Magazine April 22, 2019, Issue

Michelle Alexander Is Wrong about Mass Incarceration

(Caspar Benson/Getty Images)
The criminal-justice system is not racist, and confining people is necessary

Michelle Alexander, famous for her book arguing that mass incarceration is the “new Jim Crow,” now has a perch on the op-ed pages of the New York Times, where she’s been offering her views on the criminal-justice system. Those views have shifted quite a bit — she now at least recognizes that violent crime is a major driver of incarceration — but her policy proposals are just as ill informed as they were when her book caught the zeitgeist in 2010.

The New Jim Crow indicted the criminal-justice system for imposing racially motivated social controls on African Americans through convictions for nonviolent crimes, mainly drug crimes. The aim, according to Alexander, was to undo the civil-rights gains of the 1960s by subjecting blacks to incarceration, probation, and parole:

The seeds of the new system of control were planted well before the Civil Rights Movement. A new race-neutral language was developed for appealing to old racist sentiments, a language accompanied by a political movement that succeeded in putting the vast majority of blacks back in their place. Proponents of racial hierarchy found they could install a new racial caste system without violating the law or the new limits of acceptable discourse by demanding “law and order” rather than “segregation forever.” 

Correctional controls, since they fell disproportionately on blacks, created a new racial caste of people “swept into the system, branded criminals or felons, and ushered into permanent second-class status — acquiring records that [would] follow them for life.”

Sounds chilling, but there are huge holes in the argument. First, the racial-conspiracy hypothesis has never been established in historical scholarship and remains the redoubt of a few ideologues. The notion that the buildup of the criminal-justice system, which began in the 1970s but gained steam over the next three decades, was part of a plot to undo the civil-rights movement rather than a response to the massive crime and drug wave that afflicted this country not only is dubious revisionist history, but it overlooks the strong support of black leadership for an expansion of the criminal-justice system. As vividly documented in James Forman’s Locking Up Our Own, crime terror in the black community led African-American political leaders, including former D.C. prosecutor Eric Holder, to endorse the kind of punitive policies that helped produce mass incarceration.

Those who question the reality of the crime tsunami should consider the homicide statistics, our most accurate crime measure, and the thousands of people who lost their lives at the hands of criminals during these decades. Homicide-victimization rates doubled between 1960 and 1980 and didn’t begin a consistent decline until the mid 1990s. From 1970 to 2005, a staggering 673,993 Americans were murdered, more than died in all our wars from World War II on. And these losses don’t include the many crime victims injured for life or the billions of dollars in costs.

For those focused on African Americans, the murder statistics are even more disturbing. Though blacks were around 12 percent of the U.S. population, they were nearly half of the homicide victims during this period, and 60 percent of the suspected perpetrators.

This great crime rise was the primary cause of the incarceration expansion. Crime, drugs, and disorder, magnified through mass-media coverage, generated intense public fear, which in turn led to relentless pressure on the politicians to beef up the criminal-justice system. Peter Enns’s recent study of public opinion, Incarceration Nation, persuasively demonstrates that it was public support for punitiveness that drove up incarceration rates. The nearby chart, using his data, shows the rise in crime and the commensurate escalation in punitive attitudes among the American public. Given the correspondence of the curves, it seems clear that the former (the crime rise) drove the latter (punitive attitudes), which in turn triggered the hardening of the criminal-justice system.

Data are scaled from 0 to 1. Crime rate is a combination of violent- and property-crime rates, not including larceny.

The plain truth is that crime was spinning out of control; our big cities, especially, were becoming seething cauldrons of violence, and the public, frightened out of its wits, demanded a government response.

The New Jim Crow famously repudiated this explanation: Drugs, not violent crime, Alexander said, were responsible for the incarceration buildup:

We ought not be misled by those who insist that violent crime has driven the rise of this unprecedented system of racial and social control. The uncomfortable reality is that arrests and convictions for drug offenses — not violent crime — have propelled mass incarceration. 

If “incarceration” means imprisonment, however, this assertion is flat wrong. Among state prisoners, drug-violation sentences were, at their peak, around one-fifth of all sentences, one-fourth for African-American inmates. Sentences for violent crimes, by contrast, were anywhere from 46 to 59 percent of all sentences. (To be sure, drug sentences accounted for more than half of federal inmates, but federal prisoners were a small part of the total prison population, around 7 percent, and the federal prosecutions mainly were of drug dealers, not small-fry street sellers.) Given that the U.S. imprisonment rate roughly quintupled between 1970 and 2010, it is extremely unlikely that drugs could be the full explanation, or anything close to it.

