My Resolution for 2018: Less Piety, More Complexity

Posted in: Criminal Law

Those who study the criminal justice system frequently encounter what a colleague of mine calls “the pious stories.” These are the conventional criticisms of the system that all correct-thinking, liberal-minded people are supposed to know and repeat in polite conversation. In the course of the 21st century, as laments about the size and scope of the criminal justice system have reached the mainstream, these stories have become widespread and well-entrenched in at least some portions of the public sphere. The problem is that many of them range from egregiously incorrect to dangerously incomplete, and all of them distort reality in a way that makes meaningful reform far more difficult.

The Origin Story

The first is the origin story. Often called the backlash thesis, it attempts to explain why the criminal justice system became so punitive in the first place. The idea is that beginning with the Goldwater campaign in 1964 but accelerating dramatically during the Nixon campaign in ’68, conservatives strategically adopted crime not because it was a serious public concern, but as a wedge issue to divide southern whites from the Democratic Party. Talking about urban crime became code for black militancy and unrest, with an increased police and prosecutorial presence providing the social control that was eroding with the end of Jim Crow and the rise of the civil rights movement. The war on crime is thus depicted as a backlash to crush the nascent hope of black liberation and equality.

Without question, there is great truth to the backlash thesis. It is abundantly well-supported in the primary literature and undoubtedly an important part of the historical account. Yet it is also woefully incomplete. The thesis reduces communities of color to mere passive victims of white conservatives, with no agency or voice of their own. They are silent and invisible. Blacks and Latinos are simply acted upon; they do not act. The thesis makes it impossible to imagine that leaders in communities of color could have supported any of the various steps that brought us to an increasingly punitive criminal justice system.

But of course, many did. In Locking Up Our Own: Crime and Punishment in Black America, which chronicles the rise of punitive sentiments in Washington, DC, James Forman makes plain that rising crime within black neighborhoods was a serious issue indeed, and that respected voices within the black community responded to the state of play by advocating for harsh enforcement and severe punishments. Indeed, they sometimes took positions that were more punitive than their white counterparts in DC politics. To be sure, as Forman correctly points out, the punitive agenda within segments of the black community was always paired with an even louder call for major investment that would end the conditions from which crime emerged—for better schools, expanded economic opportunity, and an end to discrimination. Shamefully, these demands went unheeded.

Forman’s brilliant book makes it perfectly clear that we insult communities of color by pretending they are monolithic. The fact is that some Black leaders insisted on a punitive response to rising crime. Worse, we malign communities of color if we pretend they have no voice of their own. They had a voice then and they still do, and reforms which hope to “fix” those communities without listening carefully to those most closely affected are, at best, morally suspect, and at worst, colonial.

The Story of Mass Incarceration

The second pious story—even more deeply embedded than the origin story—is the explanation for mass incarceration. Under the benevolent influence of works like The New Jim Crow, by Michelle Alexander, the belief has become widespread that mass incarceration can be traced to the over-criminalization of drug use, especially among people of color. Many people seem to think we can empty the prisons if we simply end the inhumane practice of locking up black and brown men and women for the possession of a small amount of drugs. Yet this has never been remotely true. In Caught: The Prison State and the Lockdown of American Politics, by Marie Gottschalk, and more recently in Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, by John Pfaff, scholars have demonstrated convincingly that Alexander’s central contention, though enormously influential, is simply mistaken.

Most people in prison in this country have been convicted of either property crimes or crimes of violence. Even if every person incarcerated for a drug offense were released tomorrow, the United States would still have the largest prison population the world has ever known. And those in prison on drug charges include a substantial number who were convicted not of possession but of distribution, as well as people for whom the current conviction for possession comes atop a prior history of property or violent crimes. Trying to uncover the low level, non-violent drug offender incarcerated for mere possession—especially in the state system, which houses the great majority of inmates—is not quite like hunting for a snark, but it can begin to feel that way for those engaged in the task. With rare exceptions, we simply do not send these people to prison.

