Making Punishment Fit the Crime


Todd R. Clear, dean of Rutgers University–Newark School of Criminal Justice, is one of the country's leading criminologists. A former president of the American Society of Criminology, he is widely known for his advocacy of evidence-based programs. In his newest book, The Punishment Imperative: The Rise and Failure of Mass Incarceration in America, Clear notes that the U.S. stands out among Western democracies for the “relentless punitive spirit” of its three-decades long mass incarceration policies.

The book's co-author is Natasha Frost, Associate Dean and Associate Professor in the School of Criminology and Criminal Justice at Northeastern University.

In a wide-ranging conversation with Joe Domanick, the West Coast Bureau Chief of The Crime Report, Clear traces the roots of American prison policy to racism and the idea of going after the “enemy,” discusses the devastating impact such policies have had on urban neighborhoods across the country, and suggests what might replace them.

The Crime Report: In The Punishment Imperative, you and your co-writer, Natasha Frost, say “…nowhere else in the democratic world, and at no other time in Western history, has there been the kind of relentless punitive sprit as has been ascendant in the United States…” On what do you base that statement?

Todd Clear: The democratic world has good recorded measurements of incarceration rates, and if you look at them you see that this has been a particular U.S. phenomenon over the past 40 years. It was a relentless pursuit across the country that didn't happen anywhere else, and was unprecedented in [modern, democratic] history. And in the Punishment Imperative we look at the reasons why.

TCR: Up until this phenomenon started to occur, was the U.S. incarceration rate and its sentencing policies in line with the rest of the Western democracies?

CLEAR: Yes. In the early '70s we were essentially like the other western democracies in the way we punished people who were convicted of crime. What changed was our policies on this issue, which have become extreme by any measure.

TCR: Can you talk about the wider social, cultural, historical antecedents of these punishment policies? For example, you state in your book that “a large pool of young black men…unconnected to the labor market,” was used as a “symbolic enemy around which to rally political forces and carry out “wars [on crime and drugs]…”

CLEAR: I would point to several arguments. One, these policies were based on [historic] racism, and were ignited by the racial conflicts that grew out of the civil rights movement. Then, through Richard Nixon's Southern Strategy and his law-and-order [presidential] campaign in '68, being tough on crime began dominating the national discourse, and the imagery was all about black men.

Second, young, black, jobless men were a tangible target-group that people thought required some new form of social control, and as Michelle Alexander pointed out in [her book] The New Jim Crow, mass incarceration was just another way of dealing with these expendable black people.

Third, crime was high, people were afraid, and (they were) willing to do anything to lower crime. But they were also concerned about race, and a feeling that [society was spinning out of control.] And in that social-movement context, the tough-punishment concept became associated with being the solution.

TCR: Based on what?

CLEAR: Based on almost no hard evidence. But that solution became so dominant in the discourse that there were no two sides of the argument. There was no distinction between political parties. Tough sentencing and mass incarceration as the answer was something that every politician [espoused] — a simple idea that made sense to people and became a national consensus.

TCR: Because it's almost counterintuitive to the belief that it's not true?

CLEAR: Yes. One of the reasons we had so much trouble getting people to consider other possible solutions was precisely because that solution feels to people entirely obvious.

In fact, the assumption was so deeply engrained that you couldn't offer a counter hypothesis. I wrote a paper in the '80s making the counter-argument that high incarceration rates actually had a criminogenic effect. And I couldn't get any journal in criminology to publish it.

For 30 years the federal government didn't publish a single study about the impact of incarceration on communities, on people that go to prison. It acted as though it was a proven fact that incarceration had all the [good] effects that people were saying it had.

TCR: Another thing that feels entirely obvious is that when society incarcerates large numbers of people committing crimes in high crime areas that it's doing these communities a favor. But you argue just the opposite is true.

CLEAR: Yes. If you remove a person from a community, you remove all of that person's activity in the community— the criminal activity that person would do theoretically, but also all of the assets that person would bring, including money, employment and parenting.

