A few quick thoughts (forgive the bullet-point form):

• Overall this is a successful article: timely, thought-provoking, humane; it considers both the crime and punishment sides of the equation; most importantly it’s a handy one-stop read summarizing a lot of the recent writing and research on the topic of mass incarceration (destined for college classes around the nation, and a great link to share with your friends/family who don’t know much about the issue). Hopefully it’ll find a wide readership. A well-timed New Yorker article can sometimes change the national conversation on an issue (see, e.g., the influence of Atul Gawande on framing Obama’s health care agenda, or how that Jane Mayer article made the Koch brothers a household name).
• That said, nothing Gopnik says is news to anyone who already follows these issues. America currently incarcerates more people, as a percentage of its population, than does any peer nation and than did America at any previous point in its history. Even states we might think of as very liberal — Massachusetts, Connecticut, etc. — have incarceration rates that would be very high by European standards. I broke down the data state-by-state here.
• On a first quick read (I’ll have to return to the article when I have more time), I think that Gopnik, like his sources, too easily assigns a lot of causal significance to 19th-c. developments (the penitentiary movement, slavery, etc.) to explain a phenomenon — the boom in prison construction and the massive explosion in the incarcerated population — that really only began in the 1970s, and began rather suddenly. What’s the mechanism of continuity? But, this is perhaps an academic historical debate; I don’t have strong reservations with Gopnik’s account overall, and for better or worse, it’s certainly an effective summary of the literature. (Gopnik has a real talent for synthetic criticism, as evidenced earlier this month by his essay on the Spanish Inquisition.)
• Along those lines, I’m increasingly not sure I’m comfortable with how much of the rhetoric and commentary on mass incarceration uses statistical comparisons to slavery and the Gulag. I think there are a lot of methodological issues there (for one thing, there’s a constant slippage back-and-forth in these discussions between per capita and absolute numbers that I don’t think is fully theorized — this has also been a major critique of Steven Pinker’s recent book on violence) and I think the scale of American incarceration is enough of an evident problem on its own without needing to bring in historical analogies that are less than analytically rigorous. Moreover, the comparison to slavery actually undermines what ends up being Gopnik’s ultimate point. With slavery, we really did need to dismantle the entire social-political-economic system to end it. Gopnik’s conclusion in this piece is that, with mass incarceration, it’s precisely the opposite: we don’t need a revolution; “the intercession of a thousand smaller sanities” would be enough. (On the other hand, maybe the provocative historical comparisons are needed to force people to pay attention. Would be curious to hear what readers think. I guess this is a subset of a bigger set of questions about how useful historical analogies ever are, and for what purposes. For instance, James Forman makes some useful critiques of Michelle Alexander’s Jim Crow frame in a recent NYU Law Review article, and in a shorter piece at the Boston Review.)
• All that said, certainly I think you should read the article, pass it along to friends and family, and discuss it in the comments here or elsewhere. I’m glad these issues are finally on the radar of the intelligentsia.

On May 23, 2011—the same day the morning papers rejoiced over another year of crime reduction—the Supreme Court ordered the State of California to release 45,000 prisoners. In a 5-to-4 decision written by Anthony Kennedy, the Court declared that overcrowding in the state’s penitentiaries had become so severe that simply existing in the system violated a prisoner’s Eighth Amendment right of freedom from cruel and unusual punishment.

The Court did not “order[] the State of California to release 45,000 prisoners” — it upheld a lower court order to reduce the prison population down to 137.5% of design capacity, which could be achieved however the state decided, for instance by forward-looking sentencing and parole reforms. The state was not ordered to simply release 45,000 prisoners, and indeed has not done so. And in fact California’s prison population was already declining prior to the Supreme Court decision, so that 45,000 estimate was a moving target; a more recent estimate suggests the overage in the prison system was more like 30,000 prisoners. (See here for more.)

As a news story, the ruling generated surprisingly little attention—a good deal less than the Court’s 2008 decision banning the death penalty for child rapists— but in legal circles it caused a panic. Antonin Scalia, in a fiery dissent, called it “the most radical injunction issued by a court in our nation’s history.” Samuel Alito predicted the ruling would generate a “grim roster of victims,” anxiously noting that the quantity of prisoners mandated for release added up to “two army battalions.” In the early ’90s, Alito pointed out, a similar order issued by a federal judge in Philadelphia liberated some 10,000 prisoners: within 18 months, 2,748 of the prisoners had been rearrested for theft, 2,215 for drugs, 1,113 for assault, 959 for robbery, 751 for burglary, 90 for rape, and 79 for murder. California, Alito suggested, should gear up for an enemy invasion.

