Decarcerating America
ALSO BY ERNEST DRUCKER
A Plague of Prisons: The Epidemiology of Mass Incarceration in America
© 2018 by The New Press
Chapters © individual contributors
All rights reserved.
No part of this book may be reproduced, in any form, without written permission from the publisher.
Requests for permission to reproduce selections from this book should be mailed to: Permissions Department, The New Press, 120 Wall Street, 31st floor,
New York, NY 10005.
Published in the United States by The New Press, New York, 2018 Distributed by Two Rivers Distribution
ISBN 978-1-62097-279-3 (e-book)
LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA
Names: Drucker, Ernest M., 1940-
Title: Decarcerating America: from mass punishment to public health / edited by Ernest Drucker.
Description: New York: The New Press, [2018]
Identifiers: LCCN 2017042771
Subjects: LCSH: Imprisonment—United States. | Prisons—Law and legislation—United States. | Criminal justice, Administration of—United States. | Punishment—United States. | Correctional law—United States. | Law reform—United States. | Imprisonment—Social aspects—United States.
Classification: LCC KF9730 .D43 2018 | DDC 364.60973—dc23 LC record available at https://lccn.loc.gov/2017042771
The New Press publishes books that promote and enrich public discussion and understanding of the issues vital to our democracy and to a more equitable world. These books are made possible by the enthusiasm of our readers; the support of a committed group of donors, large and small; the collaboration of our many partners in the independent media and the not-for-profit sector; booksellers, who often hand-sell New Press books; librarians; and above all by our authors.
www.thenewpress.com
Composition by Westchester Publishing Services
This book was set in Fairfield
24681097531
Contents
Introduction by Ernest Drucker
PART I: PRIMARY PREVENTION
1.Ending Mass Incarceration: Six Bold Reforms
NATASHA A. FROST, TODD R. CLEAR, AND CARLOS E. MONTEIRO
2.Better by Half: The New York City Story
JUDITH A. GREENE AND VINCENT SCHIRALDI
3.Lessons from California
MICHAEL ROMANO
4.The Role of Judges
JUDGE ROBERT SWEET AND JAMES THOMPSON
5.Public Defense and Decarceration: Advocacy on the Front Lines
ROBIN STEINBERG, SKYLAR ALBERTSON, AND RACHEL MAREMONT
6.Making Drug Policy Reform Work for Meaningful Decarceration
GABRIEL SAYEGH
PART II: SECONDARY PREVENTION
7.Transforming Our Responses to Violence
DANIELLE SERED
8.Minimizing the Impact of Parental Incarceration
ELIZABETH GAYNES AND TANYA KRUPAT
9.Health and Decarceration
ROSS MACDONALD AND HOMER VENTERS
10.Release Aging People in Prison
MUJAHID FARID AND LAURA WHITEHORN
PART III: TERTIARY PREVENTION
11.Health Care as a Vehicle for Decarceration
DALIAH HELLER
12.Come Close In: Voices of Survivors of Mass Incarceration
KATHY BOUDIN
13.Dealing with Drug Use After Prison: Harm Reduction Therapy
JEANNIE LITTLE, JENIFER TALLEY, SCOTT KELLOGG, MAURICE BYRD, AND SHEILA VAKHARIA
14.Prisons to Ploughshares: New Economies for Prison Towns
ERIC LOTKE
Acknowledgments
Contributors
Introduction
Decarcerating America
ERNEST DRUCKER
It used to be that most people saw drugs and crime as social diseases, and prison as the cure. But in the last few years a major shift in thinking has allowed us to understand that prisons themselves are the disease, having now taken on the epidemic proportions known as “mass incarceration.” Mass incarceration is destroying hundreds of communities and millions of families across America as we lose the health and well-being of vast swaths of our society.
This was the case I made in my book A Plague of Prisons—that mass incarceration is a deadly and tenacious epidemic that damages the lives of individuals, families, and communities. It’s a new kind of epidemic that results in a long list of chronic disabilities across the population of seventy million Americans with criminal records. The epidemic is particularly acute among the poorest minority communities, where the immediate public health effects of mass incarceration now include reduced life expectancy, higher infant mortality, and elevated rates of acute and chronic illnesses among those who have been in prison or had a family member incarcerated. The epidemic has also ravaged the vast majority of prisoners released and returned to their communities, many with deep wounds and new traumas from prison life and from being isolated through long separations from families and social supports. And yet, in order to end mass incarceration, we must greatly increase the number of people being released from prisons, exacerbating the public health problem of prisoner reentry.
The broad case against mass incarceration has been made in many other books and articles, and in the streets of Ferguson, Baltimore, and other cities where activists are striving to make black lives matter. The case has been made on the floors of legislative halls, in courtrooms, in classrooms, in state budgets. There is now a broad and growing base of support for ending mass imprisonment in America. Indeed, the emerging consensus that we simply cannot lock up so many people in prisons and jails stands to be one of the greatest victories for justice in America in our lifetimes.