And going to prison reduces lifetime earnings by 40 percent. If you have a neighborhood where almost all the men have gone to prison you have a neighborhood where lifetime earnings in that neighborhood is down by 40 percent. So their children, spouses and community have less money.

[In addition], most crime is committed by young men in groups, and locking up one person in that group does not have much effect on the overall life of the community. But you get the worst of both worlds: all the costs of locking up a lot of people, while the group left behind is still doing their criminal activity.

TCR: Talk about framing this punishment movement as “wars” on drugs and crime?

CLEAR: Calling them wars meant that all the metaphors were about defeating enemies, and I think that was a very significant aspect of what was taking place. Because once you decided that you're fighting an enemy, they no rights, they're heathens who we have to protect ourselves from.

TCR: You write that the punishment movement was only partly built around crime rates.

Yes. In early years the incarceration rate grew mostly because of crime growth. In the middle years it grew mostly because of [changes in the law] restricting the use of probation. People who previously would have been given a sentence of probation were instead getting a prison sentence. The restrictions of the use of probation (exerted) a much stronger influence on prison population growth than any increase in crime.

Then the drug war also really drove prison-population growth, particularly in black communities.

The point is that you can't produce a [corrections] system as large as ours by focusing just on violent crime. It would never produce [the size of] this prison population. You would have to have policies on drugs, on property crime across the board to produce this prison population.

TCR: I'd like to go back to the war on drugs as a control mechanism…it seems that this need for a control mechanism in the minds of America's traditional power structure arose out of the '60s and the '70s and wasn't just racial. It was aimed at a whole cultural transformation, but it wound up focusing mostly on African Americans. Why?

CLEAR: We have to accept the fact that the motivation for the punishment was not entirely racial. And one of the reasons why it ended up concentrating so much on people of color was because of drug involvement in the inner city, and the police focusing on finding people selling drugs to lock up. So what you had is a fear of crime that can be real, and at the same time a strategy to do something about that fear that has had a profound differential racial impact on people of color. And I think that's what happened.

TCR: What about the criminal justice industry and their impact on these wars – organizations like the California the Corrections Peace Officers and District Attorneys Associations so strongly supporting and driving the crime and drug wars?

CLEAR: They were not principled people looking at the situation and saying we regret that we have to [engage in this extreme punishment], but you know, we have no other choice. Their support was because of economic expedience. Much of this movement was a movement of greed, with lots of people making money off of it. The cost was borne by people in poor communities and people of color.

TCR: The opposite of your argument about mass incarceration being a failure is this: The U.S. has seen a dramatic crime drop for the past two decades, and that drop in crime almost exactly coincides with America's mass incarceration policies. So why isn't that proof that those policies have been effective?

CLEAR: The problem with that argument is that it doesn't work. The change in incarcerations rates does not match that time period. Incarceration rates have gone up for decades. During that time crime has been up and down, and up again. If you look at the relationship between incarceration numbers and people locked up – most of the sophisticated models find a relationship that is small.

TCR: You say that the era of mass incarceration is now ending, and cite drops of two percent in 2009 and 2010 in the number of Americans in jails and prisons, and one percent in the number on probation and parole. Why are such small numbers significant?

CLEAR: Because they [indicate] a pattern. I recognize that this is very early data and we could be wrong. But something else that convinces me is that the public conversation is no longer about getting tough on this or that. You don't see politicians proposing new expansions of their prison systems. Mayors aren't running on get-tough policies.

Other claims are now being made on federal dollars. The argument that was previously being made was sort of a political-cultural argument. And you don't hear that anymore.

TCR: If it's over, what's emerging in its stead?

Justice Reinvestment is one thing. Another is the great California prison experiment [Realignment] that is making local governments pay the cost of their correctional policies. Before, the cost of the prison system was being provided by the state. Local judges were producing great growth in the prison system without [local governments] having to pay for the consequences.

Now the locals are being forced make economic and not just political decisions.

EDITORS NOTE: *Note: this Interview has been abridged and edited for space reasons.

Joe Domanick is associate director of the Center on Media, Crime and Justice at John Jay and Los Angeles Bureau Chief of The Crime Report. He welcomes comments from readers.

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