Jason S. Sexton on reforming America’s prisons
Mass incarceration has rarely featured in public debates about America’s most needed reforms.
Although candidates ignored the topic in the 2012 presidential election, President Obama recently acknowledged it in his Selma speech and in his recent conversation with the creator of HBO’s “The Wire,” David Simon. Recent news suggests Hillary Clinton may make ending mass incarceration part of her campaign agenda. Last month, Grammy Award-winning artist John Legend announced a new campaign, “Free America,” to address the blight of our correctional facilities. Discussion has intensified among politicians and other public leaders with reform filling the air.
One epicenter of this reform impulse resides in the largest prison state in the country: California. Among several efforts is one spearheaded by movie-producer-turned-prison-reformer Scott Budnick and his Anti-Recidivism Coalition, which has support from the California Endowment, from celebrities and philanthropists, and even snagged $865,000 from Gov. Jerry Brown’s budget. Under the leadership of Dr. Robert K. Ross, the California Endowment (a health foundation established by Blue Cross of California in 1996 to address health needs of Californians) has been increasingly funding efforts related to the prison, helping both to prevent incarceration and minimize recidivism.
Under pressure from the 2009 Ninth Circuit Court of Appeals order for California to reduce its adult state prison population from nearly 200% to 137.5% capacity in two years, California leaders needed help, and especially when the 2011 Brown v. Plata decision was made by the United States Supreme Court. Deemed a “philosophical benchmark” in Columbia Law professor Robert A. Ferguson’s Inferno: The Anatomy of American Punishment, the Brown v. Plata decision showed the full spectrum of views on punishment in America. The mandate was to reduce the prison population from around 150,000 inmates to around 110,000. After the 2011 Realignment plan yielded AB 109 and 117, after passing the 2012 Prop 36 to ease California’s 1994 three-strikes law (itself mimicked by twenty-four other states), and after Californians passed Prop 47 in 2014, by February 2015 California reached the goal — the state prison population hit 137.2% capacity (113,463 inmates). In March of this year, the population stood at 112,300, or 135.8% capacity. While this shift has placed a heavy burden on counties and especially on local law enforcement, many not knowing who just arrived on the streets since Prop 36 grants release without parole, the situation has been largely celebrated as “good news.”
The jolt of recent reform laws, however, has not made everyone happy. The tough on crime mentality waxes as arguments for public safety are reinvigorated, and new half-baked proposals continue, including one by Mark Kleiman that advocates easing the prisons with halfway houses boasting round the clock surveillance. Kleiman’s plan competes with the rise of private prisons, about which Californians (and ordinary citizens) know very little, including how many receive Californians, both inside and outside of the state. In their variations, then, prison reformers are squaring off against the massively complicated system the state built. A large nationwide effort aims to reduce US mass incarceration by 50% in the next 10-15 years. Meanwhile, not everyone agrees on methods of determining whom to release. The politicians are hardly reliable guides.
Californians regularly debate the appropriate handling of societal deviants (especially foreigners). That dilemma remains the feature story of our prisons, arising from fear and angst toward the other; we incarcerate as many of these as possible, and then some. (Historically, this was the case with Australians, Asians, African Americans, and Latinos in California.) Commonly known, the state of California has been constantly on the edge, always in a state of flux about the nature of this place and who belongs here, ultimately giving way to virtually all people groups from throughout the planet who wish to make a better life here. Nevertheless, who belongs here (and who doesn’t) has always been a contested reality in California’s vast geographical terrain, exhibiting a unique dynamic among the rest of the states. Incidentally, while California’s prison population is largely Latino, African Americans (only 7.2% of the state’s population) make up 29% of the prison population, suggesting that in spite of Californians’ optimism about race relations, the Golden State is not immune to Michelle Alexander’s indictment of the US Prison as the New Jim Crow. The New Jim Crow has found its way to California.
A special kind of person comes to the Golden State amid all this contestability, and often one who is exceptionally hopeful or extremely desperate. With its historic dynamic of cultural innovation, constant change, and adaptation of other (better) ideas, California could conceivably undo in a short time what her people have built in the past thirty years. During these past three decades the state has set the national tone for mass incarceration: our prison population sextupled since 1980, and we built 23 state prisons in the same period.
Several significant Christian ministries arose along with mass incarceration, including Prison Fellowship founded by Chuck Colson in 1976. Nearly all American prisons also have chaplains and volunteers performing spiritual work. Yet often something more intense happens beyond the chaplain’s work and that of others who cannot participate in the inner life of the prison. Andrew Johnson’s recent work funded in part by the Pentecostal and Charismatic Research Initiative highlighted a different dynamic in [Brazilian] prisons. I have argued elsewhere that there is an alternative power at work in California prisons, the “ecclesia incarcerate,” functioning alongside other dominant prison structures as an indigenous community that properly designated church — interracial, intergenerational, transformational, and subversively fulfilling what other structures (e.g., from the state, gangs) attempt to accomplish but never can.
