Commentary: The New Politics of Fear Hinders the Opportunity For Reform

In a lot of ways, money spent on prisons – especially in their current form with the length of sentences and recidivism rate – is a sunken cost.  Every dollar we spend on education is an investment.

However, every meaningful reform to the criminal justice system is met with the same sort of fear-mongering.  The old politics of fear were the code words used in the south to scare the poor whites into voting against their economic interests.  These days some charge that the penal system is simply an extension of old Jim Crow Politics.

This week Michelle Alexander, author of the book, The New Jim Crow, who argues that the mass incarceration of African-Americans is simply a new version of Jim Crow designed to disenfranchise minorities, particularly black men, in this country.

She wrote, “Jarvious Cotton’s great-great-grandfather could not vote as a slave.  His great-grandfather was beaten to death by the Klu Klux Klan for attempting to vote.  His grandfather was prevented from voting by Klan intimidation; his father was barred by poll taxes and literacy tests.  Today, Cotton cannot vote because he, like many black men in the United States, has been labeled a felon and is currently on parole.”

What was he convicted of?  Possession of crack cocaine.

This week, we heard echoes of the fear tactics when the US Supreme Court ordered the California prison system to alleviate its overcrowding policy by releasing non-violent offenders or transferring them to county jails.

In dissent, Justice Scalia called the order, “perhaps the most radical injunction issued by a court in our nation’s history.”

While his dissent was largely based on the legal argument about the lines of state rights and federal encroachment, so too was the Civil War.  And yet at its core, it was about fear.

Justice Scalia taps into the suburban middle class “anti-crime” hysteria that has been perhaps waning in recent years, upon the realization of the costs of such mass-incarceration.

In his dissent, Justice Scalia describes prisons as “fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”

Justice Scalia further argued that terrible things were “sure to happen as a consequence of this outrageous order” and that prisoners who were released and committed crimes would be the responsibility of the majority of justices.

Justice Scalia is hardly alone here.  Justice Samuel Alito noted in his dissenting opinion, “I fear that today’s decision, like prior prisoner release orders, will lead to a grim roster of victims.”

However, others point out that this fear mongering misses the mark.  Jeanne Woodford, a former San Quentin Warden and current director of an anti-death penalty group along with Barry Krisberg a research and policy director of the Warren Institute on Law and Social Policy at the UC Berkeley School of Law, wrote in an op-ed this morning in the LA Times, “Californians shouldn’t panic. The state won’t have to throw open the prison doors to meet the court’s order if it embraces very modest sentencing reforms.”

That is the point that many are missing, that we are not releasing dangerous criminals who will present a threat to the public, we are releasing people from prison that probably do not belong there to begin with.

The authors write, “California could safely reduce its prison population by modestly reducing time served for low-risk offenders (something Gov. Pete Wilson tried successfully), by transferring low-risk inmates to county supervision (as happened under Govs. Edmund G. “Pat” Brown and Ronald Reagan) and by slightly reforming the parole system (something that was partially enacted by Gov. Arnold Schwarzenegger and continued by Gov. Jerry Brown).”

We need to examine other ways to handle people with substance abuse problems.  And simply because we reduce our population does not put the general population at risk.

Indeed, as the authors note, “California has had its own success story in reducing incarceration numbers without ill effect.”

They continue: “Faced with serious overcrowding in state prisons for youth, California reduced its youth prison  population from more than 10,000 in 1996 to about 1,000 today. This was the largest decline in juvenile incarceration in American history. Yet during this period, serious youth crime  dropped throughout the state, and felony arrests for juveniles and young adults also decreased dramatically. The reduction in youths incarcerated by the state did not produce crowding in county youth facilities, nor did it result in more young people being sent to adult prisons.”

“There are some very dangerous people in California prisons,” Ms. Woodford and Professor Krisberg acknowledge, “but these are not the inmates who will be released early.”

Mostly, the people released are “thousands of low-risk offenders who are incarcerated for minor drug crimes, petty violations of parole rules and other nonviolent and nonsexual crimes.”

They add, “There are almost 50,000 inmates who now serve fewer than 90 days before they are released. California prisons also house more than 10,000 women, most of whom are no real threat to public safety and are often victims of violent crimes themselves.”

California has criminal problems.  We have a system that fails to stop people from recidivating.  But we also have a system that locks people in prison, who are not real public safety threats, for long periods of time with little discretion allowed to judges or juries.

As the authors here point out, “Jammed prisons offer no chance for education, mental health or rehabilitation programs. And they can be breeding grounds for more violent crime and victimization.”

They conclude, “To make our community safer, we must invest in reentry programs to ease the transition from prison back to our neighborhoods. The court’s ruling, far from being a threat to public safety, is an opportunity to reform the broken California penal system, which could mean better outcomes for all of us.”

—David M. Greenwald reporting