To be sure, the 2016 presidential campaign brought a resurgence of “law and order” rhetoric and calls for harsher punishment. But at the same time (and, in some cases, even in the same place), a growing momentum has emerged to end this nation’s globally unique overreliance on incarceration. In 2016 alone, major strides in criminal justice reform were made, including victories such as Proposition 57 in California and State Questions 780 and 781 in Oklahoma, which stand to reduce both states’ prison populations dramatically. Voters elected progressive candidates as local prosecutors and sheriffs in places including Illinois, Florida, Texas, and Arizona—outcomes that would have been unthinkable even five years ago. Although federal policy is influential in setting both law and tone, criminal justice remains largely a state-based and local issue—and often a bipartisan one. So there remains reason to be hopeful, regardless of the spectacle of presidential politics.
Now it is time to ask, “What is next?” Specifically, to ask, “We’ve built a giant bureaucratic system that incarcerates two million people at a time—how do we get those people out of prison, stop more people from entering prison, and dismantle this system, all without doing further harm?” This is the project of decarceration and the subject of this book.
Decarceration will be a complex undertaking that demands more than one approach. The primary objective of this book will be to present one of the first comprehensive sets of solutions to this problem. Since the problem is so complex, and since there are many solutions that must be made to work in concert, the best way to begin is to draw on the specific expertise of people who have spent their lives understanding a discrete part of mass incarceration and enacting innovative and experimental solutions to dismantle it. No one person has all the answers, but each contributor to this book has a solution to offer.
The overall goal is to reduce the size of our nation’s prison system. The standard for evaluating our success or failure must be whether we have deconstructed mass incarceration and replaced it with a
less punitive, health-based system. Rather than treating criminal justice and prison data merely as the sum of “deviant” criminal behaviors by individuals, the contributors to this book use public health and restorative justice approaches that will allow us to set targets for reducing the number of arrests, reducing the use of long-term incarceration, and replacing the current punitive prison system with a set of proven alternatives that have a positive impact on both public safety and the people who are driven to crime. In order to dismantle the current regime of mass incarceration and help people currently held in prison, we present strategies to turn off the spigot of new commitments to prison and jail; embrace a restorative, transformative, dignity-based approach to incarceration for those we feel compelled to lock up; advocate for early release and support for successful integration back into home communities; and adopt a truth and reconciliation approach to undoing the trauma inflicted on millions of Americans during this virulently punitive era in American history.
The discipline of public health has a well-developed model of prevention that breaks interventions into primary, secondary, and tertiary strategies, each designed to address an epidemic at a different stage. I have drawn on these concepts and organized this book in three parts that mirror these three categories. We fight epidemics of infectious diseases in these three ways: by preventing people from getting sick (primary), by improving care for people once they are sick (secondary), and by healing communities and individuals who are recovering from the disease and by preventing further infections (tertiary).
As applied to mass incarceration, primary prevention means reducing the number of people entering our prisons and jails. Often called the “front door” approach, primary prevention is now the goal of growing national campaigns to reform arrest and sentencing practices, with many states already beginning to reduce new admissions to jails and prisons. Primary prevention also includes early interventions to help people avoid getting involved with the criminal justice system, and others that seek to minimize the harms associated with arrest and even short-term detention. The negative consequences of even a short stint in jail, often due to the inability to make bail, can include immediate job loss, loss of child custody, and loss of housing, so the individual stakes are high. Primary interventions work to support people during this dangerous time.
Criminologists Natasha Frost, Todd Clear, and Carlos Monteiro open Part I, on primary interventions, with “Ending Mass Incarceration.” Counter to the “law and order” mind-set of many Americans, Frost, Clear, and Monteiro show that reducing rates of imprisonment in the most affected communities—by not incarcerating people for drug crimes, eliminating mandatory sentences, and reducing the length of all prison sentences, among other suggestions—can actually lead directly to improvements in community safety and reduction in crime rates.
Chapter 2 provides a case study of decarceration in New York State, which has been surprisingly effective. In “Better by Half,” criminologist Judith Greene and Vincent Schiraldi, a former commissioner of the New York City Department of Probation, present the lessons of their detailed study of the New York criminal justice system over the past twenty years. They find that by employing a range of interventions, New York has successfully reduced mass incarceration, with the largest drop in prison populations nationwide over the last fifteen years. Many who are stuck in the mind-set of punishment would have predicted that such a sharp decline in incarceration in New York City would have been accompanied by an equally profound increase in crime. But Green and Schiraldi show that exactly the opposite happened. Despite the fact that the city’s population grew by more than a million people between 1996 and 2014, the real number of New Yorkers incarcerated in prisons and jails declined by over thirty thousand during that time. Simultaneously, New York City saw a 58 percent decline in the eight types of serious crime tracked in the FBI’s uniform crime index, while these same index crimes declined by a more modest 42 percent nationally.
