† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Criminal Injustice is published every Wednesday at 6 pm.
Confidence Men & “Prison Reform”
by Kay Whitlock
I was a little kid when I first learned about “confidence men” – and snake oil and the art of the inspired swindle – from my dad and his cronies at the pool hall. They all had stories, shouted at each other over beer, laughter, and the clack of the rack on the table, about their various encounters with those shifty, seductive gents who, in the words of novelist Michael Chabon, introducing Lewis Hyde’s Trickster Makes This World, “sell you what you already own.” I couldn’t have been more than five or six when they showed me some of the tricks of a shell game so that later on, I’d recognize what was happening when someone tried to reel me into one.
Later, I received more advanced instruction from such movies as “A Face in the Crowd,” in which folksy drifter Lonesome Rhodes (Andy Griffith like you’ve never seen him) becomes an overnight media sensation and dangerously charismatic political con artist, and “Elmer Gantry,” in which the slick talking, hard boozing, traveling salesman turns into a power-hungry, evangelical huckster.
I’m reminded of all this as I look at a flurry of articles and blog posts – Washington Monthly, The Maddow Blog, WaPo’s WonkBlog, Colorlines, and The Guardian, for starters – making much, largely uncritical, ado about the purported conservative-Right push for “prison reform.” The storyline goes something like this: “At long last! Here’s where the Left and the Right, the liberals, libertarians, and conservatives, can come together in a good cause, namely the lowering of the prison population in the United States. More reliance on community-based corrections! And, having finally seen the light, conservatives are leading the fight! We’re going to win this one! How did that happen?”
How, indeed. O, Brave New World in which Newt Gingrich, Jeb Bush, Grover Norquist, John J. DiIulio, Jr., Edwin Meese III, Ward Connerly, Gary Bauer, and William Bennett are recast as champions of humane criminal justice reform. In which the American Legislative Exchange Council (ALEC) disbands its notorious Public Safety and Elections Task Force (known until 2009 as the Criminal Justice Task Force), responsible for the proliferation of Stand Your Ground, Voter ID, prison privatization, and immigrant criminalization laws. Without noting its own powerful role in promoting the exploitation of prison labor and increasing imprisonment, ALEC has now recast itself as a humane, cost-conscious reformer concerned with ending “prison overcrowding.”
It seems almost miraculous, doesn’t it?
And we want to believe that this is all there is to it: that the Right’s “prison reform” really meshes with the hopes and intentions of all those who have been working for decades to dismantle structural violence, including the violence of prisons, policing, profiling (racial, gender, and sexual), and the race-based nature of mass incarceration in the United States.
President Richard Nixon to H.R. Haldeman, April 1973:
“We’ll survive. . .despite all the polls and all the rest, I think there’s still a hell of a lot of people out there, and from what I’ve seen they’re– you know, they want to believe, that’s the point, isn’t it?” – from the transcript of a recording [PDF] of a telephone conversation, April 25, 1973, during the Watergate crisis
And belief – or at least perception that something is true, whether or not it is – is often more potently seductive than a more complicated and ambiguous reality. As the massive corruption of Watergate threatened to bring him down, President Richard Nixon invoked the power of belief over reality in one of the desperate conversations he had during that time with aide, H.R. Haldeman. Surely he could survive by playing on people’s desire to believe the best rather than the worst. It didn’t work out for Nixon, but he was not wrong that belief can easily trump reality, so long as enough people want it to.
The Confidence Man
There are some real dangers embedded in this new right-wing initiative, and to grasp the complexity of how this happened – as well as what “this” actually is – we need to situate the discussion within the mythic, almost archetypal, context of the Confidence Man in U.S. cultural life. Because as we know, if something sounds too good to be true, it is.
