More than anything else, the 2010 book by Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, laid the foundation for criminal justice reform efforts. However, I think the work of John Pfaff has shown that part of her thesis is wrong – namely that the driver of mass incarceration is not low level offenses.
Professor Pfaff in his book, Locked In: The True Causes of Mass Incarceration – and How to Achieve Real Reform, challenges what he calls the “standard story” that “the root cause of incarceration is the racist persecution of young black men for drug crimes, which overpopulates the prisons with nonviolent offenders.”
It is not that Professor Pfaff is not a reformer of mass incarceration, which he argues “is one of the biggest social problems the United States faces today; our sprawling prison system imposes staggering economic, social, political, and racial costs.”
Rather, he believes that the standard story as developed by Michelle Alexander is wrong.
However, while I believe that Professor Pfaff is right here, I believe that Michelle Alexander is correct about the consequence of mass incarceration creating a de facto “new Jim Crow” system in America, where blacks become second class citizens – not through intentional segregation laws, but rather through the unintended consequence of the get tough on crime movement, which in some ways is a proxy for cracking down on people of color.
In her latest column in the New York Times this week, she applauds the reform efforts and the victories this week, where Michigan legalized cannabis, Florida restored the vote to 1.4 million people with felony convictions, and Louisiana changed their constitution to require unanimous jury verdicts in felony trials.
She called these the latest examples of “the astonishing progress that has been made in the last several years on a wide range of criminal justice issues.”
Overall she is pleased to see that “there have been significant changes to drug policy, sentencing and re-entry, including ‘ban the box’ initiatives aimed at eliminating barriers to employment for formerly incarcerated people.”
She says that “this process is unquestionably good news,” but she also sees a warning sign on the road ahead.
She writes, “Many of the current reform efforts contain the seeds of the next generation of racial and social control, a system of ‘e-carceration’ that may prove more dangerous and more difficult to challenge than the one we hope to leave behind.”
The example that she gives is the bail reform effort. She takes the moment to rejoice the ending of what she calls “the unconscionable practice of cash bail.”
At the same time, she warns “what’s taking the place of cash bail may prove even worse in the long run.”
Remember in California, the legislature and governor passed and signed bail reform, but groups like the ACLU bailed out on supporting the measure for a variety of reasons due to changes in the law.
She writes: “In California, a presumption of detention will effectively replace eligibility for immediate release when the new law takes effect in October 2019. And increasingly, computer algorithms are helping to determine who should be caged and who should be set ‘free.’ Freedom — even when it’s granted, it turns out — isn’t really free.”
It is the “risk assessment” algorithms that have her concerned. She notes that these “advanced mathematical models… appear colorblind on the surface but they are based on factors that are not only highly correlated with race and class, but are also significantly influenced by pervasive bias in the criminal justice system.”
She cites data scientist Cathy O’Neil who calls them “weapons of math destruction” as she explains, “It’s tempting to believe that computers will be neutral and objective, but algorithms are nothing more than opinions embedded in mathematics.”
Ms. Alexander worries that it will be more difficult to challenge the biases in the algorithms which are “fiercely guarded corporate secrets” and thus “lack a public audit so it’s impossible to know how much more often they fail for people of color.”
Overall she worries that the reform of mass incarceration has not really reformed mass incarceration. Rather, they have replaced incarceration with electronic surveillance and the monitoring of the same population and not necessarily (just) by the state, but also by the rise of private corporations, which she notes “have most of the private contracts to provide electronic monitoring for people on parole in some 30 states, giving them a combined annual revenue of more than $200 million just for e-monitoring.”
She argues: “Companies that earned millions on contracts to run or serve prisons have, in an era of prison restructuring, begun to shift their business model to add electronic surveillance and monitoring of the same population. Even if old-fashioned prisons fade away, the profit margins of these companies will widen so long as growing numbers of people find themselves subject to perpetual criminalization, surveillance, monitoring and control.”
Ms. Alexander argues, “Many reformers rightly point out that an ankle bracelet is preferable to a prison cell. Yet I find it difficult to call this progress.”
Instead, she argues that “digital prisons are to mass incarceration what Jim Crow was to slavery.”
She argues that most slaves would definitely prefer Jim Crow to slavery, but she points out that “hopefully we can now see that Jim Crow was a less restrictive form of racial and social control, not a real alternative to racial caste systems.”
By the same token then, she argues “if the goal is to end mass incarceration and mass criminalization, digital prisons are not an answer.”
She concludes: “If our goal is not a better system of mass criminalization, but instead the creation of safe, caring, thriving communities, then we ought to be heavily investing in quality schools, job creation, drug treatment and mental health care in the least advantaged communities rather than pouring billions into their high-tech management and control.”
—David M. Greenwald reporting