For many years, attempts at criminal justice reform in this country have focused on precisely the wrong problem. Under the benevolent but misguided influence of works like The New Jim Crow, a myth has taken hold that American prisons are chock full of low-level, non-violent drug offenders, who have been imprisoned for mere possession. I and many others have tried very hard to debunk this myth by pointing out, again and again, that we almost never send such folks to prison.
Most people in prison in this country have been convicted of 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 drug conviction comes atop a prior history of property or violent crimes. To the extent critics of mass incarceration focus on low-level, non-violent drug offenders in prison, they squander precious political capital on a problem that does not exist.
It seems this message has finally gotten through. The two most serious problems in criminal justice lie on either side of the non-existent issue fetishized by misguided reformers. The first is the bloated gargantuan that has become our carceral state. At least in terms of the number of people affected, the biggest problem in criminal justice is not the size of our prison population, though that is certainly far too large. Instead, it is the millions of people and billions of dollars sucked into a system that seems to exist primarily to sustain its own girth. It is a voracious maw of saturation policing strategies, misdemeanor prosecutions, and fees, fines, and jail that bears no moral relationship to the problem it is meant to solve.
A number of scholars and criminal justice reform organizations have been pointing this out for years, and books like Misdemeanorland, by Issa Kohler Hausmann, Punishment Without Crime, by Alexandra Natapoff, and A Pound of Flesh, by Alexes Harris, as well as white papers and policy proposals by organizations like the Brennan Center for Justice and the VERA Institute, have done much to bring this travesty to a larger audience. In a subsequent essay, I will examine this literature in more detail. For now, suffice it to observe that the carceral state has grown so vast that, as my Cornell colleagues Peter Enns and Chris Wildeman recently established, fully 45% of Americans have an immediate family member who has spent at least one night in jail or prison. In an era of rapidly falling crime rates, any carceral system that ensnares half the population does far more harm than good.
Today, however, I want to focus on the other end of the problem. If reckless over-enforcement of low-level offenses lies at one extreme of the carceral state, at the other is gross over-punishment of violence. Of the two, violence is the more difficult challenge, which helps explain why policy-makers have avoided it so assiduously. But there are signs that this too is beginning to change, and the recent refocus on violence in the repertoire and rhetoric of criminal justice reform is one of the most welcome developments since our tentative experiment with reform began about two decades ago.
The contemporary criminal justice system in the United States was built on the idea that the world is divided into good people and bad, and that the goal of the system is to separate the two as long and as thoroughly as possible. Ronald Reagan, who did more to advance this view than any elected official, once mused that people “are basically good,” but that some make “a conscious, willful, selfish choice” to be “evil.” For them, “retribution must be swift and sure,” because “society has the right to be protected.” Over the past 45 years, this idea—almost childish in its simplicity—has changed the entire landscape of American life.
Using the criminal justice system as a tool to cleave good from evil has abetted the most pernicious impulse in American history—viz., the frenzy to demonize other human beings, to construct mythical monsters, whose specter justifies almost any form of state-sponsored brutality. Criminal justice has become the principal means by which we legitimize this repression, giving it the seductive appearance of lawfulness. And the violent offender—especially the violent black man—is the image that gives this seduction its purpose. More than anything else, the violent black man has become the unspoken symbol whose malevolent image is conjured to justify the quotidian cruelty of the carceral state.
That is why violence has proven so difficult for criminal justice reformers. It is one thing to ease the burden of reentry on some poor sap who got caught burglarizing a liquor store when he was 19, but quite another to open the prison doors and release someone who committed a vicious attack on another human being. We can easily convince ourselves that the severity of the system was not meant for the first man. But if we say it was not meant for the second man, then are we forced to admit it was not meant for anyone? Changing how we think about and respond to violence, in other words, calls into question the very legitimacy of our obsession with mass incarceration and all it has come to entail.
