in its size and tenacity. But many of the political, economic, and social forces that sustain it and stand in the way of comprehensive criminal justice reform are not. The tale of the carceral state is really one chapter in a longer story about the huge disconnect between the breathtaking problems that grip the United States and the unwillingness or inability of the political system to remedy them.
Many of the pathologies that run through the carceral state also run through American politics today: the uncritical acceptance of neoliberalism in all aspects of public policy by many leading Republicans and Democrats, the stranglehold that economic and financial interests exert on politics and policymaking, the growing political and economic disenfranchisement of wide swaths of the population, the gross limitations of oppositional strategies that lack a class-based politics.
Vast and growing economic inequalities rooted in vast and growing political inequalities are the preeminent problem facing the United States today. They are the touchstone of many of the major issues that vex the country — from mass incarceration to mass underemployment to climate change to the economic recovery of Wall Street but not Main Street and Martin Luther King Street.
In the face of the enormous political chasm between the 99 percent and the 1 percent, a strategy of elite-led, bipartisan deal-cutting premised on calls for “shared sacrifice” leaves this grossly inequitable economic and political fabric intact. As such, the 99 percent are caught in the vise of small-bore policies from their supposed friends and allies while their opponents encircle them with scorched-earth politics.
The Obama administration and much of the leadership of the Democratic Party took extreme care not to upset these basic interests. As a consequence, they squandered an exceptional political opportunity. The financial crisis and the Great Recession were one of those moments when members of the business sector were “stripped naked as leaders and strategists,” in the words of Simon Johnson, former chief economist at the International Monetary Fund. The Great Depression was another.
When President Franklin D. Roosevelt came into office, the Hoover administration was thoroughly discredited, as was the business sector. FDR recognized that the country was ready for a clean break with the past, and symbolically and substantively cultivated that sentiment. The break did not come from FDR alone. Massive numbers of Americans mobilized in unions, women’s organizations, veterans’ groups, senior citizen associations, and civil right groups to ensure that the country switched course.
During the Depression, President Roosevelt was forced to broaden the public understanding of crime to include corporate crime. The Senate’s riveting Pecora hearings during the waning days of the Hoover administration and the start of the Roosevelt presidency turned a scorching public spotlight on the malfeasance of the corporate sector and its complicity in sparking the Depression.
As he put the House of Morgan and other bankers on trial, Ferdinand Pecora, chief counsel of the Senate Banking Committee, helped popularize during the age of Al Capone a term not heard today: the “bankster.” These hearings compelled Roosevelt to support stricter financial regulation than he might have otherwise.
One cannot talk about crime in the streets today without talking about crime in the suites. Over the past four decades, the public obsession with getting tougher on street crime coincided with the retreat of the state in regulating corporate malfeasance — everything from hedge funds to credit default swaps to workplace safety. Keeping the focus on street crime was a convenient strategy to shift public attention and resources from crime in the suites to crime in the streets.
As billionaire financier Warren Buffet quipped in 2006, “There’s class warfare, all right, but it’s my class, the rich class, that’s making war, and we’re winning.” President Obama’s persistent calls during his first term for a politics that rose above politics and championed “shared sacrifice” denied this reality and demobilized the public. It thwarted the consolidation of a compelling alternative political vision on which new coalitions and movements could be forged to challenge fundamental inequalities, including mass imprisonment and the growing tentacles of the carceral state.
The political intransigence lavishly on display in the Republican Party — which repeatedly brought Congress to a caustic standstill — obscured how a major segment of the Democratic Party was loath to mount any major challenge to the entrenched financial and political interests that have captured American politics today.
For all the bluster about political polarization, the debate over what to do about the economy, the social safety net, and financial regulation — like the elite discussions over what to do about mass incarceration — oscillated within a very narrow range defined by neoliberalism for much of Obama’s tenure. Indeed, the president repeatedly bragged that the federal budget for discretionary spending on domestic programs had shrunk under his watch to the smallest share of the economy since Dwight Eisenhower was president.
Hitching the movement against mass incarceration to the purported fiscal burden of the carceral state has bolstered the austerity-first view of what is possible in American politics today. Politicians and policymakers across the board have treated shrinking government budgets as a political given rather than as political terrain to be contested. What was once the conservative stance on what ails the US economy became the bipartisan position, as pointedly evidenced by Obama’s wholesale embrace of deficit politics early in his first term.
This emboldened claims that excessive spending on social programs and public employee pensions were the primary source of the country’s red ink, rather than the tax cuts for the wealthy enacted under President George W. Bush, the crushing costs of the “war on terror” and the wars in Iraq and Afghanistan, and the economic contraction sparked by the 2008 financial meltdown.
The fiscal frame also concealed the deeper structural problems plaguing the US economy, including corporate globalization, financialization and deregulation, and alarming economic inequalities that are hollowing out the US economy and standard of living.
Faced with an economic meltdown widely understood to be the result of brazen malfeasance by the financial sector and its political patrons, President Obama and his key advisers first singled out health care costs and then the deficit as the leading threats to the country’s long-term economic health.
This decision fostered an exaggerated faith in the possibilities of forging productive coalitions with elite political and economic interests through Right on Crime and other bipartisan groups. It also diminished interest in cultivating a wider political and social movement to press for far-reaching changes to address gaping economic and other inequalities.
In 2011, Newt Gingrich succinctly summed up the Republican recipe for success: “I don’t think you go to the middle. You bring the middle to you.” The focus on the fratricide within the Republican Party as the establishment faced off first against the Tea Party and then Donald Trump obscured the deep tensions between the Wall Street wing and the progressive wing of the Democratic Party. This allowed the Democratic Party to postpone its own day of reckoning by positioning itself as the sensible adult in the room.
But as the 2016 election laid bare, this strategy was incapable of galvanizing wide swaths of the public to participate in a politics that clearly identifies the rentier class and oligarchy — not the emerging majority of immigrants and people of color — as the primary threat to the 99 percent.