We need to understand the (often yawning) chasm of difference between what is being promised and what is actually being sold. As Gary Lindberg, author of The Confidence Man in American Literature, says, the Confidence Man “is at once the celebrant of shared faith and the agent most capable of exploiting it.” He doesn’t appear to be seedy or dishonest; in fact, the Confidence Man is an attractive figure – at least at first. Whatever he offers is always something that appeals to our hopes and dreams.
But he’s also an edge figure who operates exclusively at the boundary of aspiration and reality in ways that – if we look closely – manipulate and reconfigure that aspiration to his personal benefit, always at the expense of others.
“What the con man represents about us can only be seen, obliquely, in the discrepancies between our ideals and our conduct. . .It is not our official pieties that he represents, but our unofficial reward systems that we have for over two centuries allowed to succeed. He clarifies the uneasy relations between our stated ethics and our tolerated practices.” – Gary Lindberg, The Confidence Man in American Literature
Moreover, there may well be some measure of truth to what the con man offers. Every sideshow, carnival attraction, shell game, and confidence man offers the public a “hook,” the compelling, seductive element that overcomes skepticism and pulls people into the performance. But the distorted genius of the confidence man is most truly seen in the larger game, that is revealed once we’ve taken the hook and been reeled in, only to discover that we’ve been swindled. The challenge for progressives is to clearly identify the hook but not kid ourselves that the hook is the whole (or even the primary) reason for the new “bipartisan” push for “prison reform.”
As the conservative “war on prisons” PR blitz began to take hold, James Kilgore, novelist, research scholar, activist, and former prisoner offered a progressive take on the matter in 2012. But his cautionary warning was, and is, all too rare.
This is a complex story, with its roots in the Right, but also with resonance in libertarian and neoliberal ideas about an unfettered free market, deregulation, privatization, and the maintenance of white supremacy, patriarchy, and privilege for the already-affluent. It has nothing to do with actually dismantling structural racism and other forms of violence systemically embedded in American public life. Such progressive work can only be accomplished when structural transformation animates the vision for change and its accompanying organizing agenda from the start.
The devil, of course, is always in the details. In order to help establish a foundation for further discussion, let’s briefly consider a few of them. Over time, this series will examine some of these issues in greater depth.
Resistance to Profiling, Police/Prison Violence, and Mass Incarceration
Over a period of 40 years, from the early 1970s to the present, the United States earned the moniker “Incarceration Nation,” a grim distinction made possible by Republican-initiated “get tough on crime” policies.
Many Democrats, fearful of being labeled “soft on crime,” a charge that intentionally stoked racist fears about black people, also embraced these policies. In the 1990s, led by President Bill Clinton, party neoliberals advanced the federal “get tough” drive, even as they pursued other policies that enjoyed conservative/right support, including so-called “welfare reform,” a “bipartisan” measure that has hurt many poor families, and that a new generation of politicians seek to reform, again at the expense of the poor, and the “bipartisan” passage of the disastrous North American Free Trade Act (NAFTA).
Mass incarceration in the United States is a racist phenomenon. Simply put, most of those confined in U.S. jails, prisons, and detention centers are people of color, predominantly black. They are channeled into prisons through race-based policing and prosecution, root problems that are not addressed merely by changing sentencing guidelines. And most of those, of every race or ethnicity, who are incarcerated are poor.
The devastating impacts – direct and collateral – on prisoners, their families, and entire communities have been well documented by advocacy organizations, grassroots community organizations, and progressive justice policy analysts. Among them (this is not a comprehensive list) are: Critical Resistance, INCITE!, Prison Culture Blog, Project NIA, Detention Watch Network, Streetwise and Safe, Center for Constitutional Rights, Prison Policy Initiative, Prison Legal News, The Real Cost of Prisons Project, Juvenile Justice Project of Louisiana, Transformative Justice Law Project of Illinois, Solitary Watch, Sylvia Rivera Law Project, and American Friends Service Committee (AFSC)
But who in government was listening? The willingness among elected officials to address these issues publicly was in short supply until 2007, when then U.S. Sen. Jim Webb (D-VA) convened a hearing and spoke out on the harms of mass incarceration. In 2009, he introduced the National Criminal Justice Commission Act, a measure intended to take first steps toward identifying, examining, and making recommendations to address multiple, interrelated problems in the criminal legal and prison system. The goal: to move toward reshaping the criminal legal system in its entirety.
