TOO LITTLE TOO LATE

The myth of the “bad” prisoner: Why we’re thinking about US prison reform all wrong

After decades of bipartisan support for incarceration in the United States, our enthusiasm for throwing people in jail seems to be waning. That’s evident in president Barack Obama’s statement on July 13 accompanying his decision to commute the sentences of 46 drug offenders.

“These men and women were not hardened criminals, but the overwhelming majority had been sentenced to at least 20 years,” Obama said in a video posted at Whitehouse.gov.

Introducing the clip, White House counsel Neil Eggleston elaborated that “federal sentencing practices can, in too many instances, lead non-violent drug offenders to spend decades, if not life, in prison.” The system, the White House argues, has mistakenly targeted people who are not dangerous. Commuting sentences is a small step towards raising awareness of injustice, and trying to change it.

 “These men and women were not hardened criminals, but the overwhelming majority had been sentenced to at least 20 years.” — Barack Obama Or it’s supposed to be a step towards changing it. In fact, Obama’s argument does little to undermine the logic of incarceration. Instead, focusing on non-violent drug offenders misleads the public as to the nature and scale of our incarceration binge. And it affirms the idea that, at least for most people, our prison system is just.

America has the largest prison population in the world, both by total numbers and by percentage of the population: by the end of 2013, 1.57 million people were incarcerated in US prisons. That’s a staggering number of people behind bars.

But most of these offenders aren’t there for non-violent drug crimes, according to an interview at Jacobin with Marie Gottschalk, author of Caught: The Prison State and the Lockdown of American Politics. “In fact,” Gottschalk said, “if we released everyone now serving time in state prisons whose primary charge is a drug offense, we would reduce the state prison population by only 20%.”

The numbers go down a lot more if you take into account other non-violent crimes, besides drug offenses. John Pfaff, a professor at Fordham University School of Law who researches prisons and sentencing law, told Quartz that if all non-violent offenders, drug and otherwise, were released from state prisons the prison population would be cut in half. But even such a large reduction would leave about 800,000 people in prison—2.5 times the number incarcerated in the US in 1970.

 “Not all violent offenders are really all that violent, and not all non-violent are necessarily non-violent.” Pfaff added that the division of inmates into non-violent and violent is itself confusing and misleading. “Not all violent offenders are really all that violent, and not all non-violent are necessarily non-violent; it’s tricky to figure out who is who,” he said.

For example, Pfaff said, in New York state, burglars who break into a house when no one is home are still considered violent offenders. On the other hand, when Pfaff examined records of non-violent drug offenders, he found that many had a record of violent crimes from the past, or had physically harmed someone during the commission of their crimes.

Focusing on non-violent crime, then, is actually a somewhat arbitrary way to separate the incarcerated into good prisoners and bad prisoners—and to avoid dealing with the most pernicious ideology behind the incarceration binge.

“As long as we focus on non-violent people in prison,” Pfaff told Quartz, “it has the collateral consequence of suggesting we should just give up on the violent people, and that the violent people deserve whatever we do. And I’m not sure that’s entirely the right way to think about it. Violent people change, violent people age out of crime.”

In his statement, Obama insisted that “America is a nation of second chances,” but his focus on non-violent offenders alone sends the message that some people—the majority of the prison population—don’t deserve clemency.

 Obama’s focus on non-violent offenders alone sends the message that the majority of the prison population don’t deserve clemency. James Kilgore, a writer and activist in Urbana, IL who spent six and a half years in prison, agrees that focusing on non-violent drug crime is not sufficient. For the US to drop its incarceration rate down to that of Britain’s, Kilgore told Quartz, would require an 80% reduction in the prison population. “That’s not a matter of sentencing reform, not a question of legalizing drugs,” he said. “That would require an entire transformation of the punitive model of justice that has taken over the US since the early 1980s.”

In Kilgore’s view, the incarceration problem can’t be reduced to simple fixes. The US industrial prison complex is tied to broad social inequities and a criminalization of poverty. “When we start talking about people with violence and non-violence, ” Kilgore said, “we are implying that the reason people with convictions for violent crimes are in prison is because they made ‘bad decisions,’ that it is a problem of individual judgment rather than people being backed into social, economic and ultimately legal corners which made long-term incarceration inevitable.”

Obama, and politicians on both the right and left, are just beginning to acknowledge that America has too many people in prison. But the problem is still too often framed as a technical glitch. Some good people have ended up in a place for bad people, the White House suggests. Fiddle with drug laws or sentencing lengths, and the good people can be released, and all will be well.

Unfortunately, America’s prison problem isn’t so easily rectified. The massive incarcerated population is not some sort of accident. It’s a natural consequence of an America in which huge numbers of people, and entire communities, are considered at best superfluous, and at worst unsaveable. Black people, Hispanics, immigrants, the poor and yes, drug users as well—all are systemically deemed to be unworthy of first chances, much less second ones. Until America confronts this fact, the US prison population will remain a bloated indictment of our nation, no matter how many sentences the president decides to commute.

You can follow Noah on Twitter at @hoodedu. We welcome your comments at ideas@qz.com.

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