Mass Incarceration and the Horror of Unlove

As I wrote in my introductory post, I’m posting on RBC because I’m hoping to derive some general insights from 10 years of working in criminal justice reform and government. I am particularly interested in thinking about mass incarceration—not only because I’ve spent most of my policy career working on this issue, but I also think it epitomizes the ways in which government, politics, and reform can go wrong. In this earlier post, I used Tocqueville’s concept of legislative instability to think about criminal justice reform’s tendency to forget and repeat its past. In this post, I want to reflect on what I think is missing from popular accounts of mass incarceration, which can hinder and even undermine criminal justice reform efforts.

I’m pretty sure that at every public event I have ever attended on criminal justice reform someone asserts that mass incarceration is reducible to racism, classism, profiteering, or some combination of the three. 

On the one hand, it would be absurd to downplay how, as the National Academy of Science puts it, the country’s “historically unprecedented and internationally unique” high rate of incarceration has focused primarily on “blacks and Hispanics, especially the poorest.”  Or how, according to the Prison Policy Initiative, an astonishing $182 billion every year flows through all levels of government in support of this system.

On the other hand, the more accounts of mass incarceration rely on an assumption that powerful groups of people created this system precisely because it enables them to oppress other people or to profit certain interests as a matter of policy, the less persuasive I find them. 

My problem is that working in criminal justice inside and outside government, I have never seen the kind of intentionality and power these accounts require. It’s not just that government generally struggles to implement policy initiatives, which makes it difficult to imagine how agencies throughout the country would be able to implement something as large as mass incarceration. It’s that I think there is also a different kind of intentionality and power at work, which popular accounts tend to obscure.

Let me try to explain what I mean through an early experience I had in Illinois government.  

At the beginning of 2015, a couple weeks after I was appointed to lead Illinois’ public safety research and grant-making agency, I went to the state capitol. The legislative session had just begun, and I wanted to meet with legislators in preparation for my agency’s upcoming appropriation hearing. As the new governor had just issued an executive order that aimed to reduce the prison population by 25% by 2025, I was also excited just to walk around the capitol. I had left my job as the head of Illinois’ only nonpartisan prison watchdog because I thought I’d be able to help drive substantial criminal justice reform. In this new position, I felt like I was about to accomplish all of the goals I had talked about as an advocate.

My legislative liaison took me around the House and Senate. Everyone seemed eager to say hello, as they were probably trying to figure out what kind of influence I was going to have in the new administration. A handful of legislators I knew joked that I came to government to empty the prisons and let all the criminals go free.  

As I was waiting outside an office for a meeting to begin, my colleague noticed a long-serving aide to one of the state’s most powerful legislators. While I had worked with many members from both parties, I had never dealt directly with this legislator or his key staff.  My colleague called the aide over and introduced us. 

“You must be the prison guy,” the aide said to me, as we shook hands.

“That’s me, I guess,” I said as I smiled, initially assuming he was joking as others had throughout the day.

The aide stared at me silently for a moment, looking mildly annoyed that he was talking to me, but also eager to convey something. 

“Let me tell you a story, prison guy,” he began. 

“I remember 15, 20 years ago, doing the budget when the Department of Corrections first went over a billion dollars. When the boss saw it, he looked up from his papers and asked, ‘How’d the DOC get to be a billion dollars?’

“I said, ‘Boss, what the fuck did you think was going to happen after all those years of increasing sentences?’”

The aide paused, as if to let me guess how the legislator replied.

“The boss went, ‘huh,’ and we then went back to the budget,” the aide concluded his story, shrugging his shoulders to imitate the legislator’s casual indifference.

The aide then looked at me with a dismissive smile and walked away. 

When I reflect on accounts that try to explain mass incarceration as an intentional strategy of oppression or profiteering, I think about this conversation. In its careless disregard not just for the size or cost of Illinois’ prison system, but for the idea of a policy-driven approach to government in general, the aide’s story exemplifies an essential aspect of the intentionality of mass incarceration. Based on my work in criminal justice reform and government, I don’t think people with political power created mass incarceration to oppress certain populations or increase prison spending, although it has had these effects. Rather I think mass incarceration has happened because people with political power have increased the use of prison at a structural level, primarily through concentrating discretion in law enforcement agencies and in prosecutors’ offices over who goes to prison and how long they are sentenced, but have never cared about the impact these laws and policies had on minorities, the poor, or budgets.  

