Mass Incarceration and the Horror of Unlove

As I wrote in my introductory post, I’m posting on RBC because I’m hoping to derive some general insights from 10 years of working in criminal justice reform and government. I am particularly interested in thinking about mass incarceration—not only because I’ve spent most of my policy career working on this issue, but I also think it epitomizes the ways in which government, politics, and reform can go wrong. In this earlier post, I used Tocqueville’s concept of legislative instability to think about criminal justice reform’s tendency to forget and repeat its past. In this post, I want to reflect on what I think is missing from popular accounts of mass incarceration, which can hinder and even undermine criminal justice reform efforts.

I’m pretty sure that at every public event I have ever attended on criminal justice reform someone asserts that mass incarceration is reducible to racism, classism, profiteering, or some combination of the three. 

On the one hand, it would be absurd to downplay how, as the National Academy of Science puts it, the country’s “historically unprecedented and internationally unique” high rate of incarceration has focused primarily on “blacks and Hispanics, especially the poorest.”  Or how, according to the Prison Policy Initiative, an astonishing $182 billion every year flows through all levels of government in support of this system.

On the other hand, the more accounts of mass incarceration rely on an assumption that powerful groups of people created this system precisely because it enables them to oppress other people or to profit certain interests as a matter of policy, the less persuasive I find them. 

My problem is that working in criminal justice inside and outside government, I have never seen the kind of intentionality and power these accounts require. It’s not just that government generally struggles to implement policy initiatives, which makes it difficult to imagine how agencies throughout the country would be able to implement something as large as mass incarceration. It’s that I think there is also a different kind of intentionality and power at work, which popular accounts tend to obscure.

Let me try to explain what I mean through an early experience I had in Illinois government.  

At the beginning of 2015, a couple weeks after I was appointed to lead Illinois’ public safety research and grant-making agency, I went to the state capitol. The legislative session had just begun, and I wanted to meet with legislators in preparation for my agency’s upcoming appropriation hearing. As the new governor had just issued an executive order that aimed to reduce the prison population by 25% by 2025, I was also excited just to walk around the capitol. I had left my job as the head of Illinois’ only nonpartisan prison watchdog because I thought I’d be able to help drive substantial criminal justice reform. In this new position, I felt like I was about to accomplish all of the goals I had talked about as an advocate.

My legislative liaison took me around the House and Senate. Everyone seemed eager to say hello, as they were probably trying to figure out what kind of influence I was going to have in the new administration. A handful of legislators I knew joked that I came to government to empty the prisons and let all the criminals go free.  

As I was waiting outside an office for a meeting to begin, my colleague noticed a long-serving aide to one of the state’s most powerful legislators. While I had worked with many members from both parties, I had never dealt directly with this legislator or his key staff.  My colleague called the aide over and introduced us. 

“You must be the prison guy,” the aide said to me, as we shook hands.

“That’s me, I guess,” I said as I smiled, initially assuming he was joking as others had throughout the day.

The aide stared at me silently for a moment, looking mildly annoyed that he was talking to me, but also eager to convey something. 

“Let me tell you a story, prison guy,” he began. 

“I remember 15, 20 years ago, doing the budget when the Department of Corrections first went over a billion dollars. When the boss saw it, he looked up from his papers and asked, ‘How’d the DOC get to be a billion dollars?’

“I said, ‘Boss, what the fuck did you think was going to happen after all those years of increasing sentences?’”

The aide paused, as if to let me guess how the legislator replied.

“The boss went, ‘huh,’ and we then went back to the budget,” the aide concluded his story, shrugging his shoulders to imitate the legislator’s casual indifference.

The aide then looked at me with a dismissive smile and walked away. 

When I reflect on accounts that try to explain mass incarceration as an intentional strategy of oppression or profiteering, I think about this conversation. In its careless disregard not just for the size or cost of Illinois’ prison system, but for the idea of a policy-driven approach to government in general, the aide’s story exemplifies an essential aspect of the intentionality of mass incarceration. Based on my work in criminal justice reform and government, I don’t think people with political power created mass incarceration to oppress certain populations or increase prison spending, although it has had these effects. Rather I think mass incarceration has happened because people with political power have increased the use of prison at a structural level, primarily through concentrating discretion in law enforcement agencies and in prosecutors’ offices over who goes to prison and how long they are sentenced, but have never cared about the impact these laws and policies had on minorities, the poor, or budgets.  

This is important not because the intent of policymakers matters in itself, but because this essential carelessness guides how much of mass incarceration works. It generates some of its most punitive inclinations, like the tendency for elected officials to call for increases in longer mandatory prison sentences in response to crime, despite an overwhelming body of research that demonstrates mandatory minimums’ ineffectiveness. But more significantly the influence of this essential carelessness is perhaps most present in determining what’s absent: the infrastructure, coordination, oversight, and accountability—all of the capacities that intentional outcome-oriented systems need to ensure that they can achieve their goals and objectives, but which the loose constellation of agencies that constitute mass incarceration typically lack or possess in compromised forms because policymakers generally never bother to create, support, or use them.