The Plata decision did not, so far as I know, “cause[] a panic” “in legal circles” (though I admit I’m not entirely sure who the author means by “legal circles”). It’s telling that the author only cites, well, the dissents in Plata to substantiate this claim. Yes, the decision did cause an apparent panic among Alito and Scalia, but I’m not sure why they are uniquely representative of “legal circles” considering that five of their fellow members of the Supreme Court ruled against them. If anything, most lawyers probably understood the decision to be a unique response to California’s uniquely long-standing and intractable prison conditions litigation, and not a decision that would cause many ripples outside of California. Now, the decision (or more specifically, the state’s response to the decision, a policy known as “realignment”) did cause something of a panic, or anyway a turn to fearmongering rhetoric, among California law enforcement officials, but that’s not mentioned here. In other words, this claim of a “panic” in response to Plata could have been more precisely worded and better substantiated, particularly if the author had provided and analyzed evidence beyond the text of the Plata decision itself, and not used vague terms like “in legal circles.”

…

Within three years, 70 percent of released prisoners are rearrested, and half are back in prison. A large portion of these “recidivists” haven’t committed new felonies—they’ve simply violated the terms of their parole. California, which is especially adept at throwing parole violators back in prison, ends up reincarcerating two thirds of released prisoners within three years.

Of course, many released prisoners do commit new felonies, and the evidence is clear that releasing prisoners raises the crime rate, just as imprisoning criminals lowers it. …

The prospects for California’s released prisoners, therefore, are not good. Neither are the prospects for the state. The likelihood is high that most of these released prisoners will be back in jail within three years, and California may very well be back in court for overcrowding its prisons. (The state is hoping to preempt the issue by transferring inmates to county jails in lieu of early release, but it isn’t clear that crowded jails are any more likely to survive judicial scrutiny than crowded prisons.) To reduce its prison population, California will have to do more than release prisoners—it will have to stop creating new ones.

This is an odd set of paragraphs. As the author indicates, a large part of why California historically had such high rates of recidivism is that its pre-2011 laws returned people to prison for technical parole violations, not just new crimes. Well, those parole violators can no longer be sent to state prison under the state’s 2011 realignment law. (Jonathan Simon explains here.) So, already, the state has taken steps “to stop creating new [prisoners].” It’s also nonsensical (on my reading) to speak of the likelihood that “most of these released prisoners will be back in jail” since, again, there is no such coherent group as “these released prisoners.” As I noted above, California is not “releas[ing] prisoners” pursuant to Plata. (To be sure, California’s always releasing lots of prisoners, because every month thousands of prisoners are finishing up their sentences; but that’s not because of Plata. The state has chosen to respond to Plata with prospective changes to its sentencing and parole laws, not early releases of current prisoners. Maybe this is all what the author meant to be talking about, but to me the way it’s all phrased is muddled and misleading, as if there were some discrete group of prisoners released “early” solely because of the Plata decision.)

Nor, as the author describes it, is the state “transferring inmates to county jails in lieu of early release” — again, no one is getting “early release” because of Plata, so no one can get transferred to county jail in lieu of that. Rather, the realignment policy means that as of October 2011, people convicted from now on of certain low-level felonies — not people already in prison before October 2011 — will now be punished at the county level, whether by a county jail term or whatever alternative sanction the county comes up with. These are not state prisoners being transferred to county jails, because they were never state prisoners.

Here is an op-ed by Joan Petersilia, probably the world’s leading expert on the California prison and parole systems, that explained the realignment policy around the time it passed. As Petersilia explained:

No inmates currently in state prison will be released early. All felons sent to state prison will continue to serve their entire sentence. All felons who are convicted of a serious or violent offense – including sex offenders and child molesters – will go to state prison. Felons who are not eligible for state prison can serve their sentences at the local level.

[note: made some slight edits and to add some links after prematurely hitting "publish"]

When U.S. District Judge Thelton Henderson of San Francisco appointed a receiver in February 2006 to oversee inmates’ medical treatment, he said the lack of adequate care was killing an average of one prisoner a week, and state officials had shown themselves incapable of complying with constitutional standards, including the ban on cruel and unusual punishment.