This is important not because the intent of policymakers matters in itself, but because this essential carelessness guides how much of mass incarceration works. It generates some of its most punitive inclinations, like the tendency for elected officials to call for increases in longer mandatory prison sentences in response to crime, despite an overwhelming body of research that demonstrates mandatory minimums’ ineffectiveness. But more significantly the influence of this essential carelessness is perhaps most present in determining what’s absent: the infrastructure, coordination, oversight, and accountability—all of the capacities that intentional outcome-oriented systems need to ensure that they can achieve their goals and objectives, but which the loose constellation of agencies that constitute mass incarceration typically lack or possess in compromised forms because policymakers generally never bother to create, support, or use them.

As criminal justice reform tries to reduce our overreliance on prisons and jails, I think it’s difficult for it to comprehend this essential carelessness. Perhaps the magnitude of mass incarceration makes us want to find an intentionality behind it that in a way dignifies what it represents. It doesn’t seem right that a careless disregard for harm could be responsible for producing what the late legal scholar William Stuntz rightly calls the “harshest” justice system in “the history of democratic government.”  And so we construct a powerful and comprehensive intent from mass incarceration’s most profound effects, like the racism and classism in its severe concentration in minority and mostly poor communities or the profiteering that takes advantage of the billions of dollars that support our use of prisons. In so doing, we tend to assume that the institutions that participate in mass incarceration are more sophisticated than they are in reality. This assumption leads us to advocate for policy changes that rely on capacities that criminal justice agencies don’t necessarily have, like the infrastructure to deliver evidence-informed programming or the ability to re-invest hypothetical savings from prison reduction into rehabilitative services. Such reforms are not only unlikely to succeed. Worse, they can strengthen the grip mass incarceration has on our criminal justice system by requiring new and deeper investments in our use of prisons to support flawed implementation efforts.

More fundamentally, by not recognizing the lack of care at mass incarceration’s core, we fail to wrestle with an important aspect of how political power can shape law, policy, and governmental institutions in ways that harm people and communities. It’s not just America’s disdain for minorities and the poor, or our love of profit that we need to reckon with in mass incarceration, but also what the poet John Berryman calls “the horror of unlove.”  This is an inclination that attends the exercise of political power. What’s horrifying about it is that it leads power to carelessly disregard how its actions could harm people—not because it necessarily wants to hurt them, but because it sees them as utterly incidental to what it wants.

I don’t think the horror of unlove’s influence is well understood, though it’s endemic in law, policymaking, and government. We can see it even in current criminal justice reform efforts. For example, as I have regrettably done in my own career, advocates for criminal justice reform will often turn groups of unloved people into a means to get what they want—whether through promoting a change in the law by excluding so-called “violent offenders” from any of its potential benefits, or in garnering popular support for the idea of reform by emphasizing the need to help “non-violent” over “violent” people.  Proposals based on such distinctions like the popular non-violent/violent dichotomy are almost certain to fail, as they are rarely based on a deep analysis of the justice-involved population. But this shouldn’t surprise us. The mentality that encourages us to use unloved people is born not from a careful concern for evidence, nor a regard for potential unintended consequences, but from the seductive expediencies of political power. The lessons of mass incarceration—perhaps the greatest example of the horror of unlove in modern American history—should cause us to be wary of such strategies, if not to reject them outright.

Why graduated re-entry isn’t just another halfway house

Graduated re-entry is just like a halfway house without the house, just as it’s a prison minus the prison.

Chris Ingraham at the Washington Post’s Wonkblog has an interesting take on the graduated re-entry idea.

Ingraham’s piece addresses an obvious question: isn’t graduated re-entry just a halfway house under another name?

The answer to that, as usual, is “Yes and no,” but in this case mostly “No.”

A halfway house is a correctional facility for people being released from prison or jail, or sometimes for people who have been convicted of something that the judge doesn’t want to jail them for but also doesn’t want them to walk away from entirely, even on probation. It’s a physical facility with an actual location: that is, it needs to be built, which means it needs to be sited, which means it has to deal with complaints from the neighbors to their elected officials. Who wants to live across the street from a mini-prison?