In 2011, Senate Republicans blocked passage of the proposed creation of the national commission.
Prisons, Profit, and the Right
All of this took place against a decades-long backdrop of increased privatization of U.S. jails, prisons, and detention centers, a profit-producing phenomenon pushed aggressively by the Right and corporations such as Corrections Corporation of America (CCA) and The Geo Group who stood to profit generously from the shift. The result? The prison industrial complex, an interlocking network of public and private interests that profit politically and economically from the expansion of systems of policing, punishment, and surveillance – and their privatization.
Prison privatization spread rapidly, beginning in the 1980s. It gained a special foothold and momentum in Texas and Florida, where, believing that a proper role for state government was to enable the proliferation of faith-based prison programs, officials granted preferential/most-favored status to a series of faith-based prison initiatives run by their allies in the Christian evangelical Right.
The Criminal Injustice (CI) series has previously documented the rise, institutionalization, and preferential status of Christian Right faith-based prison-related services. We pointed out that, anticipating shifts in public support for extremely high levels incarceration and public spending to support it, Prison Fellowship, founded by Chuck Colson, and other Right-leaning ministries and businesses were expanding their capacity to provide re-entry and post-prison services.
While there is no reason to doubt that many people affiliated with the Christian Right are sincere in their compassion and religious desire to do good, there are still pressing concerns that must be raised. For example, no other religious faith, denomination, or spiritual tradition enjoys as much institutional and political support. What does it mean to grant “most favored status” to particular Christian groups? What does it mean to divert public tax dollars to promote particular religious beliefs? Where is the justice when “most favored” religious groups are permitted to discriminate against prisoners who aren’t Christians, and/or who are queer and/or Muslim (see PF publications relating to “gay lifestyle” and Islam, available here) who simply don’t conform in other ways to the particular brand of Christianity offered by the evangelical Right. And make no mistake: Prison Fellowship and other evangelical Christian Right ministries and businesses plan to build on their most-favored status, within and without prison walls.
But this isn’t just about moral rehabilitation and the building of a particular strand of faith-based “character.” As CI has observed, “Just as there are enormous profits to be made through mass incarceration, there are also massive profits to be made from the growth of eventual ‘decarceration.’ It’s a neat trick to control both the supply and demand aspects of the prison/post-prison schema.” Those profits may be as political as they are economic.
A Change is Going to Come
A number of indicators have been telling us that change is on the way. But what kind of change? Most decisions about what needs to happen, how, and why have already been made by conservative think tanks, Right on Crime, clusters of state politicians, and a handful of large advocacy organizations and nonprofits, some claiming to be bipartisan or nonpartisan. In general, the “stakeholders” have not included grassroots community and advocacy organizations with predominantly poor and people of color constituencies who have been working to end police and prison violence as well as mass incarceration.
Here are some of those indicators of change.
In 2006, a new, “nonpartisan” nonprofit called The Council of State Governments Justice Center was created in order to “serve policymakers” at the local, state, and federal levels from all branches of government. (See more about the Council of State Governments here.) It seeks to promote “consensus-driven strategies—informed by available evidence—to increase public safety and strengthen communities.” One of its current initiatives is “Justice Reinvestment” which offers policymakers technical assistance in efforts to reduce corrections budgets, reduce recidivism, and strengthen community supports for former prisoners and those on probation, parole, geriatric release, and other monitored release programs.
In 2008, the federal Second Chance Act was signed into law with the intention of “improving outcomes for people returning to communities from prisons and jails.” The legislation authorizes federal grants to government agencies and nonprofit organizations to provide employment assistance, substance abuse treatment, housing, family programming, mentoring, victim support, and other services that can help reduce recidivism.
