The Prison and the Gallows: The Politics of Mass Incarceration in America by Marie Gottschalk

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Over the last three decades the United States has built a carceral state that is unprecedented among Western countries and in US history. Nearly one in 50 people, excluding children and the elderly, is incarcerated today, a rate unsurpassed anywhere else in the world. What are some of the main political forces that explain this unprecedented reliance on mass imprisonment? Throughout American history, crime and punishment have been central features of American political development. This book examines the development of four key movements that mediated the construction of the carceral state in important ways: the victims' movement, the women's movement, the prisoners' rights movement, and opponents of the death penalty. This book argues that punitive penal policies were forged by particular social movements and interest groups within the constraints of larger institutional structures and historical developments that distinguish the United States from other Western countries.

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I   THE PRISON AND THE GALLOWS

The Construction of the Carceral State in America

IN 1850, Nathaniel Hawthorne suggested that prison is a necessary but not entirely desirable social institution. He described prison as “the black flower of civilized society” and implied that prisons were durable weeds that refused to die. Over the past three decades, this black flower has proliferated in the United States as the country has built a carceral state that is unprecedented among Western countries and in U.S. history. Three features distinguish the U.S. carceral state: the sheer size of its prison and jail population; its reliance on harsh, degrading sanctions; and the persistence and centrality of the death penalty.

   Nearly one in fifty people in the United States, excluding children and the elderly, is behind bars today. In a period dominated by calls to roll back the state in all areas of social and economic policy, we have witnessed a massive expansion of the state in the realm of penal policy. The U.S. incarceration rate has accelerated dramatically, increasing more than five-fold since 1973. Today a higher proportion of the adult population in the United States is behind bars than anywhere else in the world. The United States, with 5 percent of theworld’s population, has nearly a quarter of its prisoners. America’s incarceration rate of 714 per 100,000 is five to twelve times the rate of Western European countries and Japan. Even after taking into account important qualifications in the use of the standard 100,000 yardstick to compare incarceration rates cross-nationally, the United States is still off the charts (see Figure 1).

Figure 1. Incarceration Rates for Select Nations and Groups. Source: Ann L. Pastore and Kathleen Maguire, eds., Bureau of Justice Statistics Sourcebook of Criminal Justice Statistics – 2001 (Washington, DC: U.S. Department of Justice, 2002), p. 486, Table 6.13; and International Centre for Prison Studies, “Entire World – Prison Population Rates per 100,000 of National Population,” http://www.kcl.ac.uk/depsta/rel/icps/worldbrief/highest_to_lowest_rates.php (accessed November 30, 2004).

   The reach of the U.S. penal state extends far beyond the 2.2 million men and women who are now serving time in prison or jail in America. On any given day, nearly seven million people are under the supervision of the correctional system, including jail, prison, parole, probation, and other community supervision sanctions. This constitutes 3.2 percent of the U.S. adult population, or one in every thirty-two adults, a rate of state supervision that is unprecedented in U.S. history. If one adds up the total number of people in prison, plus parolees, probationers, employees of correctional institutions, close relatives of prisoners and correctional employees, and residents in communities where jails and prisons are major employers, tens of millions of people are directly affected each day by the carceral state.

   These overall figures on incarceration belie the enormous and disproportionate impact that this bold and unprecedented social experiment has had on certain groups in U.S. society, especially young African Americans, Hispanics, and the growing number of incarcerated women who are parents of young children. Blacks, who make up less than 13 percent of the U.S. population, now comprise more than half of all people in prison, up from a third twenty years ago and from a quarter in the late 1930s. The number of black men in prison or jail has grown so rapidly over the past quarter-century that today more black men are behind bars than are enrolled in colleges and universities.

   Unlike other major state-building exercises like the New Deal and the Great Society, the construction of the carceral state was not presented as a package of policies for public debate. The carceral state was built up rapidly over the past thirty years largely outside of the public eye and not necessarily planned out. While the explosion in the size of the prison population and the retributive turn in U.S. penal policy are well documented, the underlying political causes of this massive expansion are not well understood. Clearly, why the United States created such an extensive and punitive penal state is a complex question. Penal policies and institutions are formed not from a single factor, but instead by a whole range of converging forces. Still, it is important to sort out the more important from the less important factors. The central question of this book, then, is what are some of the main political forces that explain this unprecedented reliance on mass imprisonment and other retributive penal policies? Specifically, why didn’t the rise of the carceral state face more political opposition? The absence of such opposition, as will be shown, provided permissive conditions for political elites to construct a massive penal system.