As criminal justice reform tries to reduce our overreliance on prisons and jails, I think it’s difficult for it to comprehend this essential carelessness. Perhaps the magnitude of mass incarceration makes us want to find an intentionality behind it that in a way dignifies what it represents. It doesn’t seem right that a careless disregard for harm could be responsible for producing what the late legal scholar William Stuntz rightly calls the “harshest” justice system in “the history of democratic government.”  And so we construct a powerful and comprehensive intent from mass incarceration’s most profound effects, like the racism and classism in its severe concentration in minority and mostly poor communities or the profiteering that takes advantage of the billions of dollars that support our use of prisons. In so doing, we tend to assume that the institutions that participate in mass incarceration are more sophisticated than they are in reality. This assumption leads us to advocate for policy changes that rely on capacities that criminal justice agencies don’t necessarily have, like the infrastructure to deliver evidence-informed programming or the ability to re-invest hypothetical savings from prison reduction into rehabilitative services. Such reforms are not only unlikely to succeed. Worse, they can strengthen the grip mass incarceration has on our criminal justice system by requiring new and deeper investments in our use of prisons to support flawed implementation efforts.

More fundamentally, by not recognizing the lack of care at mass incarceration’s core, we fail to wrestle with an important aspect of how political power can shape law, policy, and governmental institutions in ways that harm people and communities. It’s not just America’s disdain for minorities and the poor, or our love of profit that we need to reckon with in mass incarceration, but also what the poet John Berryman calls “the horror of unlove.”  This is an inclination that attends the exercise of political power. What’s horrifying about it is that it leads power to carelessly disregard how its actions could harm people—not because it necessarily wants to hurt them, but because it sees them as utterly incidental to what it wants.

I don’t think the horror of unlove’s influence is well understood, though it’s endemic in law, policymaking, and government. We can see it even in current criminal justice reform efforts. For example, as I have regrettably done in my own career, advocates for criminal justice reform will often turn groups of unloved people into a means to get what they want—whether through promoting a change in the law by excluding so-called “violent offenders” from any of its potential benefits, or in garnering popular support for the idea of reform by emphasizing the need to help “non-violent” over “violent” people.  Proposals based on such distinctions like the popular non-violent/violent dichotomy are almost certain to fail, as they are rarely based on a deep analysis of the justice-involved population. But this shouldn’t surprise us. The mentality that encourages us to use unloved people is born not from a careful concern for evidence, nor a regard for potential unintended consequences, but from the seductive expediencies of political power. The lessons of mass incarceration—perhaps the greatest example of the horror of unlove in modern American history—should cause us to be wary of such strategies, if not to reject them outright.

What Can Groundhog Day and Tocqueville Teach Us About Criminal Justice Reform’s Tendency to Forget the Past?

I think one of the most important, but neglected features of criminal justice reform is that it’s often so absorbed in addressing the immediate aspects of certain issues that it forgets to reflect on how these issues are entangled in deep and complex histories. As I’ll explore in future posts, I think this tendency to forget the past causes and exacerbates all kinds of problems, including creating the conditions for history to repeat itself and making it difficult to learn from what has come before us.

Let me begin to flesh out what I mean through an early experience I had working in Illinois government. At the beginning of 2015, I resigned from my position as the head of Illinois’ only non-partisan prison watchdog, the John Howard Association, to join the newly-elected governor’s administration. While I loved my work at John Howard, I felt I couldn’t pass up this opportunity. During his campaign, the governor had talked about how Illinois’ prison system was broken, and he seemed eager to find ways to reduce the state’s prison population, which had spiked under the previous administration, growing to more than 49,000 people in a system designed for about 32,000.

In one of his first official acts, the governor created a Commission to make recommendations to reduce Illinois’ prison population by 25% by the year 2025. As the head of the state’s public safety research and grant-making agency, the Illinois Criminal Justice Information Authority, I was part of a small group of commissioners who coordinated the Commission’s work. To prepare for our first meeting, I researched how past Illinois governors talked about prisons in the era mass incarceration, so roughly from the mid-1970s to the present. I assumed that in creating a Commission that was focused explicitly on addressing the state’s prison crowding crisis, my governor would have been radically different from his predecessors, who had all helped build Illinois’ system of mass incarceration. What I found was that all but one of the past five governors had created similar commissions, and most of them focused on prison crowding. Moreover, these commissions not only made the same kinds of recommendations, but they were also composed of the same kinds of people and office holders, including my predecessors at the Illinois Criminal Justice Information Authority and the John Howard Association.