Amid prison life and energetic attempts from various religious and non-religious figures to reform the prison, the prison church remains present — inchoate in some contexts, yet even there perhaps a more powerful beacon of light, hope, and transformation than many realize. Perhaps this is because church participants are not the source of the power, which is displayed in a kind of weakness. Sadly, non-incarcerated churches often fail to acknowledge the vibrancy/potency of their incarcerated brothers and sisters, inadvertently contributing to recidivism rates when not knowing what to do with the recent barrage of prisoners released under Props 36 and 47. But perhaps this discombobulation and inability to respond well to the release of the incarcerated, integrating them back into society, was part of the architectural strategy behind what Mike Davis calls a “Prison Industrial Complex,” fit with its politics of super-incarceration. Folks trapped in the system cannot ever really get “out,” whatever that means. Perhaps some have been have been pursuing this agenda all along, positioning in order to straightforwardly combat the reformers whenever they arise. Let the prisoners out with nowhere to go. They’ll be back. They’ll have to come back.
At a recent visit to Folsom prison, I met a prisoner who’d just been informed he was about to be released under Prop 36 without parole, with very little notice (only days), and with nowhere to go. He has family in greater Los Angeles but needs a solid transition option, so as not to overwhelm his family with his immediate presence, and to help him ease back into society. Where he currently aims to go may not have a bed. In that case, then what? He was rooted and grounded in the incarcerated church, survived the jungle, and became one of the brothers (i.e., the church — black, white, brown, red, yellow — the new humanity). They “prayed him out of there” (their terms) during his final Sunday church service. He knew solidarity with the incarcerated body of Christ — broken for the sake of the world — for decades, earning trust, cultivating wisdom, learning love. But the church on the streets doesn’t know him, doesn’t trust him, doesn’t love him. When they meet him, they’ll not know him as one of their own, but as one of them. It’s hard to embrace a former lifer who counts time in terms of neither hours nor days, but of years and decades.
But the reformers are working hard. They’re ushering in the end of mass incarceration, laboring to build a conscious approach to holding prisoners with dignity, drawing from the language of the human rights commission and the resounding (if cranky) voice of Justice Kennedy. Our leading Berkeley criminologist Jonathan Simon advocates the same language for the thrust of his proposal for moving beyond mass incarceration. In a talk he gave at the recent Association of Criminal Justice Research meeting in Sacramento, he articulated a vision for the future of research in “the era after mass incarceration,” as he called it. But from the response in the audience of law enforcement personnel, with a current push of the CDCR to hire 7,000 correctional officers in the next three years, and with the powerful beat of the status quo, reformers may be entirely underestimating the business. And they’ll be outsmarted again, like always. This old story has been well rehearsed for over two centuries in this country.
Reformist bare optimism is not going to win this game. Not unless the reality of “bare life” in the cages becomes more widely acknowledged as an incarcerated existence that is functionally more of a refugee-turned-survivalist situation than anything else. And the kind of punishment inflicted from the inside business — never mind the walls — often extends far beyond what any judiciary sentence means to inflict, prompting proposals like those of Kleiman.
Still, three cheers for our new reformers! I offer three and not two, although I give the third with some reluctance. Our reformers may indeed provoke real reform and we will watch and applaud. This reform may even be sustained. Meanwhile (and while they can), they’ll be wise to put tools in the hands of prisoners themselves, helping cultivate the kind of citizens who will be ready for re-entry, which will challenge society to view those in the prison as part of us, and without which society is (and we are) not quite whole. If mass incarceration is upended, inmates must share in this business, using their own conceptual tools to do the humanizing. They’ll know how to use them. They are, after all, human. And in time they just may end up helping us bring in a better society.
Beneficiaries of mass incarceration will of course continue pining for more status quo even while some participants and beneficiaries of the system come around to raise genuine heartfelt questions like, “What can we [i.e., officers, attorneys, judges, etc.] do to better help?” Or, “What can criminologists do to address the issues?” But even with these attempted questions, delivered indifference remains the mode of operation. Criminology departments in America exist because of mass incarceration. But so do many state employees. Status quo benefits more people than most realize.
Holding out hope with the reformers — that human beings are reformable (even transformable) — there may indeed be structures already present to support the resilience of inmates to re-enter society. They may actually reside within the prison itself, where incidentally Jesus said he’d be (Matthew 25:36). Of course, there is a church in there, which doesn’t need thoughtless patronage, pity, or sympathy. It needs recognition, further cultivation, and the kind of dignity and astonishing wonder Jesus summons from his followers who look to him for life.
While I appreciate the optimism of the reformers and the energy they bring to the table — be they Quaker, religious, secular, etc. —I have seen nothing to signal that their efforts will differ from what we have seen over the past 230 years of prison reform … and relapse. Throughout the entirety of this effort, the only constant change has been the growing size of the state and the sustaining of its overall power to further control people of every kind, religious or non-religious.
The question for this round of national reform is whether reformist efforts will be enough to withstand the powerful beat established with the status quo. Or will reformers seek to cultivate a different power from within, heretofore underrepresented, which they do not constitute and cannot control. This power inside just may even help bring the kind of reform we have yet to witness. And it just may help end mass incarceration.