   Explanations for the rise of the carceral state vary enormously, but many of them do have one thing in common. They adopt a relatively short time frame as they try to identify what changed in the United States over the past thirty to forty years to disrupt its relatively stable and unexceptional incarceration rate and to bring back capital punishment with a vengeance. The half-dozen major explanations – an escalating crime rate, shifts in public opinion, the war on drugs, the emergence of the prison-industrial complex, changes in American political culture, and politicians exploiting the law-and-order issue for electoral gain – concentrate on developments since the 1960s.

   This focus on recent developments to explain the rise of the carceral state makes some sense. After all, from the mid-1920s to the early 1970s, the U.S. incarceration rate was remarkably stable, averaging about 110 state and federal prisoners per 100,000 people (see Figure 2). From the 1960s to the early 1970s, the prison population was slowly but steadily shrinking by about one percent a year. While the U.S. incarceration rate historically has been higher than that of other Western countries, it was not until the 1970s and 1980s that it began radically to exceed them. Likewise, until the 1970s, the United States appeared to be traveling down the same path as Western Europe and Canada toward abolition of the death penalty. The annual number of executions dropped steadily beginning in the late 1930s, bottoming out with the decade-long de facto moratorium on the death penalty that began in 1967. After the Supreme Court reinstated capital punishment with the 1976 Gregg decision, the number of executions began its grim rise, first hesitantly and then with steady regularity. Given these patterns of imprisonment and use of the death penalty, it appears logical to locate the trigger for the carceral state in the relatively recent past.

Figure 2. Prison Population per 100,000 Residents, United States, 1925–2001. Source: Ann L. Pastore and Kathleen Maguire, eds., Bureau of Justice Statistics Sourcebook of Criminal Justice Statistics – 2001 (Washington, DC: U.S. Department of Justice, 2002), p. 494, Table 6.23.

† Includes number of federal and state prisoners per 100,000 residents. Does not include inmates in local jails.

   Explanations of the construction of the carceral state that emphasize recent developments challenge some of the central premises of how we understand American political development. If correct, they suggest that this may be an instance of a major expansion of the state and a radical shift in public policy that has shallow historical and institutional roots. In short, history and institutions do matter, but only in the broadest, most general sense.

   A central contention of this book, instead, is that contemporary penal policy actually has deep historical and institutional roots that predate the 1960s. Just as prisons are all around us but we choose not to notice them, crime and punishment have been central features of American political development but we choose not to notice. Both state capacity to incarcerate and the legitimacy of the federal government to handle more criminal matters were built up slowly but surely well before the incarceration boom that began in the 1970s. Understanding the specifics of how this came about is a necessary precondition for understanding the construction of the carceral state. Explanations that concentrate too narrowly on the recent past overstate the historical, political, and institutional discontinuities, and understate important continuities or preconditions. As such they present an incomplete picture of why the prison-building boom of the past three decades and the wider use of vengeful, degrading, dehumanizing sanctions like chain gangs, supermax prisons, and capital punishment did not face more political opposition.

   The United States has a long history of active political concern about issues related to crime and imprisonment. Throughout American history, crime and punishment have been central concerns not just at the local and state levels, but at the national level as well. This past helps us understand how institutional capacity, especially state capacity to pursue mass imprisonment as public policy, was built up well before the 1970s. It also illuminates how the ideologies that legitimated such policies were constructed. While the history of crime and punishment has been a ripe field for social historians, their insights and findings have had little bearing on discussions of the politics of contemporary penal policy in the United States. This is unfortunate because, as Norval Morris and David Rothman forcefully remind us, prisons do have a history: “In the popular imagination, institutions of incarceration appear so monumental in design and so intrinsic to the criminal justice system that it is tempting to think of them as permanent and fixed features of Western societies.” For anyone seeking to either explain or reverse the country’s appalling incarceration rate, understanding the deeper historical context out of which contemporary penal policy was forged is essential. Furthermore, by comparing the institutional and political development of the United States with other Western countries, we can have a better idea of why the carceral state emerged here but not elsewhere so far.

   Analysts who identify politics as a central factor in explaining the transformation of penal policies in the United States generally emphasize the role of political elites aided by conservative interest groups in fueling the nation’s enthusiastic embrace of incarceration and other get-tough penal policies. While taking these factors into account, this book takes a broader look at the political and institutional context to understand what fueled the law-and-order debate ignited by political elites. After all, as discussed in Chapter 3, political elites in the United States have a long history of raising law-and-order concerns in an attempt to further their own political fortunes. And Americans have a long history of periodic intense anxiety about crime and disorder. Yet only recently have these concerns and anxieties resulted in such a dramatic and unprecedented transformation of penal policies in a more punitive direction. By understanding the subtleties of this institutional and political context, we can begin to grasp why elite political preferences for a war on crime had such profound consequences for penal policies despite contemporary public opinion polls showing that Americans can be quite ambivalent about the crime issue. Politicians alone cannot forge the public mood on law enforcement issues.

