The criminal justice reform bill, hopefully dubbed the First Step Act, represents a real accomplishment — a positive development in otherwise conservative times. It is all the more remarkable that a reactionary president, who ran a tough-on-crime campaign, is now poised to sign the bill.
But let’s not overstate matters. The bill essentially tweaks an otherwise punitive federal criminal justice system. It represents halting progress at best in efforts to scale back hyper-punishment.
The bill contains many commendable provisions. It ends the use of restraints on pregnant women prisoners. It includes provisions for hygiene and job training in prisons. It makes retroactive the 2010 sentencing reforms, which had reduced penalties for crack cocaine power to make them more consistent penalties for cocaine possession or distribution.
It culls back some mandatory minimums, notably reducing “three strikes you’re out” from a lifetime penalty to twenty-five years (a penalty that still remains in excess of the effective maximum penalties for the worst crimes in most developed democracies). It enhances awards for inmates’ good behavior. In all, a few thousand people will get out of federal prisons when the bill is signed into law by Trump, and over time a few thousand more will get out of prison earlier than they might have otherwise.
By contrast, consider the wider picture. The US prison population topped out in 2008 with about 2.3 million prisoners. It has been declining since but is only down to about 2.1 million today. After roughly fifteen years of piecemeal reforms, we still have the largest prison population in the world and the highest per capita prison population as well. (Before the punitive turn of the 1970s, this was not the case, and US prison rates were in alignment with other democracies.)
The aggregate numbers are not dramatically trending in our favor and the First Step Act will do nothing to move the dial substantially.
Among the most striking features of the punitive state is its ability to persist, despite alterations to laws or modest countervailing demographic trends.
For example, the number of African Americans sentenced to prison or jail declined between 2000 and 2008. But the number of whites and Hispanics sent to prison increased rapidly enough to keep the system growing.
Notably, drug convictions drove arrest and incarceration numbers upwards in the 1970s–1990s, so much so that many equated the war on drugs with mass incarceration. The percentage of people sent to prison on drug convictions has been coming down, thanks to changing attitudes and legal reforms. But declining drug convictions have at best only chipped away at the aggregate numbers. Today, only about 15 percent of the national prison population were incarcerated on drug convictions. That is to say that declines in drug-related prison sentences have been matched or outpaced by increases in convictions for other crimes.
And while penalties for some crimes have become less severe, penalties for other crimes have been becoming more severe: penalties for violent crimes, second offenses, and crimes committed with a handgun. The treatment of undocumented immigrants has become especially harsh. And waves of new laws prescribe harsher sanctions for sex offenders, including offenders whose crimes were nonviolent, noncoercive, and did not even necessarily involve sex.
Mass incarceration is no doubt the most glaring feature of the punitive turn. But the punitive state is not only about prison. Sex offenders represent a rapidly growing subset of the prison population, not doubt; their numbers help keep the system bloated. But sex crimes also have provided a laboratory for the development of prison conditions beyond prison walls: a high-tech system of continuous surveillance and control.
The current news, then, has to be read against the latest number of listings on public sex-offender registries, which have ballooned to more than 912,000 — a 4.8 percent increase in listings in the last year. If sex offenders were a city, they’d rank twelfth in size, just below Austin, Texas.
People on the registries are rendered all but unemployable and unhousable: a pariah caste reduced to a state of permanent social exclusion. These are mostly nonviolent one-time offenders, and their numbers are four times larger than the entire federal prison system today.
But registries are only the beginning of extra-prison punishments, added onto penal sentences. Exclusionary zones draw wide circles around schools, parks, bus stops, or other places where children might gather. These restrict where registrants can walk, work, shop, or loiter, effectively banishing them from most urban areas and scattering them to discontinuous patches on the margins of social life.
Civil commitment laws allow for the indefinite detention of some sex offenders after the completion of their criminal sentences. The Supreme Court has repeatedly swatted aside civil libertarian objections to this practice: civil confinement is not deemed punitive if psychological treatment is provided.
Such rationale for these practices would seem to display an inherent illogic: the accused is deemed mentally fit for trial and sentencing but mentally unfit for release. In practice, detainees are almost never released.
Ongoing court cases also show just how slippery the term “sexually violent predator” has become. At the time of this writing, a gay Virginia man, Galen Baughman, is being held pending civil commitment based on a technical, not criminal, violation of probation terms: his criminal convictions were for consensual sexual acts committed while he was himself a teenager; he has never been charged with a crime involving violence.
Our civil containment practices for sex offenders are so extreme that high courts in the UK and Canada have deemed that they violate international human rights protocols and have blocked defendants’ extradition back to the United States. Some 6,400 people are currently being held in civil commitment gulags.
In short, hyper-punishment continues, even accelerates, following new arteries and pathways in the body politic. The punitive state is a behemoth, a monstrous machinery that struggles to maintain its equilibrium. Piecemeal reforms of this or that part of the system will fail to dramatically shift the logic of the system.
We have not addressed the moral panics that sedimented over the past forty-five years into draconian laws. We have not curbed the zeal to punish. We have not restored what ought to be at the center of law: the idea that punishment has limits, and that the institutions have a responsibility to restore offenders to society in a better condition than when they were judged guilty of crimes.
What is still urgently needed is a comprehensive approach to legal reforms, including laws that pertain to the most hated classes of offenders.