In 2008, the Public Safety Performance Project of the Pew Center on the States released a report focusing on problems and recommendations in the area of community corrections: parole, probation, geriatric release, and prisoner re-entry, and suggesting that better community corrections policy-level actions could correct problems, save money, reduce recidivism, and create greater public safety.
In 2010, Michelle Alexander’s groundbreaking The New Jim Crow: Mass Incarceration in the Age of Colorblindness was published.
In 2010, Right on Crime was founded.
By 2011, national mainstream conservative media were noting the strain of “runaway prison costs” on state budgets.
In 2011, the NAACP issued a report entitled Misplaced Priorities: Over Incarcerate, Under Educate. This report examines escalating levels of prison spending in the United States that have shifted state funds away from education and the impacts on state budgets, and in the lives of children. When the report was released, then NAACP president Ben Jealous appeared with Grover Norquist – the right-wing, self-styled anti-tax maven, who seeks to shrink the size of federal government so much that he can drown it in a bathtub – to promote the report. Newt Gingrich, that stalwart champion of racial justice, also endorsed the NAACP report.
In 2012, the Pew Center for the States issued the results of a survey on sentencing and corrections policy in the United States that implied we may have reached a tipping point with regard to mass incarceration; that the public is ready for policies that reduce prison populations and spending; utilize imprisonment primarily for those convicted of violent offenses; and strengthen community-based corrections. The following year, Alan Murray, former deputy managing editor for the Wall Street Journal, assumed the position of president of Pew Research Center.
In 2012, the Bureau of Justice Statistics reported a decline, in the U.S. prison population for the second consecutive year. The decline was due to reported decreases in 26 state departments of corrections. It’s welcome news, which advocacy groups and policy analysts across the political spectrum celebrated. (They weren’t, however, also talking about a “slight” increase in U.S. prisoners housed in private prison facilities or an increase in federal prisoners.)
In short: re-entry support and community corrections are the wave of the future. We certainly want to see decarceration, but will this slightly reduce some prison populations only in order to place people under community-based surveillance and monitoring provided by for-profit companies – while also charging those individuals, disproportionately poor, for the costs of that community correctional service/treatment and monitoring? To help answer this question, we believe that groups who have been working for many years to expose and dismantle structural racism and other forms of violence in the criminal legal system should be full partners in discussions and decision making before policies are adopted and enacted. This isn’t a question of waiting for the “perfect coalition” to appear,” but rather making sure that essential voices aren’t left out of the discussion.
Without that kind of scrutiny and participation, many of us, enthralled by the public relations blitz, are settling for buzz words and phrases (sentencing reform, community corrections, reducing prison costs, overcriminalization) without knowing the details or the larger right-wing framework for reform. As a result, we think we’re getting one thing, but in the long run, what we will end up with is something else. When the same conservative/Right/neoliberal players who brought us “get tough” coalesce around certain reform themes, we need to be asking a lot of questions – particularly about money and the continuing commodification of people for private profit in whatever schemes are being promoted.
Significantly, while an emerging conservative/libertarian/neoliberal/liberal coalition agrees on the need to find better uses of our prison money, the various interests predictably disagree on what should be done with the savings. At a time when some states spend as much per inmate as a year’s tuition to Harvard, the NAACP understandably wants the savings to be redirected to public education. Norquist would just as soon return it to the taxpayers – and the corporations that will profit from the new generation of “community corrections.” But “we can have that conversation another time,” Grover Norquist says.
If we accept Norquist’s view that the discussion about public monies saved and spent in relation to the lives of individuals and communities, disproportionately poor communities of color, battered by the violence of the criminal legal system can wait, then we’ve just swallowed the hook.
