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.