The Past as Prelude

Explaining the political reasons for the development of the carceral state – defined by its reliance on mass imprisonment and degrading punishment and its fierce attachment to the death penalty – is the central task of this book. Chapter 2 surveys and critiques the major existing explanations for the creation of this extensive and unforgiving carceral state, including what I term the law-and-order argument. While law-and-order explanations differ in significant respects, they share several important features. These accounts portray political elites as key catalysts in the politicization of the crime issue and the creation of a more punitive public. They suggest that the politics of law and order, that is, the “public contestation of the dynamics of crime, disorder, and their control,” is a relatively recent phenomenon, dating back to the 1960s. Prior to that the crime issue is assumed to have been largely insulated from partisan politics, at least at the national level. Belief was widespread that “crime, like the weather, is beyond political influence; and that the operation of the law and criminal justice should be above it.” In addition to analyzing and critiquing the law-and-order accounts, Chapter 2 discusses alternative explanations for the rise of the carceral state, including changes in the crime rate and the illegal drug trade, the emergence of a prison-industrial complex, shifts in public opinion, and changes in American political culture. While each of these explanations has considerable merit, they are not very political in the sense that they do not explain why political opposition to the carceral state was so muted. In short, as the give-and-take of interest groups is such a central aspect of American politics, why didn’t liberal groups and others mobilize to resist mass imprisonment?

   Chapter 3 uses historical evidence to challenge several key premises of the law-and-order argument: that the nationalization and politicization of the crime and punishment issue are relatively new phenomena; that the public’s recent concerns about crime are unprecedented; and that we can safely ignore inherited institutions in any discussion of the politics of crime and punishment before the 1930s or even later because of the absence or late development of the basic federal crime control institutions. This critical evaluation serves as a vehicle to develop one leg of an alternate explanation, namely that the state structures and ideologies that eventually facilitated the incarceration boom and other contours of the carceral state were built up well before the 1970s.

   With each campaign for law and order and against certain crimes and vices in earlier eras, state capacity accrued, as evidenced, for example, by the growth of the Federal Bureau of Investigation (FBI) and the federal prison system, and by the militarization of crime control. As each campaign receded, the institutions it created did not necessarily disappear. Rather, the institutional capacity of the government expanded over time. Thus the periodic calls for law and order and the attacks on the designated vices of the moment were more likely to result in concrete policies with real ramifications. The politics of law and order became less symbolic and expressive and more substantive and instrumental. Politicians’ strategic use since the 1960s of calls for law and order as a political mobilization strategy is not a new phenomenon in U.S. history. But unlike earlier tough-on-crime campaigns, the latest push for law and order resulted in wide-ranging changes in penal policies that have had concrete consequences for the millions of people behind bars in the United States today and for the tens of millions who have a direct connection to the criminal justice apparatus. The consequences have been different because of the vastly different institutional and political context in which the campaigns against crime have been carried out since the 1960s. That institutional and political context not only has encouraged mass imprisonment and capital punishment as the preferred policies, but has also impeded the mobilization of countervailing groups to challenge the carceral state.

Social Movements, Interest Group Politics, and Institutions

This is not to argue that the punitive turn toward more prisons was entirely the result of increased state capacity at the national, state, and local levels. Something significant did change from the 1970s onward, but even that had historical and institutional roots. In addition to public officials and candidates championing the politics of law and order, numerous new groups began to mobilize around criminal justice issues and alter the political context. The role of conservative groups in promoting a more hard-line position on crime and punishment is well documented. Left largely unexamined is why these conservative groups did not face more political opposition to their law-and-order crusades. What has been overlooked is the role of other groups, some of them identified with progressive and liberal causes, in facilitating – often unwittingly – a more punitive environment conducive to the consolidation of the carceral state. This book examines the development of four key movements and groups – the victims’ movement, the women’s movement, the prisoners’ rights movement, and opponents of the death penalty – that mediated the construction of the carceral state in important ways.

   Critical new factors were the timing and manner in which these groups organized and mobilized, but their formation and mobilization cannot be understood in isolation from history. While many of these groups and movements were new, they did not come out of nowhere. The prior history of U.S. crime and punishment in American political development and the particular political and institutional context in which these groups emerged circumscribed their strategies and opportunities and affected the debate over criminal justice policy in significant ways.

