The confirmation of Brett Kavanaugh to the Supreme Court dashed the hopes of those wanting judicial protections to access abortion, the right to vote, privacy, and many other fundamental concerns. Kavanaugh’s record of lying under oath, supporting broad executive and police power on issues like torture, surveillance, police searches, and the death penalty, blatant conservative partisanship, as well as his likely participation in several sexual assaults, seemed on display in his initial approach on the Court to restrict voting rights and uphold immigrant detention.
Yet the week Kavanaugh started his new job, the Washington state Supreme Court abolished the death penalty, citing its pervasive racism. The day after the US Senate narrowly voted to confirm Kavanaugh to the court amidst dramatic protest, California governor Jerry Brown signed into law a bill that limits the state’s felony murder law. “Felony murder” is a punitive policy that allows prosecutors to charge people with murder if they were associated with a person who killed someone. The policy has sent thousands of people to prison for lengthy or life sentences. Importantly, California’s new law applies retroactively and will likely see several hundred people released from prison. Brown also approved several other prison reform bills this year, including ones that limit the practice of trying juveniles as adults.
Meanwhile, a ballot initiative in Florida—the state with arguably the most severe felon disenfranchisement policies in the nation—would restore voting rights to thousands of people who have been disenfranchised as a result of felony convictions. Also this year, New York state granted parole to two former members of the Black Panther Party. Both Herman Bell and Robert Seth Hayes had been incarcerated for more than 40 years. Law enforcement groups had long opposed their release, despite pristine records inside. Their parole was a result of the hard-fought victory by prison reform activists in New York who had long organized against the punitive conservatism of the state’s parole board. Their organizing successfully pressured the governor to appoint new parole commissioners and uphold the job of the parole board as evaluating someone’s readiness for release rather than emphasize the offense for which they were convicted (something parole boards are not supposed to consider but which had routinely kept Bell, Hayes, and many others from fair consideration).
In Pennsylvania, MOVE members Debbie Sims Africa and Mike Africa were granted parole after 40 years, and lawyers have appealed the parole denials of two other MOVE members. Their release comes on the heels of other ex-carcerations made possible by the strong legal and political efforts in support of incarcerated people there. In recent years, the state has welcomed home dozens of people who had been unconstitutionally sentenced to life in prison as juveniles—many of whom were activists inside and remain so on the streets. All of this has been made possible by strong community organizing, in prison and out.
None of these reforms goes far enough with the kind of changes needed to end this country’s reliance on excessive punishment, in all its racist and oppressive facets. Yet each of them makes a tangible difference in shrinking the prison system. They show that it is possible to fight the carceral state and win, even in the dark days of Trumpism. Significantly, each one points to what may be the most important consideration when it comes to understanding the carceral state: scale.
Pick your favorite phrasing—carceral state, mass incarceration, prison industrial complex. However you describe the country’s brutal history of extreme state punishment that has metastasized over the last half century, definitional clarity helps name not only the problem but the possible solution. As a critique of punishment has grown popular, clarity has become more elusive in some quarters. Even among scholars, researchers often invoke the “carceral state” without defining what they mean. The only constant in these analyses is that the United States has a lot of people in prison, that a disproportionate number of them are people of color, that police exert too much power with too much weaponry, and that the country’s prison system is held together by an overriding investment in harsh and degrading punishment.
And yet, the carceral state is not one thing; it is many things. It is, as the Prison Policy Initiative notes, the dense network of “1,719 state prisons, 102 federal prisons, 1,852 juvenile correctional facilities, 3,163 local jails, and 80 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.” These institutions are governed by separate jurisdictions. Jails are typically the province of a city or county, while most prisons are controlled by the states, not the federal government, which means that most prisoners are incarcerated at the state, not federal level.1
How can it be that individual states hold such power when the whole country can be characterized as a carceral state? Whether the goal is to reform, abolish, or simply understand the carceral state, the question of scale is a fundamental starting point. And the federal government is an awkward entity to conceptualize here. In The New Jim Crow, legal scholar Michelle Alexander highlights Richard Nixon’s comment to his chief of staff that “the whole problem is really the blacks. The key is to devise a system that recognizes this while not appearing to.” Although Nixon originally uttered this statement in the context of welfare reform, Alexander seizes on it as evidence that the war on drugs—and therefore mass incarceration—was a deliberate plot to continue Jim Crow by other means.
Historians have been more careful. Among the most influential books on the development of the carceral state at the federal level are Naomi Murakawa’s The First Civil Right, and Elizabeth Hinton’s From the War on Poverty to the War on Crime. Central to both books is the trenchant observation of how federal officials, Democrat and Republican, developed the carceral state over several decades of tough-on-crime policies aimed principally at controlling working class Black communities fighting racism or left behind under neoliberalism.
Still, even at its most punitive, the federal government incarcerates one tenth of the country’s prison population. Other than the Supreme Court, the primary power wielded by the federal government in the realm of criminal justice policy is financial. Simply put, the federal government can print money. And it can authorize block grants to encourage cities and states to hire more police officers or build more prisons, as happened under the Law Enforcement Assistance Administration and related efforts. The federal government set the tone for heightened punishment by incentivizing its local production—not through private enterprise but government largesse.
Such an approach required individual states to willingly play along. They did so from the 1970s to the early 2000s, often as geographer Ruth Wilson Gilmore shows, due to their own political economic circumstances. But in the last decade or so, the rate of imprisonment has become a national embarrassment: both the scale of racist disparities and the scale of financial cost associated with caging so many people. The unprecedented unpopularity of the current administration only heightens this disjuncture. Paradoxically, then, the very moment when the federal government has put children in concentration camps and aims to curtail even legal migration might also be a moment when anti-prison campaigners can win tangible victories. Indeed, that is happening. In several major cities new District Attorneys have taken concrete steps to curtail mass incarceration. The immigrant rights movement has long pursued a strategy of severing local municipal ties with federal immigration policing—a move that has seen the call to #AbolishICE grow in popularity.
The build up of mass incarceration was facilitated by a hegemonic agreement among all levels of government in support of a punitive turn. But that consensus has fractured. As in many moments of transition, that fracturing contains terrifying possibilities alongside transformative ones. The federal scale remains bleak, with a record level of reactionary judges appointed amidst a wholesale assault on voting rights. Yet several years of hunger and labor strikes by incarcerated people have identified the beginning of a flexible national agenda for supporting the struggles of incarcerated people, alongside a set of campaigns to stop prison and jail construction or otherwise shrink this country’s capacity for caging, policing, and surveillance. The long arc of the Black freedom movement remains instructive: the struggle continues.
- Although it is beyond the scope of this essay, Jenna Loyd and Alison Mountz, A. Naomi Paik, Laleh Khalili, Stuart Schrader, and others have all shown that the US carceral state stretches well beyond the territorial United States. ↩