† 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 Pulitzer Prize winning novelist Michael Chabon, “sell you what you already own.” (See Chabon’s introduction to Trickster Makes This World, by Lewis Hyde.) I couldn’t have been more than 5 or 6 when they showed me how to run a shell game so that later on, I’d recognize what was happening when someone tried to reel me into one.
Later, more advanced instruction came from such movies as “A Face in The Crowd,” where 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 the recent flurry of articles and blog posts – Washington Monthly, The Maddow Blog,   and WaPo’s WonkBlog  for starters – making much, largely uncritical, ado about the purported conservative-Right push for “prison reform.”  The storyline goes something like this:  At last!  Here’s where the Left and the Right, the liberals 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 conservatives are leading the fight!  Wow! We’re gonna win this one!  How’d that happen?

Wow, and how, indeed.  O, Brave New World:  Newt Gingrich, Jeb Bush, Grover Norquist, and William Bennett as champions of humane criminal justice reform!  The ALEC task force that produced “Stand Your Ground” gun laws transformed into a “war on prisons” task force!  It seems almost miraculous, doesn’t it?

 Nixon to 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?”

~ cited in The Confidence Man in American Literature, by Gary Lindberg (1982)

To fully grasp the complexity of how this happened – and 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 probably is.

And while some useful, even hopeful, possibilities might emerge from genuine bipartisan activism to dismantle mass incarceration, you need to know that there’s a whole lot more to this story than is contained in the latest PR “conservative war on prisons” blitz.  James Kilgore, novelist, research scholar, activist, and former prisoner recently published a refreshing progressive take on the initiative in Counterpunch, “Have Conservatives Really Seen the Light on Mass Incarceration?”  but his cautionary take is rare – at least to date.

There are some real dangers embedded in this new right-wing initiative, and to understand them, we need to conjure up that mythic and compelling con artist.  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 mythic figure – at least at first.  Whatever he offers is always something that appears to resonate with our deepest hopes.

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.”

The devil, as they say, is in the details. Let’s look at a few of them in order to help establish a foundation for further discussion. This is not a comprehensive discussion, but an overview. Over time, CI will examine some of these issues in greater depth.

Resistance to 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” polices that ultimately were also embraced by Democrats fearful of being labeled “soft on crime.”

Mass incarceration in this country is a racialized phenomenon.  Simply put, most of those confined in U.S. jails, prisons, and detention centers are people of color.  And most, of every race or ethnicity, are poor.

The devastating impacts – direct and collateral – on prisoners, their families, and entire communities have been well documented by advocacy organizations, bloggers, and liberal/progressive justice policy analysts.  Among them (this is, regrettably, not a comprehensive list) are:

• Critical Resistance
• INCITE! Women of Color Against Violence
•  Angola 3 News
• Prison Culture Blog
• Project NIA
•  Detention Watch Network
•  Center for Constitutional Rights
•  Prison Policy Initiative 
• Brennan Center for Justice
•  Vera Institute of Justice
• Prison Legal News
• The Real Cost of Prisons Project
• Juvenile Justice Project of Louisiana
•  Transformative Justice Law Project of Illinois
•  Justice Policy Institute
•  Solitary Watch
•  Sylvia Rivera Law Project

But who in government was listening?  Courage among elected officials was in short supply until 2007, when Sen. Jim Webb (D-Va) broke the silence in the federal legislative branch of government by speaking out on the terrible costs 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 system.  The goal:  to move toward reshaping the criminal legal system in its entirety.

In summer 2010, the measure passed the U.S. House of Representatives – before Tea Party Republicans, thanks in significant measure to so-called “progressives” who helped suppress the vote by urging us to stay home, achieved insurgent Congressional victories later that year.   The NAACP, American Bar Association, the Fraternal Order of Police, the National Sheriff’s Association, the International Association of Chiefs of Police, and others endorsed the initiative.

In 2011, Senate Republicans filibustered the proposed reform initiative.

Prisons, Profit & the Right

All of this took place against an already-established backdrop of increased privatization of U.S. prison and detention systems, a profit-producing phenomenon pushed aggressively by the Right and corporations such as Corrections Corporation of America (CCA), who stood to profit generously from the shift.    The result?  The prison industrial complex, a complex, interlocking network of public and private interests who profit politically and economically from the expansion of systems of policing and punishment and their privatization.

Prison privatization gained a special foothold – and momentum – in Texas (pdf link), and Florida, turf then dominated by the governors Bush (George W. and Jeb).  Believing that a proper role for state government was to enable the proliferation of faith-based prison programs, they granted “preferential/most favored status” to a series of faith-based prison initiatives run by their allies in the Christian evangelical Right:  groups like Prison Fellowship, founded by former Watergate conspirator Chuck Colson.