Alexander tries to evade this counterargument by claiming that probation and parole supervision are also part of the system of mass incarceration: “This caste system extends far beyond prison walls and governs millions of people who are on probation and parole, primarily for nonviolent offenses.”

But this is unpersuasive. In the first place, probation and parole are alternatives to incarceration and should not be characterized as incarceration in themselves. What’s more, if we are to significantly reduce actual incarceration in this country, we will have to increase the use of probation and parole, unless we further reduce crime and arrests, which seems unlikely. (In a recent Times column, Alexander pushes restorative justice as an alternative to prison, but, as I will show, this approach cannot be taken seriously.)

Probation is a sentence, true, but it is a sentence to a restricted freedom, not to jail or prison. It comes with conditions, but they’re hardly onerous: e.g., no guns, drug rehab if needed, meet with your probation officer, and, of course, no additional crime. Probation is intended to reduce incarceration, especially for offenders who pose less of a threat to society. Only 20 percent of probationers have been convicted of violent crime, compared with 54 percent of all state prisoners. Alexander spins this to claim that mass incarceration is propelled by nonviolent crime, but the great outcome of probation is mass nonconfinement, not mass incarceration.

Probation sentences usually last six months, maybe a year. What follows the probationer for life, if it isn’t expunged, is the record of his conviction. This is as it should be, since in the absence of conviction records we would risk sentencing repeat offenders the same as first offenders. Would Alexander really wipe clean all conviction records?

Alexander says, grimly, that probationers are “swept into the system, branded criminals or felons, and ushered into a permanent second-class status — acquiring records that will follow them for life.” That’s a pretty disparaging view of a system that gives relatively minor offenders the opportunity to stay out of jail or prison, thereby reducing mass incarceration — real incarceration — for millions of arrested people, provided only that they behave themselves for a short period.

Alexander’s discussion of parole is even more deficient. Parole is a sentence reduction, the release of a convicted criminal from prison, also subject to conditions. It too reduces real incarceration. Contrary to Alexander’s claims, it does not involve mainly drug and nonviolent criminals. One-third of parolees committed violent crimes, one-third drug crimes, and one-fifth property crimes. Once again, the aim of the policy is rehabilitation. However, as critics observe, parole doesn’t work very well. Over 80 percent of those released on parole are rearrested within nine years. Solutions have ranged from providing more services to help parolees reintegrate into society to reducing or ending parole altogether.   

I don’t have a good answer to this problem. But Alexander doesn’t either. Complaints about branding people criminals obviously are irrelevant, as parolees are criminals. And they are probably not harmless youth smoking weed on the streets. To judge by the preceding figures on parolees, they are more likely to be violent and hardened criminals who have served time and may well be incorrigible. Parolees are disproportionately black, but this reflects the disproportionate number of African Americans in prison, not those arrested for minor, nonviolent crimes.

In her November 8, 2018, Times column, Alexander discovered a new target, the “newest Jim Crow,” as she dubbed it: electronic monitoring (EM) of offenders, who may include parolees, probationers, and those released pre-trial. Once again, Alexander displayed a penchant for opposing the most workable policies for reducing real-world incarceration.

Current release policies are essentially an honor system. When probationers and parolees are discharged, judges admonish them to keep their noses clean, but their putative monitors — probation and parole officers — simply have too many cases to closely oversee anybody. Is it any wonder that violations of the conditions of probation or parole are a major factor in admissions to jail or prison? Such violations alone recently resulted in the incarceration of over 340,000 people in a single year.

Electronic monitoring provides obvious benefits in this situation. Using the same GPS technology found in your cell phone, EM can tell the authorities the precise location, though not the activities, of the subject, who wears a wrist or ankle bracelet. With EM, probation and parole officers will be able to monitor the subject in three different ways. First, the device can alert authorities when the subject has physically entered a prohibited location, such as a victim’s or prosecution witness’s residence or workplace. Second, contrary to Alexander’s concerns that EM will make holding a job more difficult, the devices can remind subjects to go to work or to rehab appointments and alert officers if they do not. Third, since GPS reveals the movement of the subject, along with time information, authorities can compare subjects’ whereabouts with the locations of crimes to see whether they match, which would suggest that a subject was present at the scene of a crime.

