Why the US Has Such a Brutal Penal Regime

In a way, this is the guts of the book.

First, the story I’m telling is about political economy, not just the welfare state. A major part of the story is about how the labor market in this country provides fewer protections and less provision for working people than pretty much any of the other developed countries do, in terms of workers’ rights, trade union rights to organize, the provision of decent wages, and the security of tenure for people who are in employment. We have a much more precarious, more flexible labor market, with the consequence that working people in this country are much more insecure than is the case elsewhere. And their income is much less stable over time.

It’s not just poor people in this country that are impacted by our extraordinary political economy. Working people of all kinds, even middle-class, college-educated people now, are facing real economic insecurity. And that makes a difference for how they think about crime in their neighborhood; how they think about their property values, if they’re lucky enough to be a homeowner; and the impact that crime might have on that.

The story I’m telling is not just about the welfare state but about the labor market and the welfare state together. Political economy impacts levels of family formation and the capacity of communities to control young people, socialize them, and integrate them.

Second, I argue, and I think I show, that the reason why the US has such high levels of violence and such an aggressive use of penal power — such a massive penal Leviathan — is that the political economy and the social structures of this country are just different from those of other Western capitalist nations.

You might think it follows that unless you change these political-economic structures, unless you restructure the labor market and rebuild the welfare state, nothing can happen at the level of crime and policing. That’s not what I’m saying. The reason it’s not is that the macro forces of political economy impact criminal behavior and policing and punishment only indirectly, through community-level processes.

In other words, political economy affects the prospects of people being employed or having political resources provided to their neighborhoods and communities, but these neighborhoods and communities have their own dynamics that are relatively autonomous and relatively independent. They are affected by these outside, large-scale political and economic forces, but they have their own character and dynamics and resilience.

There are some neighborhoods that can withstand periods of unemployment and periods of government when there’s less investment, less social services. They still have a capacity to be collectively efficacious, they’re still organized, people know how take care of each other, people are on the streets supervising the behavior of youth, and so on.

Some neighborhoods have social capital of their own, which is relatively resilient, even in the face of changes in the political economy. Other neighborhoods, particularly ones where everybody’s poor, where they’re segregated and separated from employment prospects, where there’s a lot of transient housing, and where there’s a lot of crime — these neighborhoods are much less able to manage macroeconomic impacts and challenges.

Political and community responses to the problems of crime, violence, or drugs vary across space too. In some places, there are powerful community actors, there are nongovernmental organizations, there are churches, there are collective organizations of residents that take self-governing steps to deal with the problems in the neighborhood and are pretty effective at doing so. [Sociologist and criminologist] Patrick Sharkey has shown that neighborhoods that saw community action and nongovernmental interventions in questions of violence had the biggest drops in homicide and armed robbery of all the neighborhoods [he studied].

In other words, community action at the level of the neighborhood makes a difference for outcomes, just like the capacity of families or particular residential blocks or neighborhoods to resist the challenges that come from the macroeconomy. They vary across time. They vary in terms of social indicators: in terms of transience, in terms of housing, in terms of repair, in terms of what the background levels of crime are. All of these things make a difference for the outcome.

These community-level variables, if you look at them across the nation, show that even when there’s no big structural change in America’s neoliberal, racialized political economy, certain things can be done that reduce, for example, the level of police harassment of youth, or the frequency with which police shoot or kill civilians — or levels of homicide or levels of incarceration.

How do I know that? Because if you look at New York City and New York State, we succeeded in massively reducing the number of stop and searches because of a court order — drastically reducing the number of occasions when police officers shot at and killed civilians. In the 1970s, there were about eighty or ninety civilians killed every year by the police in New York City. Now it’s about eight or nine civilians killed each year, and that has to do with training, accountability, selection, and practices in the police force. In other words, you can do local things that make a difference to police violence.

Similarly in New York City, we’ve seen quite massive reductions in the number of people sent to jail. At its highest point, fifteen years ago, there were about 21,000 people on Rikers Island. Now there are about six thousand. During that time, crime rates have continued to go down.

Even the best cities and states in the US never look anything like Canada or Britain, let alone the Nordic countries or Northern European countries. But within the American range of variation, there’s a lot of movement, and there’s a lot of possibility. If every state got to the level of incarceration and level of homicide that, say, New York City has gotten to, that would be a big change.

Similarly, some states have begun to re-enfranchise people who’ve had felony convictions. Some states have begun to use solitary confinement less frequently than they previously did. Police forces in some places are becoming more accountable to local community action. There are a whole bunch of things that can be done that fall way short of structural change at the level of the economy but still positively impact the lives of hundreds and thousands, and sometimes even millions, of people.

My claim is that without structural change at the level of political economy, America’s penal state will never look like that of Canada or Britain, let alone that of the Nordic countries. But within the American bandwidth, there’s a lot of variation and possibility for progressive, important change.

All of what I’ve just said violates some of the premises of the people who believe in institutional abolition. Though in practice abolitionists typically support certain reforms, their official position is that, ultimately, police and prison must be abolished. What we have to do is abolish the whole system.

That kind of counsel of despair is understandable when one looks at the data. Your head explodes at how terrible the penal state looks. The notion that this is so terrible, we have to begin again somehow — I understand that. That’s a totally understandable reaction to the ongoing slow tragedy of America’s repressive penal state.

However, it seems to me utterly unrealistic to suppose that we’re going to, in any medium or long term, abolish policing or abolish incarceration. Why do I think it’s unrealistic? Basically, no modern developed country has existed without policing, without the prison, since the early nineteenth century.

First, if we’re going to have criminal law, and people break the law — and that’s what happens when groups live together — then there’s going to be enforcement, and that enforcement has to ultimately have coercive capacity. That’s what police are. You can call them a different name. We could hugely improve policing in this country in all the ways I’ve described, but you’re still going to need police.

If you remove police, the first people to suffer would be poor people. Basically, rich people would have their own private police; they already do. If we abolish the public police, it would impact rich people, but it wouldn’t be devastating for them. It would be an existential disaster for poor people. Because crime would continue to exist — we simply wouldn’t have tax-funded protection that police provide, however poorly they provide it today.

Similarly, prisons exist even in peaceable, highly developed, highly egalitarian societies like Norway and Sweden. They have about a tenth of the incarceration rate we do, but they still have incarceration. Because ultimately, in any criminal system, you need measures that deal with noncompliant offenders.

Often you hear people say, “We need the prison because Hannibal Lecter is out there and dangerous.” That’s not the reason to have the prison. The reason to have the prison is basically that most penal sanctions — fines, community sanctions, probation, supervision — rely on the cooperation and compliance of the offender. The offender’s going to show up and take part in the program, or come to the court and pay their fine, or attend the supervision.

If they decide not to comply, what do you do? Either you say, “You don’t want to comply? That’s fine; it was just a suggestion.” Or, realistically, you say, “This is the law. You have to comply, and we will enforce compliance.” How will we do that? We no longer use corporal punishment; we no longer use the death penalty; we no longer use banishment routinely. What we’ve all, as modern societies, come to use is confinement and incarceration.

We can do that in a variety of better and worse ways; we can do it to a greater or lesser extent. Obviously the United States is doing it in ways that are utterly unacceptable. But the idea of doing without prison is something else entirely. The prison is a feature of modern society that has a whole bunch of explanations and reasons for its existence. The problem with the United States is not that it has prisons; it’s that it has terrible prisons that are way overused and impose lengthy sentences for way too many people in conditions of confinement that are altogether intolerable.