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Why We Should Be Suspicious of the Libertarian Right's Newfound Concern for Prison Reform

The problem with the growing popularity of fixing our prison system.

Photo Credit: Miller Center (M. Alexander); Gage Skidmore (R. Paul) / Wikimedia Commons


Like many criminal justice and drug policy reformers I have watched with great interest the growing bi-partisan support among elected officials for addressing ‘mass incarceration.’ Much of this new-found interest is due in part to Michelle Alexander’s well-received book, "The New Jim Crow," which elevated concerns about mass incarceration and its relationship to the ‘war on drugs’ in African American and liberal communities. Response to "The New Jim Crow" is part of a broad cultural shift in discussion of drugs and criminal justice policies, reflected in the popularity of shows like "Breaking Bad" and "Weeds," documentary films like "The House I Live In" and growing national acceptance of marijuana legalization. As someone who has spent the past 15 years advocating for reform of our criminal justice system and the end of punitive drug prohibition these developments should fill me with hope and optimism, instead I am filled with skepticism and great trepidation for the future.

It seems I’m not the only one who views these developments with a sense of unease. In Prison Culture’s recent website article, “ Prison Reform’s In Vogue & Other Strange Things,” the author starts by noting the widespread optimism among journalists and others over the prospects for criminal justice reform and then goes on to express skepticism about the legitimacy of the development by citing history. The modern penal institution is a product of an earlier reform movement, which sought to replace physical torture and punishment with a system that would encourage quiet reflection, penance and rehabilitation. The author references a seminal report titled, “Struggle for Justice,” published decades ago, which put it this way:

More judges and more ‘experts’ for the courts, improved educational and therapeutic programs in penal institutions, more and better trained personnel at higher salaries, preventive surveillance of predelinquent children, greater use of probation, careful classification of inmates, preventive detention through indeterminate sentences, small ‘cottage’ institutions, halfway houses, removal of broad classes of criminals (such as juveniles) from criminal and ‘nonpunitive’ processes, the use of lay personnel in treatment — all this paraphernalia of the ‘new’ criminology appears over and over in nineteenth-century reformist literature.

Sound familiar? “Struggle for Justice” was published in 1971 and was referencing reforms from the previous century. As the authors astutely observed, many ‘reforms’ were merely changes in semantics: “Call them ‘community treatment centers’ or what you will, if human beings are involuntarily confined in them, they are prisons.” Everything being proposed to reform the criminal justice system by state and federal legislators today are reconfigurations of things we’ve done before with varying degrees of success.

During a recent conference call with activists on prospects for systemic reform Michelle Alexander is quoted as saying:

"We see politicians across the spectrum raising concerns for the first time in 40 years about the size of our prison state,” said Alexander, “and yet I worry that so much of the dialogue is driven by financial concerns rather than genuine concern for the communities that have been most impacted and the families that have been destroyed” by aggressive anti-drug policies.

Unless “we have a real conversation” about the magnitude of the damage caused by the drug war, “we’re going to find ourselves, years from now, either having a slightly downsized system of mass incarceration that continues to hum along pretty well,” she said, “or some new system of racial and social control will have emerged again, because we have not learned the core lesson that our history is trying to teach us."

I share Michelle Alexander’s concerns. I agree we have to directly confront the gross hypocrisy and misuse of resources associated with drug prohibition, but that’s only one aspect of the broader problem confronting us. I completely endorse the essential premise of “The New Jim Crow” — mass incarceration is the newest iteration of the racial caste system that was created during the earliest days of the republic and has persisted in various forms to the present.