Flooding the Cell
By Jesse Mayer
On November 30th, 2006, the Department of Justice announced that as of 2005, 2.2 million individuals were in federal, state, or local prisons and jails. It further reported that 4.1 million individuals were on probation and 784,000 individuals were on parole. [1]
The New York Times reports that the “corrections price tag” costs Americans over $60 billion per year. [2]
A recent study entitled “Public Safety Performance,” released by The Pew Charitable Trusts, projects that the United States will spend an additional $27 billion over the next 5 years on prison construction and operating costs. Thus, in nearly every state, the members of both parties are looking for less costly alternatives to imprisonment. Crime may not pay, but within America, punishment definitely costs.
Why are so many people locked in jail? Barbara Hudson attributes the rise in incarceration rates to penal populism. According to Barbara Hudson, “Penal populism is used to describe government’s promotion of hard-line penal policies because it believes them to be popular, as distinct from implementing policies derived from public opinion.” [3] Thus, when government officials (primarily, if not exclusively, politicians), advocate harsh punishments for criminals for the purpose of gaining popular support, electoral support, or smearing his or her opponent, they are engaging in penal populism. The term that American politicians have developed to represent their usage of penal populism is ‘tough on crime.’ Elsner reports that, “the ‘get tough on crime’ slogan had swept America in the 1980s and 1990s.” [4] What makes a politician ‘tough on crime?’ Although there is no single definition, there are indicators. Issues a politician will usually propose, such as long sentences for convicts, harsh prison conditions (e. g. less food, brightly painted walls meant to demean prisoners, or minimal human contact), and the death penalty, define him or her as being ‘tough on crime.’ In 1988, the campaign between Vice President George Bush and Governor Michael Dukakis “turned capital punishment into the ‘litmus test’ of being ‘tough on crime.’” [5] However, other issues, such as treatment (or lack thereof) for drug addicts, are also used to define oneself as being ‘tough on crime.’
What other concepts are associated with penal populism? Hudson writes: “The closely related idea of ‘governing through crime’ shows how, in the era of distrust in governments…the fear and outrage aroused by crime lead to public calls for more governmental power and resources, and thereby re-legitimatizes governmental sovereignty.” [6] This concept can be though of as a goal to restore a certain paternalism on the part of politicians. Politicians will manipulate public fears in such a way as to appear to stand strong and abate that said fear of crime and criminals.
While the history of penal populism is roughly forty years old, the penal system has existed (albeit in different forms) since the inception of America. Barbara Hudson identifies three main eras of guiding ideology: pre-industrial revolution, the industrial revolution through the mid-1970s (termed “penal modernism”), and the time period from the 1970s through today. [7] These three eras represent changes in the methods of control used to punish people exhibiting socially deviant behaviors. Before the industrial revolution, which started in the mid 1700s, criminals were often punished publicly. The industrial revolution, however, led developed nations to “move from arbitrary infliction of physical punishments (execution, mutilation, the stocks) to punishments aimed at the mentalities, making bad people good.” [8] Although Hudson does not discuss the influence of religion on society and on penal ideology, the increasing belief in redemption by sects such as the Quakers clearly played a key role in changing penal policy (even if it was not yet fully institutionalized by the government) to ‘penal modernism,’ The final period, post-modernism, began in the 1970s. Hudson notes, “The idea of rehabilitation was falling out of favor with criminal justice professionals and their academic critics, and the idea of penal failure was more in keeping with the spirit of the times than the idea of penal progress.” [9] Post-modernism, however, has not replaced rehabilitation with another goal. While being ‘tough on crime’ is the popular political position, it does not promote a goal for prisons, or prisoners, beyond the storage of criminals. Thus, the warehousing of criminals has become the reality of penal policy.
Steve Donziger writes, “crime is often the most common theme in political advertisements among both major political parties.” [10] Furthermore, newspapers have also commented on the growing use of victims of crime for political gain. The issues used by politicians to portray opponents as ‘soft on crime’ are varied: the death penalty, the war on drugs, mandatory minimums, the three-strikes rule, and the use of— or termination of— parole have all been broached during campaigns.