Reading old newspaper articles and state records, I felt like Illinois’ criminal justice policy making was caught in a version of the movie Groundhog Day. Just as Bill Murray’s character was trapped in same Groundhog Day festivities in Punxsutawney, Pennsylvania, so Illinois seemed trapped in a policy loop, supporting laws and policies that increased its prison population and then creating commissions to address prison crowding. However, unlike Bill Murray’s character who breaks out of his predicament by ultimately learning how to be a better person, I couldn’t find any evidence that Illinois had learned anything from more than three decades of repeating versions of the same experience.

Assuming for now that Illinois’ general experience is not unique, how should we think about what we might call criminal justice reform’s Groundhog Day problem? Not surprisingly, the great observer of American government, Alexis de Tocqueville, appears to be one of the first people to have noticed and analyzed a constitutive feature of this phenomenon. In Democracy in America, Tocqueville argues that America has a severe version of the “legislative instability” that is intrinsic to all democratic regimes. Through constantly bringing new people into government, democracies create ruling bodies that are naturally interested in doing new things that will please the majority who elected them and keep them in power. According to Tocqueville, the problem with American democracy is that it “hands over sovereign power” to this frenetic body not only to make law, but also to determine “the action of public administration.” This state of affairs, Tocqueville contends, is different from the free European countries of his time, which had developed administrative bureaucracies—what some today would disparagingly call a deep state—that were relatively independent from the majority’s influence and thus able to focus on issues regardless of their popularity. In contrast, American government’s legislative and administrative reliance on pleasing the majority puts its laws and governmental activities in a constant state of flux. Among other things, Tocqueville argues that this feature of American democracy helps explain how the country brings “more zeal and activity . . . to certain improvements” than its European counterparts, but at the same time struggles to focus its attention on such matters with any real duration or depth. Tocqueville writes of American government: “The majority being the sole power that is important to please, the works that it undertakes are eagerly agreed to; but from the moment that its attention goes elsewhere, all efforts cease[.]”

Significantly, Tocqueville concludes his analysis of legislative instability with a reflection on the early history of American prisons. He knew the subject well, as his research for Democracy in America famously came from an 1831 visit he made on behalf of the French government to study America’s penitentiaries. The still depressingly insightful passage deserves to be quoted in its entirety:

“Several years ago, some religious men undertook to improve the state of the prisons. The public was moved by their voices, and the rehabilitation of criminals became a popular work.

“New prisons were then built. For the first time, the idea of reforming the guilty penetrated the dungeon at the same time as the idea of punishment. But the happy revolution with which the public had associated itself so eagerly, and which the simultaneous efforts of citizens rendered irresistible, could not work in a moment.

“Alongside the new penitentiaries, whose development was hastened by the wish of the majority, the old prisons still remained and continued to confine a great number of the guilty. The latter seemed to become more unhealthful and more corrupting as the new ones turned more to reform and became more healthful. This double effect is easily understood: the majority, preoccupied with the idea of founding the new establishment, had forgotten the one that already existed. Everyone then having turned his eyes from the object that no longer held the regard of the master, oversight had ceased. One first saw the salutary bonds of discipline slacken, and then, soon after, break. And alongside the prison, lasting monument to the mildness and the enlightenment of our time, was a dungeon that recalled the barbarism of the Middle Ages.” (See Vol 1. Chapt 7 of Democracy in America. Translated by Harvey Mansfield and Delba Winthrop. Chicago, IL: University of Chicago Press, 2000, pgs 235-39)

In many ways, I think we’re continuing to repeat the same dynamic in criminal justice reform that Tocqueville identified almost two centuries ago. Our efforts still seem skim above the alluring and distracting surface of things, as we tend to forget to reflect on the deeper histories of the systems of punishment we have created and the people we have subjected to them. And if Tocqueville is right, if at least part of this dynamic grows out of the structure of American democracy, I don’t know how most of our current efforts to reform the criminal justice system are capable of addressing it.

At the first Commission meeting, I thought I could help us escape from Illinois’ Groundhog Day problem by framing my presentation around the commissions that came before us. I told my colleagues that even though we were repeating some of the same work of past governor-created commissions, I was confident that our Commission was going to be different because, unlike our predecessors, we were going to begin our work explicitly focused on this forgotten history, and that we’d use this awareness to single-mindedly pursue recommendations that would achieve our reduction goal.

About two years later, the Commission published its final report. Our work helped inspire some legislative and policy reforms, and since 2015, Illinois’ prison population has decreased by about 20%—though that was mainly caused by an unrelated decline in drug arrests in Chicago.

While I think the Commission’s final report remains relevant, I’m certain state policy makers have mostly forgotten about it.

At the beginning of 2019, Illinois inaugurated a new governor. Throughout his campaign, he talked about the need to reform Illinois’ broken criminal justice system. In one of his first official acts, he ordered the creation of a new office. One of its primary goals is to address prison crowding.