CI has previously documented the rise, institutionalization, and preferential status of Christian Right faith-based prison-related services.  In that same post, we also noted that, anticipating shifts in public support for extremely high levels incarceration and public spending to support it, Prison Fellowship and other Right-leaning ministries and businesses were expanding their capacity to provide (including on contract) re-entry and post-prison services.

While I believe that Prison Fellowship, and many of the people affiliated with it, are sincere in their religious desire to do good, here are severe theological prices to pay for those prisoners who aren’t Christians, and/or who are queer or Muslim (see PF publications relating to “gay lifestyle” and Islam, available here) or who simply don’t conform in other ways to the particular brand of evangelical Christianity offered by the evangelical Right.  No other strand of religious faith enjoys as much institutional and political support.

But this isn’t just about moral rehabilitation and the building of a particular strand of faith-based “character.”  As CI noted in its faith-based prison profiteering post,  “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. “

And make no mistake:  Prison Fellowship and other evangelical Christian Right ministries and businesses to continue their most-favored status, within and without prison walls.

A Change (of Some Kind) Is Gonna Come

A number of indicators have been telling us that change is on the way.  A shift is definitely in the public/private ether.   But what kind of shift?  Well, a bunch of mega-nonprofits, some partisan, some claiming to be bipartisan or nonpartisan, together with clusters of state politicians and whoever they decide are the other major “stakeholders” have pretty much already made their decisions about what needs to happen and how and why.  Here are some of those indicators.

In 2006, for example, 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. And promote “consensus-driven strategies—informed by available evidence—to increase public safety and strengthen communities.”  One of its hallmark initiative 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, etc.

(Just for fun – it probably means nothing – we’re publishing back to back logos of the CSG Justice Center and Right on Crime, an initiative we’ll talk about in a minute.)

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 2012, Michelle Alexander’s groundbreaking The New Jim Crow: Mass Incarceration in the Age of Colorblindness was published.

By 2011, national mainstream conservative media was 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, 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.  Genuine bipartisanship? Well…we’ll get back to that.

In May 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.  (Later, around the time of the election, Pew announced that January, 2013, Alan Murray, deputy managing editor for the Wall Street Journal, will assume the position of president of Pew Research Center.)

In mid-December 2012, the Bureau of Justice Statistics reported a decline, in the U.S. prison population for the second consecutive year.  The decline is due to reported decreases in 26 state departments of corrections.  It’s welcome news, which advocacy groups and policy analysts across the political spectrum are celebrating.  (They aren’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.  That could be a very good thing; certainly, we’d like to think the way is open for the groups who have been working to expose and dismantle the Prison Industrial Complex to at last be full partners in these discussions before policies are enacted.

Or we might think we’re buying one thing, but we’re actually getting something else.  What makes me think so?  Because under the not-very-credible rubric of “bipartisanship,” the Right has been reinventing itself as a bastion of prison reform.

Significantly, while an emerging left-right coalition agrees on the need to find better uses of our prison money, they 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. Hey, they can’t agree on everything.

But “we can have that conversation another time,” Norquist says.(Emphasis added.)

~ Chicago Tribune:  “NAACP-right-wing foes get friendly

The Right Reinvents Itself as Prison Reformers

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, and provide more support for victims of violent crime, 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).  All of this should result in “safer” communities.

That’s the belief the Confidence Men of the Right are selling: “Let’s all agree on those basic concepts and sort out the rest later.”

And that would be a huge mistake. If something isn’t in the vision for change from the beginning, it won’t be included in any meaningful way later on.

I want to acknowledge that while the Right isn’t monolithic with regard to their motivations for criminal legal system reform.  Yet, for the most part, the major organizations and leaders agree on these principles, articulated by the Texas Public Policy Foundation, an influential group in the prison/corrections discussions:

•  Individual Liberty
• Personal Responsibility
• Free Markets
• Private Property Rights
• Limited government

So let’s also be clear that when they talk about “prison reform” and “justice reinvestment,” the folks on the Right are not talking about shifting money saved into social spending: education, health care, housing, and food security. They’re not talking about reducing poverty.

They’re not talking about eradicating racial and class biases that are foundational to the criminal legal system in the United States. They’re not talking about ending racial profiling.

They’re not talking about dismantling systemic violence in U.S. jails, prisons, and detention centers.

And they’re sure as hell not talking about dismantling the “for-profit” prison industrial complex. Rather, they seek to shift the locus of some prison profiteering (without doing away with all of it, of course) to a burgeoning market in both faith-based and secular community corrections.

So who are the players in the right-wing prison reform group?

Well, you remember the corporate-funded, conservative-Right American Legislative Exchange Council (ALEC),  proud promoter of “Shoot First (Stand Your Ground)” laws, anti-labor legislation, and other measures beloved of the Right?