The use of victims in political campaigns is recent, but not new to politics. The catalyst for these types of ads is commonly recognized as the Willie Horton ad campaign lodged by then Vice President George Bush against his opponent, then Governor Michael Dukakis, during the 1988 presidential election. [11] This would become known as “the Willie Horton effect.” Politicians and the major parties since the 1988 campaign have used the Willie Horton effect for partisan gain. “Since the Willie Horton advertisement dashed the hopes of Michael Dukakis in the 1988 presidential race, almost every serious candidate has tried to appear tough on crime.” [12] The Willie Horton ad campaign illustrates the partisan use of penal populism purely for electoral gain. Howard Kurtz, a Washington Post reporter, notes that “blaming a public official for an innocent person’s death or leniency for the killer” is “perhaps the ultimate negative ad[:]”
Several candidates have [used] such a weapon, raising the emotional stakes by focusing on heart-rending victims of crime. The use of personal tragedy to assail an opponent – often by turning the camera on a victim’s grieving parent or spouse – represents a chilling refinement of the technique used in the Willie Horton ads of 1988. [13]
Republicans were the first to successfully embrace penal populism; are they solely to blame for the effects of their ideology? Some sociologists/criminologists suggest that they indeed are responsible: “The big lockup is merely the useful policy by-product of electoral strategies in which right-wing politicians use the theme of crime and punishment to get elected.” [14] However, Democrats are equally culpable for their usage of penal populism. In fact, “a ‘War on Crime’ was formally launched by… President Johnson.” [15] Moreover, when campaigning for President, Bill Clinton rescheduled his campaign to attend the execution of a man in his home state of Arkansas. Furthermore, in that same year, 1992, then Governor Bill Clinton officially changed the crime platform of the Democratic Party from one focused on rehabilitation and diversion, to one focused on “law and order.” [16] The problem, with both parties using penal populism is that in order for a Democrat to distinguish him or herself from a Republican, he or she must appear ‘tougher on crime’ than the Republican. In return, Republicans must continue to advocate harsher prison sentences for criminals.
The use of penal populism, however, may be finished. Perhaps the best means to control the growing prison population and the growing expenses that are a result is through personal experience. Recently, a number of Republicans have been under investigation for various fraudulent activities. So far, one man, former Representative Duke Cunningham, has confessed to his illegal activities. According to Chris Matthews, as aired on the Chris Matthews Show, Representative Cunningham was a staunch Reagan Republican who consistently pushed for harsher prison conditions as well as longer sentences. Although he may not have affected his own sentence from his advocacy two decades ago, Matthews remarked, “The true irony of all this is the deeply human aspect of it.” Former Representative Cunningham will now face the result of penal populism and the ‘tough on crime’ position he once championed.
Moreover, the flaws of penal populism are becoming more pronounced. First, it is expensive. Second, as sentences end and inmates are released, few are rehabilitated . A growing movement led by Evangelical Christians is pushing for increased use of religion in prisons. Third, penal populism has a racial subtext; 1 in 3 black males in the United States have been incarcerated. Fourth, the Supreme Court is taking on a case this term about federal sentencing guidelines. Fifth, local courts are creating community courts, which offer alternative diversion programs. Individuals accused of misdemeanor offenses who may have mitigating circumstances, such as an addiction, may be sent to a rehabilitation program; if they successfully complete the program and meet other criteria (obtain employment, not get re-arrested, etc.), they have their records expunged, but more importantly, they are able to become productive individuals- both for themselves and for society. These factors are creating an opportunity for the American criminal justice system to change its penal policies by bringing together a diverse coalition of political actors.
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[1] J. Austin, and J. Irwin, It’s About Time: America’s Imprisonment Binge. (Stamford, CT: Wadsworth, 2001)
[2] “Closing the Revolving Door.” The New York Times, January 25, sec. A.
[3] B. Hudson, Punishment and Control. (New York: Oxford University Press, 2002), 241.
[4] A. Elsner, Gates of Injustice: The Crisis in America’s Prisons. (Upper Saddle River, NJ: FT Prentice Hall, 2004), 9.
[5] C. Parenti, Lockdown America: Police and Prisons in the Age of Crisis. (New York: Verso, 2000), 61.
[6] B. Hudson, Punishment and Control. (New York: Oxford University Press, 2002) , 249.
[7] B. Hudson, Punishment and Control. (New York: Oxford University Press, 2002), 235-236.
[8] B. Hudson, Punishment and Control. (New York: Oxford University Press, 2002), 235.
[9] B. Hudson, Punishment and Control. (New York: Oxford University Press, 2002), 236.
[10] S. R. Donziger, The Real War on Crime: The Report of the National Criminal Justice Commission. (New York: Harper Perennial, 1996), 79.
[11] J. D. Davey, The Politics of Prison Expansion. (Westport, CT: Praeger Davey, 1998), 51.
[12] S. R. Donziger, The Real War on Crime: The Report of the National Criminal Justice Commission. (New York: Harper Perennial, 1996), 2.
[13] Kurtz, 1994
[14] C. Parenti, Lockdown America: Police and Prisons in the Age of Crisis. (New York: Verso, 2000), 169.
[15] J. Austin, and J. Irwin, It’s About Time: America’s Imprisonment Binge. (Stamford, CT: Wadsworth, 2001), 5.
[16] J. D. Davey, The Politics of Prison Expansion. (Westport, CT: Praeger Davey, 1998), 51.