“Lessons from California on Prison and Jail Downsizing” provides a case study from a different part of the country by Michael Romano, a professor at Stanford Law School, who examines the potential of legislative reform to reduce mass incarceration. The Golden State ended three-strikes sentencing, once the national vanguard of tough-on-crime politics, in 2000 through a ballot initiative. Today, California is one of the states leading the trend in decarceration. Between 2006 and 2014, in part because of a court order, California reduced its prison population by over 20 percent—more than 37,000 fewer prisoners. In the same period the total number of prisoners in all other state prisons and the federal system combined increased by almost 30,000 (2.1 percent). In fact, the total national prison population is on the decline largely due to the scale of prison downsizing in California and New York. And yet, in a further empirical challenge to the punishment mind-set, between 2010 and 2015 the rate of violent crime per 100,000 residents in California fell by 2.1 percent and the rate of property crime fell by 0.4 percent. In total, the state’s crime rate has dropped to levels not seen since 1967. The recidivism rate of prisoners released early under California reforms is five to ten times better than the average recidivism rate of other California prisoners who were not released early.
“The Role of Judges in Ending Mass Incarceration,” by Justice Robert Sweet, a longtime federal judge for the Southern District of New York, and attorney James Thompson, argues that judges should be leaders in acting to reduce, and eventually eliminate, mass incarceration in our country. Judges can fight mass incarceration through measures ranging from transparency in the charging process to developing a common law of sentencing, among other strategies.
In “Public Defense and Decarceration,” Robin Steinberg, Skylar Albertson, and Rachel Maremont explain the crucial role that public defenders can play for indigent populations facing criminal charges. The Bronx Defenders, which Steinberg founded and where Skylar Albertson and Rachel Maremont are staff attorneys, is one of the largest and most innovative of the more than one thousand public defender offices in the United States, representing more than twenty thousand cases per year. As the authors note, “in the American criminal justice system, an arrest is never just an arrest.” Even if it leads to only a minor misdemeanor conviction or no conviction at all, an arrest can throw an individual’s entire life into chaos, jeopardizing employment, housing, immigration status, access to public benefits, and family unity.1 Steinberg and her colleagues argue for holistic public defense, an approach that provides meaningful, client-centered, and relevant legal representation that expands the scope of defense advocacy to address the many enmeshed penalties faced by those involved with the criminal justice system.2
In the final chapter of the primary prevention section, “Making Drug Policy Reform Work for Meaningful Decarceration,” gabriel sayegh, a leader in many campaigns to reform drug policy, argues for an end to the war on drugs, which is largely responsible for the explosive growth of the U.S. prison population over the last forty years. Drug law reform is necessary but not sufficient for ending mass incarceration; to end mass incarceration we will need both to end the war on drugs and to advance other reforms of the criminal justice system, including those related to violent offenses.3 But while the majority of people in U.S. jails and prisons are not there because of drug charges,4 data show that ending mass incarceration is not possible without ending the war on drugs.5
Some argue that decriminalization of drugs is “too radical” or even impossible. But such assertions ignore the local and international debate around drug policy, where attitudes are shifting. Over the past two decades, when given the option through local initiatives, voters regularly choose to roll back the drug war for more sensible approaches—passing medical marijuana laws and legalizing recreational use,6 enacting substantive sentencing reforms,7 and curtailing the corrupt bail bond industry, which exposes so many poor defendants who can’t make bail to long periods of brutality in our violent jails.8 In October 2016, a major report released by Human Rights
Watch and the American Civil Liberties Union concluded that decriminalization should be a primary goal of drug policy reform in the United States.
We cannot, however, prevent all new cases of incarceration. Therefore, the public health model for decarceration also calls for secondary interventions, which consist of a set of tools for making conditions in prisons and jails more humane for those incarcerated in them, as well as for reducing the size of the prison population by releasing more people from prisons. There may be certain people who must be confined in prison because of the risks they pose to others. But this is best accomplished by prison programs with rehabilitative objectives and outcomes, especially mental health services and higher education, rather than through the punitive institutions prisons have become.
The number of people who should be in prison due to the threat they pose to public safety is drastically lower than the number of people incarcerated today. Work must be done to shorten prison stays and determine which prisoners should be released immediately. Secondary interventions focus on minimizing future criminal justice involvement; the evidence tells us that we can lower recidivism while releasing more people from prisons quickly without compromising public safety. This approach also addresses both individuals and populations affected by mass incarceration, proposing an array of specific plans and programs to heal the many wounds of both the victims of crime and the victims of mass incarceration.
This section of the book opens with “Transforming Our Responses to Violence,” by Danielle Sered, director of the Vera Institute’s Common Justice program, which bravely seeks alternatives to punishment for violent crime. Public safety includes the protection of all citizens from the effects of criminal conduct, especially from violent crime—an essential responsibility of any society and a core dimension of delivering on the promise of justice. But substantially reducing violence requires acknowledging the limitations of prisons as a strategy to both deliver safety and ensure justice. Ending mass incarceration in America will therefore require taking on the question of violence. A pioneer in the application of restorative justice methods, Sered offers alternatives to incarceration that instead allow the people who cause harm to make amends in a way that feels meaningful to all parties involved and brings healing to the wounded person in the form of a truth and reconciliation process.