What’s Missing From the Discussion
Many of us across all political lines might agree that we need sentencing reform and that we should: reduce the number of people imprisoned in the United States, spend less on prisons, provide more support for those on the receiving end of violence and injustice, and emphasize community-based services and supports for prisoner re-entry, geriatric release, parole, probation, and alternative sentencing (at least for those convicted of nonviolent offenses). And we would love for all of this to create “safer” communities.
That’s the hook the Confidence Men are using: “Let’s all agree on those basic concepts and sort out the rest later.” But if something isn’t in the vision for change from the beginning, it won’t be included in any meaningful way later on. The same communities most devastated by police violence and mass incarceration are also those suffering the harms of structural racism in every other area of civic life. How likely is it that the same interests that champion Voter ID laws, draconian cuts in the already-tattered social safety net, privatization of public education, the gutting of unions, environmental and corporate deregulation, and denial of reproductive justice to women are devoted to the profound structural justice issues that should be at the center of efforts to dismantle mass incarceration?
Why do we imagine that the ultimate story about criminal justice reform will turn out any better than, say, “welfare reform”?
We may want to believe that “prison reform” and “justice reinvestment” mean that communities will have more money for human needs spending and reducing poverty. But that’s not really on the table in an open and transparent way.
Supporting public education over incarceration [PDF] is not on the table.
Strategies that work to dismantle and eradicate racial and class biases that are foundational to the criminal legal system in the United States are not on the table.
Specific efforts to end racial and other forms of police profiling are not on the table.
The dismantling of systemic violence in U.S. jails, prisons, and detention centers is not on the table.
New and stronger forms of public accountability for private organizations and corporations are not being considered. Yet they are essential to any real reform, since there are already so many documented instances of scandal, misconduct, and corruption in existing community corrections.
Prison populations may, over time, be reduced, but populations caught up in “community corrections” will likely expand. Considerable prison profiteering will also expand from prisons, jails, and detention centers to the burgeoning market in both faith-based and secular community corrections. Yet the issue of profiteering and how the making of that profit is rooted in the need for more bodies under some sort of correctional control is not on the table.
Yes, liberal groups are signing on to some or all of the Right on Crime reform agenda. But they’re not asking the hard questions that need to be asked.
Beyond the issues just noted, two concerns – overcriminalization and state’s rights – that are central to the conservative/Right framework for reform should be red flags for liberals and progressives.
What the Right Means by “Overcriminalization”
We tend to assume that any discussion of “overcriminalization” is, by its very nature, justice-serving and progressive. It’s so easy to assume that this means “overcriminalization of communities of color and poor people.” Not so.
While largely silent on yawning racial and economic disparities in the criminal legal system and on youth criminal profiling, Right on Crime is quite vocal about the use of criminal law as “an overly blunt instrument for regulation non-fraudulent business activities.” The “conservative solution” opposes criminal charges as a method of regulating business activities: “regulation is better handled through fines and market forces, not the heavy stigma of criminal sanctions.” The Texas Public Policy Foundation, which birthed Right on Crime, adds to the discussion here. More recently, they have begun emphasizing ways in which people convicted of “nonviolent” crimes need not be imprisoned, but the examples are either about minor drug offenses or small business-related. But its reforms would further diminish governmental ability to hold corporations publicly accountable for harm that they cause.
The conservative “war on prisons” seeks, in part, to ensure that businesses (including large corporations) can virtually never be held criminally accountable for “non-fraudulent” activities. Presumably, that means if prosecutors can’t prove fraudulence, criminal charges simply cannot be leveled against most forms of corporate activity that produce serious injury or other harm for workers, consumers, communities, and entire ecologies.
But even in the unlikely event that prosecutors might consider criminal charges against businesses, Right on Crime wants to “ensure that an appropriate culpable mental state is included in the elements of all offenses.” That sounds like a prosecutorial requirement to prove conscious or reckless intent to do harm before questions about redressing the harm can be considered. The fact and documented impact of harm would not be sufficient grounds for pursuing criminal charges against businesses and corporations.