And this brings us to the best, and most important recent work in criminal justice. Fittingly, it begins with the story tellers. In An American Summer: Love and Death in Chicago, by Alex Kotlowitz, and A Grip of Time: When Prison is Your Life, by Lauren Kessler, two veteran journalists take aim at the heart of the problem. Demonization succeeds only so long as we are blind to shared humanity. We comfort ourselves with the belief that we share nothing with those who have committed acts of incomprehensible violence. They do not mourn loss or feel pain. They are not warmed by the sound of laughter or the sight of a friend. They are not like us.
Except that they are. In A Grip of Time, Kessler tells the story of a writing class she created for a group of men serving life sentences in the Oregon State Penitentiary. And in An American Summer, Kotlowitz uncovers the deeper stories behind the headlines for a cluster of violent crimes during a single Chicago summer. Sometimes the simplest work does the greatest service, and Kessler and Kotlowitz succeed because they capture—in clear, plain prose—a simple truth: Humanity is universal. The barrier that separates us from them exists only in our minds, and like a perfect reflection in clear, mountain water, it disappears as soon as we reach to touch it. Like all great journalists, Kessler and Kotlowitz do not deny the wrong done or denigrate the pain caused by the people they profile. On the contrary, they present it in painfully honest detail. But nor do they demonize these men. They see them as all of us should see each other—flawed, weak, and complex. In the interest of full disclosure, I confess that both authors are friends. But I hope that will not disincline you from their work, or deter you from their message.
If Kessler and Kotlowitz approach violence with a journalist’s keen sensitivity to the human condition, Marc Mauer and Danielle Sered come to it from the perspective of veteran practitioners. Mauer is the Executive Director of the Sentencing Project and one of the leading voices in criminal justice reform. He and his colleagues well know that we will never achieve meaningful transformation of the justice system unless we change our approach to violent crime. For several years, the Sentencing Project has pushed for sensible reforms that would move the needle in the right direction, including a call to abolish life sentences, cap all prison terms at 20 years, and expand the use of parole and other forms of supervised release. Many of these ideas are distilled in an important book published last year, The Meaning of Life: The Case for Abolishing Life Sentences, which Mauer wrote with his Sentencing Project colleague, Ashley Nellis. At least for now, the policies that Mauer advocates are not popular. But the Sentencing Project is accustomed to being a voice in the wilderness, and has never been afraid to speak alone.
Like Mauer, Sered has been on the frontlines of criminal justice policy for many years. She is the Executive Director of Brooklyn-based Common Justice, which provides an alternative to the traditional criminal model for violent crime. Rooted in restorative justice principles, Common Justice recognizes that violence, in its origin, reach, and impact, is far too complex for the narrow straitjacket of the adversarial process, which turns a blind eye to complexity in order to create a manageable but unsatisfying ritual. Common Justice embraces the complexity that criminal procedure eschews, and uses restorative justice circles to achieve accountability and healing—for the victim, the offender, and the community of which they are a part. Of the ideas discussed in this essay, Sered’s are undoubtedly the most radical, but only because they depart so thoroughly from conventional approaches. Common Justice takes a transformative approach that has the potential to alter the very landscape of criminal justice, if it is given space to grow. And like Mauer, Sered recently distilled her thinking into a new book, Until We Reckon: Violence, Mass Incarceration, and a Road to Repair.
Perhaps we are, at last, willing to confront our collective response to violence. As I reflect on this progress, I am reminded of wisdom from Bishop Desmond Tutu, who knows better than most what it means to be the victim of monstrous behavior. Bishop Tutu often said that demonization lets perpetrators off too easy. Monsters do not know the difference between right and wrong, and when we call a man a monster, we relieve him of any obligation to change. Indeed, we tell him he cannot change—that change is impossible—and that his attempt at transformation is like trying to domesticate a rattlesnake. We command that he remain precisely as we imagine him.
And with that step, we seal both his fate and ours. Far better that we turn to violence, face it without fear, and demand more from us all.