ALEC’s already crafted model state legislation, which is almost certain to sail through Republican-dominated state legislatures, which, in recent years, have been a very special funding interest of the Koch Brothers.

And there’s a right-wing umbrella “reform” group called Right on Crime, a project of the Texas Public Policy Foundation and ALEC. They’ve built strong capacity to move their version of the issues – and are enthusiastically endorsed by such “thugs of virtue” (thanks to the late psychologist James Hillman for the phrase, although he was only speaking of the first guy on this short list) as William Bennett, Rick Perry, Bobby Jindal, Sam Brownback, Jeb Bush, George W. Bush, and Grover Norquist.

There’s The Heritage Foundation, the influential right-wing think tank founded in 1973, whose brand-new president, starting in January, will be Tea Party poster boy Jim DeMint. DeMint will resign his position as junior senator from South Caroline to take the position.

Beyond the “feel good” elements of “prison reform” noted earlier, let’s take a quick look at just two of the more troubling concepts embedded in the approaches taken by Right on Crime, ALEC, The Heritage Foundation, and others.

“Overcriminalization” (but only of businesses and corporations)

While silent on 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.”  (See more from the Texas Policy Foundation, one of Right on Crime’s parent organizations, here.)

In short, the conservative “war on prisons” would help ensure that businesses (including mega-corporations) can never be held criminally accountable for “non-fraudulent” activities. Presumably, that means that if prosecutors can’t prove fraudulence, almost any corporate activity – even that resulting in serious injury, illness, or death to workers and consumers, or widespread ecological damage that unfolds over long periods of time – no criminal charges could be applied.

But 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.” I’m not an attorney, but that sounds suspiciously like a prosecutorial requirement to prove conscious or reckless “intent” to harm. However massive, harm itself would not be sufficient grounds for pursuing criminal charges against and incarceration for business folk.  They would have to be demonstrably motivated to do wreak havoc in the lives of employees, consumers, and communities.

The Heritage Foundation has some interesting thoughts on the entire U.S. criminal code.

Simply put, in addressing “overcriminalization,” Right on Crime seeks to protect business and corporations, while advancing a stringent “state’s rights” principle that prohibits the federal government from stepping in to investigate or prosecute civil rights violations and economic offenses that a state won’t address – or, in the prophetic words of my colleague, Nancy A. Heitzeg, the Right seeks to render the federal government completely irrelevant.

Political willingness to go after big business/big money with criminal charges is already weak.  Do we really want to join the Right to make things far worse?

State’s Rights!

You know that pesky federal government, the one that sometimes, under some (not all) administrations, steps in to try to redress violations of civil rights and other serious harm when state and local law enforcement authorities won’t? Say an administration that cares about things like how Meridian, Mississippi’s school-to-prison pipeline constitutes a massive miscarriage of justice?  The one that launched an investigation of Sheriff Joe’s nightmarish and discriminatory law enforcement sweeps against Latinos  in Maricopa County, Arizona?  An administration that believed police shooting of unarmed civilians on Danziger Bridge in the time of Katrina constituted a civil rights violation?

Well, that doesn’t sit well with the Right.

In curious and ambiguous wording, Right on Crime wants to “return the responsibility for prosecuting and punishing traditional crimes to the states.”

And There’s So Much More More…

I’ll delve into the Right’s ideas on “prioritizing victims” and support for some very limited (and even potentially retributive) elements of “restorative justice” another time. Those topics, and other elements of the broader right-wing “prison reform” initiatives being put forward, deserve discussions of their own.

In the meantime: be careful out there.

The Confidence Men are afoot, and they are being (perhaps inadvertently) bolstered by silence  from the mainstream media and too many mainstream foundations and advocacy organizations regarding many critical issues in mass incarceration reform. Among them (by no means a comprehensive list):

• Racial, class, gender, and sexual bias and violence in the criminal legal system

• Racial profiling

• Safety for whom?

• Creation of strong networks of non-criminal legal system community-based supports for individuals and communities
  who experience the trauma of violence

• State’s rights

• Protection of civil rights

• Prison-based gerrymandering

• Felony disenfranchisement

• Accountability for economic/corporate criminality

• Implications of privatization of community-based services

• How savings will be “reinvested,” and who will/won’t benefit

• The War on Drugs in all of its nefarious legal incarnations

• The outsize role played by “mega-nonprofits” in defining the parameters and setting the terms of discussion

• The impact of “dark money” in influencing these discussions and the kind of reform that is ultimately enacted in various states

Change is gonna come.  Count on it. But failure to address these issues will not produce justice. It will only produce another damn shell game.

James Kilgore gets the last word:

 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.