On Tuesday, Henderson said the latest report from receiver Clark Kelso showed “significant progress,” to the point that many of the goals have been accomplished. “The end of the receivership,” the judge said, “appears to be in sight.”

It’s not over yet, though. Henderson told lawyers for state prison officials and the inmates to meet with Kelso and try to agree on when the state will be ready to run its own system, under continued monitoring — by Kelso or someone else — to prevent backsliding. Their report is due by April 30.

In the meantime, the prison population continues to shrink, a development closely linked to two decades of health care litigation.

Donald Spector, who heads the Prison Law Office, which has been litigating the California prison cases for 20+ years, told the Los Angeles Times that he’s worried the state may backslide after the receivership is lifted, given the state’s ongoing fiscal crisis. California Healthline has a helpful backgrounder on the issue.

The ACLU of Southern California has long been litigating L.A. jail conditions and has served as court-appointed monitor of the jail — the nation’s largest — since 1985. The new lawsuit, however, includes new first-hand eyewitness accounts from chaplains and other observers of violence. The ACLU has put together a timeline of alleged incidents of abuse; you can also read the full complaint here.

The L.A. Times reports:

“Like members of street gangs, these deputies sport tattoos to signal their gang membership,” the ACLU alleges. “They beat up inmates to gain prestige among their peers, and ‘earn their ink’ by breaking inmates’ bones.”

In an interview with The Times, a recently retired jails commander also said that deputies had formed cliques inside Men’s Central Jail and that some guards earned respect from veteran members of those cliques by using excessive force.

This book uses the landmark case Jones v. North Carolina Prisoners’ Labor Union to examine the strategies of prison inmates using race and radicalism to inspire the formation of an inmate labor union. It thus rekindles the debate over the triumphs and troubles associated with the use of Black Power as a platform for influencing legal policy and effecting change for inmates. While the ideology of the prison rights movement was complex, it rested on the underlying principle that the right to organize, and engage in political dissidence, was not only a First Amendment right guaranteed to free blacks, but one that should be explicitly guaranteed to captive blacks—a point too often overlooked in previous analyses. Ultimately, this seminal case study not only illuminates the history of Black Power but that of the broader prisoners’ rights movement as well.

Prisoners’ rights to unionize last came up on this blog during the Georgia prison strike (?) of 2010. You can read the full Jones opinion here.

Under high-court precedents, inmates in federal institutions can file federal lawsuits against prison employees for mistreatment that violates the Eighth Amendment prohibition of “cruel and unusual punishments.”

By an 8-1 vote, however, the court refused to extend that right to inmates held in private prisons operated under contract to the U.S. government. In an opinion by Justice Stephen Breyer, the court observed that in contrast to federal employees, whom prisoners generally can’t sue in state court, employees of the private company enjoy no such immunity.

The AP has these details about the suit:

[Inmate Richard Lee] Pollard wanted to sue for his treatment after he fell and fractured both of his elbows at the privately run Taft Correctional Institution in Taft, Calif.

Pollard said GEO officials put him in a metal restraint that caused him pain, and refused to provide him with a splint, making his injuries worse and causing permanent impairment. He sued in federal court for money, claiming GEO officials had violated the Eighth Amendment prohibition on cruel and unusual punishment.

Justice Ruth Bader Ginsburg was the sole dissenter, writing, “Were Pollard incarcerated in a federal- or state-operated facility, she would have a federal remedy for the Eighth Amendment violation he alleges. I would not deny the same character of relief to Pollard, a prisoner placed by federal contact in a privately operated prison.”

The case is Minneci v. Pollard; you can read the full opinion as well as lots of commentary over at SCOTUSblog.

Buchanan’s observations about the taken-for-grantedness of sexual violence in prison and the seeming complacency about it in the outside world eerily recall a time when women who were raped would routinely be blamed for dressing too provocatively. Her analysis of how male victims of sexual violence are similarly ignored, disbelieved, held responsible, or told that it must have been consensual clearly draws on second-wave feminist analysis. Buchanan also draws on this analysis when she shows how the world of prisons and jails is as effectively shielded from legal scrutiny as was the home in an earlier era. Then, as now, the creation of a “private” sphere free from legal intervention made room for an informal order patrolled by patriarchal violence. …

Finally, Buchanan’s article is about a racialized sex/gender panic on the part of white men that crystallizes in the joke I repeated at the beginning of this review (and hundreds of variations scattered throughout popular culture). In her fascinating cultural history, Manliness and Civilization, Gail Bederman suggests that the male fantasy of vulnerability to rape by a “big black dude” may have its roots in the late nineteenth century, when white male masculinity entered a period of crisis from which it has never fully emerged. Buchanan demonstrates that the fantasy persists as a “myth” about prison rape – the belief held by experts as well as laypersons that the perpetrators of prison rape are disproportionately black and the victims disproportionately white. There is no good evidence to believe that prison rape is raced in this way. Yet the fantasy persists.