Alexander is troubled that big corporations benefit financially from electronic monitoring. But there are financial advantages to the taxpayer in outsourcing EM, and besides, current-day probation and parole authorities have all they can do to keep up without technologically supported monitoring. They couldn’t possibly manage an expanded EM program.

Alexander also claims that EM doesn’t work. To support her claim, she cites a Brookings Institution report that questions the efficacy of “intense supervision” of released parolees and probationers. But nowhere in this report is there a word about EM in particular. Furthermore, there have been studies of EM specifically that have found it very effective. A Florida evaluation supported by the U.S. Justice Department and involving over 5,000 medium- and high-risk offenders placed on electronic monitoring over a six-year period found that approximately one in three would have gone to prison had it not been for the monitoring.

Ultimately, Alexander falls back on race rhetoric: EM is to prison as Jim Crow was to slavery — better, sure, but only by contrast. But EM is not, as Jim Crow certainly was, a race-based barrier to social betterment. It is (let’s be honest) an encumbrance, but it is one that can help reduce the appalling failure of today’s honor release system. Just keep in mind the system’s 83 percent rearrest rate within nine years of parole, and the 340,000 parole and probation failures imprisoned each year.

In her March 3 op-ed, Alexander belatedly discovered violent crime, which accounts, she notes, for 54 percent of those in prison. She now concedes that mass incarceration cannot be addressed without doing something about violent crime. This is a big improvement over her New Jim Crow claim that drug prosecutions were the heart of the problem.  

And just what is the prison problem? Alexander insists that the get-tough policies first adopted in the 1980s were an “abysmal failure.” This is hard to square with a massive decline in African-American violent crime during the period of the great toughening. From 1980 to 2009, the black homicide-mortality rate fell by a whopping 54 percent, from 41 per 100,000 to 19. I don’t claim that the increase in incarceration was the full explanation for the crime decline, but certainly it’s a big part of the story.

Alexander’s second criticism is that prison is “enormously counterproductive.” Given the recidivism rate, it is obvious that prison isn’t reforming very many offenders. Nonetheless, any full assessment of the prison system also has to take account of the simple and straightforward benefits of incapacitating repeat offenders for the time that they are incarcerated, not to mention the importance of retribution for truly atrocious crimes.

Alexander wants to cut the prison population in half, though she never tells us which crimes will get the benefit of her leniency: rape, murder, robbery, burglary? She does offer an alternative to incarceration — restorative justice (RJ) — but when it comes to the crimes that lead to prison, as opposed to jail for a short term or probation, RJ is pie-in-the-sky.

RJ provides a meeting of crime victims and perpetrators (or as Alexander puts it, “survivors” and “responsible parties”) under the direction of a trained facilitator, aimed at arriving at a way for the perpetrator to make the victim whole again, or at least acknowledge her pain.

This certainly has its place, but it will not replace imprisonment. For low-level offenses such as harassment or minor theft, RJ may be effective. It also might be helpful in campus “date rape” situations where “he said, she said” accounts prevent clear findings of responsibility. For most serious crimes, however, especially crimes of violence, RJ can work only as a supplement to incarceration. Not only are serious offenders a danger to the community who must be incapacitated, but their crimes are such that the public’s sense of justice requires punishment. Retribution may be out of favor nowadays, but it is an essential ingredient of every criminal-justice system. Alexander claims that 90 percent of victims prefer RJ to imprisonment, but the source for this number is obscure, and in any event victims aren’t representative of the general public. That’s one reason we prefer that judges rather than “survivors” impose sentences.

Clearly, whatever the benefits of restorative justice, it will not reduce the prison population by 50 percent — Alexander’s target — or anything close. It is likely to be most effective with probationers, who have committed crimes minor enough that they are being released instead of incarcerated. But this is a population that already is unconfined, so it won’t help reduce real-world incarceration.

Taken seriously, Michelle Alexander’s ideas are pretty thin on facts and real-world solutions. She may have progressed from the catchy shallowness of The New Jim Crow, but she continues to offer little by way of serious criminal-justice reforms.

This article appears as “Punishment’s Prosecutor” in the April 22, 2019, print edition of National Review.

Barry Latzer is an emeritus professor at John Jay College of Criminal Justice, CUNY. His most recent book is The Rise and Fall of Violent Crime in America. His history of violent crime pre-1940, The Roots of Violent Crime in America: From the Gilded Age through the Great Depression, will be published in 2021.

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