Testifying for the right-wing Heritage Foundation regarding revisions to the entire U.S. criminal code, Edwin Meese, III, former U.S. attorney general in the Reagan administration, argued for a business-serving narrowing and consolidation. His themes for consolidation were consistent with those of Right on Crime.
In the name of reigning in “big government,” conservative “overcriminalization”reform seeks to further limit the ability of government, especially the federal government, to step into investigate or prosecute many criminal violations and economic offenses.
Political willingness to go after big business/big money with criminal charges is already exceptionally weak. Do we really want to join the Right to make things far worse?
The States’ Rights Agenda
Through revision of state and federal criminal codes, the Right ultimately hopes to render the federal government largely irrelevant, leaving most decisions about justice – not just about criminal justice – to the states. Under the attractive rubric of downsizing “big government,” the Right takes special aim at the federal government and its ability to step in when state and local governments are unwilling or unable to address corporate crimes, violations of civil rights and other serious harm.
There’s no point in romanticizing the federal government as a certain agent of justice for the disempowered and dispossessed. It’s not. The same federal government that ultimately supported school desegregation efforts was also deeply implicated in FBI-related efforts to discredit black leadership in the civil rights movement. The same federal government that charged Meridian, Mississippi with running a school-to-prison pipeline stands by its notorious and unjust so-called “Secure Communities” program.
Federal challenges to state-inflicted injustices don’t sit well with the Right.
Imagine, then, a “states’ rights” society – the kind envisioned by the Confederacy, for example – in which a federal government charged with protecting against massive harm is unable to step in. This is not a theoretical concern. Today, the Right enjoys single-party control of at least 23 state governments, thanks to a flood of money from the Koch Brothers and other corporate/dark money interests. Given unlimited money, which buys influence as well as ad time, and the ability to gerrymander state as well as federal legislative districts, it is likely that a definite majority of states governments will come under firm, at least semi-permanent, right-wing control. If that is increased to two-thirds, then Republicans would hold the power to convene a constitutional convention to propose amendments.
The limiting of federal power to intervene in massive criminal abuses is a wedge that will be deployed to also limit federal power to intervene in civil rights abuses.
Count on it.
And There’s So Much More
Over time, we’ll explore much more about the Right/neoliberal reform agenda. In the meantime: be careful out there.
Reform is a tricky word. Let’s be sure what it really means before uncritically embracing it.
The Confidence Men are afoot, and they are being bolstered on one hand by silence from many arenas and on the other by glowing praise and uncritical acceptance by many in the mainstream media and a number of the large foundations and national advocacy organizations. The parameters and terms of discussion are far too narrow. We need a bolder, more imaginative progressive framework for discussion that is open about its intention to dismantle the structural racism and economic, gender, and other forms of violence, including the disproportionate incarceration of people with disabilities, that are foundational to mass incarceration.
We should also be following the money and learning how various organizations, foundations, and campaigns are being offered significant donations if they will partner with conservative interests, particularly on “prison reform.”
Change is coming. But failure to address fundamental issues of racial and economic justice will not produce justice. It will produce another confidence game, one even more far-ranging than “welfare reform” and for-profit “education reform.”
Lastly, a main point of celebration over the freshly- minted conservative change of heart is the potential for unity across the political party aisle. This unity offers possibilities but does not guarantee a just result. Let us not forget that mass incarceration could not have happened without overwhelming support from both Republicans and Democrats all along the way. Reagan may have kicked off the War on Drugs and pushed the Federal Sentencing Guidelines but Clinton gave us the Violent Crime Control and Law Enforcement Bill providing nearly $10 billion for funding new prisons. Now both Democrats and Republicans want to distance themselves from any past complicity in designing or implementing the disaster of mass incarceration. They are running away from mass incarceration in much the same way that white South Africans abandoned apartheid in 1994. Without a doubt this will mean things will change in the future, but the question is whether things will be changing only to remain the same.