   Another major argument of this book, then, is that penal policies are forged by particular social movements and interest groups within the constraints of larger institutional structures. Most explanations for the escalating incarceration rate in the United States that emphasize the role of interest groups or social movements tend to stress the importance of conservative groups like the National Rifle Association (NRA), the consolidation of a powerful victims’ rights movement, or the influence of organizations that have strong economic incentives to support an ever-expanding penal-industrial complex, like Corrections Corporation of America and Wackenhut Corrections Corporation, the largest of the for-profit prison firms. Liberal or progressive groups have not been left out of the picture entirely. The prime focus here has been on how growing liberal disillusionment with the rehabilitative ideal, and specific sentencing practices like indeterminate sentencing beginning in the late 1960s and 1970s, provided an important opening for conservatives to push penal policy in a more punitive direction.

   The role of progressive penal reformers and their temporary allies on the right who were dissatisfied with the criminal justice system, but for different reasons, is an important part of the story. Liberal disillusionment with rehabilitation and attacks on sentencing policy from the right and left certainly provided a significant opening for penal policy to shift radically in the United States. But we need to look more systematically at groups and movements that are not the usual suspects in penal policy and yet have played pivotal roles in making public policy more punitive. Furthermore, we need to consider how the institutional context, not just conservative law-and-order politicians like Barry Goldwater and conservative groups like the NRA, facilitated a major shift in penal policy such that incarceration became the punishment of choice, justified in the name of deterrence and retribution without any pretense of rehabilitation.

   By the 1990s, the elite consensus in favor of get-tough penal policies had become a formidable and defining feature of contemporary American politics, even as the extraordinary extent of the carceral state remained largely invisible and unexamined. The tenacity of this elite consensus should not lead us to assume that all-powerful political authorities operating in a political and ideological environment largely of their own making were single-handedly responsible for the creation of the U.S. penal state. The need for political and economic elites to legitimate control and coercion is an age-old theme in politics. What’s new here is identifying the particular features of the institutional and political landscape in the United States that mediated the emergence of a powerful elite consensus in favor of the carceral state over the past four decades or so. In short, whether state elites co-opt or facilitate social movements that challenge the status quo is historically contingent on particular political and institutional forces, as Charles Tilly reminds us.

   Just because political or economic elites desire a certain type of social control (such as massive imprisonment of African Americans in the wake of the rebellions of the 1960s and the deteriorating economy of the 1970s) or seek to create a new electoral base by igniting the law-and-order issue does not mean they automatically get what they want. A variety of political and institutional factors can stymie or facilitate their goals. This book identifies certain historical factors – such as the weakness of the American welfare state and a pattern of roundabout state-building induced by morally charged crusades – and some important contemporary ones (namely the role of several key interest groups and movements) to explain why the creation of the carceral state did not face more political opposition. Women’s groups, prisoners’ rights organizations, and the anti-death penalty movement faced seriously constrained political circumstances. While these groups did not instigate the law-and-order crusade, they helped to facilitate it once elites declared war on crime and criminals.

   My analysis challenges the view among some social control theorists and other analysts that public support for more punitive policies was unproblematic and automatic in the face of a political elite mobilized and united behind such policies from the mid-1960s onward. The politicization of law and order was more complex and contingent than is commonly assumed. Elite support for the policies that led to the development of the penal state was initially more fragmented, fitful, and tentative, even among reputed hard-liners like Richard Nixon and Ronald Reagan. While conservative Republicans are most closely identified with the politics of law and order, liberal Republicans and Democrats have been key architects of the penal state. Despite Nixon’s stress on law-and-order themes in the 1968 presidential campaign, rates of imprisonment fell during his first term in office. On the eve of the prison-building boom, prison reformers and analysts were cautiously optimistic about the prospects for decarceration, especially in light of the successful campaign for the deinstitutionalization of the mentally ill. Even as imprisonment rates began to turn upward in 1973, the Nixon administration’s National Advisory Commission on Criminal Justice Standards and Goals was recommending a ten-year moratorium on penal construction and closing existing facilities for juveniles. Furthermore, the Nixon administration initially sat on the sidelines of the national dispute over capital punishment.

   Political opportunism and ideological zeal do not on their own explain why the penal state was constructed. That opportunism and zeal were mediated in important ways by interest groups and movements, many of them not usually identified with conservative policies, and by an exceptional institutional context that turned out to be highly receptive to the establishment of the carceral state. This helps to explain why the countervailing tendencies were not stronger. As Jonathan Simon and others suggest, we need to look at more than just the ideological and electoral relationship between state power and penal policies. We need to consider the resources, the discourses, and the expertise political elites employ to promote certain policies. Building on this, I argue that resources, discourses, and expertise are best understood by examining them in the context of specific state and nonstate institutions and certain interest groups and social movements that can serve as facilitating or countervailing forces. This book attempts to identify meaningful analytical relationships between interest groups and movements that are usually treated in isolation from one another and that are usually examined through lenses other than their contribution to the carceral state.