To learn more about the issue of prison rape, visit the website of Just Detention International.

Overpoliced and Underprotected: Women, Race, and Criminalization

Recently, mass incarceration has been theorized as a system of racialized social control. This frame, however, often relies on long-standing gender reductionism that posits the primary subject of punishment and criminalization as male. At the same time, the unprecedented growth of female incarceration has spawned a host of gender-sensitive interventions, yet the discourses that are gender-sensitive often marginalize if not entirely erase the distinctive racial dimensions of the punitive turn in public policy. This Symposium will interrogate how criminalization is mediated through various intersections of race, gender and class and will shed light on the dimensions of racialized criminalization that are gendered differently.

Moreover, this symposium will investigate the parallel and reinforcing nature of institutions that prepare certain populations for incarceration and function to exclude them upon their release. In examining various logics of punishment, the discussion will not be limited to formal boundaries of the criminal justice system, nor the processes that govern adjudications of innocence or guilt. Instead, this symposium will interrogate the processes of control that parallel and intersect with the prison system such as the public health, welfare, foster care and education systems. Examining these overlaps reveals the way that systems which are seen as policing race have gender dimensions and those which are seen as embodying gender norms police them along racial lines. Lastly, we will examine the ways in which formalistic examinations of the criminal justice systems and constitutional limitations on state action can obscure these race and gender dynamics. 

The full lineup of panels and panelists is at this link.

How does this convergence of American religiosity with American imprisonment fit with the First Amendment’s ban on state-established religion? In her book Prison Religion: Faith-Based Reform and the Constitution (Princeton UP, 2009), Buffalo law professor Winifred Sullivan uses a recent lawsuit as a case study for considering this question. From the book’s introduction:

In December 2006, in Des Moines, Iowa, a U.S. District Court judge found unconstitutional a faith-based, in-prison rehabilitation program operating in the Newton Facility of the Iowa Department of Corrections, a program known as InnerChange Freedom Initiative (IFI). …  Approximately a year after the District Court’s decision, the U.S. Court of Appeals for the Eighth Circuit found Prison Fellowship Ministries at the Iowa prison to be acting “under color of state law” in a program of conversion and discrimination. The Iowa Department of Corrections finally terminated its contract with InnerChange on March 10, 2008. (IFI programs are currently present in the prisons of five other states: Arkansas, Kansas, Minnesota, Missouri, and Texas. Private faith-based prison programs managed by other religious groups also exist in many states. Some states, including Florida, have initiated their own state-run, in-prison, faith-based programs. Because of variations in contracting arrangements, the effect of the Iowa court’s decision on these other programs remains unclear.)

AU v. PFM is acknowledged to be one of the most significant recent court cases considering the application of the establishment clause of the First Amendment to the U.S. Constitution to the new “faith-based” social services. A legal and social climate substantially more hospitable to government/religion partnership than in the recent past has made possible an increase in the number of government contracts with private, “faith based” social service providers, particularly those operating in prisons. … Notwithstanding the actual decision in the case, set in the larger context of religion in the United States, the trial testimony reveals a religious culture in which the sacred and the secular can be seen to be sinuously and ambiguously intertwined and support for religious authority more thoroughly located in the individual rather than in traditional institutions.

I look forward to reading the rest of Sullivan’s book and perhaps blogging about it further.
(h/t: Legal Theory Blog)

—

* (I’ll leave prescriptivist exceptionalism to the politicians.)

• Are men’s prisons more burdensome to their surroundings than women’s? That’s what some California residents are wondering: California’s realignment plan is expected to eliminate the need for one of its three women’s prisons, so the Chowchilla women’s prison may be converted to a men’s facility.
• Those who commit the most serious crimes are least likely to recidivate, and other surprising findings.
• Turns out the 2010 decline in the nationwide prison population was smaller than it first appeared.
• Arjun Sethi proposes “Four ways to relieve overcrowded prisons.”
• Yet another new warden at San Quentin — it’s had seven since 2004.