It is unquestionably true that the war on drugs was, and is, a morally bankrupt campaign that wreaked particular havoc in communities of color. It is also true that people of color were, and are, sent to prison for drug offenses far more frequently than similarly situated whites. But imagining that mass incarceration was caused by the incarceration of low-level, non-violent drug offenders deludes even well-intended policy-makers into believing they can achieve meaningful reform by ending a practically non-existent practice. Not only will it accomplish virtually nothing, it reinforces the morally bankrupt idea that everyone else in prison belongs there and can safely be left to rot. In other words, it suggests that the only problem with the criminal justice system is that it swept in too many of the wrong sort. Once we clear the tiers of these men and women, all will be right with the criminal justice world. The net is to encourage superficial rather than genuine reform.

The Story of Addiction

And the third pious story, which has gained renewed currency in the opioid crisis, concerns the response to addiction. When whites become addicts, it is depicted as a human tragedy and treated as a public health challenge, but when people of color become addicts, it is depicted as a menacing threat to order and treated as a dangerous crime. Like the backlash thesis, there is great and undeniable truth in this particular story. Throughout US history, the pattern of inconsistent enforcement has exhibited itself with stunning regularity. And like clockwork, the pattern returned with the opioid crisis, as many have observed.

Yet it is nonetheless incomplete. It simply does not adequately account for the social and political response to methamphetamine. Meth was, and is, used predominately by whites. If the story were correct, we would respond to those who become addicted to meth with sympathy and treatment rather than punishment and scorn. But we don’t. We send them to prison, sometimes for astonishingly long periods. As with every category of offender, most of the whites who end up in prison on meth charges are poor. Combine this with Bruce Western’s important finding in Punishment and Inequality in America that, while prison has become practically part of the life cycle for an appalling fraction of low-income blacks, it is far less common for middle-class and wealthy blacks. Taken together, this suggests that the pious story about inconsistent drug enforcement may be a story about class as well as race. To the extent we focus exclusively on race, we misperceive reality and misdirect reform. Worse, we needlessly divide people of color from poor whites, when in fact their interests may be identical.

There are other pious stories in criminal justice, but these three get the most air time. Journalists who write about criminal justice only infrequently, and who do not make the effort to uncover the more complex reality, repeat these stories like some secular catechism: What led to the punitive turn in criminal justice? Conservative whites wanted a new way to control blacks. How did we get mass incarceration? The war on drugs. And what is the war on drugs? Yet another way for whites to destroy the lives of young black men. With each repetition, the story grows more pious.

I understand the strategic reason for encouraging the public to swallow these bite-sized explanations. Simple narratives, with easily recognizable heroes and villains, are the easiest to translate into policy. They are the public policy equivalent of the old Henny Youngman joke. Patient: Doc, it hurts when I do this. Can you help me? Doctor: Stop doing this. At the same time, we should not forget the social environment in which these narratives took shape. During the last quarter of the 20th century, the idea of reform meant the exact opposite of what it does today—viz., more prison for more people. In this environment, advocates for reform, who were courageously fighting a losing battle to prevent the system from becoming even more inhumane and irrational, can be excused for distilling complex problems into simple bromides.

And then there is the serious risk that an acknowledgement of complexity will be ill-rewarded. In fact, I feel the pull of this risk even as I write this column. The fear is that the Right will not reciprocate. Rather than grapple with the complexity of the problem, they will say, “You see! Even Margulies, who has been a civil rights and criminal defense lawyer his entire career, who represents those terrorists down at Guantanamo, now admits the Left is full of shit on criminal justice.” Of course, I say no such thing, and never have. Conservatives have their own pious stories, to which they cling with equal if not greater tenacity, but that does not make them or their stories any more virtuous.

In an age of hyper-partisanship, when the very idea of truth has lost its meaning and deliberative democracy is cast out like a leper of old, I have decided I can no longer abide the criminal justice stories we tell ourselves in polite conversation. The stakes are too high, and the need for genuine reform too great, to hide behind the veil of piety.