Part 1 of 5: How did Americans allow America to become a mass incarceration state?
In the last couple of days I’ve come across a number of new stories that started me to revisit the issue of incarceration in this country. It is common, for example, to see a headline every few days on how the United States, with only 5% of the world’s population, houses 25% of the world’s incarcerated. From time to time, we hear about prison overpopulation, the privatization of our prisons, creating prisons for profit, and the drug war with its valiant battle to end prohibition of marijuana for medical and recreational use. Occasionally, we’ll hear about the random prison break, or an inmate strike or riots and sometimes mainstream media even reports about the enforcement of a court order fixing problems within a certain confinement facility. Overall though, society ignores our prison system day in and day out; right after all the commotion has passed. You learn about the crime, follow the trial (or plea bargain), and anticipate the sentence. Once all that is done, we don’t pay attention to what’s next. Why would we? After all, the system worked; we are now safe, lock up those criminals and throw away the key.
It really should not be any surprise. We do live in a surveillance state after all. There is presently a law in the books that allows for indefinite detention of anyone, anywhere, under the jurisdiction of the United States. We have just revealed that we torture people under the guise of national security. We have become tolerant to less due process and other unconstitutional behavior by an obviously expanding police state in this country. I happened to be watching an episode of Law and Order SVU earlier this evening and was reminded of how Hollywood expands on the police state narrative daily. It reminded me of all those times I’ve heard the words “Patriot Act,” “Guantánamo Bay,” and “Gitmo” on the highly successful show, NCIS.
The question I can’t seem to answer is: “How did we let this happen?” How do we go about our lives and ignore the travesty of the prison industrial complex in this country? When did we disregard justice so easily? When did we throw freedom to the wind? I decided to find out.
There are several factors that are the foundation for the growth in prison population. I will discuss some of these factors one at a time. The first important factor up for discussion was a fundamental change in sentencing policy. It transitioned from an indeterminate, rehabilitation-based system to the punitive, determinate sentencing system we currently have in most jurisdictions.
It is widely known that President Johnson, reacting to a growing “concern” that the sentencing system in place at that time was not working, called for a reform on the Federal Criminal Code. On March 9, 1966 , he stated to Congress, in part:
I propose a three-stage national strategy. The first stage is an agenda for immediate action. These are the legislative steps we already know are needed–steps that should be taken without hesitation or delay. The second stage is development of a comprehensive agenda of direct steps based on experiment and assessment for the future. The third stage is a still broader agenda, an attack not only against crime directly, but against the roots from which it springs. These three stages involve varying resources and commitments. But we must proceed on each of them with equal force-and we must do so now.
The Brown Commission was now formed, named after California Governor Edmund G. Brown, the Commission’s Chairman. The commission consisted of three Presidential Appointees, three member of the Senate, three members of the House and three Federal Judges.
The Brown Commission’s report released five years later amplified the growing concern relative to the disparity in sentencing. Civil Rights Advocates assailed the “unequal” treatment of poor persons and minorities when sentenced to crime analogous to persons who had money, private representation, and, who were white. Lack of fairness was the rallying cry from the left. Legislation with bipartisan support was introduced in 1973. Senator McClellan’s effort would be joined two years later by Senator Kennedy. It was at this time, we first heard the call for a sentencing commission. The idea was to create a “fair” system of sentencing. Removing any discretion from the sentencing judge, it was widely believed, would reign in the unequal treatment of minorities and the poor. What is of note here is that Kennedy’s work was based largely on the writings of Federal Judge Marvin Frankel who authored Criminal Sentences: Law without Order. In it, Franker criticized the sentencing discretion of judges as well as the federal parole system. Even though sentencing reform would still be a decade away, the call for “fairness” and determinate sentencing grew.
The following decade saw various attempts at reform. Subcommittees in both houses of Congress picked and poked at sentencing reform and then the call for punishment was added to the “fairness” discussion. While Senators Kennedy and McClellan worked on reform, the Parole Board started working on its own internal review of policy. In 1976, Congress codified the Parole Commission guidelines for parole decisions. The beginning of the end of “discretion.”
The United States prison population was starting to grow. Now, I suppose some people would say we had become better at policing crime. Certainly we had already started to create many laws that both, punished more criminal actions with incarceration, as well as making those sentences longer. In 1976, the US Supreme Court told us that executing prisoners was now legal. Then in 1980, the Mental Health Systems act was signed into law, essentially, providing funding for community mental health programs in the face of the deinstitutionalization of mental health hospitals.
Also, significant in 1980, our first 24-hour, seven-day-a-week television news show aired in the United States on CNN.
With this as a backdrop , and the hostage crisis in Iran happening, along came Ronald Reagan.
One of the legacies of the Reagan presidency was the expansion of our prison population and a change from reformation to punishment as a criminal justice policy. One of the first things President Reagan requested from Congress was the repeal of that same mental health systems act. Reagan also decreased funding for mental health by 25%; this was just the beginning. With the call for a “fair” system of justice, Reagan added the “punishment aspect” to the call for reform and this message created the necessary bipartisan push to “reform” the Federal Sentencing Guidelines.
Meanwhile, connected to this punishment call by Reagan and his administration, was the call for privatization including prisons. Behavioral Systems won a contract to house INS detainees in 1983. The Corrections Corporation of America (CCA) commenced operation of its first contract facility in 1984, opening a 350-bed INS detention center in Houston, Texas. The first contract to operate a state prison for adult prisoners was won in 1985 by U.S. Corrections Corporation. The firm opened a minimum-security 200-bed facility in St. Mary, Kentucky. By 1988, some 28 states were said to allow private operation of non-secure or minimum security correctional facilities — from halfway houses and juvenile group homes to detention centers for undocumented immigrants and prisons.
Business was good. More people were being sent to prison and corporations were making money by housing those prisoners. The natural result was lobbying dollars started walking the hallways of Congress resulting in legislation and regulation that ensured prisoner growth and the wealth of private prison. Naturally, Wall Street took notice as the private prison industry was loved by growth investors of the next ten years peaking in 1997. when CCA alone was worth $3.5 billion at its apex trading of $45.00 per share.
The federal prison population, mainly due to the war on drugs and the abolition of parole, was growing at a rate that saw a boom in federal prisons being built, as well as Congress directing the Bureau of Prisons to find private beds to house some prisoners. Meanwhile the private prison industry was falling apart. Mired in human rights violations, lawsuits, prisoner escapes, riots and violence, the “bottom line” disappeared and turned in to taxpayer funded bailouts and fixes increasing the overall cost of incarceration and straining many state budgets.
None of this stopped the mass incarceration of prisoners though. Georgia prisons constructed bunk beds three beds high. Prisoners in the Los Angeles County Jail system stayed in transit up to three days at a time, due to no bed space. Inmates slept on the roof of the LA County Jail due to the extreme overcrowding; all the floor space inside the building was already taken up. With two million people in jail, countless more on probation, and parole where those systems still existed, someone must be making some money, right?
The how and why our prison industry has grown to be the largest in the world is of paramount importance in our society today. We must repair what we have allowed to be broken for all these years and we must do so now. Stay tuned to Anti-Media for Part 2 of this in-depth analysis of the incarceration system in the United States.
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Bobby Rodrigo is host of the radio show “I Take LIBERTY With My Coffee“. Adviser for the Solutions Institute and sits on the Board of Directors for Coffee Party USA. Business owner, parent, veteran, Oath Keeper and activist.
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