A physical building means full-time staffing. That costs money. And neither the building nor the staff disappears if the population shrinks, so creating a halfway house is a long-term fiscal commitment. In most jurisdictions, the houses aren’t public agencies; they’re run by non-profits, raising a host of issues about contracting, governance, and accountability, especially when the contractor is free to lobby and to make campaign contributions. (What the enthusiasts for “contracting-out” often miss is that managing a contractual relationship well is more demanding, in terms of public administration, than managing an agency directly. A jurisdiction that could run its own program tolerably well might be able to find contractor who could do it better; a jurisdiction too incompetent to run its own programs will generally find that the contractors do even worse, even if they’re not simply stealing the money. And no, having them be non-profits rather than for-profits doesn’t do much to solve that problem.)

A halfway house is also a correctional institution; it’s closed, even though it doesn’t have bars, and what me might call the “halfway-in-mates” are under institutional discipline, with staff telling them what to do. Moreover, they’re living with other offenders - not obviously the best way to encourage them to form useful pro-social relationship networks - in congregate housing. It’s better preparation for free life than a cellblock, but that’s about the all that you can say for it as a means of reducing “re-entry shock.”

In the graduated re-entry program that Angela Hawken, Ross Halperin, and I are trying to develop, there’s no single physical facility; instead, there are ordinary-looking apartments, rented from private landlords, scattered around the neighborhood. That doesn’t leave much of a target for the NIMBYs. Living in your own apartment is much more like real life than living in a halfway house. In particular, there’s no reason an ex-offender who graduates out of graduated re-entry couldn’t decide to keep paying rent on the same unit (while the program rents another unit for a new participant). That would make the transition from graduated re-entry to freedom virtually seamless, by contrast with the situation of someone who is released from a halfway house and immediately needs to find new housing.

Some successful halfway-house operations, such as Stefan LoBuglio’s Montgomery County Pre-Release Center, stress jobseeking, and the good results of those efforts gives us reason to think that the employment aspects of graduated re-entry could be made to work well. Others are combined with supported-work programs, though the evaluations of supported work for ex-offenders aren’t especially encouraging. But the combination we propose - close supervision, supported non-congregate housing, and supported work transitioning to non-supported work - is, as far as we know, original.

Compared to a good halfway house - and, again, not all of them are good - a graduate re-entry program might be less successful in delivering certain services (mental health, for example, or job-readiness) simply because all the subjects aren’t immediately available together. And for some participants the addition supervision by live staff and the presence of a ready-made social group might make halfway-house life easier than life on graduated re-entry. Indeed, LoBuglio, whose long experience in this business gives his opinion weight, doubts that graduated re-entry can be made to work. (Of course, in principle, you could do re-entry in phases, with the individual apartment being the next step after the halfway house.) 

But the key point about halfway houses is how few of them there are. I can’t find a number for the total halfway-house population at any one time, but the scattered numbers I’ve identified strongly suggest that the total is well south of 100,000. Expanding that, even substantially in percentage terms, wouldn’t put much of a dent in the 2.3 million Americans now behind bars.

I love pilot programs. But they’re only useful where they can, if successful, be brought up o the relevant scale. Otherwise you get a bunch of attractive but essentially irrelevant boutique programs, which has been the fate of the drug-court idea. Graduated re-entry, if it works, is scalable.

So yes, graduated re-entry is just like a halfway house, but without the house, in the same sense that it’s a prison but without the prison. Analogies can clarify, but they can also obscure.










Mass incarceration is a hard problem, not an easy one.

Freeing the innocent and harmless won’t solve over-incarceration.
How do you control the dangerously guilty?

Getting out of the mass-incarceration trap is hard. We currently have five times our historical incarceration rate and seven times the incarceration rate of most of Western Europe. We also have a frighteningly high rate of homicide and other violent crime, albeit only about half as high as it was twenty years ago.

To get back to our historical level, which would be a high level compared to the rest of the civilized world, we need to reduce the headcount behind bars by 80%. Pick five prisoners, and you need to let four of them out.

And no, you can’t do that by releasing innocent, harmless people. You need to release some seriously guilty and dangerous people. Which means you need to figure out a way to make them less dangerous that doesn’t involve putting them under lock and key.

Megan McArdle gets this right.